The good news about the status of the proposal by Federal Communications Commission Chairman Tom Wheeler and his plans for allowing priority on the Internet is that it shows that he’s paying attention to the backlash from pretty much everywhere. The bad news is that it still seems that he’s rushing things.
When I suggested that Commissioner Jessica Rosenworcel was right in expressing concern about the short notice before the upcoming vote on a Notice of Proposed Rulemaking on the Chairman’s Open Internet plans, it wasn’t clear how important that might be.
But an announcement by the FCC that the chairman was now revising his Open Internet proposal to eliminate the so-called “Fast Lanes” for content providers and instead would allow them only for specific uses underscores the need to for the commission to take the time to study them before a vote.
Since then, the commission has made it clear that the agenda for the May 15 meeting is unchanged, and that the vote on the NPRM will take place as scheduled. In the meantime, Wheeler has circulated his proposed changes to the rest of the commission.
If it looks like things at the FCC aren’t progressing as they have in the past, you’d be right. This is the first time I can remember when the commissioners have aired their differences with the chairman publicly.
In addition to the concerns expressed by Rosenworcel, FCC Commissioner Ajit Pai has also said in a public statement that the vote should wait. Those are the two Democrats on the commission who would normally be expected to vote with Wheeler.
In Chairman Wheeler’s defense, an NPRM is just that—a notice of a proposed rule. The purpose of an NPRM is to get the proposed rule out in public so that it’s open to comment, so that it can be revised and so that the public can make suggested changes as part of the public comment process.
But of course, that’s not what an NPRM was previously at the FCC. The practice in the past was always that the NPRM was hashed out behind closed doors, and only after a consensus was reached among a majority of the members voting was it ever seen in public. What that meant was that the NPRM was a de facto rule, requiring only the formality of a comment period before it was cast in stone. Only occasionally would the public comments change things.
Wheeler’s Net Neutrality Proposal Brings Unfamiliar Disorder to FCC
But that appears to have changed. Now that the details of the NPRM are being leaked, the possible actions of the FCC are being discussed in public. The commissioners are expressing their thoughts, concerns and reservations. Then, something unprecedented happened. The details are changing as a response to public opinion outside of the sterile and usually pro forma comment period.
This apparent openness has given the impression that the FCC is in disarray. After all, some previous FCC chairs have been immune to public comment that came in outside of the formal comment channels. Now, the reaction of the public has had an immediate effect, and the proposals have changed even before they’ve been formalized.
This is new. Previously the FCC has been a staid agency with little transparency. Rules emerged only after months of closed-door meetings, opaque ex parte actions and unexplained decisions. However clumsily the proposal appears to have been handled, it would seem that the commission is moving into the sunshine.
While Chairman Wheeler hasn’t specifically said that there’s a change, this is one area where it would appear that his actions speak more loudly than his words. He has said what he plans to propose in public (more or less), and he’s said that he’s rethought his position.
He’s clearly inviting reaction, and he’s getting it. Already, hundreds of thousands of responses to the proposals have arrived at the FCC, phone lines have been jammed, and the Big Cable providers, including Comcast, Cox, Verizon, Time Warner and others, are already screaming that they’ll oppose the current round of changes.
Of course, there’s a problem with all of this expressed angst. Nobody has actually seen the proposals that the FCC would be voting on. Right now, all of the entrenched interests, the advocacy groups and the public are objecting to what they think might be in the proposal. But they haven’t seen the substance of what they are objecting to.
Any actual knowledge will have to wait until the time on May 15 (or later if the vote is delayed) when the contents of the NPRM are made public. Then, anyone who wishes can send their comments and feelings to the FCC at a special email address where they can share their feelings, alternate proposals, complaints and outright damnation for all to see.
And yes, with this apparent new attempt at openness, it would appear that Wheeler brought a messy process—even chaos—to the previously buttoned-up FCC. But sometimes democracy is messy. Sometimes it’s chaotic. I, for one, welcome it.