ECFS Backlog Complicates Some Policymaking, Lawyers Say

The new system is basically ready (see 1510190040), and the FCC is looking at ways to make the changeover without further disrupting the flow of documents on ECFS, the spokeswoman said. The new system doesn't require the conversion of all documents to a PDF format, a process that has slowed the posting of filings, she said. The system uploads comments as they are submitted and makes them available in digital form. The new ECFS will offer a central search function “allowing users to more easily find what they’re looking for in the proceedings” and the “ability to scale for heavy use using a cloud-based design to be able to scale up infrastructure to handle high volumes of comments,” the spokeswoman said.

Most of the comments are filed in a few proceedings and most are highly repetitive, such as “free the Internet,” a longtime regulatory lawyer said. “A delay in getting these posted should not affect decision-making by much,” the lawyer said. “By contrast, in proceedings that attract a small number of comments, like many technical proceedings, any comment might make a big difference. Sound decision-making requires that these be posted promptly.” It makes the most sense for the FCC to give priority to the proceedings with the fewest comments, the lawyer said.

The FCC deserves high marks for trying to make its systems accessible to the public, and Chairman Tom Wheeler has sought money from Congress for IT improvements but has faced “a lot of pushback,” said public interest lawyer Andrew Schwartzman, longtime FCC watcher and proceeding participant. “That said, it is in fact the case that the commission has been having a hard time lately keeping up with posting comments in some major proceedings,” he said. “I have found this annoying and frustrating. For example, it took about four days for comments in the set-top box proceedings to get posted last month.”

ECFS backlogs aren't a new problem, Schwartzman said. ECFS is “notoriously balky and a number of advocacy groups have had problems when trying to do what Protect Internet Freedom was apparently doing, which is to develop an interface to allow large numbers of supporters to file in FCC proceedings” (see 1605110058), he said. Schwartzman is Georgetown Law Institute for Public Representation senior counselor.

The agency’s problems are serious, Fred Campbell, executive director of Tech Knowledge, said in a Friday blog post. During the net neutrality proceeding in 2014, the FCC omitted nearly 680,000 comments from its initial data files as a result of glitches in the ECFS, he said. “As quickly as the FCC is rushing to impose new regulations on Internet privacy and Internet video, one would think the FCC would have solved its problems with receiving public input by now, he said. “This might not be such a big deal if the FCC weren’t in such a hurry to radically alter the communications policy landscape.”

Campbell said IT spending at the FCC has increased during the Obama administration. “Where has all that money been going?” he asked. “And why is the FCC pushing so hard to enact new regulations when its systems aren’t giving the public an opportunity to provide meaningful input?”

“There appears to be no ongoing or routine problem with an ECFS backlog, just bottlenecks once or twice a year when comments spike during campaigns around politically hot issues such as net neutrality and now set-top boxes,” said Michael Calabrese, director of the Wireless Future Program at New America. “The millions of short public comments in favor of strong net neutrality rules demonstrated that an overhaul is needed, one that we are told will come on line shortly. At the same time, it’s helpful to remember that like calls to Congressional offices, the commissioners and key staff take account of the overall volume of public input, but rarely any of the individual short comments generated by lobbying campaigns.”

“I don't think it has been a major problem yet, but it is on the verge of becoming one,” said Harold Feld, senior vice president at Public Knowledge. “Instead of getting lawyers and going after the FCC, people should complain to the House and Senate appropriators who keep refusing to give the FCC needed funds to upgrade the FCC's electronic systems. The FCC can't spend money to upgrade its systems to meet this level of public comment unless Congress actually appropriates money to the FCC for that purpose.”

“Any government backlog poses a problem,” a regulatory lawyer said. “You think you have everything that was filed by a deadline, only to check back a few days later to see more filings posted,” a second lawyer said.

Protect Internet Freedom (PIF) called attention to the backlog earlier in the week, saying the FCC had failed to post comments by its members opposing controversial ISP privacy rules. More than 2,200 comments didn’t make it to the ECFS because of technical issues with the software PIF had been using to try to file them at the FCC, the agency said. PIF said as a test, it filed comments directly at the agency. The FCC spokeswoman said a check found that they were in the system but caught up in the backlog.

“We have had several phone calls with the FCC and have read in the press multiple explanations for the problem, but they have been unable to tell us why this is specifically happening or how to fix it,” said Drew Johnson, PIF's national director. “We are continuing to work with them to ensure our more than 2,000 comments are successfully counted in the record. We hope this will be resolved soon, and if the backlog continues, the FCC should extend the deadline for comment.” Gigi Sohn, senior aide to Wheeler, said a year ago that a new ECFS was on the way (see 1505110042).