FCC Refuses to Turn Over Records to NY Attorney General in Net Neutrality Probe

Eric Schneiderman

WASHINGTON — The FCC is declining New York Attorney General Eric Schneiderman’s request to turn over records related to the agency’s net neutrality proceeding, citing concerns over privacy and security.

The FCC’s general counsel, in a letter to Schneiderman, also dismissed his concerns that the volume of fake comments or those made with stolen identities have “corrupted” the rule-making process, and its Dec. 14 vote on Chairman Ajit Pai’s proposal to repeal existing net neutrality rules should be delayed.

“As in many important rule makings, this proceeding carries the potential for advocates on either side to abuse the process to create the appearance of numerical advantage,” FCC General Counsel Thomas Johnson wrote in a letter to Schneiderman on Thursday. “But the Commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position has greater support, nor does it attribute greater weight to comments based on a submitter’s identity.”

The FCC received almost 23 million comments on its net neutrality proceeding, shattering previous records on public comments on a major policy issue. But questions have been raised about the source of hundreds of thousands, if not millions, of the filings.

In a press conference on Monday, Schneiderman said his own office’s review of the public filings showed that about 1 million comments may have used names that were in fact stolen identities. There also have been studies showing that millions of comments came from email domains linked to fakeemailgenerator.com.

Schneiderman complained that the FCC had not responded to his requests for logs that would shed light on the source of the comments.

Johnson said Schneiderman has offered “no evidence” that the filing of comments under false names “affected the commission’s ability to review and respond to comments in the record.”

“Rather than dwell on how accurately automated or form submissions reflect actual popular support, the commission has instead focused on encouraging robust participation in its proceedings and ensuring that it has considered how the substance of submitted comments bear on the legal and public policy consequences,” he wrote.

He also said Schneiderman cited no authority as a state official to investigate a federal agency’s rule-making process. He added that Schneiderman’s request for logs of IP addresses would be “unduly burdensome” to the commission, and would “raise significant personal privacy concerns.”

Amy Spitalnick, Schneiderman’s press secretary, said in a statement that the FCC “made clear that it will continue to obstruct a law enforcement investigation.”

“It’s easy for the FCC to claim that there’s no problem with the process, when they’re hiding the very information that would allow us to determine if there was a problem.”

“To be clear, impersonation is a violation of New York law,” she said. “Thousands of people have already reported to us that their identities were stolen and used without their consent to submit comments to the FCC. The only privacy jeopardized by the FCC’s continued obstruction of this investigation is that of the perpetrators who impersonated real Americans.”

Commissioner Jessica Rosenworcel, a Democratic member of the commission, continued to call for a delay in the vote.

“This letter shows the FCC’s sheer contempt for public input and unreasonable failure to support integrity in its process,” she said in a statement. “To put it simply, there is evidence in the FCC’s files that fraud has occurred and the FCC is telling law enforcement and victims of identity theft that it is not going to help. Moreover, the FCC refuses to look into how nearly half a million comments came from Russian sources.”

She was referring to a Bloomberg report of Russian sources for hundreds of thousands of comments.

Pai’s proposal calls for repealing many of the existing net neutrality rules, including those that ban ISPs from blocking or throttling content, or from selling “fast lanes” so content companies can get speedier access to consumers. The FCC would still have rules in place that require that internet providers disclose how they manage internet traffic.