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FCC chair refuses to make net neutrality rules public before approval

Wheeler turns down request from Congress and his own commissioners

FCC chair Tom Wheeler has refused to release the net neutrality rules that the regulator will vote on later this month.

The decision whether to make a document public before it faces formal approval rests with the FCC chair but, despite requests from Congress and two of his own commissioners, Wheeler has refused to do so, leaving the public in the dark over what the regulator will actually approve on 26 February.

Citing "decades of precedent," Wheeler told the chairs of Congress' technology committees [PDF] that the FCC works along the same lines as appeal courts and the Supreme Court and commissioners are given the text three weeks before a vote is expected in order to "confer privately, share their views and review drafts confidentially, and then issue their public decision," claiming "this is commonplace for administrative agencies."

However, given the extraordinary public interest in the rules - highlighted by the four million public comments received on the topic - not to mention the fact that two of his four commissioners have formally asked Wheeler to make the document public, the decision to keep the document under wraps is raising eyebrows - and hackles.

Commissioner Pai this morning put out a statement complaining about the decision not to release information and highlighting six concerns he has with the proposed plan. "I am disappointed that the plan will not be released publicly," he noted.

"The FCC should be as open and transparent as the internet itself and post the entire document on its website. Instead, it looks like the FCC will have to pass the President’s plan before the American people will be able to find out what’s really in it."

Pai's chief of staff Matthew Berry told The Register this morning that following the chair's decision, they were not able to provide a copy of the rules. "We think it should be available," said Berry. "And if it was in our power to release it we would do so."

The other Commissioner who requested Wheeler release the information, Michael O'Rielly, also tweeted about the irony that he was unable to talk about the document but that the chairman's chief legal advisor was carrying out a Twitter town hall this morning talking about its contents.

In that town hall, special counsel for external affairs Gigi Sohn did provide useful information about the proposed rules, listing the clauses under Title II legislation that the FCC was planning to include (or, more accurate not forebear).

She also addressed - in part - the likely legal challenge that is heading rapidly in the FCC's direction by highlighting two things: one that Wheeler "hasn't said that cable ISPs are monopolies" and two, that "Courts give great discretion to the FCC's forbearance".

What this means in plain English is that the FCC is not treating ISPs as "utilities," merely "common carriers". The FCC would require the approval of Congress to designate things as utilities, which would leave its rules open to question.

And by highlighting the fact that the courts have traditionally come down on the side of the FCC when it comes to not including certain clauses, the intent is to show that the FCC can't be told what it should and should not include.

The reason that second part is important is because it does appear that the FCC is planning to go beyond what most people had asked for.

Some Democrats had asked for just three clauses to be included. We calculated that six of the 76 clauses would be included. But based on Sohn's response this morning, it looks as though 12 full clauses will be included and one partial clause.

Sohn argues however that this still fewer clauses that the mobile industry is currently under and says the rules "are light-touch, just under a different legal authority". ®

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