By Adam R Jacobson
RBR + TVBR
In just two weeks’ time, freshly minted FCC Chairman Ajit Pai has put his stamp on the Commission in ways that have led to more than just a veer for Pai, fellow Republican Commissioner Michael O’Rielly, and the lone remaining Democratic Commissioner, Mignon Clyburn.
With a pledge of transparency and a flurry of rescissions, the Pai FCC has gotten a thumbs-up from a radio industry excited about new possibilities for “AM revitalization.” The NAB has expressed its pleasure on several television industry-related rollbacks, including one tied to political advertising that involved so-called “midnight” legislation designed to sneak its way into law at the last minute.
Now, Pai is pledging to put a stop to a tactic his predecessor, Tom Wheeler, used to gain support of items he sought passage of — speaking to the press and posting blogs.
Meanwhile, Clyburn has spoken up about Pai’s actions, and she’s less than pleased with a change in direction at the FCC that appears to be less than a nudge and more like a jolting track shift.
NO LEAKS OR TIPS
Last week, Pai started a pilot program under which the Commission publicly released the text of two items to be voted upon at the agency’s upcoming Feb. 23 meeting.
“This program is designed to give Americans greater insight into the Commission’s thinking about meeting items,” Pai says.
On Monday (2/6), Pai revealed another process reform measure relating to such items.
During the past few years, the Chairman’s Office often briefed the press or published a blog about matters to be voted upon at the FCC’s monthly meetings — before sharing those matters with Commissioners.
“As a Commissioner, I thought that actions like these were inappropriate and disrespectful of other Commissioners,” Pai said. “Now, as Chairman, I still hold that view.”
Accordingly, Pai has pledged that during his tenure as Chairman, his office will share with every Commissioner’s office “every item that will be considered at an open meeting before anyone in my office discusses the content of those items publicly or the FCC releases the text of those documents.”
It’s a signal that the “pilot program” is on track to become a permanent feature of the Pai FCC. “That is what we did with respect to the meeting items for the February 2017 meeting, and that is what we will continue to do in the months to come,” he said.
The latest reform to the agency’s processes was met with positive reaction from House Communications and Technology Subcommittee Chairman Marsha Blackburn (R-Tenn.).
“For the last few years, we have been concerned that the actions of the Chairman threatened the character and integrity of the FCC as a commission,” she said. “Among the most troubling was the breakdown in communications between the commissioners and the chairman’s tendency to selectively release information to the public before sharing it with the rest of the commission. [Monday’s] announcement by Chairman Pai marks a return to the collegiality and cooperation between commissioners that was once the hallmark of the FCC. I applaud Chairman Pai for his commitment to restoring the public’s faith in the FCC.”
Pai’s comments came after a flurry of FCC activity on Thursday (2/2) and Friday (2/3), with the final day of the business week seeing the FCC’s rescission of “Midnight regulations.”
Explaining the rescission, Pai said, “In the waning days of the last Administration, the FCC’s Bureaus and Offices released a series of controversial orders and reports. In some cases, Commissioners were given no advance notice whatsoever of these midnight regulations. In other cases, they were issued over the objection of two of the four Commissioners. And in all cases, their release ran contrary to the wishes expressed by the leadership of our congressional oversight committees. These last-minute actions, which did not enjoy the support of the majority of Commissioners at the time they were taken, should not bind us going forward. Accordingly, they are being revoked.”
At the same time, two major moves largely scratched what the Commission’s Media Bureau had etched in not-so-permanent marker under a Democratic Chairman regarding political ad disclosure complaints and the processing of applications for certain broadcast television shared agreements — including the commonly seen Joint Sales Agreement (JSA).
The dual rescissions left Ms. Clyburn irate.
In scathing comments, Clyburn called Feb. 3 “take out the trash day” at the Commission and reference an episode of now-concluded TV series The West Wing.
On one episode of the program, White House Chief of Staff Josh Lyman stated: ‘”Any stories we have to give the press that we’re not wild about, we give all in a lump on Friday . . . Because no one reads the paper on Saturday.”
To that end, Clyburn said, “[On Friday] multiple Bureaus retracted—without a shred of explanation—several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission. In the past, then-Commissioner Pai was critical of the agency majority for not providing sufficient reasoning behind its decisions, citing specifically the Supreme Court case Fox v. FCC.”
The case, Clyburn notes, includes the following language: [T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio[.]
“It is a basic principle of administrative procedure that actions must be accompanied by reasons for that action, else that action is unlawful,” Clyburn said. “Yet that is exactly what multiple Bureaus have done. The Bureaus rescind prior Bureau actions by simply citing a rule that allows them to do so, when in prior invocations of that rule there have been oft-lengthy explanations for the reasoning behind the actions.”
Furthermore, Clyburn assailed Pai for being “rebuffed” in her office’s request to review “the dozen items” released on Friday from the FCC that largely undid what the Wheeler FCC affirmed. She said her office made the request “more than the allotted two days.”
After that, she added, “we simply asked to have the Bureaus comply with the reasoned decision-making requirements of the APA. No deal.”
Thus, it’s Clyburn’s belief that Chairman Pai is engaging “in the same actions for which he criticized the prior Chairman.”
She added, “I am hopeful that in the future this Commission, consistent with our shared commitment to increased transparency, will heed the APA’s requirement for reasoned decision-making. The American public deserves no less.”
RBR + TVBR RELATED READ: Mignon Clyburn: The Last Democrat At The FCC
RBR + TVBR OBSERVATION: Has the GOP leadership of the new FCC, in just two weeks’ time, alienated Mignon Clyburn? We don’t think so. But, Clyburn’s vociferous reaction to Pai’s undoing of certain regulations that came in the final days of former chairman Tom Wheeler’s tenure at the FCC may be smoke and fightin’ words designed to give the lone Democrat left a bit of a punch. If this is a political move … 0y. The biggest issue we had with the Wheelin’ Dealin’ CTIA Comrade was the politicalization of the FCC — and a level of partisanship that was unprecedented. We are not suggesting that Clyburn play nice as the FCC shifts as smoothly as a Lockheed C-5 Galaxy in mid-air. But, with two new Commissioners yet to arrive, Clyburn may wish to pick and choose her battles carefully. Pai has already done many radio and TV broadcasters a solid. Let’s make sure the Commissioners work together to keep the positive momentum from unnecessary turbulence.