Despite endless government initiatives and countless promises from the telecom sector, our national robocall hell continues. Robocalls from telemarketers continue to be the subject the FCC receives the most complaints about (200,000 complaints annually, making up 60% of all FCC complaints), and recent data from the Robocall Index indicates that the problem is only getting worse. Consumers continue to be hammered by mortgage interest rate scams, credit card scams, student loan scams, business loan scams, and IRS scams. 4.9 billion such calls were placed in February alone:
You might recall that HBO’s John Oliver caused Ajit Pai’s FCC no shortage of trouble when his coverage of net neutrality drove millions of pissed off consumers to the FCC website to complain. The FCC then got into a bit of hot water (and remains under investigation by the GAO and others) after falsely claiming those angry website visitors were part of a malicious DDOS attack. In reality, emails confirmed FCC staffers were simply trying to craft an alternative explanation to try and downplay massive public opposition to the Trump FCC’s policies.
Fast forward to last weekend, and Oliver again brought some much-needed attention to the FCC’s apathy, this time on the subject of robocalls. The whole missive is well worth a watch if you haven’t seen it already:
Oliver’s bit (which involves robocalling all five FCC commissioners) does a stellar job highlighting that the previous FCC passed new rules to rein in the robocall threat. But those rules were struck down by the courts after a lawsuit by the Association of Credit and Collection Professionals, a group representing debt collectors (Pai celebrated the ruling at the time). To be clear, Pai has done a few notable things to try and crack down on the problem, ranging from slightly expanding (pdf) carrier abilities to try and block the calls, to issuing major fines against particularly-obvious scammers.
But as Oliver notes, there’s a lot more Pai’s FCC could do, like demanding big carriers offer their customers free robocall protection services, actually punishing those lagging behind at adopting anti-spoofing authentication tech, and narrowing the definition of robocalls to include debt collection and other purportedly “legit” but overwhelming callers. But that would require Pai actually standing up to major industries, something he’s yet to do at any meaningful point during his appointment as FCC boss.
As it stands, predictions are that by next year, half of all calls made will be robocalls. And while companies like AT&T spent a few years trying to blame everybody else for its own failure to police the problem, it’s one of several carriers finally on the cusp of deploying SHAKEN/STIR authentication technology that should dramatically put a damper on caller ID spoofing later this year. But evolving scammer tactics and lagging carriers means that to solve this problem, the FCC will need somebody willing to actually punish companies that refuse to do more.
Once again, it appears that comedian John Oliver is doing much more to dig into actual political problems than much of the rest of the news. The latest was his show this past Sunday about the weird and wacky world of state Attorneys’ General. If you haven’t seen it yet, it’s worth a watch:
Oliver’s piece focuses on state AGs (of both parties) filing partisan lawsuits against the federal government (of the opposing party). But the real “scandal” is in how various corporations have recognized the power of state AGs to effectively create policy (mainly by causing trouble for competitors). We’ve discussed this aspect multiple times in the past, mainly around Mississippi’s Attorney General Jim Hood going after Google at the request of the MPAA. And, of course, it wasn’t just “at their behest,” it was literally Hood more or less rubber stamping a demand letter written by the MPAA’s lawyers and sending it on as his own. The emails from the Sony hack revealed that the plan was literally to have the MPAA lawyers do all the investigative work and prepare many of the documents, and hand them off to “friendly” state AGs to shake down and threaten companies such as Google.
And they didn’t come up with this idea out of nowhere. It came in response to a 2014 NY Times article detailing how corporate lobbyists were “pursuing” state AGs directly in plans to cause trouble for competitors (or to get themselves out of investigations).
Attorneys general are now the object of aggressive pursuit by lobbyists and lawyers who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means to push them to drop investigations, change policies, negotiate favorable settlements or pressure federal regulators, an investigation by The New York Times has found.
A robust industry of lobbyists and lawyers has blossomed as attorneys general have joined to conduct multistate investigations and pushed into areas as diverse as securities fraud and Internet crimes.
But unlike the lobbying rules covering other elected officials, there are few revolving-door restrictions or disclosure requirements governing state attorneys general, who serve as ?the people?s lawyers? by protecting consumers and individual citizens.
