Public unlikely to sway FCC on Internet

But input is still seen as important as the agency prepares to repeal net neutrality.

WASHINGTON — A warning to the hundreds of thousands of people publicly urging the Federal Communications Commission to keep its tough net neutrality rules:

You might be wasting your time.

Three years ago, a historic outpouring of about 4 million public comments — fueled by a viral video rant by HBO’s John Oliver — led the then-Democratic-controlled agency to install strict oversight of Internet service providers to ensure they allow the unfettered flow of online content.

But President Trump’s election shifted control of the FCC to Republicans. They oppose the current rules and on Thursday are expected to vote to formally start the process of repealing them.

This time, the FCC’s Republicans have indicated they won’t be swayed by the electronic messages flooding the agency’s website.

“Commission outcomes are not and cannot be decided by poll numbers or letter counts,” Mike O’Rielly, a Republican commissioner, said in a speech last month. A top aide to FCC Commissioner Ajit Pai, who is leading the charge to repeal the rules, echoed that view.

Robert McDowell, a former Republican FCC commissioner who has known Pai for years, said the facts on the issue will outweigh the volume of public comment.

“Ajit Pai will be data-driven and not poll-driven,” McDowell said.

Supporters of the regulations said it’s still important for members of the public to express their views: The opinions of average Americans could influence judges if a rule change is challenged in court as well as members of Congress if they decide to write net neutrality legislation.

More than 1.6 million comments have been filed in the three weeks since the FCC began accepting them, many spurred again by another net neutrality segment on “Last Week Tonight with John Oliver” on May 7.

Now, as in 2014, a majority of the comments are believed to support the tough rules.

Pai and O’Rielly could be taking a big risk if they dismiss public sentiment, said Gigi Sohn, who served as

counselor to former FCC Chairman Tom Wheeler, a Democrat who pushed the rules into place.

“I say defy the American people at your own peril,” Sohn said.

“To the extent the FCC is supposed to act in ‘the public convenience interest and necessity,’ it might be important what the people think,” she said, quoting a phrase from the telecommunications law regarding the FCC’s oversight of the public airwaves.

In 2015, after a monthslong rule-making process, the FCC voted 3 to 2 along party lines to prohibit broadband providers from slowing Internet speeds for video streams and other content, selling faster lanes for delivering data or otherwise discriminating against any legal online material.

To enforce the rules, the FCC took the controversial step of classifying broadband as a more highly regulated utility-like service under Title 2 of federal telecommunications law. Broadband providers strongly opposed the move.

Wheeler initially had not proposed a reclassification as he began the rule-making proceeding. The process allows interested parties to file comments through the FCC’s website. The agency also set up an email address to receive public input on net neutrality, an issue that had become extremely popular among liberals.

Consumer advocates and digital-rights groups jumped into action. They urged Americans to write to the FCC advocating the tougher Title 2 oversight. Net neutrality supporters also demonstrated outside the FCC’s Washington headquarters and one morning blocked the driveway outside Wheeler’s home.

Oliver turbo-charged the effort with a segment on his show in which he urged people to contact the FCC and push for strong net neutrality rules. A surge in comments in the weeks after the show overwhelmed the FCC’s website and led the agency to extend the comment deadline by three days.

In all, about 4 million comments were filed — quadruple what the FCC had received on any previous topic, Sohn said. The FCC had a consulting firm analyze the comments and determined that 75% supported the tough regulatory oversight, she said.

O’Rielly disputed those figures last month, saying 40% of the comments were opposed to the tough approach.

Later in 2014, then-President Obama cited the large number of comments in publicly calling for the FCC to reclassify broadband providers. And when the FCC’s Democrats voted a few months later to enact the rules, they each cited the public input in deciding to reclassify broadband providers.

“We heard from nearly 4 million Americans who overwhelmingly spoke up in favor of preserving a free and open Internet,” Wheeler said at the time. “We listened. We learned.”

Sohn said those comments helped push Wheeler toward the tougher approach.

“Without a doubt, the fact that there was that kind of public sentiment helped to turn him both on the merits and on the politics,” she said.

But Pai and O’Rielly weren’t swayed by the public outpouring. They opposed the rules because they said heavy-handed federal regulation would squelch broadband investment. Pai said last month that was why he wanted to repeal them.

The two Republicans shouldn’t be swayed by simple comment counts this time either, said Jeffrey Eisenach, a visiting scholar at the conservative-leaning American Enterprise Institute think tank. Eisenach advised the Trump transition team on telecommunications policy.

“The job of the FCC is to make decisions based on the evidence about what are very complex markets and technologies,” he said.

Eisnach and others have said that many of the public comments aren’t substantive. In Oliver’s May 7 segment, he directed people to go to gofccyourself.com — a site his team created — to help them more easily file comments with the FCC. Oliver directed people to tell Pai “that you specifically support strong net neutrality backed by Title 2 oversight of ISPs.”

Many people did just that, writing short comments with similar, if not the exact, wording. More than 1,800 people filed under the name “John Oliver.” About 440 people filed under Pai’s name.

“When you get millions of comments that basically say, ‘Net neutrality is a principle that has to be upheld. I don’t really know the facts. If you vote against this rule, you’re the scum of the Earth,’ that’s not the kind of evidence that the commission should be weighing,” Eisenach said.

But Sohn said Americans are busy and even filing a short statement to the FCC shows that the issue is important to them. The agency’s leaders should care about that.

“To simply kind of wipe your hands of the public submissions is really not what an administrative agency should be doing,” she said. “They’ve got to take them into account.”