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Journalist Gets Partial Win Against FCC in Net Neutrality Case

By William Vogeler, Esq. on September 20, 2018 | Last updated on March 21, 2019

In media law, The Journalist v. The FCC is almost David v. Goliath.

In Prechtel v. Federal Communications Commission, freelance writer Jason Prechtel sued the agency after it ignored his public records request for allegedly fraudulent comments submitted during its repeal of net neutrality. A judge has ruled he is entitled to documents to "prevent fraud in future processes."

It was a partial victory, however, because the judge said the FCC can withhold records about its deliberations. So the giant got hit between the eyes, but gets to keep its head.

"Dubious Comments"

Ars Technica reported that the FCC received many "fraudulent comments submitted in other people's names without their knowledge." Making related documents public will allow the media to scrutinize the process, according to Judge Christopher Cooper.

"In addition to enabling scrutiny of how the Commission handled dubious comments during the rulemaking, disclosure would illuminate the Commission's forward-looking efforts to prevent fraud in future processes," Cooper wrote in his decision.

As a result, the FCC must turn over email addresses that were used to submit comments. The agency argued that it would invade the users' privacy, but the judge said the FCC had warned them their information would be made public.

Prechtel called the decision "a huge victory for transparency over an issue that has gone unanswered by the FCC and its current leadership for too long."

Servers and Deliberations

However, the judge denied Prechtel's request for logs from the FCC's servers. The judge also said the FCC could redact certain information about "internal deliberations."

The agency redacted email by former FCC CIO David Bray regarding clients who had not been identified publicly. The FCC said the email were exempt from public disclosure as part of the "deliberative process."

"This is precisely what the deliberative process privilege is designed to protect: the agency staff's ability to have candid discussions and weigh options before making a final decision," the judge wrote.

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