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FCC Chair Ajit Pai On The Road Ahead

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FCC Chair Ajit Pai joined me this morning:




HH: Joined now by the man who actually runs my life Ajit Pai is the chairman of the Federal Communications Commission, and since I’ve been on radio since 1989, I’ve always been worried about the FCC. But never have I been more confident of the leadership in the agency than beginning with your elevation to chairman. So welcome, Chairman Pai, good to have you on.

AP: Oh, thank you for having me on. I’m grateful for the kind words.

HH: Well, you take care of AM. You really care about AM, and people don’t understand that. You’ve really put a lot of effort over the years as a commissioner, and I hope now as chairman, into making sure that this steady Eddy platform of American communication remains a thriving, vibrant place.

AP: Oh, you’ve got my commitment on that. It’s a radio service that’s older than the FCC itself, and I’m committed to making sure that it thrives well into the digital age.

HH: You know, I want to talk about big issues, but I’m going to start with a very small one, one that just drives me crazy as a broadcaster. Mexico interferes with my signals every night in San Diego and Texas. Every single night, they do this. Is there anyone ever going to go demand that they live by their commitments under treaties?

AP: Well, that’s one of the things that we’ve worked on. I’ve gotten to know my Mexican counterparts over the last couple of months, and we have a standing understanding that if we have something that we have a complaint about, we’re going to bring it to them directly. And so this is one of the issues I’d be happy to be flag if there are interference concerns coming from across the border.

HH: Oh, my gosh. In Texas and in San Diego, their 5 kilowatts go to 50 kilowatts, and they just kill us, and it makes me crazy. That’s a very parochial concern, Mr. Chairman. Another one is I love the subcaps within markets. I think we ought to keep them balanced between FM and AM. Are you going to keep that, that subcap?

AP: That’s one of the issues that we’re going to look at. We’ve heard a lot on both sides of it, and we haven’t made any firm determination, but you’ve got my commitment that I believe in AM radio, and I’m going to continue to be a champion on it in the time to come.

HH: And those subcaps keep us alive. That’s why I love them. Let me talk, though, about cross-ownership. I don’t like telling us that newspapers, radio and TV have to stay in their own silos. And that just seems to me to be from the last century. What do you think about opening up the world of communications to cross-purposing platforms?

AP: I do think it’s increasingly obsolete to have these restrictions. And if you look at it, the FCC in the past couple of years alone has okayed multibillion dollar mergers on the cable side, wireless and satellite. But somehow, if a newspaper and a television station in Joplin, Missouri or in Topeka, Kansas decide to merge, the FCC gets the vapors. And that’s certainly not, I think, a realistic way of looking at the marketplace in 2017. There’s a lot more competition than ever, and newspapers and broadcasters are struggling as it is to keep the lights on. And so let’s let them collaborate in a pro-competitive way to do what they do best, which is to inform their listeners and their viewers.

HH: Amen on that. Now let’s go to the big issue. You have taken on net neutrality, the rollback of it. Five years ago, Justice Breyer came to my studio and sat down, and he said to me George Washington didn’t know the internet, nor did James Madison know about television, etc., and the world keeps changing. He was making an argument for regulation. And I responded they knew about liberty, and I made an argument for deregulation. I believe you stand with me when it comes to the internet that we’ve got to let the market shape this, not the FCC.

AP: Absolutely, and that was the historic understanding between President Clinton and a Republican Congress in 1996. They had a fundamental choice to make. Do we let the market evolve? Or do we treat it as we did Ma Bell in the 1930s – regulate the heck out of it so that there can be no innovation. And fortunately, they made the right call. They let the market innovate, and the results speak for themselves – $1.5 trillion in infrastructure investments, companies like Google and Facebook and Netflix become globally known names. And there was simply no problem for the FCC to solve in 2015 when it decided to impose those Ma Bell rules after all.

HH: There was no problem to solve. There was a fear of a problem, which the left loves to use sometimes. I’m talking with Chairman Ajit Pai of the Federal Communications Commission. And they ginned up, you know, I swear that nine out of ten people don’t know what they mean when they say net neutrality, but they ginned up on the left a fear of large corporations taking away internet freedom and overcharging, and all this stuff, without any actual evidence of that happening. How are you going to, you know you’re going to get hit, I think you used the term tsunami. You’re going to get hit by a tsunami from the crowd.

AP: Oh, absolutely. And look, the ideological special interests that are committed to this for other reasons are already making some of those arguments. For example, they’ve said that getting rid of net neutrality would harm free speech online. But if you look at the leading special interest in favor of these regulations, a spectacularly misnamed group called Free Press, their own co-founders have talked about Venezuela as being a model for media. They’ve talked about the government owning all of the infrastructure in the United States, because they want to dismantle the capitalist system brick by brick. Those aren’t my words. Those are the words of the founders of this group. And so that’s what we’re up against. It’s highly seductive. I know the marketing of so-called net neutrality, but the reality is that these regulations are ideologically inspired to address a problem that simply does not exist in the marketplace we have.

HH: Now I want to geek out with a fellow lawyer. Years ago, Dick Wiley tried to get me to become a coms lawyer, and I didn’t choose that path, and I’m glad about that. You went down that road, but I want to talk to you more broadly about the Chevron deference issue that came up with Justice Gorsuch in his confirmation hearings. The Congress has never passed anything about the internet. There is no predicate for you guys to regulate. And to me, that’s the beginning and the end. And the idea that we would have Chevron deference towards rules that have no predicate in a legislative act is extraordinary to me, Chairman Pai. Do your Democratic colleagues not get that?

