It’s always a little happy-sad to watch the FCC solicit public comment on an issue and then be surprised and self-defensive when the public responds in force. This time, the cycle involves the FCC’s consideration of rules involving network neutrality: more than a million comments were filed during the initial round of feedback. That’s a new record for public participation in a single FCC policy proceeding. (Now you have until September 10 to submit reply-comments.)
There would not have been such an upwelling of public comment on media policy were it not for the Internet, so it’s only fair that an Internet policy proceeding now holds the crown for citizen input. Similarly, the FCC’s apparent inability to cope with this input tells us much about the state of policymaking in the United States.
Like much of our infrastructure, it is wobbly and prone to upset. The FCC’s Electronic Comment Filing System, developed in 1996 and never substantially updated, crashed multiple times during the initial comment-round. The most notable instances happened in June, after John Oliver helpfully redefined "net neutrality," and again just hours before the initial-comment deadline last week.
David Bray, the FCC’s Chief Information Officer, has released traffic logs showing the spikes in ECFS traffic caused by the literal manifestation of "the public interest"—"some of the highest concurrent commenting levels that ECFS has seen in its 17-plus year history." Interestingly, FCC staff can only batch-download 100,000 comments at a time from ECFS—simply put, the system was never designed for mass public participation in media policy.
Chairman Tom Wheeler squarely blames Congress for these troubles. Nearly half of the FCC’s information infrastructure is 10+ years old, and tens of millions of dollars of system upgrades were cut from the federal budget as part of the sequestration process, leaving those systems (like ECFS) systems to atrophy. "It is particularly distasteful that the FCC – the agency entrusted with promoting a world-class broadband infrastructure for the nation – could ever be incapable of dealing with Americans expressing themselves via that broadband capability," seethes Wheeler.
Note that nobody’s talking about what will actually happen with the public comments themselves. Broadcast attorney Harry Cole, for whom navigating the FCC is a full-time job, conservatively estimated it would take decades to process and respond to them under current resources and workflow—maybe a year if the agency makes network neutrality its top priority. "The transparency of that end of things is far more important to the outcome than the raw hourly numbers of incoming comments," Cole says. "Ideally the Commission has a plan for that. We’d love to know what it is. Wouldn’t you?"
Shirking the duty to process public comment simply because it is overwhelming could open up any future network neutrality rulings to appeal. Then again, it’s not like there’s formal ground-rules at the FCC to engage with such comments: such processing is left up to staff, who apparently have great latitude to ignore or dismiss them as they wish.
Since Chairman Wheeler both personally invited comments on this network neutrality proceeding and committed the agency to seriously consider them—and he would also like to have some rule in place by the end of the year—any shirking will have to be creative. That’s not the type of "innovation" the Internet nor a democracy in austerity-mode needs.