But effectiveness of the new rules is still months away, at least

The Commission’s Open Internet (a/k/a Net Neutrality) initiative has taken a tangible step forward with the announcement that the FCC is getting ready to ship two “information collection” aspects of the rules over to the Office of Management and Budget (OMB) for its review. But don’t hold your breath – it’ll take at least a couple of months to get there.

OMB review is mandated by our old friend, the Paperwork Reduction Act, which requires agencies to quantify and justify “information collection” burdens before imposing them on regulated industries or the public. The idea is that OMB may perceive regulatory excess that the FCC has somehow overlooked and slam the brakes on the process.

The two Net Neutrality information collections in question? First, there are the formal complaint procedures to be used to resolve “open Internet disputes” when other, less formal, means don’t do the trick. And second, we have the requirement that broadband providers disclose their network management practices. Unfortunately, the FCC’s Federal Register notices concerning its proposals afford no particular insight into just what the complaint and disclosure requirements will involve. That may complicate the task of preparing comments on the proposals.

But wait – doesn’t the Net Neutrality order itself fill in some of the gaps in the notices? Some, maybe . . . but not all.

The formal complaint process is addressed at Paragraphs 154-159 of the Net Neutrality order. The bottom line appears to be that a complainant is expected to “plead fully and with specificity the basis of its claims and to provide facts, supported when possible by documentation or affidavit, sufficient to establish a prima facie case of an open Internet violation.” The target of the complaint can then answer each claim in the complaint, “demonstrating the reasonableness of the challenged practice.” The complainant can then try to rebut that.

The network management practices disclosure requirement is covered in Paragraphs 56-61 of the order. There the Commission provides an extensive list of types of information that might be disclosed. But the FCC emphasizes that the list is “not necessarily exhaustive, nor is it a safe harbor.” Talk about wiggle room! And just how is the information to be disclosed? That, too, is a bit up in the air. It’s got to be posted on a “publicly available, easily accessible website”, and must also be provided at the point of sale. According to the Commission, “[c]urrent end users must be able to easily identify which disclosures apply to their service offering.” The Commission declined to specify any particular format for the disclosures.

In the Federal Register notice, the FCC summarizes the disclosure requirement as mandating disclosure of “accurate information regarding the network management practices, performance, and commercial terms of their broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” A standard defined by what might be deemed (by whom? the FCC? the consumer?) “sufficient” to allow “consumers” to make “informed choices” doesn’t seem to be much of a “standard” in the traditional sense, but you never know.

So anyone inclined to file comments on either of these proposals may find it tricky to get a firm grip on precisely what burdens are likely to be involved here. (For the record, we asked the FCC if it could let us know what its proposed information collections would entail – above and beyond what is shown in the Federal Register notices. We were directed to the paragraphs of the order mentioned above, along with Appendices A and B to the order.)

What happens next?

Anyone who wants to comment on either (or both) of the proposals has two (count ‘em, two) opportunities to do so. First off, between now and April 11, you can submit comments to the Commission. According to the FCC’s notices, comments should address:

(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) the accuracy of the Commission’s burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Once April 11 comes and goes, the Commission will package up any and all comments and ship them to OMB, along with its proposed information collections and a separate “supporting statement”. At that point, interested parties will have a 30-day opportunity to let OMB know what they think. The Commission will then have a chance to respond to any incoming comments and/or questions that OMB might pose. Its response may include revising either or both proposals. (Note – Neither OMB nor the FCC provides any public notice of any such post-comment period revisions. If you’re diligent, you should be able to find out about them by checking the OMB website on a daily basis . . . but that may prove an empty exercise, since OMB affords no formal opportunity to comment on any such on-the-fly revisions.)

Once OMB is satisfied that the FCC’s proposals are consistent with the Paperwork Reduction Act, OMB will issue its approval. That approval will be formally announced in the Federal Register and, 60 days after that announcement, all of the Open Internet rules adopted last December are set to become effective.

So even in the fastest scenario – where the FCC would send its proposals to OMB immediately after the close of the April 11 comment period, and OMB would in turn approve the proposals immediately after the close of its own 30-day comment period, and the announcement of that approval would be published instantaneously with the issuance of the approval – we’re still looking at 120 days at the very least before the Net Neutrality rules can be expected to take effect.

One more timing consideration. Within a matter of days, if trade press reports are to be believed, the Commission should be publishing the Open Internet order itself in the Federal Register. That publication will mark the opening of a 60-day period during which petitions for review of the order may be filed pursuant to Section 402(a) of the Communications Act. Two appeals of the order have already been filed pursuant to Section 402(b), although the FCC has moved to dismiss both of them. In any event, it is virtually certain that some parties – and maybe a lot of parties – will be seeking judicial review of the order before the rules become effective. Should a reviewing court conclude that a stay of the rules is warranted, the effective date could be pushed back indefinitely.