Posted by: Joan Marsh on February 8, 2017 at 10:03 am
FCC reform is a topic of much discussion these days. Indeed, Chairman Pai has already initiated some important process reforms and we anticipate that more are coming. Clearer and more transparent processes will lead to better regulatory results.
We have also been contemplating reform and will, from time to time, be posting our ideas for regulatory and structural reform at the FCC. We start with some ideas for reforming process at the Enforcement Bureau – a Bureau that operated for many years with professionalism but whose recent practices have been marked increasingly by bad process, novel and tenuous theories of liability, and Notices of Apparent Liability (NALs) that languish after adoption.
There are a number of areas where we believe the enforcement process can and should be significantly improved:
Rulemaking via Enforcement: The Bureau recently has used enforcement actions to create substantive requirements that have not previously been articulated or formally adopted by the FCC. Concerns about this practice have been voiced by many in the industry as the Bureau offered strained and novel readings of FCC rules that were often at war with longstanding communications concepts. Establishing substantive requirements within the context of an enforcement action runs counter to accepted notions of due process and fundamental fairness and should be avoided.