Net Neutrality and Transparency in the Regulatory Process

[Commentary] Releasing the network neutrality draft order early had some unintended consequences. It created a flurry of activity when everybody with an opinion felt they had to re-litigate their arguments. Far too many chose it as an opportunity to hurl invectives at those with differing opinions, contributing to the downfall of productive debate. Despite the increasing vitriol during the weeks before the vote, releasing the draft order prior to the Federal Communications Commission’s vote is one key to making the FCC regulatory process more transparent.

A policy of releasing draft orders raises another, deeper, question: Does changing the process of releasing texts affect the process of designing regulations itself and, therefore, the rules and the effects of the rules? Think of it as the regulatory Heisenberg effect. Does the public’s ability to observe more of the regulatory process change the process itself? That question obviously cannot be answered after a single important order. It will take years before that hypothesis can be tested. Meanwhile, it remains clear that releasing the draft order was an important change and a key step towards improving transparency.