The FCC Needs Your Quality Comments About Net Neutrality Today

from the please-comment dept

Today is the deadline for the first round of the FCC's comment period on its attempt to roll back the 2015 open internet "net neutrality" rules. The deadline is partly meaningless, because there's a second comment period that is technically to respond to earlier comments -- but allows you to just file more comments. However, it is still important to make your voice heard no matter which side you're on. We'll be posting our own comments later today, but first, we wanted to share Mike Godwin's thoughtful discussion on why you should comment and why you should provide a thoughtful, careful "quality" comment, which he first posted to the R-Street blog, but which is being cross posted here.

If you count just by numbers alone, net-neutrality activists have succeeded in their big July 12 push to get citizens to file comments with the Federal Communications Commission. As I write this, it looks as if 8 million or more comments have now been filed on FCC Chairman Ajit Pai's proposal to roll back the expansive network-neutrality authority the commission asserted under its previous chairman in 2015.

There's some debate, though, about whether the sheer number of comments—which are unprecedented not only for the FCC, but also for any other federal agency—is a thing that matters. I think they do, but not in any simple way. If you look at the legal framework under which the FCC is authorized to regulate, you see that the commission has an obligation to open its proposed rulemakings (or revisions or repeals of standing rules) for public comments. In the internet era, of course, this has meant enabling the public (and companies, public officials and other stakeholders) to file online. So naturally enough, given the comparative ease of filing comments online, controversial public issues are going to generate more and more public comments over time. Not impossibly, this FCC proceeding—centering as it does on our beloved public internet—marks a watershed moment, after which we'll see increasing flurries of public participation on agency rulemakings.

Columbia University law professor Tim Wu—who may fairly be considered the architect of net neutrality, thanks to his having spent a decade and a half building his case for it—tweeted July 12 that it would be "undemocratic" if the commission ends up "ignoring" the (as of then) 6.8 million comments filed in the proceeding.

There are now 6.8 million comments in the FCC's Net Neutrality docket. Ignoring that is just plain undemocratic — Tim Wu (@superwuster) July 13, 2017

But a number of critics immediately pointed out, correctly, that the high volume of comments (presumed mostly to oppose Pai's proposal) doesn't entail that the commission bow to the will of any majority or plurality of the commenters.

I view the public comments as relevant, but not dispositive. I think Wu overreaches to suggest that ignoring the volume of comments is "undemocratic." We should keep in mind that there is nothing inherently or deeply democratic about the regulatory process – at least at the FCC. (In fairness to Wu, he could also mean that the comments need to be read and weighed substantively, not merely be tallied and dismissed.)

But I happen to agree with Wu that the volume of comments is relevant to regulators, and that it ought to be. Chairman Pai (whose views on the FCC's framing net neutrality as a Title II function predate the Trump administration) has made it clear, I think, that quantity is not quality with regard to comments. The purpose of saying this upfront (as the chairman did when announcing the proposal) is reasonably interpreted by Wu (and by me and others) as an indicating he believes the commission is at liberty to regulate in a different way from what a majority (or plurality) of commenters might want. Pai is right to think this, I strongly believe.

But the chairman also has said he wants (and will consider more deeply) substantive comments, ideally based on economic analysis. This seems to me to identify an opportunity for net-neutrality advocates to muster their own economists to argue for keeping the current Open Internet Order or modifying it more to their liking. And, of course, it's also an opportunity for opponents of the order to do the same.

But it's important for commenters not to miss the forest for the trees. The volume of comments both in 2014 and this year (we can call this "the John Oliver Effect") has in some sense put net-neutrality advocates in a bind. Certainly, if there were far fewer comments (in number alone) this year, it might be interpreted as showing declining public concern over net neutrality. Obviously, that's not how things turned out. So the net-neutrality activists had to get similar or better numbers this year.

At the same time, advocates on all sides shouldn't be blinded by the numbers game. Given that the chairman has said the sheer volume of comments won't be enough to make the case for Title II authority (or other strong interventions) from the commission, it seems clear to me that while racking up a volume of comments is a necessary condition to be heard, it is not a sufficient condition to ensure the policy outcome you want.

Ultimately, what will matter most, if you want to persuade the commissioners one way or another on the net-neutrality proposal, is how substantive, relevant, thoughtful and persuasive your individual comments prove to be. My former boss at Public Knowledge, Gigi Sohn, a net-neutrality advocate who played a major role in crafting the FCC's current Open Internet Order, has published helpful advice for anyone who wants to contribute to the debate. I think it ought to be required reading for anyone with a perspective to share on this or any other proposed federal regulation.

If you want to weigh in on net neutrality and the FCC's role in implementing it—whether you're for such regulation or against it, or if you think it can be improved—you should follow Sohn's advice and file your original comments no later than Monday, July 17, or reply comments no later than Aug. 16. If you miss the first deadline, don't panic—there's plenty of scope to raise your issues in the reply period.

My own feeling is, if you truly care about the net-neutrality issue, the most "undemocratic" reaction would be to miss this opportunity to be heard.

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Filed Under: comments, fcc, net neutrality