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March 15, 2017 - Aji Pai, who joined the FCC in 2012 and was named and reappointed chairman earlier this year, made his first official policy address in Pittsburgh, at Carnegie Mellon University on March 15. Pittsburgh's rejuvenation as a first class technology hub has transformed the region into what is now known as the 'Affordable Silicon Valley.' The title of Ajit Pai's talk was "Bringing the Benefits of the Digital Age to All Americans," which discussed next-generation internet networks. The talk at the Software Engineering Institute hearkens back to his first speech as a commissioner, which also took place in Pittsburgh. David Farber, an adjunct professor of computer science at CMU, supports Mr. Pai's approach to the Internet, saying reclassifying broadband services was like "swatting a fly with a Sherman Tank."
"Net neutrality is a complicated mess," said Mr. Farber, who was chief technologist at the FCC in 1999. The rule change was an "overreaction to a nonproblem." Pai also met with local tech and broadband businesses, including Duolingo, Amazon, and Armstrong. The University of Pittsburgh Medical Center (UPMC) Technology Development Center, and across the street, TechShop Pittsburgh, represent cutting edge technology companies, not to mention members of the Pittsburgh Technology Council, supporting local tech partners, Google, Dell Secureworks, Black Box, Songwhale, Aquion Energy, Avere Systems, Cohera Medical, ModCloth, Duolingo, BodyMedia, Wombat Security, and many more.
WASHINGTON, DC - Energy and Commerce Committee Chairman Greg Walden and Communications and Technology Subcommittee Chairman Marsha Blackburn today issued the following statement after Federal Communications Commission Chairman Ajit Pai released the text of two proceedings for public comment.
"This is the type of transparency we've been urging the FCC to implement for the last several Congresses. Then-Commissioner Pai and Commissioner O'Rielly had long pushed for greater transparency during Chairman Wheeler's tenure, and we are pleased to see that just two weeks into Commissioner Pai's chairmanship we are already seeing positive changes at the commission," said Walden and Blackburn.
More kudos:
"We commend Chairman Pai for yet another step toward much-needed reform at the FCC. For too long, the commission has used the ability to delegate authority to its bureaus as a way to bypass the hard work of coming to consensus on difficult issues," said Walden and Blackburn. "Chairman Pai's readiness to rescind those hastily issued bureau decisions is an encouraging turn for the better, and we're confident that the new FCC will work quickly, efficiently, and transparently to resolve any questions that remain."
Chairman Ajit Pai's FCC announced today that 'free is good; we like free' and in response, the new acting chief of the FCC's Wireless Bureau informed companies on Friday that they were closing inquires into whether free data plans offered by AT&T and Verizon violated net neutrality rules, a signal that the agency under new chairman Ajit Pai will take a much friendlier view of such offerings than his Wheeler-Dealer predecessor.
In a statement, Pai said that the "plans have proven to be popular among consumers, particularly low-income Americans, and have enhanced competition in the wireless marketplace. Going forward, the Federal Communications Commission will not focus on denying Americans free data." The cherry on top, of the free data is the limitation of waste, fraud, and abuse in the Internet subsidies program, saving Americans millions by protected their wallets from fraudulent providers. The Federal Communications Commission has also taken the first step toward the eventual roll-out of over-the-air terrestrial 4K television broadcasting in the U.S. Now that's innovation. Thanks Mr. Chairman!
See Mr. Pai's statements here and here and here
Confirms FCC has no role in regulating free speech:
"We've had success in calling attention to government initiatives that threatened our constitutional freedoms. The most salient example was the FCC's ill-advised "Critical Information Needs" study. This study involved researchers funded by the agency that licenses television stations going into broadcast television newsrooms and asking questions about editorial judgment. The FCC ultimately scrapped this study, thankfully.
My op-ed in The Wall Street Journal may have started us down the path toward this decision. But what compelled the FCC to stop was the opposition of Americans from around the country and across the political spectrum. This opposition sprang from longstanding public support for the First Amendment. And this support, in turn, has a pedigree that predates America itself.
The intellectual foundation of First Amendment freedoms as we know them was built by the great thinkers of the Enlightenment. In his famous 1644 treatise Areopagitica, for instance, John Milton blasted the British Parliament's requirement that authors get a license from the government before publishing their work. As he put it, "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."
That liberty - not riches, not comforts, not anything else - is ultimately what distinguishes free societies from all others. I wish I could say that the past is prologue, and that the future of free expression is bright. But I'm not so sure. I fear that our cultural consensus on the importance of being able to speak one's mind is eroding."
Note: Free speech does not include yelling fire in a crowded theatre; threats; slander; libel; or speech likely to incite a riot.
The Federal Communications Commission has rescinded a determination that ATT and Verizon Wireless violated net neutrality rules with paid data cap exemptions. The FCC also rescinded several other Wheeler-era reports and actions. The FCC released its report on "zero-rating" in the final days of Wheeler's chairmanship. Because Chairman Ajit Pai opposed the investigation, the FCC has now formally closed the proceeding. The Wireless Telecommunications Bureau sent letters to ATT, Verizon, and T-Mobile USA notifying the carriers "that the Bureau has closed this inquiry. Any conclusions, preliminary or otherwise, expressed during the course of the inquiry will have no legal or other meaning or effect going forward." The FCC's Wireline Competition Bureau also sent a letter to Comcast closing an inquiry into the company's Stream TV cable service, which does not count against data caps. The FCC issued an order that "sets aside and rescinds" the Wheeler-era report on zero-rating. All "guidance, determinations, and conclusions" from that report are rescinded, and it will have no legal bearing on FCC proceedings going forward, the order said. The FCC under Wheeler determined that ATT and Verizon unreasonably interfered with online video providers' ability to compete against the carriers' video services. Those determinations have all been reversed, as Chairman Pai promised, and of course, this is only the beginning.
In January, the President signed the '2-for-1' executive order requiring agencies like the FCC to revoke two regulations for every new rule they want to issue. The order's aimed at dramatically rolling back federal regulations, which was one of his top campaign promises. The 'one in, two out' plan will be triggered when an executive agency like the FCC, issues a rulemaking.
That order comes in addition to a regulatory freeze imposed on agencies. For items like permitting manufacturers to introduce new products, like an amplifier, or a radio, the Office of Management and Budget (OMB) or the Office of Information and Regulatory Affairs (OIRA) will give the FCC guidance on how the executive order should be implemented.
Executive agency rulemaking of all kinds has already slowed down, and the DOJ just fell in line to support the executive branch. Attorney General Sally Yates, head of the DOJ, was chastised in an official statement from the White House who said she "betrayed the Department of Justice by refusing to enforce a legal order designed to protect citizens of the United States." The President then told Yates... "You're Fired!"
She was replaced with Dana Boente, who said he'll "faithfully implement the goals of the executive branch." Boente then directed staffers "to do our sworn duty and defend the lawful orders of our President." Boente will fill in for Jeff Sessions until he's confirmed as the new Attorney General.
You may have noticed Mike Carowitz is the new head of Enforcement Bureau and Travis LeBlanc is down and out in L.A., as they say. FCC Chairman, Ajit Pai has shuffled the deck, replacing almost all of the EB's top brass with new people, signaling implementation of what Pai calls regulatory humility, forbearance, a light touch, transparency, process, procedure, and the rule of law - and the end of "headline grabbing" fines "plucked out of thin air" with "no factual basis."
Ajit Pai praised the passage of H.R.555 in the House, effectively reversing the FCCs analysis in 2012, without engaging in a new analysis, but Mr. Trump's executive order may affect implementation of the bill, even if it gains passage in the Senate, where Senator Bill Nelson (who stopped it last year) is the ranking member of the Senate Committee on Commerce, Science, and Transportation.
Nelson already said he has "serious concerns," saying "this bill would effectively repeal parts of millions of private contracts," and he'll "look very skeptically" on the "broadly worded" legislation. He also said, "It may be that another approach to this issue could gain my full support." Unfortunately, listening has never been the ARRLs forte. The club in Newington didn't read the tea leaves and no changes were made. The new bill is identical to last year's failed attempt by a lobbyist in Newington, Connecticut.
[Sources: QRZ.com; https://transition.fcc.gov/eb/orgchart18.pdf; https://prodnet.www.neca.org/publicationsdocs/wwpdf/12315pai.pdf; https://www.commerce.senate.gov/public/index.cfm/rankingmember; https://www.whitehouse.gov/the-pres...ive-order-reducing-regulation-and-controlling; https://www.fcc.gov/document/report-congress-amateur-radio-emergencies-and-disaster-relief; http://dailycaller.com/2017/01/31/d...ttorney-general-made-a-serious-mistake-video/; https://www.congress.gov/congressional-report/114th-congress/senate-report/400/1 ]
"I am deeply grateful to the president of the United States for designating me the 34th chairman of the Federal Communications Commission (FCC)," Pai said in a statement. "I look forward to working with the new administration, my colleagues at the commission, members of Congress and the American public to bring the benefits of the digital age to all Americans."
"Today we welcome a new era of leadership and decision making at the FCC," said Energy and Commerce Committee Chairman Greg Walden and Marsha Blackburn, communications and technology subcommittee chairwoman. "Commissioner Pai's expertise on the issues has been well documented, and we're looking forward to working with him to advance conservative, thoughtful solutions at the FCC."
In response to news reports, National Association of Broadcasters President/CEO Gordon Smith had said NAB supported Pai as chairman "without qualification," calling him "a known quantity who brings integrity, good humor and a fierce intellect to the commission."
New department heads have been named to replace Obama appointees and the FCC stands ready to enact methods to improve honesty, transparency, and the rule of law at the agency. Conservative leaders are eager to turn the page at the Federal Communications Commission (FCC) after eight years of policies under President Obama that have stifled innovation and burdened the tech sector.
President Trump's appointment of Ajit Pai as FCC chairman ensures that overreaching rules and regulations enacted under Obama will soon be on the chopping block. Marsha Blackburn said, "Everyone would like to see some certainty there, and everyone would like to see the FCC back in their correct lanes. FTC should have jurisdiction for privacy." Pai stands ready to assist Trump in cutting costs, reducing staff, eliminating unneeded regulatory burdens, and merging and eliminating duplicative bureaus and positions.
"One important part of Chairman Pai's program, I believe, will be to eliminate a lot of regulations that aren't even the high-profile ones that everyone is focusing on," according to Randolph May, president of the Free State Foundation, who, in 2015, declared the FCC lawless.
The lame-stream media has almost universally condemned Ajit Pai as "anti-net-neutrality," but this fake news is easily disproven, as he has constantly and consistently promoted the common sense view that ISPs should not be allowed to block specific legal websites or devices, intentionally slow some traffic to benefit others, misrepresent their network management practices, or otherwise behave in conduct long-considered anti-competitive in American law.
He has been against overreaching regulation, but that's hardly a partisan issue: "In the months to come, we also need to remove outdated and unnecessary regulations. As anyone who has attempted to take a quick spin through Part 47 of the Code of Federal Regulations could tell you, the regulatory underbrush at the FCC is thick. We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation. Free State and others have already identified many that should go. And one way the FCC can do this is through the biennial review, which we kicked off in early November. Under section 11, Congress specifically directed the FCC to repeal unnecessary regulations. We should follow that command."
"Mr. Pai's going to go systematically through these legacy regulations that remain on the books that are no longer necessary to fulfill their original purpose." Pai said he was "ready to fire up the weed-wacker" and truthfully, the FCC was damaged almost beyond repair over the past few years. Mr. Pai's leadership and his partnership with Donald Trump's much needed war against regulatory madness has come just in time. As Carl Philipp Gottlieb von Clausewitz of Prussia, who sacrificed his life while saving western Europe by stopping a deadly cholera epidemic at the Polish border, famously said, "War is the continuation of politics by other means."
New staff members have been announced to replace the following:
Departing Staff: Bill Lake - Chief of Media Bureau; Travis LeBlanc - Chief of Enforcement Bureau; David Furth - Chief of Public Safety and Homeland Security Bureau; Jon Wilkins - Chief of Wireless Telecommunications Bureau; Matt DelNero - Chief of Wireline Competition Bureau; Mindel De La Torre - Chief of the International Bureau; Paul de Sa - Strategic Planning and Policy Analysis; Mike Dabbs and Sean Conway - Director and Deputy Director of the Office of Legislative Affairs.
Remaining Staff: Chief Engineer and Guru, Julius Knapp (a 42-year agency vet); Incentive Auction Task Force Chief, Gary Epstein; Alison Kutler, Chief of the Consumer & Governmental Affairs Bureau; Mark Stephens, Managing Director; Sanford Williams, Acting Director of the Office of Communications Business Opportunities; Mark Wigfield, Acting Director of the Office of Media Relations; and Larry Hudson, Acting Director of the Office of Workplace Diversity.
Ajit Pai, the senior Republican on the Federal Communications Commission (FCC) is expected to become interim chairman as President Donald Trump begins his administration. Pai, a lawyer who has been a member of the FCC since 2012, is also being tipped as the person Trump is likely to nominate as the permanent chairman, with fellow Republican Michael O'Rielly remaining an FCC Commissioner.
Pai, who is 44, met with Trump before his inauguration, though Trump's transition team has given no details of the conversation. However Trump's spokesman Sean Spicer referred to Pai as "the current FCC chairman" when he spoke to reporters. Pai is a Kansas-born lawyer who graduated from Harvard University and the University of Chicago law school.
Meanwhile, on the Friday before inauguration day, Trump transition officials signed off on the blueprint for a sweeping plan that will overhaul key components of the FCC. The changes include a restructuring of commission bureaus to "better reflect the digital age and the eventual transfer of duplicative functions" such as consumer protection, privacy, and competition oversight, to name a few. There will also be an-up-to 20% staffing and budget cut in most executive agencies. This cut would be on top of the previous $70 million dollar FCC funding slash previously implemented by congress. The icing on the fiduciary responsibility cake will be the imminent closing of eleven of twenty-four of the enforcement bureau's field offices -- and the cherry on top -- the purging of B.H.O.'s political appointees; an activity which is already well underway.
Last June, Katie McAuliffe wrote: "Throughout this administration, and in particular since chairman Tom Wheeler took the helm at the FCC, the Commission shows every sign of stumbling toward a world of Soviet-style government-run networks where private companies are stuck in a maze with an FCC-mandated toll booth around every corner."
On the second Friday in January, a plan was outlined to bring those practices to a screeching halt. The FCC transition team discussed their regulatory/deregulatory blueprint for the FCC after Inauguration Day, January 20. The ultimate goal of FCC reform is to eliminate duplicative bureaus and to streamline confusing and contradictory regulations that stifle innovation. Making good on a promise to slash government, President-elect Trump has asked his incoming team to pursue spending and staffing cuts. Insiders said that the spending reductions in some departments could go as high as 10 percent and staff cuts to 20 percent, numbers that will rock Washington. Perhaps no place in America feels as unsteady and on edge as the capital, which Mr. Trump calls "the swamp." Whether an agency named FCC will eventually arise from the ashes, remains to be seen.
"On January 20, the composition of the FCC will change. The new majority will have the opportunity to change FCC processes from recent practice. It should promptly demonstrate that its actions are based on solid evidence and careful reasoning and take into account the views of all commissioners. The assurance of well-reasoned and well-founded actions will encourage innovation and investment." Such is the assessment of Anna-Maria Kovacs, Ph.D., CFA, a Visiting Senior Policy Scholar at the Georgetown Center for Business and Public Policy. She has covered the communications industry for more than three decades as a financial analyst and consultant.
Congress is well on the way to reforming and weakening the abusive power of federal executive agencies like the FCC, by passing 3 bills in 2017: The REINS Act, The Midnight Rules Relief Act, & H.R. 5, the Regulatory Accountability Act of 2017. Title II of H.R. 5 includes the Separation of Powers Act, which repeals the Chevron and Auer Doctrines which afford deference to federal agencies, commanding the courts to review all agency decisions de novo, [u]without[/u] deference to agency interpretations. This means, when the FCC comes up with a twisted and nonexistent interpretation of their own rules, judges may freely reject those interpretations, relying instead on solid evidence, the entire record, and statutory certainties. With widely predicted approval by the Senate and President Trump, this means a final goodbye to arbitrary and capricious decisions made by incompetent, unelected, and unaccountable bureaucrats.
Task One: Restructure to reflect modern times. Cable, radio, Internet, telephone -- all have different rules, reflected in archaic and obtuse regulations originally written for a pre-1930's era railroad monopoly.
A major goal will be to merge duplicative bureaus and eliminate the 'stovepipe' also known as 'silo' mentality, that exists throughout the FCC. A silo is a tall cylinder designed for farming, used to house corn, wheat, or rye, but in management terms, those grains should never mingle, and they should be managed with separate philosophies. This silo mentality is the way the FCC now manages telephones, internet ISPs, cable, radio, and others. However, in an era where there's now considerable overlap, managing them like individual silos no longer makes sense for modern telecommunications industries.
Task Two: The FCC is a bloated, overweight bureaucracy, heavy with lawyers and lobbyists, and most of what the FCC does is already duplicated by other agencies. Therefore, FCC bureaus must be restructured to better reflect the convergence of the digital age as a first step, and, eventually, functions deemed "duplicative," like, competition and consumer protection, should be moved to other agencies, particularly the Federal Trade Commission. In keeping with this philosophy, FCC insiders say most Internet searches for the past 3 months have involved external job quests on .gov employment websites, and monster.com, while those with no marketable skills plan to wait anxiously, to "see what will happen next."
While some describe the plan as one to eliminate the FCC altogether, and certainly many if not most of its functions could be reapportioned, landing team members Jeff Eisenach and Rosyln Layton have previously argued for "a more coherent and streamlined" agency that "would more effectively serve the goals of consumers, competitors, and Congress."
MARK JAMISON, Ph.D.
President-elect Donald Trump has named Mark Jamison, Jeffrey Eisenach, Roslyn Layton, and David Morken to his "agency landing team" for the Federal Communications Commission. Jamison, like Layton and Eisenach is affiliated with the American Enterprise Institute (AEI). Jeff Eisenach and Mark Jamison both see little justification for the FCC's continued existence. Jamison has been a critic of current FCC Chairman Tom Wheeler's policies, as well his leadership of the agency. Jamison lamented the politicization of the FCC as exemplified by the number of 3-2 rulings the commission has made on major issues like E-rate reform, municipal broadband, spectrum auctions, and net neutrality. Jamison said the FCC must change, by emphasizing transparency and responsibility, and by making much needed staffing changes. "[T]he people who embody the problem have to change themselves, or leave," he said. Jamison says the FCC needs adaptive leadership that will help the agency recognize and address harsh realities. "The best chance for getting the right kind and right amount of regulation is to have laws that require evidenced-based regulations and regulatory leadership that values sound regulation over politics."
To rebuild the FCC's credibility, he said, the next chairman must:
Protect staff from outside threats that would derail the agency's work.
Build a strong staff.
Use political capital wisely.
Jamison believes strong leadership at the FCC is needed, regardless of the new administration's regulatory agenda. Trump's FCC Transition Team may be planning to transition the agency right out of existence. If the administration moves to disband the agency, effecting that change will require strong leadership. If the FCC's work remains largely unchanged, then rebuilding the FCC with qualified personnel will be required to ensure substantive decision-making, while avoiding decisions based on politics. This will be impossible under the current system, which is stacked with politically oriented commissioners and their appointees. Jamison wrote an article for AEI in October asking, Do we need the FCC? His conclusion was "no," arguing the only reason the agency still exists is 1) inertia, 2) the FCC is valuable to special interests, and 3) we need some sort of agency to hand out licenses. Jamison proposes creating a much smaller, independent agency to license radio spectrum, where a spectrum license would be a property right for use, disregarding content, which falls under the purview of the First Amendment, not a politically oriented bureaucratic agency. But Jamison doesn't just think the FCC is unnecessary; he thinks regulation of all communications networks is unnecessary. If the new administration chooses to allow the existence of the FCC, then Jamison believes a group of apolitical commissioners must embrace transparency and accountability, while evading agency capture by lobbyists, political, and corporate entities.
JEFFREY EISENACH, Ph.D.
Jeffrey Eisenach is a known commodity in Washington tech and telecom circles. Dating back to his time as leader of the Progress and Freedom Foundation, he's argued vigorously in favor of the FCC taking a hands-off approach to digital issues. Eisenach's been an outspoken antagonist of FCC Chairman Tom Wheeler and his social engineering policies. In his research and advocacy, he's slammed the Obama administration's efforts on net neutrality, broadband investment, and most other protectionist endeavors. Eisenach's an economist who has held key advisory roles at the Federal Trade Commission, from 1983 to 1985; he served as an aide at the Office of Management and Budget in the 1980s, and; he worked at the Progress and Freedom Foundation from 1993 to 2003. Eisenach's an adjunct professor at the George Mason University School of Law and he has taught at Harvard's Kennedy School of Law.
ROSLYN LAYTON, Ph.D.
Roslyn Layton has referred to certain FCC policies as a "partisan endgame of corporate favoritism" resulting in "misinformed, unjustified rules." She's also a critic of the FCC setting aside spectrum in auctions at below-market rates for certain players, writing in a piece for Multichannel News in 2015 that the FCC was playing favorites which would ultimately raise broadband costs to consumers. Layton likes zero rating plans, suggesting that the notion of disallowing them was being pushed by Google and others with "a vested interest in limiting these programs in order to maintain a stronghold on the key battleground of mobile advertising on smartphones, the fastest growing category of advertising."
DAVID MORKEN
David Morken is the newest member of the transition team, currently the co-founder and CEO of Republica Wireless parent company, Bandwidth.com. Morken combines a couple of life experiences that appear to hold a lot of weight with the incoming President. He is a former member of the U.S. Marine Corps and an entrepreneur/disruptor who built an "overnight success" through a decade of hard work growing a business. Prior to founding Bandwidth, David was called to active duty by the Marine Corps in 1995 and served four years as a Judge Advocate, criminal prosecutor and headquarters company commander. David is a graduate of the University of Notre Dame Law School and a member of the Virginia Bar Association. He received his undergraduate degree from Oral Roberts University. While Morken is a triathlete who clearly pushes himself off the job, his on-the-job management approach is that execs should not push themselves at the expense of work/life balance.
AJIT PAI, MICHAEL O'RIELLY, MIGNON CLYBURN, AND?
Senior Republican Commissioner, Ajit Pai may be named interim chairman during the changeover, after Tom Wheeler exits, and before a new chair can be vetted, voted, and sworn in.
Republican Michael O'Rielly will also remain an FCC Commissioner, along with Democrat Mignon Clyburn, daughter of Senator Jim Clyburn (D) of South Carolina. The seat recently vacated by Democrat Jessica Rosenworcel will also be filled, eventually...
Another position in play is Chief of the Enforcement Bureau, an appointment made most recently by departing Chairman, Tom Wheeler. Commissioner Pai and the Republican majority in Congress have been extremely critical of the Enforcement Bureau, headed by Travis LeBlanc, who is widely expected to depart for California when Tom Wheeler leaves, either on, or before January 20, 2017.
The civil service department heads remaining at the FCC (and other executive agencies) will be shuffled, as usually happens after a political disaster - or windfall - depending on the shufflee's perspective of the most recent Presidential election. In these uncertain times at the FCC, those loyal to the previous administration with the ability to escape will certainly do so, and given federal union rules, America will remain stuck with the rest.
Links of interest:
AEI ; How to depoliticize the FCC ; Overegulation ; Corporate Favoritism ; How to shortchange customers; Bandwidth's David Morken ; Keep Data Free
The Obama administration's FCC is still talking, but nobody's listening. Tom Wheeler's too-long goodbye has raised the ire of the congressional leadership committees tasked with FCC oversight, most recently where zero-rating is concerned. Zero-rating is the practice of giving away free data to customers. Apparently the FCC is threatened by the word 'Free' as the concept may conflict with its incomprehensible, Soviet-era, fee structure rules. House Energy & Commerce Committee chairman Greg Walden (R-OR) and Communications Subcommittee chair Marsha Blackburn (R-TN) are in agreement that FCC chairman Tom Wheeler should have kept the just-released zero-rating report to himself. "We are disappointed to see the FCC moving controversial items like the recent staff report on zero-rating in the waning hours of Chairman Wheeler's tenure," they said in a statement, a sentiment shared by FCC senior Republican Ajit Pai.
Finally: FCC Shutters Eleven Expensive and Unnecessary Field Offices
The plan, as described by Wheeler himself in testimony on Capitol Hill, would have replaced these decommissioned offices with "Flying Tiger Teams" who would zoom about the country responding to unlawful interference. Predictably, that plan failed. The result? In a terse order, the FCC announced that 11 of 24 Field Offices will be shuttered this year. Non-Engineers have been removed, as if a degree in applied math is relevant to checking for intact fencing, peeling paint, and burned out light bulbs, but apparently that was the conclusion of the $840,000+ consulting report that indicated FCC field staff were clueless, poorly trained, redundant, too expensive, and ignorant of the goals of the broader agency.
Quotes to that effect are: "We rarely hear what happens" after a case is submitted, "which is demoralizing and makes us feel like our work is not valued." Another is: "I have no idea what HQ defines as success." Another is: "Why are we the paralegals?" Why indeed? Kudos to the team at Censeo/OceanEast, the consulting firm that recognized the obvious that the offices are not and were not needed, while producing a very cogent report.
Chairman Tom Wheeler is leaving the FCC in January. FCC general counsel Howard Symons exited the FCC Friday, January 20, after three years at the commission, most of it as vice chair of the incentive auction task force. Symons was named general counsel back in July, 2016, after general counsel Jonathan Sallet left. The general counsel is the top legal advisor to the commission. Its attorneys represent the FCC before appeals courts, recommend decisions in adjudications, and helps provide the legal underpinnings for decisions. Public Safety Bureau Chief David Simpson (via twitter) left the agency on Jan. 20, the same day as Tom Wheelerand Symons. Elizabeth Biley Andrion of the Office of Strategic Planning left in August, Stephen Maguire of the Enforcement Bureau (EB) has already left, freeing up a job position for a less competent colleague. Laura Smith departed the EB, landing at the Spectrum Enforcement Division, apparently because she's not an engineer. Approximately 45 others left or will leave the EB during the $845,000 consultant recommended "modernization" culling which will close about half of the field offices around the country.
Apparently the much heralded and ballyhooed Tiger Team concept has not survived. Jon Sallet also left his post as the FCC's general counsel. Much of Mr. Wheeler's staff is expected to do the same; top aide Gigi Sohn announced in November that she's leaving at the end of this year to become a fellow at the Open Society Foundations. Roger Sherman, chief of the Wireless Telecommunications Bureau left, and Jon Wilkins assumed the role. Wilkins has yet to announce if or when he may leave the agency. Likewise, Enforcement Bureau head Travis LeBlanc, has yet to announce his future plans. The EB was widely and frequently criticized by the new FCC leadership, and by congressional leadership, therefore it's a safe bet to assume LeBlanc is polishing his resume.
Morale at the FCC has been drifting downward in the most recent 3 surveys in the Best Places to Work in the Federal Government report and is now at at an average of 60.5% for 2015/16 which is below government wide averages. More troubling is that the report compared FCC with other regulatory commissions of comparable size. FERC, FTC, NRC, and EEOC all have higher morale than FCC. Thus in this narrow peer group of multimember regulatory commissions FCC is near the bottom.
Critics of the FCC say responsibility for the deficit in morale lies in the politicization of the FCC and the sheer volume of political appointees masquerading as career civil servants. The irony in Tom Wheeler's political maneuvering, is that by holding off in announcing his own departure, Wheeler managed to extract nothing while sinking one of his fellow democrats. Had he announced his departure earlier, Senate conservatives probably would have moved to confirm Jessica Rosenworcel, who must now pack up and leave the agency by January, 2017. Then again, dysfunction and rancor is Wheeler's legacy. For three years he and his political appointees rammed through his agenda on partisan lines, including classifying the internet as a public utility. He took orders from the White House, Google and the nonprofit Public Knowledge, to the extent there's any difference among the three. Mr. Wheeler refused to pass around draft rules and sandbagged his colleagues with surprise votes and deals, the details of which were often altered later.
Industry sources told the Bloomberg Bureau of National Affairs they don't believe there will be enough open jobs in Washington for all the commission staff who may be looking for a job. Facing a hostile incoming administration, people who spent the last several years crafting Obama-controlled FCC policies against congressional objections may find jobs especially scarce. As for Mr. Wheeler, he's about to see that his legacy can be reversed in months because it was rooted in partisan self-interest rather than the national interest.
He wanted to fix net neutrality without hurting the internet but then caved to Obama politics. He only made things worse by pretending against all evidence that he acted on his own. His refusal, until this week, to say he would step down also had the sad effect of sabotaging the renomination hopes of his Democratic commission colleague, Jessica Rosenworcel, whom he apparently blamed for helping to make his humiliation by the White House possible.
Mr. Wheeler came in expecting to be the hero who resolved the tangled politics of net neutrality without hurting the domestic engine of America's global tech leadership. He ended up caving to a petty White House initiative to exploit the issue in hopes of flogging gullible millennials to the polls for Hillary Clinton. (It didn't work.)
President Obama said "jump" and Mr. Wheeler responded in a sickly, jelly-kneed voice "how high?" His tenure will certainly be studied by future appointees. It will be studied mainly as an example of how not to behave.
Thanks to HOLMAN W. JENKINS, JR. at The Wall Street Journal
Wheeler's departure, means the FCC will start the Trump administration with a 2-1 Republican majority, allowing the GOP to immediately begin dismantling Obama-era regulations. In fact, Ajit Pai and Mike O'Rielly will lead the FCC in January, and a new conservative Chairman is expected to be appointed fairly quickly, leaving Mignon Clyburn in the minority, with an as yet unknown/unappointed democrat commissioner. Ajit Pai and Mike O'Rielly have already assumed de-facto leadership, much as Donald Trump has assumed leadership, allowing Mr. Obama more time on the golf links while enjoying his last taxpayer funded vacation in Hawaii. Pai and O'Rielly wrote to stakeholders about rules scheduled to take effect in January. They assured recipients that they need not worry about compliance with the rules and that they "would not support adverse actions" against these businesses - in effect telling them to ignore any present enforcement bureau actions, and reassuring stakeholders that such actions would be meaningless under the new administration.
In 2015, Ajit Pai, who is widely considered to be the front-runner for FCC interim Chairman, and potential permanent Chair, noted, "To be blunt, the FCC's enforcement process has gone off the rails. Instead of dispensing justice by applying the law to the facts, the Commission has focused on issuing headline-grabbing fines, regardless of the legality of its actions." Pai also said fine amounts seem to be "plucked from thin air... Congress never intended the FCC to assert that an entity has violated never-adopted rules, to ignore facts that get in the way of good press, or to calculate potential forfeitures so implausibly large that any rough justice penalty will do."
At the same time, House Energy & Commerce Committee leadership asked the Government Accountability Office to review the management of the FCC's Enforcement Bureau. The committee had been looking at the bureau as part of broader reviews of FCC process, but they wanted the GAO to close the loop on its own Enforcement Bureau investigation eight years ago. Congressional leaders collected information from the FCC on the enforcement bureau as part of the committee's investigations, but said the information they received only validated their concerns with the enforcement bureau's management and process. Signing on to the letter were E&C chair Fred Upton; Communications Subcommittee chair Greg Walden, and Communications Subcommittee vice chair Bob Latta. Greg Walden has assumed leadership of that committee and it is assumed he will work with the new administration's transition team to dismantle and reassign unnecessary FCC functions.
In staffing his FCC transition team, President-elect Donald Trump has tapped three American Enterprise Institute (AEI) vets and free market de-regulators in Jeffrey Eisenach, Roslyn Layton, and Mark Jamison. To date, Trump officials have identified Jeff Eisenach, Mark Jameson and Roslyn Layton as FCC transition advisors. All are on record as favoring a deregulatory approach.
The trio are largely in agreement - that most of the costly FCC behemoth is an unnecessary, politicized, lobbyist-laden bureaucracy. Mark Jamison's inclusion is extremely interesting as part of President Elect Donald Trump's technology transition team. Jamison doesn't like the FCC very much, and his inclusion in Trump's team means most of us will barely recognize the FCC in the coming years - if the FCC exists at all.
Last March, Jamison wrote: "In recent years, the Federal Communications Commission (FCC) has written sweeping regulations based on little more than well-crafted narratives while ignoring the cornerstones of good regulation: independence, evidence, and analysis. It has made the regulatory process an 'economics-free zone,' writing regulations in the dark and ignoring warnings of unintended consequences. It has intervened in markets without any evidence of market failure or consumer harm. How is it that a major regulatory agency - one that once provided substantive advice to the rest of the world on how an independent agency should function - seems to have lost its way?"
Following this concise and prescient analysis, Jamison outlines the facts. The FCC takes direction from politicians; they promote partisan divides between commissioners; they change the substance of orders after commission votes; they ignore the facts, and when not completely ignoring facts, they manipulate facts while ignoring more persuasive arguments.
Jamison's answer is to break up the FCC and to farm out any needed functions to more competent agencies. The FTC could handle consumer harm. The HHS could dole out phones and Internet subsidies to needy families. The local police could shut down FM pirates using criminal laws. The market could regulate the growth and direction of the industries currently mis-regulated by the FCC. Jamison posits the FCC's Open Internet decision (net neutralization), cost the US at least $3.3 billion in broadband investment in 2015, alone, perhaps with a loss of more than 60,000 jobs. The FCC employs 1930's era regulations designed to regulate railroad monopolies. It is an organization controlled by lobbyists and lawyers, evidently designed to enrich both sets of parasites, and is increasingly immune to the direction of the House and Senate who created it.
If President Donald Trump were to effectively dismantle the FCC while saving over 400 million a year, plus benefits, for the legion of sleepy, shuffling, porn-watching, politicized, sycophants -- while rescuing any truly needed functions through a long overdue agency consolidation, would anyone (other than lawyers and lobbyists) even know the difference?
Links of Interest: here; here; here; here; and here
Liberals in the Department of Justice are already jumping ship and polishing their resumes in the wake of Jeff Sessions' pending appointment to the post of U.S. Attorney General. Sessions will replace Loretta Lynch, who was widely criticized for her secretive meeting with Bill Clinton when his wife Hillary was under investigation by the FBI. Loretta Lynch, who pleaded the 5th when questioned about payments to Iran, took the place of Eric Holder, following his resignation over the Fast and Furious scandal - where guns were secretly sent to Mexico, resulting in the murder of a U.S. border patrol officer. Sessions is widely expected to end the IRS record of harassment of Americans for exercise of conservative political speech.
According to the NY Times, 'Jefferson Beauregard Sessions III, the courtly senator from Alabama, was a stalwart Justice Department prosecutor for almost 15 years, a job he called the adventure of a lifetime.' When confirmed, Sessions is expected to push for wholesale changes and hard-line stances on immigration, terrorism, crime, drugs, guns, fraud, abuse, and agency overreach. According to former U.S. Attorney Mary Beth Buchanan, U.S. Attorneys aren't forced to quit when the opposing party wins the presidency, but they usually do. When the new party comes into power, it's a common courtesy or acknowledgement of the new political reality that the U.S. attorneys get their resumes together.
STATEMENT OF FCC COMMISSIONER AJIT PAI - On the D.C. Circuit Court of Appeals Yet Again Rebuking FCC Overreach - WASHINGTON, November 18, 2016
In 2015, the FCC adopted the VoIP Symmetry Order on a party-line vote. As I said in my dissent, the order "alters our rules to mean something they've never meant before." This morning, the D.C. Circuit Court of Appeals vacated that order, finding it unlawful. I welcome this latest reminder from the federal courts that neither the FCC nor any other administrative agency is above the law.
Office of Commissioner Ajit Pai: (202) 418-2000
Twitter: @AjitPaiFCC
Read Ajit Pai's statement here.
"The Committee on Energy and Commerce seeks information on the internal processes and procedures that govern the relationship between the Office of the Chairman and the Office of the Inspector General. There is growing concern that because the FCC Inspector General is appointed by, reports to, and is under the general supervision of the Chairman of the Commission that the IG is not free to provide the honest and independent criticism that is critical to the performance of the Inspector General's oversight."
Recently, the FCC IG received several reports of fraud, perjury, abuse, and violation of 1st, 4th, 5th, and 8th Amendments, but the OIG was constrained in their investigations by FCC management in Obama's enfarcement burro. The new sessions of congress and the senate and the new Attorney General for the United States is expected to change that situation shortly. Obama's FCC was thoroughly chastised on several occasions by the senate and congress, and the OIG complained that they were not truly independent, that management tied their hands and slow walked hiring requests and ignored recommendations to department heads. Part of the swamp draining that will occur after January, 2017, may involve targeting of those responsible for overreach, perjury, fraud, harassment, and abuse, not to mention the violation of constitutional rights in the Obama era. Here at the Center for Media Studies, we eagerly await these positive changes.
Read more about the legislature's movement to free the FCC's OIG
"It is important that all federal programs be effectively administered and that these programs adhere to the highest standards in order to protect the funds provided by the American people," Sessions wrote. "These public concerns must be addressed." Conservative FCC Commissioner Ajit Pai has already commended the appointment of Jeff Sessions as Attorney General. As AG, Sessions will have broad latitude to enforce law by pursuing - or choosing not to pursue - a huge array of cases. Sessions is adamantly opposed to Obamacare, and has been for many years; Sessions is against marijuana legalization; Sessions has long opposed the Obama FCC's net neutralization plan; Sessions is a climate change skeptic; Sessions hates the Trans-Pacific Partnership and the Trade in Services Agreement; Sessions will very likely oversee the prosecutution of city mayors who provide sanctuary for illegal immigrants and others who fail to abide by federal immigration laws, and pave the legal justification for deportation of criminal aliens as well as halting the entry of aliens from conflict regions who cannot be properly vetted for entry. In short, Jeff Sessions is likely to roll back every agency initiative coddled by Barack Obama's DoJ. In that regard, Sessions represents just what the voters asked for.
A just-passed House bill would make it easy as pie for Congress to invalidate any last-minute regulations from the FCC or the Federal Trade Commission with a single vote. FCC chairman Tom Wheeler got clear signals from the GOP House and Senate leadership not to attempt to push through any "controversial" 11th hour regulatory efforts, which Wheeler acknowledged by deleting partisan issues from the agenda. The House overwhelmingly passed H.R. 5982, the Midnight Rules Relief Act - to enforce those warnings to all federal agencies about 11th-hour votes. Congress may disapprove a group of such regulations together (i.e., 'en bloc') instead of the current procedure of considering only one regulation at a time." The bill would apply to the FCC and Federal Trade Commission, according to a spokesperson for Rep. Darrell Issa (R-Calif.) who introduced the bill, as well as federal agencies like the Department of Agriculture, FDA and EPA. Thanks to John Eggerton at Broadcasting and Cable for his excellent explanation of this bill.
Donald Trump's presidential transition team is turning to a crusader against regulation as it seeks to craft a strategy on issues like net neutrality and the future of the Federal Communications Commission, according to three sources familiar with the effort. The newly tapped aide, Jeffrey Eisenach, is a known commodity in Washington tech and telecom circles. Dating back to his time as leader of the now-defunct Progress and Freedom Foundation, he's argued vigorously in favor of the FCC taking a hands-off approach to digital issues. Eisenach has been an outspoken antagonist of FCC Chairman Tom Wheeler and his policies. In his research and advocacy, often backed by tech and telecom interests, he's slammed the Obama administration's efforts on net neutrality, broadband investment and et cetera. Politico's Tony Romm has more.
Jon Brodkin reported in Ars Technica: "The Federal Communications Commission has deleted every major item from the agenda of its monthly meeting, apparently submitting to a request from Republicans to halt major rulemakings until Donald Trump is inaugurated as president. ... Wheeler's office announced the deletion of all items that were originally scheduled to be presented and voted on at tomorrow's meeting." In a short time, Tom Wheeler will step down as head of the FCC and most of his personal picks at the agency during the Obama regime are expected to leave either before Wheeler leaves, or shortly afterward. Read the letter from John Thune, Chairman of the Commerce Committee, to Tom Wheeler, lame duck commandant at the FCC.
PREDICTIONS FOR 2017: Chairman Thomas Wheeler will no doubt return to lobbying for so-called progressive causes; Enforcement head Travis LeBlanc will probably seek election or appointment in some blue state nirvana (probably California) where socialists are still relevant; the Philadelphia (actually Langhorne) office will finally be shuttered, along with numerous other office closings. Sixty-Nine Million Dollars will be axed from an already bloated budget. Meanwhile, pirates will still rule the airwaves in Brooklyn, while obsolete, weed-strewn HFDF arrays and mobile direction-finding SUV vehicles will quietly rust and fall into further disrepair. Net Neutrality and Set Top Box plans will wither on the vine. Salaries will stagnate. Unsupportable fines will fail in the Supreme Court and the newly reorganized DoJ will increasingly reject the false allegations of incompetent and unaccountable bureacrats. Competent employees will rapidly depart while bureaucratic hacks will desperately cling to their boredom, punctuated by watching pornography and furtively 'dicking bimbos' in their under-sized cubicles, after hours. The new Republican Chairman; Mike O'Rielly, and Ajit Pai; with help from the E&C committee and Greg Walden, Fred Upton, Marsha Blackburn, Robert Latta, Bill Johnson, Chris Collins, Bob Goodlatte, Trey Gowdy, Jason Chaffetz, et al, will rededicate themselves to draining the swamp and to forcing clueless apparatchiks to adhere to the rule of law, making the office of the Inspector General independent of censorship and retaliatory reprisals, and forcing the outdated behemoth known as the FCC to truly serve the needs of the public. We wholeheartedly thank them and we wish them good luck and Godspeed.
A thirty year FCC employee, Sharon K. Stewart has filed a lawsuit against the FCC in which she describes the FCC as what appears to be a veritable den of indecency. About all of which the FCC did nothing - except fight vociferously against Stewart in court, according to numerous sources. Ms. Stewart alleges Thomas Reed, FCC's director of the Office for Communications Business Opportunities (OCBD), had sex in his FCC office with former Washington Post reporter Lonnae O'Neal Parker. When we say the media is in bed with FCC Democrats - we usually mean metaphorically... Ms. Stewart also claims that the FCC employee in the cubicle next to hers was incessantly watching pornography at his desk on his government computer. She would "hear groans - mmm, mmm, ahh - in response to the pornography viewings." He had another employee "stand guard looking for her" according to her court filing. Ms. Stewart alleges Reed failed to take action on her behalf and her male coworkers' behavior escalated, (so) she reported the pornography issue to the agency's Inspector General (IG)." The IG's report revealed that four FCC employees violated various ethical and administrative rules, including the FCC's Computer System Rules of Behavior, the FCC's Cyber Security Policy, and the Standard of Ethical Conduct for Employees of the Executive Branch, 5 CFR 2635 et seq.' Ms. Stewart says despite her complaints, the FCC did nothing, and she was forced to file suit to remediate the issues.
Read Fred Campbell's report at Forbes.com
Read John Eggerton's article at broadcastingcable.com
In today's environment of heightened concern regarding gender issues, these allegations should have raised red flags about the prevailing institutional culture at the FCC and prompted swift remedial action. Instead, FCC chairman Tom Wheeler's legal team attempted to dismiss the case in federal court by arguing that these allegations amounted to nothing more than the "mere existence of pornography in the workplace" that was not sufficiently "severe or pervasive" to create a hostile work environment.
Predictably, the court determined the allegations were sufficient to demonstrate that the female employee "frequently had 'no way to avoid' the groups of men watching pornography in the adjacent cubicle," that "she felt 'surrounded by' the pornography being viewed nearby," and that "the hostile conduct could be considered to be 'directed at [her].'" In short, the court found it plausible that the FCC subjected the female employee to "discriminatory intimidation, ridicule, and insult" that is sufficiently "severe or pervasive" to alter the conditions of her employment and "create an abusive working environment."
The FCC's attempt to paper over allegations of abusive behavior toward a female employee would be disturbing in any context. But the pattern of denial, delay, and inaction in this - and other cases - is positively outrageous. The next administration should make cleaning this mess up a top priority.
According to Dr. Pete Sulack, stress expert and founder of StressRX.com, "When we read, we can rationally discuss the issues or definitions of terms at hand. When we see pictures, however, a different part of our brain is engaged. That part is the limbic brain, a part also activated in stressful situations, because it is key to survival. This is the most primitive and unevolved part of us. It acts on emotion, is irrational, childish, and afraid. It can be rude and boorish, and sometimes even cruel," he said.
Dr. Sulack notes that many voters are upset because they feel "hopeless and powerless." To deal with the stress, he recommends avoiding alcohol and caffeine, and instead eating dark chocolate, "tree nuts or nut butters," and "kale and other leafy, green vegetables."
