FCC Commissioner Ajit Pai

It is disappointing that the Federal Communications Commission’s current leadership has yet again chosen to spend its last days in office the same way it spent the last few years—cutting corners on process, keeping fellow Commissioners in the dark, and pursuing partisan, political agendas that only harm investment and innovation. This time the midnight regulations come in the form of a Bureau-level report casting doubt on the legality of free data offerings—offerings that are popular among consumers precisely because they allow more access to online music, videos, and other content free of charge.

This report, which I only saw after the FCC released the document, does not reflect the views of the majority of Commissioners. Fortunately, I am confident that this latest regulatory spasm will not have any impact on the Commission’s policymaking or enforcement activities following next week’s inauguration. It was my hope—as I have consistently expressed to my colleagues—that we could spend the remaining days of this Administration working together with bipartisan comity to ensure a smooth transition. It is sad that the outgoing leadership of the agency has chosen a different path.

We strongly object to the Media Bureau’s decision to resolve the petitions for reconsideration of the Commission’s decision in 2016 to impose unnecessary reporting requirements on noncommercial educational (NCE) television stations. The Commission’s ruling no longer enjoys the support of the majority of Commissioners—nor is there a majority that supports today’s Media Bureau decision—so it was wrong for the Bureau to bypass Commissioners and reaffirm these reporting requirements unilaterally. And making matters worse, the Bureau gave no notice to Commissioners of its decision, leaving our offices to find out about its order from the press. This basic lack of comity is unacceptable in any situation, but is especially unfortunate during a transition between Administrations.

Dec 15, the small business exemption from the Title II Net Neutrality Order’s expanded reporting requirements expired. We worked hard to reach a consensus with our Democratic colleagues that would have prevented the exemption from lapsing. Unfortunately, those efforts did not bear fruit and now thousands of our nation’s smallest and most competitive Internet service providers are worried that they will be subject to unnecessary, onerous, and ill-defined reporting obligations. This was a lost opportunity for the Commission to do the right thing. It also ignores the strong bipartisan support from the House of Representatives, the Senate Committee on Commerce, Science, and Transportation, and the Obama Administration’s own Small Business Administration.

We note the exceptional leadership of Sens Daines (R-MT) and Manchin (D-WV), and House Commerce Chairman Walden (R-OR) on this matter. We appreciate the willingness of two of our colleagues to negotiate in good faith on a compromise. We remain committed to protecting small businesses and their customers from the higher costs and disproportionate impact that would accompany the implementation of these requirements, and we remain hopeful that a consensus exemption can still be achieved at the Commission in the months ahead in addition to reviewing the application of the overall burdens themselves.

On issue after issue at the Federal Communications Commission, the Free State Foundation has spoken out forcefully and eloquently on behalf of limited government, the rule of law, and rigorous economic analysis. It has been a key voice fighting against the FCC’s regulatory overreach in areas such as Title II, business data services, municipal broadband, set-top boxes, and broadband privacy. Unfortunately, the FCC lately has been providing Free State’s scholars with plenty of material to criticize.

But I’m optimistic that Nov’s election will prove to be an inflection point—and that during the Trump Administration, we will shift from playing defense at the FCC to going on offense. Indeed, I believe the new year will bring the best opportunity in the Free State Foundation’s existence for it to advance public policy that reflects our shared principles.

Two weeks ago, Congress called on the Federal Communications Commission to respect the tradition followed by Democrats and Republicans alike eight years ago during the last Presidential transition. Accordingly, a bipartisan majority of Commissioners at last month’s FCC meeting heeded Congress’s call to “avoid directing [our] attention and resources...to complex, partisan, or otherwise controversial items.”

And yet, last night, Chairman Wheeler launched yet another broadside against free data for consumers, notwithstanding the objections of Republican commissioners. This end-run around Congress’s clear instruction is sad—and pointless. For any unilateral action taken by the Wireless Telecommunications Bureau at the Chairman’s direction in the next 49 days can quickly be undone by that same bureau after January 20, 2017.

I want to congratulate Senator Jeff Sessions on his prospective nomination by President-Elect Trump to serve as Attorney General of the United States. I had the honor of working for Senator Sessions on the Senate Judiciary Committee, when he chaired the Subcommittee on Administrative Oversight and the Courts. Senator Sessions was and is a good man and a superb senator: honorable, thoughtful, devoted to the Constitution, and deeply committed to equal justice and the rule of law. He has long employed a diverse staff of attorneys—during my tenure, his staff consisted of an African-American man, two women, and me, a first-generation Indian-American—all of whom worked every day to fulfill his vision of a just and free America. I commend Senator Sessions’ nomination without reservation. The Department of Justice and the American people will benefit from his leadership.

In 2015, the Federal Communications Commission adopted the VoIP Symmetry Order on a partyline vote. As I said in my dissent, the order “alters our rules to mean something they’ve never meant before.” This morning, the DC 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.

We’ve had success in calling attention to government initiatives that threatened our constitutional freedoms. The most salient example was the Federal Communications Commission’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. 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. And nowhere is that consensus more at risk than on college campuses.

High-speed Internet access, or broadband, has enabled the democratization of entrepreneurship. Way back when, if you had a good idea, the odds were against you reaching success at scale unless you worked in a large organization, had personal connections, or otherwise hit the lottery. But today, with a powerful plan and a digital connection, you can raise capital, start a business, immediately reach a worldwide customer base, and disrupt an entire industry. Never before has there been such opportunity for entrepreneurs with drive and determination to transcend their individual circumstances and transform our country.

I want to think big about how to bring broadband to every part of the country. I want to discuss how government at all levels can help spur more entrepreneurship and innovation. In short, I want to share my vision of a Digital Empowerment Agenda that will allow all Americans—no matter what their race, religion, gender, or sexual orientation, no matter where they live, no matter what their personal background—to make their lives better.

Speaking to the Kansas Association of Broadcasters, Federal Communications Commission member Ajit Pai said, “I can’t help but mention the FCC’s decision this year to retain the newspaper-broadcast cross-ownership rule. Put simply, it makes no sense for the federal government to discourage investment in the newspaper industry. But that’s precisely what the newspaper-broadcast cross-ownership rule does. It’s particularly unfortunate because broadcasters are well-situated to partner with newspapers. The reason is simple. Investments in newsgathering are more likely to be profitable when a company can distribute information over multiple platforms. This is not just a theory. Because the FCC grandfathered newspaper-broadcast combinations that predated the 1975 adoption of the newspaper-broadcast cross-ownership rule, we have evidence from across the United States. There are at least 15 studies demonstrating that newspaper-television cross-ownership increases the quantity and/or quality of news broadcast by cross-owned television stations.”