FCC Net Neutrality Vote Moving Ahead Despite Calls for Delay Due to Process Probe, FTC Case

Consumer advocates asked the FCC to delay the vote until resolution of a pending en banc review of FTC v. AT&T Mobility in the 9th U.S. Circuit Court of Appeals. "The Ninth Circuit might decide that the FTC has no jurisdiction over broadband providers," said Public Knowledge, noting FCC Republicans are counting on FTC broadband consumer protection to help address any potential harms. An FCC spokeswoman emailed that "this is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai’s plan to restore Internet freedom has stalled."

The FCC Inspector General office volunteered to help, in a Monday email to the New York AG office, after months of Pai “stonewalling,” Schneiderman said. The AG contacted the FCC nine times to no avail, then last month wrote an open letter to Pai about the allegedly fake comments. Last week, the AG office asked New Yorkers to check for and report misused identities through a state website.

“They just have to stop this vote,” Schneiderman told reporters, urging Pai to support state and federal probes and not vote on net neutrality until they are complete. “You cannot conduct a legitimate vote on a rulemaking proceeding if you have a record that is in shambles.” The AG said the process is “deeply corrupted,” with about 8 million comments using fake names and another 1 million that fraudulently used names of real people, including 50,000 New Yorkers. One of the fraudulent names was the daughter of an AG staffer, he said. The Democrat said the probe isn’t political, with his office investigating fake comments supporting and opposing the Pai proposal. The FCC rulemaking process transcends one issue, and Congress may want to weigh changes, Schneiderman said.

The FCC shouldn’t act “until a credible investigation is completed,” said Rosenworcel: “I call on my colleagues to halt this vote until we get to the bottom of what has happened with these stolen identities and the quality of our public record.” She said fake comments came from people elsewhere, including in California, Georgia, Missouri, Ohio, Pennsylvania and Texas. And 50,000 consumer complaints are missing from the record and GAO is investigating an alleged distributed denial-of-service attack, Rosenworcel said: “What you have is a record that is hard to trust.”

Clyburn, Too

Commissioner Mignon Clyburn tweeted about the missing consumer complaints mentioned by Rosenworcel. In May, the National Hispanic Media Coalition asked the FCC to turn over net neutrality consumer complaints. “Seven months later, why hasn’t @FCC turned over nearly 18,000 responses from #broadband providers?” Clyburn tweeted Monday. “While the @FCC turned over 50,000+ #NetNeutrality documents in response to this record request, they won’t put them in the official record. What is the @FCC majority trying to hide? ... 50,000 #NetNeutrality consumer complaints vs. the @FCC majority’s draft order that says no conduct rules are necessary. Anyone else see the irony?”

Washington state is weighing how to respond to the FCC net neutrality proposal, and may say more later this week, a spokeswoman for Gov. Jay Inslee (D) said Monday. “Of course, the comments are concerning, but our focus is the impact on our state.”

A Rosenworcel/Schneiderman news briefing "didn’t identify a single comment relied upon in the draft order as being questionable," emailed an FCC spokesman. "This is an attempt by people who want to keep the Obama Administration’s heavy-handed Internet regulations to delay the vote because they realize that their effort to defeat the plan to restore Internet freedom has stalled.”

The FCC should delay the vote and scrutinize the comments, said Sen. Maggie Hassan, D-N.H., and 27 other senators not from the GOP, in a Monday letter. "There is good reason to believe that the record may be replete with fake or fraudulent comments, suggesting that your proposal is fundamentally flawed."

Pushback

“Calls for delay are only a recipe for mutually-assured distraction,” USTelecom CEO Jonathan Spalter responded. “Numerous substantial, factual comments have been filed in this proceeding from all sides. Rather than be diverted by bots, let’s focus on what’s important -- ensuring workable net neutrality protections.”

It’s fine to investigate fake comments, but Schneiderman isn’t a credible investigator, National Legal and Policy Center President Peter Flaherty blogged Monday. Schneiderman is “a screaming partisan,” said Flaherty, saying the center doesn’t have a position on net neutrality. The AG and Rosenworcel’s “real agenda” is delaying the vote, he said. Media Freedom President Mike Wendy said it's hypocritical of Rosenworcel to complain about the FCC comments system because former Chairman Tom Wheeler ignored the system's problems.

The Office of General Counsel has noted a dozen sources it consulted in crafting the draft's proposed rules, beyond those cited in the draft. The filing posted Monday named articles including by ex-Obama administration Office of Management and Budget Office of Information and Regulatory Affairs Administrator Howard Shelanski "Adjusting Regulation to Competition: Toward A New Model for U.S. Telecommunications Policy." Co-written by now-ex FTC GOP member Joshua Wright, another article cited was "The Goals of Antitrust: Welfare Trumps Choice."

The Free State Foundation circulated a collection of short essays by board members on the "internet freedom" draft.

Public Knowledge and 40 others, including New York City, sought the FCC vote delay because AT&T Mobility could undermine FTC ability to protect broadband consumers. “Rushing to a vote before the Ninth Circuit resolves this decision cavalierly risks the purported safeguards that you and other supporters of the Draft Order have repeatedly declared will protect consumers from abusive or anti-competitive practices," said their letter to Pai Monday in docket 17-108. Pai and others say undoing the FCC's 2015 decision that subjected broadband providers to common carrier regulation will restore FTC authority to protect broadband consumers, including their privacy (a statutory exemption bars the FTC from overseeing common carriers).

The 9th Circuit is reviewing en banc a three-judge panel's ruling that the FTC is barred from overseeing the noncommon carriage activities of common carriers (see 1709190025). The FCC draft order rejected arguments based on the panel's decision, noting the 9th Circuit set it aside during its en banc review. "In light of these considerations and the benefits of reclassification, we find objections based on FTC v. AT&T Mobility insufficient to warrant a different outcome," the draft said (paragraph 180).

“Astoundingly, after committing the entire future of consumer protection from broadband access providers to the FTC, the Draft Order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job," which "raises the question as to whether the proposal takes even its own fig leaf of consumer protection seriously," said the letter. It said the question isn't, as the draft "seems to imagine," whether the panel decision is in effect, but whether "the en banc panel will likewise deprive the FTC of jurisdiction over broadband access providers.” The "potential regulatory gap is further complicated" by the draft's "purported preemption of any state regulations the FCC deems 'incompatible' with the newly announced 'deregulatory' federal policy," it said.

Amazon continues to support net neutrality protections. "We stressed the need for enforceable, bright-line rules to protect the open Internet and guard against anti-consumer and anti-competitive activities," the company said in a filing posted Monday on meetings with Rosenworcel and aides, and with an aide to Commissioner Mike O'Rielly. It also sought additional spectrum resources in the 3.5 GHz and 6 GHz bands.