FCC's IG Failure to Examine 2014 Complaint About Questionable Comments Leads to Recurring Problems
On October 8, 2014 Media Freedom.org, a right of center "Market-based group" "supported in part by communications industry and foundation contribution" filed a request with the FCC Inspector General that it investigate suspicious filings in the Net Neutrality proceeding that appeared to be filed falsely. False comments are not a new issue as your blogger recalls a few dozen that were filed in pre-ECFS days in Docket 81-413-which later became the basis of Wi-Fi and Bluetooth.
Of course, with today's electronic filing and bots the ECFS system is particularly vulnerable since it has been little improved since being first implemented in the Hundt chairmanship. All of the parallel rule makings in the Executive Branch and many of the independent agencies use the federal government-wide Regulations.gov website to handle the ministerial issue of accepting and archiving comments, but the Powell chairmanship thought it would "save money" by having a separate stand alone system. (Perhaps it is time to reexamine whether this was really a good idea?)
The subject of the FCC IG has been a recurring issue in this blog. While the statutory duties of this position are the same as the duties of all other IGs in the federal government, an odd tradition has developed in FCC in the past 2 decades that the IG is always an insider who can be trusted by the Chairman and that he spends almost all his resources, presently a staff of 60 and an annual budget of $11,751,000, on Universal Service Fund fraud issues and avoids looking at overall FCC performance and questionable activities of senior FCC officials. No FCC IG has ever been appointed from a parallel position in another agency - only FCC insiders.
So did FCC's IG ever investigate this issue after Media Freedom raised it in 2014?
Look at the Report section of the IG's website and see if you can find anything? The only possible reference to this request to the IG is this cryptic section of the IG's Semiannual Report to Congress October 1, 2014—March 31, 2015:
Not very informative is it? Media Freedom also filed FOIA requests, another recurring topic of discussion here and another recurring problem area at FCC. They got 3 batches of released documents (1 2 3) but none of them contain the slightest hint that the IG was even looking into what actually happened and whether FCC had handled it properly. (But to be nice to FCC, these FOIA releases all have a proper redaction marketing - something that has been wildly inconsistent at FCC in the past.)
As we have stated before, this blog focuses on spectrum policy and for most of the past few years had had a "net neutrality-free zone policy" of not addressing net neutrality issues and their merits in any way. But it is clear the issue of large number of questionable comments in the net neutrality proceeding has been a recurring issue and still is an issue.
Perhaps FCC senior leadership should ask the IG why he didn't address this issue in some way in 2014 when Media Freedom first brought it to their attention. If the answer is that the FCC chairman at the time did not want it investigated then that is confirmation that the IG doesn't understand his legal duties.
Perhaps FCC should invite an IG from another agency to examine independently whether the FCC IG handled this matter properly.
FOIA Problems@FCC
The House committee got 200 FOIA releases from FCC along with the unredacted original documents. An attachment to the report contains all 200 documents in both versions - although personal information is missing from the "originals" that are released. (Whether on not releasing such documents in large numbers was proper for the House committee to do we will leave to real lawyers.)
Here is a statement in the report about FCC redaction practices:
The FCC’s tendency to over-redact makes it difficult for requesters to understand what the agency has provided them, and consequently,to make follow up requests. For example, in response to a request from Vice News reporter Jason Leopold, the FCC withheld 1,900 pages in their entirety under exemption five. These redactions demonstrate a lack of responsiveness to the public’s right for information. The agency either misunderstands how to use redactions, raising concerns of competency, or the agency intentionally misuses redactions, raising concerns of integrity. Given the numerous examples in which the FCC improperly redacts information, this may be a deliberate tactic to withhold information from the public.
We fully agree.
One thing that is puzzling about the FCC documents in the House attachment is that they all have all the deletions marked with exemption numbers. It is clear that in the past FCC has at best been inconsistent with such markings. For example here is a FOIA previously discussed here from the FCC Inspector General:
See any redaction markings with exemption numbers as required by law? Section 12 of the OPEN Government Act of 2007 requires that “the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” While some FCC FOIA releases have had such redaction markings, many have not. Since FCC only makes public a tiny fraction of such releases - possibly itself in violation of 5 U.S.C. § 552(a)(2)(D) - it is not clear what the marking compliance rate actually has been.
Were some of the the 200 FOIA releases given to the House committee doctored before they were sent so that they all appeared to be compliant with the statutory exemption number marking requirement? How else do you explain perfect compliance when other released FOIA documents in recent years, like the IG release shown above, have a spotty compliance record?
IRS Talks About Stingray,
FCC Doesn't
In the above letter from IRS Director John Koskinen to Sen. Wyden is a clear discussion of IRS' use of Stingray, a cell site simulator/"IMSI catcher". In October The Guardian revealed purchasing documents it had FOIA'd from IRS showing the purchase of such units.
