FCC Comments Aren't 'Votes' And They Shouldn't Be, But That Doesn't Mean Public Opinion Isn't Useful And Important

from the public-comment dept

When the first analysis came out of the early batch of public comments on net neutrality, we pointed out the rather noteworthy fact that there were very few independent anti-net neutrality comments. Following the second round, we're likely to see similar results, though there was some ballot-box stuffing (which we'll get to in a minute). Still, Vox recently published a piece entitled: Why the FCC will probably ignore the public on network neutrality. The crux of the argument is that the comment effort is not the equivalent of a democratic vote, and that's exactly right:
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.
Indeed, this actually makes a lot of sense. The rulemaking process isn't supposed to be a democratic setup, nor could it work properly in that manner. And, yes, many of the comments being submitted are nonsensical and effectively useless. The staffers are exactly right to focus on the comments that are analytical and are supported by evidence and details (and an understanding of the law). And while some people get up in arms about this, let's just take the ballot-box stuffing by some anti-net neutrality folks to show how pointless thinking of this as a "vote" is.

Soon after the whole "Internet Slowdown Day" effort to get people to contact the FCC and Congress in favor of real net neutrality rules, a somewhat nutty extremist group called "American Commitment," run by a guy named Phil Kerpen, declared "victory," saying that despite all those sites (including ours) taking part in the effort, their own "Stop Internet Regulation" petition got more signatures. Except, their actual petition was nutty misleading alarmist bullshit, pretending to be about stopping "the full federal takeover... of the internet."
Of course the open internet rules have nothing to do with any sort of "federal takeover of the internet" at all. It's just about which rules certain parts of internet infrastructure will be regulated under to keep the internet free and open to competition (the kinds of things you'd think the supposedly "free market" American Commitment operation would appreciate.

Even more telling, the only way that American Commitment actually got about 800,000 "signatures" on its petition was to flat out lie and buy. Beyond the misleading rhetoric above, it appears that American Commitment bought a bunch of email lists of other conspiracy-minded folks and then peppered them with claims like the following about what the government was trying to do in passing net neutrality rules:
"Erase your internet freedoms, upend your right to privacy, censor the content you view on Internet, seize control of e-commerce, keep records of the sites you visit and when, track what you read and for how long and so much more!"
Except, um, no. Nothing in any of the rules would enable any of that even remotely. Indeed, as Jason Koebler at Vice notes in that link above, despite Kerpin's triumphant claims of "beating" the Internet Slowdown people, the press almost entirely ignored him (even the "right wing" press), because everyone knows his effort was a joke.
Kerpen's grassroots coalition of 808,363 petition signers came almost entirely through paid email advertisements sent out through popular conservative websites such as Town Hall, The Washington Times, Human Events, and Red State. Email blasts were sent to hundreds of thousands of people with subject lines that had nothing to do with net neutrality, such as "Only Days to Stop Obama's Takeover."

Kerpen played on the far right's fear of government and dislike of Obama to get hundreds of thousands of people to sign a series of petitions that have no information about the issue at hand and has no links to places to learn more about the issue. A Senatorial press office told me it hasn't received the petitions, which Kerpen said he had "hand delivered" before admitting that they could have been misplaced.
On top of that, Kerpen massively exaggerated his numbers, counting each "signature" as three "letters" since the petition was sent to every person's two Senators and then their House representative.

Koebler presents further evidence of what a joke the campaign was, noting that a report on the "most influential tweet" in favor of Kerpen's petition was this one, which got all of... one retweet.
Given all of that, it's quite likely that the FCC will treat those "signatures" with the amount of weight and respect they deserve: which is close to nothing at all. And, this isn't to single out one side in this debate. There are numerous comments that have been filed with the FCC (often in response to the John Oliver segment) which simply curse out Tom Wheeler. And those shouldn't be given much weight either.

However, all that said, this doesn't mean that more general comments aren't helpful. What this whole process has shown is that the American public does care about the internet, and wants it to be kept as open and free as possible for innovation to occur on the internet. The public's interest in the topic does matter in making it clear that this is an issue that people care about and that they won't be happy if anyone mucks that up. From that, the FCC should recognize that people are watching what they do and are concerned about the eventual outcomes, even if the vast majority of them may not understand the nuances behind things like Title II, Section 706, "commercially reasonable" and paid prioritization.

There are multiple issues at play here. Having 3.7 million comments filed with the FCC (the vast majority of them in favor of protecting openness on the internet) is an important statement about what the public really wants (an open internet). However, the FCC has a job to do in deciding (1) what the right solution is and (2) what's in its power and mandate to do (the problem with the past rule was it went outside of the FCC's powers under the statute). To actually get to that answer, the FCC is likely to rely mostly on its own experts, and use the very small number of comments that dug into the more detailed and nuanced analyses of the issues at play. And that's the way it should be.

