Federal Communications Commission Chairman Ajit Pai is facing mounting pressure from supporters of net neutrality to delay this week’s vote to roll back the Internet rules because of fake or fraudulent public comments filed with the commission.
The number of questionable submissions to the FCC regarding net neutrality is in the millions, according to numerous studies of the public record, and many who want to see the controversial rules remain in place worry that proceeding with the vote without addressing the state of the public record could erode the integrity of the comment process.
The FCC received an unprecedented 21.7 million comments regarding net neutrality after Pai issued a notice of proposed rulemaking to roll back the Obama-era rule in April. The rule was designed to ensure Internet service providers treat all web content equally, and prohibits them from blocking, throttling, or interfering with web traffic. Pai and other conservatives view the rule as regulatory overreach.
But individual analyses of the comments indicate a significant amount were fake, came from phony email addresses, or fraudulently used the names and addresses of Americans nationwide.
According to the FCC, more than 7.5 million comments filed with the commission about net neutrality — about one-third of the total — contained the same sentence in favor of the rules: "I am in favor of strong net neutrality under Title II of the Telecommunications Act." The comments that contained that same sentence are associated with 50,508 unique names and mailing addresses. Additionally, nearly all of these 7.5 million come from 45,000 unique email addresses created by a website that generates fake emails. It wasn't clear if those two sets of users overlapped.
Those "individuals" submitted the same comment upwards of 90 times each.
The FCC also said more than 440,000 comments in favor of net neutrality came from a single street address in Russia, and all were filed with the FCC on July 12, known as the "Day of Action to Save Net Neutrality."
The Pew Research Center, in its own study of public comments submitted to the FCC about net neutrality, found that more than half of the 21.7 million comments submitted from April 27 to the end of August used duplicate email addresses or temporary email addresses, and many senders' names showed up thousands of times in comment submissions.
The findings have raised concerns among supporters of net neutrality, who warn that moving forward with the Dec. 14 vote could further damage the faith the American people have in the federal government.
Phillip Berenbroick, senior policy counsel at Public Knowledge, said that by continuing with next week's vote despite concerns about the public record, the FCC has lost the public's trust.
“What it’s largely done is it’s undermined the public’s confidence that this FCC can deal with a pretty important regulatory proceeding, let alone one that’s so important it dictates the entire future of how the Internet will work,” he said.
“The vast majority of the public filing comments on this issue were not Internet engineers; they’re not economists; they’re not lawyers with telecom expertise. They want to make sure the Internet works in the way they’re used to it working, and they’re worried a change in the rules is going to put Comcast in charge of the way they experience the Internet,” Berenbroick said. “Having a process that lets the public weigh in is helpful because at the end of the day, it’s consumers who are bearing the burden of living under these rules. The public weigh-in in the democratic process is helpful for the commission to understand what the public that’s going to be governed by this thinks about this issue.”
Federal agencies such as the FCC are required to accept public comments under the Administrative Procedure Act, which allows for public participation.
But if that comment process is infiltrated by bots and the public record saturated with fake comments, the public could be discouraged from participating in the future, warned Gigi Sohn, a distinguished fellow at the Georgetown University Law Center Institute for Technology Law and Policy.
“It goes right to the heart of the integrity of the process. If bots and other fraudsters can just load up the docket with public comments, what’s the whole point of having a comment process?” Sohn, who served as counselor to former FCC Chairman Tom Wheeler, said.
Sohn said it’s not uncommon for federal agencies to have problems with the public comment process. When the FCC first accepted public comments on net neutrality in 2014, it received 4 million submissions during the entirety of the process, and Sohn said they would encounter issues with the system where it would “literally melt down.”
But the FCC made it a priority to ensure it had the capacity to accept large numbers of comments.
Now that the commission is grappling with more than just system issues, Sohn said she believes this experience with inspire change and due diligence government-wide.
“There’s so much more that can be done to make sure the public has input,” she said.
Supporters of net neutrality are already exploring legal options for challenging Pai’s proposed roll back of the Internet rules in court. Berenbroick said the prevalence of the fake and fraudulent comments will only buttress arguments for the courts to strike down Pai’s rollback.
“When you have the amount of fraud that’s potentially taking place in this record, when there’s litigation over this rule change, the FCC is going to have to go before an appellate court and explain why it did what it did, why the decision wasn’t arbitrary and capricious,” he said. “[Pai] has to go to the circuit court and defend that, and we think what he might have created is a lack of oversight of the docket and disinterest in making sure the docket has integrity.”
The FCC is scheduled to vote on repealing net neutrality Dec. 14, but the number of fake and fraudulent comments submitted to the FCC prompted more than two dozen Democratic senators, led by Sen. Maggie Hassan, D-N.H., to call for it to be delayed.
“A free and open Internet is vital to ensuring a level playing field online, and we believe that your proposed action may be based on an incomplete understanding of the public record of this proceeding,” the senators wrote in a letter to Pai. “In fact, there is good reason to believe that the record may be replete with fake or fraudulent comments, suggesting that your proposal is fundamentally flawed.
“Without additional information about the alleged anomalies surrounding the public record, the FCC cannot conduct a thorough and fair evaluation of the public’s views on this topic, and should not move forward with a vote on December 14, 2017,” they continued.
Joining the Democrats in their calls were New York Attorney General Eric Schneiderman and FCC Commissioner Jessica Rosenworcel.
Schneiderman’s office has been investigating comments submitted to the FCC regarding net neutrality, and found that “tens of thousands” of New Yorkers’ identifies, as well as the identities of residents of six other states, were misused to file the comments, a potential violation of state law.
“They just have to stop this vote,” Schneiderman said during a press conference last week. “You cannot conduct a legitimate vote on a rulemaking proceeding if you have a record that is in shambles, as this one is.”
Rosenworcel, one of two Democrats on the commission who are expected to oppose Pai’s repeal of net neutrality rules, echoed Schneiderman’s call.
“It is clear that our process for serving the public interest is broken,” she said. “The integrity of our public record is at stake, and the future of the Internet depends on it.”
Sohn said at this stage, with the vote just days away, the best course of action is for Pai to postpone it.
“What’s the rush?” she said. “We have rules in place. They work; the world is not falling apart. They’re popular with the American public. [Internet service providers] are making money hand over fist. What’s the problem? He needs to take a pause. … He has a chance to show the American public they should have faith in this institution.”
Pai has indicated this week’s vote will continue as planned, and in a fact sheet published by the commission detailing the chairman’s proposal to replace the current net neutrality rules, the chairman said the “commenting process is not an opinion poll — and for good reason,” as evidenced by the millions of fake and fraudulent comments filed.
For Jessica Melugin, an adjunct fellow at the Competitive Enterprise Institute, moving forward with the vote is the right response.
“No one could argue with a straight face that there hasn’t been a healthy amount of public debate on the issue of net neutrality,” she wrote in a blog post. “While the sheer volume of press coverage, policy work, and ill-informed celebrity tweets is beyond question, the healthiness of the debate has been suspect. Some opponents of the rollback have resorted to using racist slurs against Chairman Pai and even harassing his family at their home.
“While the FCC has welcomed input from many interested parties, the public comments were never intended to be a direct democracy vote by the public at law.”
At this point, Melugin said, the only opinions that count are of those named to the commission.
“The same is true of the FCC commissioners that will vote later this month on rolling back harmful Internet regulations,” she said. “For now, the only opinions that count are theirs.”