Chairman Ajit Pai's Tenure at the FCC: Fireside Chat and Panel Discussion

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to The Federalist Society's teleforum conference call as this afternoon, December 17, 2020, we're sitting down with Chairman Ajit Pai to discuss his tenure at the FCC. That will be followed by a panel discussion. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion on today's call are those of our experts. I should also mention that this is a call open to members only.

 

      I'm just going to introduce our moderator before he takes the show away. We're pleased to be joined this afternoon by Mr. Bryan Tramont. He's Managing Partner at Wilkinson Barker Knauer and the prolific head of our Telecommunications & Electronic Media Practice Group that's sponsoring this call today.

 

      With that, thanks for being with us, Bryan. I'll hand the floor to you.

 

Bryan Tramont:  Thank you, Nick. It's always a pleasure, and we really appreciate all the hard work that you do to put together The Society's programs, so thank you.

 

      It is a real pleasure. I've been looking forward to this for a long time to sit down with Chairman Pai and discuss his tenure as Chairman of the FCC. We don't have much time, so I'll move along expeditiously through his background.

 

      He was born in Parsons, Kansas, a fine town that I've had the honor of visiting. Graduated from Harvard and University of Chicago Law School. He served as a law clerk. He worked at DOJ. He's worked in the industry. He's worked on Capitol Hill. He worked at the FCC. He was in private practice. Then, he was nominated by President Obama to serve on the FCC in 2012, and then became chairman in 2017.

 

      My big takeaway from this, Mr. Chairman, is I want to congratulate you because it's clear this is the longest you've ever held a single job.

 

Hon. Ajit Pai:  I see you've been collaborating behind the scenes with my mother, who's made the same observation. She still holds out hope that medical school is the next step.

 

Bryan Tramont:  Those of us who are your friends and care about you had been worried before, but now we know that you can hold a job for an extended period of time.

 

      Obviously, it's been a tremendous run. As a Society, as The Federalist Society, and as an American, I'm sad to see your tenure come to an end because it's been a terrific run, and you've done so much good for the American people. I want to try to explore some of the different policy initiatives that you've undertaken during your tenure.

 

      Let's start with the digital divide. I mentioned Parsons, Kansas at the top. It's a rural community with connectivity challenges, like many rural communities around the country, and closing that digital divide has been a central goal of your chairmanship. How do you think we've done as a country? What should be happening next?

 

Hon. Ajit Pai:  Great question. Before I get to it, though, Bryan, let me just thank you for hosting this conversation. I've really admired your work over the years, including at the Commission, and also thank The Federalist Society for hosting me today, but also for the support over the years. It's been an incredibly important forum for discussing policy issues, including those within the FCC's bailiwick.

 

      For my first full day of chairman, January, 24, 2017, I've made clear that closing that digital divide would be the agency's top priority. I think we've met that priority in many different ways. Used all the tools in the toolbox to ensure that every American, regardless of where he or she happens to live, has access to what I call digital opportunity.

 

      There are two basic tools that we've used. One is, of course, our direct federal subsidies through the Universal Service Fund, and the other is through regulatory reforms. As to the first, we just recently concluded, as some folks may know, the Rural Digital Opportunity Fund Phase I reverse auction.

 

In a nutshell, this first phase alone will direct almost $9 billion to connect ten million Americans across the country that don't have broadband at the FCC's definition. That first phase alone is going to really reduce the number of Americans who don't have access.

 

      Phase II now has approximately $11 billion available, so it will be interesting to see what the next administration does with that. But I'm hopeful that, using that Phase II, we will be able to color in, if you will, some of the areas where your neighbor might have broadband, but you don't.

 

      In terms of regulatory reforms, we've done so much to make sure that we make the business case for broadband deployment as strong as possible for private companies. Getting quicker and cheaper access to utility poles, getting rid of utility-style regulation of the internet, modernizing some of our regulations to encourage the migration from copper to fiber, encouraging new companies to enter the space, like SpaceX and fixed wireless companies and others.

 

      Our goal here is, as I said, to make sure that if you're willing to raise capital and hire a work crew, no regulation will stand in your way when it comes to connecting people.

 

      I'd like to say that we've made substantial progress over the last four years, and hopefully, that will continue into the future.

 

Bryan Tramont:  Obviously, one of the things that's been front of mind for all of us for almost a year now is the pandemic and the changing demands placed on our network and the importance of universal connectivity during the pandemic. Tell us about your policy approach to that and how it dovetails with your larger commitment on the digital divide.

 

Hon. Ajit Pai:  I think, if anything, the pandemic has underscored how important broadband is, and it's ended any debate once and for all over the importance of broadband in our lives. Whether you're working from home or learning at home or engaging with a healthcare provider from home, that broadband connection is increasingly critical.

 

      We've seen it as our role to, number one, continue our bread and butter work. A lot of the reforms we've taken have enabled us to have really strong broadband networks before anyone even heard of COVID-19. But also, to act very quickly and decisively over the last nine months to attack this problem in discrete ways.

 

      For example, early on, when I recognized that millions of Americans would be working from home, I asked Congress to give us emergency funding and authorization to set up a telehealth program to ensure that healthcare providers weren't exposed to patients who were coming into a bricks and mortar facility. And conversely, that patients would be safe, and they wouldn't have to come into a bricks and mortar facility and risk exposure.

 

      Congress did that in the CARES Act, and we immediately executed that authority, distributing $200 million to 539 healthcare providers from New York City to Navajo Nation.

 

      Federally, our own initiative, we also acted very quickly to give temporary access to spectrum to companies from T-Mobile in New York City to fixed wireless providers, like Amplex in Luckey, Ohio, that enabled then to boost the reach of their networks and the strength of their networks to ensure that consumers would be able to use broadband as needed.

