Continuing ECFS Problems at FCC a Widespread Annoyance, Its Users Say
Ongoing Electronic Comment Filing System woes at the FCC bothered all industry lawyers we queried, with many filings still unavailable and at times ECFS not working, as it has at times throughout the week (see 1705080042 and 1705100062).
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The FCC's only official comment on the matter came Monday, when Chief Information Officer David Bray said in a statement the system was targeted by distributed denial-of-service attacks, to the consternation of some in the communications bar. He also said ECFS always remained "up and running." Many chalked up the problems to controversy about the draft NPRM that would begin the agency's rollback of Title II Communications Act net neutrality rules. John Oliver's segment on his HBO show Sunday night devoted to net neutrality appeared to be spurring comments. Ranking members of House panels overseeing the FCC Thursday cited the website "crash" in seeking a comment-deadline delay (see 1705110066).
Thursday saw a continuation of the glitches, such as filings being unavailable in dockets on net neutrality and those on Title II. At times, some other dockets were accessible, but not always. Consistently since Monday, we have been unable to view all filings submitted on any particular day to the commission. Others reported similar problems, saying using various web browsers and computers didn't mitigate the problems. The FCC said it hadn't heard complaints about ECFS Thursday and "a very large number of comments" were successfully submitted that day. The upshot is that even those communications practitioners not working on net neutrality, which has seen high volume of comments on the draft NPRM set for a commissioners vote at next Thursday's meeting, have faced ECFS headaches. For example, the glitches happened to coincide with Tuesday's comments deadline in the 16-142 docket on the ATSC 3.0 rulemaking.
"Anytime you get 1 million comments at once, it's going to overwhelm" any system, said cable and communications lawyer Tara Corvo of Mintz Levin. Communications lawyers who had to make filings this week ran into tech hurdles, and those who only monitored ECFS to see what others filed said it was working intermittently. All lawyers we queried expressed at least some annoyance. “We are negatively impacted whenever the FCC’s electronic systems are malfunctioning,” said BakerHostetler cable lawyer Gary Lutzker, echoing others. The FCBA didn't comment.
It took Garvey Schubert broadcast lawyer Melodie Virtue portions of two days to make a filing for a client, she said. Wednesday, she received a pop-up message that said “null” when she tried to upload a document, she said. She used multiple computers and web browsers, to no avail, she said. Thursday, she was able to make the filing, she recalled. “It could have been a real problem” if there were a filing deadline, she said. “We probably spent over an hour attempting to file these comments.” She looked for an announcement about the difficulties on the website, and found none.
Kelley Drye telecom lawyer Steven Augustino said he was thankful he didn’t have to make ECFS filings during the glitches: “It has certainly been a challenge this week to work with the dockets, even those that are unaffected by the net neutrality question. I’ve found ECFS to be inconsistent this week. And in addition, I’m also seeing a lot of spillover in comments that appear to be only focused on net neutrality that are showing up in other dockets that somehow raise a Title II question.” Several lawyers said they've been using workarounds when they can't get filings, such as having filing parties send them a copy, and also notifying everyone -- including the FCC -- when they themselves are filing something so the filing is considered timely.