I Won (Part of) My Lawsuit Against the FCC. But It’s Not Over Yet.

Just over a year ago, I sued the Federal Communications Commission.

As of last Thursday, I have (partially) won…and the case isn’t even over yet.

You can read the full details of what led to my dispute here.

In short, I made a public records request to the FCC on June 5, 2017 for data that would identify everyone who submitted bulk comments (along with those specific comments) in response to the agency’s Net Neutrality-killing “Restoring Internet Freedom” rulemaking proposal.

Why? Because the debacle resulted in millions of fake comments, including confirmed cases of real people’s names and addresses used to post them, such as the deceased actress Patty Duke and current U.S. Senators Jeff Merkley and Pat Toomey.

Given the seemingly widespread fraud happening right in the open, coupled with the FCC providing two separate bulk comment submission tools that required some form of identification to even use to begin with, I figured this would — in theory — be an easy mystery to solve.

What I won

In his ruling, D.C. District Judge Christopher R. Cooper ordered the FCC to release the email addresses used to upload .CSV comment files to their comment system, noting, “[t]he public might better understand the agency’s responsiveness to various constituencies if it knows which stakeholders solicited and facilitated bulk public comments and which comments they submitted.”

Additionally, the FCC now must coordinate with me to release those same .CSV files.

[Update: 9/18/2018 — To clarify, the Court ordered the FCC and I “to meet and confer regarding the release of the .CSV files,” because “it is unclear whether the Commission currently possesses the .CSV files themselves and, if so, how they are stored”.

Should the file coordination not work out for whatever reason, the Court has given the FCC the option to file a new Motion for Summary Judgment to formally dispute whether they have access to them. However, the FCC would then be required to also provide “a factual explanation of whether and how the Commission stores the .CSV files.”]

What I didn’t win

Unfortunately, I didn’t get everything I asked for.

The judge ruled against my request for logs from the FCC’s servers that would provide further details about which specific email addresses posted which bulk .CSV comments to their system.

Similarly, the judge ruled in favor of maintaining the FCC’s redactions in a suspicious email thread the FCC provided to me weeks after I filed my lawsuit.

As I wrote last year, the D.C.-based news website and advocacy organization CQ Roll Call emailed the FCC last April for assistance in submitting “millions” of comments on behalf of an unnamed “client” before Restoring Internet Freedom was even formally announced.

The internal decision made by FCC’s then-CIO, David Bray, remains redacted.

However, if we are to believe the man accused of making up consecutive FCC comment system DDOS attack stories, Bray just so happened to direct the FCC to advise an “outside entity” last April to try and submit their “250,000 comments a day” via CD, despite later admitting a few months ago the situation was “quite out of the ordinary”.

What I may still win

Though I have already won key parts of my lawsuit, it’s not over yet.

For now, the judge has declined to rule on the other bulk tool that is likely the biggest culprit for the mass FCC comment fraud — the Data.gov API (Application Programming Interface), which is maintained by a different federal agency, the General Services Administration (GSA).

As I explained last year, and as we successfully argued (over the objections of the FCC, and their lead legal counsel, the Department of Justice), GSA and FCC gave me contradictory responses to my separate FOIA requests for the same information about the Data.gov API keys (i.e.: registered accounts) the FCC allowed comment submissions from, each claiming the other agency was ultimately responsible.

As a result, the judge has held off on ruling on the API data until the GSA (who we have since added as a Defendant in this lawsuit) formally responds to our legal summons in court.

What’s next?

Regardless of how the rest of the case plays out, this is already a huge victory for transparency over an issue that has gone unanswered by the FCC and its current leadership for too long.

Of course, it may be a matter of months before we actually get to see the records I won (or may still win), and learn who else was submitting bulk comments to the FCC that we don’t already know about.

Even then, the full scope of the records I asked for only goes through early June 2017, and doesn’t encompass several more months of millions of comments the FCC went ahead and let flood into their system in spite of all the high-profile controversy.

With that said, this is the FCC’s opportunity to finally come clean about what happened, who they let use (and abuse) their commenting tools, and why they let it unravel this way.

As Restoring Internet Freedom has since become the law of the land, it’s time for the Federal Communications Commission to finally communicate to the American public about what they knew, but chose not to discuss.

I can think of one good place where they can start.