For those interested in the aggressive give and take between the Democrat
FCC Commissioners Wheeler, Rosenworcel and Clyburn and the two Republicans,
Pai and O'Rielly here is a somewhat bad transcript of the FCC Enforcement
Bureau Restructuring discussion of this morning's FCC open meeting. Note
especially O'Rielly's statutory authority argument which is interesting but
unfortunately, to me and others, not overly convincing.
A lot of promises to do pirate broadcasting enforcement but nothing on a
five year old New York City unlicensed jammer of Amateur, GMRS, Broadcast
Auxiliary and Land Mobile Public Safety frequencies. Startling statement
from Chairman Wheeler who claims that during HIS TENURE at FCC there have
been some 200 pirate broadcast busts. If so, they sure have not publicized
many of them.
73, Chris W3KD
P.S. Thanks to NAB for this transcript.
*Subject: *Today's FCC meeting - Enforcement Modernization Item
Transcript (from live captioning):
MR. CHAIRMAN, COMMISSIONERS, THE NEXT ITEM ON YOUR AGENDA IS PRESENTED BY
THE ENFORCEMENT BUREAU, TRAVIS, CHIEF OF THE BUREAU, WILL GIVE THE
INTRODUCTION.
CHAIRMAN WHEELER: MR. LE BLANC.
GOOD MORNING, MR. CHAIRMAN AND COMMISSIONERS. I AM PLEASED TO PRESENT
YOU AN ORDER THAT RESTRUCTURES THE ENFORCEMENT BUREAU'S FIELD
OPERATIONS. THE ENFORCEMENT BUREAU CURRENTLY HAS APPROXIMATELY TWO DOZEN
FIELD LOCATIONS. THESE OFFICES RESOLVE INTERFERENCE ISSUES, ASSIST WITH
DISASTER RECOVERY, DEVELOP DIRECTION FINDING TECHNOLOGY, AND ENFORCE
COMPLIANCE WITH THE COMMISSION'S RULES. OUR FIELD EMPLOYEES PERFORM
VALUABLE WORK. MANY HAVE SERVED THE COMMISSION FOR DECADE. THIS
MORNING, IN THE PRESENCE OF ALL OUR COMMISSIONERS AND AMERICAN PUBLIC, I
WANT TO TAKE A MOMENT OF PERSONAL PRIVILEGE TO ACKNOWLEDGE THE DEDICATION
THAT OUR FIELD PERSONNEL HAVE SHOWN TO THE COMMISSION, AND I WANT TO
SALUTE THEIR PUBLIC SERVICE. IT HAS BEEN NEARLY TWO DECADES SINCE OUR
FIELD OPERATIONS HAVE BEEN THOROUGHLY EXAMINED. THE PROPOSAL BEFORE YOU
ALIGNS THE BUREAU'S FIELD OPERATIONS TO ENABLE FIELD AGENTS TO FOCUS
MORE EFFICIENTLY ON PRIORITIES, PARTICULARLY ENFORCEMENT OF THE RULES
GOVERNING RADIO FREQUENCY INTERFERENCE ISSUES. THE PROPOSAL IS FISCALLY
RESPONSIBLE. IT STREAMLINES THE FIELD'S MANAGEMENT STRUCTURE AND SAVES
MILLIONS OF DOLLARS IN OFFICE AND PERSONNEL EXPENSES. ON BEHALF OF THE
ENFORCEMENT BUREAU, I WOULD LIKE TO THANK THE MANY PEOPLE WHO PROVIDED
INPUT IN THIS PROCESS, INCLUDING OUR COLLEAGUES IN THE FIELD AND
THROUGHOUT THE COMMISSION, OTHER FEDERAL AGENCIES AND EXTERNAL
STAKEHOLDERS. I ALSO WOULD LIKE TO THANK JOHN WILKINS, BILL DAVENPORT,
JOE MOONEY, TOM GREEN, AND BRAD FOR THEIR WORK ON THIS PROJECT. WITH ME
TO PRESENT THE ORDER IS BILL DAVENPORT, DEPUTY CHIEF ENFORCEMENT BUREAU.
ALSO JOHN WILKINS, MANAGING DIRECTOR, OFFICE OF THE MANAGING DIRECTOR.
BILL DAVENPORT WILL NOW PRESENT THE ITEM.