 

      Those are the types of things that we've been able to do because we've emphasized over the years a culture of responsiveness and nimbleness and this collaboration with the other government agencies or Congress or the private sector. Hopefully, as the pandemic recedes, we'll maintain that culture to make sure that we can address future emergencies like the pandemic.

 

Bryan Tramont:  I would also just -- another word of praise, if I may. I also think you were an early leader across the federal government in the pledge to ensure that people stayed connected during the pandemic. At a time when other political leaders across government weren't necessarily being as decisive as you were, you really stepped out and made a big difference, and I think became a leader across industries, so kudos to you.

 

Hon. Ajit Pai:  No, I really appreciate that. Almost exactly nine months ago, we issued that pledge, the Keep Americans Connected challenge. For those who don't know, we asked broadband and telephone providers to step up to the plate and commit not to disconnecting consumers who weren't able to pay a bill because of the disruptions, ensured that any late fees were waived, and also to open up Wi-Fi hotspots. And, ultimately, almost 800 providers took that pledge, covering the vast majority of American consumers.

 

      To me at least, it's a great example of how a public-private partnership in the pinch of an emergency like a pandemic can be much more successful than just command and control regulation, which would've taken longer, would not have been as successful, and ultimately, it would not have met the challenges of the moment.

 

      So thank you for focusing on the challenge, the Keep Americans Connected Pledge. I think that was a really good, successful initiative.

 

Bryan Tramont:  While we're on the pandemic, just for a moment, maybe you can reflect on -- the pandemic has challenged many parts of the industry, of society. Tell us a little bit about leading an agency during a pandemic and what that's been like, and what the most surprising thing about it has been, and any unique challenges you want to share.

 

Hon. Ajit Pai:  Yeah. From my perspective at least, first and foremost, I was worried about the health and safety of our workforce. Our coworkers, as you know, Bryan, are just the best asset that any organization could ever ask for. They're tremendously hard workers, they're experts in their fields, and they really care about the public interest. To me at least, I wanted to ensure that we were doing everything we could to help keep them safe and enable them to do their jobs.

 

      We immediately -- I'm pretty sure we were the first, and if we weren't, we were almost the first agency to move to a teleworking arrangement, and we have been in that situation for several months.

 

      Also, we took a lot of steps on the administrative side: granting administrative leave or other types of dispensations to ensure that if an FCC worker needed to take care of a loved one or go for a medical appointment, we would be able to accommodate that.

 

Those are the types of things, I would like to think, if you asked any FCC employee, they would say, "Yes, we knew the office of the Chairman had our back, and that's why we've been redoubling our efforts on some of the important initiatives that we're entrusted with."

 

      Our workforce is really important to me, and I worry about them a lot. I wanted to make sure that they were taken care of. Again, I'd like to say that we did that.

 

Bryan Tramont:  All that amidst a once-in-a-generation move for the agency to change locations. How is that going? Smoothly, I presume?

 

Hon. Ajit Pai:  It's one of the great ironies of 2020—which is, of course, full of them—that I spent a ton of time managing a move into a building that I'll likely never get to see or benefit from. The amount of time we've had to spend behind the scenes just looking at this or that issue and resolving it and making sure that we can move the thousands of boxes from one building to another and who could be allowed into the building for classified briefings and all that kind of stuff.

 

That's been a lot of work, but nonetheless, hopeful that whenever the agency does move to the new building en masse in person, we'll be able to give them a state-of-the-art building that will allow them to do the jobs just in the same excellent way they've done so in Southwest and, before that at 1919 M Street.

 

Bryan Tramont:  I suspect you'll have walkthrough privileges for life, though, so if you want to go back and take a look, I suspect they'll still let you in. I think that comes with the Chairmanship, I think.

 

Hon. Ajit Pai:  I hope so. I certainly hope so.

 

Bryan Tramont:  Let's turn it back to policy, if we can. Another area where you've really put the agency on the leadership track is 5G through your FAST Plan. Tell us about how you think the U.S. is doing vis-à-vis the rest of the world, and what's in the queue.

 

One of the ironies of chairmanships is that there's a long tail for the things you set in motion, so we're just now having the C-band option, which was barely a twinkle in someone's eye four years ago, if that, maybe. There are always some other things that are already in the queue, including 100 more megahertz at 3.5. Tell us a little bit about what you've accomplished and how you think we're doing vis-à-vis the rest of the world.

 

Hon. Ajit Pai:  I think the U.S. is doing very, very well indeed. If you look at the building blocks that the FCC has put in place, the 5G FAST Plan has really delivered. That plan, as you know, and for those who don't, you can go to fcc.gov/5G.

 

In a nutshell, it included making more spectrum available for the commercial marketplace, number one. Number two, making it easier to deploy the wireless infrastructure of the future, and number three, modernizing our rules to promote fiber deployment. Fiber, of course, being necessary to carry a lot of this wireless traffic back into the core of the networks.

 

      On each of those different planks, I think we've executed in spades. We've already held several spectrum auctions, we've made available more spectrum over the last four years than was previously held by all terrestrial mobile broadband providers combined.

 

We're in the middle of the C-band auction, which you mentioned, where the bidding has been pretty fierce. It's interesting to see that this mid-band spectrum is highly prized. Same thing with the 3.5 auction we held in the summer where we made available 70 megahertz of spectrum for 5G.

 

      We've also got a couple other initiatives in the pipeline. The 2.5 gigahertz auction, I hope, will be held next year, and so will the 3.45 to 3.55 auction, we hope, would be held by the end of next year. That's spectrum currently held by the Department of Defense.

