FCC ignored your net neutrality comment unless you made ‘serious’ legal argument | Hacker News Reader

FCC ignored your net neutrality comment unless you made ‘serious’ legal argument

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117 pointstony10150 comments

This isn’t a surprise: comments are meant to ensure that rule-making agencies consider relevant information before making a final decision; they aren’t an opinion poll.

See the Administrative Procedure Act, 5 U.S.C. § 553(c):

After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.

Are you suggesting that only legal arguments or facts are relevant?

So an actual analysis (which would necessarily include predictions that are not certain) of the impact of a decision is irrelevant?

> So an actual analysis (which would necessarily include predictions that are not certain) of the impact of a decision is irrelevant?

Political appointees are entirely within their power to ignore such comments.

Are you sure? To change or reverse a rule within the government pretty much every agency has to take into account public comments for a period of time before the change.

They are not within their power to ignore any comments. They don't have to agree with any of the comments or reach the same conclusion that any of the comments argues for, but they are required by law to take all comments into consideration.

I’m suggesting only that form-letter comments or statements of support or opposition, unaccompanied by substantive facts, analysis, or argument, don’t do much to develop the administrative record, which is the point of taking public comment in rulemaking proceedings.

Agencies must consider the comments, but as 'JumpCrisscross points out, they don’t have to accept the commenters’ views. The outcome is determined not by submitting the most or best comments, but by electing Senators and Representatives to enact statutes defining agencies’ authority and responsibilities, and by electing a President to appoint their officials.

If you’re new to administrative procedure, you might find it interesting to read though the entire dockets in some less-notable proceedings, to get an idea of how it usually works: an agency issues a notice of proposed rulemaking; interested parties make comments (and sometimes reply comments) with their views, data, analyses, and legal arguments; and then the agency issues a final rule, usually explaining how they considered and accepted or rejected the commenters’ positions.

It’s rare for comments to cause a proposed rule to be abandoned entirely, but they often influence the myriad details—definitions, exceptions, compliance deadlines, technical specifications—that make administrative regulations a practical tool of representative government.

Kind of makes actual democracy obsolete I suppose; we seemingly now require technocratic governance and do not require attention towards other public sentiment outside of technical/legal analysis. I get this perspective, but I think it's very exclusionary and dismissive.

Limiting input to that which addresses procedural questions or point-of-order effectively narrows conversation so that other perspectives outside of that window is made irrelevant.

Effectively pushing the public out of policymaking. (Good riddance to all that white noise!)

I mean, there's a reason the US is a republic and not a democracy. Very often the public opinion is just white noise. As the parent comment said, if you don't like the rules, you're supposed to elect new representatives.

An actual analysis, what exactly do you mean?

Current FCC plans run afoul of anti-trust law since they would allow monopolistic ISPs who own the physical network and services like video, to harm competitors (which provide over the top services that have to go through the above physical network) by using data caps, interconnection blocking and other anti-competitive approaches. How is that not a serious legal argument?

One answer might be that it's a serious legal argument not under the FCC's purview. FCC has an interest in keeping communications media from discriminating, but anti-competitive behavior and many other aspects of what we think of as net neutrality fall under FTC instead. It was always a bit of a stretch for FCC to be taking the lead on this.

It might even be better to let FTC lead on this, because they have authority FCC does not to regulate parties other than the connectivity providers. For example, they can forbid Google from using their market position in other areas to gain a competitive advantage with their own connectivity services. They can keep a close eye on Netflix's attempts to compete with or blackmail providers over CDNs. That might be real network neutrality, not the one-sided vision heavily promoted by content providers.

Can you show an instance where the FTC has actually done this in practice? Currently, Joseph Simons, a long-time corporate anti-trust lawyer heads the FTC. We can expect a light touch from them for the time being. Removing a protection that has been respected either formally or informally since the inception or Arpanet would radically change the face of the internet regardless of how you slice it. An ounce of prevention is worth a pound of cure. Preventing misbehavior by regulating the industry saves both time and energy on the parts of consumers as well as corporations.

The problem with FTC is that they have an awful track record of handling such issues. FCC's NN rules while being incomplete actually managed to fix real abuse such as interconnection slowdown by Verizon and others.

Pushing it to FTC would simply let this whole thing rot away, while following a formality. The problem of course is simply the fact that whole anti-trust regulation in US is messed up.

If true this might inform big tech's position with respect to net neutrality. It seemed a bit off that the FBs, Googs, and other big user facing tech cos would want the FCC and not the FTC in charge.

I think the reason is dysfunction of FTC. They claim they handle such cases on individual basis instead of establishing clear rules. It doesn't sound like an efficient approach to me.

