On Sept. 29, the Federal Communications Commission is slated to vote on a controversial set top box proposal by Chairman Wheeler that no one outside the FCC has seen.If adopted, it would have the force of law, subject only to challenge in the courts. All we know about it comes from a few vague lines in a blog and a “fact sheet” of bullet points by Chairman Wheeler, but it appears it would impose invasive regulations and put the FCC in a position to dictate copyright contract terms to private companies.
The initial version of this proposal was properly published for public comment. Because of the overwhelming opposition to that proposal for its failure to respect copyright, Chairman Wheeler has revised his approach, both in substance and procedure: this time he refuses to publish his proposal.
Notwithstanding this blatant attempt to avoid scrutiny and ram through the unknown specifics of this new proposed regulation, a group that literally named itself after transparency, “Public Knowledge,” is supporting Wheeler. Even more, they are lashing out with false attacks against anyone who has a different view. But nowhere in PK’s wild-eyed screeds is there any mention of transparency.
That silence is deafening. PK’s own “core work” includes “Advance government transparency and the public’s access to knowledge.” And in other contexts, such as trade negotiations, “PK has consistently decried the lack of openness and transparency surrounding the negotiation of trade agreements….” So, let’s compare the transparency opportunities in trade negotiations with what Chairman Wheeler is doing right now.
In both cases, the public is made aware that there is ongoing work on a new document, and there is an opportunity to submit views to the policy makers. When a trade negotiation concludes, it does not have any effect unless both Houses of Congress approve the deal. As part of that process, the full text of the agreement is published for the world to see. Then there are mandated minimum time periods for consideration, so the deal can’t be rushed through. Finally, it is the elected officials in Congress who vote on whether to approve the deal, and they are held accountable to their constituents through the electoral process.
Chairman Wheeler’s proposal follows a very different path. Its existence was only announced three weeks before the scheduled vote. The text of the actual proposal will not be made public before the vote, even to Members of Congress. And if the unelected Commissioners of the FCC approve the new regulation, it goes into force without any process or input by the public or elected officials. This is not a negotiation with foreign governments, whose interests may be different from ours. This is an arm of the U.S. federal government preparing to make rules affecting our lives and jobs without making the proposal public until after it has been adopted.
Even in the face of this stark contrast, PK calls trade negotiations a “radically secretive process,” but has nothing at all to say about the lack of transparency from Chairman Wheeler. Wonder why? No doubt part of it is that trade agreements tend to improve copyright protection abroad, while the Wheeler proposal from day one has tried to run roughshod over copyright. And no doubt another part of it is that PK’s co-founder and long-time president is now working for Chairman Wheeler and is a driving force behind this new proposal. She is not only acting contrary to what she has said in the past about transparency, she is also contradicting her own substantive views about government regulation displacing innovation in the free market.
It is now only about a week until the scheduled vote on Chairman Wheeler’s proposed regulations. If he really believes in his approach, he should allow it to be available for public review and publish the full text. President Obama pledged to be the “most transparent president in history.” If he meant it, the Administration should similarly urge Chairman Wheeler to publish his plan. And if “Public Knowledge” is to maintain any credibility at all, it must be demanding that Chairman Wheeler publish his proposal.