High-ranking officials at the Federal Communications Commission (FCC) gave left-leaning groups a disproportionate amount of assistance compared with right-leaning groups in 2014, emails obtained by The Daily Caller News Foundation show.
The preferential treatment transpired during a period when the public could post comments on the FCC’s forum for the net neutrality debate. Both major sides of the policy battle rushed to post as many remarks as possible in an attempt to show its viewpoint was more widely held. But some employees at the FCC worked overtime to tip the scale in favor of proponents for net neutrality by constantly accommodating and communicating with groups like Fight for the Future and other members of the larger coalition known as Battle for the Net.
Fight for the Future is a relatively liberal organization, especially with respect to the net neutrality debate. The group’s campaign director is Evan Greer, who, according to his LinkedIn page, worked three years to free an al-Qaeda terrorist convicted of planning to shoot up a Boston shopping mall.
“So, the latest on the FCC site is that it was just going up and down for us all night. We weren’t able to submit comments directly,” Holmes Wilson, co-founder of Fight for the Future, wrote in an email to seven people, five of whom worked for the FCC and two who were part of allied organizations.
“I’ve got a proposal that would make it easier for all of us, but I want to make sure we’re on the same page about reporting the numbers, so that press doesn’t get thrown off or given bad numbers by folks looking to minimize what happened yesterday,” Wilson continued. He was referring to Sept. 10, 2014, a day his organization and others called Internet Slowdown.
In an attempt to accommodate, FCC CIO David Bray and others at the agency discussed potential solutions.
“Tony [Summerlin, senior strategic adviser at the FCC] and I were talking — and if the FCC legally is okay with just emailing this group the template — that is also an option,” Bray wrote internally, referring to a guide to file comments through another channel.
“I am very much in favor of trying to accommodate them as much as we can since they were so accommodating of us yesterday,” Gigi Sohn, a top counselor to then-FCC Democratic Chairman Tom Wheeler, responded.
The concerns about comments making their way to the official filing system largely stems from the FCC’s antiquated technology. The main platform often becomes inundated not only because there is a huge uptick in public intrigue, but also because it’s outdated. To compensate, there were three main methods of publishing comments at the time: an email account with a standard inbox, bulk filing in which one document could include dozens or hundreds, and the Electronic Comment Filing System (ECFS).
The FCC not only helped Fight for the Future and its consortium with filing, but also with its public relations.
“Today, thousands of sites and hundreds of thousands of people took action to stop the FCC and America’s biggest cable companies from slowing down and (breaking) the Internet’s best sites,” the official Internet Slowdown day page reads, while listing the amount of comments (777,364) made in that 24-hour time period.
Sohn wasn’t pleased that the FCC Office of Media Relations (OMR) undersold the amount of comments made by Fight for the Future and other groups.
“Someone from OMR told the NewYorker at 5:30 yesterday that we had received 100K comments, and that’s what made people crazy,” Sohn said in an email dated Sept. 11, using her official agency account. “Don’t know why they did that.”
As was revealed in TheDCNF’s prior investigation into these emails, Sohn was very eager to please these groups.
“Our biggest focus right now is making sure everyone’s comments get submitted and counted,” Wilson wrote in an email to at least three other people who worked for the agency in some respect, as well as two other activists. “We’re excited to break records tomorrow for public participation in the FCC’s process!”
“Thanks so much to all of you for your efforts,” Sohn wrote to Wilson, Fight for the Future board member Marvin Ammori, and others, less than a couple days later. “We’ll do our best and keep our fingers crossed too! I’ll be out of town tomorrow, but will be checking emails,and (sic) David [another active liberal political activist] and Sagar [an FCC employee] will be at your service.”
“They clearly were coordinating closely and in advance to ensure it went well,” Evan Swarztrauber, director of public affairs at the think tank TechFreedom, told TheDCNF after reviewing the emails. “It is only inappropriate if the FCC did not provide the same responsiveness and assistance to any opposition groups that sought similar help.”
Mike Wendy, director of the market-oriented nonprofit MediaFreedom, along with other leaders of right-leaning organizations, told TheDCNF that they were not given anywhere near the same dedicated, enthusiastic treatment as their liberal counterparts.
