The Federal Communications Commission received more than 1 million public comments on the issue of net neutrality during a five-month commenting period that ended Friday.
It’s the biggest public response the FCC has ever gotten on a policy matter, and the second most commented-upon FCC issue, period. It ranks just behind the 1.4 million complaints received after Janet Jackson’s Super Bowl wardrobe malfunction, which isn’t a direct comparison since those were spontaneous comments unrelated to a rule-making matter.
The proposal would allow cable companies to charge content providers extra fees to deliver faster service.
“It’s great that these issues resonate with the broader public,” says Gigi Sohn, who heads public engagement for the FCC. “They want to be heard. And they want to participate.”
Now it’s the agency’s job to help cull and make sense of the 1,067,779 comments that came in over a 5-month period. The FCC says it’s using technological approaches and staff from all over the country to help summarize, highlight and analyze the messages for FCC commissioners, who won’t see the filings in full.
A record-setting number of Americans weighed in with their thoughts on this matter. But there’s one problem, according to George Washington University law professor Richard Pierce.
“The vast majority of the comments are utterly worthless,” Pierce says.
He reviewed academic research on previous rule-making matters, like banking reform.
“This has been studied quite a bit by some very good academics,” he says. And the studies show that rulemaking or policy making tends to be systemically biased to favor the industries that are affected by the regulation.
In a recent example, Pierce points to the work of Kimberly Krawiec. Krawiec read all of the comments that were submitted in the rulemaking that led to the Volcker rule — part of the Dodd-Frank Act’s banking reforms. She also reviewed the logs that described the meetings that agency decision makers had with parties who were interested in the outcome of that proceeding.
Krawiec found that, while proponents of strict regulation of financial institutions dominated the comment process numerically, their comments were useless to decision makers, because the vast majority of them were identical form letters without data or analysis.
The folks who do comment with the detail, data and analysis that can change minds? Deep-pocketed industries.
“Those comments that have some potential to influence are the very lengthy, very well-tailored comments that include a lot of discussion of legal issues, a lot of discussion of policy issues, lots of data, lots of analysis,” Pierce says. “Those are submitted exclusively by firms that have a large amount of money at stake in the rulemaking and the lawyers and trade associations that are represented by those firms.”
The FCC’s Gigi Sohn also cautions against using the high number of comments in this matter as a tea leaf, because of the unknown content in the comments.
“A lot of these comments are one paragraph, two paragraphs, they don’t have much substance beyond, ‘We want strong net neutrality, ‘ ” she says.
Former FCC commissioner Robert McDowell served from 2006 to 2013. During his time, one hot issue was media ownership — or how many radio and TV stations and newspapers could be owned by the same company. The high-profile issue sent the commission on the road for public hearings. Commissioners stayed up late to hear comments, but not all of it was useful, as he recalls.
“Sometimes people complained about things that had nothing to do with media and ownership. I heard things about global warming, the war in Iraq, and even the Peloponnesian War,” McDowell says.
Pierce, the law professor, suggests another way to weigh public opinion that is much less cumbersome than culling a million comments.
“Take a look at things like public opinion polls. A public opinion poll is a far more reliable indicator of what the public thinks about an issue like net neutrality than a bunch of postcards or one-liners,” he says.
Research shows public comments don’t affect outcomes. And history shows it, too. That Janet Jackson nip-slip of 2004? About 1.4 million complaints came in and the agency announced serious fines. But in the end, after a lot of legal back and forth, TV broadcaster CBS never paid a dime.