They're not cheap! The IRS contract shows that just upgrading a Stingray to the newer "HailStorm" model costs $65,652! Training an extra 6k.
The IRS contract that The Guardian obtained also shows that IRS knows how to properly mark redactions on FOIA documents with the exemption number as mandated by 5 USC 552 (b)(9) - something that FCC has generally not done in the past. (An FCC insider has assured me that FCC has been in general compliance with this requirement, but since FCC does not make readily available past FOIA releases as CIA, NSA, FBI, and NRC do, it is not readily possible to see if FCC has been compliant with the law in the past. However, we have shown in this blog numerous other FCC FOIA releases, including one from the FCC IG, that were not properly marked with exemption numbers. Indeed, the only FCC FOIA release that I have ever seen is that is properly marked dealt with Stingray and it is likely it was actually redacted and properly marked by FBI since its redactions include information readily available elsewhere on the FCC website that FCC staffers would have been aware of.)
As we have stated before, operation of Stingray and similar IMSI catchers in USA by either federal agencies or nonfederal agencies requires some degree of FCC coordination and acquiescence. As several commissioners are concerned about delegation of authority abuse and legislation is being considered that would require more explicit public documentation of delegations of authority (most, but not all of which, are now enumerated in Subpart B of Part 0 of the Commission's Rules) perhaps the commissioners and congressional committees should ask who at FCC authorized this broad use of Stingray-like technology and whether proper procedures were followed.
The IRS letter at the top of this post demonstrates that the basic facts of Stingray use are both now public and are being discussed publicly by other agencies. FCC's continued silence is thus puzzling.
Spectrum Enforcement Downsizing Report has Leaked Out
The consultant's report that was used to rationalize the downsizing or decimation of the FCC's spectrum enforcement field staff has now leaked out. I previously filed a FOIA request for this. EB's response that did not produce even a word of the text due to total stonewalling. Of course this is the same EB that in the previously discussed case of the Motorola 5 GHz radio that was interfering with safety-of-life airport weather radars thought so little about the FOIA Act and its mandates that they let Motorola's lawyer respond directly to me (saving FCC postage, perhaps?) and ignored the statutory requirement of marking any redacted section with the FOIA exemption number.
Now, through anonymous sources, we have a 253 page Powerpoint presentation. Oddly, it lacks any indication of authorship. The second slide being with this statement:
FCC engaged OceanEast and Censeo in October 2014 to conduct an organizational assessment of the Enforcement Bureau’s (EB) Field operations in order to identify whether Field resources were being used in an efficient manner aligned with FCC mission and policy priorities in the current state and for the long term
OceanEast was paid $845,520 in FY15 by FCC for this study.
Would a comparable amount of effort spent on reviewing FCC's overall throughput and productivity in it main product line of telecom policy have been more cost effective?
Below is page 86 of the presentation on how the EB field staff, at least those around when the survey was held, thing about decision making speed in the Bureau:
Note that 32 out of 70 EM field staffers felt that EB's "speed of making critical decisions over the past two years" was "very slow" and another 27 felt that it was "somewhat slow". Does this have something to do with the growth of the EB front office staff? Or perhaps the Commission's present general disinterest in spectrum policy other than key political issues such as the incentive auction?
Perhaps our recent post on antenna tower marking and lighting enforcement is indicative of this problem. The Johnson Towers Corp. case was initiated by an inquiry from FAA to FCC in November 2013 and was not finally resolved until 2 years later! The General Communication, Inc./Alaska Wireless Network, LLC case also took about 2 years to resolve. (Since this case involved a self-reported violation, erasable people could disagree on whether a $620,500 fine was appropriate, but since this is a safety of life issue most would agree that timely resolution of both of these cases was needed to show that FCC is serious!
A final sample of the slides in the report that FCC leadership tried to suppress deals with the staff's understanding of FCC's enforcement goals:
32 out of 70 EB staff respondents answers that they either disagreed or strongly disagreed with the statement "The field’s mission is explicitly aligned with the broader mission of the FCC". Is this an indication that spectrum enforcement should be downsized or a call for a major shakeup in EB leadership? For more than a decade the EB spectrum enforcement staff has been puzzled on what were the goals and priorities of the organization. Since they didn't know the goals, initiative was discouraged because you might enforce something that wasn't wanted. Look at the April 24, 2010 blog post that was here. FCC could have saved a lot of money if they had read it and acted! Here is an excerpt from hat post that indicates EB staff confusion over enforcement goals:
Sources in EB tell me that during the DTV transition when EB agents were visiting electronics retailers in large numbers to check for proper labeling on TV receivers being sold they were actively discouraged from noticing other equipment being sold that was illegal. Thus a return to the Adm. Nelson “telescope to the blind eye” approach.
