FCC’s Broken Comments System Could Help Doom Net Neutrality

THIS PAST APRIL, the Federal Communications Commission invited the American people to weigh in on whether the federal government should roll back the rules currently in place to protect net neutrality. By the time the online comment submission period ended last Wednesday, the agency had collected 21.9 million comments, an astounding level of participation on what at first glance appears to be a rather esoteric telecommunications policy issue. (For comparison, when the FCC received around 500,000 postcards and emails about its media ownership rule changes in 2003, it was considered a big deal. Even Janet Jackson's wardrobe malfunction at the 2004 Super Bowl garnered only about 1.4 million comments.)

So what did the people say? The industry group Broadband for America, which opposes the FCC's current rules, recently commissioned an analysis of the comments from a company called Emprata. The study determined that a majority of the comments–about 60 percent–favor keeping the FCC's current rules, which classify internet service providers as "Title II" common carriers like mobile and landline phone companies and ban them from blocking or interfering with lawful content. If you look only at unique comments, as opposed to form letters using boilerplate text, those in favor of keeping the Title II rules outweigh those who want to jettison the rules 1.52 million to 23,000.

The only hitch: the commenting process was such a debacle that the legitimacy of the entire body of comments is now in question.

Many of the comments were filed with obviously bogus names. Among the more visible cases of name theft: journalist and net neutrality advocate Karl Bode's identity was used without his consent for a comment favoring a roll back of the rules. FCC chair Ajit Pai's name was used on hundreds of comments opposing his proposal, some threatening him with death or using racial slurs. John Oliver's name was used on more than 2,000 of comments as well. On a case by case basis, these forgeries are easy enough to spot. But in aggregate, they're making it harder to draw conclusions about the overall public sentiment of the proceeding.

Starting in May, the FCC's site was also hit with what appeared to be a spambot submitting hundreds of thousands of anti-Title II comments with the exact same boilerplate language. ZDNet reported at the time that many of the people whose personal information was found in the spambot comments claimed that their identities were used without their permission. What's more, analysis by former Airbnb data scientist Jeffrey Fossett found that 75.6 percent of a random sample of the boilerplate comments contained names and addresses also found in known spam databases.

The broadband industry is now using the chaos of the comments process to claim that the public actually supports repealing Title II. Emprata, which conducted Broadband for America's analysis of the comments, found that support for Title II falls into a clear minority if you throw out all the comments that used obviously fake email addresses or invalid or duplicate physical addresses. Broadband for America is now asserting that a "clear majority favors repealing Title II," and AT&T executive Joan Marsh echoed this conclusion in a blog post this week.

There are problems with this interpretation, however. Most obvious is that just because someone didn't enter a valid address into the comment form doesn't mean their comment is illegitimate–there are good reasons for not wanting your home address or personal email address included in the public record. And just because a comment has a valid address doesn't mean it's a legitimate comment: as noted above, many of the comments in favor of repealing Title II appear to contain addresses harvested from spam databases. In other words, the broadband industry is claiming that comments containing stolen personal information are more "legitimate" than ones that oppose its own position just because the stolen addresses are valid addresses.

Making the comments even harder to analyze, the FCC refuses to remove filings that use people's personal information without their permission. "There are limits on the agency's ability to delete, change, or remove comments from the record," G. Patrick Webre, acting chief of the Consumer and Governmental Affairs Bureau at the FCC, wrote in a letter responding to Bode's request to have the comment that appropriated his identity removed from the FCC site.

Former FCC special counsel Gigi Sohn disagrees with Webre: "I can’t imagine there is nothing they can do, and I’d love to see a citation to anything that says that they cannot remove a comment that has been proven to be fake," she tells WIRED. If anything, she says, the agency might have an obligation under the Administrative Procedure Act to remove fake comments from its consideration. "At a bare minimum, they should investigate these comments and if they can’t actually remove the comments, they can and should disregard them as part of their consideration of record."

To make matters worse, the publication Hacker Noon discovered that the system the FCC uses to allow third parties to automatically submit comments allowed anyone to upload any type of file to the FCC website–including malware. The FCC declined to comment on whether its position had changed since Webre's letter, and did not respond to our request for comment on whether it would delete malware if it were discovered in the record or whether it planned to make it more difficult to upload malware in the future.

Critics argue that the FCC should have done more to prevent spamming in the first place. Sohn points out that the FCC knew a tidal wave of comments would ensue once it began the net neutrality proceedings, but the agency's information technology department didn't add new features, such as some sort of authentication system, to reduce spamming. Sohn and other critics suspect that stems from a lack of interest in the public comment system on Pai's part.

"It's hard to escape the conclusion based on Pai's behavior that he's just fine with delegitimizing the public record and making it hard to analyze," says Harold Feld of the public interest group Public Knowledge.

The FCC declined to comment on the handling of the process.

The breakdown of the public commenting system could give the FCC and the broadband industry grounds to claim that the public actually supports repealing Title II. But the problems with the system could also be used against the FCC if it's forced to defend its decision to reverse Title II in court, Sohn says. The FCC's failure to ensure the legitimacy of that public comment system could be a violation of the Administrative Procedure Act, which requires federal agencies to allow for public participation in regulatory decisions.

The problems with the FCC's discussion system could have repercussions far beyond the current net neutrality debate. Trust in the federal government and other institutions is at an all-time low, according to research conducted by groups like Pew and Gallup. The FCC had the opportunity to engage the public on an issue that many people feel passionately about. Instead, it let bad actors make a mockery of the process.