 

      On the wireless infrastructure side, too, we've seen 87,000 cell sites deployed in the United States over the last three years, 10X what we saw from 2013 to 2016. In terms of fiber deployment, we set a record in 2018 for deployment to homes and businesses, a record that was only broken in 2019.

 

      From an FCC perspective at least, we've really put in place the building blocks, as I said, for innovation and investment in this sector, and importantly, on our shores. In addition to that, we've also encouraged the infrastructure of the future with the Open Radio Access Network initiative forum that we've held. We're looking to make sure that the virtualization of those networks thrives here in the U.S., and that some of those companies based in the U.S. can continue to innovate.

 

      I think we're in a really good position. I know, in some corners, it's popular to say, "Ah, we're behind such-and-such country," but if you look at how vast this country is, the challenges we've got, and some of the bottlenecks that are in place on the spectrum side, I think we've done exceptionally well. I think it speaks well of public policy that we were able, in these early innings at least, to set in stage a bright future for the rest of the game.

 

Bryan Tramont:  Thank you, Mr. Chairman. People have kicked up a lot of dust around how the FCC has interacted with the executive branch over the last few years on spectrum issues. As your chairmanship comes to a close, what are your thoughts about that process and whether it worked the way it should? Should there be something different? Any thoughts on that?

 

Hon. Ajit Pai:  Yeah. What I would say on that topic is it has nothing to do with the political affiliation of the executive branch agencies where we've had different issues. It's just the institutional nature of this relationship. The FCC, of course, has jurisdiction over commercial spectrum. The NTIA at the Department of Commerce has jurisdiction over federal spectrum policies; spectrum held by the federal government.

 

      So, it's just inherent in that bifurcation that you're occasionally going to find areas where the two might not necessarily be on the same page. There's very little greenfield spectrum available—pretty much none that's useful for wireless communications—so every time the FCC is looking to push forward, you're going to find some federal agency or some private incumbent that will raise an objection.

 

      I think one of the distinguishing features over the last four years is that we've rejected the previous approach by some of the folks who held my job in years past, Democrat and Republican, who just simply said, "Okay, well, if there's an objection, let's just study it some more. Let's kick the can down the road," etc.

 

To me at least, one of the notable features is that we've taken on these hard fights. The reason why you see some of these stories—"FCC Battling the Department of Defense or Department of Transportation or Department of Energy or NASA, NOAA, FAA," you name it—is because we recognize that we cannot succeed as a country in 5G if we're standing still and looking at things and kicking the can down the road.

 

      We're put in these jobs to make difficult decisions, and every single one of these decisions I'm proud of the decision we've made because it's been based on the facts and we've defended it strongly, and we're getting the results now in the marketplace.

 

Bryan Tramont:  Excellent. Thank you. From an inside-the-Beltway issue to an outside-the-Beltway issue that I suspect your family in Parsons, and certainly my family in St. Louis, is very appreciative for all the work you've done on robocalls, perhaps the least popular practice in the industry. Tell us about your work on robocalls, including your most recent item. How are we doing? And how much more needs to be done? Have we seen progress?

 

Hon. Ajit Pai:  We have seen progress. I know it's frustrating to a lot of consumers. It might seem like we're not, but these things drive me crazy, too. I get them all the time, and that's why attacking these unwanted robocalls has been our number one consumer protection priority. If you look at the full list of things we've done, it's really extensive.

 

      We've, for example, enabled phone companies to block robocalls by default, [inaudible 00:17:18] robocalls that they determine, based on analytics, are not legitimate. We've also required the phone industry to implement a new caller ID authentication framework called SHAKEN/STIR, which essentially assigns a digital fingerprint to every single phone call. Now, we're seeing carriers agree to exchange traffic only if they have those fingerprints. That's going to attack the problem in a big way in the years to come.

 

      We've also set up a reassigned numbers database. For example, if someone has a phone number and they use that phone number for their pharmacy, the pharmacy calls back and you reach the new person who gets assigned that number, the pharmacy would now be able to check and make sure that the actual consumer is being reached.

 

      Finally, on the enforcement side, the biggest fines every proposed in the FCC's history have been imposed on robocallers over the last four years, all the way up to $225, $250 million. Again, I know that this is a frustrating issue for consumers. It might not seem like there's been a downturn, but we are making substantial headway on this issue.

 

      The other issue I should've mentioned, by the way, is gateway providers. One of the things we found during the pandemic is there was a lot of coronavirus-related robocalls coming in saying, "Oh, we've got a miracle cure. Just press one to learn more." That kind of thing. We found that these were foreign robocalls coming through a so-called gateway provider—very tiny telecom companies that, most likely, no one has ever heard of. Then, those gateway companies were springing these phone calls on the rest of the phone network.

 

      In a joint effort with the FTC and DOJ, we sent letters to several, almost a dozen, of these gateway providers and told them either cease the robocalls within 48 hours or you risk being cut off yourself from access to the U.S. phone networks. All of them agreed to cut them off. That's the kind of initiative that we want to broaden to cover more types of robocalls.

 

      A frustrating issue, as I know, for many people, but we are making progress.

 

Bryan Tramont:  Excellent. You also made the FCC a more transparent institution on all these decision-making processes than your predecessors did. Can you detail those efforts and why they were important for you to do as someone who had worked in the building both as a staffer and as a commissioner before becoming chair?

 

Hon. Ajit Pai:  That one is, to me, very simple: good government. It's just the basic expectation of every citizen that you will be able to understand what the government is doing before it does it. I never understood when, as a staffer in the office of general counsel, and certainly when I was a commissioner in the minority, why the FCC was voting on all these substantial initiatives—we regulate some one-sixth of the economy—yet we would only make public what our decision was after the vote has happened.

