FCC Net Neutrality Order -- Quick Turnaround for an Agency, Slow for Internet Time

[Commentary] The Federal Communications Commission has just released its Open Internet (also known as Net Neutrality) report and order. I have been serving as a consultant to the FCC in this proceeding and worked on the order, so I will leave most of the commentary to others. But I do want to note that this report and order was issued a bit less than 14 months after the DC Circuit vacated portions of the previous Open Internet order. For an Internet content provider, that must seem like a ridiculously long time -- it may have revamped its offerings thrice in the last 14 months. But for an administrative agency, 14 months from start to finish in a major and complex proceeding -- the order is more than 280 pages long -- is pretty quick.

If that sounds strange to you, you can thank the Administrative Procedure Act, as interpreted by federal courts (in particular the DC Circuit). Judicial interpretations effectively require a ton of agency process, which means that issuing a rulemaking takes a very long time. That may or may not be a good thing (surprisingly enough, those who want a given regulation bemoan the lengthy process, and those who don’t want a given regulation applaud it). But it does mean that completing a major regulation in less than about 18 months is no easy feat, to which the agency has to devote a lot of resources.

[Stuart Benjamin is the Douglas B. Maggs Professor of Law, Associate Dean for Research, and co-director of the Center for Innovation Policy at Duke Law School]