
FCC ignored your net neutrality comment unless you made ‘serious’ legal argument - tonyztan
https://www.theverge.com/2017/11/22/16689838/fcc-net-neutrality-comments-were-largely-ignored
======
wsh
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._

~~~
addicted
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?

~~~
JumpCrisscross
> _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.

~~~
yladiz
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.

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shmerl
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?

~~~
notacoward
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.

~~~
mc32
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.

~~~
shmerl
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.

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Overtonwindow
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.

~~~
craftyguy
How does one file a legal comment?

~~~
Overtonwindow
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.

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JumpCrisscross
Pick up your phone. Call the number on this page
[https://www.fcc.gov/about/contact](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-...](https://act.eff.org/action/congress-don-t-sell-the-internet-
out). 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.

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sova
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.

~~~
keebEz
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").

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bo1024
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?

~~~
CodeWriter23
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.

~~~
bo1024
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".

------
Frqy3
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.

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

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otakucode
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.

~~~
trendia
Can you provide a source for this claim?

~~~
mikestew
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.

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

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

~~~
blahblab
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.

~~~
codedokode
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.

~~~
xellisx
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.

------
dailyvijeos
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.

------
upofadown
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.

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

~~~
c3534l
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.

------
indubitable
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.

~~~
xenadu02
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.

~~~
twblalock
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.

~~~
failrate
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.

