Government

Net Neutrality Is Going To Be Saved By Trolling Commenters

It's ironic, but fake comments might end up saving the internet.

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If you’ve taken Admin Law, you know that the “notice and comment” period on executive agency rulemaking is a joke, in terms of actual influence, and a key stumbling block, in terms of court challenges.

For the uninitiated: before an executive agency radically “interprets” an act of Congress, it’s supposed to open up the process for comment. At that point, interested parties, usually lobbyists, sometimes citizens, are allowed to voice their concerns about a proposed rule.

The executive agencies never give a rat’s ass about these comments.

BUT LATER — when you challenge one of these rulings in court, claiming that the agency didn’t fully follow their comment procedure or allow it to go forward or, whatever really — the comments matter. I cannot emphasize this enough, messing with the notice and comment period is THE THING the kills these administrative laws.

And so, it would be with no little irony that the thing that will likely save net neutrality will be fake comments. The TROLLS HAVE COME TO SAVE US.

The FCC just voted to kill net neutrality. It was 3-2, along party lines. There was a brief delay when somebody apparently called in a bomb threat, but blowing up the internet went forward.

There’s no sense in rehashing the debate because there is no credible intellectual debate. The vast majority of Americans are in favor of keeping net neutrality, but wealthy Republican donors simply don’t care, and there are more Republicans than Americans on the FCC. Net neutrality was secured under the Obama administration. Trump hates Barack Obama. He’s the president now. The end.

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ANYWAY…

New York Attorney General Eric Schneiderman (among many many others) begged the FCC to delay the vote because his office uncovered a massive comments scam. From the NYAG office:

“Millions of fake comments have corrupted the FCC public process – including two million that stole the identities of real people, a crime under New York law,” said Attorney General Schneiderman. “Yet the FCC is moving full steam ahead with a vote based on this corrupted process, while refusing to cooperate with an investigation. As we’ve told the FCC: moving forward with this vote would make a mockery of our public comment process and reward those who perpetrated this fraud to advance their own hidden agenda. The FCC must postpone this vote and work with us to get to the bottom of what happened.”

If anybody in the Trump administration actually understood the law, they would have listened to Schneiderman and delayed the vote until this issue could be resolved. But, they’re the Trump administration, so they still think courts don’t really matter.

Some of the FCC commissioners, the Republican ones of course, are so sensitive to the notice and comment problem that they’re addressing it in their comments at the hearing. They’re saying the fake comments were a “legal nullity.” We’ll see.

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What happens next is that every state Attorney General with a clue (rhymes with “blue”) will sue the FCC, claiming the notice and comment period was completely wrong. They’ll apply for a temporary restraining order on implementation of the law, and I’d be shocked if a judge, even a Republican judge, didn’t give them one.

And while we can’t know all the procedural ins-and-outs, what we do know is that the Supreme Court is not exactly stacked with people who give a high degree of “deference” to agency rulemaking. Neil Gorsuch, you’ll remember, seems to depart with his predecessor Merrick Garland Antonin Scalia on the issue of Chevron deference.

Granted, the Roberts Court has already been the most pro-business Court in the history of the nation, so if there’s a way for the big service providers to make money by merely screwing over their consumers, net neutrality seems like a likely casualty. But we don’t yet know about Gorsuch, so there’s still hope.

Regardless, the bad comment system and attendant AG lawsuits will at least gum up the implementation process for a time.

And, you know, 2020 is just around the corner. If Republicans think they can hang onto the White House while pissing off everybody under 45, not just the brown ones, good luck.

UPDATE:

By our clock, it took Eric Schneiderman 36 seconds after the vote was taken to announce his intention to sue to save net neutrality:

A.G. Schneiderman Releases New Details On Investigation Into Fake Net Neutrality Comments [NYAG]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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