 

      When I was a commissioner, I would ask my predecessor, "Why don't we just make it public at least three weeks in advance? It would give people more insight into what we're doing." I was told, "Well, for legal reasons, we can't do it. There might be some APA issues or policy reasons we don't want to do it because then you'd just get sucked into a never-ending round of lobbying." So, it never happened.

 

      But in my second week in office, in February 2017, we made that change. It has been a dramatic improvement in the way the agency operates. Everyone, whether in Washington or anywhere in the world, you can now read the exact text of what we're proposing to do or some of the orders that we'd like to adopt, and you can make a decision for yourself. You may like it; you may not, but at least you can understand what it is.

 

      The other interesting thing for the folks who are in Washington, the number of meetings that we've had in connection with the things that we vote on at our monthly meetings have gone down dramatically, and the reason is there's no more game of telephone that's necessary. In years past, what would happen is the chairman would say, "Okay, we're going to vote on X, Y, and Z at our next monthly meeting, and we won't release the text of it."

 

      What would happen is a fleet of lawyers and lobbyists would have to descend on the FCC and have these kabuki meetings with commissioners and staff where they say, "Hey, you know, we understand the order would do X. Is that true or is that not true?" We'd have to play this game, "Well, what we can say is it might be along those lines, but we can't confirm." Just all that kind of ridiculousness is gone now because you can just read it for yourself.

 

      Just in terms of transaction costs saved, I know the communications department might not appreciate it, but we've actually saved a lot of time and effort just by making these things transparent from the get go.

 

Bryan Tramont:  I was going to say, let's be careful about badmouthing this group of lawyers, Mr. Chairman, now. But I will say, very much to your credit, as someone who attempted some of these initiatives when they were at the FCC, I was cowed by OGC. You obviously were not cowed, so very much to your credit for doing that battle because it was a struggle, so kudos to you.

 

      As you look back on your time as chairman, do you have a favorite trip that you've taken or a place or a school you visited or a company you sat down with that really stands out? I mean, you've had some great ones, internationally and domestically, but maybe highlight a few to give people a feel for what it's like to be in that chair.

 

Hon. Ajit Pai:  That's the part of the job that I love so much and that I'm really going to miss. I've now visited 49 states and the territories of Puerto Rico and the Virgin Islands here in the U.S. I've been in many different countries and had the chance to liaise with some of my counterparts.

 

      The amount that you learn, the people you meet, the issues you get to imbibe; it's just a fascinating aspect of the job. Too many memorable trips to count, but certainly some of the ones that stick out in my mind are getting to meet the prime minister of India earlier this year. Went as a part of the U.S. delegation.

 

To me, it was just incredible how everything had come full circle. My parents left India in 1971, no connections, eight bucks in their pocket and a transistor radio. Here's their son, who had been tapped by the president, and was coming back and visiting the prime minister of that country. I loved it.

 

      Here in the U.S., so many of the people I've met just really stick out in my mind. I visited Clay, West Virginia and Clendenin, parts of the West Virginia that have been ravaged by some flooding recently. The 9-1-1 call center director showed me their office. It was just her and another person. Flood waters were rising in that call center, and they thought they were going to die. They weren't sure what was going to happen. I just remember at the end of this meeting, she just gave me a hug and said, "Thank you so much for coming. It just means a lot to know that people out there in Washington care about us."

 

      Just so many different people I've met like that. The eighth grader at the Jemez Pueblo school that I met in New Mexico or ranchers I met in Colorado or the man I met in North Dakota who was getting gigabit fiber that day thanks, in part, to the FCC policies, who told me that he and his wife wouldn't have to bundle the kids up in the truck and drive to Bismarck to piggyback off of McDonald's Wi-Fi connection.

 

      Those are the types of meetings that are going to linger with me long after I leave the FCC, and I'm really glad I did them. It just restores my faith in humanity and the power of government to really effect positive change.

 

Bryan Tramont:  You've spoken often and eloquently about your concerns about the coarsening of our political and policy debates. I remember a Media Institute speech, now going on a few years ago, as I recall. As you exit the stage, what thoughts do you have about how to enhance that dialogue, and how do you think that plays into what comes next for you?

 

Hon. Ajit Pai:  That's a good question. I actually had occasion a couple of weeks ago to look at that Media Institute speech back in 2017. If anything, I really understated how pernicious the effects of social media can be on the way we interact with each other. Back then, I was a little bit more in equipoise, but now, I think it's almost indisputable that the way we interact has become much rougher and much less tolerant than it ever was before.

 

      I think partly because we don't have to interact in person and partly because of anonymity. There's just been a disintermediation of people. It's much easier to lob a bomb when you don't have to look somebody in the eye and say, "I think you're wrong for these reasons."

 

      Especially for people in office, like me, or elected office, like the folks in Congress, it's a really difficult situation. I hope that none of my successors—nobody in government—ever has to face some of the crap that I've had to deal with. Things I didn't expect coming into the job: unmarked packages being sent to the house, my parents getting harassed with 3:00 a.m. phone calls, people threatening to murder my children. That kind of stuff has no place in any civil society, I don't think.

 

      If that persists, then we're going to find a time when people aren't willing to serve in these positions, and they aren't willing to make the right decisions because they're hard. Ultimately, our culture is going to become much more tribal. I think that's a terrible thing for America.

 

      I have a lot of friends on the other side of the aisle. It never would've occurred to me to castigate them or even end the friendship because their politics are different from mine, but we increasingly see that kind of instinct, especially among the young, who haven't known, I don't think, the more pluralistic society we enjoyed as kids.

