In Key Areas, FCC’s Latest Draft 9-8-8 Item Lands in Reasonable Territory

Just last Thursday, the Federal Communications Commission (FCC) released draft text of items for its October 17, 2024, Open Meeting. Included as part of the release was a draft 9-8-8 Suicide & Crisis Hotline Third Report and Order and Third Notice of Proposed Rulemaking. The intention of these proposed final rules is to facilitate georouting for wireless calls to 9-8-8. Upon reflection of the text, certain policy cuts seem eminently reasonable.

Having written recently about this, I expressed concern when the agency signaled action on 9-8-8 georouting was imminent. Specifically, my worry was that any governmental activity could disrupt or interfere with the great work that has already been accomplished with such a simplification in dialing and subsequent implementation of the current system. The reality is that even well-intentioned regulations can cause affected parties to pause, make assessments, and sometime alter current operations. In this instance, crisis centers already have received over ten million contacts from the resulting number; people on the edge of horrific decisions were being counseled; and the system was working. Therefore, policymakers needed to be extremely careful with any effort that would impede it.  

Setting aside for the time being the Commission’s decision to impose specific georouting requirements – and even the jurisdictional authority to do so – the resulting item seems appropriately delicate in its approach. In fact, it endorses and embraces key decisions made in 2020 that should be applauded. For example, it maintains routing centralization of 9-8-8 and avoids system fragmentation. When the number was created a few short years ago, the item included a requirement that 9-8-8 calls be centrally routed “to the toll free access number for the Lifeline and the Veterans Crisis Line” rather than localized call centers. At the time, it was reasoned that doing so would ease the call routing process, generate operational and cost efficiencies, and lower the risk of misdirected calls. Moreover, it was argued that centralized routing allowed “flexibility to design specialized routing for self-identifying groups, such as veterans, Spanish speakers, or LGBTQ youth.” A quick review shows that all of this was realized.

Thankfully, October’s draft item maintains this position and preserves the vital routing role of the Lifeline Administrator, in cooperation with its government overseer, the Substance Abuse and Mental Health Services Administration (SAMHSA). Specifically, the text states, “we recognize that SAMHSA and the Lifeline Administrator are best suited to ensure that calls are properly routed and ultimately answered by a crisis center once the call is received by the Lifeline Administrator from the originating wireless provider. The record highlights that the Lifeline Administrator, under the direction of SAMHSA, plays a critical role in managing the 988 Lifeline’s system by balancing call volume, ensuring calls are efficiently routed to appropriate and available crisis centers, and minimizing the technical burdens placed on crisis centers so they can focus on saving lives…We find that the success of the Lifeline system in helping individuals in crisis underscores the importance of maintaining the centralized routing system.” 

Similarly, the creation of the 9-8-8 system coincided with an explicit or implicit acknowledgement, depending on your viewpoint, that it would necessarily be different than the 9-1-1 emergency calling system, and its successor, NG 9-1-1. That is, the two systems serve separate purposes with competing interests. Privacy, anonymity, and other relevant features of the 9-8-8 system can run counter to use of NG9-1-1, which can benefit immensely from knowing the contacting individual and the exact location of the call. In fact, allowing the extraction of a caller’s location information under NG9-1-1 could decrease interest in individuals reaching out for critical care by trained suicide prevention professionals as in the 9-8-8 system. Quite likely, it would degrade trust. Simply put, 9-8-8 calls are not traditional emergency calls and can’t be treated as such.

Moreover, the architecture and designs of the two systems are widely distinct. Here again, the draft item appropriately notes, “the Lifeline Administrator states that ‘reliance on technologies, such as NG911, can impact the ability . . . to carry out its duties as Administrator, including responsibility for routing of contacts to the 988 Lifeline.’” To the extent that a unified 9-8-8/NG9-1-1 georouting approach intended to keep separate network configurations, a key issue is whether there would be any benefits to do so, especially measured against the cost of added exposure points for network failure. The Commission wisely rejects this approach as being untested and potentially jeopardizing the purpose of the item, shifting to georouting of 9-8-8 calls.

In terms of the texting NPRM portion of the item, it is unclear whether the technology exists to georoute 9-8-8 texts and, if so, how quickly it could be deployed. This would not be the first time the Commission imposed public safety obligations on communications companies with the hope that the technology will develop in the future. The comments from interested parties in the NPRM, assuming it is adopted, will be telling as it relates to the Commission’s authority and the status of current and future routing technology. 

