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Money quote: an FCC spokesperson said comments from the general public are “generally not substantive, so thus have no impact on a rulemaking.” There you have

Money quote: an FCC spokesperson said comments from the general public are “generally not substantive, so thus have no impact on a rulemaking.” There you have it. So the number of comments is useful only when it helps make whatever point they're trying to make.

rayiner 8y ago
Independent federal agencies are, by design not accountable to public opinion, except indirectly through the election of the President, who appoints commissioners. Agencies are designed to be guided by expert opinions and judgment. The purpose of APA comments, thefore, is not to poll the public. It is to ensure that the agency considers all the relevant “written data, views, or arguments.” 5 USC 553(c). Legally, a rule making cannot be challenged on the basis that it is contrary to the weight of public opinion. It can only be challenged on the basis that the order adopting the rule doesn’t adequately address the “data, views, and arguments” raised in the comments. https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1326&context=olr https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?articl.... Accordingly, a large number of comments that raise the same views cannot have any impact in the rule making. The soundbite you quoted, therefore, is a completely unremarkable statement about regulatory law. That also makes sense. Regulatory agencies micro-manage businesses to a greater degree than ordinary legislation, including managing prices. When you remove those things from the purview of the market and business judgment, you can’t subject it to the whims of the public. If you had a vote on it, electricity would be free and there would be no money to invest in power plants or the grid. (Now, spamming an agency website with fake comments is a highly problematic action from a systems integrity and computer security point of view, no doubt. That’s a separate issue from the agency’s rule making policy.)
- jkaplowitz 8y ago
  Everything you said makes sense and seems accurate, except for one important detail: while the agencies aren't required to consider or obey the weight of public opinion, on issues with significant public interest they ought to voluntarily consider public opinion (even if they choose to reject it). After all, they serve the public despite the indirect accountability, and often there is more than one path which the experts deem viable. Public preference can be an appropriate in choosing among the viable paths. In this situation, when the coordinated fake comments line up with the governing politicians' views, and when both run contrary to the weight of real comments from experts and non-experts alike, it casts doubt on the genuineness of the FCC's good faith in considering even the expert public comments, and therefore on the validity of the rulemaking overall.
  - rayiner 8y ago
    Agencies are required to exercise reasoned decision making. I’m not sure I’d agree that popularity is a “reasoned” basis for choosing one policy over another. Besides, the public does influence the agencies—by picking the President, who appoints Commissioners. Agencies are part of the executive. That’s who sets the broad regulatory agenda. I’m not sure it would be proper for agencies to end-run around that process and make policy based on public opinion directly.
    - jkaplowitz 8y ago
      Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can absolutely be an element of reasoned decision making, when the experts have validated multiple approaches as acceptable and the issue has as much direct impact on & interest for the public as net neutrality. Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. The independence of agencies like the FCC is meant to be independence from any individual President, so that the commissioners are less responsive to the whims of the politicians than the regular executive departments. This is why there are commissioners from both major parties, why their terms of office are longer than a presidential term of office, and why they can only be removed from office for cause rather than merely for making a decision the President didn't like. Your argument that they should defer to the wishes of the executive is exactly counter to the structure and purpose of how they're set up (even if I admit they're less independent in practice than in theory). As a point of comparison, regular executive departments are headed by a single political appointee of the president's party, who customarily offers to resign when a new party enters the White House, and who can be fired with no notice for any reason or no reason.
      - rayiner 8y ago
        > Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.
JustSomeNobody 8y ago
Isn’t the FCC supposed to be a consumer protection agency? Seems silly to disregard consumer concerns.
- jkaplowitz 8y ago
  The middle initial stands for Communications, not Consumer. It is theoretically meant to regulate shared communications resources, initially the radio waves but by extension also phones and the internet.
- rayiner 8y ago
  The FCC was not intended to be what we consider a “consumer protection agency” (an agency that one-sidedly advocates for consumer interests, like say the CFPB). The Communications Act of 1934 states that the FCC is created to regulate communications with the purpose of making available “rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, and for the purpose of securing a more effective execution of this policy by centralizing authority theretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication.” If you look at the historical context of the FCC, including the “several agencies” that the FCC replaces, the focus was on coordinating resource allocation. Granting spectrum licenses, granting permits to build infrastructure, etc. The AT&T monopoly exemplifies the sort of system the FCC was mandated to help create. It was a world class, gold-plated telephone network, available almost everywhere in the US. It wasn’t consumer friendly in many ways (it was expensive and restrictive), but it was certainly “rapid and efficient.”

