O’Rielly ‘Comfortable’ with Past Views on Section 706 Issues
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Monday, January 22, 2018

O’Rielly ‘Comfortable’ with Past Views on Section 706 Issues

FCC Commissioner Mike O’Rielly today said that he remains “pretty comfortable” with positions he took in the past regarding the FCC’s assessment of the deployment of advanced telecommunications capability, which included arguing that the facts didn’t support a need for the 25 megabits per second downstream/3 Mbps upstream speed threshold adopted in 2015.

In his dissent to the FCC’s 2015 report to Congress on advanced telecommunications — commonly referred to as a “706 report” for the section of the 1996 Telecommunications Act that mandates the report — Commissioner O’Rielly also criticized the then Democratic majority’s suggestion that “the day is fast approaching when consumers must have wireless and wired broadband at the 25/3 standard” (TR Daily, Jan. 29, 2015).

The notice of inquiry adopted last year for the upcoming report had opened the door to the possibility that availability of mobile broadband services could provide a stand-alone rationale for the FCC to find that “advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion,” a question that section 706 of the 1996 Telecommunications Act requires it to answer in its reports to Congress. However, the draft report circulated last week would conclude that mobile broadband services are not full substitutes for fixed services (TR Daily, Jan. 18).

During a press briefing at the FCC today, Commissioner O’Rielly said that his office is still “digesting” the draft report. “I think that I’m pretty comfortable with my positions in the past. … In terms of the speed thresholds, I raised a number of problems with why they were elevated at the time.”

He said he is “looking at whether all the data supports the current numbers.” However, he said that “the story contained within the [2015] report … wasn’t actually real. If you consider the path in terms of 4K television and what they expected [and] you look today at where 4K TV is, it’s still not ubiquitous.”

“I also argued that the entire report was done for political purpose versus statutory purpose, and then we’ve had a larger discussion of what’s the value of the report,” he added.

Ultimately, he said, “what I have suggested is that whatever we do with report is going to change the behavior of the Commission in terms of all the hard work we’re doing to bring broadband available. … We’re going to continue to plow ahead really hard on those issues.”

Noting that the statutory deadline for filing the report is approaching next month, he said he would vote on the item before the deadline.

Asked to propose a metric for evaluating in five years whether the “restoring Internet freedom” order adopted by the FCC last month (TR Daily, Dec. 14, 2017) has been a success, Commissioner O’Rielly said, “I will give you one that I think is really valuable. … I’m really interested to see what happens on paid prioritization.” He said that “it’s not something I can measure right at this point. … We’re going to see different flavors, different options for consumers.”

He added, “I think eliminating the general conduct standard is incredibly important, but it doesn’t get me to a metric.”

Asked whether there were other metrics on the purchaser side that he might use, such as average speeds or overall market size, Commissioner O’Rielly said, “If the speeds are not 25/3, if the experience is 1 gig — I don’t know if we can lay that at the feet of our decision. Companies are already moving to a gig in many situations.” Similarly, he said, it would be hard to attribute job growth to the FCC’s decision. “That line is difficult to prove,” he said.

Asked whether the precedent of the 2016 appeals court decision upholding the FCC’s 2015 open Internet order could help the agency in defending the Internet freedom order, the Commissioner said it would. “I think we deserve as much deference as they do,” he said.

Asked whether edge providers should be subject to the same regulation as Internet service providers, Commissioner O’Rielly said, “I think it’s important to continue to examine the overall issue. I think the Chairman [Ajit Pai] is right to raise the topic. I’m not interested in imposing like regulation on the edge community to create some kind of parity level. I would go in the opposite direction” by decreasing regulation on ISPs.

As for whether he believes President Trump would veto a Congressional Review Act resolution nullifying the Internet freedom order, if Congress were to pass one, he said, “I have had no conversations with the White House on substantive matters before the FCC. … I’ve had no discussions with them on this topic.”

Pressed on his expectations regarding a possible veto, he said, “I don’t think it’s appropriate to speculate what this president may or may not do.” He added, “I don’t imagine the CRA [resolution] will succeed.”

As for the possibility of congressional action to adopt net neutrality rules to replace those eliminated by the FCC in the Internet freedom order, the Commissioner noted that he has advocated for “legislative activity on this front. I believe it’s the only way we’ll have finality and lasting peace.”

However, he acknowledged, “It’s probably a heavy lift, given the dynamics of the year, … given the election cycle.” Still, he said, “we have enormous capacity and credible leaders in both the House and the Senate in [Senate Commerce, Science, and Transportation Committee] Chairman [John] Thune [R., S.D.] and [House Energy and Commerce Committee] Chairman [Greg] Walden (R., Ore.], and if that’s something they can make happen, they will.”

Asked whether he, like Chairman Pai, has been subjected to any harassment over the Internet freedom decision, Mr. O’Rielly said, “I think what I’ve seen after this item is probably the most vicious commentary I’ve seen on a particular topic during my time in Washington.” He added, “I don’t want to speak to my particular situation. I’ll say that I have not been immune. The Chairman obviously is the Chairman and he gets more of it.”

A reporter asked whether he is disappointed that net neutrality supporters haven’t been more vocal in criticizing the ugly comments and death threats leveled at the Chairman.

Mr. O’Rielly said, “I thought they were a little bit late to the game in terms of saying things. I would have hoped that they were there earlier and commenting. I think there’s a whole world of opportunity to agree on substance that doesn’t get to the level of hatred that’s been espoused on this particular issue.”

As for what has been driving the threats, he said that there has been “a lot of misinformation on the substance” of the Internet freedom order. “People also see this as one of the prongs in terms of the way they disagree with the administration, even though we’re an independent agency,” he added.

Asked when the Internet freedom order will be published, he said, “I don’t know, … but I think the goal is momentarily, in the next couple weeks, four weeks would definitely be the hope.”

Commissioner O’Rielly also addressed universal service issues, including the draft Connect America Fund (CAF) Phase II auction and expanded rural high-cost funding items circulated by the Chairman.

“I’m examining the items very closely. I’m very pleased that we’re going to do a reverse auction for the CAF monies. … Our goal is to have as many people as possible at the table and bidding,” said Commissioner O’Rielly, who chairs the Federal-State Joint Board on Universal Service.

He said he is “looking to see” how the rate-of-return item that has been circulated “matches up and how it would work with past reforms.”

As for the issue of reforming the universal service contributions mechanism, he said, “I’m getting ready to talk about these issues [publicly] in the next couple of weeks. I know the states have a particular proposal that they’re pushing. … They seem to be inclined to tax Internet services — that is not in line with my viewpoint of how contributions should work.”

Mr. O’Rielly, who is also on the Federal-State Joint Board on Jurisdictional Separations, said that a new separations item is circulating.

However, the Federal-State Joint Conference on Advanced Services “is probably not doing a lot right now. Its function has been subsumed by other advisory committees,” he said.

Asked about proposals for imposing a cap on the Lifeline program and prioritizing funding first to tribal lands, and then to rural communities, before other areas, Mr. O’Rielly said, “I support a budget for the Lifeline program and always have.” However, he added, “I don’t believe that you fund a particular space just because it’s designated X, Y, or Z. There are areas of tribal lands that are very poor. There are other areas of tribal lands that are not.”

“If there are rural communities that are doing well, … I don’t think they should get priority over anyone else,” he continued. “To me it’s about need, not about designation.”

He also discussed the FCC’s investigation of a false wireless emergency alert in Hawaii, key wireless proceedings, spectrum issues, and other matters (see separate story). —Lynn Stanton, lynn.stanton@wolterskluwer.com

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