None of this means the FCC will eventually come to the right solution -- in fact, there's a good chance it will mess things up, because the FCC is pretty good at that sort of thing. But it's wrong to argue that if that happens, it's because the FCC "ignored" everyone. The real situation is more complex.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: comments, fcc, net neutrality, open internet, petitions, phil kerpen, push poll, votes
Companies: american commitment

Reader Comments

Subscribe: RSS

View by: Thread

  • icon
    Ninja (profile), 9 Oct 2014 @ 11:05am

    But it's wrong to argue that if that happens, it's because the FCC "ignored" everyone.

    FCC: What? You mean you want fast lanes?!

    The Internet: No, you got it wrong!

    The money: Precisely.

    FCC: Okay then, you get fast/slow lanes. Case closed everybody is happy. *sound of high fives and money bills flying*

    I'd say that's what people fear.

    reply to this | link to this | view in chronology ]

  • icon
    fgoodwin (profile), 9 Oct 2014 @ 11:10am

    Splitting the baby


    For once, I think I agree with just about everything you wrote.

    One side or the other (or maybe both) will be pissed when the FCC releases its final NN decision, but like you said, it won't be because the pro-NN comments were ignored. By law (the APA) all relevant comments must be considered.

    It's too bad that so many of the pro-NN comments were devoid of facts, and heavy on vitriol. Simply relating the problems that users have with their ISPs is just one example of how citizens could submit facts instead of opinions.

    But it is so much easier to fire off a tirade without even reading the very document they are commenting on.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 10 Oct 2014 @ 11:12am

      Re: Splitting the baby

      "It's too bad that so many of the pro-NN comments were devoid of facts, and heavy on vitriol"

      I agree, but at least it's balanced by the fact that the anti-NN comments tended to be devoid of facts and heavy on scare-mongering as well.

      reply to this | link to this | view in chronology ]

  • icon
    Skeptical Cynic (profile), 9 Oct 2014 @ 11:16am

    It is not a democratic situation

    But it is a case of the FCC doing what it is suppose to do. Which is to make sure that the american people are served in the best manner first then how businesses can succeed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2014 @ 11:18am

    "The crux of the argument is that the comment effort is not the equivalent of a democratic vote, and that's exactly right:"

    Yeah but somehow the definition of "a democratic vote: has become "the guy/group with the most money gets his way".

    reply to this | link to this | view in chronology ]

  • icon
    DirkXXVI (profile), 9 Oct 2014 @ 12:30pm

    I'm just so happy that far right conservatives are able to overcome their hate for the liberal media and basically hand them (cable companies that own networks like MSNBC) a blank check to throttle or outright block anything they want on a whim. Especially in a market where most customers can best be described as members of a captive audience. That's really big of them.

    Maybe now we can finally rid the internet of pro-traditional marriage sites or better yet since it won't be illegal, pay ISP's to have users redirected to gay porn. With Net Neutrality dead the possibilities for trolling Neocon's literally become endless. We could even have sites like Drudge report be redirected to The New York Times.

    After all what are you going to do, switch to another ISP? Don't make me laugh.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2014 @ 3:22pm

    Remember Folks comments aren't votes , but $100,000 does equal 100,000 votes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2014 @ 11:59pm

    Publics opinion is all I want or need, not the opinion of a warped CAREER politician.Thankyou

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 12:23am

    Regardless of the overall outcome for net neutrality, if even one person was saved from paying for a service call to fix a broken dishwasher it'll all have been worth it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Oct 2014 @ 10:15am

    Something prefaced with "dear patriot" exposes its intention as the FUD it is without even reading further. Not to mention that the entire petition reads like it was written by a marketing intern, rather than by any activist worth her salt.

    reply to this | link to this | view in chronology ]

  • identicon
    Ashwin, 11 Sep 2017 @ 2:40am

    Mahjong online

    Personally i feel that this game is the awesome for the players who like to play card,this game gives the authority to download free and play free.visit http://mahjongfreegames.online/dark-dimensions this link and see the advantages and latest features.

    reply to this | link to this | view in chronology ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)


Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat

Warning: include(/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc): failed to open stream: No such file or directory in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8

Warning: include(): Failed opening '/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc' for inclusion (include_path='.:/usr/share/pear:/home/beta6/deploy/itasca_20201215-3691-c395:/home/beta6/deploy/itasca_20201215-3691-c395/..') in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.