 

It would be a shame if that frayed permanently. I don't have any solutions for how to repair it other than either get off social media and treat each other better, but that's not really a practical solution at this point.

 

Bryan Tramont:  It sounds nice, though, I must say, Mr. Chairman. We should be treating each other better. Maybe we can treat each other better on social media as well. I don't know.

 

As we reach towards the end of our time, I at least am curious. What are you going to be doing in late-January? Does Janene have a honey-do list, Mr. Chairman? Like, "Here are the things you haven't been doing for the last seven years?" Or what happens? What are the plans?

 

Hon. Ajit Pai:  Well, no particular honey-do lists, and that's because of one of the great domestic calamities, for me, during the pandemic, which is that working from home, I now have no more excuse for ignoring a lot of things around the house when I have free time that I should've been attending to. I've had to do a little bit of drywall work, all those kinds of stuff that's just been piling up.

 

On January 21, when I wake up, I'm going to sleep in, drink a big swig of coffee, watch some Judge Judy and just decompress a little bit. As you know, having served at the Commission, it's a challenging job. It's almost a 24/7 job. Looking forward to just exhaling, taking it all in, and trying to think about what the next adventure is going to be.

 

I've been very blessed in my life to have these incredible opportunities presented in front of me, and hopefully, whatever the path ahead it is, it'll be one that's just as intellectually stimulating and rewarding as this one has been.

 

Bryan Tramont:  Well, on behalf of the entire Federalist Society, and from my perspective, I want to thank you so much for both joining us here today and for all the terrific work you've done for the country. We really appreciate it. We need public servants like you in government at all levels who pursue the right things for the American people and do it with class and style and treat others with respect and intellectual rigor.

 

I very much appreciate that, and thank you for joining us here today.

 

Hon. Ajit Pai:  Well, thanks so much, Bryan. And to you and the panelists who have also been just fantastic advocates and friends over the years, from the bottom of my heart, thank you for helping me during this time in public service. I look forward to continuing the conversation with you once I enter civilian life.

 

Bryan Tramont:  Indeed, indeed. Thank you, Mr. Chairman.

 

Hon Ajit Pai:  Thank you, sir.

 

Bryan Tramont:  All right, everyone. We are now going to pivot to the reaction panel part of our conversation today. For this, I am joined by Randy May, who's the Founder and President of the Free State Foundation and a longtime advocate in communications law and policy.

 

      Also by Tricia Paoletta, who's a Partner in the law firm of Harris, Wiltshire & Grannis.

 

      And, finally, by Shane Tews, who I'm hoping has joined us --

 

Shane Tews:  I have. Hi, guys.

 

Bryan Tramont:  Excellent. -- who's the President of Logan Circle Strategies and a Visiting Fellow at the American Enterprise Institute.

 

      All of them have vast government experience and deep policy chops, and I'm thrilled to have such a distinguished panel following the Chairman this afternoon.

 

      Let's start with kind of an open-ended reaction, an opportunity for reactions from any of the three of you to what we just heard over the course of the last half hour.

 

Randolph May:  Bryan, this is Randy. Maybe if it's okay, I'll go first and give a reaction. But, first, I want to thank The Federalist Society, of course, for hosting this session and you for moderating and my fellow panelists as well.

 

      I think, really, we would need a few additional teleforum sessions to do full justice to Ajit Pai's legacy, but this one will be a good start. I assume that -- maybe I could ask Nick, just so I'll know whether I'm referring to Chairman Pai directly or -- it sounded like he was dropping off. Is that right, Nick or Bryan?

 

Bryan Tramont:  He's still on, I think, so far, Chairman.

 

Randolph May:  Good. Well, I'm going to speak as if he's on because I know we're recording this session, and I just want to say that I've been involved in communications law and policy for close to 45 years now, and I don't have any hesitancy in saying that I consider Ajit one of the most consequential chairmen that I've observed. I should add consequential in a positive way. It's possible to be consequential in a different way.

 

      What I think about the Pai legacy. It could almost be like a trick question because there's a lot from which to choose. But for my part, I'd say, without too much hesitation, that the Chairman's legacy, at least in large part, will be forever tied to his leadership and Restoring the Internet Freedom Order adopted to reverse the Obama-era public utility-like regulatory regime applicable to broadband internet providers.

 

      I'm not going to go into that at all. I think almost everyone on this call is familiar with the issue. I'll just say that that action was important not only because of its more immediate practical and policy impacts—that is, encouraging investment and innovation—but also as a statement of fundamental principle that ought to be central to communications law and policy today and going forward.

 

      That principle, of course, is really related to internet freedom in a fundamental way, which is right in the title of the FCC's order. That is that broadband digital internet services should not be subject to a regulatory regime developed in the last century for monopolistic narrowband analog telephone services. Frankly, upholding that principle was one of the motivations for me to join the think tank world when it was already obvious to me that this was going to be the fight of the next decade back in 2000.

 

      I didn't realize it was going to be the fight for the next two decades, and hopefully, it won't go on forever. But I just think that that is a consequential—perhaps, in my book, the most consequential—action.

 

I just want to add, initially, picking up on something that Bryan asked the Chairman about and that he spoke about. It's related to the Internet Freedom Order, of course. It had to do with the ugly attacks that he faced, the personal attacks, really, on Ajit and his family because of the actions he took.

 

I'm just going to actually repeat something that I said on the day that Chairman Pai announced his resignation. I said, "This should never have happened, and shouldn't happen again. But Chairman Pai didn't back down. Rather, he responded to those unjustifiable attacks with grace and aplomb." That's a worthy legacy, too. I really think it is.