President Obama blamed leftist strategists for their short-sighted focus, as they micro-targeted urban dwellers, gays, the transgendered, and illegal immigrants, while ignoring the middle class, whites, heterosexuals, traditionalists, and suburbanites. This strategy lost Democrats leadership of every federal agency, 36 governorships, the DoJ, the FCC, the House, the Senate, the Supreme Court, and the Presidency .
Many of the burning, smashing, crying, rioting, vandals who violated the law on our city streets on a nightly basis were young, low information non-voters over-reacting to dire scenarios and foolish hysteria fueled by left wing media outlets seeking ever-shrinking advertising dollars - like CNN, CBS, ABC, NBC, MSNBC, and the NY Times. The so called 'lame-stream' media were wrong about the election; wrong about the mood of the country; wrong about the polls, and; wrong about the reasons they lost the election. Part of their confusion and the root of their messy public meltdown is a lack of understanding about the complex reasons the reigns of power were placed in the hands of responsible adults.
1. Hillary Clinton is infamous for lying, multiple investigations of criminality, and re-victimizing her husband's victims. In all her years of holding public office, there's a notable lack of positive, concrete accomplishments, and a plethora of public scandals. Other than the sanctuary cities containing her echo-chamber constituency, which consists of Hollywood, academia, corporate media, and the professional bureaucrat class, she was viewed by the rest of America as a lacklustre rubber-stamp of Barry Obama's failed policies.
2. Hillary presided over failed international relations while profiting from donations from despots. Regrettably, in sacrificing American credibility and countenancing aggression and human rights abominations, Obama's diplomatic "successes" became barriers to real resolution of conflicts, to progress on human rights and to permanent cessation of violence. Even more than his domestic record, his foreign policy legacy is shabby and its negative consequences will plague us for years to come. Hillary would have continued those policies.
3. The left wing media has evolved into a self-reinforcing echo-chamber of socialist dogma which routinely ignores reality. Obama's policies, which Clinton promised to continue, involved the following: IRS targeting of conservatives; FCC takeover of the Internet and fining innovators using 1934 era railroad regulations; Benghazi; Fast and Furious; Solyndra; VA ignoring needs of veterans; Ignoring New Black Panther voter intimidation; Creating and arming ISIS by failing to accurately read events in the middle east; abandoning Israel; Encouraging IRAN, allowing for continued acts of terrorism; Bypassing Congress with executive actions; Misreading Brexit; Allowing Hillary to use the State Department as a pay-for-play scheme to enrich the Clinton Foundation; Taking marching orders from George Soros - according to a playbook written by Saul Alinsky; Allowing sanctuary cities to ignore federal law; Ignoring Radical Muslim Terrorism and labeling it 'workplace violence'; Encouraging violence against police; Signing a nuclear deal with the religious oligarchy in Iran; Attacking Libya without Congressional approval; Failure to secure the border; Ignoring drugs, guns, and diseases introduced via our porous southern border; Debt increased by 9 trillion dollars; Continuous disregard for the Constitution; Obamacare failure; Runaway cost of higher education; Highest percentage of Americans on Medicaid and Foodstamps; Refusing CIA/FBI advice that there is no way to properly vet the Muslim refugees the Obama policies created; 94 million Americans out of the workforce, and; lying about employment numbers, inflation numbers, immigration numbers, and hiding the 1.7 Billion midnight-express cash bribe to Iran.
4. The recent NY Times re-dedication to honest reportage is a good start. If the lame-stream media will amend their misleading, sensationalism and censorship of conservative views, they may regain some limited relevance. If not, they'll be relegated to the dungheap of infotainment services already in or near bankruptcy. As Kathleen Casey of Houston writes: "Now, that the world has been upended and you are all, to a person, in a state of surprise and shock, you may want to consider whether you should change your focus from telling the reader what and how to think, and instead devote yourselves to finding out what the reader (and nonreaders) actually think."
It is long overdue for the FCC to address Stingrays' impact on speech, interference with 911 calls, and invasion of privacy. According to the ACLU and EFF, Police departments use cell site stimulators which impersonate legitimate cell sites for hours at a time without a warrant, officers deploy them for tracking down people suspected of non-violent crimes like harassing phone calls, and certain devices do in fact cause significant interference to cell service. The combination of the extraordinary power of these surveillance tools (they can scan hundreds of innocent user cell phones at once) and the lack of FCC regulations has resulted in explosive growth in their deployment.
The time is ripe to harmonize basic judicial review requirements for state and local police with policies already adopted by federal agencies. In late 2015, the Department of Justice instructed federal law enforcement agencies to obtain a warrant before using a cell site simulator, in recognition of the constitutional privacy rights of citizens. The Department of Homeland Security followed suit with its own policy mandating that Stingray usage required a warrant. The FCC should apply such a policy to state and local law enforcement entities, too, as a condition of using the public airwaves for surveillance equipment. The FCC can protect the public interest by bringing local and state law enforcement actors in line with federal policy designed to protect citizens' constitutional privacy rights against unreasonable searches.
Some assume policymaking follows a rational, linear process in which policymakers observe a problem, weigh the critical variables, review possible solutions (and their costs and benefits), and then apply the appropriate action (or inaction, no harm is shown). Some even think that regulators, in an effort to make good policy, engage a policy research process in which they evaluate the merits of their past to decisions. The reality however is more like what Giandomenico Majone describes in "Evidence, Argument and Persuasion in the Policy Process": policymakers use theory selectively after the fact to justify their pre-ordained and favored policies. FCC Commissioner Pai has declared that the FCC has adopted rules that ultimately install an environment of "Corporate Favoritism," restricting the broadband providers so that established online advertising platforms need not face competition. The moral of the story is that in policymaking - it's not the facts that matter, but the politics.
Read more from Roslyn Layton at insidesources.com
"Today the FCC took an action which discards the regulatory framework that has fostered the growth of the internet economy and supports much of the content and services consumers enjoy every day," wrote Emmett O'Keefe, VP of the the Direct Marketing Association, "The FCC's decision is bad for consumers and bad for the U.S. economy. There are no winners in this action; only losers. In short, the FCC got this wrong."
The Association of National Advertisers blasted the "FCC's new sweeping privacy rules decision," calling it "unprecedented, misguided, counterproductive, and potentially extremely harmful."
The Internet & Television Association complained in a statement that "The [FCC]'s decision to break with the FTC's proven privacy framework in favor of a cobbled-together approach that abandons principles of fair competition is profoundly disappointing. Instead of creating a consistent and uniform approach to privacy that consumers can easily understand, today's result speaks more to regulatory opportunism than reasoned policy."
Read more by Kate Kaye at Advertising Age
Majority statement: [T]his agency has too often pursued a highly partisan agenda that appears driven by ideological beliefs more than by a sober reading of the law... What were once very rare events are now standard operating procedure at the Commission... [S]eemed to use even the distribution of information about Commission proceedings as a political weapon. Too often, we have seen conveniently-timed leaks and disclosures used as tools to benefit the partisan agenda... [N]ot using the disclosure of nonpublic information as a sword would lead to a better process at the agency... [A] divisive leadership approach, which threatens to undermine the credibility of the agency now and into the future... [O]n several occasions other federal agencies have refused to support the FCC's actions. The Copyright Office strongly criticized the earlier proposal for set-top boxes, which was far less complex than the new one. The staff at the Federal Trade Commission called the FCC's privacy rules "not optimal," which is bureaucrat-speak for "really bad." And the Department of Justice refused to defend the FCC's unlawful action on municipal broadband... (not to mention, rejecting the recent Michael Guernsey KZ8O NAL/FO).
Previously: Senator Thune Hammers FCC over 'Shell Game of Fraud and Failure'
Senator John Thune highlighted vast leadership failures at the Federal Communications Commission (FCC), and shed light on how bureaucratic institutions like the FCC have hijacked the separation of powers doctrine that has guided this nation. Thune powerfully condemned the systemic misuse of an organization that was meant, in his words, "to be places of expertise" to inform policy-making. However, the FCC has not embodied this key role for quite some time. Thune continued: "In recent years, the FCC has behaved less as an independent commission accountable to Congress, and more as a de facto arm of the executive branch, wholly subservient to the President. At the same time, the FCC has become more partisan than ever before, and an institution that has seized greater regulatory power while simultaneously shutting down bipartisan dialogue and compromise."
The Separation of Powers Restoration Act (SOPRA) reels in the power that federal agencies and unelected bureaucrats have to dictate the policy that governs each American. Introduced by Congressman John Ratcliffe (R-Tex.), as well as Senators Orrin Hatch (R-Utah), Chuck Grassley (R-Iowa), and Mike Lee (R-Utah), SOPRA ends judicial deference to a 1984 court decision that requires courts to accept the executive branch's interpretation of any law passed by Congress that may be vague in any way. (Courtesy ATR.org)
On August 8, 2016, the Department of Justice refused to attempt to prove the FCC's allegations in the KZ8O case. The DoJ confirmed this fact in a letter to Michael Guernsey on August 19, 2016, stating they had rejected the case. An assistant US attorney at the DoJ may act as the FCC's attorney in FCC forfeiture cases, except in cases where pursuing the case would not be in the interest of justice, and/or where the FCC has failed to consider factors required by the code of federal regulations, the administrative procedures act, the privacy act, the rules of evidence, and statutes written by Congress. At this point, the FCC cannot prove their allegations in a court of law, which is a requirement for the collection of a monetary penalty, therefore, Guernsey is not liable for any penalty at all.
Mr. Guernsey denied that he was responsible for causing the interference and failing to identify, arguing that since the agents did not inspect his station they could have confused his signal for the signal of nearby amateur operators. Mr. Guernsey also requested forfeiture cancellation or reduction based on his current financial status. Mr. Guernsey also contended that the source(s) of the interference could have been any number of amateur operators who live with a quarter mile of his location. Guernsey reportedly offered to settle with the FCC before the Forfeiture Order was issued, but the FCC refused to negotiate. According to Guernsey, he also told his Congressman, Fred Upton, "The FCC said, We're the government, we can do what we want.... Well, I don't think so." This case and others like it with huge fines for minor infractions over what is essentially licensed CB radio, are reminiscent of an article by Katie Mcauliffe in 'The Hill' where Katie wrote; "Throughout this administration, the Commission shows every sign of stumbling toward a world of Soviet-style government-run networks where private entities are stuck in a maze with an FCC-mandated toll booth around every corner." Guernsey's case is also unusual in that a mentally ill Canadian citizen calling himself 'al Qaida Northern Command' took direct responsibility for manipulating the FCC into issuing the forfeiture order, freely admitting he had gamed the system, and had used others to achieve his nefarious ends.
The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF), a digital rights group, filed an FCC complaint on September 1st, 2016, regarding StingRay cellphone tracking technology used by police. Cell-site simulators, covert tracking technology also referred to as Harris StingRay are employed by law enforcement agencies to gain location data from cellphones. The technology can also be used to peer into a phone user's text and calls, something enforcement agencies have denied doing... "The Commission expects state and local law enforcement to work through the appropriate legal processes to use these devices," spokesman Neil Grace said in a statement. Read the complaint here and read more about the technology here.
The AGs signing on to the letter were from Arizona, Arkansas, Georgia, Kansas, Louisiana, Michigan, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Wisconsin, Texas, and Utah. The AGs said that the FCC was forcing them to navigate a patchwork of regs and artificial distinctions in trying to figure out what rules apply in a particular circumstance. They said that the FCC may "unwittingly" preempt important state efforts and that the proposal could make compliance more costly and complicated. They also told the FCC that they think privacy interests are best serviced by existing legal authorities in each state rather than "new prescriptive regulatory approaches."
Eight states joined the Oklahoma's D.C. Circuit challenge of the Federal Communications Commission order capping rates on inmate calls from prisons and jails, arguing that the cap doesn't allow for a "reasonable cost recoupment" of the money they spend providing calling services. Arizona, Arkansas, Indiana, Kansas, Louisiana, Missouri, Nevada and Wisconsin jointly asked to intervene against the FCC's "arbitrary and capricious" decision.
Additional trouble for the beleaguered FCC arrived on August 10, 2016, when the Sixth Circuit U.S. Court of Appeals concluded that the FCC's authority to promote telecommunications does not extend to deciding whether a state or its municipal subdivision gets to control broadband buildouts, because Congress has not explicitly granted that power to the FCC.
Meanwhile, the house majority has been attempting to elicit an announcement from Tom Wheeler about when he plans to leave the commission. Wheeler did not exactly provide a timetable, but did say it could be his last oversight hearing before the committee. House Dems used the 9/15/2016 FCC oversight hearing to bolster Jessica Rosenworcel's renomination, but the majority are tying her renomination to Wheeler's imminent resignation, and thus far, they have refused to budge on that issue.
Special thanks to Kent Gibbons and John Eggerton at Broadcastingcable.com and Multichannel.com
There is a stretch of Nostrand Avenue in Brooklyn that has a Haitian radio station on every block - Radio Soleil, Radyo Pa Nou, Triomphe, Omega, Independans. Some sport bright awnings like the neighboring beauty salons and take-out spots, others operate discreetly on residential side streets, but they all broadcast the sounds of Kreyol conversations and konpa music. Walking the neighborhood you can hear those sounds coming from cars, shops and sometimes a stereo right on the sidewalk. But as far as the Federal Communications Commission is concerned, not one of these stations has its own licensed frequency. Despite warnings and threats of fines, the station operators shrug their shoulders, ignoring the notices from the FCC... and they keep right on broadcasting. [Listen to the report on SoundCloud]
The Society of Broadcast Engineers remains concerned about the effects of the FCC office closures, said Chris Imlay, its general counsel. "Morale in the Spectrum Enforcement Division at the commission is at a very low ebb; skilled, experienced and tenured field office staff have been retired," Imlay said this summer. "The promised two Tiger Teams that were to have been dispatched to areas where there is no field office presence to respond to interference cases have not been staffed, and that entire concept appears to have failed." Imlay said he learned that positions for the Tiger Teams were posted by the FCC but went unfilled "because the job involved, by definition, 100 percent travel time." Walt Gernon, former FCC district director for the states of Louisiana, Mississippi and Arkansas, is critical of the FCC's plans. He said the long-term result would be degraded communications for licensees and the general public. "The folks I talk to in the field are demoralized and discouraged. It's a very delicate situation with a lot of people in limbo for the past year," he said. "Honestly, the FCC is hemorrhaging technical staff right now because of retirements and the new requirements." As part of its modernization, the commission also has said it will require all field agents to be electrical engineers. That shift cost a half-dozen compliance specialists their jobs. [Courtesy Randy J. Stine, Radio World]
The Federal Communications Commission's plan to let cities build their own broadband networks hit a major roadblock as a federal appellate court ruled that the commission was overstepping its authority. The United States Court of Appeals for the Sixth Circuit said that the FCC cannot preempt state laws that prevent the construction of municipal broadband networks, as it attempted to do in Wilson, North Carolina and Chattanooga, Tennessee last year. Judge John Rogers found that Section 706 does "not authorize the preemption attempted by the FCC," so the court did not need to defer to the agency's false interpretation. In other words, the FCC can't simply claim a law says something the law doesn't say and then demand that courts defer.
The ruling was made on the grounds that the Order is "(1) contrary to the United States Constitution; (2) in excess of the Commission's authority; (3) is arbitrary, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law." The court said the FCC was overreaching and that the FCC's powers to regulate do not supercede state powers, except where Congress has explicitly granted authority to the FCC. FCC Commissioners Pai and O'Rielly hailed the decision as an affirmation of what they've been saying for years. "The FCC clearly tried to invoke imaginary authority and finally was called out by a court for doing so," O'Rielly said. Pai said that the ruling is "an opportunity for the FCC to turn the page, rather than wasting its time on illegal efforts to intrude" on citizen's rights.
When chief economist Tim Brennan left the FCC earlier this year, he remarked that the net neutrality rules passed by his former agency were an "economics-free" zone - a brutal assessment of regulations that would chart the future of the internet for all Americans -Especially since the problem does not seem limited to net neutrality. "It is simply irresponsible for regulators to rely on gut feelings - or political pressure or public opinion polls. Our studies show that in virtually all the major proceedings under Chairman Wheeler's FCC, the Commission failed to perform even the most rudimentary cost-benefit analyses. The future of tech and telecom is threatened by the lack of serious analysis at the FCC. It's time for this to change." - Gerald Faulhaber is Professor Emeritus, Wharton School, University of Pennsylvania and Penn Law School, and was a former chief economist of the FCC. Hal Singer is Senior Fellow, George Washington School of Public Policy; Adjunct Professor, Georgetown's McDonough School of Business.
Color Of Change, Center for Media Justice and New America's Open Technology Institute filed a complaint this week with the FCC, charging that the Balitmore Police Departments use of mass cell phone surveillance devices known as Stingrays violates regulations of radio waves and cellular networks. "For far too long, the BPD has made a frequent habit out of flouting federal spectrum law and disrupting availability of the cellular network to Black communities in Baltimore," said Laura Moy, who is a visiting assistant professor at Georgetown Law's Institute for Public Representation, which represents the groups' complaint. "The FCC should not sit idly by while police departments in Baltimore and other cities systematically undermine Americans' fundamental rights by intercepting cell phone traffic on licensed spectrum without a license." The use of Stingray intercept devices disrupt cell calls. The DoJ has stated that these devices require a warrant, but there is scant evidence local police departments actually obtain warrants before using the devices. A growing chorus of voices is asking the FCC to sanction organizations who disrupt calls, because they interfere with cell users' legitimate communications.
Maps made for 911 calls are inaccurate. Calls often go to the wrong public safety answering point, and when that happens, responders don't know where to respond, and people die - from accidents, heart attacks, and gunshot wounds. David Simpson, chief of the FCC's public-safety and homeland-security bureau, said the nuances of wireless technologies can have dire consequences. "We can't let maps kill people, and maps are killing people. So, if you would play any role in the chain of procuring systems or services for your jurisdiction, or you're a vendor that sells CAD or a GIS provider, please engage. Don't let maps end at limit of the jurisdiction."
Simpson noted "exciting activity" in the effort to develop technologies that will provide more accurate location information, even when an emergency call is made from a wireless device located inside a building. But the benefits of better location technology can be negated if the maps are not accurate - something Simpson said he learned while serving in the Navy during the early days of GPS.
"We got a better way to locate where we were through GPS, and we thought our days of running ships aground were over - until we realized that all of our maps were generated around a source which was analog in nature and the very accurate digital position plotted on a map that was based on angles of headlands and where the coastline was," Simpson said. "We ran several ships aground, just because the maps weren't right." [Thanks to Donny Jackson at Urgent Communications]
Lab Specialist Mike Gruber, believes the FCC should have paid more attention. "This situation is indicative of what can happen as a result of insufficient FCC enforcement, especially with regard to electrical noise and noncompliant consumer devices," Gruber said. Amateur sleuth Kermit Carlson tracked down the interference when the FCC refused to respond. Carlson called the Evanston case "a particularly alarming example of radio interference," especially since local authorities considered it a public safety matter. "This situation demonstrates the electromagnetic compatibility problems that are evolving in an atmosphere of noncompliant, unintentional RF-emitting devices," he said. The police turned to amateurs for help after striking out with the FCC, which told them it considered wireless transmitter malfunctions a problem for automakers, although the interference was affecting not just key fobs but cell phones, which are a licensed radio service. In 2014, the National Relay League in Newington, Ct. filed comments about the lack of effectiveness of the FCC's enfarcement burro that still hold true, two and a half years later. Their attorney wrote: "[t]he Commission's processes and operations are, in some respects, neither open nor transparent; neither timely nor inclusive. Indeed, the trend has been the adoption of (often unwritten) procedures and policies which have the pronounced, adverse effect of isolating the Commission... and the Commission's staff is often not readily accessible... The Commission's web site is neither intuitive nor user-friendly, and it is inadequately updated and managed. In some cases, telephone and e-mail inquiries result in delayed responses or none at all... there are several circumstances in which the staff is isolated from the industry regulated by the Commission, with significantly adverse consequences. This is most pronounced in the Enforcement Bureau. [courtesy QRZ.com]
Connection problems occurred with varying degrees of severity throughout the week of the DNC, and it was a frequent topic of conversation among journalists. "Monday night we were talking about how it was strange, but by Tuesday night, everybody kind of noticed, 'Wait a minute, this isn't right.'" Myles Miller, a reporter for New York's PIX11 News, expressed frustration at his inability to share video of events as they unfolded, or even immediately after.
The already troubling bandwidth problems peaked during some of the week's most intense protesting, just as activists briefly broke through the security fence, and social networks and livestreaming services remained largely inaccessible for the rest of the night. "It's scary for me as a journalist because that's how state suppression of events occurs," said Desiree Kane, a journalist who also covered the Republican National Convention... "That's exactly how it happens, is, you block communications of what might be going down," she added.
An honored guest at a recent Hillary event was the father of Omar Mateen, the Muslim jihadist who murdered 49 people at a gay nightclub in Orlando a few months ago. On Monday night, Mateen attended a Hillary rally where he sat cheering, right behind Hillary on the stage. No cell phone blocking at this event. It was streamed live. There were also several attendees representing Saudi Arabia, the government who gave millions to the Clinton Foundation. Hillary has declined to discuss Saudi support in light of the regime's record on human rights in general, including rights for LGBTQ populations and women. HRC supports the FCC takeover of the Internet. Still no word on whether she supports blocking journalist's ability to upload protests of her candidacy at the Democrat's convention.
On July 7, 2016, Senator Thune addressed FCC Leadership Failures, saying "In recent years, the FCC has behaved less as an independent commission accountable to Congress, and more as a de facto arm of the executive branch, wholly subservient to the President." Thune also said the FCC under Chmn Wheeler is "characterized by a lack of bipartisan compromise or respect for the limits of the authority delegated by Congress." On July 7, Thune released a blistering statement about the FCC, "Much of the responsibility for this downward trajectory rests with the current FCC Chairman, Tom Wheeler. For example, during Chairman Wheeler's confirmation process, I asked him if he would commit to coming to Congress for more direction before attempting another iteration of net neutrality rules. Mr. Wheeler unequivocally said that he would do so. However, not only did Mr. Wheeler not come to Congress for more direction, at the behest of President Obama, he jammed through the most radical implementation of net neutrality rules ever - a power grab of stunning proportions - and he did so on a purely partisan vote." Thune also discussed accountability issues, "I have come to the floor today to talk about the most recent example of Chairman Wheeler utilizing questionable legal authority, while simultaneously trying to dodge public accountability. This example relates to the FCC's rules about disclosure of nonpublic information." Thune also spoke about the Commissioner muzzling dissent, leaking non-public information, thwarting common sense compromise, and refusing to answer questions, leading Thune to speculate that "Chairman Wheeler simply does not respect the legitimate role of Congressional oversight and believes that he is unaccountable to the American people." Mr. Wheeler responded to Mr. Thune's questions in this letter.
"This is yet another unsurprising chapter in the FCC's miserable history... We have warned the Commission repeatedly over the past three Congresses that it cannot shirk its statutory responsibility and it cannot cut corners on good process. Today, the court correctly points out the FCC's failure... In other words, the FCC can't put the cart before the horse, in addition to its many other process failures."
"These failures have real world consequences... It is a sad statement on FCC leadership that the agency must be taken to court in order to force it to comply with the plain reading of its statute; this entire process was an unnecessary waste of time and money and taxpayers are footing the bill. This committee will continue its longstanding effort to work on reforming FCC processes and force the FCC to address the years of compounded bad habits that have made it an institution that sees itself as above the law. Instead of tilting after windmills on ISP privacy and other headline-grabbing issues du jour, the FCC should do the work that Congress has assigned." [Press Release]
According to the FBI "ISIL has proven relentless in its violent campaign to rule and has aggressively promoted its hateful message, attracting like-minded extremists." These violent messages include hate propaganda from mentally ill Westerners who have affiliated themselves with the Islamic State and al Qaida, like Karol Madera, a schizophrenic Canadian amateur radio operator who recently told his friend Michael J. Mgrdichian (who is currently under an active arrest warrant for stalking) that he would 'drown and sexually assault FBI agents' who testified against him. Again, according to the FBI, "Affiliates continue to disseminate their terrorist message to all social media users."
George J. Zardecki of Chicago, Illinois was warned on July 26, 2016, that he is, and has been, enabling and facilitating a foreign entity who calls on al Qaida to shoot and kill American citizens on a regular basis. Listen. Despite numerous entreaties by the State Department, the FBI, and others, including Canadians in the Saanich Municipal Police Dept., CSIS, the RCMP, and the Legislative Assembly Protective Services of Parliament, the ineffective bureaucrats at Industry Canada have failed to take any action regarding Karol Madera of Saanich, British Columbia, Canada. To make matters worse, the FCC has utterly failed to file a formal protest with Canadian regulators, despite being aware of the problem for more than a decade.
"With the widespread distribution of social media, terrorists can identify vulnerable individuals of all ages in the United States - spot, assess, recruit, and radicalize - either to travel abroad to join ISIL or to conduct a homeland attack. The foreign terrorist now has direct access into the United States like never before." Luckily, media giants and responsible governments are now working together to counter messages of hate and violence -- however, social media platforms need to act swiftly and decisively to eradicate hateful rhetoric. Vanity Fair highlighted the issue with the following headline: "Facebook's $1 Billion Terrorism Lawsuit Points to a Huge Problem for Silicon Valley - Should social-media companies be held responsible for terrorist activity on their networks?"
On July, 6, 2016, Michael Steinbach, Executive Assistant Director, National Security Branch, Federal Bureau of Investigation, told the Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations, "The FBI is utilizing all lawful investigative techniques and methods to combat the threat these individuals may pose to the United States... We are rigorously collecting and analyzing intelligence information as it pertains to the ongoing threat posed by foreign terrorist organizations and homegrown violent extremists."
Karol F. Madera, of Saanich, BC, who affiliates himself with IS and styles himself as 'al Qaida Northern Command,' was identified as a violent extremist by the Joint Terrorism Task Force in 2005 when he advocated using a low yield dirty bomb against federal agents, and by the U.S. State Department, when he threatened to sexually assault the U.S. Ambassador to Canada. Madera has frequently discussed his mental illness and his dysfunctional family as well as his visits to mental health professionals, via amateur radio. Despite the intervention of the FBI Legal Attache, Gerard F. Downes, in Vancouver (among several others) Madera continues to disseminate hate propaganda using amateur radio and Shaw Internet services, in Canada.
Madera has repeatedly claimed that the FCC Enforcement Bureau - in the person of his 'cousin' David Dombrowski, former FCC District Director of the now defunct Langhorne, PA field office - defended his 'right' to call on al Qaida to murder Americans; his right to sexually harass and stalk men, women, and children; his right to interfere with ongoing communications, and; his right to slander and threaten American citizens and officials alike. After Madera's claims were brought to light via Congress, the State Department, various US intelligence operatives, and the offices of Inspector's General, the FCC engaged in a massive reorganization - cutting almost half of its field office staff and firing managers and agents alike.
Senator Thune lambasted the FCC for leaking nonpublic information in order to distort public debate. In response, the FCC claims it is redefining, retraining, and refocusing staff, especially at the enforcement bureau's field offices, making them more consistent, transparent, accountable, and aligning them to the mission of the FCC. Detractors acknowledge some firings as a huge improvement, while others claim the FCC has also allowed known incompetents to fail upward due to federal union and Merit Systems Protection Board requirements. Disciplinary records are non-public. Of course, no one ever gets fired. At the FCC, bureaucratic home of the people who enforce such obscenity laws as we have, employees routinely spend the equivalent of a full workday each week watching porn.
As poignantly proffered in National Review, "The federal government is a more and more corrupt and abusive organization that does less and less measurable good for the country, and it is time that we plainly acknowledged its true character: It is a supplementary welfare state for the politically connected and the conveniently servile, the purpose of which is to pay out six-figure salaries to people who would be lucky to earn half that in private employment but whose financial well-being is dear to politically powerful people. Many of them don't do much of anything; the ones who do things mainly harass and extort us, standing between Americans and the things we desire to do, with their hands out saying, 'Pay me.' And the rest of them watch porn."
George F. Arsics was an employee of the Federal Communications Commission (FCC) at Powder Springs, Georgia, where he was an FCC watch officer assigned to the monitoring station where he was involved with the HFDF (direction-finding) operation. Following reports of deliberate interference on 14.313 mHz, his fellow employees taped the transmissions, tracking them to Arsics' home. Arsics protested his firing and appealed to the arbitrator of federal employees who mitigated his removal to a 30-day suspension. There was no Notice of Apparent Liability issued; Arsics kept his job and continued to prosper in federal service. This is known as 'failing upward' and is actually quite common at the FCC. For his part, Arsics said the FCC was a cesspool of corruption where only money and egos mattered.
Along with budget cuts, massive firings, reorganizations, and office closings, valuable FCC employees are jumping ship. For example, Jonathan Sallett, the FCC's brilliant General Counsel, has decided to depart for the Department of Justice's Antitrust Division, while District Director Stephen Maguire, a well liked, talented, and respected agent, has also departed. Maguire's departure was a quieter move, indicative of a broader exodus at the FCC. Unfortunately, Maguire has left New York in the hands of a much less talented colleague, leaving New York with no hope of solving the problem of FM piracy, where over 40 FM pirates can routinely be heard from Brooklyn on any given night - more than a year after Representative Chris Collins cited the FCC's poor performance and demanded action along with thirty-two (32) other congress members. The FCC's response to the pirates consists largely of attempting to appease Congressman Collins and his colleagues, by issuing meaningless warnings to building owners, not to be confused with persons allegedly violating FCC rules.
For as little as fifty dollars ($50) criminals, rogue employees and even otherwise law-abiding citizens are using illegal "jamming" devices to overpower GPS, cellphone and other electronic signals over localized areas. The devices are small and mobile - a common variety plugs into a vehicle's cigarette lighter - making it difficult for the FCC to identify the culprits. Noone knows how many jammers are in use on a daily basis. The FCC declined an interview, instead pointing to a jammer enforcement web page and a notice imposing a $48,000 penalty on Jason Humphreys of Florida, who did not respond to the FCC's notice.
As expected, trade associations representing Internet providers launched legal challenges seeking to overturn the FCC's net takeover. The National Cable & Telecommunications Assn., CTIA, USTelecom and the American Cable Assn., filed petitions for an en banc hearing with the U.S. Court of Appeals for the D.C. Circuit. This, regarding the FCC's 2015 order to reclassify broadband Internet access service as a common carrier service under Title II of the Communications Act. The challengers say they plan to take the fight to the Supreme Court if the en banc hearing doesn't yield the desired results.
The Proposed Rule requires MVPDs [multichannel video programming distributors] to make licensed programming feeds available to third-party device or software manufacturers free of charge and without "discrimination," thus potentially undermining copyright owners' ability to enforce exclusivity agreements, including "windowing" or "tiering" agreements that make content available on certain platforms before others. FCC Commissioner Jessica Rosenworcel has expressed concerns about copyright. Rosenworcel's statements raise the possibility that the plan could be changed significantly before a final version is approved. ARS Technica
Norm Alster, at the Edmond J. Safra Center for Ethics, Harvard University, maintains the FCC has been captured by those they puport to regulate. Alster highlights the revolving door of industry lobbyists taking jobs at the FCC, then returning to industry lobbying organizations, then returning to the FCC. Alster discusses the cocktail parties, the free access of lobbyists, and the incredible amounts of money that lobbyists pay-to-play in Washington. The Center for Ethics report is an illuminating primer for those who are unaware of the lobbyist-merry-go-round at the FCC.
FCC and Cell Phone Carriers - Too Cozy?
The EMR Policy Institute has posted two videos that describe the rooftop RF problem on YouTube ("Wireless Safety Failure Part I" and "Wireless Safety Failure Part II"). Each is about 15 minutes long. Janet Newton of the Policy Institute contacted David Dombrowski about the safety issues surrounding wireless antennas and the danger to the public and rooftop workers.
David Dombrowski of the FCC's Enforcement Bureau in Philadelphia wrote to Janet Newton of the Policy Institute asking about operator responses to the toll-free numbers. She then sent him recordings, which the Institute had made from calls to AT&T, Metro PCS, Sprint, T-Mobile and Verizon. "That was the last I heard from him," Newton said. When contacted by Microwave News, Dombrowski wrote back that he could not comment because he was not authorized to speak to the media. This Notice of Proposed Rulemaking contains the correspondence between Dombrowski and the Policy Institute.
The Wall Street Journal featured an article on the cell antenna radiation problem: "Cell Phone Boom Spurs Antenna-Safety Worries," with a picture of Marvin Wessel, an RF engineer. "It's like having a speed limit and no police," Wessel told the Journal referring to the FCC's lack of enforcement of its rules. Evie Hantzopoulos, the executive director of a New York City non-profit and a sometime cell antenna activist, tells a similar story about dealing with the FCC over a rooftop antenna. "The FCC's approach to enforcement is so laissez-faire, it amounts to incompetence," Hantzopoulos said.
First, they prevented wireless science advocates from displaying a sign. Then, a security guard forcefully prevented a t-shirt from being taken out of a bag by a former Congressional candidate with opposing views. Next, a Bloomberg reporter had his credentials confiscated for talking with the former Congressional candidate.
"Hey Tom [Wheeler], with the NTP study showing wireless causes cancer sub-thermally, how can you proceed with more wireless expansion, with FCC standards only recognizing thermal effects - ignoring thousands of studies showing cancerous effects, neurological effects, reproductive harm, immune system disorders... people being electrosensitive...?" -Kevin Mottus, former Congressional candidate, to Chmn Wheeler
"Moments ago I was attempting to talk to to some people who came to attend the meeting and have concerns about radiation and 5G. And your security force intervened - told the guy he couldn't show me the t-shirt he wished to display at the meeting, forced him to put it away, and confiscated my FCC-issued ID. Is this consonant with the discussion that ought to be taking place here, and what's your reaction to this action by your staff?" -Todd Shields, Bloomberg reporter, to FCC Chair Wheeler [Collective Evolution]
In 2014, George 'Mike' Moffitt (no longer FCC NE Regional Director) was officially called out by FCC Commissioner Pai, who wrote: "Indeed, a whistleblower within the Enforcement Bureau gave me an October 28, 2014 email from the Bureau's Northeast Regional Director to field agents that included the following instructions: "We are scaling back on our response to pirate operations. Barring interference to a safety service, pirates should NOT be given a high priority (If there's interference to a safety service, it's not a 'pirate case' but instead a 'safety case.')" The email went on to state that "[w]e will NOT be issuing NALs to the majority of pirate operators."
George 'Mike' Moffitt, in Chicago, and his former underling, David Dombrowski, formerly at the Langhorne, PA office, were instrumental in blowing cases involving Karol Madera by ignoring FBI and other agency input, by inventing 'warnings for interference' which never occurred, by ignoring exculpatory evidence, by lying about responses to FCC allegations, by failing to follow agency procedures, and by issuing NAL and FO's which were never mailed to a licensee's address of record as required by statute - not to mention perjurious statements about 'hearing' individuals causing interference - all of this, according to documents provided to Congress and Inspector's General.
FCC Commissioner Pai continues, "Over the last couple of years, I've received many complaints about the Enforcement Bureau. For example, some allege that the Bureau engages in selective prosecution, targeting disfavored companies while letting favored companies off the hook. Others maintain that the Bureau conducts abusive and frivolous investigations."
"Currently, the Commission issues NALs even when it recognizes internally that they have serious problems. Major holes in the Commission's theory are often left unaddressed... The outcome: all of the benefits of glowing press coverage, and none of the downsides of actually delivering results."
Pai's conclusion: "This is powerful evidence of the FCC's misguided enforcement priorities. Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we're chasing press." This and other embarrassing debacles resulted in a long overdue shakeup that's not yet complete, and according to some in Congress, "...won't be complete, until there is regime change, and further dismissal of staff currently employed by the FCC."
As just one example, Republicans, including Senate Commerce Chairman John Thune, have suggested they'd consider confirming Jessica Rosenworcel as Commissioner, if Mr. Wheeler announces his retirement. In response, Wheeler hinted at the election, apparently waiting to see if Ms. Clinton elects to retain him, as she has expressed support for the FCC's Internet takeover. However, if the Senate doesn't act on Rosenworcel's confirmation by Dec. 31, she's out at the FCC, and Ms. Clinton's term would not begin until after the inauguration in January, 2017.
A number of pirate stations are operating throughout New York City and Northern New Jersey, according to a recent engineering survey unveiled by the New York State Broadcasters Association. Despite an FCC advisory promising 'severe penalties' pirate activity continues to increase in the Northeast Region.
The 2016 survey admittedly underestimated the number of pirates, but still indicated seventy-six (76) stations were operating without an FCC license in four primary locations. Nineteen (19) unauthorized stations operated in the Bronx, N.Y.; twenty-nine (29) operated in Brooklyn, N.Y.; thirteen (13) operated in Newark, N.J.; and fifteen (15) were active in Paterson, N.J. Brooklyn saw a fifty-eight percent (58%) increase in the number of pirate stations, compared to a similar survey just one year prior.
"The new survey provides compelling evidence that the FCC needs to address this problem," according to David Donovan, NYSBA President. "The entire New York Congressional delegation asked the FCC to fix the problem. While the FCC has published an Enforcement Advisory, it needs to devote the manpower and resources to increase its enforcement efforts." In an apparent mocking and discordant tone, the NYSBA said, despite "limited resources," it was even able to establish where 14 of the illegal broadcasts were originating. "Our results demonstrate that finding the location of unauthorized pirate operations is not terribly difficult," the report notes.
The report even includes photos and addresses of some of the pirate radio sites. Unlike the FCC, in accordance with good engineering practice, the firm Meintel, Sgrignoli, and Wallace uses precisely tuned, multi-element, alt-azimuth yagis for direction-finding, and unlike some employees at the FCC, they do not attempt to magically divine who may be operating the stations based on location alone, nor do they perjure themselves in official documents by unequivocally stating they 'heard' specific individuals operating the stations, nor have they ever stated that individuals received warnings for interference, when such was not the case. The engineering firm Meintel, Sgrignoli, and Wallace can also tell the difference between a location in one town and a completely different location in another town, three miles away -- and, as competent engineers, they've never foolishly relied on a zipcode in describing a transmitter site. In other words, a competent engineer will never 'fudge' the facts.
Pirates use inexpensive equipment that can be easily moved from place to place. They don't pay forfeitures and even in rare cases when they're identified, they simply move their transmitters and they're on the air again the following night. Apologists of pirate activity say the pirates are serving communities by operating in languages other than English and by providing information of interest to communities who are generally not well served by licensed broadcasters, points which are vehemently discounted by FCC Commissioner Michael O'Rielly.
The following documents examine the decision-making processes which will (theoretically) help redefine the FCC field offices, and (hopefully) (eventually) (one day) correct the FCC's dysfunctional method of handling complaints and conducting investigations.
Item A: EB Modernization pdf file 2.6 MB
Item B: Before and After Org Charts pdf file 147.79 KB
Item C: Before and After Staffing Plans pdf file 2.18 MB
Note: Charles Cooper is now the Field Director in the position marked vacant in the 'after' plan.
Item D: Bargaining Unit Positions to be Impacted pdf file 150.53 KB
Item E: Responding to public safety complaints in one day. Tiger Teams. Interference to critical public-safety and industry interference. Working out the details of the new process; developing the new system; identifying funding sources; consolidating existing intake methods, and; updating its database, TBD.
In July, a flawed report by congressional Democrats aimed at discrediting a Republican investigation into fraud in the Federal Communications Commission's low income phone subsidy program overlooked several areas of concern highlighted by FCC commissioner Pai before drawing its conclusions. In response, FCC Commissioner Ajit Pai sent a letter to USAC, the program's administrator on August 1st, 2016, asking how more than 400,000 subscribers were enrolled since October 2014, without being verified in a national database. The commissioner asked for a response by Aug. 15. Conservative legislators have blasted the program as a cash cow for unscrupulous wireless carriers since spending and fraud hit an all-time high in 2012.
Ignoring the statute of limitations, the FCC has proposed a forfeiture against AT&T for overcharging schools. If the company did overcharge, then a forfeiture could be appropriate, providing the FCC is able to prove its case in court(s). However, the FCC cannot (legally) ignore process and procedure by waiting more than the one year allowed, post infraction, to impose a forfeiture. Last year, AT&T was highly critical of the Enforcement Bureau in another action. It is highly doubtful the courts will endorse the FCC's failure to follow process and procedure, and as FCC Commissioner Ajit Pai points out, once again the FCC seems to be chasing press rather than adhering to the law of the land. John Eggerton has more on the latest controversy from the FCC.
The congressional majority called the FCC to account on July 12, 2016. Chairman Walden said, "The FCC continues to push the limits of congressional patience, grab jurisdiction from other agencies, and leave the marketplace bewildered and confused. Pledges of openness and transparency have failed to materialize. Meanwhile, it appears not just Republicans on the commission are kept in the dark on major policy proposals. This is not make believe - the consequences are real and the FCC must do better." The majority in the congressional oversight committee agree that FCC reorganization and rewrite of the Telecommunications Act are long overdue. Following the July 12 hearing, the House Communications Subcommittee sent a letter to Federal Communications Commissioner and Whistleblower, Ajit Pai, requesting a briefing from Commissioner Pai's staff regarding his current investigation into the Universal Service Lifeline program. Upton and Walden write, "According to information released by your office... significant and continuing failures in program safeguards have permitted pervasive waste, fraud, and abuse over at least the last several years... and the program is critically flawed and poorly administered... We request... that you make your staff available to brief Committee staff during the week of July 24, 2016 at a time to be determined." Click here to read the letter in its entirety.
The 'Congress Blog' at thehill.com this week features an article by Katie McAuliffe - Why Won't Obama's FCC Leave Us Alone? - which caught our interest, first for it's comedic value, and second for it's accurate analysis of the evolution of FCC policies over the past 8 years.
Katie writes; "Throughout this administration, and in particular since chairman Tom Wheeler took the helm at the FCC, the Commission shows every sign of stumbling toward a world of Soviet-style government-run networks where private companies are stuck in a maze with an FCC-mandated toll booth around every corner."
She's right. Today's FCC is highly reminiscent of a Soviet era oligarchy, complete with it's own bureau of disinformation and propaganda. The wasteful and out of control Obamaphone/Obamanet programs and the Net Neutralization scam are twin monuments of government ineptitude and overreach.
Like Nancy Pelosi's description of Obamacare, "We have to pass it so you can find out what's in it" and Hillary Clinton's description of Benghazi, "It was caused by an Internet video that was insulting to Muslims," the FCC can't seem to stop lying. Larry Downes, at Forbes.com writes, "Most of those commenting [about Net Neutrality] have been lured into participating by a series of carefully-orchestrated lies about what the FCC is actually proposing to do.
These include lies about what the new rules say, about the kinds of practices they will or will not cover, and about FCC Chairman Tom Wheeler's reasons for proposing them... Each of these lies has been built on top of the others, and all in the service of the biggest lie of all - a recycled whopper that the Internet "as we know it" is at death's door, and that the only way to save it is to transform it into a public utility." The Net Neutralization scheme is headed to the Supreme Court, unless Congress steps in to stop the madness.
Katie McAuliffe writes, "It takes a special effort to stand out in an administration full of overreach and boundary-crossing but the FCC is doing so." That's saying a lot, considering the FCC has been competing with Eric Holder, Hillary Clinton, and Lois Lerner for eye-popping headlines related to lying liars and the lies they tell. Of course, if you get your news from CBS, NBC, ABC, NPR, or CBC, and especially Fareed Zakaria, then you've never heard of these scandals, and you probably believe "it's all a vast right wing conspiracy" -- just like those nasty stains on Monica Lewinsky's pretty blue dress. Ms. McAuliffe concludes, "It's time for the FCC to act like it respects the free market. If it won't Congress needs to make it."
Democrats targeting content and control of the Internet, especially from conservative sources, are pushing hard to layer on new regulations and even censorship under the guise of promoting diversity while policing bullying, warn commissioners Ajit Pai from the Federal Communications Commission and Lee E. Goodman of the Federal Election Commission.
"Protecting freedom on the Internet is just one vote away" said Goodman, a commissioner on the Federal Election Commission (FEC) which is divided three Democrats to three Republicans. "There is a cloud over your free speech." Goodman concluded, "We need to be ever mindful and vigilant not to let governmental agencies take that away from us." Obama's Justice Department initially wanted to censor news about Omar Mateen and the Pulse Nightclub murders and to punish those who made comments about illegal immigrants who raped children. Goodman said in a statement recently, "All press organizations should be concerned when the government asserts regulatory authority to punish and censor news coverage."
The FCC's 'Fairness Doctrine' imposed limits on the speech of broadcasters, but was abolished in 1987 by a Republican Chairman who stated, "We seek to extend to the electronic press the same First Amendment guarantees that the print media have enjoyed since our country's inception." The FCC [at that time] argued, "The intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters ... [and] actually inhibits the presentation of controversial issues of public importance to the detriment of the public and the degradation of the editorial prerogative of broadcast journalists."
