You may think, from the pomp accompanying the FCC’s vote in December to repeal the 2015 net neutrality rules, that the deed was accomplished. Not so — in fact, the order hasn’t even reached its final form: the Commission is still working on it. But while it may be frustrating, this is business as usual for regulations like this, and concerned advocates should conserve their outrage for when it’s really needed.
The “Restoring Internet Freedom” rule voted on last month was based on a final draft circulated several weeks before the meeting at which it would be adopted. But as reports at the time noted, significant edits (i.e. not fixing typos) were still going into the draft the day before the FCC voted. Additional citations, changes in wording and more serious adjustments may be underway.
It may sound like some serious shenanigans are being pulled, but this is how the sausage was always made, and it’s actually one of Chairman Ajit Pai’s handful of commendable efforts that the process is, in some ways at least, more open to the public.
Ordinarily the final draft of the rule might not be given out until after the vote, having been only circulated among FCC staff and other D.C. insiders. It’s something Pai has never tired of criticizing previous FCCs for, and one of the first changes he made.
Now orders like this one are released well ahead of time — but the process of fixing and updating them continues just as it did before, well past the actual vote (the timing, as Ars Technica notes, is all over the place). We’re just privy to the details now. It’s right there in the rule’s introduction:
The issues referenced in this document and the Commission’s ultimate resolution of those issues remain under consideration and subject to change. This document does not constitute any official action by the Commission. However, the Chairman has determined that, in the interest of promoting the public’s ability to understand the nature and scope of issues under consideration, the public interest would be served by making this document publicly available.
And indeed, it makes perfect sense that work should continue as long as it can in order to better bolster the chances of an order like this surviving. An extra citation, legal precedent or expert commentary could make all the difference.
The question of exactly what is being changed, however, we will have ample time to investigate: The rules will soon be entered into the federal register, at which point they both come into effect and come under intense scrutiny and legal opposition. And there’s plenty to scrutinize and oppose. I’ve asked the FCC if it will issue its own documentation of changes to the rule made after the final draft.
But that’s just the start of the next phase of the battle for net neutrality, which you can expect to last for years to come.