It’s no secret that Jon Brodkin has been an outspoken opponent of the FCC
Restore Internet Freedom order. This article, published the day before the
vote, attempts to throw the entire process into question, based on the
submission of millions of “fake” comments using spoofed e-mail addresses,
including a few dead people who may have voted in recent elections...
Sorry, that part about elections was just my snark...
As I noted in a previous post, one of the Republican Commissioners addressed
the issue of a “corrupted public record” in his remarks Thursday; it was
The comments of each commissioner are now available on the FCC site, so I will
use this thread to help clarify the record on two issues. I have taken these
comments out of the order they were presented Thursday, as the issue of “fake
submissions” is directly relevant to this article. I have highlighted the key
comments in bold.
From the comments of Commissioner Michael O’Rielly regarding the Restore
Internet Freedom Order.
Responding to Baseless Process Complaints
Before concluding, I want to address the atmospherics surrounding the process
in this proceeding. I’ll start with the number and identity of the comments
submitted. Some would have us believe that the comment process has been
irreparably tainted by the large number of fake comments. That view reflects
a lack of understanding about the Administrative Procedure Act. The agency is
required to consider and respond to all significant comments in the record.
Millions of comments that simply say something along the lines of “keep net
neutrality” or other colorful language we can’t say in public – whether they
are submitted by real people, bots, or honey badgers – have no impact on the
decision. As the order makes clear, we do not rely on any such comments.
While it is possible that the agency may want to tighten the comment filing
system going forward, the fact of the matter is that fake comments are not
unique to this proceeding and had no impact on the substance or propriety of
To be clear, that does not mean that comments were ignored. I commend staff
for the extra effort they had to take to sift through the extraneous
comments. Many were simply obscenity laced tirades. Yet the order reflects a
careful evaluation and response to all significant comments, including those
that took a different position. Unlike the 2015 order where opposing
viewpoints were relegated to footnotes and dismissed without commentary,
often in the form of lengthy “but see” string cites, this order engages with
and responds to such comments in a credible and substantive way.
Preempting State and Local Requirements that Undermine our Federal Framework
Last, but certainly not least, the order contains a clear declaration that
broadband is an interstate information service and a robust preemption
analysis. The order makes plain that broadband will be subject to a uniform,
national framework that promotes investment and innovation. This is eminently
reasonable and completely consistent with the Constitution’s Commerce
Clause.12 Broadband service is not confined to state boundaries and should
not be constrained by a patchwork of state and local regulations.13 And, this
is particularly germane to wireless services where mobile devices and the
transmissions they carry can easily cross state lines. This could have
drastic results where it is possible for such communications to be
prioritized in one state, but not in another. A hodgepodge of state rules
could severely curtail not only the next generation of wireless systems that
we have been working so hard to promote, but also the technologies that may
rely on these networks in the future. Accordingly, any laws or regulations
that conflict with or undermine federal broadband polices are preempted.
Given my druthers, I would actually go even further on preemption, but I
could only carry the debate so far today.
This is not a new or novel position.14 The 2015 order also announced a “firm
intention to exercise our preemption authority to preclude states from
imposing obligations on broadband service that are inconsistent with the
carefully tailored regulatory scheme.”15 While the rules we adopt today are
obviously different than the 2015 order, the concept that we will preempt
inconsistent state and local requirements is well-established.16
Although the order does acknowledge an extremely limited state role in
enforcing their traditional police powers, state actions that go beyond this
realm will be subject to scrutiny and challenge. The order makes clear that
any requirements akin to common carrier regulation are barred. At my request,
the order also specifies that states may not adopt their own transparency
requirements, whether labeled as such or under the guise of “consumer
protection.” I would also view state broadband privacy actions as outside the
scope of what is permissible. The purpose of this order is to restore a
light-touch approach through deregulation. Therefore, any action to increase
regulatory burdens on broadband providers would run directly counter to our
I hope that most states and localities will not waste time and resources
attempting to push the boundaries, but I realize that some will do so
regardless. I expect the agency to be vigilant in identifying and pursuing
these cases. I also commit to work closely with the Chairman and OGC to help
quash any conflicts that arise.