TESTIMONY OF FCC COMMISSIONER AJIT PAI
BEFORE THE SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY
OF THE UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON ENERGY AND COMMERCE
“OVERSIGHT OF THE FEDERAL COMMUNICATIONS COMMISSION”
MARCH 22, 2016
Chairman Walden, Ranking Member Eshoo, and Members of the Subcommittee, thank you for 
giving me the opportunity to testify this morning.  Since 2012, it has been an honor to work with you on a 
wide variety of issues, from improving our nation’s 911 system to revitalizing AM radio.
I would like to focus my testimony on two issues where this Subcommittee is leading and where, 
unfortunately, the FCC is falling behind.  Those issues are FCC process reform and broadband 
deployment.
Process Reform.—I want to begin by thanking the Subcommittee for its long-standing focus on 
FCC process reform.  Last February, for example, the House passed Representative Scalise’s FCC 
Consolidated Reporting Act.  That legislation would consolidate seven separate FCC reports into one and 
require the FCC to take a comprehensive, holistic view of the communications marketplace.  And last 
November, the House passed Chairman Walden’s FCC Process Reform Act.  That legislation would 
require the FCC to regularly consider how to maximize opportunities for public participation and efficient 
decision-making—the hallmarks of good process.  Both bills would improve FCC processes 
tremendously, and the House passed each with overwhelming, bipartisan majorities.  I hope that they are 
enacted into law soon.
I firmly believe that the agency is at its best when it operates in a bipartisan, collaborative, and 
transparent manner.  Unfortunately, the agency has not followed the Subcommittee’s lead in this regard.
First, the FCC continues to be run in a partisan fashion.  Since December 2013, there have been 
20 separate party-line votes at our monthly meetings.  That’s twice as many as under Chairmen Martin, 
Copps, Genachowski, and Clyburn combined.  Proposals from Republican Commissioners have been 
roundly rejected as crossing a “red line,” even when an identical proposal from a Democratic 
Commissioner is accepted later on.  And requests by Republican Commissioners to increase transparency 
or amend a proposal are routinely ignored, which means the Commission regularly adopts orders without 
any official response to our requests.
It wasn’t always this way.  It was once understood that no political party has a monopoly on 
wisdom. And we recognized that communications issues aren’t necessarily partisan in nature.  
Commissioners will inevitably hold different viewpoints on important issues.  But the FCC had a rich 
history of working across the aisle.
Second, collaboration has fallen by the wayside.  During my first eighteen months on the job, 
every Commissioner worked to reach consensus.  That maximized the chance that every Commissioner 
could vote for a proposal or order.  Under Chairman Genachowski and Chairwoman Clyburn, we reached 
consensus 89.5% of the time on FCC meeting items.  I can assure you that we did not always start out in 
the same place.  But we worked hard to reach agreements that everyone could live with.  And we usually 
succeeded.
It’s far different now.  All too often, softening the rough edges of an order to make it more 
palatable is off the table.  Narrowing the scope of a decision to achieve unanimity is rejected outright.  
Indeed, consensus among the Commissioners no longer appears to be a goal.  Instead, the “rule of three” 
is the new norm.  Unsurprisingly, then, unanimity has precipitously dropped at the agency.  
2Commissioners have been able to reach consensus on only 56.4% of our monthly votes during Chairman 
Wheeler’s tenure.
Reflecting this shift away from collaboration, the Commission’s Office of Media Relations has 
been transformed from a shop of career staffers dedicated to representing the interests of the agency as a 
whole into a propaganda machine for the Chairman’s Office.  This trend is so pronounced that the press 
has taken note of it, along with the unprecedented nature of it all.
For instance, the Chairman’s Office frequently shares non-public information with the press and 
select outside parties while other Commissioners are left in the dark. In this regard, the trade publication 
Communications Daily reports “the FCC stands out for its extensive use of events where officials speak 
on behalf of the agency to groups of reporters but the officials can’t be identified by name or quoted 
verbatim.”  The publication further reported that “[m]any PR experts said they couldn’t recall any agency 
other than the FCC that holds news events that aren’t on the record so routinely on matters unrelated to 
national security.”