 

      He could've responded in a different way that would've, perhaps, further exacerbated or made it more difficult to get back to a place in which those of us who have been involved in this space for many years or decades hope that we can get back to where we argue about differences in principle without doing it in a personal way. I credit Chairman Pai with helping us get to that place by the way he reacted.

 

      With that, Bryan, and Mr. Chairman, if you're still on, I'll stop there and look forward to continuing the conversation.

 

Bryan Tramont:  Shane, can I pivot over to you? Tell me, what were your reactions from Ajit's conversation with us?

 

Shane Tews:  You know, I always find him refreshing in that he's somebody who's spent a lot of time in different layers in government and is so open about how we can make the process better. I think some of the things he talked about at the very end are so true. The way that the monthly meetings went did not need to be under some sort of cloak and dagger cover like they were the FCC spy agency for so long.

 

      It makes for better decision making for everyone. We can have disagreements, but we need to have them in the open and understand the facts. Sometimes working through those disagreements ahead of time makes for just better decisions all the way around.

 

      Huge kudos to that. I hope that continues, and I definitely hope all the work that has been done in the last four years around spectrum allocation and spectrum sharing and making the interagency process more effective continues. It's been really great to work with his team.

 

Bryan Tramont:  Tricia, you want to jump in next? Any reactions?

 

Patricia Paoletta:  Sure. Yeah, and thank you, Bryan, and Federalist Society for hosting this. One of the reactions I was struck with listening to your conversation. We're all telecom folks here on this call, but for the broader Federalist Society viewership or listenership, what was very special about what the Chairman did in response to the pandemic was challenge the industry on a voluntary basis, as you guys discussed, to not disconnect internet access for customers. Keep America Connected, as you guys talked about.

 

      Again, it was voluntary. Unlike so much of what we've seen local and governor mandates come out across the country on COVID, it was voluntary, and I think that's a very important precedent. And he did do it early on. Hopefully, that did inspire at least some of the federal folks, if not some of the state and local telecom regulators, to also approach this on more a partnership level and not mandate expensive regulations that, as he said, would've taken longer to get on the books, and then, of course, as we all know, would probably have never been repealed.

 

      So, I really commend him and his colleagues for resisting the temptation to mandate and really approach that aspect of the pandemic to be on a voluntary basis. So that was very important.

 

      To pivot from not backing down, as Randy mentioned, in terms of his bravery. You guys talked about the 5G FAST Plan, getting more spectrum to the market. And, of course, across the board on the millimeter wave spectrum, on the mid-band, and the low-band. Mid-band had really been a tough nut to crack because a lot of that mid-band spectrum where the industry—and this is the global industry—was targeting, in the 3.5 to 4 gigahertz band. I'll try not to be too technical for our listenership.

 

But mid-band was considered nope, it's a no-go zone. We've got military radar there. We've got other important uses. He did not back down, and he really worked with his fellow agencies. Of course, they, too, understood the economic importance of 5G and the strategic importance of 5G, but he did not back away from that challenge, so I think that's a very important legacy that he deserves our kudos on.

 

      It was a balance, too. The 5G FAST Plan was not just focused on one band of spectrum, as I noted, and it was not even just spectrum access—which the FCC can control, to some extent, when it works effectively with its fellow agencies—but it was also on the state and local fighting space. That was a big fight. The Chairman led that fight and, at the end of the day, has actually expedited the zoning and licensing timelines and costs, reduced the cost, so towns across America can get 4G and 5G radio access networks put up in much quicker timelines than they used to.

 

      It worked out. Obviously, nobody knew this COVID pandemic was coming, but because he and his fellow commissioners got those citing rules streamlined and on the books and through most of the court challenges, by the time COVID hit, local entities around the country were able to scale up and get broadband services out to their populace.

 

      I do think that the fact that he didn't back down on some tough fights that had bedeviled many Republican and Democrat commissioners and chairs before his time and the fact that he did this voluntary approach to respond to the pandemic is very commendable.

 

Randolph May:  Bryan, this is Randy. Can I add one quick thought that occurred that's different from what we've been talking about? From your experience as a chief of staff at the Commission, you may have a view on it or not.

 

      We're talking about a five-member commission, of course, that's different than an executive branch agency where there's one person in charge. One thing that I thought Ajit did especially well was be able to use the other commissioners, particularly those that shared his views on some of these things—Mike O'Reilly, for example—on spectrum matters where he delegated quite a bit of authority to take the lead. Brendan Carr is another example on infrastructure matters to remove barriers that existed. Brendan took the lead on that.

 

      It seemed to me, from looking at it outside the Commission, that he was able to maximize, to some extent, what he was able to get done by employing his colleagues that way, which I thought was a good thing. I don't think that that's been formerly done throughout the history of chairmanships at the Commission.

 

Bryan Tramont:  That's a great point. Your chairmanship is only as strong as your three-vote majority on the tough stuff, right? So, it's an important point. Especially, as I said, we're going to have some changeover.

 

      Tricia, I want to pivot back to you. You spent a lot of time on trade issues and international telecom, and you chaired the FCC's World Radio Advisory Committee, if I can remember the name of what we do together.

 

      Tell me a little bit about Ajit's role internationally. We've had supply chain. We've had international telecom. We've had satellite issues. How do you think his legacy will be thought of internationally?

 

Patricia Paoletta:  Thank you, Bryan. Yeah, he kind of mentioned himself how thrilled he was to get to travel with the President to India and to meet the prime minister. I personally was proud that we had the first Asian-American chair out there representing us.

 

Obviously, given the issues in some of these international fora, the United Nations, there can be some hostility towards the U.S. being arrogant, wealthy, or whatever the issues might be. But I personally was very proud that we had at our helm a living example of our diversity and our big tent and how opportunity is available to everybody in America. So that was always a special thing for myself.

