CTIA, CCA Ask FCC To Seek Comment on Net Neutrality Transparency Rules

The guidance document establishes a point of sale disclosure mandate, “creating a requirement that mobile broadband providers ensure that consumers ‘actually receive’ disclosures,” CTIA said. The FCC also requires that carriers report “actual network performance” on a cellular market area basis and “compels mobile broadband providers to disclose their actual performance metrics using the mobile Measuring Broadband America (MBA) data in order to obtain the protection of a safe harbor,” the group said.

The agency should have sought comment before imposing rules, consistent with the Administrative Procedure Act, CTIA said. “The absence of requisite process has led to arbitrary and badly flawed requirements that might have been avoided if the Commission had sought comment from interested parties,” CTIA said. “This process has resulted in new obligations that require more guidance and a safe harbor that is categorically unachievable today and in the foreseeable future.”

The public notice adopts “substantive rule changes to which the APA’s notice and comment requirements should have applied,” CCA said in its application for review. “The Public Notice also contradicts the text of the 2015 Open Internet Order by imposing a single geographic basis for network performance measurements and promulgating an unprecedented new point of sale requirement that is unclearly written and potentially onerous.”

A safe harbor isn't generally considered a new rule, said Matt Wood, Free Press policy director. “It just provides one way, but not necessarily the only way, that an entity subject to the pre-existing rule can comply with it,” he said. “The challenged public notice cites guidelines issued as long ago as 2011, as well as comments submitted on these topics in response to the 2015 Paperwork Reduction Act. So it’s hard to understand how CTIA and other parties were deprived of any meaningful opportunity to comment, even if notice and comment were required for this pronouncement.” Parties that don’t like an FCC decision are always free to “lodge procedural arguments against it, but that doesn’t mean their procedural claims hold water,” Wood said.

“We see here the invariable efforts of industry to freeze the agency into inaction,” said Harold Feld, senior vice president at Public Knowledge. When it issues detailed rules, industry complains they are too complicated, he said. When rules are more general, the complaint is they’re too vague, Feld said. “Bluntly, anyone who has raised a precocious tween should recognize this style of argument and respond appropriately.”

The APA “very clearly explains that agencies can issue guidance without notice and comment -- because they are not rules,” Feld said. “They are guidance. They are designed to resolve questions that folks in industry either genuinely have or disingenuously claim they have. Agencies do this all the time. CTIA's efforts here are a transparent effort to create a political narrative with no basis in law or fact. … To call them ‘rules’ is either a failure to understand the law or a deliberate misstatement for political purposes.”

Critics of the net neutrality order supported CTIA and CCA arguments. “To the extent the guidance creates new rules, it would seem a pretty clear violation of APA process,” said Doug Brake, telecom policy analyst at the Information Technology and Innovation Foundation. “But as a matter of policy, it would have been good to have an opportunity for comment, as the substance of the guidance’s safe harbor is flawed. A simple transparency requirement would do much of the heavy lifting for the open Internet, bringing sunlight to keep network operations fair. But the FCC seemed to use the kitchen sink approach with the guidance, requiring disclosure on technical details that at best baffle consumers and at worst creates perverse incentives.”

“As a matter of administrative law, unlike legislative rules adopted in a notice-and-comment rulemaking proceeding, a guidance document is non-binding,” said Randolph May, president of the Free State Foundation. “So, parties are not bound to follow it as a legal matter. Of course, as a practical matter, there are incentives to comply in order to avoid the agency’s wrath and future enforcement actions in which a court could accord the guidance document some degree of deference. As a matter of sound practice, on a matter as important as the point of sale requirement, the commission should put the question out for public comment in a rulemaking. The agency would certainly be better informed that way on the pros and cons.”

The FCC is “trapped in its fallacious belief” that mobile service is not significantly different from traditional phone service, said Richard Bennett, free-market blogger and network architect. “While it had to pretend this is true to justify the 2015 open internet order, the reality is that the mobile phone is actually a part of the network insofar as it controls power levels and signal processing. Consumers care about web page load time, which is mainly determined by web servers and mobile phones. The FCC’s guidance raises more questions than answers and is therefore not helpful to anyone.”