Yesterday the Federal Communications Commission established America's strongest network neutrality rules yet. The document, which reportedly weighed in at more than 300 pages, will transform how the nation's broadband services are regulated.
But if you want to read it, you'll need to wait a few days. Or maybe weeks. That's ridiculous.
It's true, as the Washington Post's Brian Fung writes, that there's nothing unusual about the delay. Administrative agencies often keep drafts of their rules secret while they're working on them, and it's not uncommon for it to take a few weeks for rules to be published. The delay certainly isn't evidence that anything sinister is going on.
But the FCC's secretive approach during rule drafting forces media to report on summaries, spin, and snippets. The result is less accurate and less comprehensive coverage. Meanwhile, the lack of transparency gives disproportionate influence to big players who can leverage their connections to insiders to find out what's really going on.
The FCC isn't alone. It and other government agencies can and should be more transparent. Publishing draft rules before they're voted on, and publishing final rules as soon as they're approved, will make it easier for voters to understand and influence the process, for the media to provide accurate and comprehensive coverage. It will also curb the unfair advantages of special interests.
Our current rule-making process was designed in 1946
Modern administrative law has its roots in the 1946 Administrative Procedure Act, which established the process the FCC followed to put its network neutrality regulations into effect. The process started with the FCC publishing a notice of proposed rule-making, which in this case happened last May. Then, there was a mandatory public comment period, which generated more than 4 million responses.
FCC Chairman Tom Wheeler completed a draft of his proposed network neutrality rules three weeks ago and distributed them to other FCC commissioners. He announced the rules in a Wired op-ed and posted a 4-page summary to the FCC website. But he didn't release the actual language of his proposed regulation to the public. Eventually, the new rules will become public when they're published in the Federal Register. But that might not happen for a few more weeks.
This was considered a transparent process by the standards of 1946. But in the age of the internet, the public justifiably expects more from the government. And administrative agencies like the FCC have not been keeping up.
A big problem with the current approach is that it gives insiders unfair influence over the FCC's deliberations in the final days before the regulations are approved. As far as I know, no one outside of the FCC had access to full drafts of the final rule. Still, someone was feeding well-connected interest groups information about what the FCC was planning. For example, Google somehow got wind of a provision it thought would be counterproductive and sent the FCC a letter last Friday urging a change. Reuters reported on another last-minute lobbying blitz against a provision that many regarded as too vague.
In theory, the public was supposed to give the FCC this kind of feedback last year, during the official public comment period. But the FCC's plans have changed significantly since last May. Most of the language that sparked last-minute lobbying this month wasn't in the original proposal. So this kind of last-minute feedback is essential to helping the FCC avoid making a costly mistake.
The FCC could be a lot more transparent
But there's no good reason for these things to be linked. Wheeler could have posted the full text of his proposal to the FCC's website three weeks ago, and then posted periodic updates. Then anyone — not just deep-pocketed interest groups — could read the draft and submit feedback to the FCC. That kind of public scrutiny would lead to better rules that are less tilted toward the interests of insiders.
Nor is there any good reason to withhold the final text of the rule after the vote. Reportedly, a big reason for the delay is that the FCC's five commissioners are still working on their official public comments on the new regulations. We can expect the two Republican commissioners to make the case against the rules and the Democrats to make case for them. But the agency could easily release the text of the rule first, and these statements later.
Withholding the actual text puts journalists at the mercy of the FCC's PR operation for information about what the regulation does. There's intense public interest in the FCC's new rule on the day it's approved. But if the text isn't public, we can only repeat the summaries the FCC has provided us. That summary might be biased or leave out important details.
The FCC could learn a lot from the Supreme Court, which also publishes opinions making the case for and against the majority's decision. But the Supreme Court gets all of its opinions properly edited before the decision is released to the public. That means that the press and the public can read the full text of a Supreme Court opinion within minutes of when the court announces its decision. That allows the media to report on the court's full decision, instead of having to rely on summaries or leaks.
The basic problem here is that regulatory agencies haven't adjusted to the capabilities of the internet. Back in 1946, there was no easy way for agencies to make draft regulations widely available — agencies didn't have websites, after all — so the procedures Congress laid out didn't require it. But thanks to the internet, agencies can and should be more transparent and move faster.