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Net Neutrality and Transparency in the Regulatory Process

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Ars Technica recently noted that as of January 2, 2018, the FCC’s net neutrality order had not yet been released despite the order being passed in December. The details and the precise wording of the document can have profound consequences. It is therefore understandable that everyone interested in this issue is anxiously waiting for the final document to be released.

The article notes that previous chairs have not released draft orders before votes, yet fails to explain why the pre-vote draft release was important: it becomes possible to compare the final order with the draft to determine what, if anything, was changed after the vote. In the past, the final rules could differ significantly from those the commissioners approved without the public being any the wiser.

Releasing the 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 Commission’s vote is one key to making the FCC regulatory process more transparent.

The new, more transparent approach, is likely to trigger other actions, as well, once the final draft is released. It’s a good bet, for example, as soon as the final order is released, many will rush to compare the changes between the draft and final versions—which is precisely what should happen.

The changes themselves may turn out to be mundane and everyone will shrug and move on to the next phase of the fight, as they had planned. It seems likely that the additional light on the draft-to-final changes will work to keep the changes relatively small. That should be another benefit of the transparent approach.

But perhaps any changes will generate strong responses, with some groups using them as tools to throw sand in the gears.

A policy of releasing draft orders raises another, deeper, question: Does changing the process of releasing texts affect the process of designing regulations itself and, therefore, the rules and the effects of the rules? Think of it as the regulatory Heisenberg effect. Does the public’s ability to observe more of the regulatory process change the process itself?

That question obviously cannot be answered after a single important order. It will take years before that hypothesis can be tested.

Meanwhile, it remains clear that releasing the draft order was an important change and a key step towards improving transparency.