FCC’s O’Rielly: Congress should ‘expect abuse’ as it rewrites communications laws

Federal Communications Commissioner Mike O’Rielly warned that Congress should anticipate abuse as it looks to update the law governing the communications industry.

“Expect [that] people are going to misinterpret and abuse your provision and then work backwards,” he said Tuesday, speaking at an event hosted by the Free State Foundation.

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As Congress looks to update the Communications Act — an effort led by House Commerce Chairman Fred Upton (R-Mich.) and Greg Walden (R-Ore.), chairman of the House Energy and Commerce Committee — it should “expect abuse,” O’Rielly said.

O’Rielly, the newest of the two Republicans on the FCC, suggested that the members and staff working on the Communications Act rewrite “leave out extraneous provisions.”

He noted the political benefits of including “benign” provisions but warned, “those are the ones that often come back to haunt you,” because they are most easily misinterpreted by a “misguided court or activist agency.”

O’Rielly pointed to the recent court ruling on the agency’s net neutrality rules as an example of misinterpretation of standing law.

Earlier this year, a federal court struck down the agency’s rules — which kept Internet providers from discriminating against certain Internet traffic — but suggested that the FCC look to rewrite its laws using a separate authority in its governing statute.

FCC Chairman Tom Wheeler took up that suggestion and began a process to rewrite the rules under Section 706 of the law, which allows the commission to take actions to promote broadband deployment.

Wheeler’s critics, including O’Rielly, say the court and agency are reading the statute too broadly and unjustifiably increasing the FCC’s authority.

O’Rielly — who worked on the Telecommunications Act, the last major update to the FCC’s governing law, as a congressional staffer in the 1990s — said the law and its Section 706 were not intended to grant the FCC more authority.

By passing the Telecommunications Act, Congress had “no intention to write the FCC extra regulatory authority,” he said.

“I was one of the few people that was in the room. I was there and I know exactly what the deals meant.”

O’Rielly said he worries that the FCC’s attempt to rewrite its net neutrality rules under Section 706 will have a negative affect on Internet companies like Google, Netflix and app companies.

“I worry that those folks who don’t spend time following the day to day of the commission may be wrapped in the FCC’s jurisdiction,” he said.

Though Wheeler has said his agency will not appeal the federal court’s decision to strike down the net neutrality rules, O’Rielly said not to rule out further court challenges as the agency attempts to rewrite its rules.

“We still have many more rounds to go,” he said. “It is not the final court in the land and we may see the court decision challenged.”