GOOD MORNING, MR. CHAIRMAN AND COMMISSIONERS. THE COMMISSION LAST HE
EXAMINED THE ENFORCEMENT BUREAU'S FIELD OPERATIONS APPROXIMATELY 20
YEARS AGO. SINCE THEN, WE HAVE SEEN SUBSTANTIAL CHANGES IN
COMMUNICATIONS TECHNOLOGY AND INVESTIGATIVE CAPABILITIES. AT THE SAME
TIME, THE COMMISSION HAS BEEN WORKING WITH FLAT OR DECREASED BUDGETS IN
RECENT YEARS. IT IS CLEAR THAT THE FIELD NEEDED TO BE REORGANIZED TO
BETTER ENABLE OUR FIELD AGENTS TO RESPOND EFFECTIVELY TO THE SPECTRUM
ENFORCEMENT CHALLENGES OF THE 21ST CENTURY. THE ITEM BEFORE YOU
REORGANIZES THE ENFORCEMENT BUREAU'S FIELD OPERATIONS. SOME OF THE KEY
ELEMENTS OF THE PLAN ARE AS FOLLOWS: THE COMMISSION WILL CONTINUE TO
OPERATE FIELD OFFICES IN ATLANTA, BOSTON, CHICAGO, COLUMBIA, MARYLAND,
DALLAS, DENVER, HONOLULU, LOS ANGELES, MIAMI, NEW ORLEANS, NEW YORK
CITY, PORTLAND, OREGON, AND S SAN FRANCISCO. WE WILL CLOSE FIELD
OFFICES IN ANCHORAGE, BUFFALO, DETROIT, HOUSTON, KANSAS CITY, NORFOLK,
PHILADELPHIA, SAN DIEGO, SAN JUAN, SEATTLE, AND TAMPA. WE WILL MAINTAIN
A FIELD PRESENCE IN ALASKA AND PUERTO RICO BY WORKING WITH CREDENTIALED
LOCAL CONTRACTORS TO ASSIST ON TIME SENSITIVE INTERFERENCE MATTERS. THE
COMMISSION WILL IMPLEMENT A NATIONWIDE OUTPLACEMENT EFFORT TO ASSIST ANY
DISPLACED EMPLOYEES WITH FINDING NEW POSITIONS. FINALLY, WE WANT TO SAY
HOW MUCH WE APPRECIATE THE HARD WORK AND FEDERAL SERVICE OF OUR FIELD
EMPLOYEES. MANY OF THE PEESM AFFECTED BY THESE CHANGES ARE LONG TERM FCC
EMPLOYEES, AND WE RECOGNIZE THE STRESS THAT THIS PROCEEDING HAS
GENERATED FOR THEM AND THEIR FAMILIES. FOLLOWING RELEASE OF THIS ORDER,
THE OFFICE OF THE MANAGING DIRECTOR WILL PROVIDE FORMAL NOTICE TO BEGIN
NE GOASH YAIGS OVER THE IMPACT AND IMPLEMENTATION OF THIS PLAN. THE
ENFORCEMENT BUREAU RECOMMENDS THE COMMISSION'S ADOPTION OF THIS ITEM.
THANK YOU.
CHAIRMAN WHEELER: THANKS, MR. DAVENPORT. COMMISSIONER CLYBURN.
COMMISSIONER CLYBURN: THANK YOU, MR. CHAIRMAN. FACING US THIS MORNING IS
A DECISION THAT IS BOTH DIFFICULT AND PAINFUL. WE FIND OURSELVES AT A
CROSSROADS, FORCED TO COME T TERMS WITH STARK BUDGET DRI REALITIES
DIRECTED AND ENFORCED BY CONGRESS, AND ITS ULTIMATE IMPACT ON SOME OF
THE MOST INTELLIGENT AND DEDICATED PERSONS IN FEDERAL GOVERNMENT WHO
PROUDLY AND ABLY ENFORCE COMPLIANCE RULES FOR OUR AGENCY IN THE FIELD.
BUT THE DIFFICULT PAINFUL TRUTH IS THIS: EXCEPT FOR AWBTIONS FUNDING, THE
FCC HAS BEEN OPERATING UNDER A FLAT BUDGET FOR THE PAST FIVE FISCAL
YEARS, AND IF WE FACTOR IN INFLATION AND THE IMPACT OF THE SEQUESTER,
OUR PURCHASING POWER HAS CONTINUED TO DECREASE STEADILY OVER TIME. I
SAW THIS FIRSTHAND AS ACTING CHAIR, MR. CHAIRMAN, WHEN IN THE MIDDLE OF
SEQUESTRATION, $17 MILLION OF OUR LICENSEES' FUNDS WERE TAKEN FROM OUR
BUDGET FOR GOVERNMENT WIDE DEFICIT REDUCTION. AS A RESULT, WE HAVE BEEN
DELIBERATING THIS ITEM FOR MONTHS. AND NOW MUST DECIDE HOW TO COME TO
TERMS WITH THIS UNCOMFORTABLE FISCAL REALITY. NO ONE IN OUR POSITION, NO
ONE EVER WANTS TO FIND THEMSELVES HERE. BUT AS I CAST MY VOTE TODAY, I
COMMIT TO EVERYONE IMPACTED, THAT THEY WILL CONTINUE TO HAVE THIS
AGENCY'S FULLEST SUPPORT IN THE WEEKS AND MONTHS AHEAD. THANK YOU.
CHAIRMAN WHEELER: THANK YOU. COMMISSIONER ROSENWORCEL?