Field downsizing will not accomplish anything - except maybe saving some money to be spent elsewhere in FCC - unless FCC & EB leadership take an active role in defining clear goals for field spectrum enforcement and gets adequate funding for equipment, travel and overtime: 3 things that field enforcement needs that are not needed by FCC staffers in Southwest! (As we have said before, city hall clerks need fewer resources than policemen and firemen. Does that mean that cites should downsize police and fire resources?) There is a real risk that the downsizing without strong leadership will facilitate spectrum chaos.
Indeed, the current glut of broadcast pirates may be a premonition of what is coming if FCC does not get its spectrum act together. Aviation safety may also take a big hit as the report minimizes the need for continued tower marking and lighting inspections mandated by §303(q) and gives no alternatives to assure this safety related compliance.
Think about this next time you fly!
CLARIFICATION
At no time has your blogger ever solicited internal nonpublic FCC documents from FCC staff. The first draft of the consultant report that I announced on this website was received from a known source outside FCC who sent it unsolicited. The longer document in this post was received unsolicited from a GMAIL account that is clearly a pseudonym and the cover message implied it was from an FCC employee. I have no idea who it was from and again did not solicit it, although I had requested it in my FOIA request that I believe was improperly handled at FCC. Before posting it here, I checked to make sure it contained no information affecting national security or law enforcement function or the privacy of FCC employees.. Indeed, the document's marketing do not imply it contains such material.
Stingray: DOJ Reforms Its Rules While FCC Silence Continues Delegation of Authority Issues
Stingray is apparently a device develop by the Navy (hence the nautical name) and now used by federal and some local law enforcement agencies (apparently under strict rules from FBI) to track cell phone use. It has been granted FCC equipment authorization and one model has grant number NK73092523 (Search here for public details.) The device spoofs cellular base stations to force cell phone to transmit information and receives such information.
Today the Washington Post and Wall Street Journal both reported that the Department of Justice will be "adding more judicial and internal supervision to a practice that critics say invades privacy and has had too little oversight for years." However the new DOJ rules do not necessarily apply to state and local police departments according to WSJ.
There are 2 key FCC issues here:
- The FCC equipment authorization grant is somewhat questionable especially due to the extreme and probably illegal redaction of documents from the manufacturer in the FCC FOIA release. Note that this redaction included information in the public equipment authorization grant. Most likely the redaction was made by FBI and rubber stamped by FCC. (The good news: FBI understands FOIA somewhat better than FCC staff and at least the FOIA exemptions are clearly marked on this release, something FCC has, at best, been inconsistent about in other releases.)
- Use of such equipment by state and local law enforcement requires an FCC license or STA/waiver. Who at FCC approves such actions? and consent of cellular carriers. Has this been done?
- Use of such equipment by federal agencies also requires carrier consent and FCC/NTIA coordination. Who approves such actions?
Delegation of Authority Issues
In your blogger's paper at this month's TPRC conference he raises the issue of low FCC throughput on various spectrum policy issues, even ones favored by CTIA other than incentive auction. One root cause of this problem is probably the Commission's outdated delegations of authority under Section 5(c) of the Comm Act. Many truly noncontroversial items end up on the 8th Floor and getting delayed. These are both technical issues discussed in the TPRC paper and nontechnical ones such as this example raised by my former FCC colleague Randy May.
But many issues that would benefit from commissioner attention may not be seen by them under the present delegations. Comm. O'Reilly has voiced concern about "depriving commissioners of the right to vote". But maybe the issue is that the commissioners are voting on the wrong subset of issues, delaying obscure noncontroversial issues and not giving oversight to important issues like Stingray.
Your blogger has no view on the merits of Stingray use, but today's news from DOJ confirms that its initial use was not well thought out. Did the 5 presidential appointees at FCC add any value to this process? Were they even aware? Note that the Bush43 Administration abuses of illegal NSA surveillance of phone and Internet was - in you blogger's view - almost certainly explicitly condoned by someone in FCC. Were the 5 commissioners at that time aware of this? Did they have meaningful input?
Rationalizing and reforming the FCC's delegations of authority will both improve FCC productivity as well as help maintain the rule of law.
"StingRay" FOIA Release Shows Continuing FCC FOIA Problems
“Stingrays, also known as ‘cell site simulators’ or ‘IMSI catchers,’ are invasive cell phone surveillance devices that mimic cell phone towers and send out signals to trick cell phones in the area into transmitting their locations and identifying information. When used to track a suspect's cell phone, they also gather information about the phones of countless bystanders who happen to be nearby.”
The magazine reports that “ A heavily redacted copy of a 2010 user manual covering both StingRay and KingFish devices was delivered by the FCC last week”. When they say “ heavily redacted copy” they weren’t kidding! Here is a sample of what was released:
But lest we be seen as too critical of FCC here, let’s first report 2 positive aspects of what has happened:
- The magazine actually got the release directly from FCC. This is a real improvement. We previously described a FOIA request to FCC for documents Motorola had submitted to FCC explaining why multiple units of hardware they made had caused interference to NOAA weather radars. In that case, FCC apparently allowed (requested?) Motorola to redact the documents any way they wanted and just send us whatever they thought was appropriate. We received the redacted copy directly from Motorola! In the present case, Harris Corp may have controlled all the redactions, but at least FCC wrote a cover letter and sent it to the magazine.
