Regulation by Citation: FCC Commissioner Michael O’Rielly

“Because citations are issued against companies that may not be as familiar with the Act and FCC rules, I am especially troubled that the FCC would use citations to break new legal ground, as it recently did when it issued citations against Lyft and First National Bank.

It is problematic enough when the FCC issues an enforcement action in the absence of any rules.  I have opposed the practice on multiple occasions because it is unfair (and unlawful) to expect companies to guess what the Enforcement Bureau might find objectionable.  In addition, because such proceedings are shielded from public comment, there is no opportunity for other businesses that could be impacted in the future to object to novel legal theories.

When a new legal argument is put forth in a citation, it is even less likely that a non-regulatee would be able to foresee that its conduct would violate the Act.  Moreover, such a company, without the benefit of experience or FCC counsel, may simply assume that the citation is based on settled law. Therefore, they may be even less inclined to challenge something that really amounts to an unlawful expansion of the FCC’s jurisdiction.  But that won’t prevent the agency from treating the citation as if it were precedent in other contexts—hence, the reality of regulation by citation.

Instead, the FCC should refrain from issuing citations that have no basis in Commission rules.  If the agency spots conduct that it thinks should be unlawful, it is always free to initiate a notice of proposed rulemaking to address it.  A simple rule change can be effectuated in a reasonable amount of time while providing fair notice and an opportunity to comment.  Any additional time is worth it to ensure that the Commission is on solid legal footing.”

Excerpt from a Tuesday blog post by FCC Commissioner Michael O’Rielly entitled “Regulation by Citation.” O’Rielly started the year where he left off in 2015 on the topic of how the Commission levies fines against alleged violators. Stay tuned on this one.

The above is a quote from the January 8, 2016, issue of the PTA Friday Report. To view the full issue, please log into the Active Members Only Section of this site (telcos only) or contact to be added to the distribution list (members only)