COMMISSIONER ROSENWORCEL: THE FIELD'S REORGANIZATION WE HAVE BEFORE US
IS NOT PERFECT, BUT IT REPRESENTS A SIGNIFICANT IMPROVEMENT OVER THE
FIRST PROPOSAL THAT WAS PLACED BEFORE US BACK IN APRIL. WITH WE OPENED
MORE OFFICES AND RETAIN RELATIONSHIPS IN SOME OF OF THE HARDEST TO REACH
AREAS OF THE COUNTRY. FOR THIS REASON, IT HAS MY SUPPORT. BUT AS WE
MOVE FORWARD TO MODERNIZE THE FIELD AND MANAGE THE HARD BUDGETARY
REALITIES THAT MY COLLEAGUE COMMISSIONER CLYBURN JUST SPOKE SO ELOQUENTLY
ABOUT. WE NEED TO BE MINDFUL OF OLD PROBLEMS, LIKE PIRATE RADIO, AND WE
ALSO NEED TO DO A BETTER JOB OF INTEGRATING THE TERRIFIC SMART EFFORTS
AND WORK OF OUR FIELD AGENTS INTO OUR WORK HERE IN WASHINGTON.
CHAIRMAN WHEELER: HEAR, HEAR. COMMISSIONER PAI.
COMMISSIONER PAI: THE ENFORCEMENT BUREAU'S FIELD AGENTS PERFORM
ESSENTIAL WORK. THEY RESOLVE INTERFERENCE -- THEY FERRET OUT PIRATE RADIO
OPERATORS AND THEY PLAY A CRITICAL ROLE IN ENSURING THAT EVERYONE
COMPLIES WITH THE COMMISSION'S RULES. DURING THE OCTOBER 2013 GOVERNMENT
SHUTDOWN, OVER 25% OF FCC EMPLOYEES WHO REMAINED ON THE JOB WERE FIELD
PERSONNEL. EVEN THOUGH THEY REPRESENTED LESS THAN 7% OF THE COMMISSION'S
WORKFORCE. UNFORTUNATELY THE PROCESS LEADING TO TODAY'S VOTE HAS NOT
BEEN OPTIMAL. THE ORIGINAL FIELD OFFICE REORGANIZATION PLAN WAS
DEVELOPED WITHOUT ADEQUATE INPUT FROM EITHER FIELD PERSONNEL OR KEY
OUTSIDE STAKEHOLDERS. MANY HAVE TOLD ME THEY BELIEVE THE FCC'S LEADERSHIP
COMMISSION TO REPORT NOR TO JUSTIFY PREDETERMINED OUTCOME. THE END
RESULT, OF COURSE, WAS A PLAN THAT PROVOKED WIDESPREAD OPPOSITION.
WIRELESS CARRIERS, BROADCASTERS AND PUBLIC SAFETY OFFICIALS, ALONG WITH
DEMOCRATS AND REPUBLICANS ON CAPITOL HILL, ALL SPOKE OUT AGAINST IT. AND
I AGREE THAT THE ORIGINAL PLAN WAS FLAWED. TO POINT OUT JUST ONE OF THE
PROBLEMS, IT WOULD HAVE LEFT US WITHOUT ANY FCC FIELD PRESENCE IN EITHER
THE ROCKY MOUNTAIN OR GREAT PLAINS REGIONS. A VOID WHICH WOULD HAVE MADE
IT IMPOSSIBLE TO RESPOND IN A TIMELY WAY TO AN EMERGENCY, IN A VAST
SWATH OF OUR NATION. I'M THEREFORE GRATEFUL TO THE LEADERSHIP OF THE
HOUSE ENERGY AND COMMERCE COMMITTEE FOR STEPPING UP TO THE PLATE. THE
COMMITTEE'S INTERVENTION YIELDED REAL IMPROVEMENTS. IN PARTICULAR,
BECAUSE WE ARE NOW MAINTAINING A FIELD PRESENCE IN THE PACIFIC NORTHWEST,
THE ROCKY MOUNTAINS, THE GULF COAST, NEW ENGLAND, ALASKA, HAWAII AND
PUERTO RICO, THE FCC WILL BE ABLE TO ADDRESS INSTANCES IN THOSE AREAS
MORE QUICKLY THAN WOULD HAVE BEEN POSSIBLE UNDER THE ORIGINAL PLAN. TO
BE SURE WERE IT SOLELY UP TO ME, THIS PLAN WOULD LOOK SIGNIFICANTLY
DIFFERENT. FOR EXAMPLE, THE FRONT OFFICE HERE IN WASHINGTON, D.C. HAS
MORE THAN DOUBLED SINCE 2008. I BELIEVE THAT'S A MISTAKE TO CONTINUE TO
GROW THE BUREAU'S FRONT OFFICE WHILE SUBSTANTIALLY CUTTING THE NUMBER OF
FIELD AGENTS. I WORRY THAT IT'S A SIGN OF A GREATER INTEREST IN PRESS
HEADLINES THAN BREAD AND BUTTER ENFORCEMENT WORK. WORK THAT IS LESS
GLAMOROUS BUT NONE LESS CRITICAL. NOT WITHSTANDING MY RESERVATION, I'LL
VOTE TO CONCUR ON THIS ITEM. THANKS TO THE HOUSE ENERGY AND COMMERCE
COMMITTEE'S INVOLVEMENT, THANKS TO COMMISSIONER O'RIELLY'S HARD WORK,
AND THANKS TO INPUT FROM STAKEHOLDERS INCLUDING THE NATIONAL ASSOCIATION
OF BROADCASTERS AND CTIA, WE HAVE MADE TANGIBLE PROGRESS IN IMPROVING
THIS PLAN. MY VOTE TODAY IS A VOTE TO SUPPORT THAT PROGRESS. AS WE MOVE
FORWARD IN IMPLEMENTING THIS PLAN, THERE ARE CHALLENGES AHEAD. MOST
NOTABLY, WE NEED TO REPAIR THE RELATIONSHIP BETWEEN THE HE ENFORCEMENT
BUREAU'S FRONT OFFICE AND ITS FIELD AGENT. IN RECENT MONTHS, I HAVE
RECEIVED NUMEROUS EMAILS FROM FIELD PERSONNEL AND THE MESSAGE WAS CLEAR,
THEY DO NOT BELIEVE THAT THEIR WORK IS VALUED. THEY DO NOT BELIEVE THAT
THERE'S ADEQUATE COMMUNICATION BETWEEN FCC HEADQUARTERS AND THE FIELD.