FCC Discovers and Starts Complying with 2007 FOIA Amendment
- FCC now finally recognizes the requirement of Section 12 of the OPEN Government Act of 2007 that “the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” As can be seen in examples of previous FCC FOIA releases below, including even one by the FCC Inspector General, this statutory provision has been consistently ignored by FCC previously. (Perhaps Harris Corp.’s lawyers read the FOIA legislation better than FCC staff or Motorola staff in previous cases?)
Ignoring Obama/DOJ FOIA Guidance - See, FCC Really is Independent!
In the recent Net Neutrality issue there has been consistent recurring accusations that FCC takes secret orders from the Obama White House. Such accusations have even been echoed by the 2 Republican commissioners. Well, this excessive fealty to the Obama White House may be disproven by FCC consistent and ongoing dismissal of the concepts in President Obama’s publicly stated FOIA policy: On his first full day in office, President Obama signed the Memorandum on Transparency and Open Government calling for unprecedented openness and transparency in government and declaring information maintained by the Federal Government is a national asset. Here is an excerpt:
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
This memorandum is not binding on FCC as an independent agency, and it is pretty clear that it has been almost completely ignored. So much for FCC’s alleged total fealty to the Obama White House!
Consistent Excessive Redactions
There have been a few recent cases where documents requested under FOIA were released by FCC and then released with fewer redactions. This allows a direct view of when FCC was redacting and whether it was justified. (By contrast, the document released by the FCC IG shown above has never been released in a less redacted form so one can only guess at whether the redactions were actually legitimate. However, we have previously speculated that this document was over redacted in some places and under redacted in others.)
Below is a Motorola submission to FCC in conjunction with the enforcement action concerning interference from Motorola equipment to NOAA weather radars. This was released, actually mailed by Motorola to your blogger after a FOIA request to FCC. Following it is a less redacted version after your blogger appealed to the full Commission and waited a year:
(Click on above images to expand the document)
Another pair of releases comes in the enforcement action concerning Google’s Spy-Fi operation and its legality. The top document is the document with redactions by Google that FCC nodded at when it released the document. After a public outcry, Google released the lower document with minimal redactions. Now that we can see what redactions FCC authorized/condoned in the upper document, were those redactions consistent with the law? Was it consistent with President Obama’s nonbinding guidance to FCC (but binding on Executive Branch agencies)?
A suggestion to readers: Compare the first redaction in the above 2 cases with the 2nd version. You can see the exact words that FCC redacted (or condoned the submitting party’s redaction) and see if you can find any plausible justification in the FOIA legislation for such redaction? If you happen to agree with your blogger that these redactions have no plausible justification, please communicate such to FCC leadership.
If CIA Has an Online Reading Room of Prior FOIA Releases, Why Not FCC?
While FCC claims to have a “Freedom of Information Act Electronic Reading Room” that allegedly includes “Records disclosed in response to a FOIA request that ‘the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records”, past FOIA releases are not readily available. FCC does not post previous FOIA requests and resulting releases except in very rare cases. Try to find the StingRay release on the FCC website, for example! (Although we must admit that in one case FCC released to us a document someone else had FOIA’s in only 3 days after we requested it! By contrast, CIA, NSA, FBI, and NRC do post previously released documents regardless of whether they are embarrassing to the agencies.
Remaining StingRay Issue: Who Authorized Its Use per § 301 or § 305?
While it appears that FCC made a minimal/slight attempt to comply with the FOIA request that asked for the StingRay information, there is another key spectrum policy issue here that has been unanswered dealing with StingRay: Who authorized its use under § 301 of the Communications Act? Use by a state or local law enforcement agency requires some sort of § 301 authorization. There are 2 obvious possibilities:
- FCC has been giving licenses to state/local law enforcement organizations under waivers
- State/local law enforcement agencies have been leasing spectrum from cellular carriers
What about StingRay use by federal agencies, e.g. FBI or DEA? Such use could have been authorized by NTIA pursuant to § 305 and § 902 of the Communications Act. NTIA is not known for transparency. But since StingRay almost certainly transmits in cellular bands (note that even this was redacted in the manual provided in response to the FOIA request), NTIA authorization would have required coordination with FCC pursuant to an interagency agreement. (The basic terms of this agreement have been in place since 1940 and have been strictly adhered to by both agencies.) So if anyone wants an exercise in frustration, feel free to FOIA FCC on correspondence with NTIA on permitting its use by federal agencies.
Maybe it is also time for an independent review of FCC FOIA practices?
