The Federal Communications Commission docket for its repeal of net neutrality rules is missing something: more than 50,000 complaints that Internet customers have filed against their ISPs since the rules took effect in 2015.

The National Hispanic Media Coalition (NHMC) was able to obtain the text of net neutrality complaints from the FCC via a public records request but says it has not been able to convince the FCC to include them in the repeal docket. "It seems to me that the commission is going to great lengths to ignore these documents and not incorporate them into the record," NHMC General Counsel Carmen Scurato told Ars.

This is the latest dispute between the NHMC and the FCC over net neutrality complaints. The NHMC filed a Freedom of Information Act (FoIA) request in May for complaints that Internet users filed against their ISPs and for the ISPs' responses to those complaints.

The FCC initially refused to release all of the complaints but eventually complied with that aspect of the NHMC's request and produced nearly 70,000 pages of records. The FCC still hasn't given the NHMC most of the broadband providers' responses to complaints.

The NHMC made the documents it obtained from the FCC public at this webpage, and the FCC has posted the documents on its website. But officials at the NHMC argue that the complaints should be part of the official record in the FCC's repeal of net neutrality rules. The complaints may show that the repeal of net neutrality rules is misguided, they say.

“We hand-delivered USB flash drives”

Of course, the FCC has all the documents and could include them in the docket itself. The NHMC and about 20 other advocacy groups filed a motion in mid-September to have the documents included, but the motion was opposed by broadband industry lobby groups and then rejected by the FCC.

Scurato and NHMC Special Policy Advisor Gloria Tristani went to the FCC headquarters on Friday last week and spoke to an FCC employee who handles the public commenting system. Scurato told Ars:

[We] hand-delivered two filings with USB flash drives, one of which included all of the documents that the FCC produced in response to our FoIA requests. We were told by staff at the FCC that they would not upload the documents in the USB flash drive and instead would put a note in the record saying that the flash drive was available for inspection at the commission.

Scurato said they also asked if the FCC has any official guidance for including such documents in the record but didn't get anything in return.

"I asked if it would have been different had we printed out all the pages, and she said that honestly no, they wouldn't upload that either—maybe a few samples, and would have included that same note [about the documents being available for inspection at the FCC office]," Scurato said. That note about documents being available for inspection apparently isn't on the docket yet.

Meanwhile, the net neutrality docket has 22 million filings and has been overrun by spam bots and fraudulent comments attributed to people without their knowledge. New York Attorney General Eric Schneiderman described this as "a massive scheme that fraudulently used real Americans' identities" in order to "drown out the views of real people and businesses."

FCC Chairman Ajit Pai and his staff have apparently taken no steps to prevent fraud in the docket, even when people who say they were impersonated asked the FCC to remove the fraudulent comments.

Scurato said she requested a meeting with another FCC employee and sent another email yesterday "reiterating our ask that the documents be uploaded to the electronic record (and if not, provide the official guidance as to why not)." She's still waiting to hear back.

Pai’s office: This has been “fully addressed”

We contacted Pai's office today, and a spokesperson told us that "the NHMC issue is fully addressed" in the net neutrality repeal proposal, starting on paragraph 335.

The NHMC's motion to include net neutrality complaints in the docket was opposed by lobby groups that represent the cable and telecom industries (NCTA and USTelecom, respectively), Pai's proposal notes. "The motion is opposed by several parties who argue that the informal complaint materials are not relevant to this proceeding, and that the motion 'appears to be... aimed at prolonging this proceeding unnecessarily,'" Pai's proposal says.

The FCC agreed with the industry lobbyists who argued that the complaints themselves aren't likely to identify any net neutrality problems that advocates haven't already discussed in the docket. "We are convinced that we have a full and complete record on which to base our determination today without incorporating the materials requested by NHMC," Pai's proposal said.

Pai's proposal also says:

Under Commission rules, and as noted by opponents to the motion, "NHMC is free to put into the record whatever it believes to be relevant via ex parte letters." NHMC began receiving the documents it claims are relevant to the proceeding on June 20, 2017. If NHMC believed the documents were relevant to the proceeding at that time, it could have submitted them into the record at any time during the course of the following [four] months. It did not.

The FCC's online commenting system allows documents to be uploaded, but there is a limit of five files per submission and a limit of 25MB per submission. The NHMC's FoIA request turned up 67 documents totaling 326MB; some of them are nearly 25MB, and one document consisting of complaints about AT&T is more than 25MB, Scurato told us.

"It would take multiple separate and likely disjointed uploads to get the documents in there," Scurato told Ars. "Additionally, we had asked the FCC not only to incorporate the documents into the record as part of our motion, but to also set a new comment cycle to give stakeholders adequate notice and opportunity to analyze and comment on the documents. Both of those requests were denied."

The NHMC motion to include the complaints in the docket argued that the documents help answer questions that the FCC asked when it sought public comment on repealing net neutrality rules. For example, the FCC asked if there is "evidence of actual harm to consumers sufficient to support maintaining" the rules and the classification of ISPs as common carriers.

The NHMC did commission a report that offers a preliminary analysis of the complaints. The analysis said that complaints "clearly reveal [that] slower than expected effective speeds and restrictive data cap[s] already constrain the freedom of American consumers to utilize the basic broadband subscriptions they are paying for" to reliably access services "on top of these connections to the open Internet." The analysis also found that consumers perceive broadband to be a "telecommunications" service, in contrast to Pai's argument that broadband isn't telecommunications and shouldn't be regulated as such.

In a congressional hearing in July, a Democratic lawmaker asked Pai if anything could stop the FCC from eliminating net neutrality rules. Pai told Congress that evidence of consumer harm would be taken seriously, but the FCC hasn't conducted an extensive review of the complaints.

Putting the complaints in the record would "clearly undermine the FCC's legal conclusion that the rules are unnecessary and that concerns are 'anecdotal'" Senior VP Harold Feld of consumer advocacy group Public Knowledge told Ars. "By contrast, the failure of the FCC to even accept the information in the docket raises some significant APA [Administrative Procedure Act] concerns. It is highly relevant evidence that directly rebuts one of the Order's key supporting points."

Problems in the public comment process could end up playing a role in future lawsuits, as net neutrality supporters will likely sue the FCC in order to reinstate the rules.

Democrats pressure Pai

The NHMC isn't the only one calling on the FCC to include net neutrality complaints in the docket.

There are "50,000 consumer complaints missing from the record," Democratic FCC Commissioner Jessica Rosenworcel said yesterday. Twenty-eight Democratic senators led by Maggie Hassan of New Hampshire also called out the "50,000 consumer complaints [that] seem to have been excluded from the public record in this proceeding" in a letter to Pai yesterday.

The senators also complained about the extensive fraud in the docket, with bots apparently having filed "hundreds of thousands of comments."

"A free and open Internet is vital to ensuring a level playing field online, and we believe that your proposed action may be based on an incomplete understanding of the public record in this proceeding," the senators wrote.