Kidvid Action Unlikely This Year, More Media Modernization Pitches Coming, O'Rielly Says

“There really isn’t a huge window left this year,” O'Rielly said, saying a kidvid order is more likely in Q1 or Q2. Opponents of the proposals that try to connect the issue to a lack of regulation of online children’s content are trying to “take advantage,” O’Rielly said. The FCC’s kidvid rules aren’t intended to involve over-the-top services and he’s trying to keep the proceeding focused, he said. O'Rielly said the “provocative” blog post he wrote on the kidvid rules that led to the current proceeding (see 1801260031) came out of the media modernization comments and wasn't part of a coordinated strategy with Chairman Ajit Pai’s office. The chairman’s office doesn’t direct him to highlight issues in his posts, he said, though he said he makes sure Pai’s office isn’t surprised by the issues. “They’ve never sought preapproval,” he said.

O’Rielly conceded kidvid is a more controversial matter than most of those targeted through the media modernization effort. There are other somewhat controversial items he would like to see taken up. Eliminating rules requiring posting notices of applications in newspapers is one such issue, which the agency hasn’t acted on despite having gone through the NPRM process, O’Rielly said. He hopes more modernization issues are suggested. “I’m always open to good ideas,” he said.

All his pitches for changes are "potentially likely" to garner the support of the other commissioners, O’Rielly said. "I try to put forward ideas I think can get passed" by the FCC or find traction on Capitol Hill, especially since he and Pai are philosophically aligned "very well," he said. He said items often can take longer than anticipated, citing the 3.5 GHz proceeding.

Ideas floated at the Oct. 23 meeting included limits on local franchise authority actions during franchise transfers and renewals and on the ability to mandate broadband network builds. NATOA anticipates "further efforts by the FCC to limit local authority with respect to cable operators (among other things)," emailed General Counsel Nancy Werner. "Commissioner O’Rielly noted in his statement [here] on the recent cable rate regulation FNPRM and Report and Order a list of items he wanted the Commission to address, so I would expect to see at least some of those items in the upcoming months." Asked about whether the FCC will pursue ideas O'Rielly brought up at the meeting, Pai's office didn't comment.

Media Changes

The media market "has dramatically changed" and is no longer distinct silos of broadcast or cable, but broader video since OTT operators also competing for the same viewers and advertising, O’Rielly said. He said FCC rules eventually have to reflect that. He said if the FCC has any authority to regulate OTT -- which itself is debatable -- it would be "extremely narrow." He said it's up to Congress to decide if OTT should be regulated, "but generally the marketplace is functioning very well."

Revisiting retransmission consent rules won't happen until Congress authorizes it, O’Rielly said. "I don't tilt at windmills," he said. "The status quo is the status quo -- good or bad." He would like Congress to rewrite Title VI of the Communications Act, which governs video providers: "There are a lot of [Cable Act] provisions that don't make any sense anymore."

The upcoming 2018 quadrennial review likely won't focus on media modernization-style process matters, because its focus is ownership, O’Rielly said. Since the FCC has lost in court on every previous QR, it’s beneficial to keep those items out from under that umbrella where possible, he said. “I don’t think we have a great record” there.

Though many ownership items were addressed outside the QR, O'Rielly sees room to make changes to broadcast ownership rules. He would like to see the review include an examination of the possibility of broadcast triopolies.

ALJ and Sinclair

The administrative law judge process needs revising, O’Rielly said. Not commenting on any particular matter, he made obvious reference to the Sinclair/Tribune hearing designation order, saying each day ALJ Richard Sippel doesn’t issue a decision on that order proves the process is broken. O’Rielly pushed to have a clause included in the HDO requiring Sippel announce a schedule for the HDO process by a date that has long since passed, but O’Rielly said the continuing silence from Sippel’s office doesn’t violate that clause.

The deal’s unwinding invalidated the language in the HDO, and O'Rielly didn’t think to push for scheduling language that accounted for that. O’Rielly “damn sure” will work to include timing specifics for all eventualities the next time it comes up, he said. The “black hole-ness” of the ALJ process is the reason it needs to be changed, he said. “I like to believe we can make decisions in a timely manner.”

A changeover in House and/or Senate leadership (see 1810310025) won’t necessarily hinder FCC work, O’Rielly said. “Divided government can be productive.” If Democrats ramp up congressional oversight hearings on the Republican-controlled FCC, that doesn’t have to be a problem, he said. “I don’t have a problem with congressional oversight,” he said. “I respect the priorities as they determine them.”

A fifth commissioner won't materially change how FCC members operate, aside from perhaps making meetings a bit longer, O'Rielly said. "I welcome more insight and opportunities to work with other people." Geoffrey Starks awaits confirmation.