The agency’s media blitz often appears designed to exert pressure on other Commissioners, both 
Democrats and Republicans alike, to vote for the Chairman’s proposals.  For example, before the 
Commissioners had a copy of the Chairman’s proposal to expand the Lifeline program, the Chairman’s 
Office shared it with The New York Times, and FCC officials held a call with a large group of reporters to 
promote it.  As Commissioner O’Rielly stated that day, we did not receive a copy of the 150-page 
document until “[h]ours after the Chairman launched his press campaign and multiple sources reported he 
had circulated [it].”  That’s hardly an opening for good-faith collaboration amongst colleagues.  Yet it 
epitomizes how business is done at the agency these days.
Indeed, the longstanding process under which every Commissioner was provided 48-hours notice 
of a significant, bureau-level decision is now honored in the breach.  One recent example involves the 
FCC’s regulation of joint sales agreements, or JSAs.  The Commission ordered parties to terminate a JSA 
that allowed Entravision, a Univision affiliate, to provide the only Spanish language news in my home 
state of Kansas.
I only found out about this, after the fact, through a news article.  The Chairman’s Office 
provided no notice that it would be forcing the parties to eliminate that JSA, let alone the 48-hours notice 
customarily provided under FCC process.
To make matters worse, the FCC’s action violated the law and flouted the bipartisan will of 
Congress.  Soon after the FCC restricted JSAs in 2014, over my dissent, FCC leadership told Congress 
explicitly that there was nothing in what the FCC was doing that would make that Entravision JSA go 
away.
To ensure this would be the case, an overwhelming bipartisan majority in Congress passed a law 
ordering the FCC to grandfather existing JSAs—including Entravision’s.  How did the FCC respond?  It 
ignored the law.  It used its merger review authority to force the companies to unwind the very 
Entravision JSA that Commission leadership told Congress would not be affected.
A bipartisan group of Senators quickly responded, led by Senators Roy Blunt and Dick Durbin.  
They stated that the FCC “ignored bipartisan concerns raised by Congress” on JSAs and explained that 
they were “extremely disturbed” to learn that the FCC was requiring parties to unwind the agreements.  It 
is telling that despite agreement on little else, a powerful, bipartisan group of lawmakers has found 
common cause in taking on the agency’s lawlessness in this matter.
Third, the FCC continues to choose opacity over transparency.  The decisions we make impact 
hundreds of millions of Americans and thousands of small businesses.  And yet to the public, to 
Congress, and even to the Commissioners at the FCC, the agency’s work remains a black box.
3Take this simple proposition:  The public should be able to see what we’re voting on before we 
vote on it.  That’s how Congress works, as you know.  Anyone can look up any pending bill right now by 
going to congress.gov.  And that’s how many state commissions work too.  But not the FCC.
Instead, the public gets to see only what the Chairman’s Office deigns to release, so controversial 
policy proposals can be (and typically are) hidden in a wave of media adulation.  That happened just last 
month when the agency proposed changes to its set-top-box rules but tried to mislead content producers 
and the public about whether set-top box manufacturers would be permitted to insert their own 
advertisements into programming streams.
Or consider the Chairman’s proposal to reform universal service programs in rural areas.  We’ve 
heard from rural advocates that it’s hard to understand what these reforms mean for rural broadband 
deployment without seeing all the details.  And the head of NTCA—The Rural Broadband Association 
has said that “It is absolutely essential to see the written words on the page and review the specific terms 
of the order to understand the actual effectiveness of the reforms.”  But the Chairman’s Office just last 
week denied a request from me and Commissioner O’Rielly (who played a leading role in creating the 
plan) to release that plan to the public before a vote. The Commission has already had to reconsider the 
Universal Service Transformation Order seven separate times because it adopted a plan without full input 
from stakeholders.  We shouldn’t repeat that mistake here.  And more generally, rural Americans deserve 
to know what we’re proposing to do before we do it.
