Federal Government

INCOMING! Commission's Net Neutrality Comment Conundrum

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As comments pile up in the Open Internet proceeding, straining the FCC’s systems, a post on the Commission’s blog got us thinking about transparency.

On July 14, 2014 – the day before the original deadline for initial comments in the Open Internet (a/k/a Net Neutrality) proceeding – in the spirit of transparency the FCC’s Chief Information Officer took to the Commission’s blog to tout the agency’s ability to track the numbers of comments flooding in over the transom. According to a couple of files linked in his post, the Commission had received nearly 170,000 Net Neutrality comments submitted electronically through ECFS (the FCC’s online filing system), and another 442,000 or so by email. Those numbers are a moving target, though, and the target is only moving up: according to a post on ArsTechnica, by 11:00 a.m. on July 15, the tally was up to about 670,000.

It will doubtless go well beyond that, once ECFS comes back to life. The ArsTechnica post indicates that ECFS had crashed; our own observations here in the CommLawBlog bunker lent credence to that report, although the FCC conceded only that the “overwhelming surge” in traffic has “ma[de] it difficult” for some folks to file. As a result, the deadline for filing Net Neutrality comments has been extended to “midnight Friday, July 18”. (BTW – we confirmed with the FCC that they mean 11:59 p.m. (ET) on July 18.)

Keeping track of the influx of comments is presumably useful at some level, and the FCC’s ability to do so – apparently even on an hour-by-hour basis – is to be commended. But that ability is of, at best, secondary interest. When Katrina struck New Orleans, local residents may have been interested in precisely how much water was coming over the levees, whether by the minute or the hour or the day. But they were certainly more interested in how that water, however much water there was, was going to be disposed of.

Which brings us to some back-of-the-hand calculations.

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Let’s assume, for round number purposes, that the FCC currently has received 650,000 Net Neutrality comments. (It’s an odds-on mortal lock that the number will soar well beyond that, but we’ll be conservative here.) Let’s also assume that it will take a reasonably diligent FCC staffmember, on average, at least five minutes to review each of those comments, assess the points being made, catalogue them in some manner for later retrieval and analysis, make whatever bureaucratic notations may be necessary or appropriate, etc. Again, we know that some comments – the really short ones, probably written WITH THE CAPS LOCK ON, possibly with expletives galore for emphasis – may take even less than five minutes to read, but they will still need to be processed somehow, which will take time. And we’re confident that there will be a large number of gazillion-page tomes that will take hours to fully digest. For our purposes here, we’re going to go with five minutes per as a relatively conservative estimate. [Note: If the FCC advises us that they expect to spend less than five minutes per comment, we’ll let you know.]

So, if one comment takes five minutes to process, the staffer should be able to process 12 in an hour. Working a 40-hour week, the staffer could process 480 in a week. Working a 52-week year (no vacations or holidays or sick days, thank you very much – after all, the future of the Internet is at stake here), the staffer should be able to knock out 24,960 in a year. At that rate, the staffer should have completed the initial review of the 650,000 comments in slightly over 26 years. (Feel free to check the math. There’s a reason this particular blogger didn’t pursue a career in the sciences.)

Of course, the work could be spread around, but even if the Commission were to detail 26 staffers to work on nothing but Net Neutrality comment review, it would still take a full year to weed through the comments already on file. (Reality check: The Commission’s urgent efforts to get the spectrum incentive auctions ready to roll by sometime in 2015 are already eating up a bunch of staff time across multiple bureaus, so it’s unclear whether there are 26 folks available to take this on in any event.) And, since the comments are still rolling in, and the reply comment period hasn’t even started, it’s likely that our 650,000 working estimate for total comments will turn out to be low by a long shot.

But let’s just say that some way, somehow, the initial review gets done. Then what? With all due respect, the staff members who perform the digesting and cataloguing of the comments are well down the decision-making food chain. The responsibility for resolving the essential regulatory issues here lies with the five Commissioners themselves. And before they can begin that chore, they will have to familiarize themselves with the record before the agency – i.e., the comments that have poured in. Even the most compact condensation of 650,000 comments should require a boatload of time to sift through.

Might the Commissioners maybe cut some corners and focus only on some comments to the exclusion of others? An inclination to find short cuts would be understandable, given the enormity of the project. But let’s not forget that, in reaching its final decision, the FCC must not only read, but is “obligate[d] . . . to respond to all significant comments” because “the opportunity to comment is meaningless unless the agency responds to significant points raised by the public”. (Those are the D.C. Circuit’s words, as quoted by U.S. Supreme Court Justice Stephen Breyer in 2009, with an added emphasis by us.) A failure to meet that obligation could lead to reversal on appeal – which could bring us all back to Square One a few years from now.

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The Commission is in a dilemma created by the confluence of several factors. The Administrative Procedure Act requires it to invite public comment and then consider the comments filed in response. Lots of people have developed an intense interest in this particular proceeding and have thus been inclined to take the FCC up on its invitation. And the Internet has simplified the mechanics of filing comments to the point that anyone can do it from the comfort of their homes – or from anywhere, on their phones.

The result? An overwhelming record whose size alone could threaten the FCC’s ability to reach a defensible resolution in a reasonable time frame.

While (as we noted at the top of this post) we admire “transparency” about the Commission’s ability to keep track of the numbers of comments arriving at its door, we would probably all be better served if the FCC shared with us instead its plans for dealing with those comments once they’re in the door. How will they be processed, by whom, on what schedule? The transparency of that end of things is far more important to the outcome than the raw hourly numbers of incoming comments. To review the substance of all those comments and confidently identify all the significant ones, and respond to those – not an easy chore when you’re dealing with mere hundreds of comments – is vastly more demanding when you’re dealing with hundreds of thousands. Ideally the Commission has a plan for that. We’d love to know what it is. Wouldn’t you?

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