Why Radical Deregulation Is Happening So Fast At The FCC
By Andrew Jay Schwartzman
Mar 19 2017
Chairman Ajit Pai is moving fast at the FCC
President Donald Trump has moved quickly to use Executive Orders and other plenary powers to deliver on some of his major campaign promises on issues such as immigration, the Dakota Access pipeline and appointment of a conservative Supreme Court Justice. For the most part, however, his promised deregulatory assault on what his chief strategist Steven Bannon calls the “Administrative State” has not advanced as quickly. Hundreds of top-level positions at Executive Branch agencies remain vacant, and the process of rescinding regulatory policies can be cumbersome and time consuming.
There is at least one important exception – media and telecommunications regulation at the Federal Communications Commission.
Within weeks after taking office, newly-designated FCC Chairman Ajit Pai has moved aggressively and with unprecedented speed to overturn many recent FCC decisions and changed some longstanding policies. While some of these actions are more symbolic in nature, others have had immediate and significant impact. Many more such actions are likely to be unveiled in the weeks, not to mention months, to come.
This is a very partial list of Chairman Pai’s early initiatives:
• Instructing agency attorneys not to defend the FCC’s authority to regulate intrastate prison phone rates in a court hearing held on February 6. (I was allowed to defend the intrastate rates in their stead.) While the agency’s attorneys did defend the Commission’s ability to regulate less-important interstate rates, Chairman Pai has indicated that if the FCC wins the case, he will likely set the rates at a higher level.
• Setting aside a decision admonishing a dozen TV stations for failure to comply with rules requiring them to place information about their sales of commercials concerning political issues.
• Overturning “policy guidance” that disfavored the use of certain contractual arrangements allowing broadcasters to evade the FCC’s rules limiting the number of TV stations one company can operate in a particular market.
• Staying the effectiveness of new rules requiring broadband Internet access service providers to protect their customers’ browsing and other data.
• Abandoning the FCC’s scrutiny of so-called “zero rating” practices under the Commission’s Network Neutrality rules. As a result, wireless carriers have been free to allow customers to use favored music and video content outside the companies’ monthly data caps.
• Setting aside orders designating nine companies to be national providers of subsidized Lifeline broadband services for low-income customers.
• Rescinding a cybersecurity policy white paper putting forth cybersecurity policies finding that market place forces are insufficient to protect the public and national security.
• Suspending an inquiry into a Comcast-affiliated video streaming service that appeared to violate the conditions imposed when Comcast was allowed to purchase NBC Universal.
Taken together, these and several other of Chairman Pai’s actions constitute a dramatic departure which is far more extensive, and far more rapid, than what any prior incoming Chairman has undertaken.
There are a number of reasons why things are moving so fast and so radically at the FCC.