Or take the idea of being more transparent with our enforcement process.  Right now, consumers 
can see the headlines when the Commission launches an investigation, but they can’t see if the FCC has 
followed through on its promises to crack down on bad actors.  And I, for one, have repeatedly asked the 
Enforcement Bureau for a list of open investigations to facilitate oversight of their work, only to be 
denied time and again.
One reason may be the FCC’s dismal record in recent years of collecting the fines it proposes.  
According to data FCC leadership provided in response to a letter led by Senator Roy Blunt, the 
Enforcement Bureau frequently does not follow through or pursue cases even where the facts and law 
warrant doing so.  For example, the agency has proposed over $374 million in fines since 2011, but it has 
collected only $7.8 million, according to this data.  That’s a meager 2% recovery rate.  Only with 
additional transparency—transparency that matters much more than glowing press headlines—can the 
public hold the FCC accountable for this colossal failure.
It doesn’t have to be this way.  Indeed, I had hope one year ago that things might change.  After 
all, when I testified before this Subcommittee a year ago, there was widespread agreement that the FCC’s 
process was broken.  The Chairman himself acknowledged that “legitimate issues” had been raised.  And 
during that hearing, he publicly announced that he was launching a process reform task force.
At the time, many were skeptical, wondering why it was necessary to set up a blue-ribbon panel 
to do things the right way—in some cases, simply the way they were done before.  But my staff and I 
rolled up our sleeves and took the job seriously.
In particular, my office suggested substantive, noncontroversial reforms that would be easy to 
implement and improve the agency’s operations. For example, I suggested that every Commissioner 
receive a final version of an order 48 hours before we vote on it at an open meeting.  I’m flexible as to 
whether that time period should be longer or shorter, but it seems obvious to me that all Commissioners
should know what we are voting on before we vote.
Moreover, I suggested that every Commissioner respond when one of us proposes changes to a 
draft order.  Again, this doesn’t seem controversial.  If I or one of my colleagues comes up with an idea 
that might improve an order, both good government and common courtesy suggest that we should take 
the time to respond.  Just say yes or say no.  That’s not too much to ask.
4Likewise, I suggested that every Commissioner provide input on draft orders by a date certain.  
This way, every Commissioner would have time to respond to others’ suggestions and offer their own, 
and FCC staff would have time to prepare the final version of an order well before our vote.
These are pretty basic ideas.  They are not Republican or Democratic ideas.  They are simply 
good process.  So: what did the task force do with them?  Where are we one year later?
Unfortunately, after participating in dozens of meetings and spending even more time coming up 
with proposals, the evidence suggests that the skeptics were right.  The Chairman’s task force has 
accomplished—nothing.  Not a single reform has been made.  This has proven to be nothing more than a 
Potemkin village designed to persuade Congress that the agency is “doing something” on process reform, 
and hence that legislation and oversight aren’t needed.
But perhaps none of this should come as a surprise.  After all, the Chairman stated earlier this 
year that “[t]he refuge for [those who do] not like a decision is to complain about process.”  I disagree.  
And I am sure the Members of this Subcommittee do as well.
No matter the issue, the FCC should always play by the right rules.  At this point, the only way to 
ensure that outcome is the enactment of process reform legislation and vigorous oversight.
Broadband Deployment.—I want to turn next to the topic of broadband deployment.  I salute the 
Subcommittee for its leadership in this area.  When it comes to both infrastructure and spectrum, 
Members of this Subcommittee are leading the way.
In particular, you have examined six bills that could boost broadband deployment.  You have 
discussed broadening access to poles and conduits for Internet service providers, streamlining the historic 
review process for broadband facilities, developing common forms for siting wireless facilities, and 
tracking the application process for building broadband on federal lands.  And you examined the 
Broadband Conduit Deployment Act, which could turn every new highway into a road toward more fiber 
and better broadband in our communities.