Like what is currently occurring in 2017, the FCC allowed the public to submit feedback on net neutrality — a term with a wavering definition but generally referred to as the principle that internet service providers do not have a right to discriminate against certain forms of traffic, nor to offer faster speeds to higher-paying consumers. For supporters, who tend to be liberal, it means all internet traffic is treated equally. For critics, who tend to be conservative or libertarian, it means a government takeover that restricts companies’ ability to invest in faster infrastructure, or to offer special services and deals.
In an ostensibly democratic fashion, the FCC wanted (and still wants) people to publish their thoughts about net neutrality on the filing system so they can decipher where the public stands on the issue of internet regulation. But through the unearthed emails, it has become more evident that the process was never truly democratic as FCC officials favored liberal groups, leaving relatively conservative groups — and potentially many of their pending comments — in the dark.
After discussing the evidence obtained by TheDCNF, David Williams, president of the Taxpayers Protection Alliance, says such collaboration is quite unethical:
The FCC should not be politically driven or motivated on ether side of the political aisle. We understand that the party in power (R or D) gets to have a majority on the commission but that should not be the guiding factor in how the FCC decides policy. The FCC should be neutral when accepting and processing comments. Any manipulation of that process is bad for policy and bad for government in general.
Details of the chummy support were first described by then-The Washington Post’s Nancy Scola, who described it as an “unusual collaboration” in an in-depth report on the ECFS. Those details became more damning after once-classified pieces of electronic communications were uncovered by Wendy through a Freedom of Information Act (FOIA) request. TheDCNF reported on those findings in mid-June. Now, with even more files acquired through a FOIA petition, the breadth of several FCC officials’ biased conduct becomes starker.
Along with the technical help, the FCC at the time continued its public relations support. After Wilson asked Sohn to clarify publicly that the tally of comments first reported was not yet official, an FCC spokesperson obliged just hours later with almost the exact same language Wilson used in the email.
“I was very surprised that they agreed to take an outside group’s comment count or request to promote the number of comments coming in via social media,” Katie McAuliffe, federal affairs manager at Americans for Tax Reform, told TheDCNF. “I would never have asked or expected to receive special treatment on comment counts, particularly having the FCC post a tweet drafted for them.”
Bray seemed somewhat irritated that Wilson was trying to claim the amount of comments were not being accurately accounted.
“Hi Gigi – it’s not misinformation with the numbers. It’s folks saying there was a website crash when there was not, for example – or Fight for the Future saying we asked them to turn off submitting comments on Wednesday when we did not,” Bray said in an September 16th email to Sohn, then-FCC spokeswoman Kim Hart, and Shannon Gilson, head of the OMR at the time. “If we don’t address this there may be a GAO [Government Accountability Office] investigation into what did FCC IT do regarding this ‘crash’ – when in fact none never happened?”
But Bray expressed concerns only after allegations were made against the FCC. In an email a day prior, Bray, in an apparent appreciation of a Fight for the Future shout-out, wrote, “Attached is a draft blog for tomorrow — I tried to address Gigi’s concerns of not awaking the ire of Holmes and company (he gave us kudos on twitter today).”
Whatever reservations Bray may have developed came too late; Sohn and other FCC officials’ collaboration with outside groups was already prevalent.
“I talked to my contact, and he is going to see whether they can have the comments come in more slowly. So question for the IT experts — can we approximate how many comments per hour ECFS can handle? Thanks! Gigi,” wrote Sohn.
She followed up that email with an update.
“I am still in discussions with the activists about their ability to hold back some comments and feed them to us on a rolling basis,” she wrote.
The clientele type relationship manifests itself further with other pieces of communication.
“Gigi, any chance you could talk the community into using [email protected] as an alternative filing method,” said Diane Cornell, an FCC official, presumably in reference to the email address procedure.
Sagar Doshi, special advisor to Wheeler, wanted to help Holmes and his coalition post comments on the website so badly he asserted that the agency didn’t have time for due diligence.