 

      But he was very engaged in the preparatory work for the World Radio Conference, so that was good. His office was very accessible. He traveled. Not extensively because, of course, if you travel to really nice places too much, then Congress gets a little jealous and oversees some of that.

 

      More substantively, for most of the World Radio decisions, if the U.S. can do stuff domestically at the FCC, that just tends to strengthen our hand. He understood that. He was the first mover on the millimeter wave, the higher spectrum that has shorter propagation distances but can really deliver huge capacity. Great for super-fast 5G, say, in an urban network. He got those decisions on the books early, before the World Radio Conference, last year. He got the auction started. So, it was a great example to all.

 

      Also, on the mid-band that we're now starting to see, will be at auctions this summer, and auctions for what we call the C-band—the 3.7 to 3.98—are happening now. Getting those teed up and on the books really helped our efforts to develop support for identifying those mid-band spectrums for basically 5G.

 

      He was very engaged, and he understood the importance, as a precedent, of FCC leadership to really deliver our goals internationally.

 

Bryan Tramont:  Thanks, Tricia. Shane, I want to pivot to you to talk about a different constituency. You spent time at the White House. You spent time as an LD for a congressman. You know the political side of Capitol Hill especially, and the policy side, for that matter, with all your time at Verisign.

 

Tell us about how you think the Chairman did vis-à-vis the Hill and legislation. The FCC's a creature of Congress, so at some level, they're the ultimate graders, if you will, of how well the Chairman does. Through that prism, how do you think he's done?

 

Shane Tews:  Let me actually dovetail a little bit off of what Tricia was just talking about. I remember back during President Bush administration, there was this moment where we had an international meeting and the other countries were not sure which government person for the United States to seek because we look at telecommunications differently. We don't have a ministry of communications like most countries do.

 

      They had someone from the State Department there, someone from the FCC, someone from the Department of Commerce through the National Communications Information Agency there, and they didn't know who should hold the pen or have the discussion because we look at these issues very differently.

 

      To me, that was very poignant on how we were looking at it from a policy perspective maybe not in a clear enough spectrum on the importance of telecommunications and technology issues.

 

      I think this particular FCC, a lot through the Chairman's leadership, but also the leadership of his staff; he has very good legal staff. The entire agency is probably the most cohesive that I can remember ever in the time that I've worked with them.

 

      That leads on to also being -- I think they were much more effective on driving policy throughout the legislative process, having better just engagement and relationships with the chairmen of the right committees and the staff there.

 

The lack of friction and conflict meant that there was a much more cohesive policy within the interagency process. Through the State Department and the Department of Commerce, and even because of spectrum allocation, we have heard from the Department of Transportation. We've heard from the FAA. We've heard from NOAA on issues. Every once in a while, he had to put more sunshine on the issue to say, "Hey, it's a new day." Tricia was talking about the mid-band spectrum. We're much better at that now and how we do the allocations than we did before, so let's rethink the rules that were put in place in the 1980s or 1960s or 1990s and bring it forward.

 

      I realize that some people on this call will understand this and some don't. When it talks about guard bands, anytime you're in an old-school car with a radio and you're like, "97.7 to 97.9. Why can't I go to 97.8?" It's the guard band. We don't need those guard bands anymore. They did a very good job of explaining that not only within the interagency process but up on the Hill. And because of that, we have much better spectrum sharing, and we're all going to benefit from that in 5G and next generation networks.

 

Bryan Tramont:  One area where there has been a lot of attention both on the Hill, elsewhere in the administration, and otherwise is supply chain. Do you want to touch on that at all, Shane?

 

Shane Tews:  Yeah, absolutely.

 

Bryan Tramont:  Actually, anybody because it has been a big area of focus for the Chairman.

 

Shane Tews:  Most specifically, I think people in this arena think about what's going on with the Open Radio Access Networks, the O-RAN. What used to happen is you would be locked into a particular vendor. That was because so much of technology and telecommunications was hardware driven.

 

What we have done is now the -- we consider it the box. The box is now just a device that can take on different software. Because of compute power being so much more prevalent because of cloud computing -- basically, technology has made telecommunications assets and networks much smarter. That means that we can use money more efficiently in the network that is not necessarily going to a lot of sunk hardware, but we're using it and being able to update the software process.

 

      The Open Radio Access Network allows many more companies to be engaged in that process and to have the ability to be in the supply chain. One thing that's very important about that is national security, and that's been a concern about Huawei. We just went through the Rip and Replace Order in the last meeting. We want to trust our vendors. Unfortunately, trust starts, a lot of times, with zero trust. You have to build your trust into the network and then you can know who you're dealing with. It's very key to supply chain.

 

      In a world where things can change through software, we may be a better ability to do that, but you have to be able to trust the hardware that is the initial key. That's where we've seen supply chain have some really interesting twists and turns over the last couple years. I think we're really getting to a good point where our supply chain is going to be a value of trust that we can have going forward.

 

Patricia Paoletta:  To follow up on that, if I may, Bryan. Again, the Chairman was out in front on this. He actually released the supply chain order, whatever it was called, Rip and Replace Order, well before the President actually did his executive order directing all the different executive branch agencies that have an intel or security competency.

 

There was a section in there about "Hey, and FCC, you too do what you can to make our supply chain more secure," but the Chairman had already put out a notice of proposed rulemaking saying, "Hey, we administer this billion-dollar fund for helping to support broadband and telephone universal service across the country. Should we really be using those taxpayer dollars or those consumer dollars to support the installation of Huawei equipment and other perhaps untrusted or non-trusted network vendors?"