*          *          * 

The 9-8-8 calling code helps prevent human suicides. It is working as intended. Adding georouting – without fragmenting the system or entangling it with NG9-1-1 – could improve its operations and save more lives.

                

 

 

 

CAREFUL DECISIONS ON GEOROUTING FOR SUICIDE HOTLINE

In some of the darkest human moments – when individuals contemplate taking their own lives – confidential and free help is available from caring and understanding crisis personnel. Several years ago, Congress and the Federal Communications Commission (FCC) established the short-code 9-8-8 to simplify and accelerate the means to reach this support. And further improvements are coming as the entire suicide prevention lifeline eco-system is adopting technology enhancements to transmit calls and texts to more localized crisis centers, all without jeopardizing anonymity. This move to better-targeted “georouting,” which is most relevant for wireless mobility users, can be an undeniable success story – but only if regulators are careful before layering new government mandates or disrupting the current 988 Lifeline system. 

Numerous experts involved in 988 have made clear that familiarity with community and local factors of individuals in need can aid in immediate response care. It also can be vital in providing longer-term assistance and preventing reoccurring episodes. In fact, the pertinent FCC proceeding received ample comments that more precise georouting would be invaluable. It’s why the industry partners, the Lifeline Administrator (Vibrant), the Substance Abuse and Mental Health Services Administration (SAMHSA) of the Department of Health and Human Services, and others have been rapidly and voluntarily working on ways to increase the precision of such call routing.

Just this week, two nationwide wireless providers, T-Mobile and Verizon (with AT&T not far behind), have successfully activated a 988 wireless call georouting system. In other words, the system testing of 2023 has moved to a fully live, implemented, and operationally-sound 988 structure that delivers an individual’s call to the respective local crisis center.

For the FCC, these developments should be welcome news. After defining an appropriate policy objective, it gets exactly what it sought without having to impose new regulations. Embracing this win-win opportunity will increase the likelihood of reducing the number of suicides and the devasting impact on affected family and friends. It also prevents legal challenges questioning FCC legal authority to impose mandates that would result in the same outcome or worse. Arguably, the Commission’s reliance on existing statutory provisions, which at best are thinly related or over encompassing, is troubling and inappropriate, especially given the U.S. Supreme Court’s recent paring of independent agency reach.

To the extent that the FCC moves ahead notwithstanding, which I humbly would suggest is unnecessary, it should do so without interfering with or jeopardizing the existing 988 system and the work that’s handled over 10 million connections. Such a transition should facilitate a seamless integration that respects current systems features and doesn’t require a retrofit and redesign of the 988 architecture. Preventing wasted time and expense should be a key priority to allow crisis centers to focus on their good work of helping callers. Likewise, the agency should be mindful that improving georouting doesn’t result in more network exposure points for potential failure or outages. Anyone who has focused on computer operations and security knows the more complexity and touchpoints, the more chance for network failure.

Take for instance, the current system’s ability to conduct an initial screen for callers who are veterans, Spanish speaking, and/or LGBTQI+ individuals. Today, those calls – which represent approximately 25 percent of total volume – are handed to crisis counselors with specialized experience and training. Any georouting solution that does not propose ways to maintain or replicate this critical technological protocol should raise concern. That is, considering an option for georouting that ignores continuing this quality of care should serve as a red flag that very well could lead to an increase in suicide risk.

Further, the current 988 Lifeline system avoids many of the issues relevant in Next Generation 911 (NG911) system design and adoption. Policymakers are well aware that the migration to a unform NG911 is occurring haphazardly and on a very slow timeline. More importantly, the system serves different functions than 988 and callers have completely different expectations. Identifying individuals’ locations and communicating with law enforcement personnel – hallmark attributes of NG911— can undermine the willingness of those considering suicide to seek assistance. Any georouting solution endorsed by the FCC should want to keep these two opposing worlds separate for the continuity of suicide prevention.           

Mandates by the FCC to move to greater georouting without direction from Congress would be disturbing. As a former FCC Commissioner, I am hard pressed to imagine why the agency would want to require that which is already being accomplished. However, if it does, systemic changes to the successful 988 system shouldn’t be made lightly or without a recognition of current system’s intentional design and features. Tread carefully.

