The FCC’s Democratic Commissioners on Net Neutrality Vote: ‘We Have a Mess on Our Hands’ (THE VERGE)

By Colin Lecher (https://www.theverge.com/2017/12/12/16766324/fcc-commissioners-clyburn-rosenworcel-net-neutrality)

In 2015, when the Democrat-led FCC passed strong net neutrality regulations, one widely circulated photo became emblematic of the moment. In it, the three Democratic commissioners — Mignon Clyburn, Jessica Rosenworcel, and Tom Wheeler — linked hands and smiled from the dais, enjoying the moment before the vote. The two objecting Republicans on the Commission, including now-chairman Ajit Pai, are nowhere to be seen

This week, the commission will vote on a rollback of those rules, spearheaded by Pai. Appointed to the chairmanship by President Trump, Pai now heads a Republican majority at the commission, where two of the Democratic Commissioners in the 2015 photo, Clyburn and Rosenworcel, are still serving. 

The vote comes amid serious controversy, not only over the rollback itself, but the surrounding process. Fake comments using stolen identities have appeared in droves on the FCC’s docket, and the New York attorney general says he’s been blocked from investigating, appearing last week at a press conference alongside Rosenworcel. Pai has also claimed that the docket was targeted by denial-of-service attacks — a claim that has been met with skepticism. 

Regardless, the rollback is expected to pass by a 3-2 margin on party lines. In separate phone interviews conducted last week, The Verge spoke with commissioners Clyburn and Rosenworcel about this week’s vote, and what happens next. 

Interviews were conducted separately. They have been condensed and edited. 

 

COMMISSIONER ROSENWORCEL

Broadly, outline for us the stance that you’ve had on the proposal that’s being voted on this week.

I think the United States internet economy is the envy of the world, and our digital age success is due in large part to the openness of the internet. That openness, and that policy of openness, is what net neutrality is all about. So I support net neutrality, and I think it is important for this commission to sustain that policy. I’m worried that [this week] the commission is going to wipe out net neutrality policies and eliminate internet openness as we know it. That will have big consequences for everything that the internet touches in this country, and that means every aspect of civic and commercial life.

And what are some of those consequences?

Without net neutrality rules, we will provide our broadband providers with the power and authority to block websites, to throttle services, and to censor and manipulate online content — to change the open internet we know. And the consequences for all of us who count on being able to go where we want, and do what we want without our broadband provider in the way, could be big.

I wanted to talk about the conference that you gave with the New York attorney general, specifically about the controversy over these fake comments. What were the concerns? 

There are real problems in the record we have.

 

 

 I think right now the record in response to our rulemaking on net neutrality has over 23 million comments, and in many ways that’s very exciting because the public is speaking out in droves on this issue. They’re petitioning Washington and telling them they care about these matters, and they’re asking for people in Washington to listen. At the same time, what we found, like the New York attorney general, is that there are real problems in the record we have. There are as many 1 million stolen identities in our record, and that’s identity theft, where people’s names and addresses have been taken and comments have been submitted on their behalf, without their knowledge. We also have roughly half a million comments filed from Russian email addresses, and then we’ve got 50,000 consumer complaints that were filed at this agency that are somehow not present in the FCC record. And on top of that, we’ve had an allegation of a distributed denial-of-service attack, which is under investigation by the Government Accountability Office. So you add all of this up, and you have a record here that is a mess and its integrity is in question. I think it is important to get to the bottom of this problem and particularly the stolen identities before this agency proceeds. I have never seen identity theft in a public regulatory record of this magnitude in any proceeding I have worked on here at the agency or elsewhere. 

Do you believe that the vote should be postponed until an investigation is conducted?

There’s something wrong. Roughly a million people have had their identities stolen and comments filed in our docket. There’s a problem here, under state law and possibly under federal law. And instead of responding to this with concern, this agency, through its general counsel’s office, has responded back to the attorney general and said there’s nothing to see here, we’re moving on. I think that that’s a problem because it seems like there are laws that have been violated, but I also think it’s a problem because it shows contempt for the public, many of whom filed on this because they wanted us to listen. But also because there are people whose identities have been stolen. We have got to get to the bottom of that. That is bigger than just net neutrality, it’s about public participation and Washington proceedings in the digital age. We have got to find a way to make sure that our records are secure. Integrity in our public records matters. I don't think we should dismiss these concerns out of hand. I think we have to get to the bottom of them.

As a commissioner, do you feel like you know more now than when this was first revealed? And who’s responsible within the FCC for making sure these things get investigated?

We have a mess on our hands.

I’m learning more every day, but I think this agency needs to halt, stop, and figure out what happened. We have a mess on our hands, and there are real questions about public integrity that need to be answered before we proceed. 

You mentioned the general counsel. Is that the person who should be making decisions about whether to cooperate with things like this? I’m just trying to figure out where the buck stops on this kind of thing.

I think, ultimately, this is a decision that was made by the chairman. That’s the structure of the Communications Act. Under section five of the law, he has singular control and authority over the agenda of the agency.

