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Why the FCC will probably ignore the public on network neutrality

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The flood of responses was "unprecedented."  Since the early 20th century, agencies like the Federal Communications Commission have asked the public for comments before making big decisions. But in the past few months, the Commission received a deluge for one particular proceeding that could change the Internet as we know it.

The decision in question is on the fate of network neutrality - the idea that Internet Service Providers and the government should treat all data and traffic on the Internet the same.

The question is — will the FCC tally but otherwise ignore citizens' concerns? Or will it engage with the public and address those worries head on?

If history is any indication, everyday citizens will likely continue to have weak influence at the agency. But understanding why citizens continue to have a weak influence points to a much larger tension between federal agencies and the public — and one that we must address if we want our agencies to help restore trust in government and strengthen their civic purpose.

It's been more than a decade since the last major round of public participation in FCC rulemaking peaked but failed to win over the agency during a five-year debate over media ownership rules. (Note: rulemakings differ from complaints, like the hundreds of thousands of Janet Jackson/Superbowl complaints invoked incorrectly by commentators comparing them to participation in the Open Internet proceeding.) The rules, some of which had been in place since the 1940s, restricted how much a single company could own in local markets and the national market. The idea here was to reduce consolidation, and thus the control that big media magnates could wield over the airwaves and the American public. Then, in 2002, following a court decision that allowed more consolidation in the cable market, the Commission launched the most comprehensive review of ownership rules in the history of the agency to determine whether broadcast markets needed to keep apace with cable.

During the ten months of the proceeding, and in a pre-social media era of email campaigns, citizens submitted more than half a million comments. Public interest organizations, like Free Press and Prometheus Radio Project, mobilized citizens to contribute comments to the rulemaking record. Together with Democratic Commissioners Michael Copps and Jonathan Adelstein, these groups organized nearly a dozen town hall meetings in which ordinary people could voice their concerns. Meanwhile, other groups like the National Rifle Association and MoveOn (strange bedfellows if there ever were any) galvanized their membership in separate letter-writing campaigns, generating a couple million postcards, letters, and emails to Commission staff opposing the rules.

The impact?

While public participation galvanized the public interest community and helped to turn Democrat Commissioners Adelstein and Copps into populist heroes, citizens largely failed to sway the three Republican commissioners who wanted to relax ownership rules. The Commission voted 3-2 to increase the number of television stations a single company could own, both locally and nationally; revised regulations governing common ownership of radio stations in local markets; and replaced two existing rules limiting common ownership (e.g., the newspaper/broadcast cross-ownership rule and the radio/television cross-ownership rule) with a single set of cross-media limits. The changes marked a radical re-rendering of the broadcast media marketplace, and paved the way for media conglomerates to expand their gatekeeping role when deciding which news to feature and which advertisements to carry, locally and nationally.

The public interest community derided the vote and called the process a sham. Then, the debate moved out of the agency and into the courts, and citizen input began to look even more ineffectual. A year following the FCC's decision, an appellate court decision in the Third Circuit rejected parts of the Commission's suite of deregulatory changes and also asked it to revise other parts of its decision. Though Prometheus, the lead complainant on the case, as well as other public interest organizations, credited public participation as a motivating factor, the court made no reference to the hundreds of thousands of citizen comments asking the Commission to preserve or strengthen ownership rules.

Four years later, and still in the glow of the appellate decision, this community mobilized again for a new proceeding on media ownership rules. Again, citizens flooded the Commission with comments, held town halls, and campaigned against media consolidation. The FCC also hosted a series of six public hearings.

Yet, after more than 165,000 comments in the rulemaking record, and hundreds of hearing statements and testimonies, citizens once again had only a modest impact on the final decision. By and large, the vote solidified the Commission's trend towards deregulation: though some rules remained untouched, the agency relaxed rules regarding the ability of newspaper and broadcast companies to consolidate.

So, what's the deal here? Why ask for public comment if only to give it short shrift?

The answer lies partly in the tension between our expectations of how such rulemaking proceedings will function, and how, in reality, they're actually designed to function. In the interviews I conducted for my dissertation, FCC commissioners and a handful of staffers (e.g., civil servants, as opposed to political appointees) explained that the rulemaking process does not function like a popular democracy. In other words, you can't expect that the comment you submit opposing a particular regulation will function like a vote. Rulemaking is more akin to a court proceeding. Changes require systematic, reliable evidence, not emotional expressions. And with the exception of Democrat Commissioners Copps and Adelstein, the people I spoke with at the FCC considered citizen input during the media ownership proceeding as emotional and superficial content.

One staffer explained why some comments in the record matter more than others, saying a lot of comments submitted by ordinary citizens are not "usually very deep or analytical or, you know, substantiated by evidence, documentary or otherwise. They're usually expressions of opinion." That means these kinds of comments are "not usually reviewed at a very high level, because they didn't need to be."

Or as another staffer said, "I find the whole rulemaking context almost hilarious in many instances, because you know you're reading something, and you know it's not true. And you're guessing, you know, the person is hallucinating." Ordinary comments were, in other words, prone to error and lacked truthfulness, in the eyes of many of the Commission's staff. They also represented one person's opinion or experience, whereas according to staff, comments submitted by legal or economic experts collated information in a more systematic way, and from a much broader population of consumers.

"There are limitations on the scope of the authority of the FCC to make certain changes in response to that public input," explained Commissioner Abernathy. The FCC, in other words, ought not to be swayed by popular opposition. "We really do have to be careful, I think, about following the law that's given to you... [A rule] cannot be based on the number of complaints."

Commissioners Copps and Adelstein have argued that labeling the input of all ordinary citizens as worthless and emotional is misguided. They claimed that the stories people revealed in comments and in hearing testimony during the media ownership proceedings spoke to the failings of a consolidated media marketplace. And they added that ordinary Americans had few opportunities to share their experiences and opinions in a frank manner. News coverage about media ownership happened infrequently and rarely addressed a general readership.

But Commissioners Copps and Adelstein were the exception. The other commissioners, like the career bureaucrats who spoke to me about the proceeding, viewed citizen stories as suspect, unverifiable, unsophisticated. And ultimately, that sentiment prevailed in the final rules voted upon by the Commission.

There's one way to get the Commission to pay attention to comments: become a lawyer, economist or researcher and meet the Commission's expectations for what reasoned input really means.

"Comments are going to be as good as the time and effort [commenters] put into it," one staffer explained to me.

In the wake of more than 3 million comments in the present open Internet proceeding-which at first blush appear overwhelmingly in favor of network neutrality-the current Commission is poised to make history in two ways: its decision on net neutrality, and its acknowledgment of public perspectives. It can continue to shrink the comments of ordinary Americans to a summary count and thank-you for their participation. Or, it can opt for a different path.

This doesn't mean it has to take all 3 million comments into consideration. But it could applaud the robust response, noting that it's relatively rare for ordinary Americans to speak up about free expression and corporate accountability in the Internet industry. And it could concede that personal experience can be substantive, too (which is same benefit of the doubt that regulators give to companies touting customer service reports or consumer feedback). That's a tremendous opportunity for the Commission - and one that could position it as a role model for other federal institutions: What if all agencies treated rulemaking as a genuine democratic process, that valued peoples' voice, history and context?

Seeta Peña Gangadharan is a senior research fellow at the New America Foundation's Open Technology Institute (OTI).

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