The FCC says that they will allow the FTC to crack down on any anti-competitive practices. Now we need to hold them to that.

That's their sneaky excuse for "nothing will be done to handle that, prepare for monopolistic dystopia, folks".

The anti-trust behavior itself would run foul of laws, not the FCC plans.

This is really the fundamental point of Pai's argument, at least so far as I can read it. Is that instead of creating an extensive set of 'preemptive' rules that are not necessarily forward looking. For throughout limited near future services like satellite or balloon internet, throttling/blocking/etc will almost certainly be necessary. The current rules, at least he ones written under Wheeler, had a completely undefined "reasonable network management" exception allowing companies to break any rule, but that's a somewhat uncomfortable clause to rely on when you're investing tens of billions of dollars.

So instead of writing hundreds of pages of static rules which can arguably interfere with competition or innovation, deal with bad behavior as it emerges through the proper channels. And in many cases that bad behavior would not be managed by the FCC - as you mention we already actually have pretty reasonable anti-trust law as well as consumer protections. And organizations like the EFF would certainly be on the forefront of making sure these protections are utilized to the max potential allowed by the law.

Since FCC facilitates that monopolistic behavior, there is a strong legal argument against it. That was the point.

Pai has no valid argument. He basically says: "We should let monopolists run amok by removing current rules. Get lost if you don't like it". That's because dealing with monopolistic abuse through "proper channels" produced close to zero results in the past.

And somehow EFF are rarely involved in anti-trust issues. I wonder why.

I used to work at a federal agency processing these comments. This practice is not new or unique to FCC. There is a segment of the population who respond to just about ever request for comment the federal government puts out. I think more should be done to cut down on bots. The legal argument thing seems a bit pompous. I've never heard that before and I've reviewed, and filed, a lot of comments.

Unfortunately the FCC's action was predetermined and the result long ago decided. Comments will not change that - BUT if you have filed a legal comment, you can used that to sue later.

How does one file a legal comment?

You file a comment but argue your point from a legal perspective. Rather than putting forth an opinion, show the FCC why their proposed rule making is against the law; their interpretation of the law is incorrect. Look at EFF's comment, or Googles.

Pick up your phone. Call the number on this page https://www.fcc.gov/about/contact. Put your phone on mute and speaker and do something while you’re on hold. Wait.

Talk to someone and calmly explain your views. If you are emotional, summarise the EFF’s in your own words https://act.eff.org/action/congress-don-t-sell-the-internet-.... Get confirmation that your name and views have been recorded. Now call your Congressmen and tell them the same thing, as well as that you called the FCC.

To me it is a utility argument: A wealthier household would receive "premium filtered water" through the plumbing while other homes that are paying the standard rate would be given filthy and untreated water through their plumbing. Does the water utility violate a law practicing this way? Because if it does, the same is true of Abolishing Net Neutrality.

It's actually worse than that. Cities have different water districts and often wealthier areas will receive better water than no-wealth areas. Instead of different prices, everyone pays the same but gets a different product.

The same is generally true for police, fire, and emergency services ("911 is a joke in your town").

You think Grosse Point, MI isn’t already getting better water than Flint?

(Context for our non-US readers at home: Grosse Point==wealthy Detroit suburb, Flint==nationally famous for lead-filled water.)

I don't understand. Aren't we commenting about what we (the public) believe should or should not be legal? In other words, isn't it about choosing new laws rather than interpreting legality of existing ones?

Actually, no. Laws are made by the Legislature, so communications directed to your legislators can express a view about laws you feel should be enacted, repealed or modified.

The FCC is a regulatory body, with certain authority and areas of concern. The rule making is delegated to the appointed members of the commission. Rules != Laws. If a rule breaks a law, you don’t have to take it to SCOTUS to overturn the rule; a suit in a Federal circuit or charges from law enforcement will usually do the trick.

All that said, the FCC is there to serve the people and should consider the impact rules will have on society and listen to all voices. They are not limited to accepting only legal input for their rule making processes.

Thanks, this helps clarify. It doesn't make the FCC comment much less bizarre, since aside from potential for violating an existing law, my comment seems to roughly go through with "rule" substituted in for "law".

Ignoring the specific issue in this case that the outcome appears to be pre-determined, it remains that the surface process being followed is standard for regulators.

Regulators hold public/industry consultations to gather evidence and arguments that need to be taken into account in coming to their final decision. They are not running popularity contests (which would be too easy to rig if that was the standard used). The arguments submitted are usually a mix of legal and economic (including models) based on data or clearly stated assumptions (ideally). For example, an industry stakeholder might make a legal argument that the regulator is making a decision beyond the remit of the legislation, or make an economic argument that if the proposed decision is adopted, then this will remove the infrastructure investment incentive for the stakeholder (including the data to substantiate this).