FCC Commissioners Ajit Pai, Michael O'Reilly, and FEC Commissioners Lee E. Goodman, Matthew S. Peterson, and Caroline C. Hunter have all warned recently about a government moving toward increasing control, censorship, and punishment of opinions that contradict the current regime. Representatives Marsha Blackburn (TN) and Darrell ISSA (CA) both warned that the FCC takeover of the Internet could lead to government censorship. "What this in essence does is to give the federal government the right to determine priority and value to content - so they're ultimately going to be able to censor everything that you have." Blackburn said. "We don't need this. It will run up costs and lead to new regulations and new taxes." The FCC's Internet takeover is destined to be considered by the Supreme Court, after the next Presidential election.
WASHINGTON, DC - Communications and Technology Subcommittee Chairman Greg Walden announced that the subcommittee will continue its ongoing oversight of the Federal Communications Commission (FCC) at a July 12, 2016, hearing featuring all five FCC commissioners, following up on the committee's recently announced investigation into the waste, fraud, and abuse within FCC programs.
"The FCC continues to push the limits of congressional patience, grab jurisdiction from other agencies, and leave the marketplace bewildered and confused. Pledges of openness and transparency have failed to materialize. Meanwhile, it appears not just Republicans on the commission are kept in the dark on major policy proposals. This is not make believe - the consequences are real and the FCC must do better," according to congressional oversight Subcommittee chairman Greg Walden. "The upcoming hearing will provide our members an important opportunity to once again conduct oversight of an agency that needs reorganization." The upcoming hearing will be the sixth time the Committee will meet regarding FCC issues since the first of this year.
According to the New York Post, "Dozens of unlicensed shows operate in New York City on an average evening and according to the FCC, the state is home to 25 percent of the nation's pirate transmissions.
This figure seems reasonable when considering the Twitter account for Brooklyn Pirate Watch, a barometer for the FCC's monumental lack of success in the northeast, where there were 11 pirates on the air on June 16, 2016, all of which could be heard from Brooklyn alone. The FCC shake up and reorganization of its lacklustre field offices was supposed to cure radio piracy, and all manner of societal ills, with Flying Tigers and a new and improved, better trained, better equipped, elite group of enforcers, all of whom would be engineers. Instead, it's business as usual, because the Pirates have always known the Tigers have no teeth. That's probably why that colossal failure Dave Dombrowski couldn't cut it with the Tigers in the first place and why he ended up on a losing team back east. Speaking of losers, even the DOJ, tasked with acting as the attorney for the Commission, has refused to back the FCC in several major actions recently.
Since 2015, the FCC has demanded payment from four 'pirates' in New Jersey, one in Queens, two in Miami, and one in Kentucky, and of course, not one of them has paid a dime, but when eleven pirates are heard on the air in Brooklyn on any given day, something's not working with the process the FCC was tasked to accomplish. Who's responsible for the pirate radio mess in Brooklyn?
Perhaps the FCC can't do the job it's tasked to do, because they've been busy coming up with creative ways to grab power and solve nonexistent problems? The commission has been very busy with an Internet takeover, not to mention siphoning responsibilities from the FTC, and the IRS, if recent forfeiture amounts are any measure. Speaking of which, Congress recently proposed to decrease the FCC's budget by another $69 million, and we suspect more cuts are in the works due to the fact that Congress has been frustrated with the FCC for the past several years and because funding cuts are a leading indicator of Congressional displeasure.
"Our bill reduces funding for agencies that we believe can produce results with fewer dollars," Financial Services Subcommittee chair Ander Crenshaw said. "And, where there is a history of inappropriate behavior - cutbacks and reforms are recommended to hold them accountable." House Appropriations Committee chairman Hal Rogers said the Republican plan will "hold the reins on the over-spending and overreach within federal bureaucracies" while helping grow the economy. "This bill makes great strides on all accounts - while keeping this agency accountable to the American people."
In addition to subjecting the FCC to death by a thousand cuts (or 69 million cuts, in this case) Congress has called the agency a 'lawless, opaque, quagmire of favoritism and ineptitude', echoing Randolph May, President of the Free State Foundation.
Recently, Mr. May wrote: "Sadly, upon examination, the tendencies of the Obama administration's Federal Communications Commission (FCC) to exercise power in a lawless manner have become more manifest as the year has progressed... the agency increasingly has arrogated to itself the power to impose sanctions upon those it regulates for actions the regulated parties could not have known in advance to be unlawful. This conduct ignores fundamental rule of law and due process norms... Indeed, it is especially useful to recall this year - the 800th anniversary of Magna Carta - that our Constitution's conception of "due process of law" is generally acknowledged to be an inheritance from the Great Charter... [but] the commission delegated authority to its Enforcement Bureau staff... [and] This open-ended provision leaves agency bureaucrats with virtually unbridled discretion to penalize regulated parties for conduct... It doesn't take an expert steeped in the Magna Carta's history or our American rule of law norms to understand the problematic nature of this... which by its very nature invites arbitrariness and favoritism in its exercise."
The LA Times reported that the majority in Congress, and the Senate, believe Tom Wheeler's policies are unlawful, overreaching, and that a starstruck Chairman Wheeler has given away the independence of the FCC to President Obama -- and to Google, with the FCC's set-top-box proposal, in exchange for Dem-Friendly search algorithms on Google's gigantic, privacy-invading, search engine.
Humorously, Wired Magazine says AT&T even went so far as to call it Google's set-top-box proposal. "[Google] is unhappy with the choice by consumers to consume more and more content through apps, into which they have very little visibility" says Paul Glist, a lawyer and privacy expert for the National Cable & Telecommunications Association. "This is a gift to Google to give them access to the information that is moving away from them in the market place." One year ago, NewsMax reported that Google visited the White House 230 times since Obama took office, including visits as the Federal Trade Commission (FTC) investigated the Internet giant for antitrust violations. In August 2012, the FTC's staff concluded that Google harmed Internet users and rivals through anticompetitive tactics and by abusing its monopoly, the Wall Street Journal reports.
On April 13, 2012, the Federal Communications Commission released an interim report in which the agency fined Google $25,000 for the company's obstruction of an FCC investigation started in 2010. The FCC has attempted to fine geriatric and unemployed amateur radio operators on Social Security an equal amount. On April 28, 2012, Google released a complete, unredacted copy of the FCC's report. Significantly, the full report makes clear that Google intentionally intercepted payload data for business purposes and that many supervisors and engineers within the company reviewed the code and the design documents associated with the project. The FCC redactions appear designed to conceal the fact that Google's interception of Wi-Fi payload data was intentional. For some reason, the FCC redacted Google's admission of the intentional collection of American's private payload data. On the other hand, when Google representatives visit President Obama an average of once a week, given the record of the FCC doing an abrupt about face to meet the President's demand that the government treat the Internet like the giant telephone and electric utilities, it's hardly surprising.
The LA Times writes: "Although the president nominates the chairman and other FCC commissioners, the agency is independent and not supposed to be subject to White House control. Wheeler is a former lobbyist for the cable-TV and wireless industries and was a major fundraiser for Obama, who nominated him to head the FCC in 2013." Apparently there are two standards of justice in the United States. One for those who prop up and support the misguided policies of the past 8 years, and one for the rest of the country. Can regime change come soon enough?
The House majority has released a plan to slash the Federal Communications Commission's budget by $69 million and prevent the FCC from enforcing net neutrality rules, "rate regulation," and its plan to boost competition in the set-top box market. The plan is designed to cut the FCC's budget by a further 18 percent, with a cut of $69 million below the fiscal year 2016 enacted level, and $43 million below the [agency's] request, according to an announcement by the House Appropriations Committee.
"Our bill reduces funding for agencies that we believe can produce results with fewer dollars," Financial Services Subcommittee chair Ander Crenshaw says. "And, where there is a history of inappropriate behavior, cutbacks and reforms are recommended to hold them accountable."
The bill would require the FCC to commission "peer-reviewed" studies at an institution of higher education. Another 90-day commenting period would be needed, followed by a 180-day waiting period during which the FCC could take no action.
House Appropriations Committee chairman Hal Rogers says the plan will "hold the reins on the over-spending and overreach within federal bureaucracies" while helping grow the economy. "This bill makes great strides on all accounts - carefully investing taxpayer dollars in programs that promote opportunity, while keeping these agencies accountable to the American people," Rogers says in a statement. The timing of all this is aimed at exceeding the remainder of Tom Wheeler's term. Technically, Wheeler's slated to leave in November 2018. However, it is customary for FCC chairs to depart soon after the president who appointed them leaves office, at which time the controversial FCC enforcement bureau's leader, Travis LeBlanc is also expected to depart the agency, if not sooner. The proposal is the latest of many steps to gut the FCC's authority and is part of the government's annual appropriations bill.
FCC HQ is packing up to move out of their pricy waterfront digs in DC and into the waiting arms of a new lease with commercial real estate giant Trammell Crow. The FCC asked for 43 million to fund the move but Congress has proposed a bill to slash the FCC's budget even further. Staying put is not an option as the lease is up and they've already told Congress they're moving. Trammell Crow also hopes to bag another big commercial lease by offering space to the DoJ. The FCC will move to Crow's Sentinel Square development in NoMa, provided the agency's current landlord loses its suit to retain the agency. The federal government's real estate arm, the General Services Administration, notified Trammell Crow last month that it is the "apparent successful offeror" for the 473,000-square-foot headquarters requirement. As designed, Sentinel Square has a high level of appeal to the GSA as it presents an opportunity for GSA to consolidate occupying entities into fully government occupied leased facilities, thereby providing security, technologic, and operating efficiencies not otherwise available in the current roster of leased facilities.
Leaders of the Congressional Black and Hispanic Caucuses have voiced opposition to the FCC set-top-box proposal; to date, over 80 House Democrats have expressed opposition or serious concerns. Major civil rights organizations, such as the National Urban League and the League of United Latin American Citizens (LULAC), have asked the FCC to pause this proceeding until more empirical data detailing the impacts on diversity is released.
African American and Latino television programmers have also heavily weighed in, with Alfred Liggins of TV One calling it "a new form of 'redlining' that could bury diversity programming" and limit diverse communities' access to programming that reflects their values and lives.
All of these viewpoints should concern the FCC, and it is its duty to listen. Recently, New York Congresswoman Yvette D. Clarke and more than 50 of her caucus colleagues wrote urging the FCC to shelve this idea until several independent, peer-reviewed studies of its implications on diversity can be completed. I echo her concerns and encourage the granting of her request.
Let the Consumer Beware
"The proposed rule in no way will lead to the stated goal of protecting consumers. In fact, the logical and obvious result of the proposal is to create a confusing thicket of government privacy rules emanating from both the FCC and FTC which will lead consumer confusion and likely real harm. Flying in the face of fact based decision making the Commission has proposed to pursue a course founded on illusory correlations and selective perception. As is well known, organizations fail or succeed based on their decision making quality.
Fact based decision making relies on hard facts and verified observations. While other factors may be part of decision-making, such as a "hunch" or "hope," those factors are inferior to facts. Time must be taken to gather facts and data even before determining and framing the issue. The facts must be weighed and options provided before a legitimate final decision, or a "proposed rule," can move forward. In this case, the proposed rules seem to have been created with the intention of completely ignoring reality, and the facts. Not even a simple cost-benefit analysis has been provided.
The FCC has recently struggled to handle even simple routine and expected comments with its systems (human and otherwise), much less handling issues that are much more sensitive and that by the day can get worse if not addressed. This alone argues against more, if any, government intervention but certainly places a cloud on any FCC desire to enter into an area where it lacks expertise and authority.
The egregious lop-sided nature of the proposed rules, arbitrarily singling out one piece of an ecosystem (ISPs) for differentiated treatment runs counter to any sense of fairness. Bereft of any consumer harm the Commission seems to strike out to regulate simply for regulation sake seeking to envelope anything it can attempt to justify that may come within its purview.
The FCC has tried similar schemes in the past only to ultimately be struck down by the courts as unconstitutional but not before a tremendous waste of time and resources by the private sector, not to mention the squandered tax dollars of Americans. If these rules are adopted, the same fate awaits."
Read the letter of admonishment to the FCC from House co-Chairmen, Fred Upton, Greg Walden, and Michael Burgess.
In a May 25, 2016 letter to Mr. Joshua Babb of Maricopa, AZ, the FCC advised him that he should have known better than to listen to an FCC staff member regarding a licensing issue. The problem is, Babb took the FCC staffers advice and depended on that staffer to know what he was talking about. Silly Mr. Babb, it's well established FCC staffers are clueless and uninformed! In other words, ignore the staff and rely on your own interpretation of the rules, and you'll be much better off. Excellent advice.
Roger S. Noel, Chief of the WTB Wireless Division writes: "...Erroneous staff advice is not grounds for reconsideration. Licensees are obligated to know the Commission's rules. It is well-established that an applicant acts on staff advice at his own risk."
Roger S. Noel also cited two cases; one from 1995 and one from 1997, proving that it is 'well established' that licensees should not rely on FCC staff opinions or advice. Read the letter and note the highlighted portions. Roger S. Noel is hereby awarded our coveted 'Most Honest FCC Bureau Chief' award, for 2016.
In order to enforce consumer complaints that ISPs are violating the FCC's proposed privacy rules, the agency will need expansive access to data traffic, not only of the complaining consumer but of other consumers. Providing technical back-doors for governments, however, is precisely the outcome Apple, WhatsApp, and other participants in the internet ecosystem are spending so much political capital to avoid. If history is any guide, it's clear that once government agencies gain access to personal information, the likelihood of that data leaking elsewhere - not just to the NSA, but also the IRS, the INS, and other regulators - is nearly 100%.
So why would rational consumers who value both their privacy and the effective customization of their online life want another regulatory 'cop on the beat' - especially an unqualified cop, already under scrutiny for leaks, at a time when concerns over government information gathering are reshaping the technical architecture of the Web and mobile devices specifically to limit their access? It's an issue that both consumers and businesses should be paying closer attention to. Read more about the FCC's latest overreaching power grab from Larry Downes, at the Georgetown Center for Business and Public Policy.
"This is yet another unsurprising chapter in the FCC's miserable history on the media ownership rules," Representative Greg Walden of Oregon, chairman of the House Communications Subcommittee, said in a statement. "We have warned the Commission repeatedly over the past three Congresses that it cannot shirk its statutory responsibility and it cannot cut corners on good process."
The court said, "Although courts owe deference to agencies, we also recognize that, '[a]t some point, we must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough.'"
"I am pleased that the U.S. Court of Appeals for the Third Circuit has struck down the FCC's unlawful attempt to sharply restrict television stations' ability to enter into joint sales agreements," said FCC Commissioner Ajit Pai, who said he warned (two years ago) that the FCC's methods violated the law. In this proceeding, Pai's prediction was proven correct.
Walden also excoriated the FCC on its frivolous and illegal headline grabbing actions and tilting at windmills, saying "It is a sad statement on FCC leadership that the agency must be taken to court in order to force it to comply with the plain reading of its statute," said Walden. "[T]his entire process was an unnecessary waste of time and money and taxpayers are footing the bill. This committee will continue its longstanding effort to work on reforming FCC processes and force the FCC to address the years of compounded bad habits that have made it an institution that sees itself as above the law. Instead of tilting after windmills on ISP privacy and other headline-grabbing issues du jour, the FCC should do the work that Congress has assigned."
Berin Szoka, president of TechFreedom, said "Today's decision was a well-deserved rebuke for the FCC," "The FCC has never been well grounded in reality, under Democrats or Republicans, but the problem has grown far, far worse under Tom Wheeler -- and the FCC's outdated regulations have become more and more destructive as the Internet continues to transform the media marketplace."
MMTC president and CEO Kim Keenan praised the court and noted that the court of appeals for the third circuit has given the FCC 60 days to come up with the timetable for defining the term "eligible entity" as it applies to minority ownership, or it would impose one.
FCC Commissioner Ajit Pai praised the court decision as well, saying it was "yet more evidence that the FCC is now an agency unmoored from the rule of law."
Read more about this massive rebuke of the FCC's illegal practices, by John Eggerton.
Drug dealers and gang kingpins use contraband cellphones to conduct business and sometimes to order the murder of rivals outside prison walls. The solution is simple. Allow prisons to jam cell signals. Problem solved. However, the FCC isn't known for its common sense solutions or its quick thinking. Now ten governors want the Federal Communications Commission to give states more autonomy to apply technology that can stop prison inmates from using smuggled cellphones. While the letter doesn't explicitly say so, what the governors want is permission to jam cellphone signals behind bars. "The FCC should act to streamline regulatory review processes and allow states to implement cost-efficient technology in prisons, where the installation of such technology will not sacrifice the safety of the general public," reads the letter, which was proposed by SC Governor Nikki Haley, and also signed by governors from Alabama, Georgia, Indiana, Maine, Mississippi, Nebraska, North Dakota, South Dakota and Utah. Expect the murders to continue, along with business as usual. The FCC is more concerned with 'regulating the Internet' and 'freeing the set-top box' which is already dead and dying.
The FCC Enforcement Bureau as well as other bureaus at the FCC, have operated like a leaky sieve for at least 20 years, however, the Inspector General and US Representatives are just now figuring it out, this week. Chairman Wheeler maintains he has broad authority to release nonpublic information unilaterally, "in apparent contradiction of the plain language of FCC rules," committee spokesman Frederick Hill said. Senate Commerce Committee Chairman, John Thune, recieved a letter from short-timer Tom Wheeler at the FCC, who wrote "I intend to fully cooperate with this investigation and look forward to its findings." Read more about the FCC's back room bargaining that scuttles bilateral agreements behind closed doors.
The Federal Communications Commission's (FCC) asymmetric approach to internet privacy is likely to create a false sense of security among web users. Despite stringent FCC privacy regulation of internet service providers (ISPs), consumers' information will enjoy little protection when they are interacting on social media sites, shopping online or surfing the web. In other words, the problem isn't with ISPs, the problem is with sites that scrape data, then share or sell it with unscrupulous business 'partners' for a fee. As usual, the FCC is silent and or clueless about the real problem. The FCC's approach is like locking the front door but leaving the back door open and the windows unlocked, while on vacation.
The House Appropriations Committee are pushing a spending bill that would temporarily block a slate of controversial regulations at the Federal Communications Commission. The House majority are almost universally against the FCC's net neutrality rules approved last year, which reclassify internet service providers under strict common carrier regulations. Under the bill, the FCC would not be able to complete its rules until six months after a study is complete, likely pushing it past President Obama's term. Read more about the FCC spending Bill and its intended consequences.
"Today's decision is a stern rebuke of an FCC that has often put Americans at a disadvantage" according to Representative John Shimkus of Illinois. Commissioner Ajit Pai said the FCC had been derelict in its duty to keep the rules current, and the court indicated it may invalidate broadcaster ownership rules completely unless the FCC acts soon. Read more about the FCC's latest failure in court.
Fundamentally, the FCC is trying to fix a market that isn't broken. Products like Roku, AppleTV and Amazon's Fire TV have already 'unlocked' the video market and consumers have more choices and options than they know what to do with.
More than ever, people are watching TV away from their living rooms which has forced the MVPDs to adjust by creating apps like the ones we are starting to see on Roku. The FCC's new plan would erect new roadblocks in the way of this innovation, stunt competition, and ultimately hurt customers. The FCC should stop trying to 'help' where it clearly isn't wanted or needed. Read Roku's op-ed on how the FCC's rules actually harm, rather than help consumers.
According to FCC Commissioner Pai, Commissioners were instructed not to reveal a multi-million dollar fine until the day after a controversial vote to expand the government's wasteful welfare scam known as Lifeline. "Commissioners were told that the Notice of Apparent Liability could not be released or publicly discussed until April 1, 2016, conveniently one day after the Commission was scheduled to expand the Lifeline program to broadband," Pai wrote. "That's not right." Lifeline has been misadministered by the FCC for years, yet it keeps growing, despite being riddled with fraud and abuse.
According to Commissioner Pai, the order to remain mum about the latest fine had the effect of preventing public knowledge about widespread fraud in the Lifeline program ahead of a contentious vote on expanding it, despite persistent, ongoing concerns about the lack of internal safeguards. "The phones are not, in fact, 'free' - they are financed by a special tax paid by all paying cell phone customers, who are largely unaware the Lifeline program exists. The program is already a welfare-state juggernaut, all but impervious to reform no matter how much waste and fraud is discovered, and the Lifeline expansion aims to make 55 million people dependent upon it for "free" or heavily subsidized Internet access. Pai also explained that Americans' phone taxes have gone up 60 percent over the last seven years to finance this and other programs, "and that's before the FCC expanded this program -- there is no telling how high that tax is going to go in the future."
The Senate Homeland Security and Government Affairs Committee took aim Wednesday at the FCC's network neutrality Open Internet order and ex parte contacts in a hearing on The Administrative State: An Examination of Federal Rulemaking" where Senator Ron Johnson used the FCC as an example of the federal regulatory overreach. Four of the five witnesses were of like mind that there was currently federal regulatory overreach, with the scope of agency regulations far broader than Congress had intended. Former FCC Associate General Counsel, Randolph May, said the President's involvement undermined the agency's independence and the public's confidence in its integrity. Even the lone dissenter, Robert Weissman, conceded there were severe problems with the regulatory process, specifically delay of regulatory decisions that impedes business decisions and hurts consumers. He said another problem was weak enforcement and the revolving door of agency officials that move to industry. May also said there was certainly the appearance that the agency's independence was jeopardized, and on the basis of political considerations, not its expertise. George Washington University Law Professor, Jonathan Turley, said nobody could believe the net neutrality process was a good system given the "total disregard" for the notice and comment requirements of the Administrative Procedures Act. Senator Johnson flatly stated it "was obvious they weren't acting independently."
Thanks to John Eggerton, Washington Bureau Chief, Broadcasting & Cable and Multichannel News
Any day now, the Washington, D.C., Circuit Court of Appeals will rule on the Federal Communications Commission's regulatory coup over the Internet, commonly known as net neutrality. And not a moment too soon. Because the FCC's rules are quickly descending from tragedy to farce.
Netflix demanded that Internet service providers (ISP) be prohibited from blocking or degrading data traffic. The threats were largely imaginary few if any cases of such behavior had ever been reported. So sinister was the possibility, however, that it required a new regulatory regime for the digital economy.
Last month, however, The Wall Street Journal revealed that Netflix has been throttling, or capping, data rates (and thus video quality) for customers of some mobile carriers but not others. And that it has been doing so for at least five years, including the period when it was lobbying the White House and FCC. Netflix's epic hypocrisy exposes nearly every deficiency of net neutrality that critics have warned against for the last 15 years.
Before The Wall Street Journal asked Netflix if it was the source of the mobile slowdown, the company was content to let the world believe that the poor quality was the fault of AT&T and Verizon. This wasn't the first instance of Netflix sanctimony. In 2014, Netflix in sensational fashion charged ISPs with blocking its traffic at interconnection points. More than any other single incident, this narrative provided the momentum for the regulation of the Internet. Except it was false. After looking at traffic patterns, it became clear that the poor performance was due to Netflix's own routing decisions. It was a manufactured publicity stunt, which led to the downfall of one of the nation's most successful economic policies of the last few decades. In the next few days or weeks, a federal court may begin the restoration of American Internet freedom.
Bret Swanson is president of Entropy Economics LLC and a visiting fellow at the American Enterprise Institute.
Read more about the FCC's increasing imposition of farcical rules.
The House has passed the No Rate Regulation of Broadband Internet Access Act (H.R. 2666), sponsored by Rep. Adam Kinzinger, of Illinois. The vote was 241 to 173. The bill bars the Federal Communications Commission from regulating prices charged for broadband Internet service. Kinzinger said blocking the FCC from attempting to regulate broadband service would preserve a free market online, continuing a tradition that has helped the Internet spur economic growth and job creation. The Senate majority leader has placed the bill directly on the senate calendar for a vote, which is expected to pass. Unsurprisingly, President Obama has threatened a veto. Meanwhile, Tom Wheeler, who bundled at least $700,000 to Obama in campaign contributions, whom some have unkindly called Obama's puppet and sycophant, is expected to continue to lobby for more taxpayer giveaways and more government control, in all areas under the purview of the FCC.
"What happens to FCC privacy enforcement when Tom Wheeler and Travis LeBlanc move on to greener pastures? What happens when the new FCC chairman (and there will be a new chairman in 2017), questions the FCC's claim to privacy jurisdiction or even Title II? Will the current engagement with privacy end with a tryst with Travis?
These are among the questions being whispered in the legal and policy galleries as the FCC reaches for power patently beyond its grasp. The new Notice of Proposed Rulemaking (NPRM) on Broadband Consumer Privacy rests, many argue, on a tenuous accretion of authority via Title II and a legal predicate accepted by few in industry. To say that its privacy jurisdiction is well-grounded would be balderdash, although the FCC goes to great lengths to overcompensate for the possibility that its fundamental premise could be undermined on appeal.
But alas, as John Adams advised in his 1774 seventh "Novanglus" letter, "we are a government of laws, not of men." So it does little good today to speculate whether the FCC can deputize itself or even enlarge its coasts on privacy enforcement. Nor can we direct the FCC to defer to the experts at the FTC because they wear the whole armor. Only Congress and the courts have the power to save the republic from a regulatory coup that has been raised under cloak of consumer protection. In the privacy crucible, there are many battles yet to be joined, and this one may be extinguished with the short passage of time."
Adonis Hoffman is chairman of Business in the Public Interest and an adjunct professor of Communication, Culture and Technology at Georgetown University. A former FCC and congressional lawyer, he is the author of Doing Good: The New Rules of Corporate Responsibility.
Within the next week, the DC Circuit Court will rule on a challenge to the FCC's net neutrality regulations by entrepreneurs and established Internet Service Providers. It's likely that the court will prune the regulations and in so doing, curtail the agency's quest for power. If the DC court doesn't, we can expect an appeal to the Supreme Court. Likewise, the Congressional Commerce Committee will vote on removing the FCC's intentions to regulate rates and to expand Obama's socialist handouts to the telephone and Internet sphere. In 2011, FCC issued the USF Transformation Order, whereby it adopted funding reforms so that the program could support both telephone and broadband service, and 'capped' the program at $4.5 billion annually, according to the Government Accountability Office (GAO).
It's unfortunate that we have to rely on the courts to micromanage regulatory agencies, but agency behavior leaves us little choice. While the FCC was established by Congress in 1934 to bring technical expertise to the task of managing communication markets, under Chairman Tom Wheeler's direction it has become overly engrossed in politics.
It's likely that Chairman Wheeler and his inner circle simply don't realize the damage they've done to communication markets. A detailed examination of their regulations finds significant gaps in its understanding of the way the Internet works.
So we depend on the court to save the nation's economy from politics, and indeed to save the FCC from itself. I hope that the court delivers the message that regulatory agencies should stick to their knitting rather than seeking to influence election outcomes.
Richard Bennett is a Visiting Fellow, at the American Entrprise Institute Center for Internet, Communications, and Technology Policy.
When unleashed for lawful, limited, and thoughtful purposes, the federal government has extraordinary power to do good. But when it exercises its power with little purpose and little thought - and possibly limited legality, the federal government is unlikely to do much if any good. Once again, the Federal Communications Commission has entered into unnecessary and wasteful rulemaking. This time, in addition to mandating the use of outdated technology, the agency would also countenance the theft of intellectual property. A future-looking agency would be working with industry to eliminate the boxes, not forcing consumers to keep them, while allowing competitors to clone the intellectual property of competitors.
The FCC's plan would allow these third parties to monetize the individual viewing habits of the subscribers, which they cannot do now. This is one of the more outrageous examples in recent years of a company trying to get what it wants through regulation since it cannot obtain its objectives in the marketplace. Think 'Google.'
Consider the example of "set-top boxes." If you are like most Americans, you don't think about them much, if it all. The Federal Communications Commission thinks about them often. Therein lies the problem. The FCC wants to end proprietary boxes from places like Comcast, Time Warner, Dish, and Direct TV, which protect consumers by limiting behavioral tracking with enforced FCC privacy policies - that is, the lists of shows and advertisements consumers watch are not sold to 3rd parties. Instead, the FCC wants to make all boxes 'generic' - which opens the way for Apple, Amazon, Google, TiVo, and Roku to track consumer behavior and to add targeted ads to programming. The latter do not have FCC enforced privacy policies because they are considered 'edge' providers.
Consumers would not be better off. The range of video options would be diminished, and the security and privacy currently afforded by set-top boxes would be lost. Subscribers could be subjected to the invasion of their privacy through unrequested targeted advertising. FCC Commissioner Ajit Pai noted that existing regulations on set-top boxes have raised prices and cost Americans billions of dollars in additional fees. The regulations have also increased energy consumption by 500 million kilowatt hours each year and failed to produce robust competition in the set-top box market.
Government mandates on technology are typically out of date even before they are enforced. Ultimately, the strongest argument the FCC has to impose new regulations on set-top boxes is that it claims that it legally can do so. Perhaps. The extraordinary unbundling of set-top boxes is beyond what is clearly required or contemplated by statute. Government power exercised without good judgment is a recipe for disaster.
See the DailyDot for more about the FCC's misguided bureaucracy from Thomas Schatz, the president of Citizens Against Government Waste.
See Forbes.com for more about the FCC's failed policies from Harold Furchtgott-Roth, a senior fellow at the Hudson Institute.
There were some testy moments in the Senate Appropriations Financial Services and General Government Subcommittee Tuesday. Chairman John Boozman (R-Ark.) wondered out loud how Congress can justify giving money to an agency that doesn't follow congressional policy.
"Why should we provide you more resources if you're not going to follow the laws that we write and expect to be followed," he asked FCC Chairman Tom Wheeler during a hearing.
Industry participants on and off Capitol Hill are concerned that the FCC is ignoring the law. Boozman seemed to channel much of that frustration on Tuesday. He said he finds it "troubling to see what appears to be an obvious disregard of the intent of language on joint sales agreements included in last year's omnibus appropriations bill." "You and your staff knew clearly the intention of Congress. Your staff helped craft the language and provided technical assistance," Boozman said. Boozman also asked Wheeler why he has ignored the laws so far despite "strong bipartisan support" and "Congress' clear intent."
Since the enactment of the omnibus, Boozman said the commission has worked around congressional intent by deploying its merger review authority to make companies to get rid of long-held joint sales agreements. Pai reminded the committee that 12 powerful senators sent Wheeler a letter expressing their concerns.
The letter said that the senators were "extremely disturbed" that the commission was forcing companies to terminate their joint sales agreements in connection with broadcast license transfers. The senators implied that the FCC "undermined Congress' clear intent to preserve JSAs lawfully executed" in 2014.
That letter bore the signature of Boozman along with big names including Senate Minority Whip Dick Durbin (D-Ill.), and the Senate's No. 3 Democrat Chuck Schumer (D-N.Y.). Sen. Roy Blunt (R-Mo.), a member of the Senate's GOP leadership, joined with Sens. Barbara Mikulski (D-Md.), Ron Johnson (R-Wis.) and Ben Cardin (D-Md.) on the letter.
"At a time when folks in Washington can agree on very little, it is telling when a powerful bipartisan group of lawmakers has found common cause in taking on the agency's lawlessness in this matter," Pai said of the letter.
Read more about the Senate's scorching rebuke of FCC lawlessness.
WASHINGTON, DC - A Federal Communications Commission (FCC) decision to take over pricing of business broadband services could eliminate up to 43,560 jobs, cut economic output by $3.4 billion over a five-year period and prevent 67,000 buildings from getting access to fiber, according to a study by Hal Singer, principal of Economists, Inc. and adjunct professor with Georgetown University's McDonough School of Business.
Read more about the latest implementation of job killing policies at the FCC.
In just the last year alone, the FCC manipulated markets by rigging the rules of an auction of wireless airwaves to discourage open bidding and reclassifying the Internet as an outdated telecommunication service under Title II of the Communications Act written in 1934.
"ObamaNet," as we have termed this overreach of the government, is the Obama administration's next Obamacare; a socialist-flavored "answer" whereby government edicts outweigh real innovation. Under the guise of spreading internet access to the remaining 10 percent of the U.S. population, Internet Service Providers would be required under these new rules to seek FCC approval on any "new products, business models, data-traffic operations, and more."
And if you think the ISPs are going to eat the costs of the additional accountants and attorneys needed to wade through the 682 pages and 987 rule sections, think again. Those fees, just as has been done with the telephone industry, will be passed on to you, the consumer.
Read more analysis of the FCC's overreach by Drew Johnson, of the Taxpayer Protection Alliance.
In the publication 'National Affairs', Mercatus research fellow Brent Skorup demonstrates that the discretion that Congress has afforded the FCC has undermined, rather than advanced, the public interest. In this era of growing competition and innovation, the FCC's authority should be increasingly curtailed, if not eliminated outright. The FCC's expansive regulatory authority has led to what one scholar termed a regulatory 'kludgeocracy' - an expansive system, updated only incrementally to deal with new issues, that is both opaque and prone to failure. For decades, the FCC's ad hoc processes have harmed competition and weakened First Amendment rights. The FCC harms competition by compartmentalizing industries, delaying new technologies, and politicizing allocation of spectrum licenses. The FCC also threatens free speech through architectural censorship and government pressures on speech.
While the FCC pursues some worthwhile goals, it often arrives at either the wrong policy for achieving those goals or the right policy years too late. Reforming communications law will require two major policy changes including targeted, transparent subsidies, and reducing the FCC's authority. Neither the FCC nor the federal courts have put meaningful limits on what the FCC can do with its 'public interest' authority. In practice, this vague standard shields the agency from legal accountability, as it can always point to this standard when justifying regulations under court review.
The FCC uses its regulatory authority carte blanche to enact a bewildering maze of regulations, creating a mindset of confusion in the most innovative sectors of the US economy. Some of the FCC's functions are duplicative of functions already served by other agencies, like the FTC. The costs of its regulations include higher cable and cellphone bills for consumers and reduced freedom of speech. The federal courts are clogged with costly lawsuits related to fighting inane and unconstitutional 'rules' promulgated by policiticized lobbyist hacks on an industry-to-government-jobs carousel. The media and the country would be much better off with a streamlined FCC that does a few things well, rather than a myriad of things poorly.
"Over the past three weeks alone, the FCC's decisions have been rebuffed three times in court; rejected in extraordinary fashion by a large, bipartisan group of Senators; and rebuked sharply by Members of the House from both parties. At some point, even this agency has to acknowledge that the law isn't an invitation to semantic chicanery and good government isn't discretionary." FCC Commissioner Pai laments poor government at the FCC.
"[T]he FCC is doubling down on its misguided and broken Net Neutrality decision by imposing troubling and conflicting 'privacy' rules on Internet companies, as well as freelancing on topics like data security and data breach that are not even mentioned in the statute. While I will read the document, this direction does not surprise me given this agency's reckless approach to an important topic, especially where it clearly lacks expertise, personnel, or understanding." FCC Commissioner O'Rielly discusses the FCC's lack of understanding and expertise.
Leading up to the elections in November, Americans have a choice. They can choose Hillary, who will preside over a third Obama term, where a leftist bureaucratic oligarchy from the executive branch makes decisions for the rest of us, while pandering to the 'special interest du jour,' or an alternative candidate, rooted in the Constitution, with respect for all three branches of government. Reviewing the past 8 years, the choice seems clear.
Who can forget the IRS scandal, which is the latest scandal to be confirmed in the outgoing administrative regime. Along with the Fast and Furious scandal , the Benghazi scandal, and the Immigration scandal, not to mention the V.A. scandal(s), we can now add the FCC's Light Squared scandal, and the FCC's prison calling rates blunder, and the big Kahuna, the FCC's Net Neutrality scandal where FCC Chairman Wheeler stands accused of pandering to White House interests, in violation of the FCC's mandate as an 'independent' agency, not to mention exceeding the FCC's statutory authority. The FCC's porn scandal was bad enough, where the Washington Times discovered employees at the Federal Communications Commission (FCC) spending as much as eight hours per week watching porn, after filing a Freedom of Information Act (FOIA) request for the investigative records pertaining to the emerging scandal. Adding insult to injury for American taxpayers, some of the federal employees who got bored at work and watched porn, were actually awarded bonuses. The only bright spot is with respect to clueless FCC field staff, where the FCC can be congratulated for axing 44 overpaid employees in 11 offices, who were either incompetent or underworked, according to an $850,000 consulting study which the FCC has still not officially released to the public. Your government can and should do better. Government should not be in the business of telling people what they should think, say, or believe. Do your part, by voting in November.
In the waning days of the Obama administration, Wheeler's FCC has become unhinged from the law, frustrating Congress and leaving the FCC open to embarrassment, ridicule, and a string of legal setbacks.
Already, much of the Chairman's filigreed monument to micromanagement is crumbling under the withering scrutiny of the federal courts, the entirely predictable result of his having built it without adequate legal foundations. Wheeler's palace is proving to be Washington's true house of cards.
The telephone network, the Chairman concluded, meant either the telephone network or any aspect of the Internet the FCC wanted to regulate. All of this was done in short order and under cover of darkness, leaving the entire 300-page order open to attack on procedural grounds. Open Internet; Lifeline; Municipal Broadband; TCPA; Prison Calling Rates; Zero Rate; Set-Top-Box-Technical-Mandates; Special Access; Mobile Auctions... Whether by act of Congress, the courts, or the accelerating pace of technological change, Wheeler's empire is unlikely to stand the test of time. The emperor, it turns out, has no clothes.
With Wheeler's term as Chairman almost certain to end with the next President's election, it will be up to the next Chairman, from whichever party captures the White House, to restore the agency's credibility and the morale of the hard-working engineers, lawyers, and economists who deliver the agency's true and not insignificant contribution to the innovation economy. Read more by Larry Downes, at Forbes.com.
On March 29, the FCC will hold an auction for frequencies near current medical device frequencies in the 600 mHz band which includes Channel 37, a portion of the radio spectrum designated in 2000 for wireless medical telemetry devices, such as heart, blood pressure, respiratory and fetal monitors. Hospitals are terrified that their patients will be negatively affected. The FCC - and Capitol Hill staffers paying close attention to the auction - don't have the knowledge of health care and hospital engineering to fully grasp the fallout of commission's policies, the Hospital Association says. The health staffers in Congress aren't the ones working on FCC policies and vice versa. If something goes wrong and new broadcasters interfere with hospital wireless devices, they say, it will put patient lives at risk. See the AHA statement here.
Read more: http://www.politico.com/tipsheets/morning-ehealth/2016/03/hospitals-fear-fccs-spectrum-auction-213187#ixzz43CRTji4O Follow us: @politico on Twitter | Politico on Facebook
Households would get a single $9.25 a month subsidy that would apply to Obamanet or Obamaphone, but not both, unless there's fraud involved, which is typical. The program currently helps about 12 million U.S. households afford landline and mobile phones, according to agency estimates, which are widely acknowledged to be the product of FCC summer interns throwing darts at a board, while high on bath salts. Critics posit that "Not only has the FCC historically done a dismal job at tracking subsidy spending, most government broadband policies have been based on flawed, incomplete or downright hallucinated data. In other words, for the better part of fifteen years our government not only didn't really know where broadband funding was needed, it couldn't be bothered to track if it was actually going there. Not too surprisingly, as a result, we've seen years of fraud, waste and abuse in the FCC's Universal Service Fund (USF) and e-rate programs intended for rural and school telecom improvements."
March 7, 2016
This morning, the U.S. Court of Appeals for the D.C. Circuit stayed the agency's latest attempt to regulate the rates charged for inmate calling services. This was no surprise. Last October, I warned the agency that these regulations were unlawful. The FCC should have learned its lesson the first time around, in 2013. Then, too, I warned the agency that its regulations were fatally flawed - and then, too, the D.C. Circuit blocked those regulations. This case captures well how the FCC in recent years has done business. Political expedience trumps everything else; the rule of law is ridiculed rather than respected; and bipartisan compromise is rejected in favor of a party-line vote. Thankfully, we can still count on the federal courts to rebuke an agency untethered to the rule of law. Rules and reason may yet triumph over raw power.
Americans generally have faith that our government operates according to legal authority and predictable rules. If a government-authorized camera records our car exceeding a speed limit, we usually pay the penalty because we have faith that proper procedures were followed. Our faith is tested when a government agency is found to have operated outside the rule of law. That is exactly what happened this week when the Senate Committee on Homeland Security and Governmental Affairs released a troubling report....
Just a few days ago, the Senate Committee on Homeland Security and Governmental Affairs released a fiery report alleging that FCC Chair Tom Wheeler colluded with the White House and steered the FCC toward President Obama's policy goals in violation of its charter as an independent agency. The report says FCC leadership ignored requests from staff and that the agency took a sharp turn as soon as President Obama called for Net Neutralization. Staffers flagged problems with the FCC's notice to interested parties, and cautioned that gaps in the record could prompt significant litigation risks. Instead of soliciting further public comment, however, the FCC followed the President's instructions.
By switching from the Section 706 approach to Title II authority, without soliciting additional comments, the FCC blindsided the public. The Commission deprived interested parties of the opportunity to comment on the rulemaking, in clear violation of its obligations under the APA. We may wonder if there is any value in submitting comments to an agency if rulemaking consists of little more than decree by fiat.
Committee chairman John Thune (R-SD) opened questioning in a senate review of FCC procedures this week by asking if Wheeler plans to follow "tradition" and resign as soon as Obama is out. Wheeler was noncommittal but said, "I understand the point you're making." Wheeler may not be the only one donning a corporate parachute. Members of the House Subcommittee on Communications and Technology (Committee) issued a letter last October requesting that the Government Accountability Office (GAO) conduct an audit of the FCC's Enforcement Bureau indicating dissatisfaction with what some have called the overly aggressive stance of FCC Enforcement Chief, Travis Leblanc. The GAO audit would focus exclusively on the Bureau and address its backlog of consumer complaints, its output and performance metrics, it's reliance on questionable enforcement actions, and recent management decisions.
Harold Furchtgott-Roth has more at Forbes.com.
Captured Agency: How the Federal Communications Commission Is Dominated by the Industries It Presumably Regulates By Norm Alster, Published by: Edmond J. Safra Center for Ethics, Harvard University, 124 Mount Auburn Street, Suite 520N, Cambridge, MA 02138.
Captured agencies are essentially controlled by the industries they are supposed to regulate. According to the report, "The Federal Communications Commission sits at the heart of a bipartisan Washington web of institutional corruption that has for many years championed corporate interests, typically at public expense."
"As a captured agency, the FCC is a prime example of institutional corruption. Officials in such institutions do not need to receive envelopes bulging with cash. But even their most well-intentioned efforts are often overwhelmed by a system that favors powerful private influences, typically at the expense of public interest."
"The General Accounting Office (GAO) has issued several reports citing fraud, waste and mismanagement, along with inadequate FCC oversight..." Bribery, kickbacks, downloading porn, grandstanding for headlines, power-grabbing, concealing evidence and research, and false documentation... "the scope of fraud has been impressive." The best ally of the FCC may be public ignorance, according to this researcher.
From ignoring wireless health concerns, to championing the continual misadministration of federal handouts, to issuing fines for bogus infractions, the FCC leads the way in corrupt, captured agencies. "In recent Congressional testimony, an FCC official reminded legislators that the FCC has over the years been a budget-balancing revenue-making force." (Testimony of Jon Wilkins, Managing Director, Federal Communications Commission, Before the Committee on Energy and Commerce, Subcommittee on Communications and Technology, U.S. House of Representatives, March 4, 2015.)
"Indeed, former Chairman Newton Minow, enduringly famous for his 1961 description of television as a vast wasteland, recalls that industry manipulation of regulators was an issue even back then." Newton stated: "When I arrived, the FCC and the communications industry were both regarded as cesspools. Part of my job was to try to clean it up." Researchers found, "Where there is institutional corruption, there are often underlying dependencies that undermine the autonomy and integrity of that institution. Such is the case with the FCC and its broader network of institutional corruption." The Harvard Ethics report concludes: "More than 50 years later, the mess continues to pile up."
Speaking of the too cozy relationship between cell providers and the FCC enforcement bureau, according to Microwave News, "David Dombrowski of the FCC's Enforcement Bureau in Philadelphia wrote to Janet Newton of the EMR Policy Institute asking about operator responses to the toll-free numbers. She then sent him recordings, which the Institute had made from calls to AT&T, Metro PCS, Sprint, T-Mobile and Verizon. "That was the last I heard from him," Newton said. When contacted by Microwave News, Dombrowski wrote back that he could not comment because he was not authorized to speak to the media." Following the EMR Policy Institute's expose' on Dombrowski's lackluster performance in protecting the public from the dangers of RF radiation, Congress wrote the FCC, urging them to vigorously enforce the laws concerning RF radiation exposure limits. In 2014, Deputy Director Bill Davenport of the FCC arranged a $50,000 consent decree with Verizon, regarding its RF safety practices. It's a small but significant step in the right direction and more work needs to be done. Unfortunately, with 11 field offices closing, and 44 field agents fired, that important work may have to take a back seat to other priorities, like regulating the Internet.
