FCC Says Fixes to ECFS Will Help Address Problems That Critics Say Hurt Public Access

After facing criticism for its Electronic Comment Filing System’s inability to handle a record-setting deluge of public comments, the FCC said publicly for the first time Thursday night that it's working on several changes for ECFS. One fix could speed up the system as soon as late November, the FCC's spokeswoman told us. Eventually, the agency wants to move toward a cloud-based system, she said. That would help avoid the limitations of the FCC's own servers, which have limited memory.

ECFS problems meant members of the public couldn't access comments on net neutrality, the issue of whether to subject cable operators, telcos and wireless carriers to the same regime of rules phone services face or to continue to consider it a less-regulated information service. It also meant waits by the public to view filings on more than $130 billion worth of media and telecom mergers and acquisitions including Comcast's planned buy of Time Warner Cable and the AT&T/DirecTV deal. Industry lawyers, lobbyists and others with contacts often got information when it was filed, prompting some to call it undemocratic.

An interview with FCC Chief Information Officer David Bray and a subsequent series of emails with the spokeswoman in the past two weeks show ECFS sputters along slowly at times, even after the end of the net neutrality reply period, in part because of the 3.9 million comments that came in. When searches are done, the system has to go through that much more data. The system's different components are linked so that when one aspect, like searches, slows down, it slows down the entire system, the spokeswoman said. At the net neutrality filing period's peak, it could take weeks for documents filed on ECFS to become publicly available, while a small coterie of insiders and participants in proceedings got the filings around when they were submitted.

Other federal agencies that have faced their own comment deluges didn't have any delays. The FCC even lost at least one comment entirely. Net neutrality participants said things would have been even worse had the commission not devised technical workarounds on the fly. All cited lack of funding to overhaul the FCC's aging IT systems as the reason for the problems, and praised the FCC's work with what resources it has. Congress hasn't agreed to boost IT funding, as the agency has sought. The agency has a $339.8 million budget this fiscal year.

Some industry lawyers have had to turn to reporters for copies of filings that had been made available to the press but not publicly available, raising questions of whether ECFS problems gave an advantage to those with contacts. That exacerbates the "persistent disadvantages individuals and smaller groups suffer in the rulemaking process," said Cynthia Farina, principal researcher at the Cornell University e-Rulemaking Initiative, which works with federal agencies on making online rulemaking more accessible. “When, as a result of an ECFS outage, some parties have access to information not available to others, those parties have more time to meet agency filing deadlines and to have information which informs their advocacy on an issue,” said Georgetown University Institute for Public Representation Senior Counselor Andrew Schwartzman.

The agency is working to separate the search function from ECFS’s filing system function so that “a heavy load on one will not affect the public’s ability to perform the other” activity, said the spokeswoman. It's working on rolling out a “faster, full-text search using an open source platform,” she said. While the functions would be separate, they would continue to appear on the ECFS website, said the spokeswoman, who did not give a timeline for the second change. The improvements, which she said can be funded through the agency’s budget, are expected to ease some of the problems that’s frustrated ECFS users. The commission is working on a long-term solution that would be “an entirely new, cloud-based successor to ECFS that will follow an agile development methodology and overcome several of the limitations of the current 18-year old ECFS system,” the spokeswoman said. Bray said a cloud-based system would let the agency increase capacity as needed.

Better Alternative?

Other federal agencies that use regulations.gov to collect public comments said they haven't had problems like those with ECFS. Part II of this series of articles will examine how regulations.gov works.

The State Department received 2.5 million comments on the Keystone Pipeline and didn't face any "slowdowns or problems," said a department spokesman. The Environmental Protection Agency, which also uses the regulations.gov site, hasn't faced slowdowns due to the volume of submissions, an EPA spokeswoman said. But its own system went down three times this year because of hardware problems, she said.

To understand why problems persist, the FCC spokeswoman said, consider that the 3.9 million net neutrality comments represent more than 50 percent of the roughly 6 million to 7 million documents ECFS received over the past three years. Even as of Friday, ECFS was taking a while to pull up a particular proceeding after it was requested, and at other recent times the public hasn't been able to use the system even though the FCC said it hadn't crashed.

Missing Comment

The FCC acknowledged losing the Center for Boundless Innovation in Technology’s net neutrality comment. The agency spokeswoman blamed a combination of the large number of comments, the need to convert filings to PDFs in a system designed when paper filings were common, and a mechanical malfunction. After submitting the comment July 18, CBIT, which often opposes government regulation, was unsuccessful in asking FCC staff to make its filing available on ECFS.

The group's legal argument that broadband cannot be reclassified because it doesn't meet the definition of a telecom service may not have been addressed by other groups in the subsequent comments because the filing wasn't available in the ECFS docket, said CBIT Director Fred Campbell. To speed the posting of comments, the agency had set up a process to lump emails, sometimes hundreds at a time, on a single PDF, instead of creating one for each of them, the spokeswoman said. That caused its own issues for those who submitted comments by email, because they could not be found by searching for the commenter’s name in the system, the spokeswoman said. CBIT’s comment never made it that far, the spokeswoman said, because it somehow became detached from the email in the process and was never entered into ECFS. The comment is being entered, the spokeswoman said.

18 Years Old

The lost comment didn't surprise Holmes Wilson, co-founder of Fight for the Future, a pro-reclassification group that with others flooded ECFS with comments. “I'd just list that alongside all the other problems with having a broken system and trying to graft solutions to it,” he said. Even after the deluge of net neutrality comments ended, those who use ECFS regularly complain about having their work disappear into error messages, of not seeing comments posted for days after they're filed, and of the system appearing to be down.

ECFS's problems raise policy issues about how well it's equipped to handle large numbers of comments generated in the net neutrality proceeding, which shows activists are using more sophisticated tactics that can overwhelm the system. If not for complaints by advocacy groups that they couldn't post their comments calling for broadband to be deemed a telecom service and a workaround that was created by the FCC, more people would have been disenfranchised, Wilson said.

Bray and the agency spokeswoman said the 18-year-old ECFS's problems are essentially that it's old, suffers from a lack of capacity and has had some functions added such as searches to the original mission of allowing the public to submit comments online. Large numbers of comments being submitted concurrently poses a particular problem for the system, the agency said.

At his home in Minnesota, Jeff Lyon saw ECFS's issues this fall as he worked to make sure reply comments Fight for the Future collected made it into the ECFS site. The organization and others had created their own site for people to submit form comments. The system was set up so all the comments went to the organizations' database, where Lyon and several other activists would simultaneously submit them individually to ECFS, waiting for confirmation a comment was successfully submitted. The advocates experimented with how many comments they could send concurrently, and found "it was unreliable at any level," he said. "Even sending one comment at a time, and waiting for it to successfully complete before submitting the next comment, the ECFS system would go down unpredictably."

With all the interruptions, and with 700,000 comments in the groups' own database needing to be submitted, it became clear as the end of the Sept. 10 reply period deadline approached that "we'd never be able to run through our queues fast enough before the deadline," said Lyon. "That's when we contacted the FCC and told them there's a problem. We can't submit them all." The FCC's work-around let the groups submit thousands of comments at a time on a spreadsheet.

ECFS was not designed for the modern Internet," Lyon said. "You can have engineers totally on the ball and giving their best efforts and the system could fail. The traffic we generated was colossal. ECFS could not keep up." Had the groups not made Herculean efforts and there been a "solid, good faith effort coming from within the agency," Wilson said that "the vast majority of the public's voices could have been completely excluded from the process thanks to old software."