FCC Info Collection on Peering and Interconnection Could Violate Paperwork Reduction Act
The FCC information collection on peering and interconnection practices could violate the Paperwork Reduction Act (PRA), industry observers said in interviews Monday. Chairman Tom Wheeler Friday announced he had directed staff to start gathering information from ISPs and content providers on what interconnection and peering agreements are in place (CD June 16 p1). The PRA applies to collections of information using identical questions posed to 10 or more persons.
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Wheeler didn’t provide an exhaustive list Friday of which companies the agency had or was planning to contact. “We're making inquiries across the board” to “multiple content players,” he said, citing receipt of agreements between Comcast and Netflix, and Verizon and Netflix. Wheeler also mentioned Amazon, Hulu and Google’s YouTube as examples of the content providers the agency might want information about. The commission is gathering facts from a variety of sources, including meetings with experts in the field, studying information that has already been submitted in the open Internet proceeding, and getting new information from selected ISPs, transit networks and edge providers, said an agency official. The agency is also seeking traffic exchange agreements, the official said. The official did not go into detail on specific names of companies being queried.
Given the lack of details, it’s hard to say whether the request violates the PRA, but given Wheeler’s statement (http://fcc.us/1pBYX7Y), “it certainly sounds like it,” said Stuart Shapiro, director of the public policy program at Rutgers. “I would be concerned.” If an agency asks for the same information from 10 or more entities, it falls under the PRA, Shapiro said. The collection need not be mandatory and in writing, he said: A voluntary request made orally also counts under the act.
A generalized request for comment doesn’t trigger the PRA, Shapiro said, but affirmatively reaching out to specific players and asking for the information does. The agency could try to say, “We know so little about this, we're just making phone calls” to find out what agreements are in place -- “but even that, I think, is stretching it,” he said. “If they're asking for the information from 12 ISPs, and they're changing the wording a tiny bit but essentially they're asking for the same information, then it triggers the Act,” he said. “They would have a tough time making the argument that it doesn’t.”
"If the FCC is asking identical questions of 10 or more ISPs and content providers, that would be an ‘information collection request’ under the PRA and would have to be submitted” to the Office of Management and Budget (OMB) for approval, said administrative law professor Jeffrey Lubbers of American University’s Washington College of Law.
An FCC official was concerned about violating PRA. If the FCC pursues its information collection from 10 or more companies without first getting OMB approval, “I don’t know how we would avoid violating the law,” that official said. An agency spokeswoman did not comment on that issue.
The practical effect of the FCC asking for information in violation of the PRA is simply that companies don’t have to respond, industry attorneys said. Or, if the agency lacks an OMB approval number, companies can “complain to OMB,” Shapiro said. Some wondered whether it’s in anyone’s best interest to complain. “If people want to make a fuss about it, they probably can,” said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. “But it’s not in the interest of the affected parties.” If industry resisted, the commission could go through the formal procedure, he said. More likely, he said, if some companies demur, the agency might say it doesn’t need the information because it has enough from others -- or the agency might assume the objecting party has something to hide.
"While in theory a company might refuse to respond based on an assertion that the agency has failed to comply with the PRA, in this instance this is not likely to happen,” said Free State Foundation President Randolph May, a member of the Administrative Conference of the U.S. and former chairman of the American Bar Association’s administrative law and regulatory practice section. “Even though the request may be technically ‘voluntary,’ these recipients, all of whom are regulated by the commission and several of whom have mergers pending before the agency, are not likely to want to be viewed as recalcitrant.”