The New York attorney general made it very clear that he feels like he’s being stonewalled. What do you attribute that to?

It has been regular and customary practice for federal authorities to work hand in hand [with] their state counterparts to get to the bottom of problems like this. Our failure to cooperate with our colleagues at the state level feels unusual and to me does not seem right.

I think that the claim that we had a DDoS attack is suspect.

You also mentioned the denial-of-service attack. I think questions have similarly been raised about what happened there. Do you feel like you or the agency is any closer to figuring either what happened, or who may have been responsible for that?

No, I think that the claim that we had a DDoS attack is suspect, and as a result members of Congress called for an investigation into that claim, and the Government Accountability Office is investigating. Very little evidence has been offered publicly to suggest that that claim is correct. That’s a problem.

But that’s not something that you as a commissioner can unilaterally look into? That’s something that the chairman can block you all from figuring out?

Well, he’s got control over the agency and its facilities to a much greater degree than I. That’s the way it works. 

One thing I’ve heard a lot is that this proposal would put power back in the hands of the FTC, and that’s where it should reside. I’m curious what you think there. 

I think that’s a duck and a dodge. The FCC is the nation’s preeminent communications authority. Network and engineering authority does not reside at the Federal Trade Commission. Moreover, under current law there are real questions about whether the FTC has authority over these issues based on a case out of the Ninth Circuit, which suggests that any company that also offers telecommunications service, or telephony, does not have authority over broadband service. I think there are real problems with that Ninth Circuit case and there are big questions about whether the agency has jurisdiction. So the agency somehow abdicates its authority, tries to pass it off to an agency that may not have jurisdiction and simultaneously clears the field for state authorities and state actors who might want to engage in consumer protection. Somebody has to explain to me how this is good for consumers who rely every day and every aspect of their lives on their broadband connection. I have a hard time believing that approach is in the public interest. 

The agency has made it very clear that it is on a deregulatory path. Is there anything else outside the scope of this, or on this topic, that you’re looking at right now and thinking about?

I don’t think these issues are about regulation or deregulation. I think they are about protecting the public, serving the consumer, and making sure that we have a strong and viable digital economy in the future. That’s the prism through which I look at all of these issues. And it’s one that I hope my colleagues will do going forward, too. And in this case I’m worried that they’re not.

 

COMMISSIONER CLYBURN

What’s your stance on the proposal that the commission is voting on this week?

It is incredibly problematic for the American people. If you care about openness and transparency; if you care about enhanced opportunity, whether it is our access to our online services and opportunities, whether it’s the FCC enabling through its universal service program, opportunities to build infrastructure, particularly in rural communities, where there are serious divides, economic, technology, and infrastructure divides; if you care about that and more, then what the majority is poised to vote to do is incredibly problematic. It is incredibly hurtful when it comes to innovation and investment and opportunity. And it is totally against our founding principles, when you talk about freedom of expression, openness, and clarity when it comes to platforms being able to communicate freely. All of these things will be at risk if we move ahead on December 14th and do what the FCC majority has proposed. 

There’s a Republican majority right now, and I think a lot of people watching expect that the proposal will pass. Is that the working expectation that you’re using right now?

I only see them listening to a handful of providers and companies 

 

 

I have not seen any type of deviation from the taking points of the FCC majority, so I see no movement when it comes to the millions of comments that came in to the contrary. The majority of the legitimate commenters that have participated in this process are clearly in favor of the 2015 net neutrality, or open internet, order. But I see them not listening to those people, I only see them listening to a handful of providers and companies, and others who might be supportive, of the handful of multibillion-dollar businesses. So clearly I expect them to vote on the side of eliminating choice and certainty, and weakening consumer legal protections. I clearly see them voting in favor of threatening innovation and restricting activism. I clearly expect that on the 14th. It is a shame that we’re talking about this, but I clearly expect them to move in that direction. 

 

You mentioned “legally sustainable.” I think that’s something that a lot of people are hanging their hat on now. Do you, one, expect lawsuits, and do you encourage challenges on that front?

I have no doubt in my mind. It has been practice at this agency that parties who are in disagreement with the decisions that we make, that they will file suit. This is a very significant item, and I expect that the parties that think undoing this light touch Title II classification and approach, that they would think it’s the wrong thing and they would seek relief in the courts system. I am very happy that the FCC does not have the final word, and I am hopeful that a panel, a court, will affirm that the 2015 order, that has already been affirmed by the DC Circuit, should stand.

I am very happy that the FCC does not have the final word.

I know you specifically pointed to part of the proposed rules that would block states from establishing their own versions of this. 

My goodness, it’s perplexing to me that a majority that talks about states’ rights and other opportunities, and enabling opportunities, would be in favor of closing the door for those same very states — that we would basically close the door on them from providing and enabling opportunities and services and being able to tailor-make opportunity. Their constituents, they expect that of them, and we’re closing the door on that, and I really question whether we can legally do that. Surely we should not do that as a federal partner to the states, but I question — honestly, not being a lawyer — but I question not only the legality of the direction that they’re headed, because I think it’s problematic. I think it’s a slap in the face when it comes to this federal-state partnership that we have. It’s problematic, and I think we’ll pay the price for it down the road.