The Institute's Deb Carney wants the FCC to get tough with the industry. "The problem is that the FCC is colluding with the cell phone carriers and the result is lax enforcement," she said. Read the well-documented article that reveals the revolving door of lobbyist-to-public-policy hypocrisy, tasked with the (lack of) oversight of your health and safety and the (lack of) privacy of your personal communications.
The FCC Is a Symbol for a Corrupt, Broken American Government, according to Ben Collins at Esquire. "The speed of your Internet -as long as you're receiving it- doesn't really matter. That's not what matters. What matters is that there is a protected class at the top that has won immunity and permanent wealth and power by turning its influence into money and jobs and kickbacks and cheating the average consumer in the process. The Chairman of the FCC is the former head of the cable lobby. The head of lobbying at Comcast is a former FCC Commissioner." The Internet wasn't broken. Competition was vigorous. Investment was robust. The problem with the Internet was simply that government was no longer in control of the marketplace of ideas and to various corrupt leaders, that was a problem. No longer were the 'big 3' spoon-feeding the American public. Suddenly there was a gigantic, free, influential, plethora of uncontrolled information that the public had tapped into as an alternate to mainstream, corporate and government controlled media.
As former FCC Commissioner Robert M. McDowell pointed out, consumers stand to gain nothing by having increased FCC oversight of the internet. McDowell observed: "In refreshingly honest congressional testimony, Columbia Law Professor Tim Wu has crystalized the net neutrality movement's goal: 'FCC oversight of the Internet.' His simple statement acts as a dog whistle to regulators, telling them to sweep everything about the Internet under the government-controlled net neutrality umbrella - technical operations, business decisions, content and speech. State manipulation of the Net would shape "not merely economic policy, not merely competition policy, but also media policy, social policy" and "oversight of the political process," according to Columbia Law Professor Wu's testimony. Current regulations simply do not "capture" the Net the way more government powers would through powerful new rules, according to the Professor. Inviting regulators into your neighborhood is likely to embolden them to control not only your neighbor but you, too."
Why the government should never control the Internet, by former FCC Commissioner Robert McDowell, Washington Post, July 2014.
Watch Prof. Wu's testimony at 47 minutes and 30 seconds, here.
Following the FCC Order 'closing' eleven field offices and eliminating 44 positions in July, 2015, some of our readers may be surprised to find out that many of the 'closed' FCC field offices are still open, and the remaining FCC staffers have no idea when their doors will be shuttered. According to FCC personnel, field office staffers have still not been told when their offices will close and when they may be losing their jobs. Seven months later, they're still there and still anxiously awaiting news... An expensive consulting report revealed a number of compelling reasons for closing the field offices. You can read the executive summary here and read the affidavit of George F. Arsics, Watch Officer at the FCC monitoring station, Powder Springs, for more information.
Read the full $845,000 Censeo/OceanEast consulting report here.
Senate Commerce Committee chairman John Thune (R-S.D.) plans to introduce a bill in the next few days, the FCC Reauthorization Act of 2016, to do what its name suggests. Authorization bills establish, or reestablish as in this case, a federal agency, including the terms under which it operates and how funds may be spent. As a result, it will very likely be a vehicle for much needed FCC reform.
It's spectrum auction time again and the FCC holds the gavel. Unfortunately, there are ample reasons to doubt the FCC's management competency. The last spectrum auction was an utter debacle. Rather than give all bidders an equal shot at the available spectrum, the FCC set aside a portion of the best spectrum for smaller wireless carriers. Marx and Lenin would have been proud of the FCC's intent, but the auction didn't live up to the commission's idealistic aspirations as an arbiter of social engineering. DISH Network (which definitely didn't qualify as a "smaller wireless carrier"), created "designated entities" to snap up the small business spectrum. That discounted spectrum was then channeled back to DISH. The incident illustrates the pitfalls of government intrusion into what should be private transactions.
One of the voices of clarity at the FCC, Commissioner Mike O'Rielly, says the free market is "under continuous assault domestically by self-defined progressives and ultra-liberals, who have found sport in using misguided rhetoric and false pretenses to denigrate one of the core tenets of American society. They demonize company executives, decry profits and income, promote class warfare and push policy positions favoring government-provided services over private sector solutions. Beyond being disingenuous and inflammatory, these views completely ignore the extraordinary benefits that the American capitalistic system brings to communications services."
O'Rielly is correct. The grabbing hand model asserts that individuals working in the public sector act in their own self-interest, just like anyone else. Politicians often exploit special interests (or special interests appoint representatives to act on their behalf). The grabbing hand is an activist interest in reforming government, although The political model that underlies the grabbing hand approach recognizes that dictators use their powers to keep themselves in office, to direct resources to political supporters, to destroy political challengers, and to enrich themselves, often at the expense of the public.
Democracies often generate incentives that make politicians more sensitive to public welfare, in part because they need to be re-elected, but democratically elected politicians typically do not maximize social welfare. In particular, the winning majorities in democracies often pursue highly wasteful policies of redistribution from their losing minorities. In contrast to the career politician, when people become entrepreneurs, they improve the technology in the line of business they pursue (i.e., they create wealth). Conversely, when people become bureaucrats, most of their private returns come from redistributing wealth from others. Such is the case at the FCC.
"Time spent redistributing wealth has two adverse consequences for growth: First, redistribution does not create wealth. Second, redistribution lowers the returns of wealth creation, so that talented people substitute time away from wealth-creating activities. The redistribution of wealth and grabbing hand practices of the Obama administration, as filtered through Wheeler's FCC, have created an atmosphere of distrust, depressed innovation, discouraged entrepreneurism, and have created an unneccessary class and color divide, based on the politics of blame and political correctness to the detriment of the nation as a whole."
This time around, the FCC needs to make sure that the allocated spectrum is acquired fairly and without bias. The FCC's ham-handed response to Congress' demand that they free more spectrum for wireless use is energetic, but it still leaves government assuming responsibility for a huge portion of a process that would be much smoother if the spectrum buyers and sellers were free to deal with each other directly in a free market. Hopefully, the FCC will learn from past mistakes and work to cultivate a wireless industry marked by robust competition and innovation. We can dream can't we?
Explore the issue further with Erik Telford, president of the Franklin Center for Government and Public Integrity and the FCC's Commissioner Michael O'Rielly with thanks to Andrei Shleifer, Robert Vishny, and David Andolfatto
The House Communications Subcommittee plans to hold an FCC oversight hearing March 22 and wants all the commissioners to testify, the committee said Friday. That hearing will happen fewer than three weeks after the Senate Commerce Committee holds its FCC oversight hearing with all the commissioners. "The upcoming hearing with the FCC Commissioners will allow the committee to continue to exercise its critical oversight responsibilities over the FCC and to ask the hard questions," according to the committee chairman.
"Reams of paper have been spent on litigation. Mountains more have been built counseling ISPs on the new requirements," FCC Commissioner Pai said, speaking at the Heritage Foundation, "And there are even stacks and stacks of paper that have been filed responding to the agency's Paperwork Reduction Act analysis. All this has been a gift to the legal profession. But for most Americans, the marriage has been a dud." Pai noted decreasing investment, slowing broadband deployment, discouragement of permissionless innovation, and injection of uncertainty into the marketplace. The U.S. Court of Appeals for the District of Columbia, heard oral arguments in the legal challenge to Title II based regulations on Dec. 7 and should be rendering a decision soon.
This year's Presidential candidates, Senators Marco Rubio (FL), Ted Cruz (TX) and Rand Paul (KY) signed on to a bill spearheaded by Sen. Mike Lee (UT), John Cornyn (TX), Tom Cotton (AR), Benjamin Sasse (NE) and Thom Tillis (NC).
The bill is designed to nullify Net Neutralization and prevent any future reclassification of Internet access as a telecommunications service subject to Title II. "The rule adopted by the Federal Communications Commission ... on Feb. 26, 2015 (relating to broadband Internet access service) shall have no force or effect, and the Commission may not reissue such rule in substantially the same form, or issue a new rule that is substantially the same as such rule, unless the reissued or new rule is specifically authorized by a law enacted after the date of enactment of this Act." Read the bill here.
Federal Communications Commissioner Michael O'Rielly has accused Chairman Tom Wheeler of unevenly applying rules for the disclosure of nonpublic information, saying Wheeler and high-level staff often release such information but commissioners aren't allowed to do the same. "It is common sense that, if the Commission wants the strongest and most defensible items, it needs to talk to the outside world, including interested and affected parties. This simple principle is embodied in the Administrative Procedure Act notice and comment rulemaking process."
O'Rielly stated, "The Chairman or high-level staff working on proceedings - routinely puts out blogs and fact sheets to put its 'spin' on the substance around the time when items are circulated to Commissioners for consideration. While some of these documents are nonspecific, others provide details about some of the draft proposals or decisions. As such, they represent and contain nonpublic information.
Specifically, the Commission staff, presumably at the behest of the Chairman, is conducting private briefings for select members of the press and favored outside parties. The Chairman, the Commission's media relations team and select staff are not only allowed to openly discuss items, but also post blogs, tweet, issue fact sheets, brief the press, and inform favored outside parties about their content. O'Rielly asserts "the uneven application of a rule preventing disclosure, serves as a roadblock to effective public participation and ultimately damages the FCC's credibility as an agency."
O'Rielly asks, "How can Commission staff hold such briefings on circulated but not approved and released items? How is nonpublic information not being disclosed? More importantly, why are Commissioners precluded from discussing the same?" Finally, O'Rielly posits, "If this behavior is actually authorized by the Chairman, let's see the official documents permitting it. Where are the letters from the Chairman that covered each and every release of such information at the time? While I suspect these letters don't exist, I am always happy to be proven wrong." Read more from FCC Commissioner Mike O'Rielly
AT&T's VP of federal regulatory Caroline Van Wie says the FCC appears to be "selectively suppressing the free flow of information to impede public debate on the merits of increased special access regulation," information AT&T says shows the marketplace is competitive and "heavy-handed, monopoly-era regulation" is unnecessary. An FCC spokesperson declined to comment on ATT&T's allegations. John Eggerton has more.
Local PBS stations could pull in hundreds of millions of dollars this year by selling their airwaves to the federal government, raising worries that pockets of the U.S. could lose their access to "Downton Abbey," "Sesame Street" and other free PBS broadcasts. PBS estimates that about 20% of its prime-time viewers watch over-the-air broadcasts. Its supporters are especially worried about access to commercial-free children's programming, including such popular educational shows as Sesame Street and Super Why!. PBS says children 2 to 8 years old watch PBS three times as much as they watch other broadcast channels. A spokesman for the FCC said the agency will address any service losses in any such communities on a case-by- case basis, and could designate a new channel for noncommercial use in those markets. Read more
ACA took the FCC to task for its absurd, unconstitutionally broad, impermissibly vague and profoundly unworkable interpretation of the TCPA. ACA and the other petitioners also argue in the joint reply brief that the FCC's position threatens callers' constitutional rights to free speech by holding callers strictly liable for their speech. The petitioners draw to the circuit court's attention that the FCC did not even bother to address the concern initially raised in the petitioners' opening brief that the ATDS restrictions are not narrowly tailored and that strict liability for calling reassigned numbers impermissibly chills speech. Link
Ajit Pai, who was appointed to the FCC in 2012, has consistently opposed the agency's efforts to impose more restrictions on speech. The commission ruled last year that the First Amendment did not apply to Internet service providers, a precedent that Pai and others pointed out could lead to more regulations on speech, particularly on websites.
"It is conceivable to me to see the government saying, 'We think [a particular website] is having a disproportionate effect..." Pai noted shortly after the ruling. "The FCC doesn't have the ability to regulate anything he says, and we want to start tamping down on websites like that." Link
Calling the chairman "willfully oblivious" to the changing TV marketplace, Powell pointed to Netflix, Amazon, HBO Now, and Roku, and said that cable content can already be watched on iPhones, iPads, Xboxes, Smart TV's and more.
"Wheeler's proposal reaches backward to breathe new life into the market for more boxes, using a pre-Internet, 20-year-old law minted in a time far, far before "House of Cards," binge watching, YouTube and smartphones. This rear-view-mirror regulation is the wrong vision for the video future, and one should be surprised and alarmed that the FCC is peddling it," he said. Powell also highlighted the proposal's blow to customers, saying it benefits well-heeled tech companies, not consumers. Powell also took aim at Google, which lobbied heavily on the issue. "The FCC also hands over access to valuable set-top box data to the likes of Google," he says. "This all allows these tech giants to profit handsomely off the intellectual property of others without sharing any of that cash (or prized big data) with the people who created it." Read more here.
Ranking member of the Senate Commerce Committee Bill Nelson (D-Fla.) registered concerns about FCC Chairman Tom Wheeler's set-top box proposal. Nelson advised the FCC to take a "measured approach" to any rulemaking Nelson told Wheeler that the commission should avoid taking "any action that could threaten the "vibrant" video programming market. Nelson ticked off ways the proceeding could go off track to the detriment of the video marketplace. Nelson says he supports the objective of enabling competition, but he warned Wheeler that the FCC "should not proceed down a path to rules that fails to fully account for today's pay TV viewing landscape." He also said the FCC should not allow third parties to do more with programming content than "has been done through negotiated arrangements between content owners and their partners." John Eggerton has more.
"Since 2011, it appears that the Commission has applied inconsistent definitions and analyses in making determinations. This behavior concerns us." The oversight committee further stated "This represents the latest in [a] series of troubling actions that distort - or outright ignore - the FCC's requirements to produce honest, data-driven reports to inform policymakers and the public." The Congressional oversight committee said it would hold a hearing about FCC processes in March, 2016, though they did not specify at this time, what the agenda would be. An FCC representative said the agency had received the letter and is in the process of reviewing it.
1. Congress should pass legislation that declares broadband is an information service not subject to common-carrier regulation. The legislation should also give statutory permanence to strong network-neutrality guarantees along the lines of the FCC's 2010 open Internet order. Such a bill allows both network-neutrality proponents and the proponents of light-touch regulation of broadband to achieve their major legislative objectives, and puts to rest the longest standing and most contentious telecommunications debate of the 21st century. It would also remove the uncertainty about future broadband regulation, which is restraining broadband investment.
2. Congress should recognize in legislation the advanced nature of the Internet- protocol transition and set a date, perhaps 2020, for the sunset of the old legacy copper network. Every dollar that telephone companies are required by law to expend today maintaining the copper network is a dollar not expended on fiber optics and other advanced 21st century telecommunications infrastructures.
3. Another legislative provision should create incentives for government agencies to surrender telecommunications spectrum for auction to commercial wireless carriers. Simply stated, government agencies should be offered a share of the auction proceeds in exchange for a surrender of the spectrum they hold. That approach appears to be working in the case of television broadcasters, and there's every reason to believe it would work well for government agencies. In my mind, that's the best approach to getting large allocations of spectrum onto the commercial auction block quickly to meet the growing demand for spectrum for mobile data.
4. Congress should also adopt a Bill of Rights for privacy for Internet users with jurisdiction in the Federal Trade Commission over all telecommunications privacy issues. Giving Internet users greater assurance that their privacy is protected should result in a greater willingness to use the Internet for commercial purposes.
Author: Rick Boucher, honorary co-chairman of the Internet Innovation Alliance and former U.S. House of Representatives member for Virginia from 1983 to 2011, serving as chairman of the Subcommittee on Communications, Technology and the Internet.
President Obama and the Democratic Party have completely excluded the African-American community when it comes to economic inclusion, Byron Allen said in a statement. "Everyone talks about diversity, but diversity in Hollywood and the media starts with ownership. African-Americans don't need handouts and donations; we can hire ourselves if white corporate America does business with us in a fair and equitable way. A driving purpose of the Federal Communications Act and the First Amendment is to ensure the widest possible dissemination of information from diverse sources," the lawsuit indicates. "Yet the FCC has done nothing to protect the voices of African-American-owned media companies in the face of increased media consolidation," it adds. "Instead, the FCC works hand-in-hand with these merging television distribution companies to enable and facilitate their Civil Rights violations. The FCC's apparent standard operating procedure is to obtain and accept sham diversity commitments from merger applicants, in excess of its statutory duties." The suit continues with further allegations of civil rights violations.
The Federal Communications Commission might be deliberately withholding public records, according to a report released this week. "The agency either misunderstands how to use redactions, raising concerns of competency, or the agency intentionally misuses redactions, raising concerns of integrity," according to the report. "Given the numerous examples in which the FCC improperly redacts information, this may be a deliberate tactic to withhold information from the public." About a quarter of the report was dedicated to side-by-side comparisons of FCC documents, which were redacted when sent to journalists but provided in full to the committee. In reaction to the report, the House passed legislation that would create the most sweeping reforms to federal open records laws in nearly a decade. Approved by voice vote, the measure would limit exemptions under the Freedom of Information Act (FOIA) that now allow federal agencies to hold back information.
"The Telecommunications Act of 1996 was to provide a "deregulatory framework" for increasing competition and to "accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans." Yet, in the two decades following passage of the Act, the promise of deregulation has been replaced by re-regulation and the imposition of 1930s public utility-style regulations. Instead of competition, FCC regulations work to re-concentrate the industry. There are no consumer benefits from increasing market concentration and reducing competition. Consumers would see more benefits from a faster Internet services and from a more competitive market. Concentration by regulation is not the answer."
The consequences of the Chairman Wheeler's proposal to eliminate broadcast exclusivity rules would have negative consequences for Latinos. Almost 60 million Americans - 41 percent of whom are minorities - who depend on free, broadcast television, would lose access to many local TV stations, including their treasured local news. Importantly, Latinos who rely on Spanish-language broadcast television already have few options when they want to get their news in Spanish. Eliminating exclusivity rules would cause more Spanish-focused stations around the country to close, leading to even fewer options for a community with comparatively fewer options already. We hope the FCC understands the negative consequences Chairman Wheeler's proposal to eliminate long-standing broadcast exclusivity rules would have on Latino and low-income families around the country who depend on local broadcast television. How is denying vital information to the public honoring the FCC's commitment to empowering broadcasters to serve their local communities?
House of Representatives Committee on Oversight and Reform:
"The FCC's tendency to over-redact makes it difficult for requesters to understand what the agency has provided them, and consequently,to make follow up requests. For example, in response to a request from Vice News reporter Jason Leopold, the FCC withheld 1,900 pages in their entirety under exemption five. These redactions demonstrate a lack of responsiveness to the public's right for information. The agency either misunderstands how to use redactions, raising concerns of competency, or the agency intentionally misuses redactions, raising concerns of integrity. Given the numerous examples in which the FCC improperly redacts information, this may be a deliberate tactic to withhold information from the public."
Representative King has again asked the FCC to 'do something' about the jamming of public service, amateur service, and FM piracy in New York. Mr. King says the ringleader is located in Astoria Queens, and that the Enforcement Bureau is well of aware of who he is. [link] King, backed by the ARRL, who boast a membership of almost 20% of amateur radio operators in the U.S., states that this interference has been allowed to continue for too long. King is one of over 100 legislators who have sponsored legislation to overturn private property rights, using the notion that there is a federal interest in allowing amateurs to operate from their residences, despite the fact that the FCC has determined this is not the case, and despite the fact that amateur operators signed private agreements stating they would refrain from operating at their residences.
In a recent and related development, an $18,000 forfeiture levied on March 12, 2014, was dismissed on January 15, 2015, by the U.S. Attorney in Pittsburgh, tasked with proving the FCC's case. This may be a record for the speedy dismissal of an FCC action. The FCC was unable to inspect Nate Johnson's CB station and Johnson allegedly ignored the FCC's warnings, prohibitions, and citations. The Department of Justice was unable to locate the CB operator, resulting in dismissal of the forfeiture, which was approved by Northeast Regional Director Mike Moffitt and assessed by David Dombrowski, whose Langhorne, PA office will be closed shortly, per an FCC Order published in July, 2015.
For his part, Mr. Wheeler has said the FCC doesn't have the time, money, equipment, or resources necessary to attack the pirates [link] , which pursuit Travis LeBlanc likens to playing whac-a-mole [link] . However, it would be very difficult to apprehend pirates in the northeast, when the FCC's Northeast Regional Director has expressly directed his employees to avoid enforcement actions against pirates, according to FCC Commissioner Pai: "Indeed, a whistleblower within the Enforcement Bureau gave me an October 28, 2014 email from the Bureau's Northeast Regional Director [George 'Mike' Moffitt] to field agents that included the following instructions: "We are scaling back on our response to pirate operations. Barring interference to a safety service, pirates should NOT be given a high priority (If there's interference to a safety service, it's not a 'pirate case' but instead a 'safety case.')" The email went on to state that "[w]e will NOT be issuing NALs to the majority of pirate operators." Pai concluded, "This is powerful evidence of the FCC's misguided enforcement priorities."
Pai also stated, "Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we're chasing press. Over the last couple of years, I've received many complaints about the Enforcement Bureau. For example, some allege that the Bureau engages in selective prosecution, targeting disfavored companies while letting favored companies off the hook. Others maintain that the Bureau conducts abusive and frivolous investigations." [Link].
Meanwhile Pirate Watcher, John Anderson of DIYMEDIA says, "Everybody involved in this little corner of the media policy world is a paper tiger: the enforcement organization and agents themselves, the industry lobbyists who are trying to blow the notion of pirate radio out of all proportion to reality, and the Commissioners who've picked up the industry's crusade for the purposes of making some political hay. None have suggested a meaningful or constructive path away from the status quo - which is all the better for the pirates, who will continue to flourish in spectrum-crevices long considered unserviceable by their licensed bretheren."
The federal government has joined the ranks of the bottom-of-the-barrel industries, according to a new survey from the American Customer Satisfaction Index. Americans' satisfaction level in dealing with federal agencies -- everything from the IRS to the FCC -- has fallen for a third consecutive year, reaching an eight-year low.
FCC commissioner Ajit Pai said the partisan rancor at the FCC over the past year-plus has been unprecedented in scope. He said that on enforcement matters, there have been more party line votes in the last 14 months than in the previous 43 years. "The FCC [is] micromanaging all kinds of business plans and hauling in companies to flyspeck whatever innovative service offerings they might choose to put out into the marketplace" according to Mr. Pai. He called that the "very definition" of regulatory uncertainty, suggesting the FCC's answers changed in the political winds. Pai called the FCC's recent conclusion that wired (and earlier, wireless) broadband was not being deployed in a reasonable and timely fashion "the ultimate in kabuki theater" and just the latest of an ongoing "shifting of the goalposts" depending on what the policy goal du jour may be. Commissioner Pai said FCC actions are not appropriate, and in fact are arbitrary and capricious, which is the legal test for an illegal agency action, and such actions are a "discredit' to the agency. John Eggerton has more.
Congressional leaders say the proposed "No Rate Regulation of Broadband Internet Access Act" (HR 2666) would codify FCC Chairman Tom Wheeler's promises to refrain from regulating rates that broadband providers charge. Last year, the FCC reclassified broadband access as a utility service, which empowers the agency to set rates. Wheeler has said the FCC won't do so, but the congressional leadership has said a law is needed, because any future FCC chairman could break Wheeler's promise. Subcommittee Chairman Greg Walden (R-Oregon) said that the bill will require "future chairmen to live by the commitments this administration has made as to how the sweeping authority the FCC granted itself is to be used." Congresspersons Anna Eshoo, Frank Pallone, and Rick Boucher, all agree that the FCC should not be in the business of regulating rates.
Currently, the FCC faces court challenges from Internet providers, questioning the regulator's authority to oversee how Internet service is provided to consumers in 2015's Internet takevoer. The FCC is also facing questions about why it has not extended an exemption to transparency guidelines for small Internet providers. The regulations overburden small companies - who serve 21 million Americans in small or rural towns across the country - one company head told lawmakers from a subcommittee of the House Energy and Commerce Committee.
Commerce Committee Eshoo, Pallone, Boucher, agree.
PBS, CPB and APTS tried to convince the FCC to revise its auction rules to set aside spectrum for noncommercial educational television use in every market. The FCC declined that request. Consumer advocates say, "For viewers that are both minorities and public TV viewers, the impact could be devastating" because minorities are the largest viewers of over the air public tv in the areas participating in the auction.
Despite the chance they may leave their viewers in the dark, Spanish Broadcasting System (SBSA) today announced its participation in the FCC's Television Spectrum Incentive Auction with its Miami and Houston Television stations. WSBS-CD Channel 50, and Houston television station, KTBU - Channel 42, to potentially generate cash proceeds that are expected to be created by the auction process.
Participating TV stations will auction their spectrum to the FCC, who will re-auction that spectrum to broadband providers. Stations can either sell all of their spectrum and go off the air, or give up spectrum and share a channel with another station. Noncommercial and commercial stations may also share channels. In the auction, stations on UHF channels have the option of giving up their spectrum and moving to a VHF channel. Stations on high-VHF channels can give up spectrum and move to low VHF, but high VHF channels are less susceptible to interference from other stations, making low-VHF channels less desirable. A broadcaster would stand to earn the most money by giving up all spectrum assigned to its station. Market activity will determine how much the other options will yield.
Speculators are already paying some participating stations up front in exchange for a share of their actual auction payout. At least two public broadcasters have cut deals with spectrum speculators. Connecticut Public Broadcasting will relinquish the spectrum assigned to WEDW-TV in Bridgeport, one of four stations in its statewide network, to spectrum speculator LocusPoint Networks. Northern Michigan University in Marquette and Central Michigan University in Mount Pleasant are now both part of the auction. WNMU's general manager says they are doing it to answer a valuable question, how much the spectrum is worth, according to 9and10news.com, and if the auction ends with the decision to shut down all five of the university's stations (located in Flint, Mt. Pleasant, Alpena, Cadillac and Manistee), the university could generate $726 million, leaving over the air viewers in the dark for content they currently enjoy for free.
LocusPoint also struck an agreement with KCSM-TV in San Mateo, Calif., to subsidize the financially strapped station for nearly $1 million a year until its spectrum could be auctioned off. LocusPoint will share proceeds from the auction with licensee San Mateo Community College District. Stations are free to say whether they are participating but most are choosing not to. About 90 percent of public TV stations have taken part in spectrum auction webinars to find out more about the reverse auction. In San Bernardino, Public TV station KVCR has also entered the auction to sell airwaves. Several university licensees of public broadcasting stations are considering participating in the auction: Howard University in Washington, D.C. (WHUT); the University of South Florida in Tampa (WUSF); and Bowling Green State University, in Bowling Green, Ohio (WBGU).
The corporation for public broadcasting (CPB) is encouraging pubcasters to be transparent about their deliberations and to get community input before making decisions. Howard University asked for online comments in November. In December, 2015, three more university licensees voted to consider auction options: WKAR in East Lansing, Mich.; WDCQ, University Center, Mich.; and KNCT, Killeen, Texas. WHUT will also participate, as will WIPB in Muncie, Indiana. In the NY/ NJ area, stations could make from 500-800 million for their spectrum, which will be re-auctioned to broadband providers. Some areas in the U.S. are served by just one public TV station. If those licensees choose to relinquish spectrum, their local viewers could lose access to free, over-the-air (OTA) noncommercial TV signals. At least 21 larger markets are served by just one public TV licensee, according to CPB, including San Diego, Detroit, Dallas and Portland, Oregon.
Text messenging to cellular phones without express prior consent is a violation of FCC rules. "The FCC's recent action clarifying TCPA has helped highlight the need to use an intelligent combination of methods to reach parents," said SchoolMessenger's Senior Vice President Nate Brogan. "Schools have to be prepared to quickly and efficiently handle recipient consent and preferences, and both we and the districts we work with have a wealth of experience to share in these areas." Participants in a webinar about the TCPA will receive a white paper detailing best practices, and information about other new notification system tools to aid them in both improving TCPA compliance and effective communications. To register for the February 3 webinar, visit http://www.schoolmessenger.com/TCPAwebinar.
Minorities and Others May Lose Public TV in Reverse Auction
Schools Failing to Comply with Telephone Calling Protection Act Risk Large FCC Fines
Controversy persists into 2016 as the FCC continues to rely on large fines as its primary enforcement mechanism, to the irritation of individuals, wireless industry groups and telecommunications companies - not to mention two-fifths of the FCC Commissioners. In the past year, the FCC proposed a $100 million fine against AT&T for failing to clarify what they call a thrice-clarified policy. "In the end, this case is really just a regulatory bait and switch," Pai said his statement. "A once-approved network management practice is now out of favor and carries with it a $100 million penalty." There was also a $105 million fine against Sprint for allegedly placing unauthorized charges on subscriber bills and various penalties for hotel companies that block Wi-Fi hotspots, on their own properties, using FCC approved equipment. Meanwhile, WDBJ was fined $325,000 for briefly showing a hand-job in the bottom corner of the screen during their evening news broadcast. WDBJ says it was unintentional and an incomplete gesture, but the FCC demands satisfaction. In response to many of the Enforcement Bureau's fines since 2014, FCC Commissioner Ajit Pai states: "To be blunt, the FCC's enforcement process has gone off the rails. Instead of dispensing justice by applying the law to the facts, the Commission has focused on issuing headline-grabbing fines, regardless of the legality of its actions." Congress asked the FCC to clarify why fines remain uncollected, and in answer, Enforcement Chief Travis LeBlanc said the FCC has collected upwards of 98 million in fines this year, but none of the roughly $235 million in fines that the FCC proposed in those headline-grabbing, phone-subsidy, jamming, and AT&T-throttling cases have yet made it to the government's coffers, leading to questions about LeBlanc's definition of terms like "enforcement" and "collection."
In 2013, the agency trumpeted, "Today's actions constitute the most recent step in the Commission's significant efforts to root out waste, fraud, and abuse in the Lifeline program and preserve the overall integrity of the Universal Service Fund (USF)" but the FCC has yet to officially impose the penalty on those companies -- and several are still deemed eligible to receive FCC reimbursements for phone subsidies, according to data from the Universal Service Administrative Company, which runs Lifeline. FCC Commissioner Pai says LeBlanc's numbers cannot be true, challenging the enforcement bureau to list all of their fines individually, along with their status, whether collected or not, and if collected, what percentage of each individual fine was collected, and when. Pai says he has asked for those numbers repeatedly, and that he has been consistently denied answers. Pai famously stated, "I cannot help but observe that it is a good thing for the Enforcement Bureau that it cannot be fined for making misleading statements." Pai also said fine amounts seem to be "plucked from thin air... Congress never intended the FCC to assert that a company has violated never-adopted rules, to ignore facts that get in the way of good press, or to calculate potential forfeitures so implausibly large that any rough justice penalty will do."
Not to be outdone, FCC Commissioner Michael O'Rielly said he requested the same data LeBlanc apparently had access to, a mere 5 months prior to LeBlanc's assertions, but the data was completely unavailable to him, and he was told that the FCC does not even keep track of such data because the FCC considers an "enforcement action" complete upon publication of a forfeiture order, and not on collection of a forfeiture, which is in the purview of the federal court, not in the FCC's purview - unless an entity deigns to make voluntarily payments for alleged violations.
Commissioners Pai and O'Rielly have repeatedly complained they're the last to know when anything meaningful is about to happen at the FCC. Meanwhile, a whistle-blower has supplied an email, allegedly from recently demoted, Northeast Regional Director, G. Michael Moffitt, indicating that the FCC would not be taking action against FM Pirates, despite the express wishes of a number of Congressmen, which some are calling prima facie evidence of selective enforcement, which is a major league departure from the requirements of the Administrative Procedure Act. Eleven field offices are closing. Displaced and/or fired employees are furious. Document leaks and internal deliberations have been posted online. The Appellate court is considering arguments opposing the FCC's Title II takeover of the Internet, which they call Net Neutrality, while Wall Street reports a 12% drop in broadband investment, as a result of the order. Prior to the Thanksgiving Holiday in 2015, Congressional leaders decided to call for a GAO investigation of the FCC's enforcement bureau, and two of the five FCC Commissioners agreed with that decision. Stay tuned for an interesting New Year!
"I cannot help but observe that it is a good thing for the Enforcement Bureau that it cannot be fined for making misleading statements."
Last month, I told the Subcommittee on Communications and Technology of the House Energy and Commerce Committee that the FCC's enforcement process had gone off the rails. It gave me no pleasure to say this. During my time working in the Office of General Counsel and as a Commissioner, I've had a positive and productive relationship with the Enforcement Bureau. The Bureau is filled with talented and dedicated staff. And its mission is critically important. But given all that has happened over the last couple of years, the inescapable conclusion is that things have gone seriously awry. And this isn't my view alone. My office has heard expressions of concern from widely respected members of the bar, Capitol Hill, staff in other Bureaus and Offices at the Commission, and even numerous people within the Enforcement Bureau itself. To cure the problem, we have to accurately diagnose what exactly has gone wrong. From my perspective, there are three main issues.
First, instead of applying the law to the facts, the Commission's enforcement process has shifted to issuing headline-grabbing fines regardless of the law.
Under the leadership of Acting Chairwoman Clyburn, Chairman Genachowski, Acting Chairman Copps, and Chairman Martin, there was not a single party-line vote on a Notice of Apparent Liability (NAL) or forfeiture order. Let me put that another way. For nearly a decade, there were no party-line votes at all on these matters. Indeed, all I could find were two items from 2004 and one from way back in 1963. This history makes it all the more remarkable we've had nine party-line votes at the FCC on NALs and forfeiture orders in the last 14 months. Why? Why is there suddenly so much discord at the Commission on enforcement matters? The answer is simple. Instead of maintaining the sober, "just the facts, ma'am" enforcement approach embodied by Dragnet's Joe Friday, our main goal now seems to be keeping up with the Kardashians when it comes to press coverage. I'll just say this: The litigation mess to come didn't have to be.
Second, the FCC's current enforcement process sets the wrong priorities and is less productive than it used to be.
Some have tried to frame any criticism in this area as reflecting opposition to any strong enforcement. Indeed, in response to my criticisms at last month's congressional hearing, it was said that the FCC under Chairman Martin had issued far more NALs and forfeiture orders than it has recently. Now, it turns out that this is right. For example, in 2007 under Chairman Martin, the seventh year of the Bush Administration, the Commission issued 106 NALs and 89 forfeiture orders. And with one month left in 2015, the seventh year of the Obama Administration, the Commission has issued only 22 NALs and 44 forfeiture orders. But these statistics indict, not acquit, the FCC's current enforcement process. With visions of New York Times headlines dancing in its head, the FCC currently has little interest in doing bread-and-butter enforcement work. This became clear to me during the Commission's consideration of the Enforcement Bureau's field reorganization plan.
Indeed, a whistleblower within the Enforcement Bureau gave me an October 28, 2014 email from the Bureau's [recently demoted] Northeast Regional Director to [recently eliminated] field agents that included the following instructions: "We are scaling back on our response to pirate operations. Barring interference to a safety service, pirates should NOT be given a high priority (If there's interference to a safety service, it's not a 'pirate case' but instead a 'safety case.')" The email went on to state that "[w]e will NOT be issuing NALs to the majority of pirate operators."
This is powerful evidence of the FCC's misguided enforcement priorities. Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we're chasing press. Instead of setting the table with meat and potatoes, we're foraging for truffles.
Third, the Enforcement Bureau is no longer accountable to FCC Commissioners.
We have reached the point at which Commissioners themselves can't oversee the enforcement process. Over the last couple of years, I've received many complaints about the Enforcement Bureau. For example, some allege that the Bureau engages in selective prosecution, targeting disfavored companies while letting favored companies off the hook. Others maintain that the Bureau conducts abusive and frivolous investigations. In order to understand for myself the Bureau's priorities and processes, I made a simple request of the Bureau on June 24: Could you please provide me a list of your open investigations? My office has followed up on this request 13 separate times. Almost half a year later, I still haven't received any information. This is astonishing.
At this point, I'm only hoping, in the spirit of soap actress Susan Lucci's battle to win an Emmy, that the nineteenth time will be the charm. When I raised this matter at a congressional oversight hearing last month, it was suggested that I wasn't entitled to this information because it pertained to law enforcement activities rather than policymaking. But this doesn't hold water. For one thing, the Enforcement Bureau sure does seem to be in the policymaking business these days. Additionally, and in any case, under the Communications Act, FCC Commissioners have the same responsibilities with respect to law enforcement that we do for policymaking.
Or, to put it another way, the Enforcement Bureau is not an independent agency within an independent agency. And if the suggestion is that information about investigations is too sensitive for FCC Commissioners to know, I'd point out that Commissioners have top-secret security clearances. In short, there's no excuse for agency leadership not to make this information available. And if the problem is actually that the leadership itself can't get this information from the Enforcement Bureau, then the FCC is confronting greater challenges than even I would have imagined!
It is only recently that the Bureau has started stonewalling. Commissioners are also kept in the dark about other important enforcement-related activities. Recently, for example, the Chief of the Enforcement Bureau and Acting Chief of the Consumer & Governmental Affairs Bureau signed a Memorandum of Understanding regarding consumer protection with the Chief of the Federal Trade Commission's Bureau of Consumer Protection. Commissioners Clyburn, Rosenworcel, O'Rielly, and I were not aware of this document, let alone shown it, until the day it was released. Yet agency leadership had been working on it for 18 months!
I am concerned that consent decrees are being used to avoid judicial and Commission scrutiny of dubious cases. Most companies are risk-averse and will reluctantly sign on the dotted line if the alternative could be virtually limitless liability or if they are repeat players at the Commission. I therefore understand why some companies have entered into consent decrees and agreed to pay penalties in cases that appear to lack merit. But we should all acknowledge that those decisions come at a price. They make it more likely that in future investigations, the law and facts will be stretched even further in a quest for favorable media coverage.
I therefore applaud the leaders of the Subcommittee on Communications and Technology of the House Energy and Commerce Committee for recently asking the Government Accountability Office to investigate the management of the Enforcement Bureau. And I hope that the GAO has more luck than I've had in getting information about Bureau operations. Currently, the Commission issues NALs even when it recognizes internally that they have serious problems. Major holes in the Commission's theory are often left unaddressed. And the Commission that issues an NAL doesn't necessarily have to follow through with a forfeiture order, which would let aggrieved parties challenge the agency in court.
Recently, POLITICO published what can only be described as a less than flattering story with the headline "FCC proposes millions in fines, collects $0." In response, the Enforcement Bureau published a blog entry attempting to rebut the article. When I read it, I was perplexed. To give just one example, it claims that the Commission has collected $98 million in fines during 2015 and that this amount accounts for 88.6% of the money owed for issued fines.
Doing the math, that would mean that there was only about $12.6 million in uncollected fines for 2015. But this cannot possibly be true.
For example, on October 21, the Commission imposed forfeitures totaling $30 million dollars on six prepaid calling card providers. As of today, that money has not been collected. Ironically, the Commission imposed that $30 million in forfeitures because it claimed that the prepaid calling card providers had violated section 201 of the Communications Act by engaging in misleading and deceptive marketing.
I cannot help but observe that it is a good thing for the Enforcement Bureau that it cannot be fined for making misleading statements.
And it is not just what the blog says that I found interesting. The agency is facing bipartisan criticism from Capitol Hill for proposing headline-grabbing fines in NALs and then, when the press coverage fades, failing to move to an order that actually imposes a fine. The blog is curiously silent on this score.
If we embrace once again the Bureau's proper mission, we will go a long way towards promoting public confidence that the Commission is focused on the facts and laboring within the law.
https://www.fcc.gov/document/commissioner-pai-plifcba-remarks
A coalition of 59 organizations on Wednesday sent a letter to U.S. Federal Communications Commission Chairman Tom Wheeler calling on him to get cracking on privacy protection rules for consumers. The groups include consumer advocates such as Consumer Watchdog and the Chicago Consumer Coalition as well as the Center for Democracy and Technology and the American Association of Law Libraries. The coalition wants Wheeler to "move forward as quickly as possible on a Notice of Proposed Rulemaking proposing strong rules to protect consumers from having their personal data collected and shared by their broadband provider without affirmative consent, or for purposes other than providing broadband Internet access service."
Seton Motley, president of Less Government, says 'Why Do We Need an FCC?' Motley says the recently approved Process Reform Act, part of the just passed omnibus bill, is ineffective. "This bill has done nothing to rein in the players," Motley said. "The FCC is supposed to be this independent, expert agency that makes decisions based on facts and numbers - but they're not." FCC Commissioners Ajit Pai and Michael O'Rielly, and a growing chorus of technology experts agree. Motley also says technological innovation is at odds with government interference. "In 20 years, nothing in the history of human endeavor has grown bigger, faster, or better than the Internet, because the government has not been involved," Motley said. "So why do we even need an FCC anymore? To paraphrase Jesse Jackson, 'End it, don't mend it.'"
James Gattuso, a senior research fellow at The Heritage Foundation, agrees. Gattusso says reforming the FCC will require more than small changes at the margins to reverse powers the FCC granted itself during the Obama administration. "The problem is the vast and ill-defined new authority the FCC has asserted." Leo Pusateri, a conservative psychologist who writes about constitutional principles and about consumer choice, says, "The broadband industry is providing unprecedented benefits to consumers now, in terms of innovation, quality, and price." He continues, "In particular, the open Internet rules are not needed and they threaten to jeopardize broadband's future growth. The situation's more complicated for broadcast, cable, and video issues, but generally the FCC should be looking toward reducing its footprint in that sector as well."
Carly Fiorina, former CEO of Hewlett Packard and current Presidential contender says, "The Federal Government has become a vast bloated powerful and corrupt bureaucracy." She said over the weekend that she could improve the economy by cutting federal worker pay because they were "watching porn all day long." Fiorina continued, saying, "Washington, D.C. has become a vast and unaccountable bureaucracy. It's been growing for 40 years," she opined. "We have no idea how our money is spent." Fiorina said that she has a two-prong plan for boosting the economy, by reforming the federal government. "One, zero-based budgeting so we actually know where money is being spent, and we're talking about the whole budget and not just the rate of increase," she remarked. "And two, pay for performance in our civil service." She remarked, "How many Inspector General reports do we need to read, that say you can watch porn all day long, and get paid exactly the same way as somebody who's trying to do his job?"
Leading conservatives like Senator Jeff Sessions are calling for replacement of members of the legislature, including Republican members, who voted to increase expeditures without greater accountability, starting with Speaker Ryan. Watch as Senator Sessions explains why voters are in open rebellion against elitist career politicians, indifferent federal agencies, and seemingly endless bureaucratic overreach. According to Sessions, voters on both sides of aisle "have come to believe that their party's elites are not only uninterested in defending their interests but - as with this legislation, and fast-tracking the President's international trade pact - openly hostile to them." On the floor, Sessions further reminded his colleagues that their duty is the American people - not special interests, immigration advocacy groups, or lobbyists for narrow business concerns.
David Balto, a policy director at the Federal Trade Commission Bureau of Competition and an attorney in the Justice Department's antitrust division stated the following in a NY Times item: [T]he extraordinarily intrusive rules being considered at the F.C.C. would shut down vibrant innovation by forcing existing television providers to simply hand over their programming rights to competitors on an 'unbundled' basis. Why would YouTube or Netflix create shows or negotiate for programming rights if the F.C.C. requires cable and satellite TV companies to give them that same programming for free? It is hard to imagine a healthier or more dynamic market than consumer television and video programming - a market in which, you can watch 'The Walking Dead' on your phone. This is the last place government should be clamping down new regulations.
Read More at the New York Times
Soon, you'll understand why so many FCC enforcement cases seem arbitrary, capricious, and Kafkaesque.
To quote an FCC field agent: "We could do a great job, if only we understood what we're supposed to be doing!"
The FCC engaged OceanEast and Censeo in October 2014 to conduct an organizational assessment of the Enforcement Bureau's (EB) Field operations in order to identify whether Field resources were being used in an efficient manner aligned with FCC mission and policy priorities in the current state and for the long term. OceanEast was paid $845,520 in FY15 by FCC for this study. A comment at the excellent blog by our friend Dr. Marcus states: "Author of PPT is listed as Daniel Cataldi of Censeo. A number of the senior management at Censeo appear to be connected with Jon Wilkins, Managing Director of the FCC. Mr. Wilkins stated to a room full of people (Meeting Room 1, (adjoining the FCC Chairman's office) that this now-leaked report did not exist." We have no way of verifying this statement, but we have seen the same information elsewhere.
The original Leblanc and Wheeler reply letters to Congress, with the FCC's rationalization for the field reorganization, and the submission to Congress of 33 slides (out of 253) explaining their actions.
The Information Technology and Innovation Foundation has announced its nominees for the 2015 Luddite Awards. The FCC makes the list For the "Worst of the Worst Innovation Killers" for its net neutrality ruling. "The Internet in general and broadband networks in particular are continually improving through innovation. But in an effort to freeze network innovation, the Federal Communications Commission, at the urging of a wide range of neo-Luddite organizations, enacted regulations to protect 'net neutrality,' a rather nebulous concept, generally standing for the principle that broadband networks should treat all data packets alike, even if they have different network needs. This will significantly constrain network innovation," ITIF said. The "winners" will be announced in late January.
