I am much more concerned about preserving an open and transparent FCC than I am about preserving an Open Internet. It is not that I don't believe the Internet should be "open." It already is, and there is no need for the FCC, at least not now, to supplant the marketplace's discipline to try to fix what is not broken.
But here's something that may be broken, at least with respect to the net neutrality proceeding: The FCC's own processes. FCC Chairman Julius Genachowski, rightly, has made a commitment to running the FCC in an open and transparent way, and in a way that facilitates informed public participation in rulemaking proceedings. And in certain respects he deserves credit for his efforts, thus far, in this regard.
But I am very puzzled to discover this curt document which was placed in the public file of the Open Internet proceeding on December 10 by the Deputy Chief of the FCC's Wireline Competition Bureau, the staff office primarily responsible for drafting the FCC's proposed Internet regulations:
The FCC document reads in its entirety: "Please enter the attached documents into the official record for the [Preserving the Open Internet proceeding]. The reproduction of copyrighted material is prohibited. Thank you."
What makes this December 10 filing by the FCC's Deputy Wireline Chief extraordinary is that the "attached documents" comprise more than 1900 pages of materials, ranging from white papers, excerpts from books and journal articles, and who knows what else. The attached 1900 pages of documents, without any index and seemingly pasted together in no particular order, may be found in the following links:
As someone who has written widely on adminitrative law topics, served as Chair of the ABA's Administrative Law and Regulatory Practice Section, and who presently serves as a Fellow of the National Academy of Public Administration, I can't recall previously encountering a "data dump" like this – of this extraordinary magnitude – at least immediately before the Sunshine Act cut-off date for further communications with FCC commissioners and staff.
At least to my way of thinking, a last minute data dump of this size is very curious. But, more importantly, it seems to call into question the FCC's commitment to operate in an open and transparent way – in other words, in a way consistent with sound principles of administrative law and fundamental due process. This is because it is very difficult to see how interested parties – even the most well-heeled ones – could review the 1900+ pages of documents and, if they thought warranted, respond in an intelligent fashion. The hallmark of sound administrative law and due process in rulemaking proceedings is to give interested parties sufficient notice as to the facts and law upon which the agency may rely in fashioning a new regulation and to give interested parties an opportunity to respond.
Now, I may be missing something, and, if so, I am willing to stand corrected. Perhaps all of these documents are already in the record. That would mitigate my concern. Even so, because they essentially are pasted together in random fashion, and because the net neutrality rulemaking record is so huge, it would take considerable time to verify this. Also, it may be that the FCC's putative pro-net neutrality regulation majority, and the agency's staff, already have determined with certainty – although this would be curious – that they will not rely in the putative decision on any of the documents. But this raises an intriguing question: Why the last minute data dump? Again, there may be a good answer, but at this point I am not aware of it.
I am convinced there really is no need for the FCC to proceed with Chairman Genachowski's Internet regulation proposal, and certainly no need, absent any current market failure or consumer harm, for the agency to proceed as presently scheduled on December 21. The "Open Internet" surely will be preserved, as is, in the meantime without any FCC action.
But preserving the Open FCC is much more fundamentally important to the public, over the short, medium, and long term. I have my doubts concerning how the FCC's dumping of 1900 pages of documents into the public record on the eve of the date it cuts off public participation is consistent with preserving an Open FCC.