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The FCC says it failed to count nearly 700,000 net neutrality comments

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If you had a 18-year old computer system, it’d make some errors too.

When the FCC asked members of the public to weigh in on the agency’s proposals for the future of net neutrality, it wasn’t prepared for the overwhelming public response it received. The agency got more then 4 million comments on the issue. More people wrote in about net neutrality than on any issue in the agency’s history—including that time everyone at the Super Bowl saw Janet Jackson’s nipple.

Over the past week, there’s been some controversy over exactly how many comments the Federal Communications Commission has reported receiving, particularity from people who are in favor of the agency imposing rules that would block Internet service providers (ISPs) from charging online content producers, like Netflix or YouTube, for a “fast lane” to consumers—a proposal the agency is currently considering, one that many open-Internet activists believe runs counter to the “all data is equal” principals of net neutrality.

The pro-net neutrality group Fight For the Future (FFTF) charged that the FCC dramatically undercounted the number of public comments the organization helped shepherd into the agency’s 18-year old computer system for handling public comments. On Tuesday, the FCC admitted that, due to a technical error, nearly 680,000 comments were not reported correctly. The FCC had registered receiving them; however, those comments didn’t make it out the other end in the agency’s reports in the total number of comments its received.

“We think it’s important that people understand that much of the confusion stems from the fact that the Commission has an 18-year-old Electronic Comment Filing system … which was not built to handle this unprecedented volume of comments,” explained FCC Special Counsel for External Affairs Gigi Sohn and Chief Information Officer Dr. David Bray in a blog post. “This forced the Commission’s information technology team to cobble solutions together MacGyver-style.”

“Thanks to these creative efforts, we have been able to accommodate the surge in comments and release the comments as XML files for the first time in the FCC’s history,” Sohn and Bray continued, “but not without some glitches.”

FFTF first brought up the issue in a December 17 blog post, noting that the number of comments sent through the Battle for the Net website, which FFTF helped launch, was significantly less than the number of pro-net neutrality comments noted in a Sunlight Foundation report based on FCC data from the most recent round of net neutrality commenting.

Simply not registering the voices of people who wrote into the FCC about net neutrality is problematic. But the additional comments may not help the pro-net neutrality argument: The Sunlight Foundation’s report noted that, in the second commenting round, the number of anti-net neutrality comments significantly outweighed those from net neutrality supporters.

During the first round of comments, those in support of net neutrality outweighed those against by a ratio of 100 to one. In the second round, 60 percent of the comments were against the imposition of net neutrality.

The Sunlight Foundation’s report credits this major swing almost entirely to a form letter campaign run by a conservative, Koch brothers-backed group called American Commitment. The report noted that 99 percent of the anti-net neutrality comments in the second round came from form letters, like the one organized by American Commitment. The number of form letter comments from the pro-net neutrality side was far lower.

FFTF co-founder Evan Greer told the Daily Dot that, while the comments on her side were significantly undercounted, the number of the comments American Commitment reported submitting to the FCC and the number the FCC registered getting were roughly the same—meaning there’s a good chance the uncounted comments are largely pro-net neutrality.

For its part, the Sunlight Foundation argued that it was only able to use the data provided by the FCC, which it noted up front was slightly problematic.

“The conservative group that appears to have generated the vast majority of comments in the second set of comments we analyzed said we confirmed it ‘won‘ the comment period,” Sunlight Foundation developers Bob Lannon and Andrew Pendleton wrote in a blog post about the controversy. “In fact, as we were careful to point out in both our first and second post, these numbers cannot be read the same way as a baseball score. That’s partly because of data noise … and partly because of the way those numbers were generated, both factors which we went to some pains to elucidate in our post.”

This undercount isn’t the first time the FCC’s outdated system for handling comments has caused problems. After comedian John Oliver urged the viewers of his show Last Week Tonight to write to the FCC about net neutrality, the flood of comments crashed the agency’s website.

FFTF CTO Jeff Lyon said that he was relieved the issue only related to exporting the comments rather than the FCC not having received them in the first place. “It was scary to think that the voices of hundreds of thousands of people who spoke out in favor of net neutrality could be silenced by a computer glitch—I’m so relieved that’s not the case,” he insisted. “With the FCC now finalizing its net neutrality proposal, and the new Congress getting into the mix, it’s crucial that the people’s voices are heard loud and clear in Washington, D.C.”

The FCC is expected to deliver a decision about whether or not to impose rules mandating net neutrality—and, if it does create new rules, what the mandates will be—sometime in 2015. The decision was originally slated to come before the end of this year, but the announcement was delayed due to the agency’s expectations that its ruling would unleash a torrent of lawsuits from ISPs that it needed to be prepared to fend off.

Correction: Based on previously available data, a majority of the undercounted comments to the FCC are likely in support of net neutrality.

Illustration by Max Fleishman

Aaron Sankin

Aaron Sankin

Aaron Sankin is a former Senior Staff Writer at the Daily Dot who covered the intersection of politics, technology, online privacy, Twitter bots, and the role of dank memes in popular culture. He lives in Seattle, Washington. He joined the Center for Investigative Reporting in 2016.