FCC Commissioner Ajit Pai, December, 2015
With visions of New York Times headlines dancing in its head, the FCC currently has little interest in doing bread-and-butter enforcement work. This became clear to me during the Commission's consideration of the Enforcement Bureau's field reorganization plan. Many people, including from within the Bureau itself, told me that the Commission simply did not think that field agents did important work. Tower inspections didn't generate excitement. Ensuring that broadcast stations operated in a manner consistent with their licenses was passe'. Pirate radio was a distraction.
Indeed, a whistleblower within the Enforcement Bureau gave me an October 28, 2014 email from the Bureau's Northeast Regional Director (George 'Mike' Moffitt) to field agents that included the following instructions: "We are scaling back on our response to pirate operations. Barring interference to a safety service, pirates should NOT be given a high priority (If there's interference to a safety service, it's not a 'pirate case' but instead a 'safety case.')" The email went on to state that "[w]e will NOT be issuing NALs to the majority of pirate operators." This is powerful evidence of the FCC's misguided enforcement priorities.
Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we're chasing press. Over the last couple of years, I've received many complaints about the Enforcement Bureau. For example, some allege that the Bureau engages in selective prosecution, targeting disfavored companies while letting favored companies off the hook. Others maintain that the Bureau conducts abusive and frivolous investigations.
FCC Commissioner Mike O'Rielly, September, 2015
The Commission reiterates our firm position, as articulated in the Communications Act and Commission rules, that unauthorized broadcast operations within the FM and AM radio broadcast bands - often referred to as pirate radio broadcasting - is strictly prohibited and subject to enforcement measures. Violations are not to be taken lightly, as the harmful interference caused by pirate operations sabotages licensed broadcasters serving their communities and puts the valuable public safety contributions of these stations in jeopardy to the detriment of the American people who count on them, including diverse and underserved populations.
Further, the Commission makes clear that it intends to enact a vigorous campaign of enforcement activities to disrupt and permanently terminate all pirate radio stations that are in operation today and prevent those that may attempt to come online in the future. We will collaborate with federal and state law enforcement authorities, as needed, to enhance and complement our enforcement operations. Our effort will include an education component for those entities that may knowingly or unknowingly assist pirate radio operations in any capacity, including building owners and managers, national and local campaigns for political office, media advertisers, radio programming suppliers, concert promoters and venue operators, and equipment manufacturers and importers. All interested parties should be on notice that facilitating pirate radio broadcasting will not be tolerated, and may be subject to enforcement or legal actions, as permitted under law. Accordingly, we seek full cooperation by anyone who may have relevant information to help identify, locate, and take action against the operators and owners of pirate radio stations. Link
FCC Commissioner O'Rielly, April, 2015
It is important to start by recognizing the truth about pirate radio stations. They are not cute; they are not filling a niche; they are not innovation test beds; and they are not training grounds for future broadcasters. If broadcasting were a garden, pirate radio would be poisonous crabgrass. Put another way, pirate radio participants are similar to outlaws who rob a retail store and then sell the stolen inventory online. In practice, pirate radio causes unacceptable economic harm to legitimate and licensed American broadcasters by stealing listeners. Pirate operators also cause "harmful interference" that inhibits the ability of real broadcasters to transmit their signals and programming, which provide such vital services as emergency alerts, critical weather updates, political information and news. And, pirate radio can disproportionately impact minority-owned stations as they undercut their financials and can cause harmful interference to legitimate stations serving minority populations. Link
According to a New York Times article, the judges participating in the review of the FCC's rules that began last Friday "showed skepticism of several aspects of the FCC rules, including whether the agency had the authority to strap net neutrality rules onto wireless services and whether it was reasonable to ban "paid prioritization," a practice that enables faster downloads of content if consumers pay a premium fee to an Internet Service Provider (ISP).
One of the key points that AT&T and other telcos have railed against is the FCC's move to reclassify broadband service as a "common carrier" under Title II regulation. Telcos and cable operators have maintained that broadband services are not the same as traditional telephone services and should not be strapped with the same utility-style framework of heavy regulations.
The U.S. Court of Appeals for the D.C. Circuit is expected to rule on the net neutrality rules this spring. The same court has struck down the FCC's poposed Internet-Takeover regulations twice before. We won't go into complex pro and con arguments here because you can find them on the usual tech blogs and in reality, noone really knows what the judges in the DC court of appeals will do. We already know the Republican majority in Congress are opposed, President Obama is for it, FCC Chairman Wheeler was against it, before Pres. Obama told him he was for it, and 4 million John Oliver fans and Internet trolls crashed the FCC's website because they were told the cost of Netflix would quadruple if they didn't hurry up and ask the FCC to expand it's powers and begin to exert control over the Internet, which will include further .gov snooping and increased taxes, which they weren't told. The new taxes, expected if NN passes judicial muster, will be disguised as USF fees. Investment is down 12% for the year. ATT&T took 3 billion to Mexico and Congress has been applying a 12 gauge suppository to the FCC and the Enforcement Bureau ever since it was announced. Stay tuned!
FCC Chair wants Internet snooping powers
The Federal Communications Commission has seen a 10 percent drop in employee satisfaction since 2010. As of 2015, nearly 40% of FCC employees identified as being dissatisfied or extremely dissatisfied on a survey which included questions about workplace, pay, environment, equipment, surroundings, integrity and honesty of leadership, and communication with supervisors. Only 62% would recommend the FCC as a place to work. Only 58% are satisfied with their pay and only 59% are satisfied with the organization in general. Reliability problems in the survey indicate dissatisfaction rates may be at least 10% higher than reported. For example at OMB 81% responded to the survery and 75% of employees were satsified, whereas at DHS, the worst agency surveyed, only 47% responded and only 47% were satisfied, indicating that a number of employees were so disatisfied, they did not bother to respond. The results by FCC employees on the federal employment viewpoint survey (FEVS) designed by the Office of Personnel Management (OPM) weren't the worst in government service. The Department of Homeland Security, Veteran's Administration, and the Internal Revenue Service yielded slightly lower satisfaction ratings than the FCC. Satisfaction
Investigations at the FCC regarding the downloading of child porn, perjury, falsifying time sheets, attendance fraud, drug and alcohol abuse, slacking off at work, selling personal products while at work, contradictory and confusing directives from supervisors, a pervasive feeling of powerlessness, and numerous whistle-blower investigations are leading indicators of the dissatisfaction that plagues the FCC and other large government agencies. Good employees resign, seeking employment in more functional agencies. Unfortunately, the OIG often refers whistle-blower complaints back to their respective dysfunctional bureaus, where problems remain unresolved.
On February 3, 2014 a written statement was provided, to the Office of Inspector General... including allegations about six employees who were:
1. "Sleeping at their respective desks."
2. "No to minimal work production (with evidently, no accountability) with the only exception of tending to plants located on the window sill."
3. "Arguing with one another and the use foul language."
4. "Constantly printing personal items of interest."
5. "Using the phones of others and at the RIC counter to make personal calls to creditors, etc."
6. "Falsifying time."
7. "Selling of products i.e. Avon, Bootleg DVDs, Clothing, Perfume, etc."
8. "Sitting together in chairs and looking out the window."
9. "Talking to the Guard."
(GS-9) is alleged to have committed time and attendance fraud by working fewer hours than the tour of duty required, and spending considerable time while on official duty away from work area, copying numerous personal documents and talking and arguing on the phone for long periods of time. The writer observed a general lack of any FCC-related work performed by X, or work product produced by X.
(GS-9) is alleged to often sleeping in her chair, selling Avon products and staring out the window. The writer observed a general lack of any FCC-related work performed by, X or work product produced by X.
(GS-12) is alleged to never do anything other thantending to the plants on the window and collecting personal items from the printer as wellas staring out the window.
(GS-9) who is physically located in~, is alleged to sleep at his/her desk, play computer games or argue on the phone. ~the Resource Information Center to discuss topics of interest with other employees and does not appear to perform any FCC-related work.
(GS-10) is alleged to travel back and forth to the lunchroom and "hang-out" at the guard's station. The writer observed on at least one occasion that X stayed at the guard station for the~ shift. The writer observed a general lack of any FCC-related work performed by X.
(GS-11) The 6th person named in the statement was the subject of a separate investigation that has since been forwarded to the Bureau.
Why would the FCC would throw a monkey wrench into a system (the Internet) that drives 5 percent of the S&P 500 and put millions of Americans' retirement plans at risk? The FCC is under siege by activists who don't trust private enterprise and want all of America's networks to be under government control because they believe they can do it better than the market (colloquially known as fascism and/or socialism). Incidentally, the rules they imposed allow the government more ease to surveil citizens under the premise of protecting their "privacy" and the ability to add new fees to broadband subscriptions. To be sure, cable and telecom companies are fighting back, challenging the rules with nine lawsuits. This is, in fact, the third time the FCC has been brought to court for overstepping its authority. The vicious circle of regulatory overreach followed by litigation is no way to make Internet policy. Unless Congress acts, the lawsuits and long litigation progress against the FCC probably will cost savers, taxpayers and petitioners at least $1 billion. That's a lot of money that could go to upgrade and expand networks, particularly in rural areas. A better path is for Congress to put an end of the litigation and do its job to make the proper communications laws for the digital age.
Read More by Roslyn Layton of the American Enterprise Institute, at US News.com .
Add farm groups, including farm broadcasters and state agriculture departments, to the list of those concerned about the FCC's plan to reserve a second channel for unlicensed after the post-incentive auction repack, in this case the perceived threat to weather and commodities info critical to agricultural small businesses. In a letter to the FCC, most of a dozen groups including the National Association of Farm Broadcasting and the National Association of State Departments of Agriculture told the FCC the second channel reserve could displace the translators that are critical to local TV service in rural communities. Translators extend full-power TV station signals to hard-to-reach places. "We are fearful that this proposal, coupled with the anticipated translator losses resulting from the spectrum auction, will disproportionately and unnecessarily harm rural television viewers," they told the commission.
The Federal Communications Commission has released its 18th report to Congress on competition in the wireless industry and, like other recent reports, comes to no conclusion about whether or not it's competitive. "Given the complexity of the various interrelated segments and services within the mobile wireless ecosystem, any single conclusion regarding the effectiveness of competition would be incomplete and possibly misleading in light of the complexities we observe," the bureau said. The immediate rejoinder from Congress was, "You're the regulator. If you don't know, who would?" FCC Commissioner Pai called the report "Ostrich-like" and "inconsistent" in it's failure to perform an objective analysis of the facts. In his statement, Pai said the inconsistency was entirely consistent with most other FCC decisions in recent years. Pai chided, "The bottom line: this FCC will never find that there is effective competition in the wireless market, regardless of what the facts show. That's because doing so would undermine the agency's goal of expanding its authority to manipulate the wireless market - a goal it can't accomplish if it deems that market healthy." FCC Commissioner Michael O'Rielly, as he did last year, said that the Commission, not the Bureau, must report annually about the state of the mobile industry. "I will continue to object to this continued delegation of authority to staff. The data in this report is being used by this Commission as a foundation for regulatory decisions and, therefore, should contain input from and be approved by the Commissioners. Further, the statute states that the report must contain 'an analysis of whether or not there is effective competition.'" O'Rielly said he was amazed that with more than 90 percent of Americans having a choice of four or more wireless providers that the Bureau cannot conclude whether or not the industry is competitive.
Read more here and here
At the time of our review, FCC had little information on the effect of the transition, namely because the service-based experiments - FCC's primary method for collecting data on the transition - were very limited in number and scale, did not cover consumer services in urban areas, and did not include critical national security or public safety locations. Although FCC has other data collection efforts under way, it is unclear whether FCC's efforts will address its remaining information needs, especially those related to the functionality of priority services and 911 availability. Developing a strategy for collecting information about how the IP transition affects public safety and consumers would help FCC address these areas of uncertainty as it oversees the IP transition and enable FCC to make data-driven decisions.
They contend the agency has exposed business-essential communication to lawsuits. The U.S. Court of Appeals for the D.C. Circuit is considering the Federal Communications Commission's interpretation of a 1991 consumer protection law restricting use of automatic dialing equipment. The take-away from the recent Sherman v. Yahoo decision is that there is no bright-line test of human intervention under the Declaratory Ruling. Instead, whether a particular platform is an automated telephone dialing system (ATDS) will depend on the "amounts of human intervention" required of the platform user, as assessed by the finder of fact in any particular case. That lack of predictability is one of many grounds on which petitioners have challenged the Declaratory Ruling.
Read more here and here
Congressional representatives in both chambers of the house peppered the FCC with questions about its Enforcement Bureau and the impact of the FCC's new net neutrality rules, in two letters sent to agency Chairman Tom Wheeler on Nov. 19, 2015. One letter from a group of senators cited increasing concerns about fairness, objectivity, transparency, and lack of tangible evidence of misconduct in FCC enforcement actions, mentioning substantial, unprecendented, and seemingly arbitrary fines.
The senators' letter comes amid statements from a range of telecommunications groups and other industries concerned by the Enforcement Bureau's actions and record-breaking fines. "Concerns have been raised about the EB aggressively pursuing substantial, unprecedented, and seemingly arbitrary fines against licensees and non-licensees alike," the senators wrote.
Travis LeBlanc, chief of the EB, said in April, 2015, that he believed large fines aid deterrence for violations of the Communications Act of 1934. He also indicated the bureau was focusing its resources on "big issues" compared with bureau actions in years past, such as with its prior focus on indecency fines. However, current and past commissioners have stated that unsubstantiated fines, based on insufficient evidence, pursued by staff with little or no actual investigatory experience, have caused a decrease in investment in infrastructure; have created distrust in government, and; have increased the chances of prolonged litigation, which comes with huge costs for the American taxpayer.
The senators asked the FCC to provide information by Dec. 3 on a wide range of bureau-related information. They asked the commission to provide details on every proposed fine of more than $100,000 since 2005, including details on whether or not the agency had actually collected on the penalties. They also asked for data on every enforcement action resulting in a penalty of $1 million or more over the last 10 years, whether or not the fines were collected, and how the penalties were calculated. Insiders understand that the Department of Justice frequently declines to attempt collection of FCC fines due to lack of evidence, problems with due process, failure to observe statutes of limitations, and shoddy investigatory practices.
The second letter from a large group of Congress members, recognizes the budgetary constraints and limited margins of small businesses. Members asked the FCC to reduce onerous burdens on small businesses by making them exempt from certain costly and burdensome reporting requirements which are presumed to have little, if any real impact on the overall mission and purpose of the FCC.
Alex Byers of Politico has written an insightful story about Congressional scrutiny of the FCC Enforcement Bureau. Hundreds of millions in FCC fines have never been collected -- and they'll never be collected -- because the U.S. Attorney's reviewing the fines know they're based on nothing more than eye-popping headlines which will never stand up in court. "I am beyond confused as to why not one dime of that has been collected," Sen. Claire McCaskill (D-Mo.) said at FCC Commissioner Jessica Rosenworcel's renomination hearing last month. "We might as well have a big flashing sign that says, 'Doesn't matter, do whatever you want... because we're not even gonna bother to collect the money." House telecom subcommittee Chairman Rep. Greg Walden (R-Ore.) opined, "If an enormous fine is announced and it's never prosecuted, it makes you wonder what's the purpose?" he said. "The question is, are they just after headlines or some sort of performance metric? I don't know."
Today, a House Energy and Commerce subcommittee held an oversight hearing to assess the Federal Communications Commission's adherence to what Chairman Greg Walden (R-Ore.) calls "the highest standards of transparency and accountability."
FCC Commissioner Pai told the committee that the FCC's enforcement bureau (EB) has gone off the rails. Pai told the Congressional Committee "To be blunt, the FCC's enforcement process has gone off the rails. Instead of dispensing justice by applying the law to the facts, the Commission has focused on issuing headline-grabbing fines, regardless of the legality of its actions."
Pai continued, "It's pretty simple: we establish rules in advance; we analyze all facts relevant to an allegation; we determine liability; we fix a penalty. But the agency's enforcement approach has changed dramatically." Pai discussed several recent cases and opined, "Sadly, these cases are not even the most egregious violations of due process." In conclusion, Pai said, "One more problem traces through the Commission's recent enforcement actions: The penalties prescribed regularly appear to be plucked from thin air.... the agency has arrogated for itself the roles of judge, jury, and executioner."
Finally, Pai indicated the FCC Enforcement Bureau is acting outside the bounds of it's congressional authority. "Congress never intended the FCC to assert that a company has violated never-adopted rules, to ignore facts that get in the way of good press, or to calculate potential forfeitures so implausibly large that any rough justice penalty will do. When Congress adopted the Administrative Procedure Act, it laid out clear guideposts for how agencies should carry out their statutory duties. We are supposed to provide fair notice to parties of what the law requires. Next, we are supposed to investigate conduct, taking into account all of the evidence. And third, we calculate forfeitures based on discrete and concrete violations of the law. The FCC faithfully followed that formula for the first 80 years of its existence. There's no good reason why it's become such a problem of late." Larry Downes at thehill.com agrees, stating the following: "The FCC has gone rogue. The agency has lost sight of its core mission to improve communications on behalf of American consumers. Instead, its resources have increasingly been misdirected to tilt at the windmills of lobbyists and political operatives backed by favored industry participants."
Commissioner Pai's testimony on EB abuses
Read more from thehill.com
"If you gave me a piss test today, I would fail." -- This from an FCC employee under investigation for downloading child porn in 2013. Based on a recent report by the FCC's Office of the Inspector General, High Times could publish a special edition featuring FCC employees.
Specifically, the computer forensics investigator identified two-hundred forty eight (248), pornographic image files, one-hundred thirty five (135) inappropriate image files, twenty-two (22) pornographic video files, and thirty-one (31) inappropriate video files. Further, the computer forensics investigator identified seven (7) video files depicting graphic violence. Although the FCC habitually publishes the names and addresses of people who are merely alleged to have engaged in administrative infractions, the FCC jealously guards the names of employees who have committed serious crimes. Special FOIA requests must be submitted before the public can receive heavily redacted details.
The computer forensics investigator determined that (Redacted) used the FCC network to obtain some of the pornographic and inappropriate material, including females who appeared to be very young. The computer forensic examination also showed both images and videos of using what the investigators believed to be marijuana. These electronically stored pictures contain metadata (embedded electronic information that gives GPS location information). Investigators were able to use the GPS location information contained in the metadata associated with the pictures and determined that the pictures were taken at (Redacted's) home address. (Redacted) claimed to use marijuana socially and stated he does not smoke at work. He admitted to using marijuana about three times a month and as recently as 2 weekends before the interview and says "it does not run my life." (Redacted) is aware of the government policy on drug use and admitted, "if you gave me a piss test today, I would fail."
Analysis of access badge data demonstrated that (Redacted) was paid for 55 hours when he was not in the building and not on authorized leave. After additional questioning he admitted he was leaving early or arriving late "for a couple of years."
The FCC voted to preempt state's rights in North Carolina and Tennessee in laws that prevent municipal broadband providers from competing with private industry. NC and TN sued the FCC to preserve their laws, which protect private companies from government meddling and the inefficiencies in government business models which would further saddle taxpayers with millions in taxes in support of sub-standard services. The FCC voted to overturn state laws and Mr. Obama supported the FCC's decision, but the Justice Department won't defend the FCC's decision in court. In June, the Justice Department warned that the coming airwaves auction runs the risk of concentrating more power in the hands of Comcast and Verizon, leading to a lack of competition. Congress and the DoJ have now both signaled that they are uncomfortable with FCC over-reach.
In addition, huge federal bureaucracies that suck billions from the economy and business while returning little of value have come under fire in Congress and during recent Presidential debates, Carly Fiorina, Rand Paul, and Ted Cruz have all stated their opposition to burgeoning rules promulgated by 'unelected bureacrats in large federal agencies who are unaccountable to no one.' They all agree that the federal bureaucracy is more inept and more corrupt than at any time in the nation's history. Supporters like Emmett McGroarty, education director of the American Principles Project, say, "In particular, the federal executive branch has grown so large that Congress cannot provide any kind of authentic oversight or any kind of check or balance, and The federal executive also runs roughshod over the states and the people, employing some of the same techniques cutting across many issues, including education, transportation, environmental policy, Internet, and communications policy."
Tennessee Congresswoman Marsha Blackburn said, "We don't need unelected federal agency bureaucrats in Washington telling our states what they can and can't do with respect to protecting private enterprises. I strongly believe in states' rights. I found it deeply troubling that FCC Chairman Tom Wheeler has repeatedly stated that he intends to preempt states' rights...." The Supreme Court has also recently begun to question so-called "agency expertise" having signaled a willingness to scale back deference to agency interpretations under both Chevron and Auer. Without the aid of the DoJ, it is highly doubtful that the FCC will be able to muster the legal talent and monetary resources to succeed in preempting state's rights.
Locus Telecommunications was issued a 5 million dollar forfeiture order by the FCC for 'apparent violations' of marketing practices related to pre-paid calling cards. Commissioners Pai and O'Rielly issued strongly worded dissents, citing due process and jurisdictional concerns. Via counsel, Locus protests the NAL and picked up on Commissioner Pai and Commissioner O'Reilly's objections, calling out the Commission for the Enforcement Bureau's sloppy investigation and gross deprivation of Locus' Constitutional due process rights. Locus also highlights the Commission's clear violation of the legal limitations on its forfeiture authority in reaching the $5 million fine. The statute requires the imposition of forfeiture within one year of alleged violations. However, the Commission issued a final Forfeiture Order affirming the alleged violations and the proposed $5 million forfeiture, a full four years after issuance of the NAL.
At the core of the matter, Locus - in lockstep with Commissioner's Pai and O'Rielly -- strenuously objects to the FCC's reliance on tenuous legal authority in its assertion of jurisdiction over the marketing practices of telecommunications providers. Locus also admonishes the FCC for its utter failure to conduct the due diligence necessary to identify any specific sale of an alleged infringing card or to link any such sale to actual consumer harm. Indeed, in spite of its massive $5 million fine, the FCC could not identify even a single instance of a Locus calling card leading to a consumer complaint on file at the Commission. Despite having received not a single customer complaint, the FCC took it upon itself to unilaterally declare Locus' disclosures to be "deceptive" and "misleading."
Coincidentally, Locus' Petition was filed on the very same day several members of Congress sent FCC Chairman Tom Wheeler a letter questioning the legitimacy of the Commission's recent enforcement actions. "[C]oncerns have been raised about the [Enforcement Bureau] aggressively pursuing substantial, unprecedented and seemingly arbitrary fines against licensees and non-licensees alike," the letter stated. "[M]oreover, it appears that the [Enforcement Bureau] is more concerned with issuing fines and grabbing headlines than it is with ensuring compliant behavior with existing FCC rules." And in a rather prophetic observation regarding a different matter, the letter from Congress states, "[r]ather than undertake a rulemaking or proceeding to delineate the rules of the road... the FCC issued a Notice of Apparent Liability for alleged conduct that does not fall under any existing FCC rules."
Commissioner O'Rielly aptly noted, "The Commission simply wants to preserve its right to use section 201 at any time and for any reason. Today it is supposed misrepresentation associated with slamming. Tomorrow it could be alleged misrepresentation connected with terms and conditions or privacy and security. I object to this charade and I must dissent." In short, the Commission violated basic due process rights afforded to companies operating in the U.S. under the U.S. Constitution. The Commission's Order simply cannot withstand legal scrutiny. Consider this a warning - a silent industry may embolden the Commission to reach further, even going so far as to dictate the marketing practices of ISPs. Providers with concerns about the impact of the Commission's recent actions may be well served by taking actions to encourage the Commission to discontinue its trajectory down this slippery slope.
This item is derived from an article by Jonathan Marashlian, Managing Partner of Marashlian & Donahue, PLLC, The CommLaw Group, edited by Kyle Piscioniere.
Randolph May writes: "Sadly, upon examination, the tendencies of the Obama administration's Federal Communications Commission (FCC) to exercise power in a lawless manner have become more manifest as the year has progressed." May says the FCC's conduct ignores fundamental rules of law and due process norms inherited from the Magna Carta. May posits, "It may not be surprising that entities choose to settle cases based on questionable assertions of agency enforcement authority. And it is not surprising that government officials relish exercising such unbridled authority." What may be surprising is that so little attention is paid to what is happening at the FCC. Mr. May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission. He is a past Chair of the American Bar Association's Section of Administrative Law and Regulatory Practice. He is a Fellow of the National Academy of Public Administration. He is a columnist for Legal Times and the National Law Journal and he is currently president of the The Free State Foundation, in Rockville, Md.
The 12 percent decline in major wired broadband providers' capital expenditures that FCC Commissioner Ajit Pai discussed in testimony before Congress on Tuesday, November 17, 2015, was based on data from seven companies: AT&T, Verizon, Comcast, Charter, Time Warner Cable, CenturyLink and Cablevision. Mr. Pai's testimony against the FCC's net neutralization plan involved his belief that massive litigation and rules uncertainty would cause a net decline in investment. It turns out, he was correct. Pai's famous statement "Net Neutrality is a solution that won't work, to a problem that doesn't exist" has echoed throughout the halls of congress and the senate this year. Never has the FCC been under so much pressure from regulators to defend its irrational decisions, lack of transparency, and abuse of power and authority.
The FCC said investment would continue apace. They were wrong. When it issued its Open Internet Order in February, 2015, the FCC never counted on its prediction being falsified even before the U.S. Court of Appeals for the District of Columbia Circuit would rule on the legality of the agency's net neutrality rules. But then came the second quarter S.E.C. filings of the largest ISPs. The news was grim. AT&T's capital expenditure (capex) was down 29 percent in the first half of 2015 compared to the first half of 2014. Charter's capex was down by the same percentage. Cablevision's and Verizon's capex were down ten and four percent, respectively. CenturyLink's capex was down nine percent. Absent compelling alternatives, the FCC's Order is the best explanation for the capex meltdown.
Another explanation involves FCC actions against entities and individuals which members of Congress (from which the FCC derives authority) and a number of law firms, have called arbitrary, capricious, lawless, and nonsensical. Take the 100 million dollar fine against AT&T for throttling customer bandwidth -- even though AT&T announced a policy change which AT&T sent to all customers in 2011. Apparently the FCC Enforcement Bureau believes consumers are too stupid to read the inserts in their utility bills. FCC Commissioner Ajit Pai called the action "Kafkaesque" and said the $100 million figure was "drawn out of thin air." "This enforcement action only confirms my concern that the Internet is now governed not by engineers and innovators but by regulators and lawyers," Pai said in a statement. "Stay tuned, for the message sent to innovators by the Commission today is a loud and clear one: 'Be afraid. Be very afraid.'"
Why care about capital flight? Every million-dollar increase in broadband capex in a given year generates almost 20 jobs through the multiplier effect. Chase a billion dollars in investment from the broadband ecosystem with heavy-handed regulation and you can wipe out 20,000 jobs. And if a billion dollars of withdrawn capital destroys 20,000 jobs, imagine what three billion of withdrawn capital . . . Shudder at the thought. Yet, AT&T at the mercy of a schizophrenic agency gone berserk, took it's three billion dollars... to Mexico to "extend mobile Internet to 100 million consumers and businesses" by 2018. Bye-Bye investment, Bye-Bye jobs.... AT&T has taken their investment dollars elsewhere. Who could blame them?
Much thanks to Brendan Sasso of the National Journal; Hal Singer at Forbes; Alex Byers and Kate Tummarello at Politico (with help from Nancy Scola) and Ajit Pai
This week, a group of 23 Congressmen told an appeals court that Congress never granted the FCC the authority to write net neutrality regulations for the Internet. The members filed a late friend-of-the-court brief with the Court of Appeals for the D.C. Circuit ahead of oral arguments next month to determine whether the rules approved earlier this year should stand. "Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC," the lawmakers wrote in their 15-page filing which argues that the new FCC rules have "short-circuited" their policy debate in Congress. Read more.
Commissioner Pai: More than a year ago, parties petitioned the FCC to enact regulations on what is and isn't allowed with regard to wi-fi blocking. "They asked the FCC to establish clear rules of the road through an industry-wide rulemaking. As one might expect, commenters responding to the petition offered very different takes on what any such rules should look like. Some argued that Wi-Fi blocking should not be allowed under any circumstance. Others argued that deauthentication is part of the IEEE 802.11 standard and should be permitted when necessary to ensure network security, such as to shut down access-point spoofing or other cyberattacks. Regardless, a broad cross section of groups agreed that the FCC should provide guidance."
Instead of providing needed guidance, the FCC dismissed the petition.
"In the end, this decision is the latest evidence that the FCC's enforcement process has gone off the rails. Instead of dispensing justice by applying the law to the facts, the Commission is yet again focused on issuing headline-grabbing fines. And while I have no doubt that this NAL (Notice of Apparent Liability) will generate plenty of press, I cannot support this lawless item." Commissioner Michael O'Rielly also dissented. "I respectfully requested that the commission undertake a rulemaking or other proceeding to consider this issue more thoroughly, instead of pursuing an enforcement action," O'Rielly said. He doesn't agree with the "expansive reading" of the statute contained in the NAL "that brings us to another suspect enforcement item without the underlying work being done."
The FCC fined Hilton $25,000 for allegedly impeding an investigation where Hilton allegedly blocked customers' personal Wi-Fi hotspots - allegedly using FCC type accepted and industry accepted 802.11 protocols to do so.
Mariott, Smart City, M.C. Dean, and Hilton have all drawn fire from the Enforcement Bureau. In November 2014, the FCC sent Hilton correspondence requesting information regarding its Wi-Fi blocking practices. Hilton replied. "Throughout this inquiry, we have cooperated with the FCC, providing extensive background and details in a timely and efficient manner," a Hilton Worldwide spokesman said. "We believe that the FCC has no basis for vastly expanding the initial inquiry based on a single complaint at a single Hilton hotel."
Organizations, including colleges, universities, schools, restaurants, hotels, and convention centers, routinely block wi-fi access to other than their own networks due to legitimate security concerns for their customers. According to consumer affairs.com, wi-fi hotpsots are more dangerous than we think.
As Investor's Business Daily has pointed out, the FCC's 80-year history is littered with examples of how it slowed down innovation, stifled competition, intimidated innovators and free speech advocates, and raised costs for everyone. And all of it done in the name of consumer protection.
Noting that FCC fines go straight to the Treasury's general fund, some consumer groups, and even some Presidential candidates, and Internet pundits, have stated that federal agencies are acting as perverse Stalinists - stealing - by fining well-heeled businesses for fabricated rules infringements in order to pay for Barack Obama's progressive liberal (aka socialist) policies. This, in turn, has apparently led the Congressional majority to ask the GAO to investigate the FCC's enforcement bureau.
A joint FCC-FTC memorandum issued Monday seeks to delineate lines of authority between the two agencies with regard to consumer protection, in order to avoid "duplicative, redundant, or inconsistent oversight." The memo establishes regular meetings, consultations and data-sharing practices between the agencies. It comes in response to concerns that the FCC has slowly been usurping consumer protection powers that belong to the FTC.
Dumbfounded, Rep. John Shimkus, R-IL., asked the other members of the commission when they were made aware of the memo. "Yesterday...Ditto...Ditto."
The revelation that four of five members had no awareness of the memo came as lawmakers scolded the agency for failing to working collaboratively. Rep. Greg Walden, R-OR., said that lack of cohesion undermined the credibility of the agency's votes. "Many stakeholders have expressed overarching concern that the FCC is adopting and applying its rules in an arbitrary fashion, singling out certain companies or industries for asymmetric regulation." Walden said.
Energy and Commerce Chairman Rep. Fred Upton, R-MI., joined his colleagues in criticizing the lack of transparency. "In executing its functions, the agency must operate with openness and transparency for the benefit of American consumers and job creators," he said. "Unfortunately, notwithstanding our clear and numerous concerns, the FCC has been plagued at times by process failures and a lack of healthy and honest policy debate." Upton added that the deleterious effects of the commission's practices extended far beyond Washington, concluding that the status quo "produced uncertainty in the market harming our economy and the robust communications sectors' ability to create the jobs Americans need." Broadly speaking, lawmakers' concerns stem from "net neutrality" regulations the agency passed in February. The rules are being challenged in the U.S. Court of Appeals for the District of Columbia, in part on the basis that the FCC failed to provide proper notice before their passage.
On Friday the 13th, the American Radio Relay League (ARRL) representing about 20% of American amateur operators, informed the FCC that the Universal Licensing Service (ULS) had malfunctioned and more than 400 applications and nearly 150 exam sessions were in the queue waiting to be processed by FCC. Another 40 to 50 received in the office by Friday the 13th were ready to be put in the queue. The FCC told ARRL staff they had no idea when the snafu might be remedied. On November 19th, the ULS appeared to be functioning again. There are currently 3 dysfunctional websites run by the FCC. There is a "legacy" website, a "newer" website, and a "beta" website. There is a wide variety of conflicting information available on each website. Much of the most important information is unavailable, incomplete, and incorrect. Dr. David Bray is the latest IT professional tasked to "fix" the FCC's information technology, which was decimated when comedian John Oliver convinced 4 million gullible Americans to crash the FCC's website asking for Net Neutrality protection to fix a non-existent problem. The humorless FCC took the joke seriously and in an unprecendented power grab, enacted Net Neutrality regulations which have already cost the United States millions in lost revenue, uncertain investment, and lawsuits against the nonsensical regulations.
On Friday the 13th, 2015, FCC Enforcement Bureau Chief Travis LeBlanc announced in an internal e-mail to staff that he plans to appoint Charles Cooper as the FCC's first ever Enforcement Bureau Field Director. Cooper, who took the reins as an FCC District Director in Los Angeles, on April Fool's Day, 2013, formerly worked for the engineering consulting firm du Treil, Lundin & Rackley, where he was a partner and senior engineer. The FCC is closing 11 of its 24 field offices and eliminating District Directors and Regional Director positions. Instead of the formerly top-heavy management structure, the remaining offices will report to Cooper, who will report directly to LeBlanc -- until political fortunes change and a new FCC Director is appointed by a new POTUS, at which point, all bets are off.
Today we offer our sincere thanks to Army veterans: Major James Beauchamp; Master Sgt. Craig Gagner; Jim Rodgers; and Cav. Scout E.J. Sanders III, and; Navy veterans Bill Sims and Jim O'Brien, and; Air Force Veterans Dan Churovich and Dan Jeswald, along with Royal Canadian Air Force veteran, Dave Bower.
A one finger salute to phony frauds, liars, and fruitcakes -- like al Qaida supporter Karol Florian Madera and his cross-dressing RMC mentor and 'Combat Cessna' flight instructor, Russell Sovka Williams. Not to mention the Airborne Submariner and PNC Bank fraud arrestee Whitney Veon Tritch, and Chemical Ali Mark Christopher Morgan, and Helicopter Commandeer Zero Mike Adams, and last but not least, the self-admitted child rapist, convicted drug dealer, thrice demoted, and all-around-Dumb-Ass, Donny Anderson.
The FCC proposed a $718,000 fine against M. C. Dean, over accusations that the company blocked Wi-Fi hot spots, as well as a fine against Marriott International $600,000, then issued a warning in January that blocking hot spots in commercial establishments is illegal. In August, the agency proposed a $750,000 fine against Smart City Holdings and a $25,000 fine against Hilton Worldwide Holdings for what the agency called "apparent obstruction of an investigation" into Wi-Fi blocking.
The hospitality industry has countered that the commission has overstepped its authority and has given poor and contradictory guidance about how companies are allowed to manage their Internet connectivity. Wi-Fi networks created by hot spots, industry officials contend, are inherently insecure, could endanger customer's privacy, may contribute to identity theft, and often interfere with their own in-house networks. By shutting off rogue hotspots on private property, the Industry contends they are merely protecting their customers and their own in-house networks.
Consumer Watchdog petitioned (pdf) the FCC to start developing a new regulation mandating 'edge providers' like Google, Facebook, YouTube, Pandora, Netflix, and LinkedIn to honor do-not-track requests from consumers. Users can set their browser preferences to request that their online movements aren't tracked, but few companies honor those requests. "Some companies have committed to honor do-not-track requests," according to Jon Brodkin at Ars Technica, "but they are mostly ignored."
The FCC responded (pdf) that even though the commission did reclassify broadband as a common carrier service, they didn't intend to "regulat[e] the Internet, per se, or any Internet applications or content," according to the commission.
Websites Can Keep Ignoring "Do Not Track" Requests after FCC Ruling (by Jon Brodkin, Ars Technica)
FCC Won't Force Websites to Honor 'Do Not Track' (by Gregg Keizer, Computerworld)
What is Facebook Doing with My Data? (by Jane Wakefield, BBC News)
Raytheon People-Tracking Software can be Sold Outside U.S. (by Noel Brinkerhoff and David Wallechinsky, AllGov)
Hundreds of Apps for Children Collect Their Private Information without Alerting Parents (by Noel Brinkerhoff and Danny Biederman, AllGov)
WASHINGTON - While FCC Chairman Tom Wheeler reportedly wants to send a signal that the FCC is not hostile to the industry it regulates, FCC Commissioner Ajit Pai released a blistering rebuke of the FCC.
Pai said, "It's the commission's arbitrary and massive regulatory overreach over the past two years. With broadband providers' capital expenditures falling, widespread concerns about the design of the incentive auction and an enforcement scheme unconstrained by the rule of law, the Commission shouldn't be focused on better marketing. What's needed are better policies - policies that make economic sense, that spur greater investment in and deployment of broadband infrastructure, and that give entrepreneurs the certainty they need to innovate and succeed."
In agreement, Commissioner O'Rielly called the FCC's support for municipal telecommunications infrastructure "borderline socialism." Pai also blasted the FCC review process: "I certainly agree that the commission's approach to transactions has been opaque and incoherent." Pai remarked, "FCC policy should be set straight in public by the five FCC commissioners nominated by the president and confirmed by the Senate, not behind closed doors on Wall Street for the benefit of a selected group of insiders."
Members of the House Subcommittee on Communications and Technology (Committee) issued a letter requesting that the Government Accountability Office (GAO) conduct an audit of the FCC's Enforcement Bureau (Bureau). The audit would focus exclusively on the Enforcement Bureau and address its backlog of consumer complaints, its output and performance metrics and recent management decisions. Among the primary concerns for the Committee is the Bureau's continued use of the number and monetary value of enforcement actions as the sole metrics to determine the success of its enforcement efforts.
This is not the first time that the GAO has reviewed the FCC's procedures and management. In 2008, the GAO conducted a complete audit of the FCC and issued a report concluding that there were insufficient procedures in place in the Bureau and that unless the FCC implemented "key management tools" it may be difficult for the FCC to convince Congress that it is living up to its enforcement mission of "protecting the consumer, ensuring public safety and encouraging competition." GAO provided a slew of recommendations for the FCC to improve its procedures. Apparently, none of the proposed solutions were consistently implemented.
Since the 2008 report, the Committee has requested several updates from the FCC on improvements to its internal processes, including a June 4, 2014 letter to Chairman Wheeler and in an April 2015 hearing. The FCC's responses apparently left certain members of the Committee with serious reservations about the effectiveness of the Bureau's management and its enforcement activities.
The Committee has referenced several issues as the basis for its request: the Bureau's ineffective review of TCPA complaints, the lack of transparency, efficiency, and consistency in Commission decision making, and the lack of responsiveness to inquiries from stakeholders. As a result, the Committee asked the GAO to consider several questions that target the effectiveness of the Bureau's enforcement activities:
1. Has the FCC implemented performance measures and performance goals consistent with GAO's 2008 recommendations? If not, how does the FCC measure the effectiveness of the enforcement program?
2. In the intervening seven years, would GAO recommend additional or revised recommendations to the FCC in effectively tracking the effectiveness of the FCC enforcement program?
3. Is the FCC's Enforcement Bureau meeting its mission of protecting the consumer, ensuring public safety, and encouraging competition? What changes should be made to improve performance to ensure that consumers are being protected and FCC leadership is accountable?
4. The FCC has invested millions of dollars in IT improvements in the Enforcement Bureau and the Consumer & Government Affairs Bureau since 2007. How much has the FCC spent on these improvements? Have these improvements lead to an improved enforcement program at the FCC to the benefit of consumers and other stakeholders?
The Center for Media Studies (CMS) thanks Lexology and Kelley Drye & Warren LLP - Steven A. Augustino and Dawn Damschen
Walter Gernon, Retired FCC District Director
In the article, 'FCC Closures? Who You Gonna Call?' by Walter Gernon, With Rebecca Willman Gernon, the authors wrote, "Depending on a Tiger Team to assemble, deploy and mitigate an interference problem within a reasonable amount of time is delusional and unreasonable. Pirate radio stations are often sporadic in nature, operating only a few hours a day or a week. Locating these transmitters, a routine Field Office function, would pose a logistics nightmare for a Tiger Team. What priority would be given to the myriad consumer interference issues that are dealt with on a daily basis by FCC field offices? With less technical staff in the future located throughout the country, problems will be ignored with the hope that they will go away; a major disservice to the general public."
Riley Hollingsworth, Retired Special Counsel
"Most of my 35 year career at the FCC I worked as an enforcement attorney, across almost all services. Mr. Gernon's article is right on point and I agree with it fully. I would point out that 50% of a good enforcement program is timeliness. Unless this "Tiger Team" is composed of Batmen or a Superman, there's no way it can accomplish anything but staying several steps BEHIND whatever problem it is working on."
David Solomon, FCC Guru and Former EB Chief
At the Competitive Carriers Association conference, the former Chief of FCC's Enforcement Bureau, now with the law firm of Wilkinson Barker, spoke about "troubling" actions by his former bureau under the present chief, Travis LeBlanc. At his blog, our friend Michael Marcus, another former FCC employee, speculates that David Solomon may believe his replacement LeBlanc could be "too aggressive." The number and dollar amount of forfeitures is up, but there is wide-spread speculation that many, if not most, of the forfeitures are on shaky legal ground. Should regulatees choose to challenge the FCC, the time and legal costs at an already skeptical DoJ, could outweigh any forfeitures actually collected at some far-flung future date -- not to mention the regulatory and market uncertainties accompanying prolonged litigation.
FCC Commissioners Pai and O'Rielly
In a News Release involving more general criticism of the FCC, Commissioner Pai referred to the FCC as pursuing "an enforcement scheme unconstrained by the rule of law." During a recent congressional hearing, he similarly criticized recent FCC enforcement for "focusing on headlines" and "raising due process concerns" by imposing penalties where the law isn't clear. These criticisms are consistent with those previously made by Commissioner O'Rielly who said, "entities that had no opportunity to comment on the Commission's claims or legal theo ries" will now "be forced to embrace the product of a closed and slanted process that will be portrayed as consensus practice and rules."
So, What are the FCC's New Priorities?
The leaked memos and consulting reports illuminate the FCC's actual priorities and the number of people affected. The staffing level in the restructuring report was 98 and the new one 54, for a net loss of 44 positions. The 98 number included no vacancies, amounting to a loss of 44 FCC employees, most of whom were long term employees. Not found on the FCC's to-do list are: FM piracy; problems in amateur and CB radio; reinvigorating AM radio; or other traditional interests. Instead, the FCC's new priorities are as follows:
#1 Fraud, Waste, and Abuse
#2 Protecting Consumers
#3 Safeguarding Competition
#4 Securing Networks
Greg Walden, Congressional Committee Chairman:
"In the end consumers and the American people are the ones who will ultimately bear the greatest loss from these rules. Whether it's because the increased burden drives small providers out of the market, or because there is less incentive for any company to invest in new and innovative service offerings, or because additional infrastructure investment is no longer as attractive to industry and investors, Title II regulations don't inspire innovation or investment confidence," said Walden. "In the long term, it means uncertainty, reduced investment, and a future of 'what might have been' for our vibrant and thriving Internet ecosystem. We can do better."
Fred Upton, Congressional Committee Co-Chair
"We need certainty, so companies can continue to plan their business models for the years ahead. We need investment, so consumers can continue to receive the high-quality, innovative broadband services we have come to rely on in our everyday lives. We need a return to the light-touch regulatory world that has served the industry and consumers so well over the years," added Full Committee Chairman Fred Upton.
An amateur radio operator recently used the 'new and improved' FCC web interface (not to be confused with the original and the transitional websites) to file a complaint about jamming, indecency, terroristic threats, and daily, ongoing interference, on the 40 meter amateur radio band. The FCC's rapid and definitive response may surprise some who are used to waiting years with no resolution and/or a completely flawed finding by poorly trained 'investigators' using decrepit equipment. The FCC habitually pretends in online 'news releases' that uncollected Forfeiture Orders are an adequate response to complaints. Everyone who understands due process knows that a Forfeiture Order is neither a solution, nor a resolution of any kind.