In my view, the FCC should play its part, too.  And I believe there is much more that the agency 
can and should be doing to spur broadband deployment.  That means facilitating infrastructure investment 
to make sure that wireless and wireline networks are strong and scalable in the digital age.  And that 
means opening up new swaths of spectrum for commercial use.
First, we need to make it easier for wireless providers large and small to deploy the antennas, 
small cells, and base stations necessary to meet consumer demand.
Thankfully, we took some steps in the right direction in 2014. We reformed our environmental
and historic preservation rules to make it easier to deploy small cells and collocate antennas on existing
structures. We made it clear that our shot-clock rules apply to small cells and distributed antenna systems
(DAS). And we adopted a bright-line test for determining which equipment modifications qualify for
section 6409’s deemed-grant remedy.
But there is more work to be done. Our 2014 order called on the FCC to work with historic
preservation officers and other stakeholders to develop what is known as a “program alternative” that
could further streamline and expedite the process for deploying small cell technologies. Agency staff is 
currently working on that program alternative with the goal of completing the process within the 18–24
month deadline set out in the 2014 order. I’m optimistic that we will have good news to report on those
efforts in a few more weeks or months. I also hope that the Commission will revisit my suggestion that 
we adopt a deemed granted remedy when local governments do not meet the 90-/150-day shot clock we 
adopted and that the Supreme Court has approved. The state of California just did that.  Doing the same 
at the FCC would help expedite the siting process nationwide.
Second, the Commission must continue to find ways to streamline the process of deploying
wireline infrastructure. Over the last few years, our infrastructure proceedings have focused primarily on 
5the wireless side: on antennas, base stations, and the like. But wireline infrastructure is a linchpin of 
communications networks—even wireless communications spend the majority of their trip along the 
thousands of miles of fiber that connect our country.  And high-speed wireline infrastructure foretells 
economic growth.  Just look at the entrepreneurs flocking to places like Kansas City to start businesses 
that take advantage of gigabit fiber.
To make it easier for the private sector to deploy fiber, let’s reform our rules for stringing fiber 
optics, coaxial cables, and other wires on utility poles and through underground conduit.  First and 
foremost, we should reduce the costs that utilities may charge Internet service providers for preparing 
poles, ducts, conduits, and rights-of-way for pole attachments.  These “make-ready” costs, as they are 
known, are a major barrier to competitive entry, and the Subcommittee rightly targeted them as ripe for 
reform.  But from the perspective of legal authority, there’s no need for congressional action—the FCC 
already has the power to act and can start a rulemaking on the subject.
There’s even more the FCC can do.  For example, Congress has prescribed the formula for 
calculating pole attachment rates and given the FCC discretion to include or exclude a pole owner’s 
capital expenses in that calculation.  Today, we choose to include capital costs—even when the pole 
owner has already recovered those costs separately.  Excluding those costs would reduce broadband 
prices and spur deployment.
Additionally, the Commission has a special enforcement docket for pole attachment cases, but 
complaints therein tend to languish.  It’s March of 2016, and yet we still have three cases from 2014 and 
two from 2015 pending.  Companies investing in fiber deployment deserve answers in weeks, not years.  
We need to start adjudicating pole attachment disputes promptly to send a message to pole owners that 
the FCC is serious about facilitating deployment.
Third, let’s open up the 5 GHz band.  Four years ago, this Subcommittee drew attention to the 5 
GHz band as one ideally suited for unlicensed use.  The Spectrum Act, which was signed into law in 
2012, called on the FCC to begin the administrative process for opening up the 5 GHz band.  The FCC 
did that in 2013.
