O'Rielly Wants FCC Action on TCPA Liability, Supports SMS Draft, Eyes ALJ Changes
FCC Commissioner Mike O'Rielly wants to act on liability under the Telephone Consumer Protection Act, possibly in a reassigned phone number draft order targeted for the Dec. 12 commissioners' meeting. He backed a draft order to classify SMS and other wireless messaging as Communications Act Title I information services, generally supported a draft order to increase rural telco USF funding and suggested he might soon push for changes to the agency’s administrative law judge process. He spoke to reporters after a Phoenix Center event Tuesday at which he discussed his municipal broadband speech concerns, kidvid efforts and broader process proposals. Also there, supporters of the FCC Title I reversal of Title II net neutrality regulation voiced confidence it will be upheld in court.
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TCPA liability protection for callers "is very important," particularly since the FCC draft would authorize a reassigned number database to help curb illegal and unwanted robocalls, O'Rielly told us. The draft currently doesn't address liability, but he said there's still time to make changes: "I don’t know if it’s going to be now or later, but I’m definitely interested in addressing it." The FCC may decide on a possible industry safe harbor in a broader, upcoming TCPA order (see 1811230028).
SMS and succeeding messaging technologies are applications, O'Rielly said. It's weird "to argue that [you're] for Title I for the underlying network but the applications that ride over it would be a Title II service," he said. "That's wrong, not consistent with the marketplace." He said instant messaging has more users than SMS and "one of the reasons is this quasi-regulatory treatment of SMS makes no sense." He wants to make sure the draft is "sufficiently broad" to "cover new technologies." Some oppose the draft (see 1811200048).
O'Rielly is "supportive" of increasing the rate-of-return USF budget, as another draft proposes (see 1811210032). "To the extent we’ve recognized that we can improve the budget and provide more certainty, that’s a wonderful thing." He's "working on the particulars of the item" to make sure he understands "how different pieces fit together," including a new offer of model-based support.
O’Rielly indicated he could tackle revisions to the ALJ process, which he said isn't working efficiently. He may address the matter in “coming weeks,” he said. O’Rielly said as far as he can tell, there has been no action on the most recent matter sent to the ALJ, the Sinclair/Tribune hearing.
During the event, O'Rielly said he's a "complete critic of municipal broadband," with free-speech concerns one of several objections. He said it's problematic anytime the government offers this service. "Broadband providers have rights in this space" and "the operating of a network by a local government can interfere with the First Amendment, and remains a threat, given the structure of the end-user agreements they have," he said, noting he plans to say more on the topic soon: "Expect further debate in coming months."
O’Rielly isn't interested in harming those who benefit from children’s programming or disrupting the business models of programmers in the kidvid proceeding, he said. “I think there is agreement that can be reached.” He said the proceeding could be completed in Q1 or possibly Q2.
O'Rielly continues to talk with Chairman Ajit Pai about FCC process revisions, and hopes for new action soon. "I've put together about 60 items -- some big, some small, some tiny -- that I think can improve the agency," he said.
Panelists expect the FCC to be upheld on its Title I broadband order undoing net neutrality regulation, especially in light of a Supreme Court 2005 ruling upholding cable broadband as Title I. "This is Brand X all over again and it's hard to imagine how we get to a different result" on challenges to the current order in the U.S. Court of Appeals for the D.C. Circuit, said attorney Matt Brill of Latham and Watkins. He said even the D.C. Circuit's USTelecom affirmation of the prior FCC's Title II net neutrality order was helpful because it gave the agency much deference, which will again come into play: "From a Chevron perspective, I think it's quite straight forward."
Wilkinson Barker's Bryan Tramont agreed Brand X made it likely the Title I classification gets vindicated. Mayer Brown's Angela Giancarlo said the commission just has to provide a reasoned explanation. Panelists believe the current FCC's basis for its action was much stronger than the prior commission's. Maureen Ohlhausen, ex-acting FTC chair, believes the FCC will get deference: If the record for the 2015 order can withstand review, she didn't see how the record for the current order wouldn't. She said the FTC is well-equipped to handle broadband consumer protection and, with DOJ, antitrust concerns.
"They're wrong," emailed John Bergmayer, Public Knowledge senior counsel, about panelists' confidence the agency will win. Other net neutrality advocates didn't comment.