September 17, 2014
After five months, the public comment period ended on Monday on the Federal Communications Commission’s (FCC) proposed rule on net neutrality. Earlier this year, the FCC’s previous rule on net neutrality was struck down by the D.C. Circuit Court of Appeals, prompting the commission to promulgate another proposed rule to replace it.
“Net neutrality” is, in the terms of the FCC’s previous rule, a prohibition against the “block[ing of] lawful content, applications, services, or non-harmful devices, subject to reasonable network management.” The commission’s new proposed rule actually would allow broadband providers to give Internet traffic priority to companies that were willing to pay for it.
Given that this proposal doesn’t really comport with the widely-held understanding of net neutrality, there was some public outcry over the rule. And by “some,” I mean that there were over 3.7 million comments submitted to the FCC – easily the most comments the commission has ever received on a single issue.
Granted, not all of the comments were in support of “net neutrality.” Conservative group American Commitment garnered more than 800,000 signatures to oppose what it called “a federal takeover of the Internet.”
Nevertheless, it seems that a majority of the comments were in support of net neutrality, rather than opposed to it. And, according to the Sunlight Foundation, an organization that advocates for government transparency, an automated analysis of the first 800,000 comments showed that two-thirds support reclassifying broadband providers from being “information services” to “telecommunications services.”
I’ve gone into some detail about what the change would entail in these two posts, but it basically just means that these providers would be held to the same regulatory standards as other public utilities. Clearly, these businesses wouldn’t want that, since there would be stricter controls on their pricing models. But doing so would eliminate any chance of a successful court challenge against FCC rules enforcing net neutrality.
So now the big question is, “What happens next?”
Well, for starters, the public comment process is not a ballot initiative – i.e. the side of the issue that receives the most “votes” doesn’t “win.” Instead, the comments are taken as part of the rulemaking record, along with “scientific data, expert opinions, and facts accumulated during the pre‐rule and proposed rule stages.” And the FCC “must base its reasoning and conclusions” on this record.
Admittedly, the commission is allowed quite a bit of discretion in its rule-making, so it’s perfectly conceivable that the FCC’s panel members may make a decision that is appealing enough to the major broadband providers such that these members will be ensured a cushy executive position within one of these corporations after their tenure with the FCC.
But there are several factors working against this outcome. First, there is more at stake politically than the careers of a few individuals after they leave the public sector; the massive response to the FCC’s proposed rule demonstrates that the public is paying attention to this issue, and there may be significant backlash if the FCC makes a decision that is in any way disagreeable to the public, there may be consequences in the midterm elections, which are less than two months away.
For this reason, the FCC may wait until after the elections are over to announce its final decision if a negative public reaction is feared.
Even if the FCC reaches such a decision (one that, presumably, wouldn’t be terribly friendly to net neutrality), a legal challenge to the rule may emerge. To successfully challenge the rule, a plaintiff would have to show that (1) that s/he or, more likely, the members of a particular group “have been, or will be, damaged or adversely affected” in some way by the rule and that (2) the rule was “arbitrary, capricious, or an abuse of discretion.”
If it turns out that the majority of the record-breaking number of comments were in support of reclassifying broadband providers as “telecommunications services,” and the commission continues with its previously proposed rule (or something largely resembling it) – effectively ignoring these comments – a successful legal challenge may be possible, if not likely.
For now, though, we just have to wait for the FCC to sift through the comments and make its final decision.