Technology Policy Institute

While unlikely to draw the level of attention given to abortion rights, the Affordable Care Act, and affirmative action, the status of the “Chevron doctrine” is, to many, a crucial consideration for and against the confirmation of Judge Brett Kavanaugh’s nomination to the Supreme Court. The Chevron doctrine gives regulatory agencies substantial discretion to decide what they can do under the laws that define their authority. Perhaps the most relevant Supreme Court Chevron-related opinion these days is National Cable Television Association v. Brand X, decided in 2005.

[Analysis] Criticisms of the 2017 Restoring Internet Freedom process apply also to the 2014 Open Internet process. A key difference between the comment process in 2017 compared to 2014 is that form letters became more sophisticated and more difficult to identify. In the future, bad actors are likely to continue improving their ability to make form letters appear unique, hide their origins, or simply make the comment process unmanageable.

[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.

By the time the Federal Communications Commission’s ferociously controversial net neutrality draft Order was released on November 22, 2017, more than 22 million comments were submitted to the FCC through its new application programming interface (API). This avalanche of public input is impossible to navigate and interpret using human labor alone. Machine learning tools are uniquely suited to navigating and interpreting such a large amount of information.

[Commentary] The Federal Communications Commission is expected to release its draft Network Neutrality Order on Wednesday, November 22—just before Thanksgiving. This timing has created an uproar among some opponents of the Order, who claim that the timing is merely part of what is admittedly an unfortunately common strategy among governments to release unpopular news when it thinks the public is least likely to see it. In this case, however, the claim has several problems.

[Commentary] Federal Communications Commission Chairman Ajit Pai contends his proposed reforms to the Lifeline program will “more effectively and efficiently help close the digital divide by directing Lifeline funds to the areas where they are most needed.” Opponents, however, believe the proposed changes “will gut the program and continue to widen the digital divide.” The likely outcome, if the proposal is enacted as currently written, will be somewhere in between. Some of these proposed reforms are important, positive steps that will improve the Lifeline program’s efficiency.

The near-instantaneous response by supporters and opponents of Federal Communications Commission Chairman Pai’s proposal to roll back the Open Internet Order highlights two points. First, despite the hyperventilating and hand-wringing, this proposal surprised nobody. Everybody who follows the issue knew the moment Donald Trump won the presidential election that this day would come. Second, the arguments on both sides have all been made. Many times.

The FCC as an agency has a commitment problem. The fault does not rest with Chairman Pai, past-Chairman Wheeler, or any other commissioner. The difficulty of making credible long-term regulatory commitments exists across agencies and around the globe, has been studied extensively, and has no easy solution. New administrations will always have different sets of beliefs and agendas. One mechanism intended to help overcome the commitment problem is the presence of independent, expert agencies. In principle, an agency’s independence from short-term political pressures allows it to make decisions in a more technocratic nature. The more controversial the issue, however, the more difficult it will be for the agency to maintain its independence. Net neutrality seems to have become so controversial and so politicized that it is practically impossible for any Commission to credibly claim that its approach will survive beyond its own tenure.

The net neutrality issue has been with us for over a century in different guises and is unlikely to be resolved fully, possibly ever. But consumers and industry need the FCC to be able to commit to at least a general approach for regulating the Internet. The way to do it is by creating more analytical hurdles for the FCC to overcome in order to make changes and for Congress to set some principles for the FCC to follow.