The following complaint was filed by a member of the 4th callsign district, on Oct 9, at 11:27 AM
"Extreme foul language /Terroristic threats toward Operators and Family members / Deliberate Frequency Jamming and General Foul Operating Practices on 7.200 40 meter band occuring daily during mornings"
The FCC's Response on Oct 13, 4:28 PM:
"Hi, Your complaint provides the Commission with valuable information that we use to spot trends and practices that warrant investigation and enforcement action.
We do not resolve individual complaints about this issue and, there will be no status information to report on your complaint. Your complaint (Ticket No. 580521) was closed as of today.
The information you provided us will continue to be available internally within the FCC to inform the Commission's enforcement and policymaking processes. Thank you for your complaint and help in furthering the FCC's mission on behalf of consumers."
AT&T responded to their recent 100 million dollar NAL in the only way reasonable way possible. Commisioner Pai called it Kafkaesque, while Commissioner O'Rielly said it was "tenuous at best" and "If the Enforcement Bureau thought there were deficiencies in some of AT&T's disclosures, it should have taken steps to rectify any concerns prior to imposing a Draconian $100 million penalty and compliance measures."
Here are a few of the comments AT&T applied to the FCC's NAL: absurd; many legal and factual flaws; flouts the most basic principles of fairness, due process, and responsible enforcement; unprecedented and indefensible; startling absence of legal authority and reasoned decisionmaking; devoid of factual support and wholly implausible; penalty plucked out of thin air; sanctions beyond Commission's authority; implausible; wholly untenable; under the guise of interpreting a regulation, [FCC is seeking] to create de facto a new regulation; arbitrary; capricious; conclusory; unjustifiable; unsustainable; unlawful; excessive, and; a penalty that cannot reasonably be anticipated; grossly excessive, and; designed to coerce regulated parties to abandon meritorious defenses and settle.
Read more here, here, here, and here.
We all know about the FCC employee who had nothing to do, so he or she watched porn up to 8 hours a day. Now you can read all about the recent allegations of perjury and false statements by an FCC District Director; FCC employees selling items at work during work hours; FCC employees selling counterfeit items; FCC employees downloading pornography; FCC employees downloading child pornography; an FCC high- frequency-direction-finding (HFDF) employee determined to have jammed 14.313 MHz; a supervisor in the FCC Enforcement Bureau accused of gross mismanagement and incompetence; several FCC employees accused of doing nothing at all, while staring out the window all day; an FCC employee who hadn't been to work in 6 months; an FCC employee who spent $500 on an FCC travel card for non-work related items; and an FCC employee who maintained a high leave balance despite not being at work for 3 months and using 474 hours of approved leave while failing to complete his/her ordinary daily tour of duty. Remember, the bulk of these FCC investigations just mentioned are confined to just one year. You may already know, dozens of federal workers cheat on their time sheets, but the FCC seems to have more than its fair share of liars, cheats, and frauds.
+On April 3, 2014, a Federal Communications Commission (FCC) employee in the office in the Enforcement Bureau (EB) filed a written complaint with the OIG alleging "my supervisor at the Office is engaged in on-going gross mismanagement and / or abuse and / or waste."
+On April 7, 2014, h/she followed up with an additional email complaint stating, "I'd like to add that is a GS-15 and has not and cannot write anything beyond a simple email. H/she has never written a technical or legal summary of any sort, cannot recommend a policy, cannot give coherent instructions verbally and much less in writing, and cannot review enforcement actions."
+On March 12, 2014, Chief of the Operations and Emergency Management Division within the Public Safety and Homeland Security Bureau (PSHSB), contacted the Assistant IG for Investigations and reported possible computer misuse (pornography) by one of his employees. +On March 15, 2014, the OIG Computer Forensics Investigator contacted him to obtain additional information related to the allegations. Our investigation found evidence that __ used an FCC computer to view pornographic material in violation of the Commission's directive and policies governing cyber security. 18 webpages appear to contain pornography based on the titles of the webpage. +18 Brasil Movie - Doce Delirio; Playboy Swimwear Fashion Show, Miami Beach; Topless Model Shoot; Sexy Bikini Girls, Mexico; Happy Boob Year 2010; Mil Sexos Tiene La Noche Pelicula Completa +18; Swedish Flygirls 1971 17+; Reformatoria las Depravadas (depraved reform school girls); Women of Argentina; Confessions of a Young American Housewife, and; Brasil Movie II.
+On February 3, 2014 a written statement was provided, by a person who requested anonymity, to the Office of Inspector General in which. the writer outlines various allegations concerning six (6) individuals who work in the FCC Reference Information Center. The allegations included:
1. "Sleeping at their respective desks."
2. "No to minimal work production (with evidently, no accountability) with the only exception of tending to plants located on the window sill."
3. "Arguing with one another and the use foul language."
4. "Constantly printing personal items of interest."
5. "Using the phones of others and at the RIC counter to make personal calls to creditors, etc."
6. "Falsifying time."
7. "Selling of products i.e. Avon, Bootleg DVDs, Clothing, Perfume, etc."
8. "Sitting together in chairs and looking out the window."
9. "Talking to the Guard."
(GS-11) is alleged to have committed time and attendance fraud by working fewer hours than tour of duty required, and spending considerable time while on official duty away from work area, copying numerous personal documents and talking and arguing on the phone for long periods of time. The writer observed a general lack of any FCC-related work or work product.
(GS-9) is alleged to often sleeping in her chair, selling Avon products and staring out the window. The writer observed a general lack of any FCC-related work performed by, or work product produced.
(GS-12) is alleged to never do anything other than tending to the plants on the window and collecting personal items from the printer as well as staring out the window.
(GS-9) is alleged to sleep at desk, play computer games or argue on the phone. S/he will frequent the Resource Information Center to discuss topics of interest with other employees and does not appear to perform any FCC-related work.
(GS- 10) is alleged to travel back and forth to the lunch room and "hang-out" at the guard's station.
The writer observed on at least one occasion that stayed at the guard station for the entire guard shift. The writer observed a general lack of any FCC-related work performed by The 6th person named in the statement is (GS-11) who was the subject of a separate investigation that has since been forwarded to the Bureau.
After reviewing the alleged activities, it has been determined that those issues, while serious, are more appropriately addressed by Bureau Management, in the first instances, as managers are best positioned to observe, and evaluate their employees' on-the-job performance and take appropriate remedial action, if necessary. (Back to business as usual?)
+On Wednesday June 11, 2014, received an email from the J.P. Morgan/Chase fraud section indicating a possible fraud alert for the travel card belonging to FCC employee. According to J.P. Morgan/Chase three (3) cash advances were taken using the travel card on June 3, 2014 and June 4, 2014 for a total amount of $480.11. The travel card was deactivated on June 5, 2014. According to JP Morgan/Chase will not be pursing this issue as a fraud case as it appears to be a case of "user misuse".
According to __ has been listed as AWOL intermittently since January, 2014. Mr/Ms. [redacted] advised that __ is currently on administrative leave and is not being allowed into the building, due to a possible medical condition, and is being required to bring in doctor's note before he/she will be allowed to come back to work. Mr/Ms. confirmed that __ is not on official government travel and that __ has not responded to attempts to contact regarding the suspicious charges on travel card.
+On September 8, 2014, an allegation was made that __ currently maintains a "high leave balance" despite the fact that s/he was not at work for approximately three (3) months. The time and attendance records show that s/he used a total of 474 hours of approved leave in the period using a combination of annual leave (176 hours), sick leave (146 hours) and time-off award leave (152 hours). It should be noted that for the 17 days of badge activity found, s/he did not complete his/her of tour of duty by 17 hours and 33 minutes.
+ Three as yet to be published reports to the OIG and Congress during 2014 and 2015 that FCC employees negligently and illegally released the identitity of a confidential intelligence source and hampered ongoing intelligence investigations related to domestic terrorism.
Etc., etc., etc.
Linda W. Beard writes: "As a federal government employee, I wish that each person found guilty of stealing from the workplace would have their name and picture plastered all over that agency and in the newspaper and on TV. Let everyone see what a criminal who's supposed to be working for the government but instead is screwing off and stealing, on my tax dollars, and yours, looks like. Looks like they need some harsh jail time along with paying back every penny, plus interest, to that agency they stole from."
FCC will finish upgrading their perpetually dysfunctional website later this fall. Maybe. In September, the commission 'upgraded' the many databases maintained by the agency - including physically moving FCC servers to a new location. The process was not entirely smooth: Several of the databases were offline for days longer than expected. In October, the FCC unveiled it's equally dysfunctional and disorganized protype BETA website, which was to have been completed in September, but which now has an open-ended completion date, apparently. The FCC has recently published this very informative organizational chart of its Enforcement Bureau. As always, the best results can be obtained by employing a Google search and hoping they've indexed the relevant page at FCC.gov. Read more at The Hill.
From 2007 to 2012, the FCC issued over 400 final rules. Yet an OMB review found that the FCC was one of only two independent agencies that did not include at least "some information on benefits or costs" in even its major rulemakings. Instead, a disturbingly partisan FCC increasingly engages in a free-ranging and opaque decision-making process that has become the butt of late-night comedians and the source of political scandal. In this environment, the FCC executes bizarre last minute reversals and backroom deals that have drawn the ire of Congress. The FCC's refusal to follow good government practices of nearly every other federal agency has legal as well as economic consequences. Long-standing Supreme Court precedent requires at least some analysis of the economic impact of rules, yet the FCC ignores input and disregards facts, preferring to live in a fairy-tale world of make believe press releases that belie the truth.
In court documents, USTelecom, the National Cable & Telecommunications Association, the American Cable Association, CTIA, The Wireless Association, AT&T, CenturyLink and WISPA (Wireless Internet Service Providers Association) say the FCC is attempting an illegal power grab with their new Title II regulations. They say the FCC overturned years of decisions that companies had relied on, abandoned 20 years worth of interpretations, ignored the court, and did not provide proper notice for changes. Moreover, they claim this is not the exercise of 'expertise.' To the contrary, they say, it is an effort to enact a regulatory fiat that Congress has expressly foreclosed.
In a letter to FCC Chairman Tom Wheeler dated Oct. 9, Rep. Marsha Blackburn (Tenn.), vice chair of the Energy & Commerce Committee, joined by Communications Subcommittee Chair Greg Walden (Ore.), and ten other House members, said the FCC's potential entry into the privacy regulation arena was "troubling" for a number of reasons.
1. The FTC has been the sole Internet privacy regulator.
2. The Title II reclassification was done unilaterally. They said the FCC's "jurisdictional appetite" was problematic.
3. The FCC does not have the technical expertise to regulate privacy, they argue, citing FTC commissioner Joshua Wright's testimony to Congress that the FCC's assumption of privacy oversight would create "obstacles to protecting consumers."
Read more at Multichannel.com
Tennessee accused the Federal Communications Commission of unlawfully violating state sovereignty in an appeal filed last week, alleging that the federal government is attempting to arbitrarily rewrite state law and vest itself with new powers not granted by the Constitution. The appeal was filed in response to an FCC ruling that struck down the state's geographic limits on city-owned utilities' broadband offerings. At odds are the federal separation of powers and the 10th Amendment which prevents the federal government from usurping powers reserved to the states. Read More
Congresswoman Eshoo (D-Calif) and Senator Richard Blumenthal (D-Conn) are said to be furious about the FCC's failure to protect workers from RF exposure, despite adequate rules presently in place. "The FCC is looking into it" according to an FCC spokesperson... but industry Insiders claim the FCC and cell carriers have been cozy and in collusion for years.
In fact, there is a well documented history of correspondence between the EMR Policy Institute and former District Director David C. Dombrowski of the now defunct FCC "Philadelphia" field office (formerly in Langhorne, PA). In written correspondence, the EMR Policy Insitute's Janet Newton took David Dombrowski to task for failing to enforce the rules and for being confused about the regulations. These documents demonstrate that the FCC was aware of the issue more than three years ago, and that the FCC failed to take concrete action against violators in and around Philadelphia, despite multiple complaints. In 2009, the FCC issued an NAL to a Florida concern, but no such action was taken in the northeast.
In a letter to FCC Chairman Tom Wheeler, the powerful Democrats said that "even though the FCC recommends that wireless carriers control exposure to harmful RF radiation using safety protocols such as signs, barricades, and training, it has come to our attention that these recommendations have not consistently been implemented to protect workers." They said beyond the hazards to cell tower workers of free-standing structures, the towers are now found atop all kinds of buildings from apartments and schools to hospitals, churches and fire stations, "putting RF technicians but also roofers, water proofers, electricians, carpenters, building maintenance personnel, HVAC technicians, painters, firefighters" and others at risk from the radiation."
Now that Congress and the Senate are involved, we may see sensible and timely enforcement measures from the FCC. In their letter to FCC Chairman Wheeler, Blumenthal and Eshoo wrote, "We look forward to hearing what next steps you have planned to make sure that the expansion of our telecommunications infrastructure does not come at the expense of the health and safety of hardworking Americans."
It is a terrifying fact that the nation's 911 service doesn't work imperiling millions, while thousands of roofers, painters, and electricians, and members of the public are at continued risk from RF exposure, yet, inexplicably, the FCC has given short shrift to public safety issues and instead spent money and scarce resources chastising hobbyists, and failing to collect proposed fines, due to bone-headed procedural and factual errors. A few of the FCC's time wasting, low priority cases are located here, here, here, and here.
Read more about RF safety here and here
Days after the FCC "upgraded" their website, the universal license system is malfunctioning. "I thought there would have been an issue after the big website server switchover in early September," ARRL VEC Manager Maria Somma said. "This is a bit of a surprise!" Somma also said the ULS license search function "has only been working sporadically." Read more.
Two in three Americans (49%) see the federal government as a threat to their rights and freedoms and three in four Americans (75%) last year perceived corruption as widespread in the country's government. Trust in the federal government is also hovering at the lowest measured point less than four in twn (38%) saying they trust the government to competently handle domestic issues. The majority of Americans also see Congress and the Senate as being corrupt and out of touch.
Read more here, here, and here.
The FCC expects an orderly shutdown will take four (4) hours to accomplish, following the announcement of sequestration. Ninety-Eight percent (98%) of all FCC personnel will be sent home in the event of a government shutdown. Two (2) Enforcement Bureau employees will be retained to protect life and limb. The following activities will be suspended: Consumer complaint and inquiry phone lines; consumer protection and local competition enforcement; licensing services; management of radio spectrum; equipment authorizations. On a positive note, unneccessary regulations and ridiculously inflated forfeitures for imaginary rules violations will not be contemplated during the shutdown. The shutdown will not be televised. Read about it here.
The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments against the Federal Communications Commission's rules on Dec. 4. A number of amicus briefs share similar arguments. In its Net Neutrality Order, the FCC stated that broadband providers do not have a right to free speech. "Broadband providers are conduits, not speakers ... the rules we adopt today are tailored to the important government interest in maintaining an open Internet as a platform for expression." Former FCC Commissioner Harold Furchtgott-Roth argues that the rules violate the First Amendment right of Internet providers to display the speech they choose. "If the court upholds the FCC's rules, the agency's authority over the Internet would extend from one end to the other," Fred Campbell, president of the Center for Boundless Innovation in Technology. The Georgetown Center for Business and Public Policy argue that the FCC's actions will hurt investment in the Internet. The International Center for Law and Economics filed a brief drawing upon the expertise of several scholars and telecom law experts pointing out that FCC exceeded its legal authority as well as Supreme Court precedent in issuing the Open Internet order. Additionally, they maintain the FCC failed to consider relevant economic literature, evidence and costs of the rules.
Read more about the panoply of briefs arrayed against the FCC.
The FCC's landmark "net neutrality" order is under serious legal threat, challenged in a case joined by a wide range of industry participants and outside legal, economics, and technical experts. The FCC will submit its own brief next week, and oral arguments in the lawsuit before a D.C. federal appellate court are now scheduled for early December. Opposition to the FCC's third effort to anoint itself as the sole regulator of markets for broadband Internet access has drawn opposition from a much broader group of opponents than two previous attempts, both of which were rejected by the court. The D.C. Circuit's opinions so far have been short and sweet, and for a simple reason. A bi-partisan Congress in 1996 explicitly denied the FCC authority to regulate ISPs, announcing that the policy of the United States was instead to "preserve the vibrant and competitive free market... for the Internet and other interactive computer services unfettered by Federal or State regulation." Larry Downes has more, at Forbes.com
The current model of the Field was adopted approximately 20 years ago. Since then, technological changes and increasingly limited resources have created the need to take a fresh look at the Bureau's Field operations. This Order refocuses the Field in a manner that is better aligned with the priorities of the Commission and the Bureau as a whole. The Bureau will close its field offices in or near Anchorage, Alaska; Buffalo, New York; Detroit, Michigan; Houston, Texas; Kansas City, Missouri; Norfolk, Virginia; Philadelphia, Pennsylvania; San Diego, California; San Juan, Puerto Rico; Seattle, Washington; and Tampa, Florida. Relatedly, the Enforcement Bureau field offices in or near Atlanta, Georgia; Columbia, Maryland; and San Francisco, California will relocate to FCC-owned properties nearby or in the same metropolitan areas. It is further ordered that all Enforcement Bureau field agents shall have electrical engineering backgrounds. It is further ordered that the Commission implement a nationwide outplacement effort to assist all displaced employees to find positions in the public or private sectors, including other vacancies within the Commission for which they are qualified and selected.
Facts are stubborn things. FCC Commissioner Ajit Pai, says capital expenditures by major wireline broadband providers plunged 12% in the first half of 2015 compared to the first half of 2014. The decline among all major providers was 8%. This decrease represents billions of dollars in lost investment and tens of thousands of lost jobs. The FCC's decision to capitulate to the President's demands and impose Title II public utility regulation upon the Internet is playing a large role, according to Pai.
In Illinois and St. Louis, ISP's are delaying network improvements that would have upgraded customers from 3 Mbps to 20 Mbps service, new tower construction that would have brought service to unserved areas, and capacity upgrades that would have reduced congestion for existing customers. Pai said, A former Chief of Staff to a Democratic Commissioner wrote earlier this month that "a disquieting anti-business bias has become manifest" at the FCC and that the Commission is acting in a manner that is "antithetical to the needs, interests and well-being of the telecommunications, media and technology sector." I share his concern. And I worry that a wave of meddlesome and heavy-handed FCC intervention into the marketplace, of which Title II is just one crest, is impeding investment and innovation.
Here, the facts and evidence strongly indicate that the FCC's decision to impose public utility regulation upon the Internet is slowing infrastructure investment and broadband deployment. To many, this does not come as a surprise. We said as much then and we say so now. But it is nonetheless a disappointment for all Americans who want faster Internet speeds, more competition, and more digital innovation. And it is another reason why the United States should abandon this politically-driven scheme and return to the bipartisan consensus that helped make our Internet economy the envy of the world.
Mr. Pai's complete statement is here.
The U.S. government spent about $2.2 billion last year to provide phones to low-income Americans, but a Wall Street Journal review of the program shows that a large number of those who received the phones haven't proved they are eligible to receive them. Payments increased from $819 million in 2008 to a staggering $2.2 billion in 2013, and now the FCC has asked to expand the program to include broadband subsidies. More specifically, it proposed last month to expand Lifeline to subsidize broadband services without adequate controls to prevent further misuse of funds.
In some cases, Lifeline plans were registered with forged signatures to people who had not requested them. In others, they were assigned to vacant homes. Last November, a TV producer from a Denver news team received a free cell phone from a street-side vendor with ease. When he walked up to the tent and said he didn't have a food stamp card, the vendor simply used one belonging to another citizen. Indeed, sidewalk salesmen hired by vendors to work these booths said they were encouraged by their employers to push the applications through regardless of issues. In Denver, they routinely accepted fake food stamp cards, including one with "training card" on it and another clearly printed from an Internet file. Because they receive $3 for each new subscriber they enroll, street agents are eager to approve everyone.
Until 2012, FCC rules didn't even require carriers to certify to the FCC that subscribers were eligible. Consumers could "self-certify," and in many states documentation wasn't required. Subscribers didn't have to recertify once they were enrolled in the program, and there were few checks on whether households signed up for more than one cellphone. More than once, the Government Accountability Office has taken the FCC to task for failing to control the program, evaluate its flaws and improve accountability. Not surprisingly, a number of people have called upon the FCC to end the program altogether. In fairness, there are those who have resoundingly endorsed the ObamaPhone program.
"The Telecommunications Act of 1996 was meant to promote competition and reduce regulation. Today, the FCC is even further entrenched in regulating a communications market that has changed dramatically since the mid-1990s. Congress must update our communication laws in ways that will not generate new rationalizations for FCC oversight. Policymakers should view Internet communications as a baseline for deregulation, and move legacy communications toward deregulatory parity."
Communications without Commissions: A National Plan for Reforming Telecom Regulation by Braden Cox and Clyde Crews, October, 2005
The Cox and Crews plan is just as relevant in 2015 as it was in 2005. The FCC asks for more and more money; 911 is still broken; AM revitalization is sinking fast; the courts are overflowing with challenges to vague and unenforceable rules; government has annexed the Internet, and; the broadcast spectrum has more pirates than ever. The abuse in the ObamaPhone program wastes millions and the FCC seeks to expand its welfare regime to broadband (ObamaNet) with no coherent plan to fix the fraud and abuse of the original comm-welfare plan. Worse, investment in the Internet has completely stalled since the Net Neutralization plan was announced as nervous innovators and corporations reeling from arbitrary and capricious enforcement of unpublished rules forces creative and monied stakeholders to look elsewhere as they face a fickle and often farcical regulatory regime.
The FCC requested $10 million in 1998 for a "one time move" into the Portals, an expensive rental property in Washington, D.C., for an agency of less than 1,800 employees. One again, 44 million was requested in 2016 for a "one time move" out of the Portals, for the same agency of less than 1,800 employees. That's 54 million requested, simply for moving expenses over the past 18 years. $10 million was requested for a failed IT overhaul 10 years ago. $15 million was requested for the current IT modernization which is expected to result in the same kinds of "improvements" as the last IT overhaul. That's 25 million requested for dubious IT "improvements" over the past 10 years.
Use the FCC's "search" function to find an FCC database by typing "Daily Digest" into the search bar. The first result is the February 18, 2015 Daily Digest. Hey FCC, it's September! Now type "ULS" into the search bar. The first result? WIRELESS TELECOMMUNICATIONS BUREAU ANNOUNCES THAT THE UNIVERSAL LICENSING SYSTEM WILL NO LONGER BE ACCESSIBLE FROM 12:15 AM UNTIL 2:15 AM EASTERN TIME - EDOCS Mar 29, 2000. Okay, we're all used to the fabulous Google search engine, but when your first result is a 15 year old link about why the ULS was broken 15 years ago, something's very, very, wrong. Ironically, this is exactly what we expect from the FCC, and it's the best example of why we shouldn't trust bureaucrats to get it right.
"One might as well legalise sodomy as recognise the Bolsheviks." Winston Churchill
"I've never seen a gov't website so hard to operate, let alone so poorly run. The FCC needs to hire a new company to manage their site or better yet, fully develop the new site before launching bits and pieces at a time. Get it together FCC! This is why companies think you're a joke! you have no clue how to do anything." Melissa
"This entire debacle is a graphic illustration of just how inept and dysfunctional the bureaucracy of the FCC is. It is a bloated agency dinosaur full of cronyism, nepotism, and budget waste. Employees at the HFDF station in Suitland have been caught watching porn on the tax payers dime. In the past monitoring station employees have been caught jamming amateur frequencies from their home in a drunken stupor, and absolutely nothing was done. The enforcement branch is a basic extortion racket, and now they are going to target the internet as well. There is zero reason for the US to have this agency anymore. NSA could do frequency enforcement, and this entire agency could be shut down. It is completely useless. 530 million dollars of taxpayer's money that could be spent somewhere else." Robert
"In all honesty, I'm a 30 year veteran of tech engineering with more than 20 years Silicon Valley experience, and the apparent Marx Brothers routine doesn't impress me at all. No-one - I mean _no-one_ - 'moves' a data-center by physically putting a bunch of steam-powered legacy boxes on a truck and moving it. First, that implies the FCC is single-point-of-failure - zero-redundancy - and second, it states that the equipment is not interchangeable. No IT operation has equipment like that today, and any organization doing such an apparently massive strategic 'upgrade' would be moving away from this, not just moving the dinosaur from one room to another. Something as mission critical as the FCC being done this way speaks more to a monumental incompetence of leadership and management than it does any failure of the team-on-the-ground. Take your pick, but there's no excuse for this system being down or even 'delayed' this way." Richard
According to FCC Chairman Wheeler, enforcement efforts are focused on things that represent "an imminent threat to public safety and consumer harm." Those words elicited chuckles and outright guffaws from several amateur operators when read over-the-air recently. Apparently, the FCC believes preserving and protecting the conversations of noted pedophiles and ne'er-do-wells like Karol Madera and Donald Anderson are 'priorities' that are more deserving of federal attention than the numerous unresolved cases of FM radio piracy in places like Boston, New York, and Miami. The FCC has spent a great deal of time and money chasing amateur operators, even going so far as to appoint a Special Counsel for Amateur Radio Enforcement (SCARE). Are these alleged amateur miscreants an imminent threat to public safety and exemplors of consumer harm?
According to Representative Chris Collins of NY, FCC Chairman Wheeler sent him a letter recently which seems to characterize pirate radio enforcement as "not a priority." Quoting directly from the letter, "The time and expense of pursuing these cases present particular difficulties in the curent budget environment where Commission staffing is at its lowest in 30 years."
We surmise it's easier for the FCC to levy NAL's against amateurs, considering the fact that the FCC need only "hear" signals to determine culpability. The FCC claims they don't even need to physically locate an amateur at a radio station at the time of the alleged infraction. While not comporting with any civilized country's rules of evidence, it makes things easy. That and the fact that it takes about 10 years to adjuticate FCC allegations, in the rare instances when adjutication actually takes place. Of course, some of the accused will be dead of natural causes before adjutication even occurs, if it ever occurs. It's easy to claim victory over a corpse.
As two Commissioners commented recently, today's FCC motto seems to be 'EB Announces Largest Fine Ever' without regard for the fact that their so-called 'fines' can't be collected until trials and subsequent appeals decide actual culpability. This fact seems to be a convenient afterthought in FCC headlines. In fact, we can't think of a time in recent history when the FCC acknowledged that their enforcement orders are all subject to review, via trial de novo, and appeal(s).
Someone should write Representative Collins and the other 30 Representatives involved, informing them that the FCC has made it obvious that it is an FCC priority to preserve Karol Madera and Donald Anderson's right to discuss child rape, FCC staffer's cock-sucking, use of anal dildos, and Madera's threats against Americans, slander, and propagandizing for al Qaeda - not to mention supporting and cheerleading for deranged school shooters.
Obviously, the FCC's support for Madera and Anderson's disgusting and threatening conversations is much more important than preserving any FM station owner's right to broadcast without interference from pirates. Once Congress begins to understand the FCC, they'll be much less concerned about them making sense, adhering to Congressional intent, or acting in the public interest.
This has been an editorial by Jan Obermann and Frank Carhart.
While it is true that the FCC's Open Internet Order will undermine innovation, the larger danger is that this action is yet another instance of a bureaucratic administrative agency undermining separation of powers. We are becoming a nation of men, not laws. By allowing the FCC to unilaterally adopt, execute and adjudicate the order, we surrender the safeguards that checks and balances have traditionally afforded against the abuse of governmental power. As James Madison observed in Federalist 47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny." The problem becomes worse when the 5 Commissioners never even see most of the published Orders.
For example, many Orders from the Enforcement Bureau come from an engineer who may have had a phone conference with a "lawyer" who was more than likely a lobbyist for a telco or wireless company, who will more than likely transition back to private industry in a position as a lobbyist. Often, judging by the poor court record of the FCC, neither one understands the legal or technical underpinnings of their decisions. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."
To make matter's worse, these unelected bureaucrats then declare parties "guilty" of violating this or that rule, before any genuine adjutication occurs. In fact, about 75% of the time, the U.S. Attorney decides not to take FCC forfeitures to trial because the underlying precepts, procedures, and legalities are fatally flawed. Despite the lack of due process, the FCC publishes their unproven and libellous Orders proclaiming "guilt" without recourse for their victims, because sovereign immunity prevents defamation suits against the FCC. Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." Modern Americans with the intellectual horsepower to understand Montesqieu's complaint through the lens of James Madison, need look no further than the FCC to see a nightmare come to fruition.
Read more here and here.
Matthew Berry, chief of staff for FCC commissioner Ajit Pai says: "Taken as a whole, the FCC's actions don't appear to reflect a consistent regulatory philosophy." Also, according to Pai's chief, in contrast to the incentive auction proceeding, the FCC has put media ownership on the back burner. "It has been over seven-and-a-half years" since the commission completed its last ownership review required by Congress every four years. Time after time, Commissioners Pai and O'Rielly have parted ways with the other three members of the Commission on the FCC's lack of due process, unfair rules, extra-legal decisions, self-aggrandizing fanfare, and grandstanding for headlines. Now they openly acknowledge that, in a very real sense, the FCC has become the enemy of regulatees and of consumers.
Commissioner Pai recently stated, "Nevertheless, the Commission asserts that [regulatees] violated novel legal interpretations and never adopted rules. And it seeks to impose a substantial financial penalty. In so doing, the Commission runs afoul of the fair warning rule. I cannot support such "sentence first, verdict afterward" decision making." In the TerraCom and YourTel America forfeiture case, Pai stated: "Consumer protection is a critical component of the agency's charge to promote the public interest. But any enforcement action we take in that regard must comport with the law. For the reasons stated above, I dissent."
Politicized Agenda - Extra-Legal Actions
FCC Commisioner Michael O'Rielly has also voiced the same kinds of concerns, over and over again. For months, O'Rielly and Pai have publicly expressed their frustration with how issues are being handled at the FCC. In February, the duo pressed Chairman Tom Wheeler's office to release a draft copy of the Net neutrality order before it was voted on. They argued that the public had not been given a chance to review what ultimately ended up in the proposal that was voted on. On several occasions, O'Rielly has also raised objections about the handling of procedural issues, such as how the agency finalizes documents voted on at commission meetings.
Commissioner Michael O'Rielly lit into the FCC's Enforcement Bureau in a speech to the Federal Communications Bar Association on June 11, 2015, in Washington, calling the FCC's enforcement regime "dangerously misguided."
"[T]he Commission seems more intent on obtaining newspaper headlines trumpeting accusations and eye-popping fines," he said. "In other words, self-aggrandizing fanfare is a major objective and often appears to be more important than case foundation, correcting the violation or establishing a reasonable deterrent."
At the FCC's June meeting, O'Rielly accused fellow commissioners of lying to him during discussions on a measure to crack down on robocalls and spam text messages. He declined to name the individuals whom he claims lied to him. "After 14 months working on this issue, it is clear that this process brought out a new low I have never seen in politics or policy making - which is saying something," he said at the meeting. "Along the way, some of us were led to believe that we were working together to find a common resolution. Instead, we were being deceived in order to produce one of the most slanted documents I've ever seen." He added that he would not be "so naive to trust again in certain people in leadership positions at the commission."
According to today's Salt Lake Tribune and James Morgese, general manager for KUED, the FCC wants to capture more over-the-air spectrum for mobile and Internet technologies. The FCC's goal is to move stations on channels 52 to 31 to lower channel assignments. When that happens, over-the-air reception will be cut to more than 100,000 viewers statewide. Affected residents will be forced to purchase cable or satellite service. Some will have no over-the-air television at all. All free, over-the-air television, including the educational programming to homes and schools, will be reduced by 60 percent. Access to commercial television will be eliminated in rural areas of Utah. Affected households will lose access to emergency public safety information, news and weather alerts. The citizens of rural Utah are excluded from participation in the decision making process. It's time for people in Utah to communicate to elected officials the significant impact this will have, especially to Utah and other Western states.
According to the National Association of Broadcasters (NAB) local authorities once had many consumer protection tools at their disposal with which to force cable operators to play fairly with consumers. However, with its new effective competition decision, the FCC has now declared that all cable companies have adequate competition, and the local cable operator is free to bill and set terms of service pretty much as it pleases.
Illegal, arbitrary, capricious, an abuse of discretion, in violation of First Amendment, in excess of authority....
The NAB says consumers are the big losers in this sea change. By deeming the nation effectively competitive, the FCC stripped from local franchise authorities across the country their longstanding roles as cops on the beat. Without the power to protect consumers, local authorities are being pushed aside to allow for higher cable prices - especially for basic cable service - more mysterious fees, higher equipment costs, and the potential disintegration of the basic tier of service, including the loss of Public, Educational and Governmental (PEG) channels. Fed up with the state of broadcast ownership rules and the paper tiger in Washington, and arbitrary, illegal, and capricious incentive auctions, the NAB is once again suing the FCC.
Digital forensics expert Tom Whatley discusses (below) the hidden motivations of shooters like Vester Flanagan, including what, and who, motivates them. Whatley has worked as a Detective and has assisted various federal agencies in a variety of venues. For example, Whatley helped the FCC play whac-a-mole with radio pirates in south Florida and he's worked with the FBI to find lost and missing children. He's worked with the DHS and U.S. Coast Guard Auxiliary, as well as Immigrations and Customs Enforcement and the Drug Enforcement Agency, among others. Tom Whatley is co-owner of the Digital Forensics Group.
In 2003, when the FBI was stumped for over 5 years on a case involving a kidnapped child, Whatley persuaded the National Center for Missing & Exploited Children to arrange a massive mailout of 75 million fliers displaying a photo of Angeline D. Bryan-Hoercher. As a result, the child was reunited with her mother.
Vester Flanagan, like Karol Madera, was a fan of several high profile serial killers and he blogged about his admiration for them on FACEBOOK. In most cases, the police and other agencies get it right; in others, they drop the ball. Tom has been critical of enforcement agencies who ignore the ongoing threats of would be killers, or conversely, agencies that take illegal actions without adhering to the principles of due process and the cases of civil rights violations in the news recently. Whatley is pro self-defense and says he believes society should do more to keep guns out of the hands of the mentally ill. Vester Flanagan, the crazed gunman who executed on live morning TV two local journalists who worked at his former station, was told before being fired by the station to seek help for possible mental health issues -- then he lingered in Roanoke, Va., for more than two years, living in a squalor amid cat feces, publicity photos of himself, porn, and unwashed sex toys. "The issue here is, there's no really good mechanism to predict who will kill and who is a just a keyboard commando, if you will," according to Whatley, who went on to say, "People who make violent threats via social media, YouTube, Facebook, etc., probably ought to be sent to a psychiatric hospital for 72 hour observation, but our laws don't allow for that -- yet."
Presidential contender, Donald Trump agrees with Whatley, stating, Mental illness is "a massive problem," one day after two Virginia journalists were brutally murdered by a disgruntled former co-worker, but he does not believe there is any need to get rid of guns. "If you try to do it, the bad guys would have them." Instead, the focus should be on solving the mental health issues. New York City's Deputy Police Commissioner for Intelligence and Counterterrorism John Miller, also agrees, calling Flanagan the classic injustice collector. Newsmax.com, publishes the Franklin Prosperity Report and Newsmax magazine with a distribution of 14 million. Newsmax also runs a cable news channel, Newsmax TV, reaching an audience of over 40 million.
Given the FCC's penchant for conjuring regulation out of thin air, companies should be wary whether the agency's enforcement activities offer any limiting guidance regarding its future role in privacy or security enforcement.
If Congress had assigned this role to the FCC (it has not), and if there were no other agencies already tasked with protecting online privacy and security (there are), the FCC's current posture might make some sense. But for nearly two decades, the FTC has exercised its congressionally assigned role to protect the online privacy and security of U.S. consumers.
In the short term, imposing new obligations that conflict with what other agencies, particularly the FTC, were already doing, will cause companies to spend more time and money on compliance, and less on investing in networks and developing the next breakthrough technology. The Internet is far too important to U.S. economic growth and productivity to be saddled with unnecessary regulations from any agency.
Accordingly, the FCC should refrain from imposing its Byzantine privacy regime on broadband and Internet providers. If it doesn't, Congress may need to re-emphasize the roles it has set for agencies regarding privacy and data security issues. Meanwhile, we two commissioners - one from the FCC and one from the FTC - will continue to execute our individual duties to protect consumers while striving to minimize needless burdens on providers. Mr. O'Rielly has been on the Federal Communications Commission since 2013. Ms. Ohlhausen has been on the Federal Trade Commission since 2012. Read more - from the Wall Street Journal.
We all hate annoying telemarketers and their unsolicited texts and phone calls, but most of us hate incompetent bureaucrats and hypocritical fools even more. We propose the FCC for your consideration. The commission is fining Travel Club Marketing a total of $2.96 million for making 185 unsolicited calls to cell phones and landlines belonging to 142 people, most of whom were on the Do Not Call list. "It is unacceptable to invade consumers' privacy by bombarding them with unwanted and intrusive robocalls," says Travis LeBlanc, chief of the commission's Enforcement Bureau. "All companies, and their owners, who thwart the Do Not Call list should expect to face severe consequences."
Now consider the FCC's violations of it's own rules, which have not resulted in any fines at all. Remember the FCC employees who were downloading porn (including child porn), staring out the window all day, pursuing their side businesses at work, leaving late and going home early, all on the tax-payers dime? It's all in the FCC's OIG reports. Was anyone fired or forced to pay back those tax-payer dollars? Hello. Hello.... Anyone there....? Read the amusing tale of how the FCC 'clarifies' the very rules they fail to follow themselves brought to you by our good friends at Fletcher Heald & Hildreth.
There is widespread agreement that overly broad, unduly burdensome regulations by overzealous administrative agency bureaucrats are harmful to the nation's economy. But less attention is paid to the way in which such regulatory overreach impinges upon - and thus devalues - fundamental rule of law norms.
While the adverse economic impact resulting from excessive bureaucratic zeal may be more immediately evident, and even quantifiable, the steady erosion of respect for the rule of law resulting from the exercise of unconstrained bureaucratic power is just as real. The Washington Examiner has more.
The FCC and AT&T Don't Care About Rural Areas and They Can Just Make Crap Up
"Let me give you some highlights of how the FCC, our government, wasted New Networks Institute's time and didn't investigate even the basic claims, then just either got it wrong or put words in our mouth. What a shame it got the facts wrong and spent the time mostly making up garbage we never said or implied, or that the Agency is either in bed with the carriers or is in denial that it screwed up before, or was in a rush to push through the merger, or all of the above. Some have suggested we should just send the FCC a bill for the time spent by the lawyers and analysts who put together the Petition. The FCC is keen on pointing out potential issues with your facts; it has no interest whatsoever in getting at the truth. What is the FCC smoking?" Read more.
Despite protests from the American Hospital Association, three U.S. senators and 16 members of the House, the FCC has allowed unlicensed devices to co-exist with medical monitors. The attached July 21 letter from the AHA and the American Society for Healthcare Engineering, to the FCC, highlights our concerns....
"These unlicensed devices may cause interference with wireless monitoring, preventing doctors and nurses from receiving vital information," said Vice President of the ACA, Rick Pollack. "There are more than 360,000 WMTS patient monitors in hospitals today, many of which are used for women and infants during labor and delivery and critical heart surgery patients. ... The FCC did allow for an increased buffer, as advocated by Commissioner Pai; however, the commission ignored technical considerations in setting the distance and will require each hospital to demonstrate that larger protection zones are necessary."
"Four ACA International company members move to intervene in support of the association's lawsuit seeking judicial review of the FCC's TCPA ruling. When the FCC issued the TCPA ruling, it fueled significant lingering uncertainty and fostered new uncertainty among consumers and the credit and collection industry alike. The level of uncertainty created by the ruling is sure to encourage even more TCPA class-action litigation. And while FCC Chairman Tom Wheeler would have the industry believe that the ruling created clear and easy to follow regulations, the ruling did nothing of the sort. As such, there is likely more opposition to the FCC's TCPA ruling to come." Read more.
A vast coterie of allied tech experts called the FCC's net neutralization plan: arbitrary, capricious, bungling, ham-fisted, in excess of congressional intent, contrary to the first amendment, unnecessary, and unauthorized by the 1996 Telecom Act. They also submit that the FCC failed to consider evidence before it; a continuing theme of late.
The Telecommunications Industry Association (TIA) said the FCC failed to consider and respond adequately to extensive record evidence. Richard Bennett of the High Tech Forum said: "The FCC's order is an example of a bungling regulator achieving exactly the opposite effect from the one it set out to cause by failing to understand the subject matter. The Internet is capable of being much, much more than it has ever been, but the FCC's ham-fisted regulatory model will actually cause it to be much less than it is today." Former FCC commissioner Harold Furchtgott-Roth and the Washington Legal Foundation make two arguments: that Section 706 of the Telecommunications Act of 1996 does not authorize the FCC to regulate the Internet and that the open Internet order won't hold up to First Amendment scrutiny. The National Association of Manufacturers, the Business Roundtable, and the Chamber of Commerce of the United States of America argue that new broadband regulation is unnecessary and that new regulation would stifle investment in new broadband technology. The Multicultural Media, Telecom and Internet Council argued that public utility style regulation will harm the digitally unserved and underserved.
Christopher Yoo, an Internet legal scholar, argued that the order contradicts the technical principles that determined the Supreme Court's decision in National Cable & Telecommunications Association v. Brand X Internet Services. The International Center for Law and Economics drew on the expertise of several scholars and telecom law experts to argue that the FCC exceeded its legal authority as well as Supreme Court precedent in issuing the Open Internet order. They also argue that the FCC failed to consider appropriate economic studies, evidence, and the costs of the rules.
"If rules such as these are not reviewed under the most rigorous scrutiny possible, government favoritism and censorship masquerading as 'neutrality' will soon cascade to other forms of mass communication," the Georgetown Center said in a statement Friday. "The critical distinction is that telephone services are used for private, person-to-person communications whereas broadband providers are engaged in the mass dissemination of public speech." Read more here and here.
Counts ways FCC has dismissed evidence, overstated threats -- In their amicus brief, the center's scholars/economists argue that the FCC overstates the benefits of Title II based on the groundless assumption that ISPs are gatekeepers bent on harming consumers and content providers, and that the FCC at the same time underplays -make that "dismisses"- the "real threats to innovation, investment, and output from Title II regulation." The Center also claims the FCC has dismissed the benefits of the past two decades of light-touch regulation. The court has scheduled Dec. 4 for oral argument, which means a decision is likely sometime in first or second quarter 2016. The court last year remanded the FCC's 2010 net neutrality rules due to insufficient legal justification. John Eggerton has more.
House commerce chairman Fred Upton (MI) and communications and technology subcommittee chairman Greg Walden (OR): "Three years ago, Congress put its faith in the FCC to tackle a monumental task: an incentive auction that benefits broadcasters, wireless broadband, and consumers. It appears that faith was misplaced. As Chairman Wheeler derides critics as focusing on the worst-case scenario, our concern is far more troubling - that the plan adopted today loses sight of producing the best-case scenario." The statement from the House also called into question the FCC's raison d'etre; "It's hard to see how the FCC's approach could be in the public interest when it unnecessarily shortchanges everyone involved - including taxpayers."
There was equally harsh criticism from the NAB: "The FCC undercuts the notion of a voluntary auction; low-balls payments to TV stations interested in exiting the business; establishes a haphazard variable band plan destined for decades of interference disputes; guarantees maximum loss of LPTV and translator service for millions of Americans in exchange for a handout of free spectrum with no public interest obligations to multibillion dollar companies; and jeopardizes lifeline news coverage of local TV stations in some of America's largest cities," said Dennis Wharton, the National Association of Broadcasters executive vice president of communications. Read more here and here.
Mass Retention of Telecommunications Data Implicates Substantial Privacy and Associational Freedom Interests. Section 42.6 requires telecommunication carriers to retain sensitive information on all of their customers, including the name, address, and telephone number of the caller, telephone number called, date, time and length of the call. These telephone records not only show who consumers call and when, but can also reveal intimate details about consumers' daily lives. These records reveal close contacts and associates, and confidential relationships between individuals and their attorneys, doctors, or elected representatives. This practice should end. Read more
US Court of Appeal, District of Columbia, April, 2008 -- "Indeed, in Kent County we ordered the agency to supplement the administrative record even though there was no indication 'that the agency [had] purposefully excluded the documents.' 963 F.2d at 396. Here, by contrast, there is little doubt that the Commission deliberately attempted to exclude from the record evidence adverse to its position.... Under the circumstances, the Commission can point to no authority allowing it to hide from the public... studies that may contain contrary evidence, inconvenient qualifications, or relevant explanations of the methodology employed." APA section 706 requires the court to set aside arbitrary and capricious agency action after reviewing "the whole record," 5 U.S.C. section 706, and the "whole record" in this case includes the complete content of the staff reports the Commission relied upon.
Read the ruling from the US Court of Appeals.