UPDATE - Wild Inconsistency of FCC Redactions
It was amusing to note that all the routine application documents were listed but virtually all were granted confidentiality and none had links available. Even 6 documents that were not granted confidentiality were missing:
- “Revised ID Label”
- “Final Request for Confidentiality of Harris Corporation”
- “Revised RF Exposure 850MHz”
- “Revised RF Exposure 1900MHz”
- “Revised Test Report 1 of 2”
- “Revised Test Report 2 of 2”
But even more surprising was the official FCC equipment authorization grant which at the time of this writing can be access with this link. (Don’t be surprised if it disappears quickly.) The grant is shown above right and clicking on it will yield a larger image. It clearly shows the bands in which StingRay operates and the powers and modulations - all information redacted from the document FCC delivered for the FOIA request!
Why the wild inconsistency? There are hints throughout this issue that FBI is involved. Matthew Keys, the journalist behind the FOIA request, provided us with this statement:
“During the FOIA process, I was told that an outside agency was assisting the FCC in its fulfillment of the requested documents. Specifically, the outside agency was helping the FCC determine what information should be made public and what information should be redacted. To date, the FCC has refused to tell me the name of the outside agency.”
Note the grant contains a cryptic condition: “State and local law enforcement agencies must advance coordinate with the FBI the acquisition and use of the equipment authorized under this authorization.” In posted e-mail correspondence with FCC on the FOIA request, a delay due to an “outside agency” is mentioned. Also mentioned is an NDA between FBI and a local police department -- although it is hard to see how that was germane to the FOIA issue.
-So perhaps FBI, not Harris, actually redacted the document.
-Perhaps this explains the long processing of the FOIA request?
-This might explain why the redacted paragraphs are marked properly even though FCC had perviously ignored that requirement in FOIA releases. FBI may comply more with the letter of the FOIA legislation than FCC does.
-Perhaps FBI was more stubborn than FCC and demanded near total redaction even though the basic technical data was already public and the law and Obama Administration policy (binding on FBI but not FCC) did not allow such extreme redaction?
-Perhaps FBI did not know the information was already public in the grant?
-Perhaps FBI was so pig headed and arrogant in demanding total redaction that FCC didn’t bother to tell them about this contradiction? The world wonders.
Oh what a tangled web we weave,
When first we practise to deceive!
- Sir Walter Scott, Marmion, Canto vi. Stanza 17.
But this inconsistency is not unlike the FOIA release of the IG “porno” report: In that report parts were over redacted and parts were under redacted allowing identification of groups that were under suspicion for porno access from FCC computers. Further indication of long term basic FOIA problems at FCC.
UPDATE - 4/11/15
UK’s The Guardian has now also written about StingRay. They go into detail about the NDA’s between FBI and local police, presumably of no concern to FCC although FCC conditioned equipment authorization on user agreement with FBI in each case.
They also found a total of 5 different StingRay models with FCC equipment authorization and show the FCC grants with the frequencies and powers listed. The same information that was redacted in the StingRay manual FOIA!
Washington Times' FOIA Request on FCC Employees & On-the-job Web Porno Use
For one Federal Communications Commission worker, his porn habit at work was easy to explain: Things were slow, he told investigators, so he perused it “out of boredom” — for up to eight hours each week.
Lack of work has emerged time and again in federal investigations, and it’s not just porn, nor is it confined to the FCC. Across government, employees caught wasting time at work say they simply didn’t have enough work to do, according to investigation records obtained under the Freedom of Information Act.
It went on to say
“A spokesman for the FCC declined to comment on what, if any, action the agency took after the FCC’s inspector general singled out the eight-hour-a-week porn peeper.”
However, as is typical at FCC it was more redacted than even CIA and NSA! Take a look at the document at left that was sent to the Times reporter with a cover letter signed by the FCC’s IG. Several observations:
- It is really a package of 5 investigations from to July 2013 to March 2014. In one case no violations were found, in the other 4 violations were found.
- Despite the excessive redactions, they were not done very carefully. For example on p. 5 of the pdf we find that the computers suspected to have been used for porno were located in “Room CY-C247 of the FCC’s Portals II facility”. We also learn that an FCC employee and a contractor were both suspects. This was a case where no violations were found! We also find out on p. 32-33 of the package that it involved the “HFDFADMIN2-HP workstation”. While this may mean little to the redactors, it is clear to your blogger that this means the HF/short wave monitoring system formerly operated by the Enforcement Bureau and its predecessors, but now operated by the Public Safety and Homeland Security Bureau with virtually no public information. This system is operated from a newly constructed building at the FCC’s Columbia MD property, behind the Laboratory and closer to the EB field office, that I don’t think was ever publicly announced even although it is the first new FCC owned building in several decades. (Oddly, the building is not on satellite photographs on Google and comparable sites.) It is amusing to note that the secretive activities of this PSHSB activity are done by people who have high security clearances but access porno while on the job! (Here is one of FCC’s few cryptic detailed public references to this HFDF system that is perhaps the most secretive part of FCC.)
