• by Wendy Davis  @wendyndavis, September 29, 2020

The Federal Communications Commission has withdrawn its appeal of an order requiring it to provide The New York Times with metadata about web users who who submitted comments to the agency during its 2017 net neutrality proceeding, which resulted in a rollback of the Obama-era rules.

The move brings an end to a lawsuit brought by the New York Times in 2018, when the newspaper sued the FCC for more information about users who weighed in on the proposed revocation of the agency's prior net neutrality rules. Those rules prohibited broadband providers from blocking or throttling traffic and from charging higher fees for fast-lane service.

The proceeding drew a record-breaking 22 million comments -- but many were submitted under fake names, or by Russian bots. The precise number of fake comments is unclear, but around 450,000 came from Russian email addresses.

The New York Times submitted Freedom of Information Act requests for metadata about the comments to the FCC -- including commenters' IP addresses, time stamps and user-agent headers -- as part of an effort to investigate potential fraud in the comment process.

The agency refused to disclose the data, prompting the newspaper to sue for the information.

The FCC argued in court that disclosing data like commenters' IP addresses could compromise people's privacy.

In May, U.S. District Court Judge Lorna Schofield in the Southern District of New York sided with The New York Times, ruling that disclosure of the information was in the public interest.

“If genuine public comment is drowned out by a fraudulent facsimile, then the notice-and-comment process has failed,” Schofield wrote. “Disclosing the requested data in this case informs the public understanding of the operations and activities of government in two ways -- at the micro level with regard to the integrity of the FCC’s repeal of the particular net neutrality rules at issue, and at the macro level with regard to the vulnerability of agency rulemaking in general.”

The FCC filed paperwork to appeal that decision to the 2nd Circuit, but withdrew the case before presenting any substantive legal arguments to the appellate court.

The agency and newspaper notified the 2nd Circuit Court of Appeals late last week that the matter was being withdrawn. 

A New York Times spokesperson says the company is "pleased that the FCC has voluntarily abandoned its appeal."

The spokesperson added: "We look forward to receiving the data that the district court ruled we were entitled to under FOIA. We believe the data will assist our reporters in their continuing investigation into how the public comment process at the FCC was corrupted by bad actors."