Politicians, in theory, are supposed to be responsive to public outcry. When faced with an avalanche of blast emails from angry constituents, therefore, legislators generally are moved to act.
In contrast, independent regulatory agencies are supposed to be (but admittedly often are not) apolitical and immune from such pressure. While it is true that administrative agencies must subject their actions to “public notice and comment” under the Administrative Procedure Act, regulatory agencies should not promulgate rules and regulations based upon the vox populi; rather, these agencies are charged with dispassionately implementing their respective enabling statutes as delineated by Congress based upon the plain text of the statute, the case law interpreting that statute, the economics, and the substantive record before them. If they fail in that task, then administrative agencies can be reprimanded by an appellate court for engaging in arbitrary and capricious behavior or, in very rare cases, be subject to congressional rebuke via the Congressional Review Act.
{mosads}Fed up with congressional inaction, however, advocacy groups on both sides of the aisle have increasingly turned to applying the same political pressure tactics traditionally used on elected officials on unelected bureaucrats by aggressively pounding regulatory agencies with blast form email comments during controversial rulemaking proceedings. These email comments are commonly referred to as “clicktivism” because of the generally automated nature of the process. Users visit a web page, see a banner which reads “click here and send Washington a message,” and voilà, an automated form comment is generated and filed with the agency. If advocacy groups can inundate an agency with an avalanche of angry comments, so the thinking goes, then the agency will be compelled to agree with the proverbial “weight of the evidence.”
But such clicktivism is far from probative evidence. These blast form email comments almost never offer any meaningful analysis on the complex legal, economic or technical issues raised in the proceeding. They are instead nothing more than a bellwether of the power of assorted interest groups to convince an unwitting public to “take action” to prevent an inevitable calamity if the government rules against their position. Though almost entirely void of merit, these clicktivist comments serve only to clog up an administrative agency’s electronic docketing system and to politicize further the regulatory process.
Take, for example, how clicktivism has gotten out of control in the highly-politicized net neutrality debate at the Federal Communications Commission.
In 2015, the FCC made the controversial decision to reclassify broadband Internet access as a “common carrier” telecommunications service under Title II of the Communications Act of 1934. The decision was, in no small part, motivated by an aggressive (and in my view highly improper) call to clictivisim by none other than the President of the United States. Unsurprisingly, given the investment-killing nature of this heavy-handed regulation, newly-minted Republican FCC Chairman Ajit Pai initiated a rulemaking to reverse the commission’s 2015 Open Internet Order as one of his first priorities.
In response, clictivism at the FCC has reached new heights (or lows, depending how you view it).
To date, over 20 million comments have been filed in the docket. A recent forensic analysis reveals that, among other things, a staggering 36 percent of these comments appeared to have been generated by self-described “temporary and “disposable” email domains attributed to FakeMailGenerator.com. Moreover, this forensic report reveals that 9.3 million comments were filed from submissions listing the same email and physical address, indicating that many entities filed multiple comments.
As to be expected, the overwhelming majority of these clictivist comments provided no serious legal, economic or engineering insight to aid in the commission’s deliberations. Most are simply one-page form email comments asking the FCC to keep or reverse reclassification (most likely without the signatory even having a clue about the underlying legal or technical dispute that they are arguing over). Many clictivists, however, not satisfied with form comments, decided to add a “personal” touch to their submissions: a simple search using the FCC’s own website reveals that thousands of these comments use words so profound and disgusting that decorum prevents me from mentioning them here. Still, due process requires the FCC’s staff to comb through this garbage, wasting valuable commission resources.
The preceding discussion begs an important policy question going forward: How do we balance the public’s right to comment with the need to develop a substantive record and maintain decorum in our public discourse?
Three simple amendments to the FCC’s Rules of Practice and Procedure might help mitigate the problem.
First, just like the courts, the FCC should implement mandatory requirements of what a pleading should look like. These simple formatting requirements could include, among other things, (1) a standard caption listing the name of the proceeding and docket number; (2) tables of contents and authorities; (3) a statement of issue(s) presented; (4) a summary of the argument; and then, of course (5) a detailed argument, complete with clearly-delineated headings and a conclusion. Finally, yet most perhaps importantly, people should be required to list not only their names, but addresses. If people cannot follow these basic professional requirements, then the FCC should summarily reject their comments.
Second, the FCC needs to amend and expand Rule 1.17 of its Rules of Practice and Procedure. Under this rule, parties filing at the commission may not, among other things, “intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading…”
However, this rule only applies to investigations and adjudications, not rulemakings. Extending this rule to rulemakings — and, equally as important, having the commission aggressively enforcing this rule — will go a long way toward restoring decorum back to our public discourse.
Third, the FCC should impose a small, uniform fee for filing comments. A filing fee is hardly a radical idea. If you litigate in a court of law, you have to pay filing fees and court costs. The FCC also charges filing fees for a wide variety of licensing services. Even a small filing fee (say, $5, but $100 is likely better) will greatly attenuate the use of “bots” to file automatically comments and should reduce the problem of multiple filings by individuals. By forcing commenters to have some “skin in the game,” then perhaps they will be more judicious with their filings.
The right to petition our government is a core constitutional privilege. However, as the old saying goes, with great power comes great responsibility.
So if you want to rant, then have at it on Twitter. But if you want to file something in an official record and meaningfully participate in the regulatory process, then perhaps a few guidelines should apply.
Lawrence J. Spiwak is the president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies, a nonprofit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.