FCC Seeing Unprecedented Delays Getting Filings Online as Net Neutrality Comments Clog System
The FCC Electronic Comment Filing System continues to sag under the weight of tens of thousands of net neutrality filings, resulting in the unusually late posting of comments in the net neutrality and other dockets. Comments on competitive bidding procedures for the AWS-3 auction were due at the FCC June 9. None was posted on ECFS before Friday. Other dockets are seeing similar delays, with comments posted days after they hit the agency. AT&T filed its public interest statement on its proposed buy of DirecTV Wednesday (CD June 12 p8). It was made available on ECFS Monday (http://bit.ly/1siRexB).
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Fletcher Heald attorney Mitchell Lazarus said Monday that in all the years he has practiced law as a member of the communications bar, he has never seen the kind of multiday delays that are being seen now at the FCC. “The Internet has become so important in people’s lives so that almost everybody in the country is affected by the outcome,” he said. The FCC rarely takes on an issue that is of importance to such a large number of Americans, he said.
ECFS is running 24 hours a day but has struggled to keep up, FCC officials said. Part of the problem has been the large number of attachments accompanying filings, which has slowed the upload of documents without attachments, as well. The FCC has officially logged more than 173,000 filings in 14-28, the main net neutrality docket, as of Monday afternoon, with more than 120,000 in the past 30 days alone.
In an April blog post, FCC Chief Information Officer David Bray noted that many of its systems are at least 10 years old (http://fcc.us/1lz6ZeE). One FCC official said it’s ironic that the net neutrality proceeding is showing the need for bigger pipes to the FCC.
"It certainly makes it hard for lawyers when they're in a decisionally critical time to keep track of what’s going on in their proceedings,” said telecom lawyer John Nakahata of Harris Wiltshire. The challenge is greater when a proceeding is coming to a close, said a former FCC official who represents broadcasters. “The whole purpose of ex parte rules is that things get posted so you know who is talking to whom."
The issue is likely only temporary, said Drinker Biddle broadcast attorney Howard Liberman. “If someone needs extra time for reply comments, I am sure the commission would approve a request for extension of the deadline.” A lawyer who represents wireless clients noted there are many quickly moving, highly competitive proceedings before the agency: “The delay has been frustrating and defeats the timelines established in the FCC’s new ex parte rule.” (http://fcc.us/UGmaJw)
Matt Wood, Free Press policy director, said he wished ECFS were faster and the upload process smoother. “But I don’t wish there were fewer comments or less interest in this one highly important docket,” Wood said.
The flood of net neutrality filings is having the same impact as a denial of service attack, said Public Knowledge Senior Vice President Harold Feld. But the commission is “stuck” with the budget approved by Congress, he said. “If this persists, the FCC might want to think about extending deadlines so that participants in other FCC proceedings are not penalized for what is a very positive exercise in civic engagement.”