Updated at 4:23 pm
Bound by law not to distribute the FCC's proposed net neutrality order, Republican FCC Commissioner Robert McDowell is not happy about the lack of transparency.
"The Commission could and should put the proposed rules out for public comment under existing law, but the [FCC Chairman Julius Genachowski] is choosing not to," McDowell told Tech Daily Dose. "Such openness used to be standard operating procedure for the FCC, especially with matters of such sweeping importance like this one. But the commission's transparency has become more opaque in recent years."
Since the proposed order has not been explicitly put out for public comment, the commissioners are barred by criminal law from disclosing it, McDowell added.
As it stands, if the net neutrality order circulated by Genachowski Wednesday morning wins the support of three of the five commissioners, it will be adopted on December 21st and become law once the final language goes into the federal register.
Soon after Genachowski announced the open Internet proceeding, McDowell came out against this "ill-advised maneuver" saying the rules would overturn an international consensus that the Internet is best able to thrive in the absence of regulation.
Genachowski has defended the transparency of his net neutrality proceedings, which has been going on for many months, saying he is "proud" of the way his office has handled the issue. The net neutrality proceeding has included a variety of periods of public comment on the issues at stake.
"The FCC has a very open and transparent process of discussions and dialogues on all the many items that are under review in each of the commissioners offices," a FCC spokesman said. "After the chairman circulates a proposal to other commissioners for their review, those documents are constantly evolving as each commissioner suggest and makes changes. Treating these working circulation documents as confidential has been standard procedure for many years."
During an unrelated House Energy and Commerce subcommittee hearing, Rep. Lee Terry, R-Neb., also criticized the FCC process and the fact that lawmakers so far have not had access to the FCC order. "Doing that [moving forward on net neutrality] on the eve of a new Congress is a message to us that they want to ram it down the public's throats" before GOP takes over, Terry said.
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