In making their final decision, the regulator should take into account all the arguments put forward, and respond to them in their final report. Submissions that are substantially the same (or sections within) will be grouped together and responded to as a single point. The regulator should explain why they reject or adopt each argument.

The criteria that a regulator uses to evaluate the different arguments and come to a final decision is set by the enabling legislation. I have not worked within the US legal framework, but I have both prepared submissions to and worked with numerous regulators in Asia and Europe. In most cases, the criteria is deals with the best interests of consumers with a consideration of both costs and benifits. Often a longer term view is required to be taken, which biases towards promoting investment in infrastructure over time rather than maximising short time utilisation of existing infrastructure.

This is changing of the goalposts. A standard procedure these days.

Every ISP is now legally liable for every posting made by their users. Including the White House ISP Trump uses to tweet from. So anything abusive, insulting, threatening, etc - they are legally liable for it. They are no longer common carriers like phone companies. If they transmit pornography to a minor, they are legally liable for it, not the site which hosts it. The loss of common carrier status can, and absolutely should, bring these companies to their knees.

Bust out the class action lawsuits.

Can you provide a source for this claim?

My assumption is that parent thinks this somehow makes ISPs a common carrier, and that means blah, blah, blah. I’d be supremely surprised if highly-paid corporate lawyers somehow overlooked this. “Where are all these class action suits coming from? What?! $1000/hour and you got pwned by some random guy on the Internet?”

Yeah, I don’t think so.

Here is my legal argument: I pay for bandwidth. The ISP has no right to what goes through.

It's an exchange of goods. Doing anything to impede speeds of specific websites is illegal.

Anything that congress says is legal is legal. When you vote, you vote for the people who make things legal. You voted to make this legal.

I think that people who really care about Internet quality are the tiny minority and being a minority means you don't have enough votes to elect even one member of Congress. So the net neutrality is effectively the minority's rights.

You have to convince the people that elected the current POTUS that they won't be able to look at porn, deer hunting, fishing, car, and all the other things they like for "free" anymore.

Online comments are like online petitions: ostensibly “listening” to keep the masses from calling/mailing their representatives or the FCC directly. Persuasion requires messages that are difficult/impossible to ignore: culturally and politically.

Moore’s mock funeral for an HMO patient denied a live-saving transplant worked because it was over-the-top and so widely covered.

The article says this:

> … the commission said it didn’t really care about the public’s opinion on net neutrality unless it was phrased in unique legal terms.

So the article title is incorrect. The point is that submissions to regulatory consolations have to be relevant. Repeating the same argument does not make that argument more relevant.

If (when?) net neutrality ends we can crowd fund ISPs to slow down the tubes coming out of our political establishments.

Why would Verizon or Comcast agree to do that? The ISPs are the one's pushing to have these kinds of consumer protections removed in the first place. They're not going to start a campaign of harassment against those who agree with them just because you made a kickstarter saying you'd get ISPs to agree to it.

According to the article, the FCC received 22 million comments. If they spent a modest 2 minutes per comment - that would be 83 man years of time to process the comments. They obviously need to filter it down. For a system with no meaningful requirements to comment or even proof of uniqueness, quantity says absolutely nothing and fraud is a given. Even if we were able to prove uniqueness -- how should informal internet petitions, which will almost certainly not be representative of any population, be viewed?

So it makes one kind of wonder, what would be a reasonable alternative? Without proposing any viable alternatives, this article just feels like ragebaiting.

I wonder how many comments they received with > n words, for, say, n = 10.

The simplest explanation is that Pai coordinates with the ISPs to stuff the comment boxes with spam so they would have a justification for ignoring them; courts have occasionally struck down rules because agencies didn’t properly consider public input.

That’s because the conclusion was foregone: Pai will do what his benefactors want then sail to a cushy consulting job as a reward for his work.

No, the simplest explanation is that the FCC just received a bunch of comments. I have no problem believing that -- I've seen quite a few Facebook and Reddit posts encouraging people to comment.

Once you start arguing that a conspiracy exists between the FCC and ISPs to game an online comment system, you're far beyond a simple explanation.

The problem with your theory is that the comment system was gamed. Numerous spam comments that are anti-Net Neutrality were made from people who either support Neutrality or are dead.

I would expect a government capable of launching nuclear warheads to any location on the planet and sending a man to the moon to also be capable of filtering out spam in a comment system. This is a 'solved' AI/NLP problem and lack of doing so is almost surely intentional as it allows them to muddy the waters even more.

It would be fewer than 22 million considering that a majority of those comments were duplicates from bots using citizen names from one of the many identity leaks.

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