Next Step for FCC's Net Neutrality Comments Unclear

With nearly 10 million net neutrality docket comments before the FCC, it’s unclear what exactly the agency plans to do with them. Those on both sides of the debate agree the FCC should act quickly to toss junk comments, they said in interviews this week. Replies were due Monday night.

The FCC likely will follow what it did for analyzing comments for the 2015 open internet order, though it could expand its semantic analytical techniques to include topic modeling, said Will Rinehart, American Action Forum director-technology and innovation policy. Last time, he said, the agency largely focused on figuring out the sentiment of comments, with the assumption being the topic supported or not the draft order, Rinehart said. He said just in the couple of years since the open internet proceeding, there has been a huge expansion of the analytical techniques available for analyzing sentiment and comments, and the FCC might use the sentiment analysis model employed last time, married with new techniques such as latent topic modeling and neural networks. He said the open internet order proceeding analysis was largely done in-house, with help from some outside parties, and the agency should be able to do the same now.

The rudimentary analysis the agency did of comments received in its 2014 open internet proceeding likely used flawed methodology, American Commitment President Phil Kerpen said. He hopes to see a more rigorous sentiment analysis with the Restoring Internet Freedom proceeding -- one that would discount the fake and overseas comments. Gigi Sohn, a top aide to then-Chairman Tom Wheeler, said the agency hired consultants to analyze the 4 million-plus comments received in the 2014 proceeding. She said the agency's twin goals now need to be disregarding faked comments and then doing some analysis of those that remain for legal arguments or other substance. The FCC posted over 1.1 million comments as of late Tuesday, bringing the total to more than 9.72 million in docket 17-108. The comments showed a deep divide between net neutrality advocates on one side and telco and cable ISPs and allies on the other (see 1707180009).

The net neutrality comment flood affected other dockets, where apparently misfiled net neutrality comments are stacking up, attorneys who use the electronic comment filing system said. “It seems like every Media Bureau docket has a pile of net neutrality comments in it,” said Pillsbury Winthrop broadcast attorney Scott Flick. An electronic comment system that makes it easy for nonlawyers to file comments is also easier to abuse, he said. Public Knowledge Senior Vice President Harold Feld believes net neutrality comments in other dockets are mostly mistakes due the large number of people outside the telecom sphere who are interested in the issue. Nonlawyers and members of the public new to using ECFS are filing comments “all fired up,” Feld said.

The FCC's only legal obligation is receive comments and let the public participate, but isn't obligated to give them any weight, and almost surely won't read through them all, said National Legal and Policy Center (NLPC) President Peter Flaherty. He said a good-faith effort would include reading the more important ones from organizations that have an interest in the issue, but the public comment process in general "is looking increasingly quaint" due to efforts to game the system. NLPC said Monday an analysis of comments received during 10 days earlier this month found 1.3 million were addresses in France, Germany and Russia -- almost all of them from the Pornhub.com and Hurra.de email domains. The veracity of comments in the net neutrality proceeding comes up frequently (see 1705310019 and 1705250064).

The Electronic Frontier Foundation is concerned FCC Chairman Ajit Pai could largely disregard "on-the-ground" comments from small businesses and small ISPs, said legislative counsel Ernesto Falcon. He said a far bigger priority for the agency should be ensuring no comments are missed than policing the comments received. "The danger is more when their systems go down and legitimate comments are blocked," Falcon said. The legitimacy of comments in the current net neutrality proceeding is probably worse than it was in the 2014 proceeding, Kerpen said, adding that the agency may not have the tools needed to do a good job analyzing comments and the data around them.

'Weigh All Comments'

At the commissioners' July open meeting, Pai -- asked about the significance it would give the deluge of public comments -- said the number isn’t as important as the substantive ones and that the agency would “weigh all comments and make sure that we take a full view of the record and again make the appropriate judgment based on those facts and the law as it applies.” The agency didn't comment Tuesday. We filed a Freedom of Information Act request on any FCC analyses on public comments in the 2014 proceeding.

Saying he believes "the vast, vast majority of comments are altogether credible," former Commissioner Mike Copps emailed that public comments made a difference in proceedings when he was with the agency and should do so in the net neutrality proceeding since the regulator has an obligation to listen to public sentiment about the internet. While the FCC will focus on substantive comments, even form letters from consumers carry some significance, former Commissioner Rachelle Chong emailed. While consumers may not understand the technicalities of Communications Act Title II regulation, "What matters is that they are expressing they care deeply about the Internet at unprecedented levels," she said. "That's amazing."

A bigger issue than legitimacy of comments is the FCC not addressing or acknowledging issues with its comment system, emailed Evan Greer, Fight for the Future campaign director. "It's absurd that they are still moving forward with their unpopular plan to strip consumers of net neutrality protections when there are so many open questions about their failure to maintain a legitimate comment process."

It’s not clear if net neutrality comments filed in incorrect dockets will be considered alongside those filed correctly. The FCC has an obligation to consider all comments on the issue, but it would be practically difficult for the agency to sort through all the proceedings on ECFS for errant comments, Feld said. “This FCC in particular has made it clear they’re not interested in going the extra mile to facilitate public comment.”

The comments filed in the correct docket will affect the FCC position, Feld said, especially if they show a broad swath of “Main Street” opposition to reclassifying ISPs, from not just special interest groups “but the type of people who vote in mid-term elections.” He said the FCC likely will organize the comments by substantiveness, with brief comments for or against being tallied up and longer comments mined for useful anecdotes or ideas to suggest or support the agency’s eventual position. “Front-line” staffers likely will do this sort of work, Feld said, comparing them to prospectors panning for gold.