 

  

 

 

LET’S CLICK TO CANCEL A MISGUIDED FTC PROPOSAL

Two weeks ago, the Biden Administration made a media splash with an umbrella initiative pitched as a way to aid consumers from unnecessary corporate hassles. Part of this larger effort was a push to “help” consumers cancel subscriptions and services. While cynics could be forgiven for thinking that this macro proposal was just a campaign theme rolling into the November elections, the consumer cancellation portion raises plenty of substantive concerns worth attention. Ironically, sweeping new rules, as proposed, could backfire in many instances, resulting in consumers being harmed. Federal officials would be wise to cut back on the rhetoric, acknowledge that cancellation “remedies” can be flawed, and focus attention on enforcement actions against any egregious actors.

Except for fraudsters, no one should support “headaches and hassles that waste Americans’ time and money.” Legitimate companies have no interest. Instead, they want to obtain, retain, and service customers well in order to stay in business, and potentially grow in size and scope -- not intentionally cause consumers pain or grief. This is especially true when consumers seek to cancel subscriptions or services. It takes substantial time, effort, and money to attract consumers, and recently churned customers can be the most likely to be won back. The vast majority of companies do not try to permanently burn existing relationships via shoddy cancellation procedures.

As the Administration admits, the cancellation portion of last week’s announcement basically repackaged a Federal Trade Commission (FTC) effort from early 2023.  It indicated that the Federal Communications Commission (FCC), which oversees our nation’s communications sectors, will initiate a new FCC proceeding to consider similar requirements.

In effect, the Administration is doubling down on a troubled FTC proceeding that is particularly ill-fitting for the communications sector. The FTC’s proposed solutions of one-stop-shops and click-to-cancel mechanisms rightly have drawn some of the most ire. Because customer cancellation procedures are not monolithic and many services, especially in the telecom field, are vital to consumers, the cancellation processes cannot and should not be dumbed-down to a click-of-a-button mentality that could prevent companies from providing important information and better offers before cancelling service. This is particularly true when little to no evidence exists that there is a problem in need of fixing. Case in point: cable TV service, which consumers have cancelled at record rates in recent years. Consider also that Affordable Connectivity Program participants were able to shed Internet service quickly when the subsidies ended without any new FTC/FCC rules. No problem there.

From a larger perspective, policymakers should realize that turning off critical services shouldn’t be done on a whim. But that is exactly what this Administration wants to mandate. The new rules would require that consumers be able to cancel a service or subscription the same way they originally signed up with the same number of steps. That means online signups for telephone services and the Internet – deemed a necessity by many – must have the same ease to cancel. There are multiple problems with this. Consider what happens after the Federal government tells consumers that they can save money and time just by clicking magic buttons. Assuming click-to-cancel works flawlessly, services and subscriptions that consumers rely on for maintaining quality of life and communicating with loved ones will be cancelled instantaneously. Think of senior citizens and the budget conscious trying to save a few bucks no longer having the benefits of modern communications technology, with companies restricted from offering better plans to meet their needs and budgets before they lose service.

Likewise, not all services and subscriptions are created equal. Cancelling telephone service should be treated differently from stopping a People magazine subscription. No one can die from missing the latest celebrity gossip. This important distinction is missing from the Administration’s mindset, much less its proposal.

Moreover, over-zealous cancellation mandates will run into reality as mistakes are made. Any corrections will take time to reestablish services and subscriptions. Consumers will suffer in the meantime. There should be a legitimate governmental interest in making sure companies are extra positive that consumers recognize and affirm any cancellation. If that means a few more steps, that’s something society should accept, not denigrate. In this instance, additional steps don’t mean burden, they mean safeguards.   

Lastly, ignored in the FTC’s consideration seems to be an understanding of who pays for new governmental mandates. Companies do not just absorb cost increase for compliance and procedural changes. The practical impact is that consumers will get the bill in the form of higher rates, reduced services, or a mixture of both. 

The real solution to any perceived cancellation problem is not new FTC rules that apply across the board. That’s overkill and ill-fitting for a very diverse set of services and subscriptions. Alternatively, the Administration should focus attention on a select industry sector or a few companies where evidence of substantial consumer harm is available and abundant. Traditional enforcement actions at either the FTC or FCC are available to address any need. 

