Pai's FCC Media Modernization Not Running Out of Steam

Media modernization has been a hallmark of Pai's administration. Commissioners at his first meeting as chairman in January 2017 eliminated broadcaster correspondence file and cable principal headend location public inspection file requirements. At times, the agency has seemingly lost count of the number of actions. It called NPRMs in January 2018 and in February 2018 its fifth rulemaking under the banner. Our tally indicates that since September 2017, with the first NPRM under docket 17-105 media modernization initiative, the FCC has approved 18 NPRMs and 11 orders. That includes both those docket items and items that the agency said were part of its “effort to modernize its media regulations."

Pai has said at least one notice per month would propose a rules modification or elimination. Some months have had no media modernization items. Other months had two, and in July, three. This week's agenda includes a draft NPRM on cable channel lineup change notifications (see 1911200039).

“The sheer number of media modernization votes shows how many outdated rules we have on the books long past their usefulness,” said Commissioner Brendan Carr.

Some attorneys and broadcasters told us the obscurity of some recent media mod items -- such as the proposed elimination of World War II-era antenna siting rules (see 1910230064) -- could indicate the FCC is running out of old rules to clean up. Berry said that’s not the case.

The agency “fully intends to release more NPRMs pursuant to this initiative” in the new year, Berry said. “We‘ve made some substantial progress, but there’s more to do,” he said.

General Backing

Stakeholders were generally supportive of the smaller deregulatory steps.

Pai’s emphasis on updating the rules is “the right approach,” said Cheryl Leanza, United Church of Christ lawyer. “But the current FCC has been more about deregulation without careful thought.” Leanza successfully argued against the FCC’s media deregulation efforts before the 3rd U.S. Court of Appeals in Prometheus IV. “Modernizing shouldn’t just mean eliminating,” she said now.

Leanza hasn’t opposed most media mod efforts, as it's focused on smaller issues and avoided complicated ones. The effort on equal employment opportunity requirements involved eliminating a redundant form filing but ignored that the FCC hasn't act on long-stalled EEO data collection, she said (see 1906240028). “I don’t think they should prioritize minor administrative matters” over substantive ones, she said.

“Cleaning up outdated rules has been part of the obligation of the government since the dawn of time,” said broadcast attorney Jack Goodman.

Commissioner Jessica Rosenworcel has taken issue with the focus. When the agency eliminated a requirement broadcasters post channel lineups in their public file, she said the agency should focus on making broadcaster public files machine-readable. Her office didn't comment Friday.

Some Harmony

Finding areas of agreement, even on smaller items, is good for relations among eighth-floor offices, Berry said. Though “that’s not the reason we’re doing this.”

It has been suggested these less controversial steps provide an easy source of unanimous votes for Pai to point to. Berry and another eighth-floor aide disagreed. Pai’s FCC has very active agendas every month and usually tackles only one or two media mod items, limiting how much they could skew such numbers, that other official said.

Some media mod items tackled larger issues, Berry said. The children’s TV rules and leased access proceedings involved significant changes and impacts, he said. Changes to those rules were important steps toward more modern rules, he said.

The general effort was inspired by processes in other areas of communications law, such as the required biennial review for telecom rules, Berry told us. “On the media side, there hadn’t been a comprehensive effort to modernize the rules.” The plan has worked out “roughly the way we envisioned,” Berry said, with a monthly schedule of first soliciting comments through NPRMs and then issuing orders knocking down rules.

Media Lawyers

Broadcast attorneys generally support the program. They uniformly resisted suggestions the FCC could spend its time otherwise.

“Any time you can modernize regulations that no longer have a purpose, it's a sound thing,” said former FCC Chairman Dick Wiley, Wiley Rein chairman emeritus. Wiley’s FCC attempted a similar program called “re-regulation,” he said.

Holland Knight's Charles Naftalin appreciates the efforts venture into “nittty-gritty” areas and portions of the rules that have otherwise languished. The program has focused on items suggested by the broadcasters themselves as areas the agency should address, an eighth-floor official noted. The media mod effort is like “cleaning up a dusty corner,” said Naftalin.

Such efforts, while “more clearing out the regulatory underbrush” than major deregulatory steps, also represent the types of items that prior to Pai would just stay on the books long after their usefulness unless someone raised a stink about them, said ITTA Vice President-Regulatory Affairs Mike Jacobs. The FCC never oversold the media modernization efforts as big items, though “after a while it does add up,” he said. “In almost all cases, they have been virtually no-brainers.”

Cinnamon Mueller cable lawyer Bruce Beard said even the relatively lower-gravity media mod items made a difference to smaller operators. He said they welcomed elimination of the Form 325 reporting requirement last year (see 1809260029). Beard said media modernization could be part of what's seen as Pai's legacy in the eyes of small cablers. He said Pai was proactive in asking industry what could be done to help efficiency, when traditionally, associations were the ones starting the ball rolling by petitions.

America's Communications Association President Matt Polka emailed that ACA has taken part in numerous media mod efforts at the FCC. These resulting actions, he said, "resulted in significantly reduced regulatory requirements and burdens for our members and other providers." Pai says "he would look to clear unnecessary media rules, and that’s exactly what he’s done," Polka said, saying ACA looks forward to more work in 2020. "The impact of 'modernizing' media regulations for our members can’t be understated, because, for instance, allowing for electronic delivery of required consumer messaging saves a great deal of time and money that can be used to provide more broadband and other services," he said.