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The Ajit Pai FCC Often Battles FOIA Requests For No Reason, Showcasing Its Hostility To Transparency

Published: January 7, 2019
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Source: Tech Dirt

You might recall that FCC boss Ajit Pai promised to operate the "most transparent" FCC ever. Initially, Pai lived up to that promise by changing FCC policy so that FCC orders would be released before they were voted on; a pretty obvious improvement of benefit to both consumers and ISP lobbyists alike. But in the year or two since, Pai has shown that genuine transparency is the very least of the chairman's priorities.

For example, Pai's FCC has actively refused to aid law enforcement inquiries into who was behind the millions of bogus comments that polluted the net neutrality repeal public comment period. Similarly, the Pai FCC's general response to FOIA requests has been to stall, delay, and ignore said requests whenever possible, resulting in numerous lawsuits by media outlets attempting to get to the bottom of all manner of bizarre FCC policy decisions (like that fake DDOS attack emails show they made up to try and downplay public anger over the net neutrality repeal).

This stonewalling extended to more mundane subject matter, like media inquiries into that giant Reeses mug Pai believes is eccentric. Or inquiries into who was behind that aggressively lameHarlem Shake video that featured Pai and some pizzagate conspiracy theorists trolling net neutrality supporters.

Hip, man, yeah.

As with other, more serious inquires, reporters that filed FOIA requests related to this video were met with stonewalling by the FCC, which tried to claim that numerous FOIA exemptions prevented it from complying. In this case, reporters say they were told by Pai's FCC they couldn't release any emails related to the video's creation because of FOIA exemption b(5) (affectionately referred to as the "Withhold It Because You Want To" exemption by FOIA nerds). That is, you might recall, the same exemption the Pai FCC used when people tried to find out if he worked with Verizon on another, similarly lame video making light of his cozy ties to industry.

All of that said, MuckRock Executive Editor JPat Brown persisted, filing numerous appeals stating that the FCC was engaged in a bad faith interpretation of b(5)’s deliberative process privilege. After the FCC spent months denying requests or trying to provide everything but the email bodies, the FCC was finally forced to comply last month, and released at least some internal emails related to the video's creation.

What did they say? Bupkis. Several simply highlighted how the Pai FCC has worked with Trump-friendly outlets like the Daily Caller on the video's production and circulation, which we already knew. Other emails the FCC fought to avoid releasing said nothing of note at all:

Which is all a long way of showcasing how, as Brown notes, the FCC's aggressive hostility to transparency (even if there's nothing actually at stake) is its default mode of operation:

"Look, I’ll be the first to say that Pai dusting off some dated memes is far from the agency’s worst crime, and if the FCC had just released these records when I asked from them last December, I would have struggled to string together a couple of work emails into an article of any substance. But the fact that the agency felt the need to fight me on such a stupid issue, for as long as they did, all the while taking care to make sure they don’t lose any ground to fight stupid fights in the future, is alarming, and an important reminder that some agencies are fundamentally opposed to being held accountable for anything.

Pai's blind fealty to incumbent broadband monopolies like Comcast isn't unique; we saw much of the same behavior during the tenure of former FCC Boss Mike Powell, now the top lobbyist for the cable industry. But Pai's FCC is different in that it doesn't just engage in the normal up is down, black is white rhetoric normally reserved for industry sycophants. Pai's current staffers seem to actively enjoy making critics (often the bipartisan majority of ordinary Americans) angry. They're having fun being misleading and aggressively contentious assholes (for lack of a more apt technical term).

But the Pai FCC also differentiates itself by being aggressively hostile to transparency almost to a comical fault. There was no reason to fight against the release of the above emails so vehemently, and the fact Pai's agency did so shows that, even at the risk of costly lawsuits and wasted taxpayer dollars, this FCC sees truth and transparency as mortal enemies in dire need of conquering, not essential axles in the healthy functioning of a democracy.

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While a long shot, we've previously discussed how the outgoing House and Senate could have voted to reverse the FCC's repeal of net neutrality using the Congressional Review Act (CRA). And while the Senate voted 52 to 47 to approve the move last May, efforts to get the 218 votes needed in the House had been stuck in neutral as House Representatives remained blindly loyal to their real constituents: AT&T, Verizon, and Comcast.

The telecom industry (and by proxy Ajit Pai's) primary justification for killing net neutrality -- and FCC authority over ISPs in general -- was that sector oversight was stunting network investment. Of course repeated analysis of the data shows that simply isn't true, but that hasn't stopped telecom lobbyists and the lawmakers who love them from repeating those claims in the hopes that repetition forges reality.

As the FCC continues to thwart Freedom of Information Act (FOIA) attempts to shine more light on the bogus comments that plagued the agency’s net neutrality repeal, one of the FCC’s commissioners has accused her own agency of “thwarting” journalism and hiding the truth.

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