Time and time again, federal agencies ignore public sentiment on rulemaking.
Redditors in Washington, DC deliver the website's official comment to the FCC. Image: Reddit
The federal government is considering killing off net neutrality and allowing internet service providers like Comcast to create a so-called "fast lane." This would allow them to charge more to "prioritize" certain content, a deeply controversial prospect. So, the Federal Communication Commission is hosting an open comment period to solicit the public's thoughts about the whole situation before a rule becomes final. Unfortunately, if the past is any indicator, the agency is going to be throwing the vast majority of the public's comments away without considering them, and will instead focus on the comments of the ISPs that helped write the rule in the first place.
I'm not just being alarmist or dire here. Time and time again, federal agencies like the FCC ignore what the public says it wants and sides with the parties actually being regulated—the ISPs, in this case. Research and past examples prove that there's not much that can be considered democratic about the public comment period or its aftermath.
By the time the Friday deadline rolls around, the FCC will have received roughly a million comments about preserving the free and open internet, the overwhelming majority of them from people who want the internet to remain free and open. And the overwhelming majority of them will be deemed completely useless, from a regulatory standpoint.
"In theory, all comments are read and considered. In reality, most are worthless," Richard Pierce, a law professor at George Washington University's law school told me. "Studies of other rulemakings have found that a high proportion of comments—typically 95-98%—are brief statements for or against a proposal from naïve or misinformed citizens. The agency can do nothing with comments of that type."
"The comments [agencies pay attention to] invariably come from companies with hundreds of millions or billions of dollars at stake or the lawyers and trade associations that represent them. Those are the only comments that have any chance of persuading an agency."
Much like the initial meetings that led to the proposed net neutrality rule being written, the public comment period is dominated by the corporate interests (and their lawyers) that originally shaped the rule in the first place (generally over 90 percent of regulatory meetings include corporate partners but no public advocates). Yes, the public comment exists so that the public can let its feelings be known on any given rule, but, generally, companies like Verizon and Comcast are the public here, regulatorily speaking, and those companies' opinions hold much more weight than most anyone else's opinions.
"Typically, there are a score or so of lengthy comments that include extensive data, analysis, and arguments. Courts require agencies to respond to comments of that type, and they sometimes persuade an agency to take an action that differs from its proposal," Pierce said. "Those comments invariably come from companies with hundreds of millions or billions of dollars at stake or the lawyers and trade associations that represent them. Those are the only comments that have any chance of persuading an agency."
What then, of your comment? An FCC spokesperson told me that the agency has been actively combing through comments as they come in and will continue doing so through at least September, the deadline for comment replies. They will be read, but only the ones that make rational arguments about the FCC's role and responsibility to regulate the internet will be seriously considered, Cynthia Farina, a regulatory researcher at Cornell Law told me. That's because, regardless of what it decides, the loser will probably ask the Supreme Court to decide this once and for all, Farina said, and the FCC is going to have to back this up from a policy standpoint, not a political one.
"It's unusual [for a regulatory proceeding] that you're seeing the big companies coming out in direct opposition."
"Just giving outcome preferences is not useful as a comment. Reasons are useful. Reasons that address what congress told the agency to do are more useful," she said. "I think what's fair to say is all the comments are looked at, but based on the kind of defense the agency has to give about its rule, some have a lot more value than others. Just giving outcome preferences is not a useful comment. Reasons that address what Congress told the agency to do are more useful."
So, what is a "useful" comment, in the eyes of the regulators? The ones the cable companies wrote.
Yesterday, Verizon filed a 184-page comment with the FCC, written by no fewer than five attorneys. The National Cable & Telecommunications Association filed an 88-page comment. Comcast's was 71 pages long. A joke was going around Twitter that all three are in tl;dr territory, but you better believe that the FCC will be reading every word of those comments. In fact, the agency is legally required to take those comments into consideration, thanks to a 1974 Washington DC Court of Appeals case that held that a federal agency must consider any comments that are critical of a proposed rule, as long as those comments are well-supported with facts and figures. The federal government itself says comments like those are likely to be the only ones it considers.
"Companies can spend an arm and a leg on their comments; you can't."
Yes, there are, no doubt, thousands and thousands of well-written comments from people who are concerned about the free and open internet being ruined by the FCC's proposed rule to create an internet fast lane and prioritized content. There are thousands of stories from software engineers and IT professionals and engaged gamers and journalists and people who care very much that the internet remain free and open. Many are written in a way that won't matter to the FCC.
"Those holding informed and adaptive preferences are able to participate meaningfully in the form of decision making the agency must use: They have at least some legal, factual, and/or policy bases for their preferred outcomes that can be articulated; they are at least to some degree aware of arguments on the other side and can respond with more than cursory dismissal," Farina wrote in 2012. "The agency may or may not find these assertions and arguments accurate, persuasive, or consistent with how it understands its statutory mission, but there is no question that such comments have value: they provide the currency in which rulewriters know they are legally expected to deal—of course the agency will attend to them."
In other words, regulators have to at least take into account the comments that have facts and figures and clearly articulated legal arguments. Cable companies are the ones writing those, because it's their singular mission to push this rule through. They can spend an arm and a leg on their comments, while you can't.
That doesn't mean this is hopeless. Net neutrality is an unusual issue in that it pits two industries against each other—the ones that deliver the internet, and the ones that make their money on the web.
Most likely, the FCC will have to respond to net neutrality defenses written by groups that have lawyers, such as The Internet Association (which includes Reddit, Twitter, Yahoo, Amazon, eBay, and many other companies). In that way, the net neutrality fight is different than many regulatory battles—there are clearly two corporate sides to the battle, and both sides have lots of money and lots of skin in the game.
"It's unusual [for a regulatory proceeding] that you're seeing the big guns coming out in direct opposition. Usually, there are multiple interests competing, but a lot of times they're not diametrically opposed," Farina told me.
The sheer number of comments and the uniformity of their opposition to this rule probably won't count for much. Yes, the million-or-so comments the FCC has gotten regarding net neutrality are important, and impressive. But government agencies have ignored similarly huge comment drives in the past. The FCC got 1 million comments on a proposed rule to allow more consolidated media ownership, the US Forest Service got 1.2 million comments on a rule that would create "roadless areas," the Environmental Protection Agency got 2.1 million comments in support of a rule that would create new power plants. Some of those rules turned out how the public wanted them to, others didn't.
Nina Mendelson of University of Michigan's law school found that most public comments are acknowledged but not taken into account: "agency officials appear to be discounting these value-laden comments, even when they are numerous."
Back in 2002, the Interior Department received 360,000 comments on a rule that would allow snow mobiles in certain parts of certain national parks. More than four fifths of the comments wanted snowmobiles banned. Instead, the Interior Department allowed even more snowmobiles to operate than were initially proposed.
"It was not a vote," Steve Iobst, an assistant superintendent of Grand Teton National Park told the New York Times at the time. An industry lobbyist told the Times that "these huge hate-mail campaigns are not effective now and won't be in the future."
Soon enough, we'll know whether that applies to the net neutrality debate.