FCC commissioner Michael O'Rielly took aim this week at the FCC's Open Internet order general conduct standard, which the FCC is using to determine on a case-by-case basis what ISP practices outside the bright-line rules against blocking, throttling and anticompetitively prioritizing internet content are also prohibited.
He said that FCC chairman Tom Wheeler has called that "having a referee on the field." O'Rielly said that the problem was that "we have no idea of what the rules of the game are."
O'Rielly was being interviewed for C-SPAN's The Communicators series, which is airing May 7 at 6:30 p.m.
He said there was no telling when the FCC might throw a flag or over what infraction. "We have no idea. It's whenever the bureau or the chairman feels like it."
O'Rielly took aim at the FCC's current inquiry into zero rating plans and whether those are practices that run afoul of the general conduct standard. He said that those are being looked at by two different bureaus and potentially the Enforcement Bureau but with no "rules of the road" on how it is being conducted or when it will end.
Asked what the net effect of the Open Internet order has been, O'Rielly said that he doesn't know whether that item has changed behavior because carriers' supposed bad behavior was not happening before the rules were imposed and weren't happening now.
But he said he has talked to companies who say they have changed investment decisions and rollout of products based on the rules.
Asked about the tension at the commission—which has seen a series of contentious votes and criticism from the Republican commissioners about FCC process, transparency, and the way chairman Wheeler promotes agenda items—O'Rielly said that it was not personal and that he and chairman Wheeler get along fine.
But he did suggest some of the criticism stemmed from what he saw as the direction of the FCC, including the chairman—but presumably not fellow conservative Republican Ajit Pai—to take "the most aggressive, leftist approach to policymaking."
He said that "if the majority has a particular outcome that they want and are pushing as hard for that notwithstanding my views or my colleague's views, if those views are sidestepped it's hard to find commonality."
Asked about Hulu's newly announced 'skinny' bundle, he said it has the potential to completely change the marketplace. "You could have the situation where the old cable provider is now the broadband provider only and you get the consumer buying directly from the programmer and the programmer is selling on a channel basis or a program-by-program basis."
"It is a very interesting development," he said.