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 recent blog posting entitled “Regulation by Citation”, FCC Commissioner O’Rielly expressed concern that the citation process was being used as “another tool to expand the FCC’s reach and thus its mission – a maneuver that amounts to regulation by citation.” (The Communications Act requires that the FCC treat rule or statutory violations by entities which do not hold FCC licenses differently than entities (such as CLECs and IXCs) that do hold such licenses. Entities without a FCC license must first be issued a Citation informing them of their violation and given an opportunity to have a personal interview with an FCC official. If a violation of the same nature occurs a second time, the FCC can then issue a Notice of Apparent Liability For Forfeiture (the same notice a licensed entity receives.))
Commissioner O’Rielly said that “numerous reports indicate companies have been blindsided and treated as guilty before they even know what the supposed violations are. In fact, businesses are not always informed of citations before they are made public. Even more startling, the FCC has been known to issue a press release before the target even receives its citation copy, which can be days later when it is sent by postal mail.” Thus, “[b]y the time a company learns of the item, and has a chance to read and understand the supposed violations, it may have already been tried in the court of public opinion based solely on the FCC’s view of the facts, which may or may not be correct.”
O’Rielly urges the agency to change its procedures so that citations are not publicized until after the affected company has had an opportunity to avail itself of the interview and respond to the claimed violations. He also expressed concern that the FCC has been using citations to “break new legal ground.” He said, in part: “It is problematic enough when the FCC issues an enforcement action in the absence of any rules…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…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.”
Gov. Jay Inslee announced a partnership with the U.S. Department of Homeland Security designed to strengthen the protection of critical infrastructure and government services. He also signed an executive order creating a new state Office of Privacy and Data Protection. The partnership will explore new ways for state government to defend against increasingly sophisticated and targeted cyber threats partnership and is a pilot effort to develop a playbook of critical infrastructure defense strategies that states and local governments can adopt. An advisory board of experts from government, critical infrastructure providers, and intelligence organizations to guide development of the playbook. The new Office of Privacy and Data Protection will provide privacy training and best practices to state agencies, and provide consumer outreach and education for Washington state residents. It will also conduct an annual review to assess state privacy processes and practices.