 

Let’s Close Military Veterans’ ‘Digital Divide’

Posted to Technology August 26, 2024 by Michael O’Rielly

 With little dispute, broadband internet technology delivers a wealth of opportunity and information to its users. Thus, much attention focuses on our nation’s “digital divide,” the term often used to describe the gap between the people able to connect to broadband of sufficient quality and those who are not.

With fiber, cable, fixed wireless, mobile, satellite and other technology options providing increasing connectivity, many consumers have multiple ways to obtain an internet connection. To address those still without, the federal government is spending more than $100 billion to expand broadband access to every American household by subsidizing internet network builds throughout unserved areas. In short, the much-discussed digital divide — if all things go right and bureaucratic burdens stay to a minimum — will be eliminated (albeit at a much slower pace than originally estimated).

But what about military veterans? Sadly, a digital divide-like situation remains. And it is limiting and hindering the healthcare they receive.

The reality is that most of our Veterans Affairs hospitals are using a decades-old Electronic Health Records computer system. Each of these antiquated systems has been in use longer than acceptable and inadequately patched repeatedly.

It has gotten to the point that each VA health records computer system is isolated from the rest of the healthcare world. That means VA hospitals are unable to share our veterans’ health records with other healthcare providers — public or private. Not with other VA hospitals. Not with Department of Defense facilities. And not with any non-military providers. That’s a serious healthcare defect and a significant disgrace to those who served our nation.

The inability of these systems to communicate with private providers is crippling the implementation of what most experts believe to be a sound veterans’ healthcare reform law, the VA MISSION Act of 2018. The law, in part, strengthened the nationwide VA Health Care System by empowering veterans with more healthcare options.

Former VA Secretary Robert Wilkie said it best about the VA MISSION Act, “The changes not only improve our ability to provide the healthcare veterans need but also when and where they need it. … It will also put veterans at the center of their care and offer options, including expanded telehealth and urgent care, so they can find the balance in the system that is right for them.”

Under the new Veterans Community Care Program, veterans are permitted to work with their VA healthcare provider or other staff to see if they are eligible to receive community care. “Community care” is essentially private providers helping veterans when local VA hospital cannot. But veterans, in most instances, cannot take advantage of this array of added care options easily or in a prompt fashion because many VA hospitals are unable to digitally share patient records.

Thankfully, help is attainable in the form of the MHS Genesis, a fully interoperable Electronic Health Records system. The Defense Department has completed implementation and adoption in all its facilities. Attention has now turned to the VA.

Today, there are 84 VA hospitals nationwide. So far, five have implemented the new MHS Genesis system. The latest to go online was in March of this year —  the Capt. James A. Lovell Federal Health Care Center (Lovell FHCC) in Illinois.

According to the VA EHR Modernization Integration Office’s statement, the Lowell joint deployment of the Electronic Health Records system,“will provide a more coordinated experience for patients and the clinicians who care for them.”

Likewise, Dr. Lester Martínez-López , the assistant secretary of Defense for health affairs, stated, “The launch of the Federal EHR at Lovell FHCC will help DOD and VA deliver on the promise made to those who serve our country to provide seamless care from their first day of active service to the transition to veteran status.”  

Implementation at the Lowell facility is an explicit acknowledgment that private providers, from whom veterans have legal permission to receive care thanks to the VA MISSION Act, are important partners in veterans’ healthcare equation.

For far too many of our veterans, it has been difficult, if not impossible, to take advantage of their new healthcare choices because their respective VA hospitals are digitally walled off from the rest of the world.

Now, for the tens of thousands of veterans of Lovell and the four other VA hospitals that have implemented MHS Genesis, those freedoms and choices have arrived. In essence, their digital divide has been closed. It is time to finish the implementation of MHS Genesis throughout the entire VA hospital system and close it for the rest of America’s veterans.

Michael O’Rielly served as a commissioner of the Federal Communications Commission from 2013 to 2020. He wrote this for InsideSources.com.

