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FCC Commissioner Ajit Pai On The Now-Defunct Intrusion Into Newsrooms Disguised As A Study

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HH: Joined now by Ajit Pai, a commissioner to the Federal Communications Commission. Welcome, Commissioner Pai, it’s great to have you on the program.

AP: Hey, great to be with you.

HH: Now I see you’re a Harvard guy. Were you Winthrop House?

AP: I was actually Cabot House.

HH: I’m sorry to hear that. You’re definitely…and then you went to the University of Chicago Law School instead of Michigan Law School, my alma mater, so we’ll take you anyway. But I’m glad you’re there.

AP: Hey, Michigan rejected me. What can I say?

HH: Okay, well, that’s okay. A lot of people go to Chicago if they don’t get into Ann Arbor.

AP: Exactly.

HH: Now how long were you in the General Counsel’s Office at the Commission before you rose to the level of commissioner?

AP: So from July of 2007 until April of 2011, and I went to the private sector for about a year, and then came back in this current capacity in May of 2012.

HH: Now I tell people the reason you had the spine to stand up is you’d been in the General Counsel’s Office, you’re a lawyer, you’re a smart guy. You knew that when they announced this policy, I call it kommissars in the newsroom policy. It was like sending the Stasi agents in to find out how we do what we do. I run a newsroom here. I would never let the FCC in here, Ajit.

AP: Yeah, and my experience with the General Counsel’s Office definitely informed my view, but frankly, it was more just as a citizen that I thought about how this study would be implemented. And I thought the government does not belong in a newsroom, and certainly not in this capacity. And that was part of what led me to speak out on the pages of the Wall Street Journal.

HH: Yeah, I just played Marco Rubio’s speech from Monday on the Cuban regime. They monitor all the media there. That have their kommissars in the newsroom. What in the world were they thinking? Have you talked to your fellow commissioners since this policy was first floated and then pulled back as obviously an idiot’s play?

AP: I have not. So as you know, we didn’t have any input into the design of the study or decisions as to its implementation. This wasn’t something that all the commissioners voted on. And one of the questions I think a lot of people have involved the basics – how did this come about, and what was the thinking behind it. And at this point, my goal looking forward is to stop the study altogether, and if they decide to go forward with the study, to make sure that there’s nothing in there what would even remotely intrude upon our core Constitutional freedom of the press.

HH: Now I know how the Commission works, and you are sometimes not privy to what the staff and the majority are doing, but I think they’d have to answer this question. Would they lay out, do you think they will lay out the statutory authority which they are citing as sufficient to launch this thing, because I am quite certain. I teach Con Law at Chapman Law School.

AP: Yeah.

HH: I’m quite certain it does not support this.

AP: Yeah, so the stated rationale thus far has been that Section 257 of the Communications Act gives the agency the foundation for doing this kind of study. But if you look at Section 257, it’s focused, as you know, on barriers to entry that entrepreneurs and small businesses face when they’re trying to get into the communications industry. And yes, the statute does make a reference to a diversity of voices, but when you look at the actual questions the study would pose, and the critical information needs it identifies, that has nothing to do with Section 257. And that just leads to the question well, what’s the real purpose of the study? And whatever it is, it certainly doesn’t have any grounding, I don’t think, in our legal responsibility.

HH: Yeah, failures and controversies are orphans, but I don’t know if you will have the ability to trace back. Someone thought this up. Somebody was the prime mover behind this. Do you think you’ll ever be able to get to the bottom of who is the anti-free speech person at the Commission?

AP: Well, I’m certainly not sure if we’ll get answers to those questions, but what I can tell you is that going forward, it’s not just me, but Congress and the American people writ large, I think, have really become aware of this issue, and have their eyes on the Commission to make sure that no future study goes forward in a manner that the current one was going to.

HH: I’m talking with Ajit Pai, one of the Republican members of the Federal Communications Commission, five member board that regulates all…and sometimes, they have to do things like the bandwidth. They’ve got to do a lot of stuff. The FCC has a legitimate role. But it also can’t go above it. And I’m wondering, this is one of the things first occurred to me, the moment that an FCC commissioner knocked on my door, I file a Bivens Action against them. I just don’t believe anyone in their right mind would think they have the right to go into a newsroom, Ajit.

AP: Well you know, it’s funny you say that, because I’ve met with a number of broadcasters from across the country since the op-ed was published, and almost to a person, they said that they don’t think that whoever designed the study had ever set foot in a newsroom, because that newsroom is a place where some pretty sensitive judgments are made as to what news to cover and how to cover it, what the customers, the news consumers want to read and to hear. And those are decisions that they don’t want any government agent or government researcher listening in on or asking questions about, because just the mere appearance of it alone is enough to make it seem like there’s some intimidation factor, and that’s something that nobody wants to see.

HH: Now here’s what worries me. You went to the University of Chicago Law School. Did President Obama teach you Con Law?

AP: He did not. He was teaching there when I was there…

HH: Thank goodness.

AP: But I didn’t take one of his courses.

HH: Okay, thank goodness, because then, you’ll have a good grounding. Who did? Did you have Geoffrey Stone? Or did you have…

AP: So I had, Cass Sunstein was my administering law professor.

HH: No!

AP: Yeah.

HH: No wonder you got…well, A) he obviously didn’t ruin you. He’s been a guest on this show, and he’s a very smart guy, but…

AP: Yes.

HH: But don’t you think Cass Sunstein knows this is unconstitutional as the day is long?

AP: You know, I’d be interested to see what he has to say on this issue, because he’s talked about nudging, as you know, government sort of encouraging the private sector to incorporate a certain kind of behavior. On the other hand, I mean, he does, I would think, cherish a core Constitutional freedom of the press. And so how that plays out, I’m not quite sure. But he’d have something interesting to say about it, I’m quite positive.

HH: Oh, I think if they have an oversight hearing, they ought to call Cass Sunstein and have him talk about this. Are there going to be oversight hearings into this ill-thought out and now dead effort to intimidate newsrooms?

AP: So as you might know, the chairman of the House Energy and Commerce/Communications subcommittee, Chairman Greg Walden, has announced that he is going to be introducing legislation relating to this issue and holding hearings. And I would expect that there’s going to be an uptick in legislative interest quite shortly.

HH: That’s good. Walden’s a smart guy. He’s a radio guy, and he actually knows how chilling this is. Do any of your colleagues know how chilling the prospect…all they had to do was float this balloon once, and they have chilled speech across the United States for fear that it will come back. Now it has to be legislated into the law that it will never happen in order that that chilling effect be removed.

AP: Right, and I certainly hope that one of the things that the agency could do would be to act strictly within its charge under the statute. And that’s one way to guarantee that Congress doesn’t have to take, or feel like it has to take legislative action. And I think that’s one of the things, going back to Professor Sunstein that he taught us in our administrative law classes, that when you have a robust discussion about some of these administrative proposals, that’s a way to ensure that the final work product is something that’s going to stand up to public scrutiny. And that’s certainly something that I think would have been useful in this context.

HH: That absolutely would. So are you a pariah around the Commission because you blew the whistle, Ajit Pai?

AP: I certainly hope not, but you know, we agree on a lot of things. But when we do disagree, I try to approach it respectfully and make my view heard. And in this case, I’m gratified that a lot of folks in and outside of the Commission agreed with me.

HH: Well, my hat’s off to a ten thousand man of Harvard. Well done, Commissioner Pai, look forward to talking to you again soon.

End of interview.

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