AT&T has some FCC process reform suggestions for FCC chairman Ajit Pai, starting with the Enforcement Bureau.
Marsh said the bureau had been using enforcement actions in the place of rulemakings, creating "substantive requirements that have not previously been articulated or formally adopted by the FCC" and based on "strained" and "novel" rule readings.
Marsh took aim at what she said was the bureau's practice of "continuing and enhanced liability." She said it was getting around the one-year statute of limitations on taking action by concluding that the failure to address conduct made it a continuing violation and allowed the FCC to reach back to the first alleged violation even if the one-year window had long closed. She said that effectively "neutered" the statute of limitations.
She also complained that the FCC had taken penalties to stratospheric levels, even for "mundane" administrative violations or arising from third-party conduct.
Marsh said the bureau had been rushing to judgment on notices of apparent liability (NALs), released with much fanfare, then not following up with forfeitures. She said such "half-baked" investigations should not move forward with NALs.
She had a suggestion for fixing that: establish a hard deadline for issuing a forfeiture once an NAL is released, then have the issue resolved within six months of when oppositions are filed (30 days after an order).
The bureau should inform the targets of NALs what its problems are and give them a chance to respond before the NAL is issued and should also have to issue a public notice when NALs are dismissed, she said.
That advice comes as Pai, who has also complained about the size of fines, both large and small, has already taken a number of process reform actions and signaled more are on the way.