Tuesday, October 04, 2016

Thinking Things Through VII: Let the Public Comment

There is no reasonable doubt that the FCC’s controversial proposal to adopt new regulations governing video navigation devices has undergone significant changes since the Notice of Proposed Rulemaking was put out for public comment in February 2016. Indeed, based on what FCC Chairman Tom Wheeler and his two Democrat colleagues said last week when they pulled the item from the agenda at a public Sunshine meeting, the proposal is undergoing further changes even as I write this.

Even though we know, based on leaks and an agency-released “fact sheet,” that the Commission’s current thinking is now considerably different than that depicted in the original rulemaking notice, we don’t know key details regarding the changes now being negotiated among the agency’s three Democrats.

That’s the problem, of course. That’s why, if and when the three Democrats reach an agreement on a new proposal, the agency should put it out for public comment in a Further Notice of Proposed Rulemaking, even if the comment period is shorter than usual.

If the Commission fails to follow this course, it is unknowable at this point whether such failure would lead to a violation of the Administrative Procedure Act’s notice and comment requirements. It well might.

But this much is knowable. As a matter of sound public administration, and regardless of the survival prospects of any appeal from a final order, the Commission should put its latest proposal out for public comment. From the very beginning, Chairman Wheeler’s proposal has been one of the most controversial rulemakings in recent agency history. This is not surprising because, at a time when competitive forces in the video marketplace are responding to consumer demands in a fast-changing environment, the Commission’s regulatory intrusion has major implications in a number of areas.

One way or another, the proposal means that the government, either directly or as ultimate arbiter, will establish a new technological mandate governing the design of features and functions for navigation devices or apps. This government intrusion, in and of itself, warrants the most careful scrutiny. And the proposal necessarily has major implications regarding the protection of consumers’ privacy under government-imposed open standard licenses, as well as the protection of copyrights under such standardized licenses.

In sum, the Commission should put out its revised proposal, if and when there is one, for public comment. This level of transparency and public input may well lead to a less harmful regulation at the end of the day if a majority of commissioners continue to believe (as I don’t) that any new regulation is needed at all. At a minimum, following this course will increase the public’s confidence in the integrity of the agency’s process.