On June 17, 2021, the Administrative Conference of the United States (ACUS), of which Free State Foundation President Randolph J. May is a Senior Fellow, adopted a number of recommendations addressing how agencies might respond to the explosive growth in the number of public comments submitted online.
Administrative Conference Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments, proposes a number of "best practices" and offers "guidance for agencies on using technology to process such comments in the most efficient way possible while ensuring that the rulemaking process is transparent to prospective commenters and the public more broadly."
While generally supportive of the ACUS Recommendation, FSF's Mr. May elected to author a Separate Statement rejecting the notion that an agency ought to attribute significance to the raw number of mass, computer-generated form comments received.
Echoing comments submitted by ACUS Senior Fellow Richard J. Pierce on May 25, 2021, Mr. May cites his 15 years of experience with so-called "net neutrality" proceedings before the FCC to illustrate their shared concern regarding "the widespread but mistaken public belief that notice and comment rulemaking can and should be considered a plebiscite in which the number of comments filed for or against a proposed rule is an accurate measure of public opinion that should influence the agency's decision whether to adopt the proposed rule."
Mr. May points out that, during the most recent "net neutrality" rulemaking cycle in 2017, the FCC received roughly 22 million form comments, 18 million of which were "fake." Mr. May explains that this deluge, which he describes as the "nuclear option," reflected the misguided assumption that "the rulemaking would be decided on the basis of a plebiscite, 'counting comments,' not on the basis of the quality of the data, evidence and arguments submitted."
As a result, he expresses his "hope that, going forward, ACUS will initiate a project that considers the appropriateness of curbing the submission of mass, computer-generated form comments, and, if so, how best to accomplish this."
Mr. May concludes by stating his conviction that "there ought to be a proper way to discourage the type of 'comment war' that occurred in the two most recent FCC net neutrality proceedings, while, at the same time, encouraging the type of widespread public participation that is most helpful to agencies in promulgating sound public policies."
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