Volume of Net Neutrality FCC Comments Hard to Ignore, Advocate Says
The FCC continues to log thousands of brief net neutrality protests, with more than 10,000 posted on its Electronic Comment Filing System on Monday alone. Most of the comments are extremely brief. Some contain profanity, one commenter wrote only “FCC F*** YOU” several dozen times. Most touch on the importance of the Internet to innovation or rail against powerful ISPs. Net neutrality advocates like Columbia Law School professor Tim Wu see the comments as important as the FCC weighs its next steps under Chairman Tom Wheeler.
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"I believe that Internet companies should be reclassified as common carriers and regulated under Title II,” wrote Thomas Barry in a typical comment (http://bit.ly/1qiDb6A). “This is the only way to ensure a free and open internet. If the FCC does not change its position, I will begin protesting in person at FCC offices.” The comments in general don’t say who the filer is or where he or she lives.
The FCC says it has logged more than 72,000 filings just in the past 30 days, and more than 105,000 total in the net neutrality docket, 14-28. The FCC has logged similar numbers of comments in past dockets, with more than 100,000 weighing in on the original net neutrality rules in 2010 and tens of thousands expressing concerns about AT&T’s failed attempt to buy T-Mobile in 2011 or Comcast’s purchase of control of NBCUniversal the previous year.
"I think the comments, while not always perhaps fully reasoned, represent something very important,” said Wu, a key early proponent of net neutrality. “Most of all they put pressure on the chairman to prove that he means what he says about banning a fast lane. I think he knows he had the attention, certainly if not of the whole nation, a real portion of the public, and that creates a sense of real accountability.” Wu said it’s probably best not to expect too much lucidity from commenters. He noted that few supporters of the American Revolution likely could have been able to explain the Stamp Act, passage of which fueled anti-British fervor.
The sheer number of comments and the passion displayed has to register with the FCC and Congress, said Public Knowledge Senior Vice President Harold Feld. The FCC analyzes issues on the substantial level, but there is also a political calculus, Feld said. “What is the likely consequence of a decision? Does the FCC’s action have political support, or face political backlash?” he said. “All those who dislike the idea of politics intruding on substance should bear in mind that what we are talking about is a balance between the technocratic concept of an expert agency and the democratic ideal of public accountability.”
The number of comments is comparable only to the “public outrage” against relaxing the media ownership rules 10 years ago under former Chairman Michael Powell, where some 800,000 filed comments, Feld said. “While the FCC voted to relax the rules anyway, it had huge impact on Congress, which ultimately passed legislation reducing the national ownership cap from 45 percent to 39 percent.”
Decision-makers rarely read more than a few of the public comments, but “the number and intensity of them does matter to the commission,” said Andrew Schwartzman of the Institute for Public Representation at Georgetown University Law Center. The public reaction to the commission’s 2003 decision on broadcast ownership rules “unquestionably influenced the course of events,” as did the public response on network neutrality in 2008 when the commission held public hearings, he said.
An outpouring of comments “or, perhaps more accurately, the intense media coverage that likely correlates with that outpouring,” can have an effect, said Tech Freedom President Berin Szoka. In merger reviews the FCC has “essentially unbounded discretion,” but on net neutrality there is less room for protests to make a difference, he said. Tech Freedom will explain its comments to the FCC on why classifying broadband as a Title II service is not a “viable option,” Szoka said. “More importantly, I don’t think that any of the Democrat commissioners actually think it is,” he said.
"Going overboard” on a revised transparency rule “is the easy way for Wheeler to seem tough,” Szoka said. The FCC might want to impose tough nondiscrimination rules, but has to be worried about its order being overturned on review, he said. “I've heard speculation that Wheeler might write an aggressive rule here that goes so far as to be likely to be struck down -- but write it in such a way that even a loss here leaves the rest of the rule standing,” he said. (hbuskirk@warren-news.com)