AND THEY DO NOT BELIEVE THAT THE FCC'S FIELD OPERATIONS ARE W WELL
MANAGED. IN THE MONTHS AHEAD, WE NEED TO DO WHAT WE CAN TO IMPROVE THIS
SITUATION. AND GIVE FIELD AGENTS THE SUPPORT THAT THEY NEED TO CARRY
OUT THIS IMPORTANT MISSION. THANK YOU, MR. CHAIRMAN.
CHAIRMAN WHEELER: THANK YOU, MR. PAI. COMMISSIONER O'RIELLY.
COMMISSIONER O'RIELLY: REORGANIZING THE ENFORCEMENT BUREAU'S FIELD
STRUCTURE HAS BEEN TRUMPETED AS A MECHANISM TO IMPROVE EFFICIENCY AND
MAKE BETTER USE OF LIMITED RESOURCES ON A MORE CONSTRAINED BUDGET. THAT
IS THE COMMISSION WILL DO MORE WITH LESS. I'M ALL FOR EFFORTS THAT
REALIZE EFFICIENCIES BUT GIVEN THE CIRCUITOUS ROUTE THIS PLAN HAS TAKEN
AS COMMISSIONER PAI AND OTHERS HAVE INDICATED AND SEVERAL OUTSTANDING
ISSUES, I DO WONDER IF EXPECTATIONS WILL BEING SET TOO HIGH. AS SUCH, I
CONCUR WITH THIS PLAN. ITEM REQUIRES THAT ALL FIELD AGENTS MUST NOW HAVE
AN ELECTRICAL ENGINEERING BACKGROUND. IN DOING, SO IT EYE LIMB NAITS
THE COMPLIANCE SPECIALIST POSITION. WHILE AN ENGINEERING IT DEGREE MAY
PROVIDE A VALUABLE BACKGROUND FOR THE FIELD OFFICES, ON THE JOB KNOW-HOW,
MANAGEMENT EXPERIENCE AND WORKING RELATIONSHIPS CULTIVATED OVER YEARS IN
THE COMMUNITY VERY WELL MAY PROVE TO BE EVEN MORE IMPORTANT IN DELIVERING
REAL RESULTS. EVEN IF IT'S REALLY NECESSARY TO IMPOSE AN ELECTRICAL
ENGINEERING PREREQUISITE, MORE THOUGHT SHOULD HAVE GONE INTO
GRANDFATHERING THIS CURRENT SIX EMPLOYEES WHOSE POSITIONS WILL BE
ELIMINATED. THE FIELD OFFICES ARE THE COMMISSION'S FRONT LINE ON
ENFORCEMENT, INEVITABLY, THE PROPOSAL TO STREAMLINE FIELD OPERATIONS
GENERATED SERIOUS CONCERNS REGARDING THE FUTURE ENFORCEMENT OF OUR RADIO
FREQUENCY INTERFERENCE RULES. TAKE AS AN EXAMPLE PIRATE RADIO STATIONS,
WHICH MY COLLEAGUES HAVE MENTIONED, WHICH IN SEVERAL AREAS ARE
PROLIFERATING WILDLY UNCHECKED BY THE FCC, AFTER REPEATED REQUESTS, SOME
LANGUAGE WAS EVENTUALLY ADDED TO THIS ITEM, COMMITTING TO DEVELOPING --
TO DEVELOP A COMPREHENSIVE POLICY AND ENFORCEMENT APPROACH TO PIRATE
RADIO. HOWEVER, IT DOES NOT GO NEARLY FAR ENOUGH TO GIVE ME ANY
CONFIDENCE THAT THE COMMISSION WILL ACTUALLY DO SOMETHING ANY TIME SOON
ABOUT THE ONGOING ESCALATING ASSAULT ON THE INTEGRITY OF OUR AIRWAVES.
