FCC Commissioner Jessica Rosenworcel on Friday accused her agency of withholding evidence of fraud, further intensifying the ongoing battle over the future of net neutrality.
FCC Commissioner Jessica Rosenworcel testifies before the Senate Commerce, Science and Transportation Committee during her confirmation hearing on Capitol Hill July 19, 2017 (Photo: Getty)
"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," Rosenworcel said in a statement to Gizmodo. "Moreover, the FCC refuses to look into how nearly half a million comments came from Russian sources. Failure to investigate this corrupted record undermines our process for seeking public input in the digital age."
Rosenworcel's heated comments come in response to a clash between the Federal Communications Commission and New York Attorney General Eric Schneiderman over his office's investigation into fraudulent comments submitted to the FCC regarding agency Chairman Ajit Pai's plan to dismantle federal net neutrality rules.
On Thursday, Thomas Johnson, the FCC's general counsel, sent a letter to Schneiderman. In it, he writes that the FCC has no intention of complying with requests for information that Schneiderman contends is critical to uncovering who sent the fake comments, which may have used the names and addresses of millions of American citizens without their consent.
At a joint press conference on Monday, where Rosenworcel also spoke, Schneiderman said the identities of as many as 50,000 New Yorkers may have been used without their permission in an effort to influence the outcome of Chairman Pai's proposal to rollback net neutrality rules.
Under the Administrative Procedures Act, federal agencies are required to solicit and consider relevant comments from the public whenever issuing what's called a Notice of Proposed Rulemaking (NPRM). Pai's NPRM would reverse rules passed in 2015 that reclassified internet service providers like Verizon and AT&T as "common carriers" under Title II of the Communications Act, putting them under the same regulatory classification as utility companies.
Under the rules that Chairman Pai and his fellow Republican commissioners intend to dismantle, ISPs are forbidden from introducing new pricing models that would charge customers different prices to access different kinds of online services. It further prevents them from blocking access or slowing down traffic to certain websites or online services while speeding up access to others.
The FCC will vote on Pai's proposal on December 14th. It is almost certain to pass given the commission's Republican majority.
Johnson's letter touts the "unprecedented amount of public participation and transparency" in the FCC's rulemaking process this year; he also says the FCC is refusing to turn over any technical information that might hint at the identities of those responsible for flooding the agency's public comment system with stolen names and addresses. It attacks the New York Attorney General's Office over what Johnson claims is a lack of jurisdiction and dismisses the notion that the FCC should confirm the identities of anyone who uses the system.
"As in many important rule makings, this proceeding carries the potential for advocates on either side to abuse the process to create an appearance of numerical advantage. 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 the submitter's identity. Accordingly, the Commission has never burdened commenters with providing identity verification or expended the massive amount of resources necessary to verify commenters' identities. Rather than tweet 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 of its actions."
It's true, the number of comments for or against any proposed rule in no way influences the FCC's decision. Only substantive comments are reviewed by the agency — voluminous papers submitted by authorities on the rules from academia to industry. Given Chairman Pai's blanket dismissal of concerns over his plan, the only opinions he seemed interested in hearing this year came from the corporations that stand to profit most by his decision.
According to Rosenworcel, who is a Democrat, the FCC is abdicating its responsibility to uphold the legitimacy of the public-commenting process. And she did not mince words. In the statement to Gizmodo, she accused her own agency of withholding evidence of fraud:
"In a letter dated yesterday that was handed to press but is unavailable on the FCC's website, the agency refuses to assist New York Attorney General Schneiderman's investigation into the identity theft of a million consumers in the FCC's net neutrality record. This letter shows the FCC's sheer contempt for public input and unreasonable failure to support integrity in its process. 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. Failure to investigate this corrupted record undermines our process for seeking public input in the digital age."
"This is unacceptable," added Rosenworcel. "Until we get to the bottom of this mess with a proper investigation, no vote should take place."
Schneiderman's press secretary, Amy Spitalnick, went further, accusing Pai and his team of obstructing 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," she said. "To be clear, impersonation is a violation of New York law. 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."
Added Spitalnick: "Everyone — especially the FCC — should want to get to the bottom of this before deciding vital public policy based on a corrupted process that seemingly involved illegal activity."