Regulatory Capture at the FCC and the American Public

By: John K. Aleksandravicius

The debate on net neutrality centers around a simple question: is the internet a service to be a pay for play system or a utility to be regulated like electricity and water?[1] In the hours after the June 1st airing of John Oliver’s Last Week Tonight, nearly 45,000 posts were made in the comments section of the FCC’s website following Oliver’s battle cry. “This is the moment you were made for… we need you to get out there and focus your indiscriminate rage in a useful direction.”[2]

In the months after the de facto Distributed Denial of Service (DDoS) attack, then Chairman Tom Wheeler brought to vote and ultimately upheld that the Internet should enjoy greater protection as a utility under Title II of the Telecommunications Act.[3]

Also subsequent to 2014’s FCC website crash, the FCC took steps to make their website more robust.[4] This past May, in a follow up to his previous statements, Oliver accused current FCC Chairman Ajit Pai (a former Verizon lawyer) of towing a policy line in concert with the desires of his former employers to declassify the Internet as utility under Title II of the Telecommunications Act.[5] What this would eventually mean is that certain corporate entities that provide content and an ISP could throttle competitor content providers unless they paid a premium over their own brand of content.[6] This leaves companies like Netflix, Amazon, and HBO at the whim of content distributors like Verizon.[7]

Oliver again issued a call to arms for anyone listening to post to comment on the FCC website in support of the Internet’s Title II classification via a redirection mirror named (in a tongue and cheek way) www.gofccyourself.com. [8]

Lo and behold, the website, despite the upgrades came under attack and slowed to a trickle. [9] Or did it? [10] The amount of traffic that supposedly was sourced on the public facing side of the FCC’s API that would be required to crash the site would be greater than that of a similarly scaled attack (and largest ever recorded by any ISP) and visible to anyone monitoring ISPs. [11] This leads to the conclusion that the botnet access had to come from a non-public facing API access point. In other words, the botnet attack was an inside job. [12]

            In the hours following Oliver’s calling on the public to comment and support the utility classification of the Internet, a comment spam attack coincidentally occurs to drown out the voice of the public.[13] It is extremely ‘convenient’ that the attack was barely analyzed and reported on when the political and policy slant of the attackers were backing a stance supported by current FCC Chairman Ajit Pai and his former employer Verizon.[14]

            Although attempting to put a fun and ‘new’ spin on government regulation, Chairman Pai is a textbook example of regulatory capture.[15] The fresh take on his approach to bridging the boring nature of FCC regulations is a pernicious veil for his obvious special interest slant.

[1] Cecilia Kang, Court Backs Rules Treating Internet as Utility, Not Luxury, N. Y. Times (June 14, 2016), https://www.nytimes.com/2016/06/15/technology/net-neutrality-fcc-appeals-court-ruling.html.

[2] Last Week Tonight with John Oliver (HBO 2014).

[3] Telecommunications Act of 1996, 110 Stat. 56, tit. 2 (1996); see also Press Release, FCC, FCC Adopts Strong, Sustainable Rules to Protect the Open Internet (Feb. 26, 2015) (on file with author).

[4] Dr. David A. Bray, Update on FCC’s IT Upgrades, FCC: Blog (Sept. 8, 2015, 6:05 AM), https://www.fcc.gov/news-events/blog/2015/09/08/update-fccs-it-upgrades.

[5] Nilay Patel, The Internet is Fucked (Again): Why Does This Keep Happening?, The Verge (July 12, 2017, 9:00 AM), https://www.theverge.com/2017/7/12/15715030/what-is-net-neutrality-fcc-ajit-pai-bill-rules-repealed.

[6] Id.

[7] Id.

[8] Last Week Tonight with John Oliver (HBO 2017).

[9] See Hayley Tsukayama, The FCC Says an Attack - Not John Oliver - Hampered its Website, Wash. Post: The Switch (May 9, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/05/08/the-fcc-says-an-attack-not-john-oliver-hampered-its-website/.

[10] See FCC.gov Current Status, CurrentlyDown.com, http://currentlydown.com/fcc.gov#2017-05-07 (last visited Aug. 31, 2017); see also FCC.gov Current Status, CurrentlyDown.com, http://currentlydown.com/fcc.gov#2017-05-08 (last visited Aug. 31, 2017).

[11] KrebsOnSecurity Hit With Record DDoS, KrebsonSecurity (Sept. 22, 2017, 8:33 AM), https://krebsonsecurity.com/2016/09/krebsonsecurity-hit-with-record-ddos/.

[12] Tsukayama, supra note 9.

[13] Nathaniel Fruchter, FCC Comment Visualizations, GitHub, https://github.com/nhfruchter/fcc-spam-comments-17108/tree/master/visualizations (last modified May 16, 2017).

[14] Dell Cameron, FCC Now Says There Is No Documented ‘Analysis’ Of the Cyberattack It Claims Crippled Its Website in May, Gizmodo (July 21, 2017, 8:00 PM), https://www.gizmodo.com.au/2017/07/fcc-now-says-there-is-no-documented-analysis-of-the-cyberattack-it-claims-crippled-its-website-in-may/.

[15] Kelcee Griffis, For FCC's Pai, Pop Culture Is A Bridge To Policy, Law360 (Aug. 8, 2017, 9:05 PM), https://www.law360.com/articles/951915/for-fcc-s-pai-pop-culture-is-a-bridge-to-policy.

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