FCC Net Neutrality Document Posting Called Unusual, Unsound Practice

Lawmakers and groups critical of net neutrality have said the action amounts to a “document dump” preventing the public from commenting on all the materials before the commissioners vote. The timing of the release won’t likely be grounds to overturn the net neutrality order in court, said Administrative Procedure Act (APA) experts. But they said they wouldn’t recommend that any agency post items so close to a vote.

It’s unprecedented for the commission to disclose such a volume of information so soon before a vote, though there are no internal rules or federal law that bar such release, said former commissioners of both parties, current and former agency officials and communications lawyers involved in the proceeding. Some who reviewed the documents said the action makes the regulator seem to have something to hide, though all the information appears to have been public and it doesn’t appear that’s what the FCC meant to do. Chairman Julius Genachowski has been credited within and outside the FCC with sharing information with his colleagues, giving staff more leeway to make decisions and trying to make the agency more transparent. Some said the document release comes off as poorly thought out. A commission spokeswoman declined to comment.

Some other agencies don’t release documents so close to a vote by commissioners, without a chance for interested parties to make filings on them through a formal comment process, when staff gathers publicly available research to be used in the order to be decided. The FTC would notify the public of such information through references in the Federal Register notices that come out during a rulemaking, a spokesman said. The notices have footnotes when necessary to material that staff gather on their own for possible use in a rulemaking, he said. The Federal Election Commission puts any materials it relies on in making decisions on its website or in a rulemaking notice, though its staffers generally don’t do their own information-gathering in rulemakings, a spokeswoman said.

While the FCC’s information release is “unseemly, it’s not illegal,” said Mark Fowler, a Republican chairman in the 1980s who reviewed the material posted to the docket. “It’s coming a bit late, with a lot of stuff coming in, but it’s certainly permissible. … The FCC has the ability as a legal matter to rely on publicly available material. It doesn’t have to be in the record for them to cite when they issue an opinion.” Posting 3,000 pages “may be a bit of overkill, and it probably” came “a bit late,” he said. “At the end of the day, it’s a harmless error."

Some see nothing amiss with the release. It would be a waste of time for the commission to release information that’s already in the public domain, said Democrat Reed Hundt, who was Genachowski’s boss as FCC chairman in the 1990s. “It’s routine for FCC staff to place relevant materials into the docket of rulemaking proceedings,” a current commission official said. “These materials include documents already publicly available and other items like workshop transcripts.” Another FCC official noted that the regulator doesn’t have internal rules on what to do in such situations, but said there have been times when information -- though not this much -- has been released close to a vote. “I don’t think its unprecedented at all,” said an ex-agency official. “There have been cases going back to Computer I, II and III where there’s a lot of that kind of thing going on."

It’s “clearly not the best practice,” and it’s “odd,” said Harold Furchtgott-Roth, a Republican FCC member a decade ago. “The idea of staff researching a topic and having pulled together a bibliography of documents that they think are interesting and to share that with the public” is “helpful, but you think they would put that in the public record” by issuing a public notice with about 30 days for comment, he said. “It’s the timing” that’s strange, he said. Furchtgott-Roth can “see [the] point” of critics of the release, he said. “If I were involved, I'd be pretty incensed about it."

Nothing in the APA or recent court rulings on the law bars any agency from a release such as the FCC’s, said several administrative law experts who reviewed the net neutrality documents. A 1977 decision by the U.S. Appeals Court for the District of Columbia Circuit, which likely would review any challenge to a net neutrality order, did apply a standard that the commission may have violated, but later rulings including the Supreme Court’s Vermont Yankee decision have cut back on it, they said. “The FCC is doing a lot of things at the moment that are angering a lot of people, that are causing a lot of people to complain about the procedures” and the document release “is symptomatic of a much broader problem,” but it’s not barred under APA, said George Washington University Professor Richard Pierce. “It’s unlikely to be a winning issue” in the D.C. Circuit, he said of challenging the document release.

"Longstanding case law has held that information upon which an agency relies” and that’s in its files should be made public for comment on a proposed rule, said Professor William Funk of Lewis & Clark Law School. “Failure by an agency to make information available is not fatal, nevertheless, if the information or its equivalent was otherwise available to the public or if in fact the agency does not rely upon it. Certainly it is considered good agency practice to make all relevant information that is not confidential available for public inspection and comment. But not all ‘good practice’ is legally required."

"As a process matter, people sometimes have to really scramble to defend their interests when information is added late in the game,” said analyst Paul Gallant of MF Global. “But for better or worse, the system has worked this way for a long time.” The release is “hardly the biggest problem right now,” said Andrew Schwartzman, senior vice president of the Media Access Project, which wants stronger net neutrality rules than what’s in Genachowski’s draft. “This isn’t the first time something like this has happened. That said, it certainly doesn’t promote confidence in the process, but it is better than the alternative of leaving relevant material off the record."

Much of the data submitted was taken from other dockets, or otherwise could have been cited by the commission in the forthcoming order because it’s publicly available, said Legal Director Harold Feld of Public Knowledge, which also seeks stronger net neutrality rules. “We had similar things dumped in the record during the media ownership fight, including a bunch of last minute studies,” Feld said. “At the time, a number of us warned that what comes around in the political world goes around, and if this was how Republicans interpreted the rules as working, then so be it.” The FCC’s approach doesn’t offer “the openness and sunshine Genachowski promised when he arrived,” he said. “But it’s not a violation of law.”

"My reaction is more or less a shrug,” said Glen Robinson, a Democratic FCC member in the 1970s. “While the FCC hasn’t done this before” and he knows of no direct precedent in terms of the size of the document release, “that doesn’t imply there is something improper about it,” he said. “It might not be good practice in the sense of creating an appearance of something unusual. And if I ran the zoo, I would not have done this for just that reason. But it is simply ridiculous to think that the FCC has to identify in advance, say, an academic article on two-sided markets or another one on raising rival’s costs that its staff may find relevant to the proceeding. Agencies routinely cite relevant general literature that has not been made part of the formal record.”