Here are the key facts.
Federal agencies can’t just overturn old regulations
The FCC’s vote on net neutrality is part of a larger Trump administration effort to repeal regulations issued during the Obama presidency. Even though President Trump has had some successes, it is hard to overturn a federal regulation. Most regulations cannot be nullified by diktat. Instead, the agency that issued the rule in the first place must essentially craft a new, contrary regulation. This repeal effort must be supported by analysis and — the flash point in the net neutrality debate — a call for public feedback.
Public participation in the rulemaking process dates back to the Administrative Procedure Act (APA) of 1946. Under the APA, federal agencies must give the public prior notice of their intention to issue a regulation. The Act also specifies that proposed rules must be followed by comment periods, which give interested parties an opportunity to offer feedback on agency plans. Although there are exceptions to these requirements (e.g., emergencies requiring immediate action), the notice and comment process has institutionalized a degree of transparency and participation in the making of regulations, thousands of which are issued every year by agencies from across the federal government.
A few rules get lots of feedback
The vast majority of proposed rules result in a modest number of public comments. On occasion, however, agencies find themselves on the receiving end of thousands or even millions of comments. In 2014, the Obama administration’s original net neutrality proposal generated an (at the time) unprecedented 3.7 million comments.
Such large comment volumes do not occur “organically.” Instead, they reflect the coordination of mass comment campaigns. Mass comment campaigns are sets of identical and near-duplicate comments submitted by like-minded organizations and individuals. Very often, advocacy groups coordinate mass comment campaigns. The Sierra Club and Natural Resources Defense Council, for example, have sponsored mass comment campaigns in response to regulations proposed by the Environmental Protection Agency. Any notable person, however, can provide the spark that ignites a mass comment campaign. The massive response to the initial net neutrality proposal was partially thanks to comedian John Oliver, who famously urged viewers of Last Week Tonight to “get out there and for once in your lives focus your indiscriminate rage in a useful direction.”
Mass comment campaigns have been around for decades. In the “old days” (before the proliferation of the Internet), mass comment campaigns involved letters and postcards sent through the mail. The Food and Drug Administration, for example, received more than 700,000 paper comments (again, a record at the time) on a Clinton-era proposal to regulate the sale and distribution of tobacco products.
Technology has helped open the floodgates
Information technology has transformed the notice and comment process. The Federal Register — the publication in which proposed rules appear — is available online, and much public commenting occurs through regulations.gov (a government-wide portal) as well as agency-specific websites. Such developments have led digital democrats to celebrate the “throwing open” of the doors of government.
Yet as is often the case in the world of politics, technology has been used in unexpected (and sometimes unwelcome) ways. Although big numbers may look good from a democratic perspective, agencies are not charged to make rules on the basis of “how loudly the crowd applauds.” The notice and comment process is not a plebiscite, but rather a forum for “reasoned deliberation.” This means that mass comment campaigns — which typically duplicate simple statements of support for or opposition to proposed rules — add little of the legal, economic, scientific and technical information that agencies are looking for in public comments.
The problem isn’t just that “weaponized” commenting creates lots of redundant comments. It is also that comments may be fake. Spambots— computer programs that harvest email addresses for the purpose of sending spam messages — submitted (perhaps) millions of comments on the net-neutrality repeal proposal. It is at best uncertain whether these comments count as expressions of citizen viewpoints. Such revelations have prompted an FCC Commissioner, members of Congress, and a number of state attorneys general to call for the postponement of the net neutrality vote. Schneiderman has argued that the bulk submission of fake comments— the vast majority of which articulate support for the repeal effort — constitutes “identity theft on a massive scale.” In response, Schneiderman has established a website enabling people to check if their names were attached to comments without permission.
This will probably lead to lawsuits
Although the FCC has agreed to assist with Schneiderman’s investigation into fake comments, Chairman Ajit Pai has made it clear that the repeal vote will go forward as scheduled. What are the implications of the agency moving forward in spite of the occurrence of large numbers of duplicate (and spambot) comments? From a pragmatic point of view, mass comment campaigns do not usually determine rulemaking outcomes. Indeed, the fact that the majority of FCC commissioners are Republican appointees (and not information generated in the public comment period) is the driving force behind the expected 3-to-2 vote in favor of the net neutrality repeal.
Looking forward, net neutrality advocates will certainly challenge the FCC’s decision in court. According to Evan Greer, campaign director of Fight for the Future (a digital rights organization), the occurrence of and FCC’s subsequent handling of fake comments “will absolutely show up” in such legal proceedings. This means that we won’t know the ultimate impact of fake mass comment campaigns for net neutrality, and for the notice and comment process in general, until well after the FCC’s decision day.
Steven J. Balla is Associate Professor of Political Science, Public Policy and Public Administration, and International Affairs at the George Washington University, where he is also a Senior Scholar at the Regulatory Studies Center.
This article is one in a series supported by the MacArthur Foundation Research Network on Opening Governance that seeks to work collaboratively to increase our understanding of how to design more effective and legitimate democratic institutions using new technologies and new methods. Neither the MacArthur Foundation nor the Network is responsible for the article’s specific content. Other posts in the series can be found here.