FCC Commissioner Mignon Clyburn, the remaining Democrat on the Commission, went head to head on the keyboard with FCC Chairman Ajit Pai Friday, clashing over whether his actions were legal when he reversed a decision made late in the Obama administration to let consumers apply their telecommunications subsidies to broadband services.
Clyburn, who served as the acting Chairman in 2013 prior to Tom Wheeler’s appointment to the position, blasted Pai, stating that his Friday news dump of important matters tucked in between 30 news releases for the day, “fell short of reasoned decision making.”
“Today is apparently ‘take out the trash day.’ In an eponymous episode of the West Wing, White House Chief of Staff Josh Lyman stated: ‘Any stories we have to give the press that we’re not wild about, we give all in a lump on Friday . . . Because no one reads the paper on Saturday.’ Today multiple Bureaus retract—without a shred of explanation—several items released under the previous administration that focus on competition, consumer protection, cybersecurity and other issues core to the FCC’s mission,” Clyburn said.
“In the past, then-Commissioner Pai was critical of the agency majority for not providing sufficient reasoning behind its decisions, citing specifically to the Supreme Court case Fox v. FCC which states: ‘The requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio.’ ” Clyburn wrote.
She believes it is a basic principle of administrative procedure that actions must be accompanied by reasons for that action, else that action is unlawful.
“Yet that is exactly what multiple Bureaus have done today. The Bureaus rescind prior Bureau actions by simply citing a rule that allows them to do so, when in prior invocations of that rule there have been oft-lengthy explanations for the reasoning behind the actions,” Clyburn said.
“My office requested more than the allotted two days to review the dozen items released today. We were rebuffed. Then, we simply asked to have the Bureaus comply with the reasoned decision-making requirements of the APA. No deal. It is disappointing to see this Chairman engage in the same actions for which he criticized the prior Chairman. I am hopeful that in the future this Commission, consistent with our shared commitment to increased transparency, will heed the APA’s requirement for reasoned decision-making. The American public deserves no less.”
Midnight regulations will not see the sun rise
Justifying his move to rescind what he termed, ‘midnight regulations,’ Pai stated, “In the waning days of the last administration, the Federal Communications Commission’s bureaus and offices released a series of controversial orders and reports. In some cases, Commissioners were given no advance notice whatsoever of these midnight regulations. In other cases, they were issued over the objection of two of the four Commissioners. And in all cases, their release ran contrary to the wishes expressed by the leadership of our congressional oversight committees. These last-minute actions, which did not enjoy the support of the majority of Commissioners at the time they were taken, should not bind us going forward. Accordingly, they are being revoked.”
RELEASES PROVIDED BY THE FCC ON FRIDAY, FEB. 3, 2016