Notice, Comment, and Astroturf: Through the Looking Glass with the FCC

The fight over net neutrality is one of the best examples to date of a stunning triumph of legal advocacy: getting people to care about administrative law. As the Federal Communications Commission, advocates and industry have battled over whether the agency should prohibit internet providers from discriminating against different online services, the tidal wave of public participation in the FCC’s commenting process made clear that this otherwise wonky issue has struck a chord with millions of people. The agency’s solicitation of comments in 2014 for its proposed net neutrality rules drew over 4 million responses, more than any other rulemaking process in history until the spring of 2017, when the agency’s process to repeal the rules drew a mind-boggling 22 million. Net neutrality seems to have elicited exactly the kind of collective action and popular enthusiasm about the civic process that a participatory democracy is intended to facilitate.

But the net neutrality fight also illustrates how easily the commenting process can be hijacked by corporate interests, and how those corporate interests can manufacture the appearance of popular backing. It’s questionable for AT&T to publicly argue that it should be able to slow down internet service to Netflix users because Netflix competes with the streaming service AT&T itself owns, HBO. It’s much easier to do that when you can claim that, actually, throttling Netflix users somehow spurs innovation, and that argument isn’t coming from you, AT&T, but from a patriotic-sounding group that seems to have the best interests of Joe Consumer at heart. So you might do what AT&T, Comcast, Cox & other telecom companies do—you join a subtly-named industry association like “Broadband for America,” and find a way to launder your arguments into something with the appearance of grassroots support.

Commenting online makes it easy for anyone with an internet connection who reads about a rulemaking that affects them—like the Federal Trade Commission’s possible weakening of privacy rules for children’s data, or the Department of Housing and Urban Development’s proposal to make algorithmic discrimination by landlords harder to fight in court—to share their perspective and then continue on with their day. It also makes it easier for powerful companies to jury-rig the appearance of a popular mandate by filling the agency’s record with counterfeit comments. As BuzzFeed News recently reported, part of Broadband for America’s strategy for pursuing the repeal of net neutrality was to hire two firms, Media Bridge and LCX Digital, to fill the FCC’s rulemaking record with more than 1.5 million falsified comments. They join a growing list of strategy firms that submitted comments authored by fictitious or stolen identities to falsify a tidal wave of seemingly real people who just happened to believe that telecom companies should have the right to offer them worse internet service. Lower barriers for individuals to scale also mean lower barriers for powerful companies to genuinely or fraudulently vault over, and the FCC’s commenting process is not the only one under assault. As Media Bridge proudly boasted on its website, “spend a million dollars with Media Bridge and most likely, you’ll have a million people + advocating for your position.” If you can’t beat ‘em, make it seem like they’ve joined you.

The notice-and-comment process is intended to provide bureaucratic specialists with broader input, including giving those subject to potential regulations a chance to give input on how they’re written. The process is also important if an agency’s rules are challenged in court. The Administrative Procedure Act prohibits “arbitrary or capricious” agency action, and a good way for a litigant to demonstrate that a rule is arbitrary, capricious, or both can be to show that the agency’s decisions were not justified by the record it established—including by its failure to acknowledge and respond to key comments. The rulemaking process is not a referendum and the agency need not heed what public comments tell it to do, but it does need to be able justify its decisions, including in light of feedback received.

The fact that Chairman Pai’s FCC has downplayed the attacks on the integrity of the commenting system makes the fraud even more concerning. When the agency’s comment system went down in response to the deluge of comments in May 2017, the FCC claimed to Congress that the failure was due to a DDOS attack, not its infrastructure buckling from a deluge of pro-net neutrality comments. The FCC Inspector General found there was no evidence to support the claim, and the agency eventually settled a Freedom of Information Act case with a journalist for failing to turn over records relating to fraudulent 2017 comments. While acknowledging the existence of fraudulent comments, Chairman Pai refused to remove them from the official record, including at the request of victims of identity theft who had comments filed in their names. The FCC further rebuffed requests to assist the New York Attorney General’s investigation into the fraud. One might assume that the FCC chairman would have every reason to aggressively investigate threats to the credibility and efficacy of the system that enables the FCC to get public feedback on potential rules; in this case, that assumption would be incorrect.  A consumer protection agency making it easier for telecom companies to exploit consumers or punish competitors is dispiriting enough. But the FCC turning a blind eye as the credibility of the system designed to enable public participation in rulemaking is undermined by industry is a more subtle kind of betrayal. Not only are companies perverting the democratic process to suit their own ends, but they’re doing it in our names, and the FCC is letting them do it.

The fraud in which Media Bridge and LCX Digital engaged on behalf of Broadband for America is an extreme example of a bleak trend: the appearance of grassroots approval is easy to buy, arguments with the trappings of popular support are easy to sell, and the internet makes it all simpler and more frictionless to fabricate. Astroturfing is hardly a new public policy strategy, but the insidiousness of using identities stolen from the dead so that Verizon or Sprint can throttle high-bandwidth websites with impunity feels like a particularly ghoulish escalation. What’s more, by permitting the integrity of perhaps the most democratic component of its policymaking process to decay, the FCC makes it easier to ignore public opinion, particularly when public opinion strongly opposes the agency’s preferred outcome. It’s hard for AT&T to outright say that it should be allowed to slow down streaming speeds for its competitors’ users, and it’s even harder for the FCC to publicly agree with a straight face. It becomes a lot easier when industry hands the agency fodder for dismissing the validity of how vehemently the public disagrees with its position.

Combined with the escalating corrosion of democratic participation through gerrymandering, voter suppression, and the increasingly notable distortion of popular will by the Electoral College, it can feel hard to believe that governmental processes designed to elicit public opinion are capable of doing much beyond thwarting it. It’s enough to make you think that individual participation in the regulatory process is futile—which, at the end of the day, works out well for both the FCC and the companies its abdication shields from accountability. If the process that incorporates popular input into agency rulemaking is broken, it’s easy for bad faith actors to muddy the waters between their fraudulent mandate and the authentically grassroots support for their opponents— who’s to say what the public really wants? Broadband for America used stolen identities from the living and the dead to answer that question, which, apparently, is good enough for the FCC. If the agency in charge of the broken system can’t be bothered to fix it, then why even try to make your voice heard?

The answer is, of course, that nihilism isn’t an option. It’s only through the intrepid insistence of journalists, advocates, and people who make the irrational decision to give a damn that there’s any hope of irradiating this anti-democratic reality. But if it feels as though everything is broken, even maddeningly distorted, and the public servants charged with protecting consumers are making it easier for themselves to claim that those consumers want companies to be able to bilk them more easily, that’s because it is—and because they are.