Commissioner Ajit Pai has blown the whistle on Fraud and Abuse in the FCC's so-called 'Lifeline' (phone welfare) program. Phones are being given away to people who don't qualify. No consideration is given to eligibility. Millions of your tax dollars are wasted every year. Not satisfied with mismanaging millions, now the FCC wants to expand the program to cover welfare for broadband! Watch the CBS4 undercover sting.
The court's opinion in Michigan v. EPA brings major regulatory decisions under new scrutiny. The first on the cutting board could be the FCC's attempt to regulate the Internet in the name of neutrality. According to MI vs. EPA and URF vs. EPA, "agencies must operate within the bounds of reasonable interpretation" and "where there is an absence of a reasoned approach, Orders are held to be illegal." Agencies must also show that the costs of enforcement have been considered, as contrasted with the cost benefit of doing nothing at all.
In Christopher vs. SmithKline Beecham, the court ruled, "no notice, no deference" meaning, unless there is a clearly articulated warning, based on a reasonable interpretation of a statute, an agency cannot impose a penalty on a regulatee. The Supreme Court's decision in Christopher is representative of a trend in past terms, in which federal agencies suffered a string of defeats for what amounted to overreaching. For example, there will be no deference to an agency interpretation that is a "post hoc rationalization" or "what amounts to an unfair surprise" which has been a hallmark of EB decisions over the past few years. In Talk America Inc. v. Michigan Bell Telephone Co., 2011 BL 157472, 79 U.S.L.W. 4442 (U.S. 2011), Justice Scalia remarked that it is "contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well." The FCC has set itself up as rulemaker, interpreter, investigator, and judge, with no separation at all. All agency decisions are subject to scrutiny in the courts, especially forfeitures, assuming the US Attorney accepts an FCC enforcement case in an attempt to collect a judgment, but in the absence of such acceptance, a regulatee could be subject to sanction, absent due process. To be sure, no money would be collected, but the FCC might attempt to use an uncollected forfeiture in future administrative proceeedings, even though they had failed to prove the matter in court, thus confounding due process, 5th and 14th Amendment protections, and the intent of Congress.
In Federal Communications Commission v. Fox Television Stations Inc., 2012 BL 153978, 80 U.S.L.W. 4494 (U.S. 2012), the Supreme Court found that the Federal Communications Commission violated due process by changing its policy without fair notice. In United States v. Home Concrete & Supply LLC, 2012 BL 101632, 80 U.S.L.W. 4347 (U.S. 2012), the court rebuffed the Internal Revenue Service's effort to read a regulation in a manner different from the court's interpretation of identical regulatory language 54 years ago. And in a third case, the court unanimously rejected the Environmental Protection Agency's attempt to insulate from judicial review a "compliance order" that, in the government's own view, exposed the regulated persons to double daily penalties in any future enforcement action. See Sackett v. Environmental Protection Agency, 2012 BL 67234, 80 U.S.L.W. 4240 (U.S. 2012).
Assumptions
The present staffing level of the FCC Enforcement Bureau (EB) is 98, while the new one is 54, for a net loss of 44 positions. The 98 number includes no vacancies, so this is a loss of 44 employees, most of whom are long time employees. The anticipated date for the reorganization is February, 2016. Item #19 in the FCC Order states: "IT IS FURTHER ORDERED THAT the Commission implement a nationwide outplacement effort to assist all displaced employees to find positions in the public or private sectors, including other vacancies within the Commission for which they are qualified and selected."
See the Before and After Plan which includes names, titles, and locations.
A new GS-15 Enforcement Bureau 'Field Director' office has been created with a yet-to-be-named GS-15 E.E. as 'Field Director.' This position will replace all of the director positions in the former Northeast, South Central, and Western Regions, which will be renamed as Regions 1, 2, and 3. The Field Director will also supervise the Equipment Development Group. Cutting the redundant 'District Director' and 'Regional Director' supervisory positions from the field structure will save millions, with an expected improvement in priorities, productivity, communication, and understanding of the mission. Two of the lawyers in the Field Director's office are already named and they do not presently work in DC, so it's unclear where these positions will be located.
According to the "after' plan, Mike Moffitt might be 'right-sized' from a GS-15 (0301) Regional Director position down to a GS-14 (0855), Senior Engineer position, assuming he's selected and assuming he accepts the vacant position, which would be a two tier demotion and a loss of one pay grade.
For the rationale behind these cuts, consider the consultant's report that field staff handle approximately 1 case, per month, per employee and confusion about the mission and the numerous redundancies in supervisory roles. In many cases, according to unpublished interviews from the OIG and consultants, some supervisors simply rubber-stamped their employees' work and then headed out for a three martini lunch, or the equivalent, disappearing for the rest of the day. Salaries, pensions, space, and overhead are enormous expenses in the field structure, as you'll see in the examples below:
George (Mike) Moffitt, ELECTRONICS ENGINEER for the Federal Communications Commission, Park Ridge, Illinois, Salary: $157,100
*Laura L. Smith, GENERAL ATTORNEY for the Federal Communications Commission, Gettysburg, Pennsylvania, Salary: $141,660
*David C. Dombrowski, ELECTRONICS ENGINEER for the Federal Communications Commission, Langhorne, Pennsylvania, Salary: $147,059
*These employees are not listed in the "after" reorganization plan for the EB, which was released to the FCC's union. Laura Smith does not have an electrical engineering background, which would preclude her from being a Field Agent, pursuant to item #19 in the new order. However, if qualified and selected, she could apply for the Attorney Advisor vacancy in the new office of the Field Director. Staffers at the FCC are often redeployed to other bureaus and positions. For reference, the salaries listed are about $20,000 less than the halfway point for a senior software engineer at Google, but the workload is much less. As noted in numerous published FCC OIG reports, some FCC employees spend hours downloading porn, chatting on the phone, staring out the window, selling Mary Kay products, coming in late (or not at all) and leaving early, day after day. These problems occur year after year without redress. Many FCC salaries have changed recently, due to firing, demotion, transfer, relocation, and for other reasons.
In the reshuffled deck of 54 EB employees, many of the displaced who are already on site will vie for vacancies. There is 1 vacancy for a GS-15 Field Director; there are 6 vacancies in the Equipment Development Group; 2 vacancies in Columbia, MD; 1 vacancy in Boston; 2 vacancies for the Tiger Team in Columbia; 2 vacancies in New York; 1 vacancy in Atlanta; 1 vacancy in Chicago; 3 vacancies in Atlanta; 3 vacancies in Miami; 1 vacancy in New orleans; 2 vacancies in Los Angeles; 1 vacancy in Dallas; 2 vacancies for Denver's Tiger Team, and; 1 vacancy in San Francisco. Total vacancies: 29. Three 'bargaining unit' staffers will be demoted from GS-14 down to GS-13. Two are in Miami and one in Los Angeles. Save pay provisions will limit the salary impact, but the salary impact will be real and negative for these individuals.The Equipment Development Group in Powder Springs, GA shrinks from 10 positions to 7. This is the part of EB that develops new equipment and special built equipment.
It's unclear if FCC will pay the relocation costs of any of the 44+ employees who are affected by these changes. Since Ronald Reagan's era, the FCC has not budgeted for staff relocations, although Chairman Wheeler has said FCC will help affected employees find jobs outside the FCC. As mentioned, the Order states the Commission will implement a nationwide outplacement effort to assist all displaced employees to find positions in the public or private sectors, including other vacancies within the Commission for which they are qualified and selected.
Despite promises to Congress and the National Association of Broadcasters (NAB) to tackle the growing pirate problem in NY/NJ and Miami especially, there is no evidence this will happen, or that efforts will be sustainable. Pirates aren't limited to a 40 hour work week and suppression requires overtime funding and travel. In addition, the entire 24/7 operation of the FCC has moved from EB to to the Public Safety Homeland Security Bureau (PSHSB), which, historically is interested in safety-related issues, not pirates.
According to the FCC Order:
The Field will embark on a program to update its equipment and employee skillset to address the likely issues that will accompany new and expanded uses of spectrum. This program will include the expanded use of remotely operated monitoring equipment to supplement field staff, as well as the identification and use of portable devices capable of assessing interference issues in bands expected to experience heavy spectrum use (best guess: wireless). See the FCC's rationalization for the 'modernization' which is based on fiscal realities and a 300 page consultant's report, which is yet to be seen by Congress, assuming it actually exists...
Paragraph 15 of the Order states all Enforcement Bureau field agents shall have electrical engineering backgrounds. Focusing on academic credentials for such work is naive because the skill set for solving spectrum enforcement problems in the field has little to do with most EE curriculums. Yes, Virginia Tech, UCSD, NYU, and UT-Austin have programs in wireless technology, but the vast majority of EE graduates have virtually no exposure to wireless technology, focusing on issues such as software engineering and semiconductor design and manufacturing. This, coupled with the totally inept technical staff recruiting FCC has had for the past decade, means less capability in new hires, not more. FCC should hire capable people who can work with the public and other stakeholders, people who understand the FCC's arcane rules and procedures, and the Consitution, and emerging technologies, instead of focusing on meaningless credentials.
Will FCC pay for relocations related to this downsizing? For example, will staffers whose jobs are eliminated be eligible for FCC paid relocation to another office with a vacancy, or to Washington if they're selected for a job there? The 2016 FCC Budget has only $55k for Budget Object Classification Codes 22, "Transportation of Things" and there is no indication of any budget for the subcategory "2210 Change of Official Station". There are reports that those who keep their jobs as a result of this "modernization" may still face reclassification to a lower GS grade and thus a loss in net pay. (Federal personnel law prevents a salary decrease for a few years, but denies raises in such cases.)
Insecure Networks at the FCC
Millions of private citizen's social security numbers and other personal information, like names, addresses, phone numbers, and email addresses, are stored on FCC servers. "Our information technology (IT) systems are an invitation to hack", according to the Tom Wheeler at the FCC. It's unclear how much money the FCC will (again) spend on cybersecurity. Apparently the latest 10 million dollar "upgrade" two years ago, was completely ineffective in locking down the public's data. Ironically, or perhaps hypocritically, the FCC is now fining companies for failure to secure private information, when the FCC's servers are themselves, completely insecure.
Finally, regarding HFDF: A recent FCC employment vacancy announcement implies satellite monitoring and enforcement functions are also moving to PSHSB. This is a common sense nod to the fact that public safety is, and should always be, job #1.
~ Thanks to Michael Marcus, Sc.D for his extremely insightful commentary.
Discussing FCC attempts to work with Industry Canada about the notorious Fruitcake in Canada who often speaks with unidentified stations, and Donald Anderson (N4TAT), along with the latest NAL recipient David Tolassi (W4BHV), Hollingsworth said, "To put it bluntly it seems that Canada just doesn't care.... They have a person up in Canada that's been a big problem for this country and for the Canadians for years and years and years and they've done nothing about it. They just don't care. The things that that person says over the air would end up getting somebody in jail down here. The threats. He's threatened to kill half the Canadian government; they still don't care. We do work with Industry Canada. I was never able to successfully work with them in the amateur area because they just hide behind free speech and they just don't seem to care." Listen
See the full discussion and listen to the recording
Although WDBJ recently received a very stiff $325,000 NAL from the FCC for an extremely brief, tiny, and unintentional retransmission depicting a handjob, the FCC is apparently just fine with an international discussion involving lengthy and graphic depictions of homosexual anal sex and the use of dildos on 14.313 MHz by Donald Anderson and the notorious alcoholic and pedophile, Karol Madera (also known as al Qaida Northern Command) during the afternoon hours of July 20, 2015, when children might be listening.
Under FCC rule 97.117, "Transmissions to a different country, where permitted, shall be limited to communications incidental to the purposes of the amateur service and to remarks of a personal character." While anal sex and the use of dildos is certainly personal, is this what Congress intended, and is the FCC enforcement bureau arbitrary and capricious, or just plain nonsensical? WDBJ said the FCC has been historically unable to articulate a discernible standard by which station operators can accurately predict what speech is prohibited. Speaking of 14.313 MHz; another serial jammer, alleged wife-beater, alcoholic, and drug addict, David J. Tolassi (W4BHV) was recently cited (again) by the FCC.
The National Association of Broadcasters and Radio and Television Digital News Association argue that not only is the fine punitive and legally indefensible, it also is an "affront to the First Amendment values that undoubtedly will further chill speech," guaranteed under the first amdendment, the groups said in comments filed with the FCC. Read more
"The FCC's net neutrality rules impose the same old rate regulation on ISPs with the 'modern' addition of unfair procedures and discriminatory enforcement... I doubt ISPs are laughing at the irony in the FCC's decision to propose a record-setting fine for an alleged lack of transparency without the agency providing any guidance regarding the reasonableness of the underlying practice. Regulatory uncertainty about the lawfulness of reducing data speeds for heavy data users started chilling ISP behavior in the marketplace even before the FCC acted. Fear of unpredictable government sanctions and liability in court won't motivate investors to bet billions on next generation Internet infrastructure. It will create pervasive uncertainty that results in the same stagnation that slowed progress on the telephone network in the 20th Century." Read more
FCC Chairman Tom Wheeler and Congress agree the FCC's IT systems are old, broken, and full of security holes. According the Government Accounting Office, the FCC was hacked in 2013 (to say nothing of the OPM hack this year) and the FCC's 10 million dollar "fix" was completely ineffective. So, again, do you really want to trust the FCC with you name, address, and social security numbers, not to mention your credit card or ATM card data for license renewal? Read more from our favorite attorneys at Fletcher Heald and Hildreth, oh, and about that OPM hack, "I'm sure you will probably obfuscate, [but] when will the American people know ... the extent of this penetration?" Sen. John McCain, R-Arizona, asked OPM Director Katherine Archuleta at a hearing on Capitol Hill two weeks ago.
Congress: "The recent history of FCC activities demonstrates that although FCC leadership has publicly committed to process reform on more than one occasion, process failings persist. The incidents of process failures - some stark, others subtle - have been vetted before the Committee in prior hearings, have been the subject of letters from this Committee to the Chairman, and have been the subject of numerous press reports. The abuses of delegated authority, lack of transparency and accountability in agency decision-making and other agency processes (such as agency restructuring and budgeting), and agency overreach, paints an unsettling picture. In particular, the FCC's ludicrous system of approving rules and then not letting anyone actually see them for 30 days - something that drew particular ire with the net neutrality rules - will be under scrutiny." Congressman Walden: "Things might actually be getting worse at the Commission and that's disappointing to say the least."
"Our Government, has no power except that granted it by the people. It is time to check and reverse the growth of government which shows signs of having grown beyond the consent of the governed. In this present crisis, government is not the solution to our problem; government is the problem." ~ President Ronald Reagan at his Inauguration in 1981
Chairman Wheeler: "We are currently at the lowest number of full time employees in modern history for the agency."
The following is a list of issues for which, by design, the FCC has neither the money nor the expertise to effectively tackle: Interference; Auctions; Privacy; Designated Entities; the Telephone Consumer Protection Act; the LifeLine program; the AM Revitalization Proceeding; Lack of Transparency and Communication, Failed Process; Legal Challenges to 'Grey Area' NALs; Net Neutrality, and; Ignored and Shut Out Stakeholders - including two Commissioners.
"The FCC's new approach will discourage cooperation and self-disclosure, and it's going to force regulatees to beef up on litigation instead of compliance with the rules," one industry lobbyist said. "Ultimately, that's a poor use of resources for taxpayers, and it will lead to a worse result for consumers." LeBlanc acknowledged that many of his cases fall into a legal gray area, "...when you're in enforcement, you're almost always working in a gray area." (National Journal)
Congressman Long: 'Commissioner Pai... the Chief of the enforcement bureau has acknowledged that many of his cases fall into a legal grey area... can you explain your concern?'
FCC Commissioner Pai: 'Many of the FCC's initiatives betray the basic principle of due process and that's just not the FCC rules; that's going back to King John signing the Magna Carta at Runnymede... With respect to certain notices of apparent liability the agency has issued, it's a quest for headlines first, and we'll figure out the law later, if at all. But that's precisely backwards... we should look at the facts, look at the law, and if there's a gap in the law, let's change it... but we can't sanction somebody for violating a rule they have no reason to know, or don't know exists.' Watch
...and unconstitutional, indefensible, coercive, and contrary to evidence on the record. Read more
Although the FCC promised the people of the United States that 'net neutrality' would not herald any new taxes, it appears it's never that easy. Read more
According to Congress and stakeholders in rural America, the FCC's new rules and outdated, unclear, and unduly heavy regulations have already stymied investment, delayed deployment, and increased costs across the board. Read more
"The Commission's nullification of the FTC's jurisdiction and entry into the sphere of consumer online privacy raises significant and immediate concerns... the FCC has made clear through the Enforcement Advisory of its intention to scrutinize practices and hold broadband internet service providers liable, notwithstanding the lack of established rules." Which seems to be a polite way of saying "You don't know what you're doing." Read more
"Congress can protect both net neutrality and investment by overruling the FCC and passing new legislation that prevents Internet service providers from slowing down competitors' traffic or blocking access to websites, while scaling back some of the overreaching utility-style components of the FCC rules. Lawmakers on both sides of the aisle who strongly support open Internet protections should work with their colleagues to pass bipartisan net neutrality legislation this year." Read more
"Fortunately for consumers - and for the future of the Internet - a solution still exists. Instead of what will unquestionably be years of legal battles, as we've seen following the last two attempted net neutrality regulations, Congress can jump start the bipartisan spirit that shaped Internet policy since its inception. Draft bills have already been written and the potential for a deal exists. The regulate-the-Net crowd is starting to realize that the FCC order was so poorly reasoned that it is likely to be tossed out by the courts - making a perfect hat trick of defeats for the FCC on this issue."
"As I've said in the past, having close contact, and even coordination, between the FCC and congressional offices is a way of doing business that is as old as the Commission itself. In fact, such communications are a necessary and proper part of being an FCC commissioner or chairman. The FCC is a creature of Congress and is overseen and funded by those directly-elected representatives of the American people. What should raise eyebrows is when the FCC pulls up the drawbridge and crouches in the bunker to avoid, or work around, Congress."
With legislative intervention, the FCC can be protected by legislative certainty and bask in the glow of achieving statesmanlike bipartisan consensus. The future of the Internet, and America's digital economy, deserve no less. It's time to consider a different path - one that leads through Congress - to end the net-neutrality fiasco. Although the legislative process can be perilous, Congress can provide all sides with a way out."
Robert McDowell served as a commissioner of the FCC from 2006-2013. He is a partner at Wiley Rein LLP and a senior advisor to Berenson & Co. Read more
According to Commissioner Pai, we're seeing rate regulation via conditions imposed on the ATT/DIRECTV merger, directly after the FCC promised they would not be in the business of rate regulation.Read more
Congressman Chris Collins and all Congress persons in NY and NJ asked the Enforcement Bureau to fight pirate radio. Collins says the EB response is disappointing; essentially, 'We'll get to it when we can, maybe someday, if we've got nothing else to do, as interest allows, if we have time, assuming we can afford it.' Acknowledging the FCC's lack of authority in playing whac-a-mole with pirates, Tom Wheeler said, "We could use some additional authority, so we could have some teeth." Collins and other Congress persons previously requested for relief from pirates in the NY/NJ area. Read their request
Collins was frustrated by the FCC's lack of action in resolving issues related to its primary function, while at the same time appearing to focus more on moving, reorganizing, auctioning, privacy, telephone and broadband welfare, and attempting to take control control over the Internet. With regard to the internet takeover, Collins said: "The Internet's success is directly connected to the freedom in which it can be accessed and the lack of restrictive government regulations impinging its innovation. I will fight hard against this dangerous classification and work to ensure the Internet remains free and open."
Telemedicine could transform the medical experience, but the FCC's recent Open Internet rules threaten to bring this healthcare revolution to a stuttering halt. The future of the connected patient and doctor should not be held captive by outdated network classifications and regulatory sleight of hand. The FCC's erection of legal ghettos and its segregation of services into arbitrary buckets undermines the very notion of information technology and does not serve to advance medical innovations. The FCC should not be a gatekeeper of the future of telemedicine. We need Congress to act, not only to clarify the role of the FCC, but to provide a much-needed modernized legal framework for Internet innovation. Read more
The Senate appropriations committee has followed the House appropriations committee in using its power over budgeting to neuter the FCC's net neutrality order. The Senate FY16 financial service and general government appropriations bill contains a provision that prohibits the FCC from regulating Internet rates. The House financial services appropriations bill prohibits the FCC from spending any funds to enforce the net neutrality order. The Senate bill budgets $320 million for the FCC, which is $20 million below the 2015 budget. As previously reported, the FCC has already decided to close 11 field offices and to rid itself of 'do-nothing' staffers at the Enforcement Bureau. Read more
The program is funded by a universal service tax every cellphone user pays each month. It has grown from an $800 million program in 2009 to a $1.6 billion program today. "It covers people who don't need help," said FCC Commissioner Pai. "There are no safeguards to make sure the dollars are spent wisely. In the middle of Denver at a tent this fraudulent activity was going on. If it can happen in Denver it can happen anywhere." Read more
July 15, 2015 -- The EB's deputy chief, Bill Davenport, was recently quoted as saying that the $21 million it allegedly costs to keep FCC field offices and employees and equipment at current levels is too expensive and field office staffers have "too little work to do." In response to a contractor study, the Federal Communications Commission adopted a plan to modernize field operations within its Enforcement Bureau. It includes the closing of 11 offices. "The proposal will improve efficiency, better position the agency to do effective radio interference detection and resolution and meet other enforcement needs, and save millions of dollars annually after implementation is complete," it stated. Six compliance specialists will lose their jobs as a result. Field offices will continue in Atlanta, Boston, Chicago, Columbia (MD), Dallas, Denver, Honolulu, Los Angeles, Miami, New Orleans, New York, Portland (OR), and San Francisco. The remaining offices will close, including: Anchorage, Buffalo, Detroit, Houston, Kansas City, Norfolk, Philadelphia (Langhorne), San Diego, San Juan, Seattle, and Tampa. Read more
Commissioners Pai and O'Rielly approved the plan to cut 11 offices but pointed to challenges ahead, including working on "frayed" relationships between headquarters and agents in the field. Pai said agents cited "inadequate communications" and management concerns with the home office.... "They do not believe that their work is valued," Pai said. "In the months ahead, we must do what we can to repair this breach and give field agents the support that they need to carry out their important mission." Read more
"No contact has been made by the contractor, however, with any representative of SBE or of the broadcast engineering community to the present time. You testified on April 30, 2015 before the House Subcommittee on Communications and Technology of the Committee on Energy and Commerce that "thanks to the commission's process reforms, the agency is more efficient, more transparent and more engaged with the public." The means by which the Enforcement Bureau reorganization proposal was developed, however, was anything but transparent ... Read more
Bowing to pressure from Congress, Tom Wheeler, the chairman of the Federal Communications Commission, won't be holding a hotly anticipated vote this month on rules for a looming, high-stakes auction of wireless airwaves. The delay gums up one of the most important issues in tech and highlights the prescient comments of both Commissioners Pai and O'Rielly, regarding the negative effects of agency intervention on future investment. The decision to postpone came just hours before the FCC was due to consider the auction rules on Thursday, and the sudden delay is another reminder of how bitterly divided the agency has become... The agency's commissioners and staff have repeatedly clashed on net neutrality, on Internet subsidies, on transparency, on enforcement, on reorganization, on delegated authority, and on the Communications Act, and on other topics... Read more
Regarding the July 28th hearing continuing the subcommittee's oversight of the FCC, Congressman and Chair of the Committee, Greg Walden said, "We look forward to hearing from Chairman Wheeler and Commissioner Pai on recent developments at the FCC, their plans for the fall, and what efforts the FCC has made to fix its broken processes."
In a letter sent to FCC's Tom Wheeler, Congressional committee chairmen warned Wheeler that departing from standard commission procedures could threaten the future of spectrum policy. Congressional leaders have repeatedly called Wheeler and the FCC on the carpet for departing from standard commission procedures and have advanced a bill in committee to reform FCC process. "Here we go again. Like a broken record, we have heard the FCC leadership pledge repeatedly to improve process while continuing to find new ways to keep the public in the dark... When the commission acts to withhold data until the eleventh hour, it is going out of its way to keep the public and relevant stakeholders -- including the commissioners -- out of the process." Read more
The ACA says in its court papers that the decision to limit companies to one call to a reassigned number was "arbitrary, capricious, and an abuse of discretion, and does not comport with a caller's constitutional right of due process." Republican FCC Commissioner Ajit Pai, voted against the recent order, warned in a written dissent issued on Friday that the rules will make it easier for class-action lawyers to "abuse" the Telephone Consumer Protection Act. "Rather than focus on the illegal telemarketing calls that consumers really care about, the [FCC's] Order twists the law's words even further to target useful communications between legitimate businesses and their customers," Pai stated. "This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public." Read more
July 12, 2015 -- The Federal Communications Commission's low-income program, known formally as Lifeline, has spent billions of ratepayer dollars. Because of significant waste, fraud and abuse in the program, a good portion of that funding has been misspent. More than once, the Government Accountability Office (GAO) has criticized the FCC for failing to control the program, evaluate its flaws, and improve its accountability. Not surprisingly, a number of people have called upon the FCC to end the program altogether. Given the significant problems with Lifeline, it is not surprising that many have lost confidence in the program. Rather than rush headlong down a path that will increase spending and multiply concerns about waste, fraud and abuse, the FCC needs to reevaluate the program and address its serious flaws. This means, at a minimum, an overall cap and better targeting. -- By FCC Commissioner Mike O'Rielly and Rep. Marsha Blackburn. Read more
The internet is an entertainment hub, a news source, the world's largest library, a communication device, a soapbox, and a conduit for information. This great explosion in tech, industry, and accessibility didn't happen because of government 'oversight' ... It emerged due to government's inability to regulate, tax, and control the 20th century's most influential contribution to human discourse. And now the FCC will get their bureaucratic hands on it in an effort to 'fix' an injustice that doesn't exist. The FCC will impose upon an already-unfettered marketplace regulations originally written for telephone companies in the 1930s. There's a good reason our home phone service has remained unchanged while the interwebs have become an exponentially growing marketplace of ideas and innovation. Far from being "progressive", this administrations is dedicated to a 1930's model of centralized power and restricted free-market advancement ... All in the name of preventing non-existent abuse. The term 'Progressive' is almost as misleading as the term 'Net Neutrality'. Read more
Today, collecting taxes from wireless bills creates an $8.5 billion fund, which, in theory the FCC distributes to develop broadband service in rural America and to connect schools and libraries. A third part of the USF, subsidizes wireless service for poor people who can't afford to pay their cell phone bills. The Lifeline plan has a $2 billion annual price tag. The American people did not vote for the plan.
In the wake of a 2012 corruption scandal, instances of Lifeline fraud emerged. In fact, the Obamaphone plan has emerged as one of the FCC's most embarassing money-pits and such a vast source of waste, fraud, and abuse that Congress recently voted to increase funding for the FCC's Office of the Inspector General. According to a 2013 report in the Wall Street Journal, 41 percent of the 6 million Lifeline subscribers enrolled in five cell phone plans could not produce documents to verify their eligibility. In fact, many didn't even bother to respond to requests from the FCC to do so.
Former Democratic Senator Rick Boucher's 'Internet Innovation Alliance' suggested to the FCC that Lifeline become a user-directed subsidy, similar to food stamps -- let the consumer decide what kind of Internet to spend the subsidy on. Poor people would receive a benefit card, which would be topped up with the $9/month that they already receive for discount phone service. Subscribers could choose how they spend that money, either continuing to receive discounted phone service or instead spending it on broadband. This 'welfare for the Internet' will be merged with 'welfare for cellphone service' and the whole mess will continue to be mis-managed by the FCC. The latest socialist expansion in the form of redistribution of wealth is brought to you by Tom Wheeler's 3/5 'progressive' majority at the FCC, over the furious protests of Commissioners Pai and O'Rielly, and the Congressional Oversight Committee who have recently placed a number of band-aids on the grievous wounds of fiscal irresponsibility at the FCC.
As of June 18, 2015, the FCC's universal service fund, also known as a 2 billion dollar redistribution of wealth and services, will now fund cellphones and broadband. Instead of expanding the program, Commissioner Pai adovocated cost reform. "We must implement meaningful reforms to restore fiscal responsibility," he said. "We must root out waste, fraud, and abuse. We must target lifeline funding on the people who actually need it and we must ensure the dollars coming from hard-working Americans' phone bills each and every month are wisely spent." Pai called for a set, fixed cap on the budget for Lifeline to contain spending.
"Unfortunately," Pai concluded, "this document does not reflect these priorities and that is disappointing." Commissioner Michael O'Rielly also dissented from the FCC's proposal, connecting it to an opportunity for the FCC to start taxing the internet. O'Rielly, like Pai, focused primarily on the lack of a clearly defined, limited budget on the proposal. About the back-and-forth on proposed budget numbers, O'Rielly compared it "to my wife setting a budget and excluding food, shoes, and entertainment. That," he added, "is not a budget."
O'Rielly repeatedly referred to frustrations with the FCC's procedures and processes -- a common theme with the commissioner, who has expressed the same frustration with many other procedural votes.... Read more
"It's little wonder that Reporters Without Borders' recent survey of world press freedom ranked the United States 46th, below even that of Botswana and Romania -- and only one position above Haiti," Judicial Watch President Tom Fitton said.
As of last November, the FCC was actively studying editorial decisions in the newsroom. Why? "The FCC now says it has killed the study," Tom Fitton continued. "But we are skeptical -- especially since we now have had to sue in federal court to get information on this issue."
Fitton added, "This FCC scandal also echoes the Obama IRS abuse, which illegally targeted groups and individuals based on thier [conservative] political philosophy. The FCC, which is charged with making sure regulated media companies obey the law, refuses to obey the Freedom of Information Act and tell the American people why it wanted to interrogate newsmen and monitor the blogs of everyday citizens." The recently passed Net Neutralization plan with its 300+ pages of vague rules, brings the spectre of chilling effects back into sharp focus for anyone who's concerned about preservation of the First Amendment. Read more
The New York Times notes the FCC is "set to decide what is acceptable on a case-by-case basis. The regulations include a subjective catch-all provision, requiring 'just and reasonable' conduct. What counts as 'just and reasonable' will, naturally, be up to the whims of the FCC."
"Only a control-obsessed, fascist government would argue an "Enforcement Bureau" is necessary for the free flow of information. Governments citing fairness, safety and efficiency are just an appetizer as they snuff out that pesky individual freedom you so enjoy. Standing by is always a smug, self-satisfied socialist hiding in the shadows." Read more
The Wall Street Journal's L. Gordon Crovist argued that had these rules been in effect years ago they "could have strangled Alta Vista and Excite, the early leaders in search, and relegated Google to a Stanford student project. Newspapers could have lobbied against Craigslist for depriving them of classified advertising."
"Even though many of us like to complain about the cost and quality of broadband access, we would pay an estimated $2,400 a month based on the charges in 1995 of $10 for the first five hours of time and $3 an hour after that. These cost savings occurred because cable companies took over the backbone of the Internet from telephone companies." A spokesman for a consortium of companies opposed to the FCC takeover said, "Now the FCC wants to regulate the net the same way they regulate the phone companies. Do you understand your phone bill? We don't."
Former FCC commissioner Robert McDowell wrote in USA Today that he thinks the policies will hurt the Internet. "History teaches us that utility-style regulation raises costs to consumers, reduces investment and innovation and creates uncertainty." Read more
"The FCC unlawfully inserted itself between the State and the State's political subdivisions. North Carolina, as a sovereign State, is aggrieved and seeks relief on the grounds that the Order: (1) is contrary to the United States Constitution; (2) is in excess of the Federal Communication Commission's authority; (3) is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act; and (4) is otherwise contrary to law." Read more
Attorney's for the TV station say the FCC acted on 'incorrect factual premises, misapplied standardless standards, employed unconstitutionally sound arguments, abandoned previously restrained policies, and essentially, in conclusion -- a three second hand-job ain't worth $300k, no matter how you look at it.'
This NAL is unintentionally humorous, and some say, wildly hypocritical, considering the FCC Enforcement Bureau employees who've been caught 'red-handed' watching and downloading (up to 8 hours a week) porn at work, on the tax-payers dime, while pleading boredom, and that they don't have enough to do. The National Association of Broadcasters stated, "NAB is disappointed with today's remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted." Read more
The DoJ has asked the FCC to reserve 600MHz auction spectrum for carriers other than Verizon and AT&T. "The Department urges the Commission to give considerable weight in determining the amount of spectrum included in the reserve to protecting and promoting competition. The Department also recognizes that many considerations may affect the timing of the incentive auction. However, consumers will derive the greatest benefit from holding the auction as soon as practicable. Build-out does not happen overnight. Carriers must engage in years of planning and development before spectrum acquired at auction can be put to use to benefit consumers." Read more
The Senators told FCC Chairman Wheeler that they believe the FCC's misapplied intention to implement Section 111 of the STELA Reauthorization Act of 2014 is contrary to the intentions of Congress and that the proposed rule may increase costs for basic cable services while reducing the number of channels available. Read more
Recently: In the case of Gameshow Network v. Cablevision, the FCC's Administrative Law Judge, Richard Sippel exhibited not inconsiderable dismay and disdain regarding the FCC Enforcement Bureau's conduct in the case:
"No participant or onlooker to this proceeding has been enlightened by the Bureau's self-evident observation," he wrote, (a glitch on the FCC's website made the order unviewable until Thurs, May 27). "By making such a pointless submission after 5 days of careful review, the Bureau disrespects the Presiding Judge, insults his willingness to grant extensions for the benefit of receiving its carefully considered comment, and worst of all, abandons its responsibility to represent the public interest," Sippel concluded.
"The Bureau apologizes to the Presiding Judge for any misunderstanding this may have caused, and it was not the Bureau's intention to disrespect the Presiding Judge in any manner," the new comments filed by LeBlanc said. Read more
July 9, 2014 - Katherine Winfree has joined the Bureau as Chief of Staff. "She brings solid prosecutorial leadership to our enforcement team ..."
January 22, 2015 - Katherine Winfree has left the Bureau as Chief of Staff. "She joins Manatt, Phelps & Phillips as Partner in the firm's State Attorneys General practice group. Ms. Winfree provides strategic counseling and defense to clients facing individual state, multistate and federal investigations and legal actions, as well as internal corporate investigations." Read more
The tax rate on Americans' phone bills has increased by 83 percent over the past seven years. So where does your hard-earned money go? Unfortunately, Lifeline, known in some circles as the "Obamaphone" program, is plagued by waste, fraud, and abuse. Now the FCC wants to expand lifeline to include subsidies for broadband Internet -- even though Lifeline is now the only FCC program of its kind without a cap on spending. Read more
"[I]t is an essential part of the justice dispensed here that you should be condemned not only in innocence but also in ignorance." -- Franz Kafka, The Trial (1925)
June 18, 2015 -- A government "rule" suddenly revised, yet retroactive. Inconvenient facts ignored. A practice sanctioned after years of implied approval. A penalty conjured from the executioner's imagination. These and more Kafkaesque badges adorn this Notice of Apparent Liability (NAL)... Because the Commission simply ignores many of the disclosures made; because it refuses to grapple with the few disclosures it does acknowledge; because it essentially rewrites the rule ex post; because it disregards specific language in that order and related precedents that condone conduct; because the penalty assessed is drawn out of thin air; in short, because the justice dispensed here condemns a private actor not only in innocence but also in ignorance, I dissent.
~Thank you Mr. Commissioner; we couldn't have said it better ourselves!Read more
Commissioner O'Rielly slammed the commission for its lack of compromise and politicization regarding 'Lifeline' which is a form of broadband welfare, colloquially known as Obamaphone and Obamanet.
Chairman Wheeler and President Obama would like to enlarge "lifeline" to add broadband rebates (Obamanet) to the cellphone subsidies known as "Obamaphone" because, in their view, broadband is a basic "right," like freedom of speech and freedom of religion, and taxpayers should pay for those who can't afford it. Lifeline is paid for by the Universal Service Fee, which is being passed to consumers through the USF fee on phone bills. Lifeline has been abused to the tune of up to one billion dollars in fraudulent charges. The FCC is responsible for 'regulating' this tremendously wasteful program.
O'Rielly equated many of the 3/2 votes in this administration's Commission as a form of tyranny. "There's little appetite for compromise.... They're happy to accommodate you if you agree with them... At what point does the majority become tyranny?" O'Rielly also hinted that he had been lied to during recent discussions. He said he'd been "misled" during the process leading up to the final item. O'Rielly also slammed the finished product: "After 14 months, it is clear the process brought out a new low I've never seen in politics or policy making. This is one of the most slanted documents I've ever seen," he said. Commissioner Ajit Pai agreed. "It's become a case of Charlie Brown, Lucy and the football." Typically, we're told 'no,' this is a red line," Pai said.
"The majority in Congress moved forward with their efforts to cripple the Federal Communications Commission's open Internet rules. Using its budgeting power, the House appropriations committee voted 30-20 on a broad funding bill that contains a provision which prohibits the FCC from spending money to enforce the open internet rules until the pending court challenges are resolved. The bill gives the FCC $73 million less than what the agency asked for, and requires the FCC to publicly release the text of its proposed rules 21 days ahead of a vote."
Katy Bachman at katyonthehill.com
Remarks of Michael O'Rielly, Commissioner, Federal Communications Commission:
"Distinguished guests and members of the FCBA Bar, I am before you today to discuss the state of FCC enforcement. My central premise is that the Commission's overall approach to enforcement has gone astray over the last many months. In fact, let me go a step further to report that it has entered a territory that can only be described as dangerously misguided."
"As we examine the recent activities of the Enforcement Bureau, it is clear that these time-tested functions are now secondary to other goals. Specifically, the Commission seems more intent on obtaining newspaper headlines trumpeting accusations and eye-popping fines. In other words, self-aggrandizing fanfare is a major objective and often appears to be more important than case foundation, correcting the violation or establishing a reasonable deterrent. I like to refer to this as sizzle over substance."
"Without a settlement, a company is subjected to the whims of the Enforcement Bureau's Notice of Apparent Liability process. For larger companies, especially, the Commission's general approach has been to call each and every alleged violation "egregious." And in making such a determination, the Commission has been upwardly adjusting the proposed penalty beyond the original intent of the statute. In one case, a proposed penalty was increased by 400 percent -- I repeat, 400 percent -- based on an upward adjustment of 100 percent for each of four factors, including the violator's ability to pay. We have also seen situations where the penalty amount is not based on the actual violation, but instead seems to be picked out of a hat, loosely based on a company's revenues."
"To equate financial penalties with success is like measuring the safety of a major city by the number of people arrested in a given year. There is a clear pattern of enforcement actions being used as a means to stretch and reinterpret the Commission's rules to expand its authority and ensnare more participants in the communications marketplace. The Bureau has also been bestowed, by certain actions of the Commission majority and against my wishes, with immeasurable and unconstrained delegated authority over areas once governed by thoughtful policymakers, not ex post facto law enforcement activity. The combination of the Bureau's wayward approach with vast new powers should be of concern to everyone, even left-leaning activists."
Making policy decisions - especially based on vague rules regarding complex matters - is not and should not be within the purview of the enforcement arm of FCC. It's like asking TSA agents to also set immigration policy in addition to continuing their mastery of the airport screening process."
"Add to this the unwillingness - either by intentional direction or hubris - to work with and engage the subject-matter experts in the Wireline, Wireless, Media and International Bureaus and you set the stage for umpteen miscues and flawed outcomes. And this isn't some unsubstantiated charge: I have done due diligence by repeatedly seeking out the level of involvement by these other bureaus to gauge their knowledge of the Enforcement Bureau's activities, whether net neutrality-related or otherwise. The answers have always indicated a polite familiarity of the Enforcement Bureau's work but at no time did it seem to rise to actual involvement by other bureaus in shaping the outcomes. In other words, they generally knew what was going on but had no ability to shape the direction or ultimate outcome of an item."
Commissioner O'Rielly went on to discuss "many obvious flaws" with the Enforcement Bureau's "reasoning and underlying jurisdictional arguments." Read more
June 11, 2015 - FCC commissioner Michael O'Rielly lit into the FCC's Enforcement Bureau in a speech to the Federal Communications Bar Association in Washington, calling the FCC's enforcement regime "dangerously misguided."
"The Commission seems more intent on obtaining newspaper headlines trumpeting accusations and eye-popping fines," he said according to a copy of his speech. "In other words, self-aggrandizing fanfare is a major objective and often appears to be more important than case foundation, correcting the violation or establishing a reasonable deterrent."
"I recently heard from a couple of parties that were potentially subject to enforcement actions," he said, naming no names. "Having the good sense to try to discuss their issues with the Enforcement Bureau, each was told that any potential settlement would require an admission of guilt. To make the situation more outrageous, the Bureau indicated that there was little room to negotiate; it was a take it or leave it offer rather than the beginning of a process to come to a settlement position. Suffice it to say, no agreements were reached in these circumstances."
He also said the FCC seemed to be gauging enforcement success by how many dollars were involved. He said the measure should be whether regulatees are complying with the rules. "To equate financial penalties with success is like measuring the safety of a major city by the number of people arrested in a given year," he said.
An FCC spokesperson declined comment. Read more.
An award winning RF Engineer has written two articles at the well known website, RF Cafe, about extra-legal, strong-arm tactics utilized by incompetent bureaucrats at the FCC. Some of the soon to be redundant members of the FCC enforcement bureau may wish to take advantage of the video resume tutorials and capabilities available at RF Cafe.
According to the article, an email to an amateur operator regarding "a perfectly legal transmission" was misrepresented by the FCC as a "warning for interference." Next, in a series of colossal errors, omissions, and misrepresentations, the FCC went on to assess an enormous forfeiture, without ever properly issuing a notice of apparent liability, according to the controlling statute. The law [USC 47 503(b)(4)] states that no forfeiture shall be proposed unless and until a notice of apparent liability is sent via certified mail to the licensee's address of record, and the licensee is allowed time to respond to the allegations, following receipt of the required notice.
According to the article at RF Cafe, the FCC never accomplished these simple tasks, despite the fact that the licensee's address of record is plainly printed on the license document which is in the FCC's possession and which is stored in the FCC's own universal licensing system (ULS) database. The FCC failed to issue the required notice according to law, and the FCC failed to consider evidence provided by the licensee, and by witnesses, including the FBI; local police; a publicly owned and operated security camera, and; at least 30 persons who could have demonstrated that the licensee was miles away from the inspected premises on the morning when violations were alleged by the FCC.
Notwithstanding the licensee's documented evidence, which, according to the article, was completely ignored by incompetent bureaucrats in favor of their own unsubstantiated, conclusory, and insufficient evidence, the FCC published their forfeiture order, regardless of the rule of law. It is well established that no individual can be ordered by the government to pay civil damages except in strict accordance with well-established and clearly defined laws and procedures. RF Cafe has now argued, twice, that no branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law.
Fortunately, numerous complaints were made to Congress and to the FCC Office of the Inspector General, and thanks to House and Senate oversight of the FCC, the American people will see much needed changes in the training, equipment, personnel, distribution, and structure of the FCC Enforcement Bureau.
Congress has published draft legislation stating that no government funds will be available from the U.S. Treasury, for a variety of actions (including enforcement of federal forfeitures) from October 1, 2015 until September 30, 2016, until a final disposition on the FCC's net neutering plan (in all 3 of the following cases) is handed down by the courts:
None of the funds made available by this Act may be used to implement, administer, or enforce the Report and Order on Remand, Declaratory Ruling, and Order in the matter of protecting and promoting the open Internet, adopted by the Federal Communications Commission on February 26, 2015 (FCC 15-24), until the first date on which there has been a final disposition (including the exhaustion of or expiration of the time for any appeals) of all of the following civil actions:
(1) Alamo Broadband Inc. v. Federal Communications Commission, et al., No. 15-60201, pending June 9, 2015 (3:11 p.m.) in the United States Court of Appeals for the Fifth Circuit as of the date of the enactment of this Act.
(2) United States Telecom Assoc. v. Federal Communications Commission, et al., No. 15-1063, pending in the United States Court of Appeals for the District of Columbia Circuit as of the date of the enactment of this Act.
(3) CenturyLink v. Federal Communications Commission, No. 15-1099, pending in the United States Court of Appeals for the District of Columbia Circuit as of the date of the enactment of this Act.
Bill Highlights:
Federal Communications Commission (FCC) - The bill contains $315 million for the FCC - a cut of $25 million below the fiscal year 2015 enacted level and $73 million below the FCC's request.
Internal Revenue Service (IRS) - Included in the bill is $10.1 billion for the IRS - a cut of $838 million below the fiscal year 2015 enacted level and $2.8 billion below the President's budget request. This will hold the agency's budget below the sequester level and below the fiscal year 2004 level. This funding level is sufficient for the IRS to perform its core duties, but will require the agency to streamline and better prioritize its budget. In addition, due to the IRS' inappropriate actions in targeting groups based on political beliefs, as well as its previous improper use of taxpayer funds, the bill censors the IRS in several significant ways.
