Why it doesn’t matter if net neutrality opponents “won” the FCC comment war

The big argument in the tech policy world right now is focused on comments submitted earlier this year to the Federal Communications Commission. As Nancy Scola notes, President Obama recently asked the FCC to “answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality.”

But it turns out that many of those comments — perhaps even a majority — were actually opposed to stronger network neutrality rules. A Sunlight Foundation analysis on the topic has generated angry responses from left-leaning groups who say that their own submissions were under-counted. It looks like a big part of the problem is that the FCC’s system for submitting comments is so old and rickety that some submitted comments didn’t make it into the data set the agency released.

Yet it’s a mistake to get too hung up on the specific numbers. The vast majority of the comments — Sunlight says 88 percent in the latest batch — were form letters created with help from a handful of activist groups on either side of the fight. So the ratio of pro- and anti-net neutrality comments may tell us less about what voters think than about how well-funded each side’s activist groups are.

More importantly, the agency comment process was never supposed to be a popularity contest. In most proceedings, agencies get a modest number of in-depth submissions from experts and interest groups who are expressing opinions about the nuances of proposed regulations. The ratio of comments on each side has never been an important factor in agency decision-making. One submission that raises an issue the agency hadn’t considered before can be more valuable than a thousand from people who simply filled out a form on an activist group’s website.

Of course, the network neutrality debate has become far more political than others the FCC decides on. More ordinary people have an opinion on it than they do about almost any other issue on the FCC’s docket, which is why the issue has generated millions of submissions.

But that’s precisely why this decision shouldn’t be left to the FCC. Congress set up regulatory agencies like the FCC to work out the details of regulatory decisions. But big-picture policy decisions — especially those that are hotly contested by voters — should be made by Congress itself.

Congress is specifically organized to resolve political issues like this. It has hundreds of elected officials whose job is to represent the interests of their constituents. Congress, not the FCC, should be deciding what network neutrality rules, if any, should govern the internet.

Unfortunately, polarization and gridlock has made it almost impossible for Congress to do its job. Congress hasn’t updated the laws governing the internet since 1996, a time before Google, Facebook, and the iPhone existed. The concept of network neutrality didn’t even exist back then. Congress ought to update the law to reflect 20 years of technological change. But because it’s not likely to do so, the FCC is forced to do a job it was never designed for.