WE ALREADY HAVE A COMPREHENSIVE POLICY ON PIRATE RADIO. THE POLICY IS
THAT IT'S ILLEGAL. THE ONLY ACCESSIBLE ENFORCEMENT APPROACH IS THAT WE GO
AFTER ILLEGAL BROADCASTING OPERATIONS AND SHUT THEM DOWN. FULL STOP. SO
ON THAT, I WAS HOPING TO ASK SOME QUESTIONS OF PEOPLE IT AT THE TABLE IF
I COULD. MR. LEBLANC, IN PARAGRAPHS 9 AND 18, AND I REFERENCE THIS, WE'RE
GOING TO DEVELOP A COMPREHENSIVE POLICY AND ENFORCEMENT APPROACH TO THE
ISSUE OF UNLICENSED RADIO BROADCASTING. THIS SHOULD BE SOMETHING WE
SHOULD BE ABLE TO DO WITHIN A COUPLE MONTHS. IS THERE ANY REASON WE
CANNOT DO THIS BY THE END OF THE SUMMER?
SO AS YOU KNOW, COMMISSIONER O'RIELLY, THE CHAIRMAN, ALONG WITH THE
MEDIA BUREAU AND ENFORCEMENT BUREAU HAVE BEEN WORKING WITH THE
BROADCASTERS TO DEVELOP AND IMPLEMENT POLICY AND ENFORCEMENT CHANGES THAT
WOULD MAKE OUR ACTIVITIES AROUND PIRATE RADIO ENFORCEMENT MORE EFFECTIVE
AND MORE EFFICIENT. WE JUST HAD THE FIRST MEETING OF THAT GROUP
APPROXIMATELY TWO WEEKS AGO.
COMMISSIONER O'RIELLY:, I WAS THERE.
I'M HOPEFUL WE WILL BE ABLE TO HAVE ANOTHER MEETING SOON AND THAT WE
WILL BE ABLE TO IMPLEMENT CHANGES. SOME OF THEM ARE MORE LONG TERM, I
THINK WE DISCUSSED, SOME ARE SHORTER TERM. MY HOPE IS THAT THE SHORTER
TERM ONES, WE COULD BEGIN TO IMPLEMENT SOONER, BUT THE LONGER TERM ONES,
I THINK WOULD TAKE --
COMMISSIONER O'RIELLY: I DON'T MEAN TO CUT YOU OFF BUT I WASN'T ASKING
ON IMPLEMENTATION TIME FRAME, I WAS ASKING DEVELOPING A COMPREHENSIVE
POLICY AND ENFORCEMENT APPROACH, WHICH I KNOW IS ALREADY ONGOING, CAN WE
DO THAT IN THE NEXT SIX WEEKS, BY THE END OF THE SUMMER? BY THE END OF
AUGUST, CAN WE HAVE THAT DONE?
I WOULD HOPE SO. THERE'S NO GUARANTEE, WE HAVE A LOT OF PEOPLE THAT HAVE
TO WORK TOGETHER, THERE'S A LOT THAT NEEDS TO BE DONE, BUT I THINK THAT
THERE'S A COMMITMENT AMONG THE SENIOR LEADERSHIP IN THE COMMISSION AS
WELL AS THE COMMISSIONERS TO TRY TO IDENTIFY SOLUTIONS TO ASSIST WITH
PIRATE RADIO ENFORCEMENT GOING FORWARD.
COMMISSIONER O'RIELLY: OKAY, THANK YOU.
CHAIRMAN WHEELER: CAN I JUMP IN FOR A SECOND?
COMMISSIONER O'RIELLY: SURE.
CHAIRMAN WHEELER: THIS IS NOT AS THOUGH PIRATE RADIO HAS BEEN IGNORE. I
THINK SINCE I'VE BEEN HERE, WE'VE HAD 200 OR SO ACTIONS AGAINST PIRATE
RADIO. AND WE WILL CERTAINLY CONTINUE THAT.
COMMISSIONER O'RIELLY: I'M LOOKING FORWARD TO A COMPREHENSIVE POLICY AND
ENFORCEMENT APPROACH IN THE NEXT SIX WEEKS. MR. SALA, PURSUANT TO
ADMINISTRATIVE PROCEDURES ACT, THE IS THE COMMISSION REQUIRED TO EXPLAIN
ITS REASONING AND RATIONALE FOR EACH DECISION IT MAKES IN AN ITEM? IF
YOU COULD, YES OR NO.
IT IS REQUIRED TO PROVIDE JUSTIFICATION REQUIRED FOR JUDICIAL REVIEW.
COMMISSIONER O'RIELLY: IS IT TRUE THAT IF THE COMMISSION DOES NOT DO
THIS, IT CAN PROVIDE A POTENTIAL LITIGATION RISK FOR A COURT TO OVERTURN
A COMMISSION DECISION? YES OR NO?
THE STANDARD REEF VIEW IS NOT THE SAME IN EVERY INSTANCE, COMMISSIONER,
AND DEPENDING ON THE STANDARD OF REVIEW, THE OBLIGATION ON THE COMMISSION
CAN DIFFER.
