Huge Volume of Comments Send FCC Clear Message, Net Neutrality Advocates Say

"We're hoping commenters will put things on the record we haven’t heard before,” FCC Senior Counsel Gigi Sohn said in a Twitter discussion Monday. “Things have changed since 2010.” Sohn said the FCC is asking about far more than just the commission’s authority over net neutrality, but is probing regulation of fixed versus mobile, traffic exchange, and other issues as well. The net neutrality docket has not gotten the most comments of any in FCC history, Sohn said. That distinction belongs to fallout from the 2004 when Janet Jackson’s breast was briefly exposed during a Super Bowl halftime show. That incident brought in 1.4 million comments, Sohn said. “We're about half-way there."

The “sheer volume” of comments sends its own message, said Tim Wu, professor at Columbia Law School and an early advocate of net neutrality. “On some of the more nuanced questions, like whether net neutrality considerations properly include interconnection, it is interesting to see who lines up where.”

"There’s a lot of skepticism about the actual value of the comments,” said University of Nebraska College of Law professor Gus Hurwitz, who focuses on telecom and antitrust issues. Views are well understood and the NPRM laid out most of the issues, he said. From a legal perspective, the comments give parties the opportunity to “preserve, raise or frame issues for future legal challenges,” Hurwitz said. If a company may want to challenge the eventual order in court on any issue, “the best way to do that is to submit comments that raise the issue,” he said. The company can then go to court to argue the FCC “failed to address a major comment, therefore the final rule was arbitrary and capricious,” Hurwitz said.

Comments matter, said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. “The gross number of comments is a measure of public and industry concern,” he said. “It matters how major stakeholders line up, and whether their positions are flexible or hardline. The evidence adduced helps build the necessary factual record. So, too, the legal arguments often help the commission sharpen its own position.” Schwartzman said the federal rulemaking process created by the Administrative Procedure Act is widely viewed “as one of the great successes in the recent history of public policy administration.”

Arguments Repeat

The comments for the most part will repeat arguments already made many previous times, said Randolph May, president of the Free State Foundation. But it’s also the first time many parties will address Communications Act Title II and Section 706 authority “side-by-side” in formal comments, he said. “This is especially in regard to Section 706 authority, which can be implemented in a more or less regulatory way, or, I might say, a more or less harmful way.”

Much of what Free Press submits will be similar to what it filed in 2009 and 2010, said Policy Director Matt Wood. But the group will offer “a lot of new facts, analyses, and pieces of evidence about the actual impact of Title II on broadband investment,” Wood said. “It’s a new docket and a new record at the FCC. While the lines are already well drawn, and well understood, the agency certainly must be careful to review the arguments actually in the record before it when it’s time to make conclusions.”

Few of the comments will make much of a difference, said a former FCC legal adviser who has not been active in the proceeding. “The issues are clear, and 100,000 new comments from consumers, aside from the sheer tally itself, will have zero impact on the final order,” the lawyer said. “It’s likely that at least a draft outline of the order is already being discussed, if not already set in stone. The staff will focus on comments from the usual suspects, from AT&T and Comcast to Free Press and Public Knowledge. Those are the comments that are likely the most informed and ultimately carry the most political weight.”

Reclassification arguments will dominate filings Tuesday, predicted Paul Gallant, analyst at Guggenheim Securities, Monday in a research note. Wheeler “has expressed a preference for keeping broadband under Title 1, which is a key reason why we believe that is where the agency ultimately ends up in late 2014,” he wrote. “But Democratic Commissioners Jessica Rosenworcel and Mignon Clyburn have expressed some discomfort with paid prioritization. The challenge for Chairman Wheeler appears to be crafting a net neutrality regime that follows the D.C. Circuit’s directive to permit ISPs to strike some content-specific deals without opening the door so wide that Democratic Commissioners Rosenworcel or Clyburn decide they cannot support that policy.”

Early Comments Filed

The “commercially reasonable” standard proposed in the net neutrality rulemaking notice wouldn’t maintain an open Internet, wouldn’t mitigate ISP incentives to discriminate against and block content and would disrupt the delicate balance established by stakeholders, commented The Internet Association (http://bit.ly/1qYaLAF). IA said the commission’s proposals would be “difficult to enforce,” its multi-factor framework wouldn’t be focused on the goals of broadband deployment and adoption, and wouldn’t “provide sufficient business certainty for broadband Internet access providers or online applications and services.” The proposals could also “lead to overreaching regulatory intervention,” said the group, with members including Amazon, AOL eBay, Facebook, Google and Netflix. “Consumers and the online ecosystem would be far better served by clearer and more straightforward prohibitions against blocking and paid-prioritization.”

IA wants “a presumption that, absent congestion,” an ISP can’t have prioritized services. In a congested network, the “'reasonable network management'” provision affords sufficient flexibility to ISPs “to manage their networks and to provide consumers with the service that they choose,” said IA. The provision should be “narrowly tailored” to permit deviations from nondiscrimination and no-blocking rules, only if a network management problem cannot be addressed in “'application agnostic’ ways,” said IA. It sought the same nondiscrimination, no-blocking, and robust transparency rules for wireless and wireline ISPs, and opposed interconnection fees.

The open Internet has empowered citizens and local communities by increasing civic participation, facilitating learning, and strengthening neighborhood businesses, commented the National League of Cities and NATOA (http://bit.ly/TXS17n). “With the availability of the Internet, city and state governments can live stream council meetings for public viewing, publish text of resolutions and other official documents, and communicate with their constituents directly online.” That enables small firms to compete with big companies “on a level playing field,” and benefits students who can communicate with their teachers and with one another, said the groups. “The open Internet brings to communities both a stronger economy and a stronger democracy."

The Free State Foundation will warn the FCC that the rules face being overturned in court if the commission exceeds its statutory authority “by attempting to dictate the practices of broadband Internet service providers.” The FCC already saw the original net neutrality order rejected by the courts, the group said. “Especially with respect to the Commission’s alternative proposal to classify ISPs as common carriers under Title II of the Communications Act, it is unlikely, despite some claims to the contrary, that the Commission could effectuate such an about-face switcheroo without substantial risk of suffering yet another court defeat.”

NCTA offered a preview of its comments, in a blog post Monday (http://bit.ly/1qaOpOo). “Above all,” the group said, “the Commission must reject the calls of extreme voices that wrongly suggest that the only acceptable course for the Commission to take is to turn back the clock on progress by reclassifying broadband as a Title II common carrier service.” ,