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Jun 29, 2017

New Chief of FCC Enforcement Bureau

Signals De-Politicization of Bureau and Return to Strict Application of Law

Allison D. Rule & Jonathan S. Marashlian

On June 21, 2017, FCC Chairman, Ajit Pai, announced his decision to tap Rosemary Harold to lead the FCC’s Enforcement Bureau.  Ms. Harold has been a partner with the law firm Wilkinson Barker Knauer since 2011 and is best known for her media experience.  Prior to joining Wilkinson, Ms. Harold served as a legal advisor to FCC Commissioner Robert M. McDowell, focusing on media and broadcast issues, and she also served as Deputy Chief of the FCC’s Media Bureau under Chairman Kevin Martin.  Ms. Harold is also a colleague of the very first Chief of the Enforcement Bureau, David Solomon, who led the Bureau through its formative years, under Chairman Michael Powell, and whose approach to enforcement was known to be strict, but reasonable and lacking in the zeal for headline grabbing fines, a hallmark of the Travis LeBlanc-led Bureau under Chairman Wheeler – a major criticism of current Chairman Pai.

Consistent with our earlier predictions, the appointment of Ms. Harold as Enforcement Bureau Chief will lead to continued changes in the way the Bureau identifies and enforces the Communications Act and Commission rules, and a likely return to the policies and practices originally espoused by the Bureau in its formative years.  In announcing Ms. Harold’s appointment, Pai offered a number of clues as to what he views the role of an effective Enforcement Bureau to be: 

“Our Enforcement Bureau has been getting back on track in recent months, and I am confident in Rosemary’s ability to continue this progress.  Our enforcement efforts must be governed by the facts and the law, and Rosemary’s experience and expertise will help us conduct sound investigations and craft legally sustainable enforcement actions.  This is especially important when it comes to FCC priorities like protecting consumers against illegal robocalls and confronting unlawful interference with broadcast licensees.”  

Pai’s statement reflects his consistent criticism of the Bureau’s arguably aggressive posture during the Wheeler chairmanship and provides some insight into what enforcement initiatives will be priorities in the coming years:  robocalls, broadcast and other wireless services.  And, while not discussed in the press release, recent Enforcement Bureau releases indicate that the Bureau will also actively pursue alleged abuses associated with universal service programs – both on the contribution and disbursement sides. 

As noted, Ms. Harold will be stepping into shoes originally filled by her current colleague and law partner, David Solomon.  Mr. Solomon served as the first head of the Enforcement Bureau and held the post until 2005.  Mr. Solomon is a vocal advocate of deregulation, and during Travis LeBlanc’s tenure as chief of the Enforcement Bureau, he expressed concern regarding “troubling” actions taken by the Bureau, alluding to its aggressive enforcement posture.  Given Ms. Harold’s working relationship with Mr. Solomon and their respective service under Republican chairmen favoring a light regulatory touch, it can be expected that Ms. Harold will usher in a departure from LeBlanc’s approach to enforcement.  Rather than using enforcement proceedings to expand the FCC’s regulatory authority, we expect Ms. Harold to focus enforcement efforts on popular consumer issues and reducing waste and abuse of government resources.

If you recently received a Letter of Inquiry or are currently involved in an FCC Enforcement Bureau proceeding and have questions about how the appointment of the new Bureau Chief may impact your company, please contact Allison D. Rule at (703) 714-1312/adr@commlawgroup.com or Jonathan Marashlian at (703) 714-1313/jsm@commlawgroup.com.

DISCLAIMERS: This Advisory has been prepared for informational purposes only. It is not for the purpose of providing legal advice and does not create an attorney-client relationship between Marashlian & Donahue, PLLC and you. You should not act upon the information set forth herein without seeking experienced counsel.

 

 

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