FCC Net Neutrality Order—Quick Turnaround for an Agency, Slow for Internet Time

|The Volokh Conspiracy |

The FCC has just released its Open Internet (also known as Net Neutrality) report and order. I have been serving as a consultant to the FCC in this proceeding and worked on the order, so I will leave most of the commentary to others. But I do want to note that this report and order was issued a bit less than 14 months after the D.C. Circuit vacated portions of the previous Open Internet order. For an Internet content provider, that must seem like a ridiculously long time—it may have revamped its offerings thrice in the last 14 months. But for an administrative agency, 14 months from start to finish in a major and complex proceeding—the order is more than 280 pages long—is pretty quick. If that sounds strange to you, you can thank the Administrative Procedure Act, as interpreted by federal courts (in particular the D.C. Circuit). Judicial interpretations effectively require a ton of agency process, which means that issuing a rulemaking takes a very long time. That may or may not be a good thing (surprisingly enough, those who want a given regulation bemoan the lengthy process, and those who don't want a given regulation applaud it). But it does mean that completing a major regulation in less than about 18 months is no easy feat, to which the agency has to devote a lot of resources.