Public notices and inquiries should be moved from the newspapers and the bowels of the web online to where we are: networks like Facebook and Twitter.
In 1933 Franklin D. Roosevelt’s New Deal created a bunch of new federal agencies as part of his New Deal platform to bring the United States out of the Great Depression. These agencies got pretty powerful and — because they had many powers of the legislative, executive, and judicial branches of government — Congress sought to contain the threat and created the Administrative Procedure Act which outlines how agencies can propose and make rules, how those rules get reviewed, and most importantly, specifies how agencies should notify and solicit input from the public. It’s the law that mandates that congress publish regulations in the Federal Register, and how the FCC ought to behave when soliciting input for the AT&T T-Mobile merger.
Fast forward to today. We have magical things like Television and the Internet that engage the public and have empowered media to communicate with people. Yet the law that dictates how the federal government communicates with people hasn’t changed. Douglas Adams wrote a book called “The Hitchhikers Guide to the Galaxy” where the protagonist, Arthur Dent, loses his apartment because he failed to read a public notice on display in the cellar of the government’s display department. Our public notification and inquiry system is based upon the postal service and print newspapers when our public has moved on from this technology.
But the problem isn’t just a nuisance or a failure to communicate with the public about what’s going on. The real problem is regulatory capture, the fancy-shmancy phrase academics use when they mean “special interests took over an agency”. See — if the public has effectively moved on from print publications and the postal service, then the only people that give input are paid professionals — lobbyists and special interest groups. If those are the majority of public inputs that an agency gets, that begins to limit the scope of the agency’s ability to understand public will.
Take, for example, the aforementioned AT&T and T-Mobile merger. Here are all the comments that the FCC has received regarding the merger. As of writing, there are 4,747 comments. Comments have been opened since the 14th of April. It’s the most they’ve gotten in a very long time, by an order of magnitude, and yet still, it’s only 4,747 comments. There are 303 million wireless subscriber connections in the United States, representing 96% of the population, and only 4,747 people have bothered to comment. Something tells me more than .0015% of American wireless subscribers have an opinion on the matter. If the FCC only hears from .0015% of consumers, it could be regarded as, well, statistically insignificant.
At the local level it’s even more strange — local laws require public notices to be placed in the local papers. It equates to large subsidies going from government to the press. It’s an awkward loop where money flows from government coffers to the papers who endorse candidates. It isn’t chump change either. According to one study from the USC Annenberg Center on Communication Leadership & Policy, the State of Pennsylvania may spend upwards of $25 Million a year on public notice advertising.
There’s been a big push to move this stuff to the web, but I’m not sure that’s good enough. Moving a notice from a publication with a circulation of 100,000 to a website with 500 visits a day is a reduction of notifications. In 2009, the Obama administration sought to move its asset forfeiture public notices onto forfeiture.gov to save the government about 6 million dollars over five years. The problem is, nobody knows about or goes to forfeiture.gov. This blog, for instance, is infrequently updated and has a very niche audience, but it still beats forfeiture.gov in terms of overall public exposure. The net result of simply moving public notices online is often less public notification. And when there are notifications, they are PDF files that look, amazingly, like this.
Putting the public notice online is the digital equivalent of printing the public notice and taping it to the front door of the federal agency. If nobody’s walking by, nobody’s going to see it. The spirit of the APA is such that public notices ought to notify the public. This worked with newspapers because newspapers had circulations. It doesn’t work with federal websites because more often than not, they don’t. The right answer is to move the public notice and the public inquiry online, but it’s not to put it in a virtual basement. According to the Audit Bureau of Circulations, there are about 109 Million newspaper subscriptions in the United States. Facebook claims to have more than 500 million active users, about 30% of which are from within the United States. Doing the math, Facebook has about 150 Million users — 37% more than all United States newspapers combined. Newspaper circulations are headed down, while Facebook subscriptions are headed up — up past where a majority of the United States population has Facebook accounts. Twitter and others will likely soon follow.
Right now, the FDA is looking for comments on nutrition labeling of menus in restaurants. You can comment on this regulation and view comments by others. What if, instead of just using the FDA’s Facebook Page as a vessel for press releases, they also asked the question: “Should restaurants be required to label their menus with nutritional information?” They’d be able to not only see comments, but see who these comments were coming from. People who were registered nutritionists and physicians may have a different point of view than, say, owners of Kentucky Fried Chicken franchises and it may be important data to the regulators who are making the rules to see this.
These kinds of public interactions are more in the spirit of the APA than the old methods because they come bundled with identity and methods for practical, cheap, and direct communication. With a social network, you can see identity, networks of influence, occupation, and expertise. If, in an inquiry about regulating a company, an agency is able to filter through all the employees’ comments about the regulation, and all the competition’s employees— that may yield to smarter regulation. If they need to follow up with people, well, that’s built into the network inherently.
It ought to be the case that we’re pushing the government to publicly deliberate online in the places we’re at rather than to continue the trend of public notice obfuscation via the web. It means more access, more input, and the ability to build better tools to handle the volume — tools like ThinkUp — to find better solutions to the public. It also means more ethical government with less opportunity for regulatory capture and more opportunity to hold serious dialog between the various interests an agency has to balance.
