Commissioner Pai: The Dude Abides.

Sometimes Commissioners aren’t content to just vote on the orders the FCC issues. Instead, they feel the need to issue their own “separate statements”, explaining, justifying, hedging, etc., etc. their votes.

We read a lot of those statements – it’s an occupational hazard. As far as we can tell, such statements usually don’t add much to the Greater Good. After all, the FCC’s decision is the FCC’s decision, and the individual musings of one or another Commissioner may be marginally interesting, but they don’t affect the decision.  They often seem intended primarily to bestow kudos on Commission staffmembers, members of Congress, various other notables, while articulating observations that, apparently, couldn’t garner a majority of the Commission (otherwise, presumably, they would have been included in the actual order, obviating the need for a separate statement).

Which brings us to a separate statement of a different stripe. The Commission voted to close up a quasi-loophole in the Telephone Consumer Protection Act, a loophole that some members of the bar (other lawyers might refer to them as “brethren” but, frankly, we’d rather not) have apparently used to justify class action suits of dubious validity. And Commissioner Ajit Pai issued a separate statement in connection with the decision.

We salute Commissioner Pai’s statement and commend it to our readers’ attention.

It is a model of concision and directness. Opening with an unarguable, but seldom stated, notion – “In regulation, as in sports, it is good to have clear rules” – it explains the Commissioner’s position, appropriately castigates those who would try to take advantage of the faux loophole, and encourages those who have acted – and will, theoretically, now act – appropriately regardless of that faux loophole. It avoids the expressions that seem mandatory in such separate statements: nothing is referred to as “vibrant” (by the way, what exactly does that mean, anyway?); there are no “ecosystems”; there are none of the paradoxical references to the simultaneous “unleashing” and “tethering” of anything.

Instead there is elegance (the order “ends the legal lacuna and the courtroom arbitrage it has inspired”), reference to the actual record before the FCC, and avoidance of the obvious cliché: where others might have fallen back on the tired “win-win” expression, Commissioner Pai says simply that the FCC’s order is “a win for consumers and for innovative companies alike.” Yes, it’s a small thing, but some of us readers appreciate it.

And then there’s the citation. Remember that opening statement? It’s accompanied by a footnote, which references a quote from The Big Lebowski (note to some readers: that’s a classic film from the Coen brothers). And it’s a righteous, on-the-money quote. Separate Commissioners’ statements don’t often rely on such sources. But, for what it’s worth, CommLawBlog supports reliance on any source that assists in accurately communicating the author’s point to the audience. (And yo, Commissioner Pai, you’ve got a standing invitation to contribute to CommLawBlog anytime you want.)

We hope that Commissioner Pai’s citation to the words of Walter Sobchak doesn’t get him into hot water with his colleagues. But we suspect that the Commissioner is the kind of guy who doesn’t roll on Shabbos and doesn’t need our, um, sympathy. In fact, we understand that, in response to a Facebook shout out about his statement, the Commissioner himself responded, “Thank you, sir. The agency abides.” 

Maybe, but in our view, it’s Commissioner Pai who abides.

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