Four Groups Take Aim at Net Neutrality Order
Four commenters weighed in on the Paperwork Reduction Act implications of the FCC’s net neutrality order. USTelecom, CTIA, NCTA and the Independent Telephone and Telecommunications Alliance (ITTA) raised questions about the transparency requirements in the rules, saying they should be rejected by the Office of Management and Budget as too burdensome and expensive. A split commission approved the order in December, but it hasn’t been in the Federal Register because of the act’s comment cycles. The Court of Appeals for the D.C. Circuit has already turned aside a court challenge because the rules have not formally been posted (CD April 5 p1).
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By law, the FCC now has to review the comments before making a formal application to OMB to have the order published in the Federal Register. Once OMB receives the application, it puts the matter out for comment for 30 days before it can be posted there. The law doesn’t set a deadline for the commission to file its application. Though there were only a handful of comments, they were “significant,” FCC spokesman Rob Kenny told us. “We take this very seriously and we want to move as quick as we can, but we want to be responsive.” The order takes effect 60 days after it’s published in the Register. An FCC official said the review will take weeks, not months, to complete.
"Notwithstanding the FCC’s assertions to the contrary, the proposed information collection in the Open Internet Order will impose significant burdens on mobile broadband providers,” CTIA said. The commission “must consider the time, effort, and cost required to train personnel to be able to respond to the collection; to acquire, install, and develop systems and technology to collect, validate, and verify the requested information; to process and maintain the required information; and to provide the required information."
The burden imposed is “enormous and will certainly exceed the Commission’s very minimal burden estimates,” CTIA said. Because the agency doesn’t comply with the act, “it should rescind or significantly revise its proposed information collection or risk disapproval by the Office of Management and Budget,” the association said. It argued that the deficiencies under the act in the net neutrality order are similar to those that led OMB to reject information collection requirements approved as part of an emergency backup power order in a 2008 decision (CD Dec 2/08 p1).
NCTA also said the FCC significantly underestimates the costs to ISPs as a result of the net neutrality rules. “The transparency rule requires an ISP to disclose ‘information regarding the network management practices, performance, and commercial terms of its broadband Internet access service sufficient … for content, application, service, and device providers to develop, market and maintain Internet offerings,'” the group said. “This vague, open-ended disclosure obligation could be read to require ISPs to provide virtually any information that any content, application, service, or device provider anywhere in the world decides is helpful to its business."
USTelecom and the ITTA each said the order’s “transparency” section violated the act by imposing far-reaching and expensive data-gathering requirements. The order “identifies approximately 30 discrete topics, ’some or all’ of which ‘likely’ must be addressed in order for a broadband providers’ disclosures to be deemed ‘effective,'” USTelecom said. The requirement that the information be “timely and prominently disclosed in plain language accessible to current and prospective end users and edge providers, the Commission and third parties” will “likely … be difficult and costly to implement,” USTelecom said. “Broadband providers frequently have no relationship with edge providers, which may require disclosures that are considerably more technical in nature.”
Both telecom groups also took aim at the commission’s cost estimates for the transparency requirements. ITTA said the rulemaking notice guessed that a net neutrality order “would impose a burden of 327 hours per response, a total annual burden of 546,840 hours and total annual costs of $4,687,000.” In its paperwork notice, “however, the Commission projects an average burden of 10.3 hours per response, a total industry burden of 15,646 hours and no annual costs. The Commission does not explain why it decided to reduce its estimate to a tiny fraction of its original estimate,” ITTA said. “Instead it speculates that the burden ‘will be minimal’ because (1) the rule gives broadband Internet access service providers flexibility in how to implement the disclosure rule and (2) the rule gives providers adequate time to develop cost-effective methods of compliance. Neither justification is valid.”
ITTA criticized the net neutrality order’s complaint procedures. The commission “estimates only a total of 15 responses annually, with an estimated time of 2 to 40 hours per response and a total industry-wide burden of only 239 hours and $40,127 in outside costs,” the group said. “This minimal estimate simply cannot be reconciled with the fact that ‘any person’ may file a formal complaint under the Commission’s open Internet rules.” Millions of people “use broadband service in one way or another and there are thousands of entities that provide that service,” ITTA said. “The notion that this universe of potential parties will produce only 15 formal complaints a year seems fanciful at best.”