 

An Agency Most Haven't Heard Of, But That's Very Relevant

By Michael O'Reilly

August 29, 2024

In today’s divided government, federal agencies are constantly testing the faith and legal authority bestowed upon them by Congress. Instead of focusing on the specifics required by statute or guidance offered by congressional committee leaders, agencies often continue to pursue their own agendas divorced from their legislative foundations. Even more questionable is the case when Congress tries to boost an agency’s importance and functions only to have the agency rebuff it. Yet, this is exactly what is happening at the National Telecommunications and Information Administration (NTIA). To successfully move forward on communications policy, NTIA would do well to deepen its focus on spectrum matters, as required by law, and avoid any freelancing into unrelated or unauthorized matters.

Most Americans have never heard of NTIA, a small agency within the Department of Commerce which serves as the President’s chief advisor on communications and as the lead on federal government spectrum holdings and policy. Its relevance has tended to ebb and flow as new administrations come into power. Decades ago, Congress considered ways to eliminate its direct functions and transfer that workload to other parts of the government. Conversely, the Biden Administration’s infrastructure investment law provided the agency with a huge new role of implementing and overseeing a singular investment to ensure broadband reaches the unserved Americans. More recently, the House of Representatives – by a vote of 374 to 36, including 85% of Republicans – agreed to elevate the agency’s head within the Commerce Department flowchart and enhance its role over Federal users of the electromagnetic spectrum.

Despite this newfound confidence from Congress, NTIA seems to be finding new ways to falter. I have written before about my concerns with respect to the work NTIA is doing implementing the BEAD program in contravention to the crafted statute passed by Congress. What is striking is NTIA’s attempts to justify its statutory end-runs in a recent House hearing by stating it was merely enacting certain conditions on states. Predictably, this gobbledygook did not sit well with Members, including the Ranking Member of the Senate Commerce Committee.  Nor should it. Getting funding to help providers who know how to and are able to build broadband well and quickly is critical for these hard-to-reach locations. Every delay is only extending the time until we can solve the connectivity issues for those Americans unserved.

On spectrum, Congress has tried repeatedly to impress upon NTIA how it needs to better manage and direct Federal agency spectrum use rather than serving as a bystander to other agencies’ visions of spectrum management. By statute and practice, it is the job of NTIA to act as the Executive Branch’s voice on spectrum policy matters. Yet it issued a National Spectrum Strategy that grants all other agencies equal voice on the future of key spectrum bands as “co-leads” of spectrum studies.

In fact, earlier this summer, NTIA found itself invited and then disinvited to a spectrum meeting instigated by the Department of Defense and outside parties to discuss a critical spectrum band – the future of which NTIA has been tasked by the Biden National Spectrum Strategy to decide. That is, the agency charged with overseeing all Federal user spectrum wasn’t included in a meeting to discuss key Federal spectrum allocation and assignments. Huh. How is that acceptable protocol for the Biden Administration? Think about if this practice existed in other settings: could the Defense Department be left out of conversations about upcoming military strike scenarios, or Pete Buttigieg told to skip the next White House meeting on closing the nation’s airports? Those scenarios are laughable because their equities are too significant to be ignored. The same would seem to apply to NTIA on Federal spectrum.       

Concerns for the treatment of NTIA should stretch beyond hurt feelings. Substantively, no other Executive Branch department or agency is designed to function as an unbiased and facts-based spectrum arbitrator. Without some entity to serve as credible authority, every Federal spectrum licensee will continue to fight any proposal to alter spectrum policy based on myopic self-interest, especially injecting itself into non-Federal spectrum and commercial bands. Federal spectrum stagnation also means that the rest of the world’s wireless connectivity will advance as American wireless consumers miss out. Just as Congress is asking NTIA to step forward, other Federal agencies are trying to relegate the agency’s spectrum role to that of a younger sibling. Not only should NTIA be included in any spectrum conversation involving Federal spectrum users, but it should be the one convening any such meetings and deciding who else to include.

Power in Washington, DC, a necessary component for effectuating policy for the betterment of the American people, is a constant turf war between one entity to another. The larger risk of NTIA’s failure to properly assert itself, whether its wasting time and resources on overreach or the failure to lead on spectrum, is that Congress reconsiders the agency’s relevance. If the agency is unwilling to comply with the law, continues to play legal games to push its own whims, or allows itself to be shoved in the proverbial corner when the big boys are having spectrum conversations, then Congress will and should turn to other administration officials to do the work. NTIA’s value, and that of the Commerce Department, will wither. 

