The FCC's Privacy Docket and the Case of the Missing Comments

David Williams

May 16, 2016

The Federal Communications Commission (FCC) is currently involved in several complex and controversial rulemaking proceedings, including rules proposed to require broad opt-in requirements for the use and sharing of data by Internet service providers. But as the privacy proposal’s comment period reaches its final two weeks, the comment docket remains questionably empty.  This might make a good plot for a spy thriller, but for taxpayers and people who submitted comments, this is a travesty and an embarrassment for the FCC.

In a letter sent to the FCC this week, Protect Internet Freedom questioned thousands of missing comments it says its supporters have filed into the docket that take issue with the FCC’s current privacy rulemaking proposal. FCC docket 16-106 currently shows just 28 filings, while the group says more than 2,200 comments have been submitted to the ECFS, the FCC’s online comment platform. As Protect Internet Freedom’s counsel notes in their letter to the FCC, several comments submitted even have FCC status numbers showing they had been received, but had yet to be posted.

Just this week, advocacy group Fight for the Future’s (a group that supports the FCC) co-founder Holmes Wilson told Politico’s Morning Tech that the FCC “reached out to let us know that” the way their comments were being filed was making the comment system more difficult to operate within. But unlike the courtesy given to Fight for the Future in their filings, the FCC did not extend the same courtesy to those that disagreed with Chairman Wheeler’s privacy proposal.

The FCC appears to be selectively ignoring the comments of 2,200 Americans because their opinions do not match those of Chairman Wheeler. While the FCC and Chairman Wheeler might not be worried about the lost comments, thankfully others like Sen. Mike Lee (R-Utah) are taking notice.

At last week’s Senate Judiciary Subcommittee on Privacy, Technology, and Law hearing, Senator Lee questioned Chairman Wheeler as to the location of the 2,200 comments and why they are still missing from the public docket. Chairman Wheeler claimed this is due to a software glitch in the system of the group who was downloading these documents and the software they were using. He claims the FCC is in the process of remedying the problem, but did not provide any detail as to how they plan to recover the loss of comments.

With just a fraction of the comment period remaining and requests for the comment period to be extended already denied, the FCC and Chairman Wheeler should take Sen. Lee and Protect Internet Freedom’s inquiry seriously. The FCC should not proceed without having their comment system in order. Moving forward without the input of those the Commission acts on behalf of is both calculated and irresponsible. But then again, this FCC does have a history of playing favorites.