Indian-American Chairman of FCC Ajit Pai tells Senate panel his agency’s IG asked him to keep mum during cyberattack investigation

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WASHINGTON – FCC Chairman Ajit Pai told a Senate committee Thursday that he did not update Congress or the public about the true nature of a website malfunction at the agency because he was bound by a confidentiality request by the agency’s inspector general. Pai said he initially relied on the agency’s then-chief information officer in claiming that the FCC had suffered a cyberattack after people experienced difficulties filing online comments regarding the future of net neutrality rules – even though Pai suspected that this wasn’t the case.

Pai and other members of the Federal Communications Commission went before a congressional committee for the first time since an internal investigation found that the agency misled the public by claiming it had been hit by a cyberattack last year.

Senate Commerce Committee Chairman John Thune, R-S.D., opened the hearing by stressing that it was “absolutely critical that the information provided to Congress and the American people be correct” regarding the issue. “I look forward to hearing how the commission will prevent such mistakes in the future,” Thune said.

Earlier this month, the FCC’s inspector general released a report that found the agency “misrepresented facts and provided misleading responses to Congressional inquiries” regarding an alleged cyberattack. The FCC had said that its online commenting system malfunctioned after it had suffered multiple distributed denial-of-service (DDoS) attacks. The malfunction occurred while the agency was soliciting public feedback on a draft proposal to roll back net neutrality rules, the FCC said then.

But the inspector general found that the probable reason behind the commenting system failure was a rush of incoming Web traffic, not malicious automated bot accounts. At the time of the malfunction, comedian John Oliver urged his audience of the HBO show “Last Week Tonight” to submit their comments to the FCC. That flood of comments from Oliver’s viewers was “likely the reason” for the computer system stumble, the report found.

Pai said that his first reaction to the news of the malfunction was that it was probably linked to Oliver’s show. He said he had his chief of staff relay that hunch to the chief information officer, who responded that he was “99 percent confident” that the breakdown was caused by a malicious attack.

Sen. Brian Schatz, D-Hawaii, asked Pai why he didn’t quickly correct the FCC’s public allegation that the malfunction was the result of a cyberattack. “At some point before the IG report came out, did it occur to you to communicate back with the public that this may not have been a DDoS attack?” Schatz asked.

Pai insisted that he was bound by a request for confidentiality by the inspector general, who had referred the improper claims of a cyberattack to the Justice Department for possible criminal prosecution.

The FCC “wanted you to get this information sooner,” Pai said, but the inspector general requested that he not comment publicly on the matter while the investigation was conducted. “I made the judgment that we had to adhere to the [inspector general’s] request, even though I knew we would be falsely attacked for having done something inappropriate,” Pai said. “The story in this report vindicated my position.”

Schatz acknowledged that Pai was in a “difficult position” but stressed the importance of accountability and transparency during the contentious debate over net neutrality. “I can’t imagine that there was not another way to thread this needle and deal with us in our oversight capacity,” he said.

In her opening remarks, FCC Commissioner Jessica Rosenworcel, the sole Democratic commissioner on the panel, criticized the agency’s claims of a cyberattack. “Our claim that the agency suffered a DDoS attack following John Oliver’s report on net neutrality is just not credible,” Rosenworcel said. “And in the meantime, this agency has ignored the fact that this public docket is flooded with fraud,” she added, referring to reports that millions of comments submitted to the FCC were signed with stolen identities.

Pai, who enjoys a Republican majority on the commission, defended his move to roll back net neutrality. He cast the criticism against his efforts as overblown and unconvincing. “We were told for many months that this decision would be ‘the end of the Internet as we know it’ – that if this decision passed you would get the Internet one word at a time,” Pai said. “That has proved flatly false. It has been 67 days since the repeal. The Internet is still working.”

Republican Sens. Roger Wicker, Miss., and Ted Cruz, Texas, praised Pai’s leadership in steering the repeal of net neutrality rules established under the Obama administration. “I want to commend you for having the courage to do that, because there was a lot of political animus,” Cruz said.

Committee members addressed other pressing issues covered by the FCC, including the development of broadband services across the country, consumer protection from unwanted robo-calls, the shifting media landscape, and the race against China and South Korea to build the next-generation 5G wireless network.

“It’s critical that the United States win this race and the jobs and investment that will come with victory,” Thune said.

Cruz also seized on the global rush to develop high-speed networking, citing an industry report detailing China’s massive investments in wireless infrastructure. He asked Pai if it is possible for the United States to catch up.

Pai called government regulations designed for older communications infrastructure a major hurdle for American competitiveness. “You will never get 5G infrastructure at scale if you have these multiple levels of regulatory review, which China, for obvious reasons, doesn’t observe,” he said.

Congress, Pai said, should consider allowing the FCC to establish uniform regulations for 5G deployment, but all four FCC commissioners at the hearing agreed that nationalizing a 5G network would be misguided.

Pai was also asked whether the Trump administration had contacted him about the proposed merger of Sinclair Broadcast Group and Tribune Media. In July, Pai highlighted “serious concerns” with the deal, and the agency voted to refer the matter to an administrative law judge; the merger would have created a conservative television powerhouse. Pai told the committee that White House Counsel Donald McGahn called him in July to ask about the status of the issue but that McGahn did not express a view.