This comment regarding the FCC’s comment process in the
agency’s Restoring Internet Freedom
proceeding is not about the merits of the proceeding. Rather it’s about administrative
law and, more specifically, the proper conduct of rulemaking proceedings at the
FCC and the agency’s institutional integrity.
It’s no secret that, on the merits, I favor the repeal of
current Internet service provider regulations adopted by the FCC in 2015. But I
write now based on my experience and expertise as a former FCC Associate
General Counsel, a former Chair of the American Bar Association’s Section of
Administrative Law and Regulatory Practice, a former Public Member and current
Senior Fellow of the Administrative Conference of the United States, and a
Fellow of the National Academy of Public Administration. In other words, I
write from an administrative law and public administration perspective.
Perhaps it is not surprising that in conjunction with the
FCC’s release of the draft
of its Restoring Internet Freedom order
on November 22 proposing to repeal the current Internet regulations
that the pro-regulatory forces would renew their attacks on the FCC’s
rulemaking process. Not surprising, but disappointing nevertheless.
Witness the November 24 article
by the Washington Post’s Brian Fung which begins this way: “[A] mounting
backlash from agency critics is zeroing in on what they say are thousands of
fake or automated comments submitted to the FCC that unfairly skewed the policymaking
process.” The article reports that New York Attorney General Eric Schneiderman
alleges that the process “has been corrupted by the fraudulent use of
Americans’ identities.” I wouldn’t be at all surprised if General Schneiderman calls
for Special Counsel Robert Mueller to investigate.
But let’s get real – and be frank – for the sake of a proper
understanding the FCC’s rulemaking process and the agency’s institutional
integrity.
Over 22,000,000 “comments” have been filed since the Restoring Internet Freedom proceeding
was initiated in May. The vast majority – surely 99% – of these are
computer-generated short form conclusory comments, and there are literally many
millions of them both favoring and opposing repeal of the current rules. Virtually
none of these conclusory comments address the Commission’s legal authority, a
central issue in the proceeding. All of this – that is, the “war of the
comments” – follows the effort by then-Chairman Tom Wheeler, and his staff, to
mount an all-out political-style campaign in 2015 to generate as many short
form comments as possible favoring his pro-regulatory proposal. Naturally, the
other side responded in kind.
These are indisputable facts.
And this too, as I put it in a July 2017 Washington Times op-ed, ought to be
indisputable as a proper understanding of the law: “[T]he fundamental point –
an important one relating to maintaining the Commission’s institutional
integrity – is that the agency’s ultimate determination should be based
primarily on the application of its expertise regarding the facts and the law,
not on a campaign-style plebiscite.”
The correctness of this point is widely acknowledged. The
Administrative Conference’s Recommendation
2013-5, adopted in December 2013, regarding the use of social media in
conjunction with rulemaking, states: “Another concern is that the use of
ranking or voting tools may mislead some to believe that rulemaking is a
plebiscite…” In her article, “Should Mass Comments
Count?”, administrative law scholar Nina Mendelson states: “All agree that
public comments cannot serve as a plebiscite on the issue before the agency.
But large volumes could, as I argued, trigger more thoughtful consideration and
evaluation by the agency.”
I don’t disagree that a large volume of comments should
serve as a “trigger.” Indeed, in my Washington Times op-ed, I acknowledged
that “an extraordinary number of public comments submitted in a Commission
proceeding is an indication of heightened interest that should cause the agency
to take notice and pay extra special attention to the facts and the law that
should inform its decision.”
Now, no one can read, even casually, the FCC’s 200-page draft
order, with its 1318 footnotes, and contend that the agency has not seriously
evaluated and given thoughtful consideration to all the issues. And perhaps
more to the point here, no one can contend that the draft order does not seriously
evaluate and pay special attention to the issues raised by those opposing
repeal of the current public utility Internet regulatory regime. Indeed, the
draft order cites the comments and responds to the points raised by the groups
most notable for opposing the repeal many, many times throughout the draft:
Public Knowledge 70 times; OTI America 55 times; and Free Press 54. These
commenters, and other pro-regulatory entities, filed lengthy comments, which
deserved to be considered seriously, and they were. No one can credibly argue
otherwise.
As I said in the Washington
Times piece back in July:
[I]n the case of the FCC’s current
rulemaking, there are important economic and technological considerations,
often involving complex cost-benefit calculations and tradeoffs, that should
carry more weight than a count of comments. For example, there is empirical
evidence showing that public utility-like regulation deters investment and that
rigid prohibitions on “discrimination” deter innovation because ISPs are
discouraged from differentiating their offerings. Highly technical network
operations impact determinations as to whether practices, such as
prioritization of certain kinds of traffic, constitute reasonable network
management techniques or instead attempts to disadvantage competitors. And,
finally, there are serious questions relating to the FCC’s legal authority to
regulate ISPs as public utilities.
Under a proper understanding of the law, it is incontestable
that the rulemaking process is not a plebiscite. If Attorney General
Schneiderman and others want to continue to focus on the “count” of
computer-generated comments that may be their prerogative. But I suggest that this
diversionary tactic is quite telling – that is, telling us quite a lot about
their lack of confidence in the substantive arguments opposing the restoral of
Internet freedom.
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