Law360 Article Details GOP Letter Questioning Legitimacy of “Arbitrary” FCC Enforcement Actions


By Margaret Harding McGill

Law360, Washington (November 20, 2015, 5:31 PM ET) — Republican members of the Senate Commerce Committee demanded an explanation from Federal Communications Commission Chairman Tom Wheeler on what they say are “seemingly arbitrary” fines, as well as an accounting of the Enforcement Bureau’s uncollected penalties, in a letter sent Thursday.

The letter from five Republican senators is the latest overture from lawmakers challenging the approach of the FCC’s Enforcement Bureau. The senators say Wheeler has an unclear track record in taking action in response to complaints filed with the agency, noting that 564,000 consumer complaints have been lodged during Wheeler’s two-year tenure as chairman.

The letter requests information on the FCC’s strategy for carrying out enforcement actions, how fines are calculated and how the Enforcement Bureau determines which actions to pursue.

“Naturally, consumers making the effort to file a complaint expect the agency to protect their interests,” the letter said. “As such, we are interested in ensuring that FCC enforcement actions are pursued and carried out in an objective manner based upon tangible evidence of misconduct.”

An FCC spokesman declined comment Friday.

The letter asks the FCC to identify every enforcement action resulting in a penalty of more than $1 million in the last 10 years, along with an explanation of how the FCC calculated the penalty.

“[C]oncerns have been raised about the EB aggressively pursuing substantial, unprecedented and seemingly arbitrary fines against licensees and non-licensees alike,” the letter said.

The FCC is also requested to identify every Notice of Apparent Liability, or NAL, proposing a fine of more than $100,000 since 2005, and explain the recovery status of those fines, including any civil suit brought to recover forfeitures.

“Moreover, it appears that the EB is more concerned with issuing fines and grabbing headlines than it is with ensuring compliant behavior with existing FCC rules,” the letter said.

Pending NALs against the providers of subsidized phone service came up during FCC Commissioner Jessica Rosenworcel’s Senate confirmation hearing in October.

U.S. Sen. Claire McCaskill, D-Mo., grilled Rosenworcel about the roughly $94 million in unpaid fines levied against a dozen Lifeline providers in 2013 and 2014. The proposed fines accuse the companies of providing duplicate Lifeline service in violation of the one-line-per-household rule. The commission has not yet voted to send the proposed fines to final forfeiture orders.

Sens. Dean Heller, R-Nev., Ron Johnson, R-Wis., Jerry Moran, R-Kan., Roy Blunt, R-Mo., and Steve Daines, R-Mont., signed the letter to the FCC Thursday.

The senators questioned the FCC’s reasoning in the proposed $718,000 fine issued earlier this month against M.C. Dean Inc. for allegedly blocking personal mobile Wi-Fi hot spots at the Baltimore Convention Center.

The letter accuses the FCC of issuing the proposed fine for the use of deauthentication technology without having clear rules governing the use of such technology.

“Rather than undertake a rulemaking or proceeding to delineate the rules of the road for companies to adhere to, as requested by several of the FCC’s commissioners, the FCC issued a Notice of Apparent Liability for alleged conduct that does not fall under any existing FCC rules,” the letter said.

The letter also requests information on how commissioners are informed of enforcement actions and how much notice they receive on enforcement items that do not require a full commission vote.

At a House oversight hearing Tuesday, FCC Commissioner Ajit Pai testified that he is still waiting to receive information from the Enforcement Bureau on its open investigations that he requested months ago.

Pai also told the House Subcommittee on Communications and Technology that he dissented from one enforcement action under the leadership of the two previous commission chairs, but in the past 13 months, he has voted against 10 enforcement actions.

Three Republican members of the full House Energy and Commerce Committee sent their own letter regarding the FCC’s Enforcement Bureau in October. The letter asked the U.S. Government Accountability Office to review the FCC’s management of the Enforcement Bureau.

A spokesman with the GAO said Friday the agency has accepted the request, but work is not expected to get underway for several months.

ATTORNEY ADVERTISING DISCLAIMER: This information may be considered advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers

Sign Up To Receive Our
Advisories and Compliance Alerts

Sign up for our email list to receive notifications regarding new advisories and news