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File This One Under “No Good Deed Goes Unpunished”

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Actress Alyssa Milano tweeted that the FCC is using Thanksgiving to hide its net neutrality order by releasing a draft the day before the holiday. She would probably be surprised to learn that throughout almost her entire career the FCC never released drafts prior to votes at all. It’s understandable that someone with no reason to know much about the FCC would think this when Mashable calls the timing “a devilishly brilliant plan” and provides no relevant context.

From the 1970s through the Wheeler FCC, the Commission did not release the text of the orders it would vote on until some undefined time after the vote under the guise of granting “editorial privileges” to the bureaus (see Figures). As a result, nobody on the outside could determine whether anything was changed between the vote and when the order was made public.

Mean Delay Between FCC Votes and Publication

Source: Wallsten (2015), Figure 1

Delays Between Vote and Publication on Major FCC Orders

Source: Wallsten (2015), Figure 5

Chairman Ajit Pai changed that practice. Now, the so-called “white copy” — the draft text — of orders is released three weeks prior to a vote. This is an important change that enhances transparency.

One reason the secrecy endured for so long is that changing the rule was not in any given chair’s interest. Holding one’s cards close to the vest (or, perhaps, inside the vest, in the case of not releasing the text) allowed the chair to retain power over the new rules even after the vote. Nobody, Democrat or Republican, likes to give up power.

But the change turned out to be against Pai’s interests in another, unexpected, way. The FCC is expected to release its draft Net 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.

First, as noted, the FCC only began to release draft orders under the current Chairman. By comparison, the public was not allowed to view any draft of the 2015 Open Internet Order and did not see the actual Order until 14 days after the vote.

Second, the FCC now releases the draft to the public three weeks prior to the vote, meaning that the relative timing is the same as it was for other orders and other Commission meetings. Wednesday is three weeks and one day prior to the vote. Presumably the Commission could also release it on Friday and be equally close to three weeks. But it seems unlikely that those rending their clothes over the Wednesday release would be happier were it released on Friday.

None of this is intended to diminish the substantive concerns of those who oppose the Order. Net neutrality and questions of common carriage and telecommunications are important, complex, and have been relevant one way or another for over a century.

Perhaps Chairman Pai did hope that the timing would keep the issue in the background at least over the weekend so that he could avoid protestors at his house over Thanksgiving. But there is no chance that he is so naïve as to think this controversial, populist issue that received more than 22 million public comments would go unnoticed all the way through the vote three weeks hence.

We don’t know what Chairman Pai thinks about the date. But we do know two things for sure. First, for almost 50 years the FCC did not release any text until after the vote, and Chairman Pai changed that. Second, the FCC’s practice now is to release the draft three weeks prior to the vote, and Wednesday and Friday are as close to three weeks prior to the vote as they could get given the Thanksgiving holiday.

Everyone should feel free to criticize the government, the FCC, and the Chairman himself. I do when I disagree with the Chairman. But taking advantage of a transparency-enhancing reform to promote a cause is too cynical, even by today’s standards.