Net neutrality rules are popular with Americans who use the Internet. When the Federal Communications Commission deliberated on possible net neutrality rules in 2014 and 2015, millions of comments poured in to support strict regulation of Internet service providers.
Public opinion helped push the FCC to adopt rules that prevent ISPs from blocking or throttling Internet content and from charging websites or other online services for priority treatment on the network.
Public opinion hasn’t changed much in the two-plus years that the rules have been on the books. The cable lobby surveyed registered voters this year and found that most of them continue to support bans on blocking, throttling, and paid prioritization. Multiple polls have found that net neutrality rules are popular with both Democratic and Republican voters.
It was thus no surprise to see a huge backlash to FCC Chairman Ajit Pai’s plan to eliminate the rules. While most of the 22 million public comments on the plan were spam and form letters, a study funded by the broadband industry encontró that 98.5 percent of unique comments supported the current rules.
But net neutrality rules have some vocal and influential opponents. The most prominent are Republican politicians and regulators, conservative think tanks, and the Internet service providers that have to follow the rules. Those are the voices that counted most in Pai’s decision to eliminate popular consumer protection regulations.
Pai’s full proposal is disponible aquí and is expected to be approved in a commission vote on December 14.
FCC official explains why comments can be dismissed
A senior FCC official spoke with reporters about Pai’s anti-net neutrality plan in a phone briefing yesterday and explained why the FCC is not swayed by public opinion on net neutrality.
The vast majority of comments consisted of form letters from both pro- and anti-net neutrality groups and generally did not introduce new facts into the record or make serious legal arguments, the official from Pai’s office said. In general, the comments stated opinions or made assertions and did not have much bearing on Pai’s decision, the official said. The official spoke with reporters on the condition that he not be named and that his comments can be paraphrased but not quoted directly.
The official noted that many of the comments are fraudulent. He said that there were 7.5 million identical comments that came from 45,000 unique names and addresses, apparently due to a scammer who repeatedly submitted the same comment under a series of different names.
The message from this FCC official seemed to be that a huge percentage of the comments can be safely ignored. But the docket is filled with these comments because the FCC took no significant steps to prevent fraud and did not delete even the most obviously fraudulent comments from the record.
Allowing the docket to be filled with junk made it easier for Pai’s office to argue that the comments should not be seen as a legitimate expression of public opinion.
Pai’s office has also refused to provide evidence for an investigation into fraudulent comments, New York State Attorney General Eric Schneiderman said yesterday. Schneiderman said that there was “a massive scheme that fraudulently used real Americans’ identities” in order to “drown out the views of real people and businesses.”
Pai likes public opinion—when it agrees with him
The FCC isn’t required to follow public opinion, but Pai favorably cites public opinion when it suits him.
On net neutrality, Pai and his staff have consistently said that they would consider the quality of the comments rather than the quantity on each side. Yet in another recent decision to eliminate a regulation, Pai took the opposite approach.
“The overwhelming majority of public input favored our proposal,” he said before a recent vote, while urging his fellow commissioners to eliminate a decades-old rule that necesario TV and radio stations to maintain studios in the local communities they serve.
FCC Commissioner Jessica Rosenworcel, a Democrat, urged the FCC to hold public hearings across the country before eliminating net neutrality rules. Hearings are necessary to get Americans’ opinions because of the spam bots, impersonation, and other problems marring the FCC’s docket, she argued.
“I’ve called for public hearings before any change is made to these rules, just as Republican and Democratic commissions have done in the past,” Rosenworcel said yesterday. “We should go directly to the American public to find out what they think about this proposal before any vote is taken to harm net neutrality.”
Comments that count more than others
The Pai staffer who spoke with reporters acknowledged that there were legitimate comments from both sides in the net neutrality docket. In Pai’s draft order, the FCC comprehensively addresses all the serious comments that made factual and legal arguments, the official said.
Pai’s order, not surprisingly, speaks favorably of research in the docket that supports his claim that broadband network investment fell as a result of net neutrality rules. The proposal then criticizes studies that found the opposite, saying they used methods that are “unlikely to yield reliable results” or have other problems.
Pai also was not swayed by the fact that ISPs themselves have told investors that the rules do not harm their network investments. That’s significant because publicly traded companies are required by law to give investors accurate financial information, including a description of risk factors involved in investing in the company.
Another expression of public opinion comes in the form of complaints filed by consumers against their Internet providers. Yet the FCC initially refused to release the text of tens of thousands of those complaints.
Consumer advocacy groups wanted more time to review those complaints in order to submit analyses into the net neutrality docket. But when the FCC finally released more of them, the big document release came just one day before the deadline for the public to comment on the anti-net neutrality plan.
Pai’s proposal says that the tens of thousands of complaints do not prove that the net neutrality rules solve any real problems. “The Commission takes consumer complaints seriously and finds them valuable in informing us about trends in the marketplace, but we reiterate that they are informal complaints that, in most instances, have not been verified,” the proposal said.
Like Rosenworcel, Democratic Commissioner Mignon Clyburn says that the opinion of Internet users should be taken more seriously by the commission.
Pai’s proposal, she dijo, “ignores thousands of consumer complaints and millions of individual comments that ask the FCC to save net neutrality and uphold the principles that all traffic should be created equal.”
This should make for a nice lawsuit. You can’t enact (or repeal) a rule without a genuine public comment period. If they keep being this shockingly dismissive of public comments in general, including an utter lack of attempt to distinguish real and fraudulent comments, they could see this rulemaking overturned.
The irony is that the GOP just spent the past decade using courts to aggressively thwart rulemaking. Time to use those precedents against them. This is more blatantly egregious abuse of process than any rulemaking under the Obama administration that was struck down.