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Former FCC Enforcement Bureau Chief Travis LeBlanc discussed his experience leading the bureau and his outlook on what’s next for it under Republican Chairman Ajit Pai’s leadership in a recent interview with Bloomberg BNA senior telecom reporter Lydia Beyoud.
LeBlanc focused the bureau during his tenure on what he described as “strategic decisions” about investing scarce resources in areas with the greatest consumer impact or those involving the highest policy priorities. The bureau under LeBlanc galvanized the telecommunications sector by pursuing record-setting fines and extending the FCC’s enforcement reach into new areas, including mobile carriers’ online tracking practices, wireless and cable companies’ zero-rating arrangements, and Wi-Fi signal blocking at hotels and convention centers.
This interview has been edited for brevity and clarity.
What did you learn from your time as Enforcement Bureau chief?
It’s tough to be the enforcer in a regulatory agency with an interested industry audience. It’s hard to be liked in a job when you are the one that is ultimately responsible for recommending to the commission that an enforcement action should be taken against a regulatee.
This was my first time working in a regulatory agency. In fact, it was my first time working for a non-lawyer. The chairman of the commission was not a lawyer and the majority of the commissioners were not lawyers. It’s interesting to have a role where you are fundamentally in a law enforcement capacity in an organization where the head is not a lawyer.
One of the great benefits of being at the commission is you’re working on both legal issues and policy matters at the same time. I thought it was a neat experience to have the ability to learn how non-lawyers can approach an issue and the concerns that they care about, as distinguished from lawyers. I would say all of the commissioners were concerned about the policy impact of an issue; the lawyers can be a bit more “lawyerly” in how they approach a matter from a legal mindset.
What are some of the challenges you encountered?
One of the challenges of being at the FCC doing enforcement is that there are rulemakings ongoing all the time. You have to make sure an enforcement action is consistent not only with past rules, the ones on the books, but also the anticipated views of the policymakers who are ultimately going to vote.
The bureau’s statute of limitations is one of the things that distinguishes enforcement actions from the rulemaking side of the FCC, in terms of the timeliness of when they have to be completed. Generally, it’s one year from the date of when the violation took place. I had never seen a one-year statute of limitations for anything before. It’s not one year from when the FCC finds out about it or should have found out about it – it’s from when [an alleged violation] took place.
When you are trying to pursue enforcement matters in a timely manner on complex investigations, it can be challenging to get those through the commission’s internal processes, which are designed for rulemakings.
What recommendations would you make for changes to the EB?
I think we need to extend the statute of limitations, particularly in matters of fraud, waste and abuse and robocalls. These are really complicated investigations.
One of the challenges of regulating or working in areas that deal with technology and innovation is that the technologies we’re looking at are rapidly iterating. So if we’re back in 2010 looking at a case, we’re probably not dealing with issues of today.
Notices of apparent liabilities (NALs) the EB does today almost always rely upon ongoing alleged misconduct of misconduct from 2016 (or approximately a year earlier). When I started at the bureau in 2014, the typical EB NAL would have involved underlying alleged misconduct that took place 3 or more years earlier. They did this by relying largely upon tolling agreements to extend the statute of limitations, resulting in a huge backlog. The Bureau ended that regular practice in 2014 and now the EB typically works within the statute of limitations, absent exigent circumstances.
In industries where they expect perfection from the enforcement action but when you’re working in that one-year statute of limitations, it is really hard to meet the standards that people want under that kind of a timeline, and to fully investigate a matter like you would in civil litigation or an agency that has five years to go through this. Everyone goes through it feeling rushed and like every process that they should’ve been given, wasn’t.
What kind of statute of limitations do you think is appropriate?
It’s hard to give an average, but anywhere between 2-4 years. Even basic litigation takes years to go through. For cases involving waste, fraud and abuse, I would extend it even longer, to probably five years, or make sure there was no SOL whatsoever on repayments to a defrauded fund.
In my view, if it’s government money that an individual has improperly obtained, government should always be able to get that back.
I also think there should be a rule that requires a commission vote before the statute of limitations expires. If something has been pending on the floor for two weeks, then requiring a commission vote before the statute of limitations is critical.
It’s unfortunate to think that a consumer who’s been over-billed by their provider, or a government program that has been defrauded would go without any restitution because a statute of limitations was missed.
What do you think the Enforcement Bureau might look like under Chairman Pai?
Chairman Pai is an enforcer. He is, frankly, the only commissioner who regularly and publicly took credit for increasing fines. One could look at his dissents and concurrences in a number of enforcement actions and see that when he believes a book should be thrown at a company, he will work the floor and reach out to his fellow commissioners to ensure that the highest penalties are reserved for those bad actors.
There are many, many people who think there will be no enforcement [under Pai]. I do think there will be enforcement, but I do think the priorities will change from what they were under Chairman Wheeler. I think you will see that he is much more interested in combating waste, fraud and abuse in the Lifeline program, cramming, slamming, Telephone Consumer Protection Act violations, rural call completion, and pirate radio.
Wheeler had activities in all those areas as well, but I think you will see that Pai is equally interested in pursuing enforcement in all those areas.
What changes made under Wheeler’s administration do you think might extend into Pai’s?
One of the changes that we made under Wheeler was to ensure that when we took an enforcement action, we considered the full scope of sanctions that we might be able to pursue against the target.
Historically, enforcement action meant you got a fine, and that was it. What we did over the last three years was ensure that if we had more sanctions available to use, we took them. For example, we pursued restitution for consumers who were defrauded. If they were overbilled, or crammed, we would try to ensure that they would receive some compensation for that.
Pai holds another tool we brought to the table: ensuring that if you’re allegedly defrauding the government, we should ask the question whether a hold should be placed during pendency on any further payments, such as Lifeline funds or other Universal Service Fund subsidies, or through revocation of authorization to provide services. I think that that spectrum of sanctions will likely continue under Chairman Pai.
I ultimately think that a lot of process enforcement changes made under Wheeler will likely continue under Chairman Pai, but I believe that the priorities of enforcement are likely to change under Pai, as will the priorities for rulemaking.
What’s next for you?
I would imagine that I will end up in the private sector but not in a job that will focus exclusively on telecom. The great advantage of the Enforcement Bureau was the pure diversity of the work that we did. Unlike all the other bureau chiefs who all have a substantive area of expertise, the Enforcement Bureau works on everything the Commission does.
What I really enjoyed about the job was the great work that we got to do on consumer protection, competition and waste, fraud and abuse. Combined with my more general background, I hope to go into a job where I have a diversity of those areas to work with.
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