Analysis US watchdog the FCC formally approved new net neutrality rules this morning. But good luck if you want to know exactly how access to the internet for millions of Americans will be now be governed.
Despite getting the green light, the exact rules have not been revealed and will not be so for some unspecified time either. "We will publish the order on our website as soon as next two steps are completed," said FCC chairman Tom Wheeler when quizzed after the vote.
"First, we have to get the dissents in, and second have to look at those dissents - and we are required to be responsive to the dissents. Then we will put it on the web. And at that point also file it with the Federal Register." He refused to give a timeframe for that process.
So did the FCC's General Counsel, Jonathan Sallet. "This is not a 'secret plan'," he responded to one reporter who asked again why the FCC was making decisions on unpublished documents, "it's part of a process." He also referenced a judgment by a Washington DC court that the FCC was obliged to respond to dissents put forward by commissioners.
But, of course, that court decision does not preclude the FCC chairman from publishing the documents as they stand now. In fact, it is entirely within his power, and Wheeler could also have shown us the regulations when they were provided to the FCC's commissioners for the first time three weeks ago.
Denied
In fact, the chairs of both Congressional committees that deal with telecoms issues requested that the rules be put out for public review, as did two of Wheeler's four commissioners, who complained they wanted to publish the documents but were barred from doing so.
Pushed on the topic of publication a third time, Wheeler called the rules a "work in progress." "Why do we not release a rough draft? Because it's a rough draft; it's a work in progress. There's no difference in the result, just the way in which to go about it," he said.
That is seemingly true, with the report suddenly dropping 15 pages to 317 pages following a last-minute letter from Google.
Dissenting commissioner Ajit Pai complained that he could only refer to page counts when discussing changes made to the proposals during their development: "This again illustrates the absurdity of how much I can reveal without violating the rule against sharing non-public information.
"I will say what has been publicly reported is that in response to a last minute submission from a major California based company, an entire core part of the document was removed with respect to broadband subscriber access service."
Pai and fellow commissioner Michael O'Rielly also revealed that there had been a number of revised versions in the past 12 to 24 hours as changes were made all the way up to the vote.
It gets worse
But that's not all. Both commissioners expect changes to be made to the document after it has been formally approved by them, with the "OGC" – office of general counsel – given extraordinary leeway to edit and revise the rules even following formal approval.
That is problematic because "most of the specifics haven't been addressed. They're very vague. Intentionally vague," said O'Rielly. His criticisms appeared to be confirmed when reporters, who repeatedly asked for specifics on the plan from chairman Wheeler and general counsel Sallet, were told repeatedly that those details had not been decided yet.
It is likely that Sallet will start adding new text between now and when the rules are finally sent to the Federal Registry. And no one will know what has changed, with commissioner Pai and O'Rielly pointing out that they will have to keep a constant eye on the documents to see what has been tweaked.
"It will be interesting to see how you figure out how you can write stories about what has just been approved when you aren't allowed to see the details," Pai told reporters after the vote.
Same old
Incredibly, this is not anything new. An academic study of FCC documents going all the way back to 1934 dug into its baffling habit of delaying the publication of official orders long after they had been approved.
Published earlier this month and titled "Administrative Procedures, Bureaucracy, and Transparency: Why Does the FCC Vote on Secret Texts?" [PDF], the report's author Scott Wallsten found that dawdling between approval and publication had actually become the norm at the FCC.
"More controversial orders yield more dissent and longer delays," Wallsten notes, "implying either that commissioners engage in substantive negotiating following a vote or that the commission pays extra attention to the details of an order the more likely the commissioners believe it will be challenged in court."
The secrecy surrounding the net neutrality regulations is something Commissioner O'Rielly has been complaining about for some time, repeatedly pushing within the FCC for documents to be published ahead of meetings, but each time pushed back by the FCC's staff.
Denied
Back in August, O'Rielly, a new commissioner, argued that the rules that forbid publication of documents before a vote were leading to "routine confusion" and were a barrier that "can be extremely frustrating for all involved."
"At the very moment that I learn the particulars of an important rulemaking upon which I will spend the next few weeks in ex parte meetings listening to stakeholder concerns, I am not permitted to disclose any details of the draft text in order to extract more thoughtful responses," he noted.
In other words, he has to hold meetings to discuss upcoming rules but isn't allowed to tell anyone what is actually in the paperwork being discussed.
O'Rielly sought to change that situation and despite getting what he claimed was positive feedback, the commission's staff found procedural objections to making the documents available.
In a second post last month, O'Rielly noted: "The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or insurmountable."
He then went into some detail as to why he doesn't feel either legislation should block the provision of information and why he feels the current situation is unworkable.
And again
O'Rielly raised the issue again today after reporters pressed on why no one was allowed to see the net neutrality rules that had just been approved: "I've made a larger push that we make all items that are circulated - that are made available for open meetings - publicly available. We can put them on our website… I've highlighted the arguments that people respond to me with… the truth of the matter is, it's a resource management issue, and under the current rules, the chairman has the right to make those documents available if he so chooses. Here, he chose not to, and I suspect he's going to continue that course of action."
It's unclear whether Wheeler and the FCC's staff recognize the irony that while extending their reach over broadband access in order to protect a free and open internet they are at the same time running processes that go against the very ethos of the network they claim to be protecting.
Pai felt that this was one situation where the chairman's ability to forego secrecy should have been applied: "I would argue that if ever there a reason to depart from that practice, I would argue this is it. It's own proponents say this is unprecedented action. The American people should be able to see what is being decided."
Wheeler did allude to the impact that the spotlight of public attention had had on the FCC. "Let me start the process towards that vote," he noted as he opened his remarks, "by thanking the nearly four million people who participated in this proceeding. You told us you were concerned about the future of the internet, and your participation has made this the most open proceeding in FCC history. Not all of you agreed with each other and not all of you agreed with the action that we are going to take today. But you made our process, and thus our decision, stronger. We listened and we learned."
What Pai and O'Rielly would no doubt argue is that while Wheeler and the FCC's staff may have listened to those in favor of their rules, the dissenting voices – including those arguing that the FCC needs to bring itself into the modern internet era – have so far received much less of a hearing. ®
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