MediaFreedom Asks FCC Inspector General to Look into “Unusual Collaboration” of FCC Staff and Title II Activists

by Mike Wendy on October 8, 2014

Dear Mr. Hunt,

A recent story in the Washington Post (“Inside the collapse of the FCC’s digital infrastructure – and the rush to save it,” by Nancy Scola) reports that in the run up to meet the Federal Communications Commission’s September 15th deadline for Net Neutrality Reply Comments, FCC staff and “grass-roots activists” supporting the rule worked actively and exclusively to ensure not only that their comments made it into the agency, but also that the most positive public relations spin could be put on the number of activists’ comments for the media at large.  If the Post’s report is accurate, MediaFreedom believes this “unusual collaboration” undermines the Commission’s open rulemaking process, revealing in it a bias that defeats the needed reason and factual underpinning for a lawful rule to result.  To this end, MediaFreedom urges the Office of Inspector General to look into the matter to ensure that no fraud, waste or abuse in FCC programs and operations has occurred as a result of these actions.

In pertinent part, the Post report notes:

“…[The] number [of comments coming in to the FCC] that would eventually spit out of that creaky online machine mattered a great deal to those [on the left] trying to show how invested the mainstream American public had become in the net neutrality debate.  Holmes Wilson is the co-founder and co-director of Fight for the Future, one of the handful of networked activist groups leading the charge [for Title II regulations].”

 “The final count was extremely important to us,” Wilson says. “When you have a protest, the first thing anyone says is, ‘How many people came?’”

 …The ability to funnel large numbers of people through online channels of civic engagement has become a sign of tangible power.  Marvin Ammori is a lawyer and activist who sits on the board of some of the [progressive left] advocacy groups involved in the open Internet fight.

 “It’s a political question,” says Ammori, “how you count these numbers.”

 …[As the September 15th deadline for reply comments came closer, a] trail of e-mails that shot back and forth between activists and the agency around that mid-September deadline revealed an unusual collaboration. All involved saw the deluge coming, and activists — planning a one-day “Internet Slowdown” that called on the public to contact the FCC — reached out to the bureaucrats to see how they might help keep the system afloat…

 …While the agency was piecing together those measures, the advocates saw that overnight their backlog had grown to three-quarters of a million comments. But by midnight, only a fraction had been formally filed into ECFS. So they asked the agency to pass along any press inquiries to the advocacy groups so that they could relay their unofficial but accurate count.

 But press management is an imperfect science, and word that the total number of file comments was an underwhelming 100,000 found its way out of the FCC press shop. “That was wrong,” Ammori, the activist-lawyer, says of the tally. “Very wrong.” That figure, though, was printed and reprinted widely on Thursday, including — to the particular annoyance of the organizers — in the New Yorker. Feeling that they’d held back filing some of their batched comments because of the FCC’s guidance, the advocates were dismayed.

To ease minds and soothe tensions, the advocates and bureaucrats worked together to correct the record. Shortly after 1 p.m. Sept. 11, the FCC press secretary sent out a carefully crafted tweet: “Due to high number of comments received in last 24 hours, we do not yet have an official comment count. Will provide update ASAP.”

 The activists kept up their bulk submission of comments over the weekend, and by the following Monday, all were in. Near the end of the day on Tuesday, Sept. 16, the FCC spokesperson sent reporters a note with a final, official tally: some 3.7 million comments. A whopping 828,000 came in during just the last few days of the activists’ push… (All emphasis / bolds added)

It is clear from these excerpts that an extraordinary amount of FCC coordination, support and resources were devoted to the activists to help get their (and apparently the FCC’s) message out to the public.  If one took the report entirely at face value, one could be forgiven for believing that only the activists cared or commented on this issue before the agency.  Of course, that is not the whole truth of the matter.

The FCC Open Internet rulemaking will affect the prospective legal rights of others.  In accord with the Administrative Procedure Act, the Commission invited comments from all affected parties and the public at large to develop a reasoned rationale for its rule. Nearly four million comments poured into the Commission during the Comment and Reply phases of the rulemaking process.  Almost one million of those came from parties who stand against the agency’s proposed regulations.  Yet, from the Post’s article, it appears the Commission’s staff worked to advance and promote only one side of this picture – that is, those pushing for Title II-oriented regulations, and nothing else.

The one million voices against the rule were not offered any assistance to get their side of the story out.  Moreover, in “correcting the record” it seems FCC staff were willfully blind to the fact that a majority of the filings in the closing phase of the Reply Comments process came from those who did not agree with the FCC’s position.

In choosing to count only the activists’ numbers and go no further to find and publicize the true tally, the FCC purposely disenfranchised almost one-million opposing voices, simply wishing them away because they did not comport with a “narrative” that supported the agency’s position.  In doing so, the Commission’s actions say: The polls are closed and your “vote” will not be counted.  Ironically, they seem to reflect the very same type of unreasonable discrimination, which the agency seeks to “protect” the Internet from in its proposed rule.

This appearance of bias undermines the agency’s credibility, as well as its disinterested search for solutions from concerned citizens, to protect the public interest.  It limits debate, not promotes it.  Why comment when it appears that dissent will not be considered in any meaningful way? More to the point, if significant portions of the debate have been automatically red-lined as of no import, how can any resulting rule be considered “reasoned,” and thus lawful, when viewed by a court of law?

It is already bad enough that the FCC is about to impose controversial and dubious rules that lack clear and unambiguous congressional authority, essentially regulating through loophole an immense swath of our economy.  This land grab is not an exhibit of an expert agency in action for the public.  Rather, it is a political exercise, a Star Chamber. The public interest deserves better than “regulatory decisions” made by a de facto Commissioners Marvin Ammori and Holmes Wilson. “Unusual collaborations,” which put the fox in charge of the hen house are not due process.

We respectfully urge the Office of Inspector General to look into this matter to ensure that the public interest was not harmed by the reported actions.

Thanks,

Mike Wendy – Director, MediaFreedom.org

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