FCC Commissioner Michael O'Rielly

The members of the American Legislative Exchange Council can serve an important role as the new Federal Communications Commission seeks to restore free market principles to broadband offerings.

Many of you know all too well of the pressure on us to buckle and acquiesce to the whims of the misinformed screaming for Network Neutrality. You likely face it at your respective statehouses as you debate the various matters before you. The “progressive agenda” being pushed in so many settings is really an effort to use government as a means to redistribute hard earned assets from one group of people to favored interests. Do not let your voices go unheard as Net Neutrality advocates slowly, but surely, seek to drag the US economy toward socialism. This debate is just one component in a larger and much more pernicious effort to vanquish capitalism and economic liberty.

Thank you for inviting me to join you today to discuss the Telephone Consumer Protection Act of 1991, or TCPA. The D.C. Circuit has yet to issue an opinion on ACA International’s appeal of the Federal Communications Commission’s TCPA Omnibus Order, which was joined by a wide array of parties. And I hope against all hope that a number of aspects of that Order will be overturned. Perhaps indicative, the D.C. Circuit recently said that TCPA did not give the FCC authority to require opt-out notices on solicited faxes. But regardless of the outcome on the broader TCPA appeal, I expect that the FCC will need to revisit the issue to write rules that are truly clear and rational. The 2015 rules are neither. Recognizing this reality, I would like to outline three overarching points to help frame the discussion and guide the adoption of any replacement rules.
1) Legitimate Businesses Should be Able to Make Informational and Telemarketing Calls
2) Valid Callers Should be Able to Operate in an Efficient Manner
3) The Commission Should Focus on Actual Harms and Real Bad Actors

The departure of its CEO presents an opportunity for the Universal Service Administrative Company (USAC) to clean up its act. USAC as it has been managed is not sufficiently accountable to the Commission, and is not meeting the needs of universal service stakeholders or the public, who pay fees to support USAC’s operations. Absent significant and timely improvements, I believe that all options should be on the table, including putting USAC’s functions out for contract, as the Commission has done in other circumstances.

I disagreed with the Court’s 2016 split decision, and also disagree with the split decision not to reconsider the matter en banc. However, this issue is somewhat moot for now as the Commission is under new leadership and headed in a far better direction. Rehashing old history here makes little sense, except to highlight the questionable degree of deference the court afforded the Commission – which, in all fairness, should also apply in the event that any future Commission action on net neutrality is reviewed.

Today, my colleague and I announce the beginning of a process to free the Internet from the terrible restraints of common carrier regulation now imposed on America’s broadband providers. After almost two years of experience, it is clear that this archaic regime never should have been imposed in the first place.

Based on hyperbole, rent seeking, imaginary problems and liberal ideology, the previous FCC took Internet policy down into a dark and horrible abyss. Well, we are here to declare that those days are over; we are bringing sanity and evidence-based decision-making back to the Commission’s rules. In releasing a new Notice of Proposed Rulemaking, the Commission initiates the necessary procedures to expunge net neutrality regulations from the Internet. Following a methodical and transparent path, which I commend the Chairman for pursuing, will help prevent opponents from complaining about procedural shortcuts and the like. Instead, we will follow the Administrative Procedure Act to the letter of the law. Hopefully, over the course of the next few months, we can move forward to a final order.

Federal Communications Commission Chairman Pai brings with him a love of broadcasting, a love of small businesses, a love of Kansas, and so much more. His selection may prove the catalyst for the regulatory golden age of our nation’s broadcasters.

In the grand scheme, whether to jettison the FCC is not for any of us to ultimately decide. Hearty discussions are important and should continue to be had as they can inform policymakers, in this case Congress. But the hopes for any real fundamental restructuring of the agency’s duties – or even if it should exist – will require legislation, which has proven difficult to enact for many reasons. In the meantime, the agency can address many of its flaws on its own. Better protecting the airwaves would demonstrate our commitment to a key original obligation. Additionally, reorganizing the internal structure and removing unnecessary burdens on broadcasters would line up nicely with the policy goals of many of us at the Commission. In closing, let me suggest that the new Executive Branch and Legislative Branch provide you with a wonderful opportunity – use it wisely!

I hope this committee will take a holistic approach when reviewing possible technology solutions. The Commission has tried to maintain a principle near and dear to me of technology neutrality. Clearly, it is not economically feasible to drag fiber to every unserved location. Instead, it will take multiple technologies. While that may make your review that much more challenging, accepting and honoring this reality will best serve everyone in the long run.
A word of warning as you prepare to examine these issues and possible solutions.

At some point I am sure, someone will argue that one solution is just to throw money at the problem. In this case, the money they talk about comes from consumers in the form of higher service fees than are necessary. I will be extremely reluctant to consider any recommendation that proposes to increase costs on everyday Americans trying to survive in today’s economy.

Over the last several years, we’ve been lectured by many that the US position on Internet governance was no longer sustainable in the larger, global community. So-called experts claimed that the US’s minimal government involvement in Internet issues was no longer a prudent approach. These “experts” added that if the US just ceded on our sound principles a little bit, authoritarian governments of the world would end their continued effort to seek increased government regulation and control of the Internet. In other words, they sought an appeasement strategy.

We now have a recent case study of this exact approach, and it doesn’t seem to have worked. Instead, some foreign governments have renewed their disturbing calls for government involvement in the Internet via a number of forums. Accordingly, it’s time to reject appeasement, acknowledge the work ahead and redouble our efforts to quash these attempts using all appropriate means.

I applaud President Trump and Congress for utilizing the Congressional Review Act to undo the Federal Communications Commission’s detrimental privacy rules. The parade of horribles trotted out to scare the American people about its passage are completely fictitious, especially since parts of the rules never even went into effect. Hopefully, we will soon return to a universe where thoughtful privacy protections are not overrun by shameful FCC power grabs and blatant misrepresentations.

One of Federal Communications Commission Chairman Ajit Pai’s most welcomed, yet least noted, process reforms has been his unequivocal direction that staff should be completely up front with all Commissioners, not just the Chairman. The message from the Chairman was that all staff will not withhold information requested by Commissioners or fail to share information that is pertinent to the many matters before us. This should be very liberating for staff as they don’t have to worry about being sent to the proverbial doghouse for helping Commissioners do their jobs.

At a time when Commission leadership has changed and is reconsidering and reconstructing its approach to many issues across the agency, there needs to be a realization from everyone that those priorities of the past Commission – not directly required by statute – should not necessarily be the focus of staff time. With resources at such a relative premium, staff attention shouldn’t be spent pursuing outdated goals.For instance, it wouldn’t make sense to have staff still focus their valuable time on those cybersecurity and privacy issues over which the Commission lacks statutory authority. Moreover, our enforcement staff should move away from headline grabbing and eye popping penalties that will never be collected. Let’s refocus our attention on our statutory responsibilities and realize a new Chairman gets to set the Commission’s agenda.