The following offices will close: Buffalo, Detroit, Houston, Norfolk, Philadelphia, San Diego, Seattle, and Tampa.
Offices to remain open: Hawaii, Anchorage, Alaska (contract staff ), Portland, New York City, Columbia, Maryland, Chicago, Atlanta, Miami, Los Angeles, San Francisco, Denver, Boston, and New Orleans. Kansas City's field office will close, but KC will get a "rotation" of FCC field staff visiting once a month for several days.
We fully support the necessity of closing unnecessary FCC field offices. The proposed office closings and reduction in force will allow for replacement of antiquated equipment, replacement of do-nothing management positions, and better training for the remaining engineers in the enforcement bureau. Millions of dollars can be saved yearly and with proper management and ~selective culling under the latest plan, the proposed changes could benefit all Americans.
Field overhead costs exceed double that of FCC HQ. Manager to staff ratio is severely askew - on average there's one field manager for just four employees, and sometimes it's worse than that. There's excessive office space in nearly all field locations, ranging between 4,000 and 381 square feet per employee, as opposed to 180 square feet at FCC HQ after FY2017. There are more mobile direction-finding (MDF) vehicles than field agents. Each vehicle costs approximately $100,000 in equipment and labor. Some offices have two (or more) MDF vehicles per agent. RF interference complaints should be the field offices' top priority, yet many field offices only receive one such complaint per agent every month. Less than half of the field offices' total personnel time is spent on spectrum enforcement, and a much smaller percentage is spent on critical spectrum enforcement of public safety interference.
The reduction in force and closure of offices is part of Wheeler's broader plan to modernize and update the FCC. Deputy enforcement bureau chief, William Davenport, echoed Wheeler's concerns recently, saying, "The current model of the field is broken. It was built around a regulatory model that simply doesn't exist anymore. Modern enforcement is about responding to wireless interference complaints, not conducting random inspections of broadcast facilities."
U.S. Representatives Fred Upton of Michigan and Greg Walden of Oregon, both Republicans, in an e-mailed statement Tuesday said the "inevitable legal wrangling has begun."
"These filings are the first in what will undoubtedly be years of challenges spurred by the FCC's unnecessary and inappropriate regulation of the Internet," said Upton and Walden, whose legislative responsibilities include oversight of the FCC. The FCC's "order has glaring legal flaws that are guaranteed to mire the agency in litigation for a long time," according to FCC Commissioner Ajit Pai, who, along with Michael O'Rielly, voted against the rules.
Trade associations that filed suit against the FCC include the American Cable Association (ACA); the Cellular Telephone Industries Association (CTIA); the United States Telecom Association (USTelecom); and the National Cable and Telecommunications Association (NCTA). The American Cable Association (ACA) is a trade association representing 850 small-to-mid-sized cable companies that provide broadband service to around seven million cable subscribers.
Cellular Telephone Industries Association, the trade association that represents AT&T, Verizon, Sprint, T-Mobile and more than 100 other telecommunications companies, similarly expressed support for net neutrality while denouncing the FCC decision for imposing onerous and illegal regulations and bypassing Congress.
The National Cable and Telecommunications Association (NCTA), which includes cable giants Comcast, Time Warner Cable and Cablevision, has hired former U.S. Solicitor General Theodore Olson and his assistant, Miguel Estrada, to lead their charge against the FCC. Olson said the FCC did not have the legal standing to enforce its net neutrality rules.
Those filing suit said the FCC's net neutrality ruling is "1) in excess of the Commission's authority; 2) arbitrary, capricious, and an abuse of discretion...; 3) contrary to Constitutional right under the Due Process of the Fifth Amendment; and 4) otherwise contrary to law."
Federal Communications Commission (FCC) Chairman Tom Wheeler acknowledged in congressional testimony today that an Internet tax--which he had previously said would not be imposed--could be imposed in the future.
Bureau Chief Travis LeBlanc and Deputy Chief William Davenport defend field office closures and the reduction in force at the FCC. LeBlanc said the bureau has implemented a system to focus on high-priority items. He said that previously, a case was opened each time a complaint was filed, even though in many cases the FCC had no plans to pursue an action. He said the bureau is not just focusing "on technical violations" by parties, but instead, prioritizing whether actions impact goals such as competition or network security. - Read more
Deputy Chief William Davenport echoed the point of view of the consultants hired by the FCC to study the issue: The $21 million it costs to keep 28 field offices open with 108 employees using "out-of-date equipment" is too expensive and field office staffers have too little work to do, said William Davenport, deputy chief of the FCC Enforcement Bureau, telling the National Public Safety Telecommunications Council why the agency is considering a controversial proposal to make sharp cuts in the number of field offices and agents in the field. The cost of the field offices also increases each year, he said. Problems have been worsened by an inefficient management structure, with too many managers per inspector, Davenport said. "Our field agents have complained about this for years," he said. "On average there is one manager for every four employees. Some offices have a one-to-one ratio or even worse. The current model of the field is broken," he said. "It was built around a regulatory model that simply doesn't exist anymore. Modern enforcement is about responding to wireless interference complaints, not conducting random inspections of broadcast facilities." - Read more
An anonymous FCC field engineer called his bosses "morons" and proclaimed the Washington bureaucrats never consulted with the field on a major issue (LightSquared) before the FCC. He or she blames Travis LeBlanc for the closures, reporting that LeBlanc wants to fire field engineers so the FCC can hire more lawyers in Washington, DC, ostensibly to work on Internet court cases, which are cropping up like toadstools after a heavy rain:
"This field office closure is not a modernization of the field. That would imply the proposed structure would meet the needs of today better than the current structure. That is not the case. This proposal is simply a way for Travis LeBlanc to fire engineers in the field in order to pay for additional attorneys in Washington, DC. This proposition has about as much possibility of working out as light squared. This proposal was thought up by the same morons in Washington that believed light squared might actually work. Any of the FCC field engineers knew enough to realize the whole light squared idea had no chance of becoming a reality. I know this because I'm an FCC field engineer and we all knew enough about RFI to know it would not work. Too bad the buracrats in DC never consulted with any of us." -Anonymous FCC Field Engineer - Read more
However, FCC District Director Dave Dombrowski in Langhorne, PA, acknowledged problems with the current interference enforcement model. Without identifying himself as an FCC District Director, Dombrowski commented on an idea by Commissioner O'Rielly involving private causes of action - outside of the FCC process - for eliminating and deterring pirate radio. Dombrowski asserted: "FCC agents have a difficult time identifying the actual operator of the stations and they often solicit the help of the landlord to get the station off the air." Dombrowski also claimed 'violators do not pay FCC fines... and... police are often reluctant to assist in the big cities because it is a low priority for them and requires significant resources to identify the operator....' Essentially, Dombrowski contradicted O'Rielly. The gravamen of his argument was, police agencies see FCC issues as a low priority, and violators don't pay FCC fines, so why would violators pay judgments in private causes of action? Dombrowski argued, "Violators do not pay FCC fines so it would be likely that the operator would not pay a broadcaster if sued."
Former SCARE, Riley Hollingsworth, and retired former District Director Walt Gerner are also against the proposed closures. Hollingsworth indicated, "Unless this Tiger Team is composed of Batmen or a Superman, there's no way it can accomplish anything but staying several steps BEHIND whatever problem it is working on." Read more
NPSTC board member Dave Buchanan, a former 911 official in San Bernardino County, California, said the way that the FCC has handled the proposed closing of the field offices has caused the agency problems. "You're a service organization, whether you realize it or not," he said. "We had to hear about it, not after the fact, but it wasn't presented to us... It's better to come and explain things to people." Buchanan said many public safety officials have stopped calling the FCC when they have a complaint because it has taken too long for the commission to respond. - Read more
Regarding LightSquared: On September 15, 2011, Representative Michael Turner (R-OH) asked the United States House Oversight and Government Committee to investigate LightSquared under the premise that the Federal Communications Commission waived a rule for LightSquared because Harbinger Capital's Philip Falcone had made sizable campaign contributions to President Barack Obama. Reportedly, President Barack Obama himself invested $90,000 in LightSquared in 2005 but sold his stock for a $13,000 loss 8 months later. Air Force General William Shelton claimed in a closed congressional hearing that he had received political pressure to soften his testimony regarding the negative effects of LightSquared technology. On March 26, 2015, LightSquared Inc. won court permission to exit bankruptcy, ending a three-year ordeal that pitted the wireless venture against its biggest creditor: Dish Network Corp. Chairman Charles Ergen. As recently as March 17, a government lawyer told bankruptcy judge, Shelley Chapman that the Federal Communications Commission still can't predict whether it will approve use of the spectrum. - Read more
The FCC claims it derives its warrantless search power from the Communications Act of 1934, though the constitutionality of the claim has gone untested in the courts. That's largely because the FCC had little to do with average citizens for most of the last 75 years, when home transmitters were largely reserved to ham-radio operators and CB-radio aficionados. But in 2015, nearly every household in the United States has multiple devices that use radio waves which fall under the FCC's purview, making the commission's claimed authority ripe for a court challenge.
"It is a major stretch beyond case law to assert that authority with respect to a private home, which is at the heart of the Fourth Amendment's protection against unreasonable search and seizure," says Electronic Frontier Foundation lawyer Lee Tien. "When it is a private home... the idea they could just go in is honestly quite bizarre."
George Washington University professor Orin Kerr, a constitutional law expert, also questions the legalilty of the policy. "The Supreme Court has said that the government can't make warrantless entries into homes for administrative inspections," Kerr said, refering to a 1967 Supreme Court ruling that housing inspectors needed warrants to force their way into private residences. The FCC's online FAQ doesn't explain how the agency gets around that ruling, Kerr adds." Read more
According to the committee, the hearing will explore delays, backlogs, excessive redactions, and other problems with requests for documents from federal agencies under FOIA. A second session on June 3 will include witnesses from federal agencies, but that list has not been made public. Read more
"The FCC is dodging the obvious: expanding Lifeline means new broadband taxes and higher taxes overall on telecom services," said Berin Szoka, president of TechFreedom. "The FCC made broadband taxes inevitable when it reclassified broadband as a telecom service - it's just a question of the FCC's Joint Board finding the least awkward time to make it official." - Read more
"What does this mean? What exactly do broadband providers have to do to comply with the law? I am an FCC commissioner and a lawyer, and I have no idea. Your guess is as good as mine. This 'guidance' casts far more shade than sunlight," Pai said. Without hard details, Pai warned it would create investment uncertainty in the markets. - Read more
Commissioner O'Rielly commented in his dissent: "I am noticing a disturbing trend at the Commission where, in the absence of clear statutory authority, the Commission suddenly imbues an innocuous provision of the Act with tremendous significance in order to meet its policy outcome."
AND
In order to steer clear of violations, be sure to familiarize yourself with not just the letter of the law, but the whims of bureaucrats within the applicable controlling agency. Otherwise, you might find yourself in deep doodoo. I suppose I will have to be watching over my own shoulder from now on since I have dared to publically criticize the 'New' FCC... as usual it is the few self-serving employees who choose to exercise their bureaucratic powers to mercilessly harass citizens that give the institution a bad name. The unfortunate reality is that as time goes by, the government cares less and less about what the public thinks of it....
Retired FCC District Director Walter Gernon and retired SCARE, Riley Hollingsworth agree: The Sky is Falling. Gernon lists the following as reasons not to close field offices and reduce the number of field agents: Loss of FCC presence nationwide; Only three offices west of the Mississippi; Slow response to all radio interference; No local direction finding experts; Reduced enforcement compliance with FCC rules; Increase in pirate radio transmissions...
Additionally, in the "so what else is new?" category, Gernon noted several other catastrophic scenarios that only a bloated, do-nothing, top-heavy, unresponsive, opaque, porn-watching, Avon selling, bureaucracy, using outdated equipment, could possibly address. Hollingsworth agreed with Gernon, writing, "Unless this Tiger Team is composed of Batmen or a Superman, there's no way it can accomplish anything but staying several steps BEHIND whatever problem it is working on." Read more
"Sheriff" ???; Authority ???; Paying attention ???; Consequences ??? Riley must not be able to sit down for fear all the lipstick will smudge off when he sits down on his couch. Riley's record: Not 1 "red-handed" jammer bust since Oct 18th, 1998... Now he has become a lackey for the ARRL... Any questions? (see K4ZDH thread on eHam for more about his record & the community perception of his "paying attention..." -K4RAF
"This type of thinking is why I don't belong to the ARRL... the constant complaining about rule violators from their members is like an old lady nagging... Change the frequency or turn off the radio! People need to be careful what they ask for, they might get it. Don't look to the government for answers to problems, otherwise ham radio will turn out like our economy, in the toilet!" -KI4SDY
June marks the 800th anniversary of Magna Carta, the 'Great Charter' that established the rule of law for the English-speaking world. Starting with Magna Carta, the defense of freedom is everyone's responsibility. Americans, like Britons, have inherited their freedoms from past generations and should not look to any external agent for their perpetuation. Government does not confer freedom; rather, we are born free, and the defense of liberty is your job and mine. As Thomas Jefferson put it, "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." It is up to us to keep intact the freedoms we inherited from our parents and to pass them on securely to our children. Read More
"Everyone who cares about investment and growth in the high-tech sector, as well as net-neutrality protections, should refuse to accept the FCC's flawed order as a fait accompli and demand that Congress find a better way." Read more
AT&T has said net neutrality rules "violate the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution." The US Telecom Association, CITA - the Wireless Association, and Centurylink, Inc. are also filing lawsuits. USTelecom, the CTIA, and the NCTA all ask exactly the same thing, in exactly the same words. They ask for review of the Order on the grounds that "it is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act...; violates federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder; conflicts with the notice-and-comment rule making requirements [of the US code]; and is otherwise contrary to law." Other ISPs plan to use the First and the Fifth Amendment for attacking the decision made by the FCC. When FCC Chairman Wheeler was asked about his plan to fight off the challengers, he said, "Not to lose. That's the short-term plan."
"Due process and transparency are too important to simply give up on and I applaud the subcommittee's commitment to making meaningful improvements. My colleagues from both sides of the aisle have offered sensible reforms that will improve the function of the FCC in a significant way. Transparency and process are the foundation of public trust in the government and are critical to the legitimacy of law." - Chairman Fred Upton (R-MI).
"I am pleased that both Republicans and Democrats alike recognize the value of increased transparency at the commission and see a need for congressional action to improve the FCC's decision-making process." Chairman Greg Walden (R-OR).
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FRUSTRATION WITH THE FCC
"I get my dander up when I think an agency is running amok. I just think you get better outcome on policy if you have a good process. Then at least people feel like they have an opportunity to make their case. Just some of things I've seen happen at the FCC, the way it's being managed right now, isn't as good as it could be." Chairman Greg Walden (R-OR).
FCC IS CLOSED AND OPAQUE
"I've about run out of patience, maybe it came through in my statement the other day. They are the professional agency, but they shouldn't be the legislative body and they're tilting too much that way. The FCC is so closed and so opaque."
FCC MUST IMPROVE PROCESS AND TRANSPARENCY
"We've moved from a position a year or two ago where the agency could do no wrong to [a recognition that] there are things we can do to improve the process. And you see that from members on both sides of the aisle coming forward with their ideas about how to make things more transparent..."
FCC IS UNCOOPERATIVE
"We're having difficulty getting the documentation from the FCC that underpins their decision making [to close 16 of 24 field offices]. They're not being very cooperative on that. They gave us four slides, but not the underlying documentation. [The FCC] is playing hide the law."
FCC NOT A WELL RUN AGENCY
"We have seen enough to know the FCC falls short of the standard for a well-run agency." "Transparency should not stop at the doors of the FCC," said House commerce ranking member Frank Pallone (D-N.J.)
FCC VIOLATES FREEDOM OF INFORMATION ACT AND PRIVACY ACT
"This is the public's right to know." This is how the public understands what's happening and not happening and your organization is redacting this information and it's wrong." - Jason Chaffetz (R-UT) In other cases, the FCC has failed to redact sensitive personal information, in violation of the APA and the Privacy Act.
PRIVACY RIGHTS IN FOCUS
Senator Rand Paul engaged in a Senate filibuster to prevent illegal surveillance of Americans' communications, as the FCC proceeds with its plan to take over the Internet, against the express wishes of the majority in Congress and two of its five Commissioners -- even though there's nothing wrong with the Internet. Meanwhile, a little known provision of the Communications Act allows the FCC to enter American's homes without a warrant, at any time of the day or night, ostensibly to 'inspect' their electronic equipment. This includes the government's ability to inspect cell phones, computer routers, cordless phones, laptop computers, tablets, and any other wireless device with a transmitter, including the key fob that sends a signal to unlock a car door. All this, under the rubric of the Communications Act, designed to regulate Ma Bell in 1934. Can you refuse entry? Sure you can, at a cost of $7,000, or more, if the FCC applies a vague 'upward departure' requesting even more money for your refusal to allow their warrantless entry. The FCC believes the authority derived from the Communications Act, supercedes the 4th Amendment to the United States Constitution. With all of the recent focus on privacy, the Supreme Court may have a different opinion.
Special Thanks to Katy Bachman katyonthehill.com
The Committee opened with its statement, for the reason for the Hearing, stating, "Over the past three Congresses, both the Democratic and Republican members of the Subcommittee on Communications and Technology have voiced concern with the lack of predictable process and consistent transparency at the Federal Communications Commission." Many Americans believe the hearings amount to locking the barn door after the horse has gone. In other words, no attempt to repair the FCC is likely to work. There is too much ingrained arrogance, ineptitude, corruption, and laziness. The only real solution, according to many, including some in the Congress and the Senate, involves dismantling the agency entirely and beginning again with a smaller, more predictable, accountable, and transparent organization, with new rules, a new purpose, and new leadership.
Free State Foundation President, Randolph J. May testified about the lack of fairness, openness, and transparency at the FCC, stating, "The Commission's own process reform efforts have fallen far short of what needs to be done." Mr. May said rules should be reviewed every two years, and noted the fact that the FCC is subject to the minimum requirements of the Administrative Procedure Act, but they are empowered to exceed the minimum requirements. The Committee has identified actual process failures that merit further examination, according to Mr. May. "Indeed, during the past year or so, process failures appear to have increased," according to Mr. May.
Stuart M. Benjamin, Chair in Law and Associate Dean for Research at Duke Law, noted that ambiguous, arbitrary, and capricious rules and procedures invite lawsuits. Mr. Benjamin had several suggestions for rules changes which would allow for greater transparency and public comment. Mr. Benjamin also said, "All FCC actions should be subject to a cost/benefit analysis." Mr. Benjamin also said, "the Commission should rely on the most accurate and up to date information in making its decisions."
Robert McDowell, former Commissioner and Fellow at the Hudson Institute, testified about the need for reform, based on due process, accountability, fairness, and efficiency. "The bottom line on reform efforts, however, is that they should be based on the principles of sound due process, transparency, accountability, fairness and efficiency." McDowell also noted that the FCC must reform so that they can quickly adapt to changing technologies. Mr. McDowell said, at the end of the day, Orders have to be fair, open, transparent, and appealable, and "Lastly, I would be remiss if I did not reiterate my call for Congress to rewrite our country's creaky and antiquated communications laws. The 1934 Act will celebrate its 81st birthday next month and the 1996 Act is almost 20 years old. A lot has changed in just the last few weeks, let alone the last 81 years. We need to modernize our communications laws to reflect current market conditions and technologies."
Are you interested in the PowerPoint presentation the FCC gave Congress about the FCC rationale for cutbacks in their field offices? See it here. Simply put, field offices and field agents are extremely expensive to maintain and their 'value added' to the FCC mission is not great when compared to the price of employees and the price of the real estate involved. According to various stakeholders, many field offices don't accomplish much, and time spent on interference resolution only averages about 40%, despite the fact that interference resolution is their reason for being.
Some offices had twice as many staff as needed, and many managers had only a few personnel to manage -- this is what we call the "All Hat, No Cattle" syndrome. Consider the fact that morale is terrible, agents pursue low value targets, and it costs $20 million dollars a year to support 24 field sites, and you get the picture. The average overhead for one field site is $400,000 and the total cost is an average of over $830,000 per site. Full time equivalent employees (FTE) cost the agency more than double the cost of staff at FCC HQ. The average field site has 4.5 FTE and many have 2 FTEs. For every 4 field employees, there's 1 manager. Currently, there are 74 trucks and 63 field agents, and (thankfully) the number of agents is soon to be drastically reduced. As Congressman Greg Walden said, it's time to sell some trucks!
Field offices are caught in outdated modes of enforcement. Each agent handles an average of 1 interference case every 5 weeks, or about 10, every year, which means the entire 'enfarcement burro' handles about 630 cases per year. Remember, many of these "cases" amount to a lack of paint on a tower, a burned out light bulb, an unlocked gate, an unmown lawn, a missing file, and other meaningful infractions, which are absolutely crucial to the orderly administration of the telecommunications industry.... ahem. Once again, that's 20 million bucks divided by 630 cases, for an average cost of $31,746 per case. If a licensee or pirate elects not to pay a forfeiture and decides to go to court instead, and then to the appellate court, (never mind the Supreme Court), even assuming the FCC can convince the DoJ to accept the case, just start adding zeros to the end of that sum.
How often does the FCC actually collect their ridiculously inflated forfeitures? That question should be easy to answer, but with the documented lack of openness, transparency, and accountability at the FCC, we had to dig for clues like Indiana Jones digs for buried treasure. The collection question was discussed fifteen years ago in a 2000 report from the Office of Inspector General, which audited the FCC's Civil Monetary Penalty Program. That assessment looked at all monetary forfeitures and found success in less than a quarter of them. Like the FCC's arcane and outdated rules, the word "success" is open to interpretation. Most fines in amateur radio are reduced, based on a documented inability to pay. Therefore, assuming someone agrees to pay something, a $10,000 fine might be settled for $500. Then again, it might not be settled at all.
What a way to run an agency; no wonder the country's broke!
The OIG report found a lack of coherent policy among the agency's bureaus on matters involving forfeitures, as well as institutional resistance from the Department of Justice to pursue such cases. According to the report, "The commission has not established an effective program for managing civil monetary penalty actions." Of course, we already knew that, and of course, not a damn thing has changed since the report was published, 15 years ago.
Planned cuts are expected to reduce the number of field agents from 63 to 33 individuals. The agency will help personnel find equivalent work. Coincidentally, my hubby overheard a McDonald's manager ask one of his employeees to change an overhead fluorescent light bulb, just this morning. Over 50% of field agents are of retirement age; please stay off those ladders boys! Management positions will be reduced from 21 to 5 individuals. A 'Tiger Team' will be based in Columbia, MD. They will be fed raw meat and trained to kill. Ok, I made that part up! Confidentially, though, entre nous, the FTE hours saved will go toward FTE hours to dysregulate the Internet.
The FCC says savings from reductions-in-force will pay for better equipment than the old junk currently in use. Speaking of old junk, in an interview with National Journal's Technology Daily magazine, Congressman Fred Upton expressed shock at the condition of the FCC's equipment. "The agency is operating with fairly ancient equipment," said Rep. Fred Upton, R-Mich., who recently visited one of the agency's labs in Columbia, MD. "It was almost like going back to 10th-grade chemistry lab and finding it unchanged," said Upton, who graduated from high school in 1971. Congressman Upton made those remarks in 2001, and according to our sources inside the agency, "Not a damn thing has changed since then!"
Among other badly needed reforms, investigation and sanction processes will (finally) be standardized, along with increased training. Hopefully, this training will include the education of agents who are completely clueless about amateur radio, and the rules of evidence, and the Constitution, and... but don't hold your breath. The training is for "subject matters outside agent skillsets" which is a polite way of saying "right now, you have questions and they have blank stares." Google "Radio Shack Bankruptcy" for more details. Use of more portable equipment will be emphasized, because, as mentioned, the trucks contain old junk which was never designed to get the job done. To the uninitiated, the inside of a mobile digital direction finding (MDDF) vehicle might look fancy, but it's nothing more than an SUV, which contains a receiver, a short antenna, slaved to a compass rose, and a spectrum analyzer. All that and the equivalent of a first generation Garmin GPS system, which is accessible from a touch screen. Yawn.
The rest of the rationale for the FCC's field office massacre (FOM) is included at the link above. It's not a bad plan, except that we all know the FCC could fuck up a wet dream, and that's not likely to change anytime soon, or at all, ever. Take this direct quote from a field agent as an example. "I have no idea what HQ defines as success." That's okay buddy, no one else can figure it out either.
Thanks to Bev McIvor for information on this page.
House leaders want more information about the relationship between the FCC and an investment banker they hired to prepare economic models for the upcoming broadcast incentive auction. Lawrence Chu, former managing director of Greenhill & Co., left that company two months ago to volunteer at the FCC. Greenhill was retained by the FCC last fall and has provided two reports so far. The FCC estimated the value of Chu's work at $300,000.
Concerned about the apparent conflict of interest, and any apparent quid pro quo, House commerce chairman Fred Upton (R-MI.), subcommittee chairman Greg Walden (R-OR.), and subcommittee chairman Tim Murphy (R-PA.) wrote to the FCC Thursday seeking more information. "FCC decisions have sweeping impact on the economy well beyond the industries it regulates. We want to be sure that any work done by the commission, or on its behalf, is for the benefit of the American people." The FCC has until May 13 to respond.
Source: katyonthehill.com
Recently, the National Association of Broadcasters and the American Radio Relay League have discussed the FCC in unflattering and skeptical terms. The ARRL referred to the FCC's Enforcement Bureau as a toothless tiger, and the NAB referred to them as a fangless, paper tiger. These observations are not new or original. John Anderson of DIYmedia called the FCC a paper tiger ">in June... 2001 and again in 2006, and again in 2013. Golly, maybe we can convince John to write for this rag? Meanwhile, Mark Crosby, CEO of Enterprise Wireless Alliance (EWA) said, "I would like to believe these commitments and promises of better wireless days ahead resulting from these reorganization plans, but I am having difficulty drinking the Kool Aid."
Link 1, Link 2, Link 3, Link 4, Link 5, Link 6, Link 7, Link 8
Most stakeholders are skeptical of the FCC's ability to follow through with their Flying Tiger Team approach. Broadcaster's privately believe the field office closures are designed to transfer funds to more full time equivalent (FTE) employees to police the Internet. Broadcasters, wireless managers, and the ARRL clamor for more enforcement, but all of them have less than altruistic reasons for doing so. Broadcasters lose money when popular pirate shows siphon listeners, creating drops in ad revenue. Unruly amateur bands cause fear at the ARRL that amateurs won't be taken seriously, and that future DHS and other grant funds will be unavailable as a result.
The EWA's Crosby: "Not that long ago, [FCC] field staff too often had to say "We can't go investigate this interference matter, as we do not have the budget to put gas in our vehicles." Yet now the Commission is going to invest in new interference-mitigation technology, remote-monitoring capabilities, agent training, airline tickets, and rental cars for the Tiger Teams?"
As always, its easy to find the answers, when we follow the money. Speaking of money, it's widely known that AM and FM stations routinely pay NALs, because, in a cost/benefit analysis, paying the fine usually costs less than going to court. Because the FCC can hold up license renewals for years at a time, stations are ready to payola the inflated NAL's typically assessed for unlocked gates, chipping paint, broken light bulbs, late filing of paperwork, and other critically important issues.
However, when the FCC fails to follow its own rules, which is a daily occurrence, there are few, if any consequences. Congressman Greg Walden operated radio stations. Some of his applications were delayed by the FCC for ten years. In the interim, Walden's children grew up and went to college. He sold his stations. Then he ran for Congress. He and his fellow legislators would like to see the FCC become fair, open, accountable, and transparent.
Where amateur operators are concerned, income from the radio station isn't a factor, and for most "hams," radio is just a pastime. As a result, there's no incentive to pay ridiculously inflated NALs based on unsubstantiated evidence. NALs are only collected when, and if, amateurs elect to pay to pay them. Serial jammers and pirate stations have been making fools of the FCC for years. The ARRL's QST, and other ham trade magazines, publish FCC "actions" in a poorly reasoned effort to create deterrence. In fact, the opposite is true. Deterrence only takes place when there are concrete consequences. Meaningless warning letters, NALs, and forfeitures are not "enforcement" of any kind. They are, rather, evidence of a lack of enforcement.
The Emperor has no clothes. Apparently everyone realizes this, except QST, the other ham trade publications, and most of the participants in forums which discuss the obvious lack of amateur enforcement. The FCC can issue an NAL, which accomplishes nothing. The FCC can issue a forfeiture order, which accomplishes nothing. The FCC can obtain a court order, which accomplishes nothing. The FCC can take away a license, which is not the same as getting someone off the air. The FCC produces tons of meaningless paper, but, that paper should never be confused with enforcement.
A little known fact; the FCC has no power to collect the forfeitures they assess, and an FCC "order" is completely meaningless, unless and until the FCC proves its case in court. Each case is subject to a trial, and an appeal, and an attempt at certiorari before the Supreme Court, if there are Constitutional questions. The FCC and the licensee are equal parties before a federal judge and the FCC must prove its case with a preponderance of the evidence. Easier said than done.
Before the circus begins, the FCC's required, by law, to jump through a variety of legal and administrative hoops. This is called due process. Travis LeBlanc, the FCC's enforcement chief has taken an aggressive approach to enforcement, levying huge fines, but with flat budgets, outdated and decrepit equipment, and terrible morale in the enforcment bureau, it's an uphill battle. Big broadcasters and bigger Internet conglomerates have seen the changes inFCC tactics, and they're lawyering up. They have more money, more expertise, and more lawyers than the FCC has. Meanwhile, the enforcement bureau's being gutted from within, and the FCC's support in Congress and in the courts, is at an all time low.
Speaking to low priorities, amateur radio is increasingly the unwanted, adopted child of the FCC. Amateur cases are a drain on resources, and in times of budget cutbacks, there's very little incentive to police the behavior of ham operators. More than 50% of FCC field agents are eligible for retirement, the number of field offices will soon be cut by two thirds, and the writing is on the wall. In many areas, amateur radio already resembles the Citizen's Band of the 70's and 80's. How long will it be before the FCC allows Kelloggs to put a ham license coupon in every box of Fruit Loops?
How many amateurs actually pay those inflated forfeitures we read about in QST? Ask the FCC. Like our old friends at Radio Shack, you've got questions; they've got blank stares. More often than not, the DoJ never takes amateur cases because they're unwinnable. For example: Perhaps the forfeiture was all just a pack of lies in the first place. Maybe it was concocted by an inept field mouse, supported by a stoned, child porn addict, who was jerking off masturbating at the HFDF Center, or maybe the case was connected to an FCC Watch Officer who was drunk off his ass, inebriated, while jamming 14.313 MHz with music coming from an FM radio station.
These examples are by no means hyperbolic. See links 1 and 2 above. Many times, the FCC loses evidence, or; the evidence the FCC relied on was unsubstantiated, with insufficient evidentiary support, or; the FCC misinterpreted their own regulations, or; the FCC failed to maintain a proper chain of custody, or; there was illegal retaliation on the part of the FCC employee, or; there was a failure in a hundred other potential pitfalls in witness reliability, administrative procedures, statutes, regulations, and the FCC's arcane and ambiguous rules. Once again, it's all about due process.
Often, the 5 year statute of limitations expires before the DoJ is able to take the case to court. In essence, the DoJ tells the FCC, "We'd love to handle this, honestly, but we're swamped with, ahem, real crimes, and it's unlikely we can get to this very important matter within the next 4 years." Remember, it usually takes the FCC at least a year to follow through with due process concerns, like serving the NAL to the licensee's address of record, within a year of the time violations accrued, and affording the licensee a chance to respond, and then examining the response, and performing an in-depth investigation, applying reasoned interpretations, etc., etc., etc..
Listen, as U.S. Air Force Major, James Beauchamp explains the importance of ethics and the rules of evidence to Canadian military impostor, Karol Madera (VE7KFM). Madera lied, telling the Air Force Major that he was a lawyer. Madera wasn't admitted to the Law Society. Instead, he was turned away, like the lying, unfit, psychopath nearly everyone recognizes him to be. Madera appealed the Law Society's ruling, but The Chief Justice of British Columbia (and both of his colleagues on the panel) politely called Karol Madera a liar, which ended any hope of his becoming a lawyer. When Madera's not lying about being a lawyer, he's lying about being a commercial pilot, a jet jockey, an ADC to two Generals, a Naval Captain, being fluent in 5 languages, or a hundred other ridiculous lies. As usual, when the Air Force Major schooled Madera, VE7KFM's childish response to the truth, was slander, name-calling, obscenities, and jamming the airwaves, for the next half hour, in gross violation of international treaties.
As U.S. Air Force Major Beauchamp patiently explained to his dim-witted pupil, any violation of the Administrative Procedure Act, the Freedom of Information Act, the Privacy Act, the U.S. Constitution, common law torts, constitutional torts, negligence, failure to adhere to required elements of the U.S. Code, and the Code of Federal Regulations, and the whole circus is over before it starts.
In theory, what Beauchamp said was absolutely true, but the FCC can, and they often do, bluster and defame and publish false allegations until the cows come home. Then, the amateur radio forums, and QST, and hams ignorant of the law, hash and rehash the FCC's false allegations in an orgy of meaningless blather for the next 5 years. That's the real circus. Unfortunately, U.S. sovereign immunity prevents licensees from suing the FCC's rodeo clowns and keystone kops for defamation, but as far as money changing hands, and as far as real amateur radio enforcement is concerned, the FCC is not the place to look for that, and it never has been. Don't believe it? Tune into 14.313 and listen, any day, and every day.
Sometimes, when a licensee is actually guilty of violating the FCC's rules,
In the Glenn Baxter (K1MAN) case, the appeals court disallowed everything in the FCC's forfeiture, except what Baxter expressly admitted. Baxter admitted some incidental interference, and as the court put it, he "stiff-armed" the FCC when they asked for more information. He did it proudly and unabashedly. To him, it was worth the theoretical $3,000. With no formal legal training, Baxter reduced the amount of the NAL by more than 50% and he still hasn't paid a dime. Baxter completely ignored two previous NALs that were miscalculated, which then became stale, even before the FCC could convert them to forfeiture orders. More importantly, Baxter's still on the air. Is that enforcement, or a ten year circle jerk? You decide.
Bill Crowell, W6WBJ, is also still on the air, despite the fact that his renewal hearing has been stalled since 2010. His petition to disbar attorneys, and the judge in the case, is curiously whited out, which is not the same as being properly redacted pursuant to the Freedom of Information Act, is it? Maybe it's an error. Maybe it's not.
David Castle (WA9KJI) lost his license. Herb Schoenbaum (KV4FZ) lost his license. Both men got their licenses back. No forfeitures were paid.
David Tolassi (W4BHV) threatened to shoot an FCC enforcement official, and another licensee in the head, at the Dayton Hamvention. Then he threatened to blow up the Hamvention with a fertilizer bomb. Tolassi still has a license, despite multiple genuine warning letters, despite being retested, despite being taken off 20 meters for 3 years, despite being arrested and jailed for allegedly beating his wife while in a Klonopin and alcohol fueled rage. No NAL was assessed regarding the violent threats, despite FCC promises to get Tolassi off the air. Why? The FCC "lost the evidence...."
Todd Daugherty (N9OGL) solicited a hit man to kill two amateurs. He sent the FCC and Karol Madera an email notice of his plan to murder children and blow up fellow amateur's homes. Daugherty was charged with criminal harassment for threatening to blow up Consolidated Communications. Daugherty was then placed on house arrest for threatening his female (of course) probation officer. Then he threatened to interfere with air-to-air traffic. He was recently arrested for painting a target on his police chief's head. Charges were nol prossed, but could be reinstated. He's currently off the Internet. He still has an amateur license and there has been no NAL, despite multiple threats, arrests, and two genuine warning letters.
Michael D. Adams (AE4FB) a notorious drunk, drug addict, and pathological liar who threatened to light himself on fire in an attempt to extort the Enforcement Bureau into doing his bidding. Unfortunately, they didn't call his bet. Adams endorsed taking people out with a sniper rifle at the Dayton Hamvention. He concocted a shooting hoax with Karol Madera, and he interfered with ongoing communications, many times. Adams played music, and played his Shaman's drum over the air. Mike Adams, AE4FB, called Mr. Obama "a good Nigger who sucks rich white dick." There has been no enforcement activity in the Adams case.
George Arsics, (W2VB), an FCC HFDF Watch Officer, was reportedly found, by his peers, to be jamming 14.313 MHz with music from an FM radio station. However, there was no NAL and no consequences for Mr. Arsics where his amateur license was concerned. Perhaps the FCC was too embarassed to consequence an HFDF Watch Officer who they said was jamming 14.313 MHz. The FCC tried to fire Mr. Arsics, but he retained his job because the FCC failed to follow administrative procedures.
Speaking publicly, Mr. Arsics stated that the Enforcement Bureau often issued NAL's with unsubstantiated evidence. "If there was insufficient evidence to support the notice, I was directed by management personnel to send it to them and let them deny it. It would seem, the intent was to intimidate and harass." Arsics also charged inequitable and selective enforcement of the Commission's rules. "It was assumed that private citizens did not have access to the same legal resources that corporations did. Thus, private citizens, such as amateur radio operators, were more vulnerable to selective enforcement."
Shocking, isn't it? Arsics was an FCC employee, a Watch Officer, at the Powder Springs, Georgia, HFDF Center, and he was fired for jamming 14.313 MHz. In response, he stated, "The FCC was a cesspool of corruption where only money and egos mattered." Reading between the lines, many in Congress agree with Arsics.
The legislative intent of Congress is abundantly clear. Congress wants change. Congress wants fairness, openness, transparency, accountability, reasoned interpretations of FCC rules, strict adherence to laws, regulations, and processes, and the U.S. Constitution. Congress is only asking for every American's birthright. Whether they get it, or not, is another matter, of course.
Industry Canada's no better than the FCC when it comes to inequitable and selective enforcement. Rather than enforce rules on the books, IC merely did away with rules so that no enforcement was necessary. Jim Laursen, of IC, told Riley Hollingsworth, "ham radio is simply talk for the sake of talk." In essence, Laursen was saying, 'Who cares if some Fruitcake calls on al Qaida to murder American citizens?'
Karol Madera's been threatening Americans and inciting murder for years. IC yawns, continues to pass the buck, peddles reams of paper which few people ever read and which fewer even care about. That's the very essence of a bureaucratic agency. Industry Canada, like the FCC, is a form of federal welfare for hundreds of people who are marginally and notionally employed, but in reality, they often have nothing better to do than sit at their desks, staring out the window or watching porn, talking on the phone, texting friends, and generating pounds and pounds of useless paper.
In the case of the FCC HFDF employee downloading pornography in March, 2014, he or she wasn't the first by any means. He or she, spent many work hours, downloading and watching porn, and cruising Craigslist for paid sex trysts. FCC contractors watched porn with names like 'sweet 16' and 'hot young amateurs' while regular FCC employees also watched porn, or sold personal care products from their desks. Dozens of employees come in late and leave early, or the "work from home" with inadequate supervision, all on the taxpayer's dime.
The FCC's justification is, 'We bring in 13 times what we ask in return!' The FCC was referring to spectrum auctions, to which Congress replied, 'It's not your spectrum, and it's not your money, and in effect, please stop pissing on our legs and telling us it's raining.' No wonder the U.S. is operating with a staggering and growing debt for every man woman and child. Since 2012, the debt has increased at a cost of 2.2 billion per day. Each citizen's share of this debt is $56,651.07. And the FCC just asked for a raise. God forbid.
Let's face it, the majority of FCC employees are probably decent, hardworking employees, eager to serve the American people. On the other hand, one bad apple can spoil the whole bunch. If you've read the FCC's OIG reports, you know there are many bad apples, sitting in entrenched systems which are full of abuse, waste, and fraud, and these are disgraceful disservices to all Americans. The culture can only be changed by turning bad apples into slops for the hogs and charging management to make real changes, deep down, in the very ethos of the agency. That's where Congress comes in. Nothing else will get the job done, unless Congress liquidates the agency altogether, placing adequate performers under a different agency, like, the FTC for example. It could happen.
Congress has openly questioned the FCC's openness, fairness, and transparency. While discussing the closure of most of the FCC's field offices, FCC Chairman Wheeler told the Chair of the Committee, Congressman Greg Walden, "When you have more trucks than you have people...," Walden remarked, "I'd sell some trucks." ( at 55-56 minutes ) It's obvious that the leadership of this Congress has a great disdain for the way the FCC conducts its business, and that disdain has been clearly communicated with funding cuts, a barrage of questions, skeptical remarks, and multiple requests for documentation, concerning the FCC's questionable decision-making and opaque management practices.
The ARRL's Dave Sumner discussed the lack of transparency and the duplicity of the FCC, back in 2009 when Sumner pointed out the FCC's complete lack of transparency, as he quoted the BPL court, who said: "There can be no doubt the FCC deliberately witheld information that was contrary to its conclusions."
To say that broadcasters are skeptical that the "Tiger team" concept will work is an understatement. The DOE for a radio group said the field office closure plan "sickens me" and fears pirates will become even more of an issue to licensed broadcasters. Chairman Wheeler pledged to put more agents on the ground in Miami and New York specifically to combat pirates, however broadcasters remain skeptical of the plan. The consultants estimated that 108 personnel work in the field offices for a total of $12 million annually in wages and an additional $3 million in benefits. The 74 direction-finding vehicles consume
some $90,000 to $115,000 each. Travis LeBlanc has stated that taking pirates off the air is like playing whac-a-mole. Put one down and another six pop up in the first one's place. He was talking about FM pirates, but he's right, and the same is true in amateur radio. Traditional enforcement doesn't work and Chief LeBlanc understands this.
One broadcast attorney deemed the "Tiger team" concept "crazy" and doubts there will be much of a travel budget in the new plan. "I have been reporting pirates in Boston and Providence for over 15 years, both as a independent listener, with standing, and as a professional contractor for stations, and as a FT chief engineer for stations. NOT ONCE have I ever seen the FCC ever acted on an interference complaint by a pirate radio station, despite repeated entreaties by myself and supporting claims by other engineers/listeners. One of the pirates in Boston not only operated for over a decade, but the guy RAN FOR MAYOR OF BOSTON. That's what it took before the FCC finally deigned to notice his illegal operation. Pirates laugh at the FCC's claims of spectrum enforcement."
By Aaron Read on 4/16/2015. Thanks Aaron, we couldn't have said it better ourselves.
Our friends in Congress have cited an LA Times article on the harmful consequences of the FCC's net neutralization odor. As Commissioner Pai predicted, new Internet fees may be just around the corner, unless Congress can halt the madness. This session of Congress is to be heartily congratulated. In a very short time, they've done more to bring about an end to fraud, waste, and abuse at the FCC, while simultaneously calling for fairness, openness, and transparency in that agency's Byzantine labrynth of confusing and contradictory regulations, not to mention their Machiavellian methods of arbitrary and capricious enforcement. Along with Congress, the FCC's Office of the Inspector General continues to investigate the Enforcement Bureau's documented abuse of the public trust in the recent FCC pornography scandal and the episodes of FCC employee's who steal time and falsify their time sheets, among other abuses. Congratulations to hardworking staff and all the new hires at the Office of the OIG.
Congressional Committee Chairmen recently requested information about FCC decision-making processes and documents, so the committee may better understand the commission's thinking about a number of issues. "As you are aware, we have longstanding concerns with the fairness, openness, and transparency of the commission's administrative and rulemaking processes, including issues related to its document management practices. We recently wrote to you seeking additional information concerning whether the commission is fulfilling its statutory responsibilities regarding transparent and open public processes," wrote the leaders. We can only hope that the Committee will continue to demand answers and broad, lasting changes at the FCC.
Subcommittee(s) on Communications and Technology and Oversight and Investigations Question FCC on Data
Our representatives in two House Subcommittees are still probing the FCC in ways likely to make upper management uncomfortable. They filed a warning shot on March 27th, 2015, when they asked FCC Chairman Tom Wheeler about the plan to move the FCC's servers to West Virginia ahead of the FCC's general move out of the Portals II when their lease is up in Washington, D.C. later this year. According to our sources, the Subcommittee(s) have a sneaking suspicion some FCC servers may end up "missing" or "broken" in the way other servers at other agencies have "mysteriously" crashed and disappeared, and otherwise become unavailable for Congressional and Judicial scrutiny. Remember the expansion of the FCC's Office of the Inspector General? That wasn't designed to keep track of FCC outsiders, but rather those FCC employees who have made decisions that are less than open, transparent, and fair. The Subcommittees don't seem to trust the people running the FCC. Imagine that? Congress is moving in the right direction, but they haven't gone far enough, according to Peter Huber, who says the FCC is much too entrenched and much too corrupt to repair. Huber says (figuratively) it's time to burn it down and begin again. The Committee members have demanded answers within the next 5 days.
Congressional Probe of FCC Continues
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