Do you think states themselves will step up with litigation?

I would be surprised if there are not some key states that would challenge. I have heard whispers that there a number of states who find this problematic. Again, a partnership, when it comes to providing these enabling opportunities and services, is preferable. It cuts down on the tension, it cuts down on the amount of time that we have in court. Foreclosing opportunities, telling the states that you have no role, ensuring that you have enhanced and more robust economic opportunities, that you are a partner in promoting competition and inclusive engagement, that is honestly... I’m at a loss for words. I just find that not only perplexing, but traditionally, with my family’s history, the federal government has been that one positive backstop when it comes to opportunity, and enabling of either infrastructure or of rules of law. We’re turning our backs on an incredible history that we have enjoyed, particularly in the last few decades, and I just find that incredibly hurtful and problematic, particularly given my family’s civil rights history. It’s just hurtful, and I think it’s counterproductive.

You mentioned the comments and I wanted to talk through that. Obviously there’s been a lot of controversy over the fraudulent comments and the way the process unfolded on this. People are pointing to the fake comments, which are in many cases using real identities, and saying this process wasn’t conducted fairly. Are the fraudulent comments something that led you to believe that the process wasn’t handled properly or fairly?

We need to be proactive and work with whoever is a willing partner.

I will answer that this way: if there are ever any questions about our process, about the integrity of our comment systems, we should investigate that and investigate that now. We should work with any authority to ensure that the systems that we have open, the comments portal that we have open, it’s one that the public would have faith participating in — not just for this particular item, but in the future. If there are serious, legitimate questions — and there are — about the comments, about whether or not some type of outside force is delegitimizing this process, we need to be proactive and work with whoever is a willing partner to make sure that we can have confidence in the integrity of this process. For us to be dismissive or not work with any partner — particularly if you’re familiar with the state of New York and the AG — to not be open to a process that would get the bottom, if there are any questions about this process, I find that problematic. And to ignore millions of legitimate comments, I find that problematic.

The chairman’s response has been that this isn’t a popularity contest, and if you have a legitimate legal argument, then they’re listening to that. But in other cases they’re not just going to be counting up comments and responding to it on that front.

I find that interesting. A “legitimate legal argument,” in one of the most expensive ecosystems to file a legal claim ever. Just because I don’t have enough money to hire a lawyer to beat the pavement at the FCC does not mean that my traffic is not being throttled, that the terms and conditions that I thought I agreed on, that they are being realized. I find it perplexing that all of a sudden it boils down, when it comes to public comments and a position that you don’t agree with, that all of a sudden, from where I sit, you are delegitimizing the opinions of millions of people. I found that very contrary to the oath that I took eight-plus years ago, and I don’t think it is a very attractive posture for anyone who is a representative, who sits on the Federal Communications Commission in this country. 

I think the most responsible thing to do would be to pull this from the agenda.

You think the vote should be delayed?

The item should not be on the December 14th agenda at the FCC. This particular item should not be on the agenda. There are too many outstanding issues, questions, concerns that are incredibly legitimate. There are too many voices being ignored, including millions of people who have weighed in, including concerns when it comes to the New York AG’s office. There are concerns and there are outstanding issues. Any one of those serious, significant questions alone, would warrant, from where I sit, if I were in the big chair, would warrant pulling the item off the agenda. But all three. How many signs do you need that this process is compromised? That we’re moving in a very premature, limiting direction when it comes to all of the variables and input that we need to make a rational, clear, sustainable decision? So yes, I think the most responsible thing to do would be to pull this from the agenda. That’s the most responsible thing to do. Short of that, minimally, we should hit the pause button until the majority of these questions are answered. 

Let’s fast-forward a little bit then. Let’s say we go through this week, the proposal passes, there are legal challenges, and maybe they fail. Is there anything left until there’s a Democratic leadership back in again? 

Again, tell me when you look at the history of net neutrality, of our history, the DC Circuit upheld the 2015 decision. Why? Because it was based on solid legal ground. Title II, the clearest authority that we have — very little, if any, ambiguity. And now we’re going to short-circuit all of that and go back to a foundation, a legal premise, that has been thrown back, that is uncertain and that will ensure that we will have years and years of litigation and a probable reversal? Tell me, in a place where the majority is talking about certainty when it comes to regulations, tell me, how certain is that? Again, if I can appropriate what was said some time ago: a solution in search of a problem. We do not have a problem. We have clear legal authority that has been upheld. We are using the foundation that Congress enabled us through the Communications Act to codify, and now we’re shifting gears after the public has weighed in, after a number of businesses have built their models of service. We’ve got clear rules of the road that protect individuals, small businesses, and yes, even those large businesses, and now we’re about to reverse course on all of that, and send us, I believe, into this regulatory frenzy that it will be years for us to get out of. It absolutely, if I can borrow a phrase from somebody, is wrongheaded. We’re moving in the wrong direction, and I think December 14th will mark a very sad day in regulatory history.