WASHINGTON�Federal Communications Commission Commissioner Michael O�Rielly expressed concerns about �Regulation by Citation� in arecent blog.
O'Rielly says some citations are being because �current law prevents the FCC from pursuing a fine against a company that is not generally regulated by the commission, unless it was previously issued a written citation.� O�Rielly describes the purpose of these citations and the opportunity for a personal interview in response as to ensure that such businesses understand the FCC rules and have the opportunity to come into compliance.
Also, the blog does not mask his outrage that �businesses are not always informed of citations before they are made public� � sometimes are even outed in the form of press releases before the mailed citation copy arrives to the offender.
Consequently, he writes, �I have opposed the practice on multiple occasions because it is unfair (and unlawful) to expect companies to guess what the Enforcement Bureau might find objectionable. In addition, because such proceedings are shielded from public comment, there is no opportunity for other businesses that could be impacted in the future to object to novel legal theories.� O�Rielly also mentions citations against Lyft and First National Bank as examples of breaking new legal ground�inappropriately.
However, he proposes that the FCC alter its procedures so that citations are not publicized until after the target has had the opportunity to respond to the claims.
O�Rielly also emphasizes the importance of refraining from issuing citations that have no basis in commission rules (and also from treating such citations as precedents in future regulatory moves).� He writes that if the commission believes a business�s actions to be unlawful, then it should offer a corrective notice of proposed rulemaking, before taking action.