The FCC voted to adopt its new Net Neutrality rules two weeks ago, and finally released the text on March 12th. But, why did it take so long? Other than correcting typos, shouldn’t an order be quickly made public once the Commission votes to approve it? 

That would seem only logical, and yet a tremendous number of significant changes to an order are often made after Commission approval but before the actual text is released. These changes are made by the FCC staff to respond to the criticisms made either by dissenting commissioners or unhappy companies in ex parte meetings or letters. The Commission goal is to make an order as fool proof as possible to withstand possible legal appeals. 

For some unknown reason, however, the commissioners who dissent to the original order have no opportunity to voice their opinion about these post-vote changes. This seems patently unfair to both the dissenting commissioners and a public who may be faced with a written order that may differ appreciably from the one that was voted on. The Net Neutrality Order is an example of this, as the 311 page Order includes numerous responses to the dissenting arguments made by the two Republican commissioners.

In his March 9, 2015 blog item Commissioner O’Rielly makes a strong case why this system is flawed:

The process for finalizing and releasing an item ostensibly starts by granting the relevant Bureau or Office “editorial privileges” during the meeting…One might assume, based on the name, that the scope of “editorial privileges,” if they did exist, would be limited to non-substantive edits, such as correcting typos and updating cross-references in footnotes…At the Commission, however, the Bureaus or Offices often do much more substantial editing, including adding substantive and significant rebuttals to Commissioners’ dissents and providing sometimes lengthy responses to ex parte arguments that had not been incorporated into the draft prior to the vote. I do not believe that such substantive changes should be made under the guise of “editorial privileges,” especially since such a process is make-believe. It should be the Commissioners who propose substantive changes, not the staff…I recognize that the Commission must respond to all arguments in the record and has argued that this includes those made by dissenting Commissioners. But the fact that significant editing must occur after the fact is simply proof that there is insufficient engagement with all of the Commissioner offices in advance of a vote…Staff should put their best foot forward, and I always endeavor to do the same. The cycle that I’ve witnessed of revising drafts to respond to statements and revising statements to respond to drafts, well after a vote has already taken place, is a sign of a broken system…Making other substantive changes after the vote—for example, to further respond to other arguments in the record—is problematic as well.  If the item is not fully baked in time for the vote, then the Commission should simply delay the vote by a month or two. There is no justification for asking Commissioners to vote on an unfinished product when FCC leadership sets its own agenda…Moreover, when changes are made after the vote, dissenting Commissioners do not even get to vote on them. Let me repeat that: no matter what the changes are and regardless of whether I would agree with them or not, by voting to dissent at a meeting, I immediately lose all rights to vote on subsequent changes. While I can live with this, is it the best way to get the best document?

The just released Net Neutrality Order has been significantly revised in order for the FCC staff and the three Democratic commissioners to respond to the scathing arguments against adoption of Title II made in the dissents of Republican commissioners O’Rielly and Pai. These revisions will ensure that the Order makes the strongest legal arguments defending Title II when the inevitable court challenges are made. But why are these revisions needed? Shouldn’t the best arguments for Title II have already been included in original Order? These arguments for or against Title II are not new, and have been discussed in many articles and ex parte meetings and letters. Why weren’t the strongest arguments for Title II presented to the public and voted on originally? There really is no good answer.

The current FCC system is clearly not transparent at a time when Commission decisions are becoming more and more politically motivated and its very independence is being challenged. It would certainly improve the credibility of the Commission to adopt a process which made drafts of orders publicly available before a vote to allow all sides a chance to present their best arguments to the public before an order is adopted. Moreover, dissenting commissioners should have an opportunity to comment on any final order if that final order includes significant changes. The current process, which shuts out the public and dissenting commissioners, is hurting the agency and should be scrapped as soon as possible. 

By Andrew Registky, CCMI