Roughly 22 million people submitted comments during the Federal Communications Commission’s net neutrality regulatory proceedings. Though there was widespread fraud in the process (many dead people filed anti-net-neutrality comments), the vast majority of them favored the rules that protected the free and open internet. Thursday, the FCC released its final rule repealing these protections: A grand total of zero consumer comments were cited.
This isn’t a huge surprise considering that late last year the FCC said it would only consider comments that made “serious legal arguments,” but it’s worth considering that most organizations capable of making the type of argument that the FCC considered are telecom companies themselves.
In a forceful nine-page dissent, Mignon Clyburn, one of two Democratic commissioners who voted to retain the previous rules, called Ajit Pai’s new regulations a “fiercely spun, legally lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order.”
“The public can plainly see that a soon-to-be-toothless FCC is handing the keys to the internet over to a handful of multi-billion dollar corporations,” she continued [emphasis hers]. “Despite the millions of comments, letters, and calls received, this Order cites, not even one consumer comment. That speaks volumes about the direction the FCC is heading. That speaks volumes about who is being heard at the FCC.”
During the net neutrality fight in 2014, I called up several regulatory law professors to talk to them about the importance of the notice of proposed rule making period during federal regulatory proceedings (the public comment period). Those professors told me that regulators like the FCC often—but not always—throw out consumer comments and side with big corporations, who have the money, manpower, interest, and legal clout to write substantial comments that are often hundreds of pages long.
"Typically, there are a score or so of lengthy comments that include extensive data, analysis, and arguments. Courts require agencies to respond to comments of that type, and they sometimes persuade an agency to take an action that differs from its proposal," Richard Pierce, a law professor at George Washington University’s law school, told me at the time. "Those comments invariably come from companies with hundreds of millions or billions of dollars at stake or the lawyers and trade associations that represent them. Those are the only comments that have any chance of persuading an agency."
But the 2014 net neutrality proceedings were not typical: The sheer ferocity and quantity of public backlash led the FCC to reverse course and protect net neutrality. But the current Republican-led FCC could not be swayed, and so we are left with a regulation that was written by large companies, for large companies.