Most normal people would look at this and see the horrors of soft corruption. The MPAA looked at this and appeared to think, “hey, we should get in on that.” (I’ll leave aside the irony of the strict copyright maximalist MPAA sending around an entire copy of a NY Times article with no commentary to all the top staff at the MPAA and all the top legal folks at its member studios…) That resulted in them crafting a big plan to “fund” significant amounts of cash directly for doing the dirty work for state AGs to target Google.
And, of course, it gets even worse than that. Years back, we wrote about Chris Tolles’ harrowing tale in which a long list of state AGs effectively tried to shake down his startup, despite everyone admitting it had not broken any laws. The whole story is worth reading, but perhaps the most incredible part is after Tolles spoke with the state AGs, openly provided all the details on how his site operated, and why it was clearly within the law… they then went after him in the court of public opinion by misrepresenting everything he said (but never actually going after him in court):
So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)
That’s right. Another press release. This time from 23 states’ Attorney’s General.
This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn’t like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and “immediately revamp our AI technology to block more violative posts” amongst other things.
That was hardly the only example. Over the years, we’ve regularly detailed state AGs (of both parties) specifically picking on tech and internet companies with bogus legal threats, but which easily made lots of headlines, and helped get their names and faces in the paper. A lawyer friend has joked that, NAAG, the National Association of Attorneys General, it really stands for the National Association of Aspiring Governors. That’s because many, many, many state AGs end up seeking higher office — either as governor or US Senator. So getting their names in the news, even for bullshit reasons, is seen as valuable for name recognition.
Oliver’s point in all of this is that with many state AGs up for election next week, you should take the time to understand who is really running. And this is not a partisan message. We’ve covered awful state AG practices from members of both parties (and, occasionally, good state AG actions from members of both parties). But who is in that role really does matter, and it’s time we really started paying attention to who we’re putting in those powerful positions.
FCC “oversight” hearings continue to be comically lacking in the actual oversight department. As we noted previously, today was Congress’ opportunity to hold the FCC and agency head Ajit Pai accountable for making up a DDOS attack and then lying (repeatedly) about it to the press, FBI investigators, and Congress. As we’ve previously stated, both e-mails obtained via FOIA and an FCC Inspector General report (pdf) found that the FCC bizarrely made up a DDOS attack to try and explain away the fact that John Oliver viewers pissed about the net neutrality repeal crashed the FCC comment system.
The IG’s report and internal e-mails clearly illustrate that not only did FCC CIO make up a DDOS, but several FCC staffers then misled Congress repeatedly about the total lack of evidence supporting that claim. The false statements were bad enough to warrant them being forwarded to the DOJ, which refused to prosecute anyone. But the e-mails also highlight how the FCC’s press office repeatedly misled numerous press outlets, and even went so far as to issue statements denigrating reporters like Gizmodo’s Dell Cameron for being “irresponsible” as they slowly uncovered the fake claims.
In a functional democracy, this is the sort of thing that would be covered extensively at a hearing purportedly designed specifically to hold the FCC accountable to Congress and the public. In said fictional healthy democracy, Congress might even, you know, actually do something about it.
But today’s hearing was little more than a joke, rife with lots of giggling, football references, and numerous softball questions — but few if any hard inquiries about the DDOS attack that wasn’t. The closest thing Pai experienced to actually being pressured came from Senator Brian Schatz. But when pressed as to what he knew and when, Pai again threw his employees under the bus, denying that he had any knowledge of or role in the FCC’s efforts to mislead Congress and public. The exchange is here for those interested:
In the exchange, Pai said he suspected there was no foul play from the beginning and that the “DDOS” was just the John Oliver effect. When pressed as to why Pai didn’t do more to correct the false claims earlier, Pai said he “wanted you to get this information sooner” but remained quiet at the behest of the FCC IG (which has yet to respond to press inquiry). “I made the judgment that we had to adhere to the [IG’s] request,” claimed Pai, “even though I knew we would be falsely attacked for having done something inappropriate,? Pai said. ?The story in this report vindicated my position.”
Except the IG’s report doesn’t vindicate Pai’s position, and somebody at the hearing should have pointed that out. In fact, the IG’s report shows that it wasn’t just the FCC CIO that had been making false DDOS claims for the better part of the last year. There’s ample evidence, had anybody on the oversight committee actually wanted to press the issue, that numerous FCC employees repeatedly and intentionally doubled down on claims Pai now claims he knew weren’t true.