- While the FCC has a “Freedom of Information Act Electronic Reading Room” that says it contains “Records disclosed in response to a FOIA request that ‘the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.’ “ and one might think this package of document meet that description, in reality previously FOIA’d information is not there. May it is somewhere on the FCC’s chaotic site, but your blogger hasn’t found it. By comparison, CIA, NSA, and NRC make previous FOIA releases actually available!
- FCC continues to have little interest in complying fully with the following provision of 5 USC 552(b): “ If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” Thus there is no indication in this FOIA release of the justifications. While it is reasonable to think most of the redactions are reasonable, the statute appears to require that FCC give at least an exemption number for each or allege that some exemption number applies to all. There is no such indication in the released redacted document.
- The NRC IG recently released a 32 page audit report reviewing that agency’s FOIA practices, finding some problems, and making constructive suggestions. We suspect many of these suggestions would apply also to FCC. In view of the fact that the FOIA release discussed here was managed by the FCC’s IG, signed by him and had problems as discussed above, we urge FCC to have an independent review of its FOIA practices. While the President’s 1/21/09 FOIA/Openness memo is not formally binding on FCC, one might think that it would have a high influence on at least the 3 Democrats at FCC.
- IGs at other agencies under the same exact statutory charter as the FCC IG make periodic public reports on some of the investigations they have made of internal agency operations. FCC’s IG only issue the minimum required semiannual report and it does not discuss internal problems and possible improvements. The period of the 5 investigations covered in this FOIA release is covered by 2 semiannual reports : April 1, 2013 through September 30, 2013 and October 1, 2013 to March 31, 2014. While the first report (p. 23) cryptically alludes to a “separate investigations based on significant amounts of pornographic material”, there is never any discussion in either about the other investigation and findings. While the IG should not make his whole finding public for a variety of good reasons, his reporting on internal investigations is at best questionable.
FOIA @ FCC: Is CIA More Liberal?
Redacted version of FCC document received from a FOIA request
Based on your blogger’s recent encounter with FCC on FOIA issues, it is interesting to see how FCC practice compares with other agencies.
If you want a datapoint on the issue of whether FCC over-redacts documents under FOIA, compare the redactions of the Motorola document to this document, originally Top Secret, but released recently by CIA with redactions.
You can see that FCC is more aggressive with redactions than CIA is!
The FOIA legislation has the following provision (5 U.S.C. 552(b))
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.
As is clear from the FCC redaction shown above, and even the lesser redactions I received after an appeal to the Commission for review that took almost a year, the Commission has an “unusual” reading of this law. It is hard to imagine why anyone thought the whole text of the above Motorola response was FOIA exempt, especially when you see what it actually said.
Note that the law requires “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection”. It also requires “If technically feasible, the amount of the information deleted, and the exemption under which the deletion is made, shall be indicated at the place in the record where such deletion is made.” (Emphasis added) Clearly the second requirement was never met and it is dubious that the first requirement was met in this case. However, a review of the formerly Top Secret CIA document shows that the CIA is much closer to compliance than FCC. Why?
We note also that the CIA has a Freedom of Information Act Electronic Reading Room where it posts documents that have been released. FCC has no such information on its voluminous website.
We note also that the Nuclear Regulatory Commission posts on its website both Recent FOIA Requests as well as closed FOIA requests that include the documents released.
FCC appears to have on its web site “Records disclosed in response to a FOIA request that ‘the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records’”, HOWEVER this section is mainly links to other FCC databases and the only real information released under FOIA consists of 3 documents dealing with the investigation of Google’s collection of Wi-Fi data. No other FOIA-released data is available on the website as it is at CIA and NRC. Why?
So FCC appears to have at best a minimal policy of compliance with the FOIA legislation. In view of FCC’s claim of being very transparent, it is puzzling why this is true. This appears to be a longstanding issue at FCC that predates the current leadership, although the current leadership is not making it any better.
UPDATE
FBI may also be more liberal. FBIA documents released under FOIA are available in The Vault. See for yourself how FBI appears to redact with a lighter hand than FCC. Where do FCC documents released under FOIA go? Perhaps to the same black hole as pending petitions at FCC?
FBI’s FOIA site even has video. For example:
Christopher Metsos' brush pass with official from Russian Mission in New York, 5/16/ 2004.
"Michael Marcus, P.I." - FHH Current Issues in Telecommunications Law and Regulation
My friends at FHH CommLawBlog have written the above article in the December 2012 Current Issues in Telecommunications Law and Regulation, a newsletter based on the blog. (Apparently FHH has a law practice as a sideline to blogging. Blogging is really a lot more fun!)
The article deals with my FOIA request at FCC to get to the bottom of the U-NII interference to safety-related NOAA TDWR weather radars near airports. This resulted in a “reverse FOIA” action by Motorola seeking to limit the release of information for what was said to be protection of proprietary information but which appeared to be based in some part on just preventing embarrassment.