“Do we need to wait for a blog post at 3pm to give them our template? Can we not agree that we’ll get a blog post out today to cover our legal obligations, and in the meantime get Holmes the template so they can start filling it out?” Doshi wrote to his fellow FCC colleagues. “Timing is critical in my mind, so unless there’s a reason to hold back, I’d be in favor of getting them the form ASAP.”
The aforementioned template, as proven by an email sent by Bray soon after, is in reference to a guide on how to properly file emails to the “[email protected]” account.
Ironically, the concluding sentence of the press release providing the template for public use reads: “The Commission welcomes the record-setting level of public input in this proceeding, and we want to do everything we can to make sure all voices are heard and reflected in the public record.”
An FCC official copied on several of the email chains told TheDCNF that he had no direct involvement in the dubious process of determining who to give assistance. He said he was only tasked with helping post comments and declined to elaborate whether he felt what was being done was unethical or not.
As for the groups who opposed the mechanism to implement net neutrality — which would essentially place the U.S. government at the center of internet protocol — there are no direct mentions of them in the emails.
Summerlin, however, did suggest that they “may want to reach out to the law firms that sometime expect the comments to be available within a few minutes,” though it is not precisely evident which side these unidentified legal offices would be on.
“When our side decided to engage in the ‘clicktivism’ battle, we tried to sort of use the same tactics to drive massive public comments,” Phil Kerpen of the right-leaning advocacy group American Commitment told TheDCNF. “Our team got some help from low-level FCC employees who kind of answered the phone the way anyone just calling in would. But we certainly didn’t get any kind of high-level assistance from high-level staffers managing media requests and helping to shape a narrative.”
Kerpen added that the emails confirm the FCC’s service was “completely one-sided” in order to “help them reach the predetermined outcome of their process.”
Wendy attests to Kerpen’s frustrations, saying he also had difficulty trying to file comments. He also says he contemporaneously wrote respective, but similar letters to the FCC inspector general and Wheeler to investigate the facts around Scola’s story. After multiple failed attempts to obtain even an adequate response to his inquiries, he continued re-crafting his FOIA appeal, which ultimately yielded evidence that confirmed his inklings of highly unequal assistance.
“Look, if FftF [Fight for the Future] learned through news reports that the FCC gave a bunch of special IT and PR help, that the agency jumped through hoops to help conservative, market-based voices get a leg up in the tech policy battle of the century, they’d be screaming bloody murder,” Wendy told TheDCNF.
“FftF got a free IT department, a free PR department, and a whole bureaucracy running around at its service because its PR stunt meant the FCC didn’t have to deal with legitimate market-based arguments to get the rule into law.”
It is not clear how much effect the amount of comments from each side of the debate had on policy, but then-FCC Chairman Wheeler ultimately adopted internet regulations in the name of net neutrality. And Sohn’s and other FCC officials’ efforts to offer support to Holmes exhibits a desire to inculcate a self-fulfilling impression of public backing.
While the “unusual collaboration” occurred roughly three years ago, it aptly applies to happenings related to the contemporary FCC. The same battle for which one side of the debate has the most comments is currently a hot-button priority, despite the fact that the degree to which it will ultimately affect policy is fairly dubious. When the newly-led FCC opened a new forum for public comments earlier in the year, like clockwork, a measuring competition started again. Both left-leaning and right-leaning groups have been engaging in the process — which is ongoing, but set to officially end Aug. 30, 2017. Regardless of the official expiration of the filing process, Fight for the Future is co-sponsoring an activism event Sept. 27 with the primary host Public Knowledge, a nonprofit co-founded by Sohn.
In 2014 at least, its fairly clear that regardless of who actually garnered more comments in their favor and whatever merit that holds, many within the FCC only helped one side, the liberals.
“FftF became the FCC’s client, not the American people’s, not all voices, and certainly not conservative market-based commenters who deserved a fair shake from the agency during this process,” Wendy continued. “The Net Neutrality Order could not have gone through without this centerpiece happening. It should provide a cautionary tale to conservatives that the power of ‘virtual’ democracy is a threat to us all.”
The Daily Caller News Foundation contacted almost every person involved in the acquired personal communications, but the majority did not respond.
This report, by Eric Lieberman, was cross posted by arrangement with the Daily Caller News Foundation.