Notice & Comment

Perspectives on the FCC’s Proposed Restoring Internet Freedom Order

The Free State Foundation has released a set of short, generally positive reactions to FCC Chairman Ajit Pai’s proposed Restoring Internet Freedom Order, which would undo the FCC’s net neutrality/open internet order. The contributors include Babette Boliek, Timothy Brennan, Michelle Connolly, Robert Crandall, Richard Epstein, Gus Hurwitz, Daniel Lyons, James Prieger, and Christopher Yoo.

I also contributed a short reaction, focusing on Chairman Pai’s decision to make the final text of the proposed order available before the FCC’s public meeting:

Last week Chairman Ajit Pai announced his intention to roll back the FCC’s 2015 Open Internet Order. I leave it to experts in the telecommunications field to debate the legal and policy merits of the proposed order. As a scholar of administrative law, however, I applaud Chairman Pai’s decision to make public the draft text of the Restoring Internet Freedom Order in advance of the FCC’s consideration at its next public meeting.

It is of vital importance to the administrative process that federal agencies provide advance publication of the text of proposed orders and other regulatory actions that they will consider at an agency meeting subject to the Sunshine Act. Unfortunately, at the FCC such transparency has been the exception, not the rule. The public generally has not received the text of proposed orders in advance. Instead, the public has had to divine the final text from the Commissioners’ prepared speeches and their interactions at the so-called Sunshine meeting. That is not the way to run a lawmaking system, much less a regulatory process that already suffers from democratic deficits.

Mine is not a minority view. For instance, the Administrative Conference of the United States has similarly criticized such lack of transparency. The Conference, on which I serve as a public member, is a public-private partnership that commissions research and makes recommendations to improve the federal administrative state. In 2014, the Conference, based on an extensive study of agency practices for holding Sunshine meetings, recommended that, “[e]xcept for documents that may be exempt from disclosure under the Freedom of Information Act, agencies should… post in advance all documents to be considered during the [Sunshine] meeting.”

Chairman Pai’s decision to embrace this best practice with respect to the Restoring Internet Freedom Order is a vital one. I applaud Chairman Pai’s decision earlier this year to make this practice the norm, as it increases transparency in the administrative process. In so doing, the agency better promotes the rule of law and increases the public’s confidence in the integrity of the agency’s decisionmaking process.

Definitely go check out the full set of reactions here. With everything else going on in the administrative law right now, the blog has not focused much on the FCC’s net neutrality debate. We’d welcome thoughtful guest posts on all sides of the issue, so if you’re interested please shoot me an email.

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