Original Motorola Redaction Initially Upheld by FCC Staff
Redaction After FCC 9/12 Order
FCC ultimately upheld part of your blogger’s request giving Motorola the type of defeat that used to be very rare for them when they dominated (monopolized?) the mobile radio biz.
Here’s part of what FHH wrote:
In our recent blog post on our CommLawBlog site about an AT&T wireless Internet service causing interference to an airport weather radar in Puerto Rico, we asked whether the FCC had charged AT&T with the wrong offense. Because the transmitter operated outside its FCC- certified frequency range (among other problems), the FCC determined it did not qualify for unlicensed operation, and so fined AT&T for not having a license – even though AT&T could not have obtained a license for that service.
Our friend Michael Marcus, a spectrum-savvy engineer (and former FCC official), asked a different question: how did the transmitter get to be operating on a non-certified frequency? Where most of us would be content to mull this over in our idle hours (if it occurred to us at all), Marcus is made of different stuff. He not only took the question to the highest reaches of the FCC, but managed to get some answers.
The article goes on to say
Marcus appealed that decision to the full Commission, ask- ing for access to specific redacted information. He argued, in part, that release of the information is in the public interest because it may shed light on the root causes of interference from the Canopy transmitters into airport radars, and thus promote air safety. The FCC’s decision gave Marcus a partial victory.
Thanks to FHH for the free press.
FOIA Practice @ FCC: Is FCC Consistently Over-redacting?
Here we see that FCC initially accommodated Google’s request to redact a phrase because it was “proprietary”, but the unredacted text later released by Google when public pressure was too great shows that what was involved was not proprietary information covered by FOIA Exemption 4, rather it was just wrongdoing that was embarrassing to Google.
Recently, FCC finally issued an Order on your blogger’s appeal of Motorola’s redaction of a letter they sent FCC in response to questions about interference to safety-related weather radars that was caused by Motorola equipment. (Motorola has since sold the division involved.)
Original Motorola Redaction Initially Upheld by FCC Staff
Redaction After FCC 9/12 Order
Motorola insisted throughout this struggle that the whole response to the above Question 2 was subject to FOIA Exemption 4. As in the Google case, readers might want to contemplate if Motorola had any rational justification to say that the 2 paragraphs now (mostly) unredacted was really "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential" or was it just embarrassing?
The new FCC Order stated that two sections of the Motorola letter in question remain completely redacted. In view of the information revealed in the above lesser redaction, one wonders if those redactions are really proper. Is FCC just too ready to accept corporate request for redactions without making real public interest determinations?
Your blogger intends to appeal the 9/12 Order and would welcome any pro bono legal help in such an appeal.
FCC FOIA processing has had some criticism from the right wing recently. The Daily Caller recently had an article entitled “FCC FOIA denial rates higher than CIA for ‘records not reasonably described’” based on numbers recently revealed by Florida House Republican Mario Diaz-Balart. Raw data is available at 2011 FCC FOIA report.
reason.com alleges
“What's the quickest way to get a FOIA request returned by the FCC? Try asking it for information about a political enemy of the Obama administration.”
In less than a month Citizens for Responsibility and Ethics in Washington — a group funded in part through the philanthropy of left-wing billionaire investor George Soros — obtained 233 pages of records on Rupert Murdoch and his News Corp. media empire, from between Jan. 1, 2006 and July 15, 2011, according to documents available on CREW’s Scribd account.
It appears that FCC is more protective about Google and Motorola than Rupert Murdoch.
UPDATE
Our friends at CommLawBlog now have a post on this issue entitled “FOIA Request Turns Up Info on Non-FCC-Compliant Transmitters”. Here are some quotes:
Because the transmitter operated outside its FCC-certified frequency range (among other problems), the FCC determined it did not qualify for unlicensed operation, and so fined AT&T for not having a license – even though AT&T could not have obtained a license for that service. Our friend Michael Marcus, a spectrum-savvy engineer (and former FCC official), asked a different question: how did the transmitter get to be operating on a non-certified frequency? Where most of us would be content to mull this over in our idle hours (if it occurred to us at all), Marcus is made of different stuff. He not only took the question to the highest reaches of the FCC, but managed to get some answers….
The mystery continues, as does occasional interference to airport radars. Users of the Canopy transmitters have no easy way to check the operating frequency or the presence of DFS capability. But those within the U.S. can – and should – look for an FCC ID number on the unit. If the number is missing, the user is on notice that the device is not only unlawful, but also a potential threat to air safety. For the sake of all air travelers, please turn it off
Motorola Wages "Reverse FOIA" Fight on Explanation of Interference from Motorola Product to Safety-related Weather Radar
Observers of the FCC’s minutia have noticed that your blogger’s name is now on the FCC’s “Items on Circulation” list for the 2nd time. This post explains why: A FOIA request I filed on behalf of this blog and the public interest is being blocked to a considerable degree by a “reverse FOIA” campaign from Motorola dealing with a product line it sold last year.
