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FCC to Cough Up $43,000 Settlement for Refusing to Turn Over Fake Comment Records

Dell Cameron Mar 22, 2019. 13 comments

While not admitting to doing anything wrong, the Federal Communications Commission on Wednesday settled a lawsuit for tens of thousands of dollars after unlawfully withholding records from a reporter under the Freedom of Information Act (FOIA).

The FCC will pay over $43,000 in attorneys’ fees and costs to New York journalist Jason Prechtel over records he initially requested almost two years ago concerning its 2017 net neutrality proceeding. Represented by Chicago law firm Loevy & Loevy, Prechtel sued the FCC in a Washington, D.C., federal court after it failed to respond to his request in the timeframe provided under the statute.

The data Prechtel ultimately obtained through the case formed the basis of a Gizmodo report last month—which he coauthored—that revealed how investigators had linked various entities, including a prominent Washington, D.C., publication, to potentially millions of fraudulent comments submitted during the 2017 net neutrality rollback.

The same data was previously withheld from law enforcement investigators by the FCC’s top lawyer citing jurisdictional and privacy concerns. Prechtel eventually obtained it under FOIA from a separate agency.

“After a year and a half of litigation and a court order requiring production of requested records, FCC agreed to pay $43,077.80 to wrap up the case,” said attorney Joshua Burday, who represent Prechtel in court. “This is a good reminder that you don’t need to be able to afford a lawyer to exercise your FOIA rights.”

The settlement, which formally dismisses Prechtel’s case, includes a standard stipulation that the FCC does not admit any liability or fault as a result. The commission was represented by Assistant U.S. Attorney Johnny Walker.

The amount recouped by Loevy & Loevy is far above average, according to the Transactional Records Access Clearinghouse (TRAC), a research center at Syracuse University. For every 50 or so plaintiffs awarded less than $10,000, only about five are awarded fees ranging from $50,000 to $75,000. The fees, awarded at judges’ discretion, are not routine, TRAC says.

Judges are empowered under FOIA to “assess against the United States reasonable attorney fees and other litigation costs reasonable incurred” when, according to the statute, the plaintiff has “substantially prevailed.” The fees enable FOIA attorneys to take on more pro bono cases from journalists, like Prechtel, who are not supported financially by large corporations.

Earlier this week, the FCC admitted in a separate but related FOIA lawsuit brought by the New York Times that its public comment system lacked the technical capacity to track who’s responsible for the flood of counterfeit comments it received during the notice-and-comment process.

As of October, investigators at New York’s Bureau of Internet and Technology believed that nearly half of the 23 million public comments related to the 2017 net neutrality proceedings used names and home addresses of Americans without their consent.

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