rayiner 8y ago

Independent federal agencies are, by design not accountable to public opinion, except indirectly through the election of the President, who appoints commissioners. Agencies are designed to be guided by expert opinions and judgment. The purpose of APA comments, thefore, is not to poll the public. It is to ensure that the agency considers all the relevant “written data, views, or arguments.” 5 USC 553(c). Legally, a rule making cannot be challenged on the basis that it is contrary to the weight of public opinion. It can only be challenged on the basis that the order adopting the rule doesn’t adequately address the “data, views, and arguments” raised in the comments. https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1326&context=olr https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?articl.... Accordingly, a large number of comments that raise the same views cannot have any impact in the rule making. The soundbite you quoted, therefore, is a completely unremarkable statement about regulatory law. That also makes sense. Regulatory agencies micro-manage businesses to a greater degree than ordinary legislation, including managing prices. When you remove those things from the purview of the market and business judgment, you can’t subject it to the whims of the public. If you had a vote on it, electricity would be free and there would be no money to invest in power plants or the grid. (Now, spamming an agency website with fake comments is a highly problematic action from a systems integrity and computer security point of view, no doubt. That’s a separate issue from the agency’s rule making policy.)

jkaplowitz 8y ago
Everything you said makes sense and seems accurate, except for one important detail: while the agencies aren't required to consider or obey the weight of public opinion, on issues with significant public interest they ought to voluntarily consider public opinion (even if they choose to reject it). After all, they serve the public despite the indirect accountability, and often there is more than one path which the experts deem viable. Public preference can be an appropriate in choosing among the viable paths. In this situation, when the coordinated fake comments line up with the governing politicians' views, and when both run contrary to the weight of real comments from experts and non-experts alike, it casts doubt on the genuineness of the FCC's good faith in considering even the expert public comments, and therefore on the validity of the rulemaking overall.
- rayiner 8y ago
  Agencies are required to exercise reasoned decision making. I’m not sure I’d agree that popularity is a “reasoned” basis for choosing one policy over another. Besides, the public does influence the agencies—by picking the President, who appoints Commissioners. Agencies are part of the executive. That’s who sets the broad regulatory agenda. I’m not sure it would be proper for agencies to end-run around that process and make policy based on public opinion directly.
  - jkaplowitz 8y ago
    Popularity isn't always a reasoned basis for choosing one policy over another, no. But sometimes the priorities of the public as expressed through comment can absolutely be an element of reasoned decision making, when the experts have validated multiple approaches as acceptable and the issue has as much direct impact on & interest for the public as net neutrality. Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. The independence of agencies like the FCC is meant to be independence from any individual President, so that the commissioners are less responsive to the whims of the politicians than the regular executive departments. This is why there are commissioners from both major parties, why their terms of office are longer than a presidential term of office, and why they can only be removed from office for cause rather than merely for making a decision the President didn't like. Your argument that they should defer to the wishes of the executive is exactly counter to the structure and purpose of how they're set up (even if I admit they're less independent in practice than in theory). As a point of comparison, regular executive departments are headed by a single political appointee of the president's party, who customarily offers to resign when a new party enters the White House, and who can be fired with no notice for any reason or no reason.
    - rayiner 8y ago
      > Phrased another way: if the experts say "doing A will work but have tradeoff B, while doing C will work but have tradeoff D", it's useful to know whether the country prefers B or D so that the commissioner can pick A or C accordingly. I don’t see how that’s a reasoned basis for picking one versus the other. If a court did that, would you say that was a reasoned decision? (“We have these two competing interpretations of the 14th amendment. The majority of the public opposes interracial marriage, so we will pick the interpretation that allows states to ban it.”) As to your other point, independent agencies are set up so that the President can’t micromanage specific policies. But the heads are nominated by the president precisely so the executive can set the overall regulatory agenda and philosophies. Remember the context in which the APA was created. The government regulated things like what routes freight trucks could run and the prices. You didn’t want direct executive control over those things. But broad agendas, such as ensuring more freight service to the Midwest? That was squarely within the administration’s power to influence the agency.

JustSomeNobody 8y ago

Isn’t the FCC supposed to be a consumer protection agency? Seems silly to disregard consumer concerns.

jkaplowitz 8y ago
The middle initial stands for Communications, not Consumer. It is theoretically meant to regulate shared communications resources, initially the radio waves but by extension also phones and the internet.
rayiner 8y ago
The FCC was not intended to be what we consider a “consumer protection agency” (an agency that one-sidedly advocates for consumer interests, like say the CFPB). The Communications Act of 1934 states that the FCC is created to regulate communications with the purpose of making available “rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, and for the purpose of securing a more effective execution of this policy by centralizing authority theretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication.” If you look at the historical context of the FCC, including the “several agencies” that the FCC replaces, the focus was on coordinating resource allocation. Granting spectrum licenses, granting permits to build infrastructure, etc. The AT&T monopoly exemplifies the sort of system the FCC was mandated to help create. It was a world class, gold-plated telephone network, available almost everywhere in the US. It wasn’t consumer friendly in many ways (it was expensive and restrictive), but it was certainly “rapid and efficient.”