FCC Sued Over Failure to Comply With Transparency Law Amid Net Neutrality Debate

Photo: Getty
Photo: Getty

The Federal Communications Commission (FCC) is being sued over its failure to adhere to a federal transparency law and for wrongfully withholding agency records about net neutrality from the public.


American Oversight, a legal watchdog group formed this year to expose conflicts and fraud in the Trump’s administration’s executive departments, filed a lawsuit Tuesday morning against the FCC for failing to comply with provisions of the Freedom of Information Act (FOIA). Led by a former State Department attorney, the group is asking a federal judge in the US District Court for the District of Columbia to compel the release of records concerning the FCC’s plans to gut net neutrality.

The debate over net neutrality is one of the most quarrelsome in the commission’s 80-year history. Under the direction of Chairman Ajit Pai, President Trump’s pick to head the agency, the FCC is on course to dismantle Obama-era regulations that made it illegal for internet providers to block or slow access to websites on a whim.

More than two years ago, the commission voted to reclassify broadband internet access as a “common carrier” under Title II of the Telecommunications Act, designating the internet a utility no different from water or electricity. This gave the commission authority to enforce a sweeping set of rules designed to protect net neutrality—the principle that internet providers should enable equal access to all legal online services and content without discriminating against particular websites or applications.

American Oversight filed two FOIA requests (here and here) on April 26 seeking a variety of records related to net neutrality, including the calendar entries for Pai and his advisors, with the hope of learning more about which telecom industry lobbyists are meeting with the commission. “The public should have access to communications related to the shaping of such influential regulations,” the group wrote. “Significant regulatory changes should not be shaped by secret influences.”

The FCC has now delayed the release of the net neutrality records for several months. It recently extended the disclosure deadline to August 24, though nothing would prevent it from stalling again—except, perhaps, a court order. “They failed to reply to our FOIA requests within the time period required by the law, so we are suing to ask a court to order the FCC to comply,” said Clark Pettig, spokesman for American Oversight.


“The FCC has made it clear that they’re ignoring feedback from the general public,” the group’s executive director, Austin Evers, told Gizmodo. “So we’re going to court to find out who they’re actually listening to about Net Neutrality. If the Trump administration is going to let industry lobbyists rewrite the rules of the Internet for millions of Americans, we’re going to make them do it in full view of the public.”

The FCC did not immediately respond to a request for comment regarding the lawsuit.


Brendan Fischer, an associate counsel at the Campaign Legal Center, told Gizmodo: “The FCC has repeatedly failed to enforce the law and regulations requiring transparency for political advertisements, so it is perhaps not surprising that the agency is also evading transparency by dodging FOIA requests.”

Net neutrality supporters fear its demise will give providers such as Comcast and AT&T carte blanche to establish “prioritized access” to online services from which they directly profit. Verizon, for example, has a vested interest in ensuring swift access to its subsidiary Yahoo’s mail service, whereas the company may seek to penalize its largest competitor, Gmail, by bringing its traffic to a crawl.


Chairman Pai has routinely dismissed these concerns publicly and in April called them “hypothetical harms and hysterical prophecies of doom.” But that’s not true and Pai, a former Verizon attorney who has spent nearly five years on the commission, knows it. Internet providers have a well-documented history of inflicting handicaps on companies for no reason other than to force users to adopt products in which the providers have a direct stake.

Asked in 2013 about the prospect of charging certain internet companies to speed up traffic to their websites—the creation of so-called internet “fast lanes”—Verizon’s attorney, Helgi Walker, said in court: “I’m authorized to state by my client today that but for these rules, we would be exploring those types of arrangements.”


Last week, the FCC informed Gizmodo of its intention to keep secret more than 200 pages of records related to a controversial cyberattack on the agency’s public comment website in May. The agency ignored a request for comment and circulated a press release instead that named Gizmodo exclusively and implied reporting about the decision was “inaccurate.” (The agency’s spokesperson told Gizmodo the next day that its press release “wasn’t about” our report but rather “outlets that reported on [our] story the next day that took inaccurate leaps.”)

Forged to combat excessive government secrecy amid the Cold War, and enhanced in the aftermath of the Watergate scandal, the Freedom of Information Act represents one of the most radical experiments in transparency since the creation of what Abraham Lincoln called a “government of the people, by the people.”


But as the Irish politician Gerry Adams once said: “One man’s transparency is another man’s humiliation.”



Every single reference to Pai should begin with “Former Verizon attorney and current Chair of the FCC...”