Incognito Incentive Auction Input Encouraged

Media Bureau offers tips on keeping commenters’ ID’s on the QT.

In an effort to coax otherwise reticent TV broadcasters to join in the public discussion about the Commission’s plans for incentive auctions, the Media Bureau has issued an unusual public notice providing “additional guidance” relative to the fine art of filing comments anonymously. (Exactly when the Bureau had previously provided any such guidance isn’t clear – we certainly don’t remember any – but they’re claiming that this new guidance is “additional” to something, and who are we to say them nay?)

The notice reflects the Bureau’s recognition that some, perhaps many, broadcasters might be reluctant to chime in on the auction proposals because public disclosure of auction-related sensitivities now might be disadvantageous come auction time. It’s always wise to keep your cards close to your vest, so individual TV folks might logically prefer not to reveal questions or concerns that might signal their ultimate auction strategy if and when the auction actually happens. (Even Congress, in mandating the incentive auction process in the first place, provided for confidentiality relative to some information submitted by reverse auction participants.)

Logical though that close-to-the-vest approach may be, it’s contrary to the Commission’s effort to assemble the most comprehensive record possible. As the Commission sees it, the more information it can gather relative to the interests of broadcasters now, the more likely the Commission will eventually be able to design incentive auctions that will attract maximum broadcaster participation. And the more broadcasters that participate in the auction, the greater the likelihood that the auction process will free up maximum spectrum for the Great God Mobile Broadband.

So the Bureau is making clear not only that you can file anonymously, but also how to file anonymously.

It’s actually simpler than you might imagine. If you’re filing comments the old-fashioned way (i.e., on paper, through the office of the FCC Secretary), you just don’t bother to tell the FCC who you are. (Alternatively, you could presumably use a pseudonym – John Doe, f’rinstance, or maybe Publius, or a personal favorite, L’Angelo Misterioso.) 

Things are a bit trickier if you want to file electronically. The FCC’s rules require that electronic filers identify themselves unless they are represented by counsel. If you’ve lawyered up (and, as card-carrying members of the Federal Communications Bar Association, we certainly encourage you to do so), no ID is required – although the lawyers will have to identify themselves.

Lawyer-less electronic commenters are not entirely out of luck. Under the rules, they’re supposed to include their names and mailing addresses, but the Bureau’s public notice observes that folks in that position can still request a waiver of the ID requirement – although the notice doesn’t explain exactly how you can file a waiver request anonymously.

The Bureau encourages anonymous filers to provide “sufficient basic information” to let the Commission and the public “understand and evaluate the positions” spelled out in their comments. Particular items of interest mentioned by the Bureau: the commenter’s market tier, and whether it’s a network affiliate or independent.

Whether the Bureau's invitation to anonymous commenters will indeed lead to a "robust" record, as the Bureau hopes, or an arguably unreliable record (after all, how can the FCC rely on input whose source is unknown?) is not clear.  But the Bureau has put the word out, so we thought we'd pass it along.

Remember, comments in the incentive auction proceeding are currently due to be filed by January 25, 2013, and reply comments by March 12.

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Comments (3) Read through and enter the discussion with the form at the end
Chuck - December 20, 2012 9:50 AM

Once again no consideration is mentioned of the impact on viewers. The repacking will be a disaster for the quality of the signal and the choices available over-the-air that all can view for free. The quality of broadcast TV is better than ever and much better than cable. This plan will take that away from us. More and more people are discovering broadcast TV and using it and other new forms of program distribution. This is not the time to destroy that.

Michael Marcus - December 30, 2012 1:13 AM

You wrote, "(Alternatively, you could presumably use a pseudonym – John Doe, f’rinstance, or maybe Publius, or a personal favorite, L’Angelo Misterioso.)"

I, too, am a card carrying FCBA member, but the big "N" next to my name in the directory warns all that I have not been admitted to the bar.

But isn't submitting intentionally false information, such as a false name, to a federal agency illegal?

Harry Cole - December 30, 2012 12:29 PM

Our friend Dr. Marcus raises a valid point in his comment, above. One should ALWAYS be careful to tell the truth to the Commission, and using a pseudonym could be construed as a violation of that cardinal rule.

BUT the FCC has itself opened the gate for legalized pseudonymity through Section 1.17 of its rules.

Long-time readers will recognize that section (titled "Truthful and accurate statements to the Commission") as the source of a couple of "misrepresentation lite" enforcement actions about which we have written here. The rule allows the Commission to penalize statements that are merely inaccurate, even though the inaccuracy can be shown not to have arisen from any intent to deceive whatsoever. Section 1.17 expressly prohibits (among other things), "intentionally provid[ing] material factual information that is incorrect". That would appear to put the kibosh on signing your comments with somebody else's name.

Hold on there, though. Section 1.17 by its own express terms is limited to submissions made in "investigatory or adjudicatory matter[s" and certain limited types of rulemaking proceedings not relevant here. But Section 1.17 does not apply in general rulemaking proceedings, like the incentive auction shindig. So, at least arguably, pseudonyms would be OK there. (You could also interpret Section 1.17 as giving us all the green light to lie through our teeth in any and all rulemaking comments, but we would NOT recommend going that route, even if the FCC's own regulatory language clearly points in that direction.)

For those of you who might still feel a tad squeamish about submitting a false ID to the Commission, how about this: just sign your comments "L'Angelo Misterioso (not my real name)". . . an undeniably true statement (unless, of course, your name happens to be L'Angelo Misterioso).

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