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FCC blocks reveal of emails about conservative news site's 'Harlem Shake' net neutrality video

The denial is one of many from the FCC, which has come under fire for a lack of transparency.
Image: Federal Communication Commission Chairman Ajit Pai participates in a discussion about his accomplishments
Federal Communication Commission Chairman Ajit Pai participates in a discussion about his accomplishments at The American Enterprise Institute for Public Policy Research on May 5, 2017 in Washington.Chip Somodevilla / Getty Images file

In December, the day before the Federal Communications Commission voted to repeal its net neutrality rules, the agency’s chairman, Ajit Pai, appeared in a video for conservative news website The Daily Caller.

The video was a riff on the “Harlem Shake” videos that had become popular on the internet, and showed Pai downplaying the impact that undoing net neutrality rules would have on the internet and people's’ lives.

Because many people were surprised to see a high-ranking government policymaker explaining the new internet rules while dancing and waving a light saber, or wearing a Santa suit and sunglasses, the video raced across the internet, and has racked up more than 1.4 million views since it was published on YouTube.

The origins of the video, however, weren’t entirely clear. Whose idea was it? Who wrote the script? Did the other FCC commissioners know about it? So Muckrock, a nonprofit organization that helps request and analyze government documents, filed a Freedom of Information Act request with the FCC four months ago for agency emails about the video, a request that would seem relatively innocuous.

The request was denied this week. The organization is now appealing the denial and considering a lawsuit.

“The very basic fact that they’re unwilling to even disclose whether anybody had objections to this internally, or if they were all aboard, is the larger problem,” said J. Pat Brown, the executive editor of Muckrock. “You are entitled answers out of your government.”

The FCC declined to comment.

Muckrock’s FOIA denial is one of many from the FCC, which has come under fire from watchdog groups and activists for a lack of transparency. The regulatory agency already faces one lawsuit for not responding to FOIA requests. Jason Prechtel, a freelance writer, filed the suit in hopes of getting access to information about comments filed in response to the agency’s proposal to repeal net neutrality rules.

“After all, how are we supposed to trust in the integrity of the FCC’s decision-making process when they won’t divulge records showing how millions of comments that are already public were submitted to begin with, and by who?” Prechtel wrote.

Prechtel’s lawyer, Josh Burday, told NBC News he saw similarities in Prechtel’s denied FOIA request and Muckrock’s rejection.

"It's no surprise that the FCC is continuing to deny FOIA requests like the 'Harlem Shake' request in an effort to keep everything related to the controversial repeal of net neutrality secret,” Burday said. “The FCC failed to so much as respond to our client's request regarding the net neutrality comment process until after we filed suit. When the FCC finally did respond it essentially denied the request in its entirety."

Pai has been the focal point for much of the criticism aimed at the agency, given his earlier promises of openness.

“One of my priorities as chairman of the Federal Communications Commission (FCC) will be to make the agency’s operations more transparent,” Pai wrote in an official statement released Feb. 2, 2017. “I want us to do a better job of communicating with those we are here to serve.”

The tech news website Gizmodo was similarly rejected in its records request for information involving a video in which Pai jokingly referred to himself as a “Verizon shill,” which was played at the Federal Communications Bar Association meeting on Dec. 8, 2017.

“There are two embarrassing videos Ajit Pai is directly related to that the FCC doesn’t want to reveal any information about,” Brown said. “I wonder if they think these emails will harm the agency’s ability to make more embarrassing videos in the future.”

Critiques of the FCC’s lack of transparency have also come from the agency’s own commissioners. Jessica Rosenworcel, one of the two Democratic commissioners on the FCC, has noted that the agency did not hold any public hearings concerning its plans to undo net neutrality rules.

“While I fundamentally disagree with the merits of the FCC’s proposal, what is equally concerning is the lack of integrity to the FCC’s process that has led to this point,” she wrote in a statement a week before the FCC net neutrality vote.

Gigi Sohn, a former counselor at the FCC and currently a fellow at Georgetown University's law school, said that Pai hasn't lived up to his promise of transparency.

"While the Chairman likes to boast about how transparent his FCC is, there appears to be very little transparency about his meetings with industry and right-leaning organizations," Sohn wrote in an email.