TR Daily House Democrats Press Pai on OIG’s ECFS Report
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Tuesday, August 14, 2018

House Democrats Press Pai on OIG’s ECFS Report

Four Democratic members of the House Energy and Commerce Committee wrote FCC Chairman Ajit Pai today seeking answers in the wake of a report released last week by the FCC’s Office of Inspector General that found that the FCC made a number of false statements in a press release and in responses to congressional requests for additional information about delays experienced by users of the FCC’s electronic comment filing system (ECFS) on May 7 and 8, 2017 (TR Daily, Aug. 7).

The investigation “did not substantiate the allegations” made in May 2017 by then FCC Chief Information Officer David Bray that the ECFS had suffered delays as a result of multiple DDoS (distributed denial of service) attacks, according to the report on the OIG investigation.

Instead, the report concluded that “[t]he degradation of ECFS system availability was likely the result of a combination of: (1) ‘flash crowd’ activity resulting from the Last Week Tonight with John Oliver episode that aired on May 7, 2017 through the links provided by that program for filing comments in the proceeding; and (2) high volume traffic resulting from system design issues.”

In their letter today, Reps. Frank Pallone Jr. (D., N.J.) and Mike Doyle (D., Pa.), the respective ranking members of the full Energy and Commerce Committee and the communications and technology subcommittee, and Reps. Jerry McNerney (D., Calif.) and Debbie Dingell (D., Mich.) said they were “deeply disturbed” by the OIG’s report, noting that it said that no DDoS attack occurred and that “you made a series of misrepresentations to Congress about the event, which were corrected for the first time in the IG’s Report.”

The lawmakers continued, “Given the significant media, public, and Congressional attention this alleged cyberattack received for over a year, it is hard to believe that the release of the IG’s Report was the first time that you and your staff realized that no cyberattack occurred. Such ignorance would signify a dereliction of your duty as the head of the FCC, particularly due to the severity of the allegations and the blatant lack of evidence. Therefore, we want to know when you and your staff first learned that the information the Commission shared about the alleged cyberattack was false.

“It is troubling that you allowed the public myth created by the FCC to persist and your misrepresentations to remain uncorrected for over a year. This is despite repeated requests by members of this Committee — as recently as July 25, 2018 in our oversight hearing — to provide additional information documenting the purported cyberattack,” the Democrats added. “To the extent that you were aware of the misrepresentations prior to the release of the Report and failed to correct them, such actions constitute a wanton disregard for Congress and the American public.”

They asked a series of questions and want answers by Aug. 28.

They asked Mr. Pai when he and Chief of Staff Matthew Berry first became aware that the failure of the ECFS “may not have been caused by a DDoS attack”; why the Chairman didn’t issue a correction of public statements when he became aware they were not accurate; and why he didn’t “correct your misrepresentations to Congress either publicly or on a confidential basis once you became aware they were inaccurate?”

The lawmakers also noted that Mr. Pai said in an Aug. 6 statement that he was asked not to disclose the OIG’ investigation at the request of the OIG (TR Daily, Aug. 6). They asked if the OIG also asked him not to correct misrepresentations that were made to Congress and not to correct the public record. They asked Mr. Pai to “provide copies of all such written requests and guidance or memorialization of an oral request from the IG’s office.”

The Democrats also asked Mr. Pai when he got a draft of the OIG’s report, whether he asked for edits, and documentation of any such requests. They also asked why he still hasn’t “corrected the FCC’s previous statements to the public and Congress?”

Finally, they asked if he made any other oral or written statements to Congress that aren’t accurate and haven’t been corrected, and they asked for a written correction.

An FCC spokesman declined to comment on today’s letter.- Paul Kirby, [email protected]

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