Since then, Ranking Member Eshoo, Vice Chairman Latta, Representative Matsui, and others 
have introduced the Wi-Fi Innovation Act.  As Ranking Member Eshoo and I explained in a joint op-ed, 
that bill would require the FCC to test the feasibility of opening the upper portion of the 5 GHz band to 
unlicensed use—a portion of the band known as U-NII-4.  Chairman Walden and others have also played 
key roles in helping to move the ball forward on this part of the 5 GHz band.  I applaud those efforts.
Taken together, in the U-NII-4 band as well as the lower, U-NII-2B band, there are up to 195 
MHz of spectrum that could open up for consumer use.  This will mean more robust and ubiquitous 
wireless coverage for consumers, more manageable networks for providers, more test beds for innovative 
application developers, and other benefits we can’t even conceive today.
The FCC needs to get this done.  But progress hasn’t been fast enough.  I’ve been calling on the 
FCC to open up these bands up since 2012.  Both Qualcomm, through its re-channelization approach, and 
Cisco, through its detect-and-avoid proposal, have identified paths forward.  I hope the agency gets this 
proceeding across the finish line, and soon.
Fourth, if we want to lead on 5G, we need to talk about spectrum above 24 GHz—in what are 
known as our spectrum frontiers.  Not long ago, most would have thought of the millimeter wave bands 
as dead zones when it came to mobile services.  After all, nearly all commercial mobile networks operate 
in frequencies below 3 GHz.  But as has been the hallmark of the communications sector, engineers are 
finding a way and technology is advancing.
Companies are now investing heavily in mobile technologies that rely on spectrum above 24 GHz 
as part of their work on 5G mobile technologies.  Over a year ago, I visited Samsung’s 5G research lab 
6near Dallas, Texas.  There, engineers are hard at work developing base stations and mobile technologies 
that are crossing into these spectrum frontiers.  Their experiments with multiple-input, multiple-output 
antennas no bigger than a Post-it note have already demonstrated that 5G technologies can use millimeter 
wave bands to deliver mobile speeds in excess of 1 gigabit per second.
What is the FCC’s role when it comes to 5G?  In my view, we should put a framework in place 
that will allow it to develop in the United States as quickly as the technology and consumer demand 
allow.  The U.S. has led the world in 4G, and there is certainly a lot of running room left with LTE and 
LTE-Advanced.  But we must continue to lead as mobile technologies transition to 5G.  The key is to 
make sure that the FCC does not become a regulatory bottleneck or send signals that would lead 
companies to focus their research and investments abroad.
On that score, there’s plenty of work to do.  On the plus side, we unanimously inquired about 
opening up numerous millimeter-wave bands in 2014, and the record contained robust support for moving 
forward on them.
But our rulemaking only proposes moving forward with some of the bands above 24 GHz.  
There’s another 12,500 MHz of spectrum in the 24 GHz band, 32 GHz band, 42 GHz band, and the 70 
and 80 GHz bands that might be used for mobile services.  I called on the FCC to include those bands as 
well in our rulemaking.  That didn’t happen, but I remain hopeful that those bands won’t stay on the 
cutting room floor for long.
We should not stop there, however.  We must continue to expand our spectrum frontiers.  That 
includes spectrum above 95 GHz.  Given the path-breaking research and development going on around 
the world, the FCC should look at allowing greater innovation and experimentation in those bands.  
There’s a long-dormant petition pending before the Commission right now that seeks to do just that.  
Consistent with that petition, I propose that the FCC launch a rulemaking to study those bands.  The 
spectrum above 95 GHz illustrates well the principle that regulation should neither impede nor lag behind 
advances in engineering.
As the National Broadband Plan put it half a decade ago, “It is time again to reduce talk to 
practical results.”  Advancing a real broadband deployment agenda is my top priority.  I look forward to 
talking more about it in the months to come, and working with my colleagues at the FCC and with the 
Members of this Subcommittee to make it happen.
* * *
Chairman Walden, Ranking Member Eshoo, and Members of the Subcommittee, thank you again 
for holding this hearing and inviting me to testify.  I look forward to answering your questions, listening 
to your views, and continuing to work with you and your staff in the days ahead.