The Regulatory Mix, TMI’s daily blog of regulatory activities, is a snapshot of PUC, FCC, legislative, and occasionally court issues that our regulatory monitoring team uncovers each day. Depending on their significance, some items may be the subject of a TMI Briefing.
In a speech before the PLI/FCBA 33rd Annual Institute on Telecommunications Policy & Regulation, FCC Commissioner Ajit Pai discussed problems plaguing the FCC’s enforcement process and offered solutions for resolving them. Commissioner Pai said that “instead of applying the law to the facts, the Commission’s enforcement process is focused on issuing headline-grabbing fines regardless of the law.” This has greatly increased the number of party-line votes on enforcement matters. In addition, he believes that the FCC’s current enforcement process “sets the wrong priorities and is less productive than it used to be.” He also asserts that the FCC is neglecting the enforcement of important rules, such as the do-not call regulations. “Instead of going after companies for conduct that Americans actually complain about and that could actually violate our rules, we’re chasing press. Instead of setting the table with meat and potatoes, we’re foraging for truffles.” Commissioner Pai also complained that the Enforcement Bureau is no longer accountable to FCC Commissioners and that important enforcement decisions are made without the approval of (or even in consultation with) Commissioners, including entering into consent decrees.
He suggests the following solution:
- The FCC should renew its commitment to a bipartisan and responsible enforcement process.
- Congressional oversight, such as the House Energy and Commerce Committee’s recent inquiry to the Government Accountability Office, can help fix what has gone wrong.
- The Commissioners should vote on large (more than $100,000 for common carriers or $25,000 for any other entity) consent decrees.
- The FCC should speed up its resolution of enforcement cases by setting a meaningful deadline for final action (e.g., require that a forfeiture order to be issued within one year of the issuance of an NAL). If no such forfeiture order is adopted within this timeframe, that NAL would be automatically nullified.
- The FCC’s enforcement process should be more transparent, both within the agency and to those outside the agency. For example, the Enforcement Bureau should give the public “a simple way to understand and pinpoint the progress of any case involving an NAL. It should list whether the FCC has followed up on that NAL with a forfeiture order, and if so, whether that forfeiture has been collected.”
Earlier this month, the Chief of the FCC’s Enforcement Bureau posted his own blog on the subject. See the Regulatory Mix dated 12/1/15.
The PUC announced penalties for HIKO Energy over deceptive marketing and billing practices. HIKO must issue $2 million in customer refunds, pay a $1.8 million civil penalty, contribute $25,000 to electric distribution companies’ Hardship Funds, and modify its marketing practices due to deceptive actions following the “Polar Vortex” in the winter of 2013-14. A formal complaint filed in June 2014 alleged, among other things, that the company misled customers with deceptive promises of savings; engaged in slamming; mishandled customer complaints; failed to provide rate information and accurate pricing information; charged different prices than listed in customer disclosure statements; and failed to comply with the Telemarketer Registration Act.