FCC living in the dark ages; a threat to net neutrality aims

The Government and Accountability Office (GAO) has concluded that the Federal Communications Commission does nothing with about four out of every five consumer complaints that it puts into a database and investigates. Even worse, the GAO could not discern from its survey of the FCC's complaint process why the FCC takes no enforcement action with 83 percent of the complaints it looked into from 2003 through 2006. "Without key management tools, FCC may have difficulty assuring Congress and other stakeholders that it is meeting its enforcement mission," the GAO report warns. That's putting it mildly. If the FCC does set up some serious net neutrality guidelines for ISPs like Comcast, how can P2P application users and other consumers know that the agency will take their comments seriously?

Scope of the problem

Most complaints that the FCC receives go through the agency's Consumer and Governmental Affairs Bureau (CGB). According to the GAO's report, released on Thursday, from 2003 through 2006 the CGB received and logged 454,000 consumer grievances into its database. Violations of the agency's Do Not Call List and telemarketing during prohibited hours rules won first prize for gripes: 178,078 during the period studied. This was followed by complaints for overbilling, bad cellphone service, and then false advertising. Charges that some TV program contained obscene, indecent, or profane material ranked number six in a list of ten specific categories. Slamming—switching a consumer's service from one company to another without their permission, and cramming—padding a customer's bill with bogus charges, came in eighth and ninth, with over 19,000 complaints.

To most of these missives the FCC sent the consumer a formal response and suggested that they contact the company about which they had complained. But the agency's Enforcement Bureau did conduct investigations of about 46,000 requests for help. About 3,400 of these inquiries resulted in some enforcement action: a letter of admonishment or fine usually. But the Bureau closed 83 percent with no response, and could not demonstrate to the GAO's satisfaction why.

The GAO did, however, come to conclusions as to why Enforcement could not explain its own inaction in so many cases. The Bureau uses five different databases and "tens of thousands of paper case files" to keep track of its work. "Consequently, we could not use the Enforcement Bureau’s databases to obtain bureau-wide information on the one-year statute of limitations for imposing monetary forfeitures, the speed with which the Enforcement Bureau closed an investigation, the reasons for closing investigations with no enforcement action, or the amount of the fines FCC assessed," the GAO report disclosed. "Our past work has shown that when data management systems are not integrated and compatible, excessive use of resources and inconsistent analysis of program results can occur."

Implications and reactions

Net neutrality supporters should be concerned about these findings, because the Enforcement Bureau's five divisions include its Telecommunications, Market Disputes Resolutions, and Spectrum Enforcement departments. The first division "investigates and takes or recommends enforcement action for violations of consumer-related obligations of common carriers and other telecommunications entities." The second settles cases involving "consumer-related obligations of common carriers and other telecommunications entities." And Spectrum Enforcement deals with network reliability problems. If Enforcement can't even explain at this point why it dropped a huge percentage of the complaints that it investigated, how will it manage the complexity of the P2P/Comcast problem if the FCC establishes rules against Comcast blocking or slowing down protocols like BitTorrent?

Not surprisingly, the GAO report recommends that the FCC update its Enforcement database system. The FCC has responded to the study, insisting that since 2006 it has implemented many of the GAO's recommendations, and that the report used outdated data to come to its conclusions. Strangely, the FCC criticizes the GAO survey for relying on information "that is more than four years old." But the point of the study was to survey the FCC's activities over a broad period time, not just the last six months. The GAO responds to the FCC's critique by noting that the agency expects to modernize its CGB databases some time this year, but has disclosed no plans for upgrading its Enforcement Bureau databases.

The Parents Television Council has also issued a response to the GAO study. Titled "GAO Needs a New Calculator," the indecency watchdog group takes exception to what it suggests may be a deliberately lowered number of indecency complaints reported in the GAO survey. Indeed, while the study reports 16,076 indecency related complaints from 2003 through 2006, my own tracking of comments, based on the FCC's CGB complaint page, indicates a far higher number.

"The GAO’s math is obviously fuzzy," the PTC declares. "The Janet Jackson Super Bowl striptease produced over 65,000 complaints from PTC members alone, in addition to the hundreds of thousands of people who complained to the FCC directly about this. According to data on the FCC web site today there have been 2.13 million indecency complaints during the time period studied in the GAO report. It appears that the GAO is attempting to intentionally diminish public sentiment on broadcast decency."

But if the PTC had looked a little more carefully at the GAO report's source disclosures, they might have noticed that the survey does not count the number of complaints "filed at the FCC from 2003-2006," as the PTC's press release states, but the number of complaints the GAO could find in the CGB's database. Inadvertently, the PTC has exposed not a plot to underestimate the number of consumers who complained based on the groups' recommendations (and possibly after watching the program themselves), but the sad fact that the CGB's own database system may not keep up with the agency's publicly disclosed data.

In any event, the PTC should be heartened by the FCC's statement in its recent throttling of Fox TV's "Married by America" that even one indecency complaint can potentially trigger an investigation. ""We have followed this course in the past and will continue to do so in the future," the Commission promised.

For net neutrality advocates, however, the message is clear: the FCC needs to modernize its systems before it can take on additional oversight, especially oversight that may be as contentious and technically complex as net neutrality rules may generate.