The Court of Appeals for the District of Columbia Circuit has defined a "reverse" FOIA action as one in which the "submitter of information -- usually a corporation or other business entity" that has supplied an agency with "data on its policies, operations or products -- seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter's FOIA request."
So here are the basic facts:
- On August 11, 2011 I submitted a FOIA request to FCC for Motorola’s response to an Enforcement Bureau Letter of Inquiry (“LOI”) in EB-09-SE- 064, the investigation of U-NII interference to Terminal Doppler Weather Radar (TDWR) , a safety-related system to detect severe storms near airports, near the San Juan International Airport. This document was cited in an April 2010 Consent Agreement between Motorola and FCC where Motorola “agree(d) that it will make a voluntary contribution to the United States Treasury in the amount of $9,000” and make some management changes and FCC agreed to terminate the investigation.
- Rather than getting a response from FCC, I got a response from Motorola that included a severely redacted copy of their letter to FCC. (Those of us who worked at FCC know that it was traditional for FCC to give “professional courtesy” to Motorola in the past.) Much to my surprise, a September 9, 2011 letter from FCC’s Enforcement Bureau simply ratified Motorola’s redactions, part of which are shown below:
Motorola redactions of their response to FCC/EB which included a request for the FCC ID number of the unit involved and a question about whether it was properly certified. Is this really proprietary information?
- On September 23, 2011 (nearly a year ago) I filed a timely appeal of these excessive redactions under the provisions of 47 C.F.R. §0.461(i)(1). Motorola engaged Wiley Rein (“Broadcasting & Cable has recognized Wiley Rein as a ‘powerhouse law firm.’ “ ) to wage a reverse FOIA fight to protect all the original redactions.
- While it is generally felt that the FOIA legislation requires redaction of proprietary information, the Supreme Court held in Chrysler Corp. v. Brown that "Congress did not design the FOIA exemptions to be mandatory bars to disclosure" and that the agency could release information in the public interest.
A major reason for my request for this information is not voyeurism and has been discussed here previously: the software defined radio (SDR) rules adopted in Docket 00-47 were modified shortly afterwards in Docket 03-108 at the request of several manufacturers including Motorola. These changes watered down the software security provisions for SDRs. As a result of these concerns, the former 2.932(e) was replaced with the present 2.944 which does not apply to transmitters unless the “software is designed or expected to be modified by a party other than the manufacturer”. It is your blogger’s guess that the root cause of this series of interference incidents is this rule change.
While Motorola, and hopefully the company that now makes the Canopy products in question, are bound by the Consent Agreement and are unlikely to repeat the actions that resulted in this dangerous interference, other manufacturers of radios implemented with SDR technology are still only bound by the vague terms of the present §2.944 and might take similar actions to what Motorola did and is now trying to hide in this reverse FOIA action. Is it in the public interest to see what the root causes of this problem were and if necessary take steps to prevent any other firms from doing what Motorola employees did here?
Readers may recall a recent FOIA controversy at FCC involving Google. In that case Google told FCC to release only a highly redacted version of its “Spy-Fi” report which was done on 4/13/12. Under blistering criticism, Google released the report with minimal redactions - the only remaining redactions appear to be identities of people interviewed.
Google’s original redactions of “Spy-Fi” FCC report along with the unredacted text released by Google after public outcry. Large corporations, like government agencies, sometimes try to hide their misdeeds from the public by misusing information disclosure laws.
Motorola has changed a lot in the past 2 decades. The Canopy device involved in this controversy is part of a product line that was sold to Cambium Networks in September 2011, about the time this FOIA battle started. The remaining publicly owned company, Motorola Solutions, focuses on the Part 90 market with public safety being a key customer. (“Motorola Solutions serves both enterprise and government customers with core markets in public safety government agencies and commercial enterprises” ref.) Motorola Solutions has a set of publicly stated values that includes:
Motorola Solutions, is it really worth risking your reputation with your current customer base on this issue and the vagaries of the 8th Floor? I have offered repeatedly to settle this FOIA issue through discussions and recognize that the document in question has some valid trade secrets. Google made a wise decision to err on the side of disclosure, perhaps you should also. Your counsel knows how to reach me.We are accountable. We stand behind the work we do, the contributions we make and the high business standards we maintain.
Public safety users, do you really want to depend on an infrastructure provider that doesn’t meet the standard of transparency that Google set with respect to admitting practices that resulted in safety-related interference? Perhaps you should press Motorola to come clean on what really happened in San Juan?
UPDATE
FCC has now released an Order supporting some of your bloggers requests to remove redactions and upholding Motorola’s requests for redaction on other issues. However, the final redactions have not been released yet and any decision to appeal further will depend on the nature of the final redactions.
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