COMMISSIONER O'RIELLY: SURE, AND POTENTIAL LITIGATION RISK IS WHAT I WAS
SAYING, YES?
CORRECT.
COMMISSIONER O'RIELLY: YES.
FOE TENSION RISK NEEDS TO BE MEASURED BETWEEN THE RECORD AND THE
STANDARD OF REVIEW.
COMMISSIONER O'RIELLY: GOT YOU. IT'S YES OR NO. SIMILARLY, YOU MADE THE
ARGUMENT TO THE COMMISSION EVEN MUST CONSIDER AND RESPOND TO EACH
ARGUMENT REMAINED IN RESUMMONS TO AN ITEM, IS THAT CORRECT? POINTS THAT
WE MAKE?
YES, WE'VE TAKEN THE POSITION THAT COMMISSIONER ISSUES DISSENTING
STATEMENT CASE LAW SUGGESTS THAT THE COMMISSION NEED RESPOND TO IT.
COMMISSIONER O'RIELLY: SO GENERAL COUNSEL, DID YOU HAVE A CHANCE TO READ
THE FIELD MODERNIZATION ITEM?
I'M FAMILIAR WITH IT, YES.
COMMISSIONER O'RIELLY: ALL RIGHT. SO IS IT ACCURATE THAT THE ITEM DOES
NOT EXPLAIN OR PROVIDE ANY RATIONALE FOR THE STATUTORY AUTHORITY CLAIMED
BY THE COMMISSION TO CONDUCT THE CHANGES AUTHORIZED?
I DON'T BELIEVE -- WITH ALL DUE RESPECT, COMMISSIONER, I WOULD NOT
CONCUR IN THAT JUDGMENT. I BELIEVE THE ITEM DOES PROVIDE THE SUPPORT
NECESSARY TO SUPPORT THE USE OF STATUTORY --
COMMISSIONER O'RIELLY: AND EXPLAIN OR PROVIDE THE RATIONALE, DOES IT DO
THAT?
IT PROVIDES THE RATIONALE SES SAIR EE TO A REVIEWING COURT SHOULD THAT
EVER COME TO PASS BUT THE BASIS IS STATUTORY AUTHORITY.
COMMISSIONER O'RIELLY: WHICH PARAGRAPH WOULD THAT BE WHERE EXPLAINS THE
RATIONALE?
COMMISSIONER, THE ORDER, I BELIEVE, EXPLAINS, FOR EXAMPLE, IN PARAGRAPH
2, THAT THE COMMISSION IS DETERMINED TO MAKE CHANGES IN THE FIELD IN
ORDER TO CREATE A MORE EFFECTIVE ORGANIZATION WITHIN THE LIMIT OF THE
BUDGETARY CONSTRAINTS. AND GOES ON AND TALKS ABOUT HOW TO BETTER ALIGN
THE FIELD -- WITH PRIORITIES OF THE COMMISSION, AND CREATES EFFICIENCY
AND ABLE UPDATING OF EMPLOYEES' SKILL SETS --
COMMISSIONER O'RIELLY: SURE AND STATUTORY AUTHORITY EXPLANATION.
ALL RIGHT. IT PROVIDES A BASIS FOR THE INVOCATION OF STATUTORY
AUTHORITY THROUGH THE EXPLANATION OF THE RATIONALE AND THE PUBLIC
POLICIES ADVANCED BY THE COMMISSION'S ORDERS.
COMMISSIONER O'RIELLY: THANK YOU FOR YOUR TIME. I HAVE A COUPLE PROBLEM
WITH THAT DIALOGUE. RECENT ITEMS, HAD ORDER CLAIMS WE HAVE STATUTORY
AUTHORITY TO IMPLEMENT THIS PLAN PURSUANT TO SECTION 4I OF THE
COMMUNICATIONS ACT, AMONG OTHERS. NOW I DO NOT VIEW SECTION 4I AS AN
INDEPENDENT GRANT OF AUTHORITY PERMITTING THE COMMISSION TO DO ANYTHING
THAT IT IS NOT ALREADY AUTHORIZED TO DO UNDER OTHER STATUTORY
PROVISIONS. EVEN IF ONE TAKES A DIFFERENT VIEW, THE APPLICATION OF SOME
SORT OF SUPPOSED CATCH ALL 4I AUTHORITY IS UNNECESSARY. IN FACT, THE
COMMISSION HAS DIRECT STATUTORY AUTHORITY TO ORGANIZE AND STAFF, THE
ENTIRE AGENCY, INCLUDING THE FIELD OFFICES. FURTHER, WE HAVE SPECIFIC
AUTHORITY TO ENFORCE OUR RULES AGAINST PIRATE RADIO OPERATIONS AND
CHANGE HOW A COMPLAINT FILED WITH THE FIELD OFFICE WOULD BE ESCALATED.
