Flurry of new rules draws counter-arguments from Obama appointee.
In his first 10 days as head of the Federal Communications Commission, former Verizon lawyer Ajit Pai issued a slew of new rules and declarations, prompting the lone Democrat on the five-member commission (currently with two vacancies) to issue dissents.
On Friday, Pai revoked what he called Obama-era “midnight regulations” and reports released in that administration’s final days which he deemed controversial. “In some cases, commissioners were given no advance notice whatsoever of these midnight regulations. In other cases, they were issued over the objection of two of the four commissioners,” said Pai, who was named to the commission in 2012 and hence was able to begin his role as commissioner immediately. “And in all cases, their release ran contrary to the wishes expressed by the leadership of our congressional oversight committees. These last-minute actions, which did not enjoy the support of the majority of commissioners at the time they were taken, should not bind us going forward.”
He was rebutted in a public statement by Mignon Clyburn, the lone Democrat on the FCC since the departure of Chairman Tom Wheeler just before President Trump was inaugurated. “Today is apparently ‘take out the trash day,’ ” she said, referring to the Washington tactic of releasing negative or controversial news on a Friday in hopes that fewer news consumers notice. “Today multiple bureaus retract—without a shred of explanation—several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission. In the past, then-Commissioner Pai was critical of the agency majority for not providing sufficient reasoning behind its decisions…It is a basic principle of administrative procedure that actions must be accompanied by reasons for that action, else that action is unlawful.” She said her office asked for more than two days to review the changes but was rebuffed.
In another change, Pai announced that the agency was ending its investigation into wireless carriers’ offerings of free data, a step some fear could alter the FCC’s recent sympathy to the consumer concept of Internet neutrality by allowing major corporations special access. “These free-data plans have proven to be popular among consumers, particularly low-income Americans, and have enhanced competition in the wireless marketplace,” he said. “Going forward, the Federal Communications Commission will not focus on denying Americans free data. Instead, we will concentrate on expanding broadband deployment and encouraging innovative service offerings.”
Pai also announced, in the name of transparency, that he would give commissioners more advance notice of votes to be taken at coming FCC open meetings. He also rescinded permission of nine broadband companies to work within a federal subsidy program for needy customers.
Clyburn again pounced. “Today, the agency reverses course on providing more competition and consumer choice for Lifeline customers. Rather than working to close the digital divide, this action widens the gap,” she said. “By eliminating the designations of nine entities to provide Lifeline broadband service, the bureau has substantially undermined businesses who had begun relying on those designations,” among them many minority-owned business and those serving tribal lands, she said.
Pai’s transparency move drew praise from three Republican senators on the Commerce, Science and Transportation Committee. "I applaud Chairman Pai for beginning the practice of making public the content of items intended to be voted on at FCC Open Meetings,” said Sen. John Thune, R-S.D. After leading an investigation last year into the FCC’s manipulation of information in advance of open meetings, I believe that a more transparent FCC will be more credible and more accountable. I am pleased that the new leadership is correcting this long-recognized process flaw.”
But Pai’s foray into altering the commission’s approach to net neutrality prompted criticism from committee member Sen. Edward Markey, D-Mass. “It is clear that net neutrality is public enemy No. 1 for Chairman Pai, and he is starting his campaign by protecting harmful zero-rating plans,” he said, characterizing such plans as allowing corporate Internet service providers to “favor their own content while putting everyone else at a competitive disadvantage.”
Corynne McSherry, legal director at the Electronic Frontier Foundation, wrote an op-ed in Newsweek last month arguing that “Pai takes the helm at a time when the country is at its most divided and animosity towards Washington D.C. is at its highest. Many Americans do not believe the government has been listening to them. The FCC is no exception. It has a sad history of being captured by the very industries it is supposed to regulate, and an equally sad history of ignoring grassroots public opinion.”
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