The Federal Communications Commission has denied a request to extend the deadline for filing public comments on its plan to overturn net neutrality rules, and the FCC is refusing to release the text of more than 40,000 net neutrality complaints that it has received since June 2015.
The National Hispanic Media Coalition (NHMC) filed a Freedom of Information Act (FoIA) request in May of this year for tens of thousands of net neutrality complaints that Internet users filed against their ISPs. The NHMC argues that the details of these complaints are crucial for analyzing FCC Chairman Ajit Pai's proposal to overturn net neutrality rules. The coalition also asked the FCC to extend the initial comment deadline until 60 days after the commission fully complies with the FoIA request. A deadline extension would have given people more time to file public comments on the plan to eliminate net neutrality rules.
Instead, the FCC yesterday denied the motion for an extension and said that it will only provide the text for a fraction of the complaints, because providing them all would be too burdensome. Pai has previously claimed that his proposed repeal of net neutrality rules is using a "far more transparent" process than the one used to implement net neutrality rules in 2015. Pai has also claimed that net neutrality rules were a response to "hypothetical harms and hysterical prophecies of doom" and that there was no real problem to solve.
The NHMC believes that consumers' net neutrality complaints might contradict Pai's claims that there are no real problems addressed by net neutrality rules. The NHMC says the FCC "must produce the approximately 47,000 open Internet complaints that it has received [since June 2015] and documents related to the open Internet ombudsperson's interactions with Internet users."
"The Commission has already failed to meet the FOIA deadline, and FCC FOIA officers have offered several inconsistent timelines for document production, ranging from six months to two years," the NHMC said in its motion for an extension of the net neutrality comment deadline.
The commission's Notice of Proposed Rulemaking (NPRM) that proposes overturning the net neutrality rules asks the public for comment on various issues. The NHMC points out that the document asks the public if there is "evidence of actual harm to consumers" or evidence that Internet access has improved since the net neutrality rules were approved. Those questions could be answered by releasing all the net neutrality complaints, the group says.
"These questions seek evidence that the Commission holds in its exclusive possession," the NHMC said in its motion for a delay.
But the FCC says it has done enough to comply with the FoIA request. FCC official Daniel Kahn wrote:
We note that Commission staff could have denied NHMC's FOIA request on its face as unreasonably burdensome under the FOIA. In order to release all 47,000 complaints to NHMC, Commission staff would have had to review and redact personally identifiable information from each one of those complaints, which would have been unreasonably burdensome. Rather than simply denying the FOIA request, however, the staff has worked diligently with NHMC to provide it with responsive information in a reasonable time frame, while still protecting the personally identifiable information of thousands of consumers. On June 20, 2017, Commission FOIA staff provided NHMC with approximately 1,000 responsive complaints. Consistent with an oral offer on July 5, 2017, staff made a written offer on July 14, 2017 to provide NHMC by September 1, 2017 an additional 2,000 complaints, the accompanying carrier responses, 1,500 related emails, and an Excel spreadsheet of all 47,000 complaint numbers and additional requested data fields.
FCC decision robs public of “critical information”
The NHMC is not happy about the FCC's decision. When contacted by Ars, NHMC Special Policy Advisor Gloria Tristani said:
The FCC's denial of our motion is shortsighted, denies the public critical information, and flies in the face of their acknowledgment that they have received over 47,000 open Internet complaints since the 2015 net neutrality rules were enacted. It should give the public pause that the agency with exclusive control over regulating Internet service providers refuses to share such information with the public. The information is within the FCC’s exclusive control and was completely ignored in the NPRM.
The initial comment deadline on the net neutrality proceeding passed yesterday. Officially, the FCC will take reply comments until August 16, but it's possible to make filings after that.
"NHMC is free to address the relevance of any additional documents to this proceeding in its reply comments or in ex parte filings, as the docket in this proceeding does not close when the comment cycle has ended," the FCC said.
If the FCC started delaying comment cycles "in response to FOIA requests that require extensive redactions, it would provide parties that oppose particular proceedings an avenue to grind those proceedings to a halt," the commission said.
Freedom of Information Act
The FoIA law requires government agencies to make information available to the public upon request, with some limitations. A Department of Justice FoIA guide says that agencies can't necessarily deny FoIA requests simply because they are too burdensome.
FoIA requests must "reasonably describe" the records sought, but "the fact that a FOIA request is very broad or 'burdensome' in its magnitude does not, in and of itself, entitle an agency to deny that request on the basis that it does not 'reasonably describe' the records sought," the DOJ says.
The most important factor "is the ability of an agency's staff to reasonably ascertain exactly which records are being requested and then locate them," the DOJ wrote. "The courts have held only that agencies are not required to conduct wide-ranging, 'unreasonably burdensome' searches for records."
In this case, the FCC objects to the burden of reviewing and redacting the records, rather than the burden of searching for them. But that same DOJ guide points to a 1990 court decision that found overly broad requests can be unreasonable even if the FoIA requester did a good job identifying the documents. Even if documents are reasonably described, requests that "require the agency to locate, review, redact, and arrange for inspection a vast quantity of material" can be "so broad as to impose an unreasonable burden upon the agency," a federal appeals court said.
FCC complaints
The NHMC asked the FCC for the text of informal complaints, which can be filed by Internet users by calling the FCC, via mail, or in the commission's online complaint center. Complainers can select any category they wish, including "Open Internet/Net Neutrality" issues. The FCC forwards the complaints to ISPs, and they are required to respond to the commission and the customer within 30 days.
Because filing a complaint under any category is so easy, not all complaints filed under net neutrality allege violations of the specific net neutrality rules that outlaw blocking, throttling, and paid prioritization. One FoIA request in 2015 turned up complaints about slow speeds, high prices, and data caps filed against ISPs such as AT&T, Comcast, Verizon, and CenturyLink. The net neutrality order did require ISPs to be "just" and "reasonable" with their prices and practices, so one could argue that a broad range of behavior qualifies as violations.
The NHMC told Ars that it "conducted a cursory analysis" of the complaint data it received from the FCC, and the coalition will include the analysis in comments it will file on the FCC plan this week.
"It's important to remember that the 1,000 complaints received were incomplete and included nothing about the carrier response or how the complaints were resolved," the NHMC said.
In December 2015, we published an extensive review of FCC complaints filed in the availability, billing, and speed categories.
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