As the country faces an election in a few months, it would be appropriate for the new President, whoever it might be, to focus special attention on NTIA and require that it rise to the goals and duties established by Congress and expected of it. America’s economic leadership depends on it.

Michael O’Rielly is a former commissioner of the FCC. 

 

 

FCC SHOULD ACT NOW ON LOWER 12 GHZ BAND TO HELP CLOSE THE DIGITAL DIVIDE AND ADVANCE U.S. WIRELESS LEADERSHIP

It has been over 500 days since the Federal Communications Commission (FCC) lost spectrum auction authority. With only a handful of legislative weeks remaining this year, the prospects for its renewal before 2025 appear rather bleak. The 12.2 – 12.7 GHz band (the lower 12 GHz band) offers a unique opportunity to unlock 500 MHz of spectrum without waiting for Congress to finally reauthorize the Commission’s lapsed authority. This opportunity is one that is too important to pass up and one that the Commission should seize upon.

The inaction on spectrum auction authority is especially vexing given the importance of spectrum allocations for advancing U.S. competitiveness globally and for enabling the deployment of new technologies, such as fixed wireless service—which has proven to be a valuable tool for helping to facilitate broadband access and injecting competition in certain markets.

Having served as an FCC Commissioner, I understand the agency’s limited options to make more spectrum available absent Congressional action on auction authority. Despite this challenge, there is a prime opportunity before the Commission in the pending lower 12 GHz proceeding that would enable more efficient use of spectrum even while Congress works to restore auction authority. The Commission should not wait to act on this proceeding and should move to adopt final rules to authorize the use of high-power two-way, fixed wireless service in the band. The Commission had already been long overdue in updating its nearly two-decade-old rules for the lower 12 GHz band, but the Congressional standstill on auction authority makes this need even more pressing.

Updating the lower 12 GHz rules would enable increased deployment of fixed wireless service, fostering greater connectivity across the country, especially in rural and tribal areas. This would come at a key time as states will soon start implementing their federal Broadband Equity, Access, and Deployment (BEAD) program funding allocations, with some states allowing for this funding to be used for fixed wireless deployments.

The lower 12 GHz band — which has different circumstances and is at a different stage of discussions than upper 12 GHz band — is ready for deployment, with no federal incumbents and few license holders, most of whom strongly support expanding flexible use. A robust record has been established before the Commission demonstrating that any potential harmful interference can be mitigated or managed as necessary. Similarly, lower 12 GHz flexible use proponents agree its use would not interfere with upper 12 GHz services. The band can and should be shared.  

Given current constraints within spectrum policy, the lower 12 GHz band represents a real option and perhaps the only way to bring forward additional capacity for fixed wireless services in the near term. The FCC would be wise to take advantage of this opportunity for consumers. 

MPORielly Consulting Inc.

mike@mporinc.com

(202) 412-3892

Blog Post

Jarkesy & the FCC’s ALJ Process

Michael O'Rielly  

Jul 17, 2024 

By all accounts, the closing days of the U.S. Supreme Court’s 2023 term resulted in a flurry of landmark decisions that will shake the U.S. regulatory status quo—including communications policymaking—for decades to come. While most attention is rightly being focused on Loper Bright Enterprises v. Raimondo, the Court’s ruling in Securities And Exchange Commission v. Jarkesy should not be overlooked. If logically extended, the Jarkesy ruling could influence the use of Administrative Law Judges (ALJs) at the Federal Communications Commission (FCC) or spur a new Congress to demand reforms. For anyone caught in the FCC’s ALJ vortex, or who believes in fair processes from a federal agency, this is good news.  

Without a doubt, challenges to the administrative state can be complex and time-consuming. Any resulting disruption can lead to less efficiency and wasted resources, at least in the near term. Yet the Jarkesy challenge was necessary to ensure that rights embedded in the Constitution, highlighted by Justice Kavanaugh at oral argument and Justices Gorsuch and Thomas in their concurring opinion, are secured for the American people, rather than the government in all its various forms.

At its heart, the Jarkesy decision is about the rule of law. It reinstates fundamental checks on agency procedures and reaffirms the principles of the Bill of Rights, specifically the Seventh Amendment. In sum, a 6-3 majority of the Court found that Mr. Jarkesy was unconstitutionally denied his right to a trial by jury when the SEC assigned the case to its own ALJ.       