MOREOVER, 4I IS PROBLEMATIC BECAUSE IT'S ABUSING THE DEFINITION AND
PURPOSE OF AUXILIARY AUTHORITY. SECOND, INCLUDING REFERENCES TO SECTION
4I AND OTHER VAGUE PROVISIONS, RAISES ALARGER ISSUE BECAUSE THEY HAVE
BEEN CREEPING UP AS PART OF BOILERPLATE LIST OF AUTHORITIES AND OTHER
ITEMS. STATUTORY AUTHORITY IS IMPERATIVE FOR EVERYTHING WE DO, AND
ACCORDINGLY, I IF I WERELY BELIEVE THAT A DETAILED ANALYSIS MATCHING EACH
ACTION TO A STATUTORY PROVISION SHOULD BE INCLUDED IN ITEMS WE CONSIDER.
INSTEAD, WE ARE SEEING A PATTERN OF INCLUDING DISCUSSION OF THE TOP TWO
OR THREE PERTINENT PROVISIONS, THEN INCLUDING A LAUNDRY LIST OF OTHER
ASSERTED AUTHORITY WITHOUT DISCUSSING ANY OF THE JUSTIFICATION. I JUST
HAVE A BIG PROBLEM WITH THAT AND I'M GOING TO TELL YOU, I'M GOING TO PUSH
THAT THIS BE CORRECTED AND I WILL BE TALKING ABOUT THIS IN THE COMING
MONTHS. THANK YOU, MR. CHAIRMAN.
CHAIRMAN WHEELER: THANK YOU, MR. O'RIELLY, FOR THE LEGAL SEMINAR HERE.
LET'S CONTINUE IT. I MEAN, DO YOU WANT TO OPINE -- I BELIEVE THE LINE WAS
"I DO NOT VIEW," I'M NOT SURE THAT'S NECESSARILY A BINDING CONCLUSION OF
THE AGENCY, BUT LET'S ASK THE GENERAL COUNSEL --
COMMISSIONER O'RIELLY: I DIDN'T THINK I SAID IT WAS.
CHAIRMAN WHEELER: WHAT ARE YOUR OBSERVATIONS INSOFAR AS THIS 4I
AUTHORITY THAT THE COMMISSIONER HAS RAISED?
WELL, FOR THOSE FOR YOU IN THE ROOM WHO HAVE NOT PERHAPSED MEMORIZED THE
COMMUNICATIONS ACT, PERHAPS I COULD JUST, FOR THE PURPOSE OF THE
CONVERSATION, QUOTE THE LANGUAGE. SECTION 4I SAYS, THE COMMISSION MAY
PERFORM ANY AND ALL ACTS, MAKE SUCH RULES AND REGULATIONS, AND ISSUE SUCH
ORDERS NOT INCONSISTENT WITH THIS CHAPTER AS MAY BE NECESSARY IN THE
EXECUTION OF ITS FUNCTIONS. THAT IS LANGUAGE THAT WAS INCLUDED IN THE
ORIGINAL COMMUNICATIONS ACT OF 1934. AS BEST I KNOW, IT'S BEEN -- BY THE
COMMISSION AS BASIS OF STATUTORY AUTHORITY GOING BACK TO 1949. THAT'S
NOT SURPRISING. IT EXISTS IN A WORLD IN WHICH CONGRESS WAS FAMILIAR WITH
NECESSARY AND PROPER CLAUSES. THE MOST FAMOUS CASE OF WHICH UNDOUBTEDLY
WAS THE SUPREME COURT DECISION IN MU CAN YOU LA VERSUS MARYLAND. IN
FACT, THE SUPREME COURT HAS CITED 4I IN UPHOLDING COMMISSION AUTHORITY,
MOST NOTABLY IN THE SOUTHWESTERN CABLE CASE. THE DC CIRCUIT IS RECENTLY
AS 2010 GAVE AN EXAMPLE OF THE PERMISSIBLE USE OF 4I, SAID, FOR EXAMPLE,
THE COMMISSION HAS GIVEN THE O OBLIGATION TO RELEASE A REPORT, AND THE
D.C. CIRCUIT SAID IN AN EXAMPLE 4I WOULD BE COMMISSIONER REQUIREMENT --
TO GATHER THE INFORMATION NECESSARY TO MAKE THE RECORD IN ORDER TO
FULFILL THE STATUTORY REQUIREMENT. NOW, LIKE EVERY SECTION OF THE
STATUTE, SECTION 4I IS NOT WITHOUT LIMITS. THERE ARE OBLIGATIONS THAT
MUST BE MET. BUT WITHIN ITS STATUTORY REACH, IT PROVIDES A BASIS
CONFIRMED BY COMMISSION PRECEDENT COURT ORDERS, AND I WOULD SAY RECENT
USAGE. MY UNDERSTANDING IS THAT THIS YEAR ALONE, OF COURSE AS I SAY, 4I
HAS BEEN USED BACK FOR A VERY LONG TIME, BUT THIS YEAR ALONE, THE FULL
COMMISSION AS I UNDERSTAND IT HAS ADOPTED 47 ITEMS IN WHICH 4I WAS USED
AS A BASIS OF STATUTORY AUTHORITY, 40 OF WHICH HAVE BEEN ADOPTED
UNANIMOUSLY.