AP: Well, I think they tend to think that the law is more elastic, that even beyond Chevron, if there is a gap in the law, that you can simply essentially make it up, even though Congress didn’t necessarily have the internet in mind when it crafted Title II in 1934…

HH: (laughing)

AP: (laughing) …which I think is a fair assumption. Nonetheless, they think the worst thing in the world would be, to be, to have a market that is simply unregulated. We have to find some way to fit this square peg of 2017 into the round hole of 1934 laws. And that’s part of the problem, I think, is that Chevron presumes that an expert agency is acting within the scope of its expertise. And I don’t think it was here. It was more of a political impulse to, as I said, solve a problem that doesn’t exist. And that is, that’s buttressed by the fact by President Obama’s instructions who was to adopt these regulations. We didn’t adopt them of our own free will in 2014 and 2015.

HH: Well, this takes me back to why I favor what you guys do on the AM/FM band, for example, is rooted in a real law that existed, that was passed after radio came into being, and when people understood that there would be problems. When I bring up Mexico stations, it’s, I’m asking the FCC to do what it was intended to do. But obviously, nothing has ever been passed about the internet in the way that you are empowered to regulate concentration between AM and FM bands, and we talk about the subcaps. You are not authorized by the original Constitutional Article I authority to weigh into the internet.

AP: That’s exactly right. We are an independent agency that is a creature of Congress, and thus, we can only exercise the authority that Congress has given us. And the argument I’ve consistently made is like look, I know that this is an area of great public interest, but the right way to channel that public debate is through Congress…

HH: Yes.

AP: …to let our elected officials tell us what the rules of the road in the digital world are going to be. The last thing we want is an unelected group of five, or even three bureaucrats again trying to make up the law as we go along and make determinations that ultimately are going to stand in the way of innovation and investment. And that’s not the right way to go.

HH: Chairman Pai, like Administrator Pruitt, I think you both have a view of the originalism doctrine at work in a legislatively stood up agency, which is read your authorizing statute and live within it. Do what you’re supposed to do, which is to regulate the bandwidth on the AM and FM channels, and concentration therein is fine. But stay out of stuff that you know, I just, just don’t go meddling with stuff. Let me ask you, however, the FCC talks a lot about free speech. This is an issue in the country at large. It is not for you to regulate Berkeley’s campus. I’m not suggesting that. But you have to think about free speech a lot. Isn’t the bigger threat to free speech not net neutrality rollback, which I hope happens, but the rollback of free speech on campuses?

AP: Oh, without question, and I mentioned this in the speech where I rolled out my net neutrality proposals. And free speech is under attack around this country, and especially on college campuses, violently of late. And you see it not just in the protests that they’re blocking people from coming onto campus, but in the subtle, but I would say, Orwellian suggestions by campus administrators that we want to preserve a culture of controversy prevention, which is something the D.C. area, a university administrator said recently. And I just simply think that the views that are being squelched on college campuses are by and large the views that are unpopular on those campuses. And I think we all know which side of the debate those views are on. And so you know, this is just a 21st Century version of the closing of the American mind, which we’re generating millions of college graduates every single year who aren’t going to grow up in a culture of open inquiry and academic debate. And that’s dangerous for a civil society in the long term.

HH: Yeah, it was a great part of the speech, and I applaud you for that. Let me ask you, Chairman Pai, how long do you intend to stay doing this? This is, you’ve been at this for a while. I’m glad you’re there. I hope you stay all four years and beyond, but I have to ask the question. What is your plan?

AP: Well, my term expires at the end of the year, so I need to be reconfirmed by the Senate if they see fit to give me another five year term. But the President re-nominated me about a month ago. Then I’ll serve as long as the President and the Senate will have me. But I’m just really focused on the job I’m doing now. We’re delivering benefits for the American people large and small, and I simply hope to build a record that speaks for itself whenever my time at the Commission is done.

HH: And how long do you expect the rule making, which will be the signature accomplishment, to last, this one that would roll back net neutrality? How long do you expect that, you know, there are minimum act, periods of time under the Administrative Procedures Act. But are you moving fast on this?

AP: Well, we wanted to make sure that we gave the American public full opportunity to submit their public input, and so the comment cycle is going to be 60 days for getting in your initial comments, an additional 30 days for any replies you might have. And at that point in August, we’ll start taking stock of what’s in the record, and at some point thereafter, take the appropriate action based on the facts and the law.

HH: And last question, Mr. Chairman, are you getting the people you need through the personnel process, because many agencies have been hamstrung by the standup. There’s just a lot going on, and sometimes you can’t move people through. How about with you?

AP: That’s a great question. So we actually do have a great team on board. We’re getting some more in the near future, but by and large, if you’ve seen our record of accomplishment over the last three months, we haven’t been standing still. It’s been a pretty aggressive agenda that I’ve tried to push across the finish line. And I’ve only been able to do that because of those fantastic FCC staff that we have on tap. And so with the resources we have, we’re going to keep our noses to the grindstone, and keep delivering for the American people.

HH: Well, thank you, and I hope you’ll call up one member of your staff and say could you please look into these Mexican stations that are destroying the Hewitt signal in San Diego and Dallas and all over? That’s my number one request for you personally, but I appreciate what you are doing nationally. Press on, Chairman Pai, it’s great to have you, and come back early and often.

AP: Thank you, sir, will do.

End of interview.


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