ALJs generally function as in-house courts that adjudicate disputes, determine facts, and assess penalties for rule violations. In the FCC’s case, while the ALJ process is used sparingly, its structure—as is the case at other agencies—is decidedly unfair for those caught in its web. The FCC’s ALJ is selected by the agency’s chair, is not required to follow standard evidentiary rules, has no constraints on the timing of decisions, regularly affirms the views of the chair (for whom he/she works), and limits success in any appeal to the full Commission. If it started from scratch, Congress would be hard pressed to design a construct more tilted in favor of the house and against the accused. Even the FCC as an institution has generated doubt about the value of the ALJ process by advancing more paper hearings that are resolved by the full Commission, which is only slightly better.     

The built-in functional imbalance of the ALJ process at the FCC doesn’t tell the whole insidious story. The larger problem is that the very threat of invoking an ALJ hearing is used as a tool to bludgeon parties and dissuade them from even pursuing their legal rights. Without any time limits for rendering decisions, the accused are likely to be left twisting in the wind without ever seeing a hint of a final resolution, much less having the chance to appeal. Admittedly, courts can move slowly too, but they tend to expedite proceedings when deadlines approach and offer timelines that can assuage financial markets. In light of its inherent untimeliness, the ALJ process often is intended to be used as an extraction tool or kill switch when it is triggered by the FCC. Numerous examples demonstrate this malfeasance, but one only needs to look at its use in the Standard General (SCGI Holdings III)/Tegna application from last year to be sufficiently outraged. In that case, the ALJ process facilitated the agency’s desired outcome—killing a proposed acquisition—without the agency ever issuing a final decree that could have been reviewed and challenged.

Critics likely will argue that the FCC’s failings, if any, are a matter for Congress to resolve and unaffected by Jarkesy. The Court anchored its ruling in the common law, that is, whether the civil penalties sought by the SEC were comparable to those in place under common law prior to the ratification of the Seventh Amendment’s protection of the right to a jury trial in the late 1700s. Similarly, the Court seemed to set aside the issue of administrative or regulatory penalties under an exception created by precedents. But the Court dismissed the notion that use of the exception was to be expansive, and it firmly rejected the view that “the Government need only identify some slight advantage to the public from agency adjudication to strip its target of the protections of the Seventh Amendment.”    

In any event, there is likely a universe of FCC ALJ actions captured by Jarkesy’s umbrella. Consider the situation in a merger application in which the applicant is accused of lack of candor or misrepresentation. While the applicant may be found unqualified to hold a license or subject to penalties for violating certain rules, the party may also be subject to penalties for a fraud-like claim, not unlike those at issue in Jarkesy. 

Arguably, some activities may be deemed beyond Jarkesy’s bounds requiring a connection to the Seventh Amendment’s common law jury trial entitlement. But don’t the Constitution and other statutory provisions protect individuals facing a threat to “life, liberty, or property” by ensuring they have, as Justice Gorsuch put it, “a jury, an independent judge, and traditional procedures designed to ensure that anyone caught up in our judicial system receives due process”? Thankfully, some of the Justices have provided a hint of the law’s possible future development. Justice Thomas has issued several opinions suggesting a revision of the public and private rights division. Likewise, Justice Gorsuch’s concurrence in Jarkesy looked to the Fifth Amendment’s Due Process Clause protection, opining that “public rights are a narrow class defined and limited by history.”

Perhaps the next relevant case will allow the Court to expand upon these lines of thinking. Nevertheless, little in Jarkesy itself appears to resolve the FCC’s larger ALJ issues identified above. How does a court provide due process when the FCC assigns a case to an ALJ to stall beyond an applicant’s ability to maintain a challenge? The appropriate remedy rests with Congress, which could time-limit the review of certain license transfer applications or other matters assigned to an ALJ. Alternatively, it could allow an applicant to seek court intervention after a certain period of delay. Perhaps the cleanest option is also the most appropriate: Congress simply could abolish the FCC’s ALJ process altogether.   

In the end, the Court’s Jarkesy decision provides a useful reminder of the requisite fairness due the American people from their government. Hopefully, the courts or Congress will take the next steps to apply this lesson to any remaining ALJ authority at the FCC.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.