COMMISSIONER O'RIELLY: SURE, AND TO FOLLOW UP, MY POINT WAS THAT WITH
ALL THAT UNDERSTANDING, WHY WE COULDN'T EXPLAIN THE USE AS IT RELATES TO
THE ITEMS THEMSELVES IN THE ITEM. IF IT'S SO PREVALENT, WHY COULDN'T WE
INCLUDE A PARAGRAPH EXPLAINING THAT IN THE ITEMS, AND THAT'S WHERE I
WOULD LIKE TO SEE GOING FORWARD. THAT IS NOT THE VIEW OF THE ENTIRE
COMMISSION, THAT IS MY VIEW, BUT I WOULD LIKE TO SEE THAT GOING FORWARD
AND PLAN TO SPEAK ON THAT FURTHER. THANK YOU, MR. CHAIRMAN.
CHAIRMAN WHEELER: LET US RETURN TO THE ISSUE OF FIELD OFFICES, AND I
WANT TO SPEAK TO MY FELLOW FCC EMPLOYEES AND SPECIFICALLY LOOK AT THAT
CAMERA OUT THERE, BECAUSE I'M SPEAKING TO YOU OUT IN THE FIELD. THIS WAS
A TOUGH DECISION. BUT WE HAVE TO LIVE WITHIN OUR REALITIES. CONGRESS HAS
ORDERED THAT WE SPEND LESS. THIS IS THE BEGINNING OF A PROCESS THAT
WE'LL SEE THAT EVERYONE IS TREATED FAIRLY IN A DIFFICULT SITUATION. THE
NEXT STEP, THE REFERENCE WHERE WE FORMALLY NOTIFY THE CONGRESS AND THE
UNION, BOTH OF WHICH WE HAVE INFORMALLY ALREADY BEEN IN CONVERSATION
WITH, INCLUDING ME PERSONALLY. WE WILL WORK WITH EVERY AFFECTED EMPLOYEE
TO MITIGATE THE IMPACT. NOW I UNDERSTAND THAT WE TALK ABOUT THIS IN TERMS
OF A NUMBER OF OFFICES THAT GET CLOSED. BUT WE'RE NOT TALKING ABOUT
OFFICES, THESE ARE INDIVIDUAL LIVES THAT ARE BEING A AFFECTED, AND WE
ARE PAINFULLY AWARE OF THAT REALITY. WHILE MANY OF THE AFFECTED
INDIVIDUALS WILL BE ELIGIBLE FOR RETIREMENT, I RECOGNIZE THAT RETIREMENT
ISN'T EVERYBODY'S GOAL. AND SO WE WILL RETAIN OUTPLACEMENT SERVICES AND
DEVELOP OTHER SERVICES TO HELP WITH THESE INDIVIDUALS WHO HAVE, AS A
RESULT OF OUR ACTIONS, BEEN PLACED IN THIS SITUATION. WE'VE BEEN TOLD BY
CONGRESS, AND LET ME QUOTE HERE, TO DO LESS WITH LESS. I UNDERSTAND THAT
CONGRESS WON'T FUND OUR REQUESTS. AS COMMISSIONER CLYBURN POINTED OUT,
EVEN A FLAT BUDGET IS A REDUCTION. IN FIVE YEARS OF FLAT BUDGET IS A
SERIOUS REDUCTION. BUT I DO REJECT THE "DO LESS" IDEA. SO WE HAVE TO
LOOK AT NEW APPROACHES TO DO MORE WITH LESS. TO THE EMPLOYEES WHO WILL
REMAIN IN THE FIELD, I'VE MET WITH YOU, I'VE HEARD YOUR STORIES ABOUT
HOW YOUR EQUIPMENT WAS OUT OF DATE BUT WE DIDN'T HAVE THE MONEY TO PAY
FOR IT. WE'LL FIX THAT. WE WILL GIVE YOU THE TOOLS TO INCREASE YOUR
DEDICATED PRODUCTIVITY IT. WE'VE HEARD YOU. AND TO THOSE WHO COUNT ON
OUR FIELD PRESENCE, WE'LL BE THERE. WE'LL BE THERE FOR YOU. THE GOAL
ISN'T TO MAINTAIN OUR SERVICES. THE GOAL IS TO IMPROVE THEM. GIVEN THE
REALITIES THAT WE HAVE TO EXIST IN. AND SO WITH THAT, I WILL CALL FOR
THE VOTE. ALL IN FAVOR, SAY AYE. AYE. OPPOSED? THE AYES HAVE IT. THE
ITEM CARRIES. EDITORIAL PRIVILEGES ARE GRANTED AND THE EXCEPTION IS
NOTED.
--
Christopher D. Imlay
Booth, Freret & Imlay, LLC
14356 Cape May Road
Silver Spring, Maryland 20904-6011
(301) 384-5525 telephone
(301) 384-6384 facsimile
W3KD(a)ARRL.ORG