 

He actually got that ball rolling well before the President's executive order a couple years back, and therefore, was in a position, as Shane just mentioned, to actually make decisions on that as well as support workshops or shine the light on Open Radio Access Networks that Shane was talking about.

 

      Basically, if once upon a time you bought a Huawei switch, you're not stuck with Huawei forever and a day. You actually can break apart that and put in different parts of the network and not be reliant on Huawei for the rest of your network's life.

 

Randolph May:  Bryan, can I just pick up on what Shane and Trish said and maybe take it in a little different direction and make a broader point that I think you'll appreciate.

 

      These issues that we've been talking about, like supply chain and some of the spectrum issues and others, are really -- some of them are new, in some sense, to the FCC, and the FCC didn't deal with those things or at least nearly as intensively in past years. I know that wasn't true when I was there a long time ago and, to some extent, I don't think it was when you were there.

 

      The point that I want to make is that this Commission, under Ajit's leadership, just turned out an incredible amount of work. The productivity under often very tight deadlines, to me, was pretty amazing. When I think back over the years to other commissions and that's just a tribute to his leadership and his colleagues. It's also a tribute to the staff of the FCC, something that Ajit said earlier during this hour.

 

      It's just, to me, pretty darn amazing how much they were able to get done in a relatively short time. That doesn't happen without hard work and leadership.

 

Bryan Tramont:  Indeed. I guess an open question -- we only have about five minutes left, but maybe each of you can jump in for sort of a lightning round. What do you think is the most underappreciated accomplishment of the Pai era? What do you think will be the issue in the next four years where you'll most wish we still had Chairman Pai at the helm?

 

Shane Tews:  One that I think got quite a bit of attention but maybe people didn't realize was the suicide hotline. Part of this is -- being from the great state of Nebraska where we actually started 9-1-1, and there was an understanding back then that you needed something that was a very quick response. I know it'll take time for the new number to populate, but understanding that there was a national need for people to be able to reach out and get help and using our telecommunication system for that, I think that was -- he read the report. His team saw that that was important, and they acted on it very quickly. I thought that was great.

 

Randolph May:  This is Randy. I guess I would go back to what I said earlier when I first spoke. I wish it weren't so, but I believe the fight over broadband regulations is going to continue. I know we all talk about how much we would like a congressional resolution of the issue, and I can second that.

 

      But I think the reality is that that fight is probably going to continue. There is a broad -- I think the differences really are meaningful and important in terms of whether you end up with an approach like Chairman Wheeler adopted or Chairman Pai makes a big, big difference. I think, to me, that's the most important issue probably going forward.

 

      I'll just say again, to me, that was the most consequential action that was taken under Ajit's leadership during his tenure.

 

Patricia Paoletta:  Most unappreciated. Maybe it's the most unimportant. Who knows. I always appreciated his sense of humor. In the face of a lot of political jabs from his colleagues and, of course, a horrible slate of hate—Twitter and the threats—he kept a sense of humor, and I think that's a great role model. I think he's right. It's not going to get too much better out there in our divisive polity, but I think that was very important, and I forget what the legacy question was but hopefully that's a legacy [inaudible 00:55:37].

 

Bryan Tramont:  They actually go pretty well together, Tricia [inaudible 00:55:41]. I do think -- it's interesting. I think I might just land on -- I'm going to answer this question myself since I like it.

 

      I'm going to land on C-band because I'm always impressed when the -- anytime a chairman can bring an idea into the conversation and then close on it within their chairmanship -- and I always gave Julius great credit for this on the incentive option. It's very hard thing to go from a twinkle in the eye to an executed battle plan, and C-band really did that. It was bumpy. Landing that plane was very, very complicated for them, and I give them great, great credit for that one as near and dear to my heart as it was.

 

      Do I have any final thoughts from our panelists of any additional thoughts on the Pai legacy?

 

Patricia Paoletta:  Well, I'll just add the C-band is a critically important action, and that is the 5G global band of interest, including with 3.45 and 3.55. I agree it's hugely impressive that he could get it done. It was very complicated because of the satellite antennas, the dishes, [inaudible 00:56:57] and this, that, and the other thing. I think it will be appreciated, so I'll second that as being a very important legacy.

 

Randolph May:  Well, and there was a lot of politics from the Hill that pushed that down.

 

Patricia Paoletta:  Yeah, yeah. You don't every day have a senator come in and sit in an FCC open meeting, so that was maybe historic. I don't know.

 

Bryan Tramont:  Not in the way you want to make history. Any final words, Shane?

 

Shane Tews:  I would say the biggest compliment and thing we can do for his legacy is keeping the Restoring Internet Freedom Order intact.

 

Randolph May: I agree. I second that.

 

Patricia Paoletta:  I third it, but, you know. We live in a world filled with humans.

 

Bryan Tramont:  We do, indeed. And a political construct where change has consequences, I guess. But at any rate, all right. Well, thank you all very, very much. On behalf of The Federalist Society, I want to thank you all. Thank you, Chairman Pai, for joining us. Thanks all of our audience members. We really appreciate your participating in this event for the Telecommunications and Media Practice Group. We welcome your joining and your participation in our group's activities, and I hope everyone has a happy and safe holiday season. Take care.

 

Patricia Paoletta:  Thank you, Bryan. Thank you, Federalist Society.

 

Randolph May:  Thank you. Bye.

 

Nick Marr:  Thanks, Bryan. Great close. I'll just thank our audience. Thanks for calling in. You can reach us at [email protected]. Check your emails and our website for announcements about upcoming teleforum calls.

 

      On behalf of The Federalist Society, we thank our experts for calling in. Thanks, Bryan, for moderating.

 

Bryan Tramont:  Thank you, Nick.

 

Nick Marr:  Have a great week. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.