As I noted yesterday, ACUS’s newly adopted Recommendation 2021-1, Managing Mass, Computer-Generated, and Falsely Attributed Comments generated three separate statements.  Separate statements are permitted by the Administrative Conference Act (5 U.S.C. 595(a)(1)) and the agency’s bylaws (Section 302.6(d)(1)). They are relatively rare and typically used to register disagreement with a recommendation the Assembly has voted to adopt.

The three statements published with Recommendation 2021-1 are a bit unique in that the authors generally support the recommendation, but have written separately to raise and debate important and emerging issues in informal rulemaking. This discussion was a key part of ACUS’s work on Recommendation 2021-1, and it is sure to continue as the agency works on future research and recommendation projects involving notice-and-comment rulemaking. It raises difficult questions at the frontier of agency policymaking in this crucial procedural space, which is why I think it deserves to be highlighted on this blog.

I’m going to post each of the three statements individually, in the order in which they appear in ACUS’s Federal Register notice (i.e., alphabetically). The first statement comes from Senior Fellow Randolph J. May (Free State Foundation):

I attended several of the Committee meetings that considered the preparation of this Recommendation. So, I have a good sense of the hard work that went into the preparation of the Recommendation by the Consultants, the Rulemaking Committee Chair Cary Coglianese, the Committee members, and the ACUS staff, and I am grateful for their dedication.

I support adoption of the Recommendation in the context of the express limitation of the scope of the project as stated: “This Recommendation does not address what role particular types of comments should play in agency decision making or what consideration, if any, agencies should give to the number of comments in support of a particular position.”

I wish to associate myself generally with the Comment of Senior Fellow Richard Pierce, dated May 25, 2021, especially his concern that the ACUS Recommendation not be misconstrued to foster “the widespread but mistaken public belief that notice and comment rulemaking can and should be considered a plebiscite in which the number of comments filed for or against a proposed rule is an accurate measure of public opinion that should influence the agency’s decision whether to adopt the proposed rule.”

I have submitted comments and/or reply comments in every “net neutrality” proceeding, however denominated, the Federal Communications Commission has conducted over the last fifteen years – and, yes, the back-and-forth battle over various “net neutrality” proposals has been going on that long and there have been at least a dozen comment cycles. However, especially in the last two “net neutrality” rulemaking cycles, in 2014 – 2015 and 2017, there has been a major escalation – you could call it exercising the “nuclear option” – in the effort, by both opposing sides, to generate as many mass, computer-generated form comments as possible. By “form comments” I mean comments that concededly contain little or no information beyond cursorily stating a “pro” or “con” position.

The startling results of going nuclear, in terms of generating the sheer number of mass, computer-generated form comments in the latest “net neutrality” round are now well-known. The phenomenon has been the subject of federal and state studies cited in the Recommendation’s Preamble, with some of the most significant details recited in Professor Pierce’s separate statement. Aside from any other concerns, I can personally testify that the deluge of approximately 22 million mass, computer-generated form comments often overwhelmed the FCC’s ability to keep its electronic filing system operating properly and often rendered the ability to search for comments that might possibly contain relevant data and information well-nigh impossible.

And, of course, the huge costs expended by private parties engaging in the effort that led to the submission of approximately 22 million mass, computer-generated form comments (including the 18 million “fake” comments) were enormous, not to mention the direct and indirect costs imposed on the government merely to compile, process, and review the comments.

It is blinking reality not to recognize that the pro- and con- net neutrality interests responsible for generating 22 million comments assumed, in some significant way, that the outcome of the rulemaking would be impacted by which side “won” the comment battle. In other words, it must have been assumed that, in some meaningful sense, the rulemaking would be decided on the basis of a plebiscite, “counting comments,” not on the basis of the quality of the data, evidence, and arguments submitted.

So, while I accept the constraints imposed by the parameters of this Recommendation – which, on its own terms, contains useful guidance to assist agencies – I hope that, going forward, ACUS will initiate a project that considers the appropriateness of curbing the submission of mass, computer-generated form comments, and, if so, how best to accomplish this. Certainly public education, including by government officials, and especially the pertinent agency officials, regarding the objectives of the rulemaking process in general, and specific rulemakings in particular, can play an important role.

I wish to make clear that I recognize the value of widespread participation by “interested persons,” as the Administrative Procedure Act puts it, in the rulemaking process, not only because of the value of the evidence put on the record through such participation, but because of the instrumental value bestowed upon interested persons by the opportunity to participate in government decision-making processes that affect them. With due deliberation, with recognition of the need to exercise care in drawing relevant distinctions among various types of rulemaking proceedings and their objectives, there ought to be a proper way to discourage the type of “comment war” that occurred in the two most recent FCC net neutrality proceedings, while, at the same time, encouraging the type of widespread public participation that is most helpful to agencies in promulgating sound public policies.

This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.