For example, the IG report found that at least three staffers provided false statements to not only Congress, but also to FBI investigators trying to determine the scope of the alleged attack. And throughout the inquiry Pai’s press shop issued statements attacking press outlets for being “irresponsible” simply for reporting the fact there was no evidence or “analysis” to support the FCC’s allegation:
“The FCC has never stated that it lacks any documentation of this DDoS attack itself,” the agency states. “And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners.”
But none of that was true. There was no DDOS attack and there was no evidence, “voluminous” or otherwise. Again, there’s every indication that the FCC doubled down on the fake DDOS claim because it wanted to downplay media reports showing that millions of Americans were pissed about the death of net neutrality (it wasn’t public outrage, we were attacked!). It’s the same reason why the FCC refused to do anything about the bogus comments that plagued the repeal’s net neutrality comment period: it wanted to push the Trumpian narrative that the massive public anger over the attack net neutrality wasn’t real.
The fact that Pai’s press shop was actively spreading false statements and maligning reporters makes it pretty obvious that Pai actively participated in or was at least aware of the FCC’s head fake. But at no point during the “oversight” hearing was this avenue of inquiry pursued. Instead, users who tuned in for a reckoning got to enjoy Ted Cruz once again misrepresenting what net neutrality was, and gushing missives from telecom-sector allies like Senator John Thune on Pai’s (artificial) love and adoration of neglected rural broadband markets.
Aside from the fake DDOS attack, the hearing was yet another missed opportunity to seriously hold the FCC to account on a number of issues, including making up data and ignoring the public in the rush to repeal net neutrality, gutting funding for rural broadband, eroding consumer privacy protections, killing efforts to improve cable box competition, propping up predatory prison telco monopolies and every other little anti-consumer, pet project Ajit Pai has embraced as leader of the agency. But instead of “oversight,” users that tuned in this morning got something that looked much more like a bipartisan game of patty cake.
So FCC boss Ajit Pai will need to don some tap-dancing shoes this Thursday, when he’ll be forced to explain to a Senate oversight committee why his agency not only made up a DDOS attack, but lied repeatedly to the press and Congress about it.
As we recently noted, e-mails obtained by FOIA request have proven that the FCC completely made up a DDOS attack in a bizarre bid to downplay the fact that John Oliver’s bit on net neutrality crashed the agency website last year. A subsequent investigation by the FCC Inspector General confirmed those findings, showing not only that no attack took place, but that numerous FCC staffers misled both Congress and the media when asked about it.
Pai initially tried to get out ahead of the scandal and IG report by issuing a statement that threw his employees under the bus while playing dumb. According to Pai’s pre-emptive statement, the entire scandal was the fault of the FCC’s since-departed CIO and other employees who mysteriously failed to alert him that this entire shitshow was occurring (you can just smell the ethical leadership here):
“I am deeply disappointed that the FCC?s former Chief Information Officer (CIO), who was hired by the prior Administration and is no longer with the Commission, provided inaccurate information about this incident to me, my office, Congress, and the American people. This is completely unacceptable. I?m also disappointed that some working under the former CIO apparently either disagreed with the information that he was presenting or had questions about it, yet didn?t feel comfortable communicating their concerns to me or my office.”
There’s several problems with Pai’s statement. One, while FCC CIO David Bray was hired by the Obama-era FCC, he remained employed (and spreading the false DDOS attack) well through last year under Pai’s “leadership.” Two, the FCC IG found that Bray andseveral other employees had not only been circulating the false DDOS report to reporters, but had repeatedly misled Congress (again under Pai’s watch). The lies of three FCC employees to Congress were deemed severe enough that they were reported to the DOJ, which refused to prosecute anybody (I’m sure you and I would have been granted the same benefit of the doubt).
That Pai had no idea that any of this was happening is a pretty big stretch, especially considering that the FCC continues to block FOIA requests for certain e-mail exchanges related to the stupid affair. As such, when Pai appears before a Senate oversight committee on Thursday, the big question is going to be: just how long did Pai know that his staff was actively misleading Congress in numerous back and forth letter exchanges on the subject?
The other major problem, and it’s one you’d hope lawmakers at the hearing address, is that Pai’s claim that this was all the fault of rogue employees doesn’t gel with the fact that Pai’s press shop was actively misleading and denigrating reporters throughout this whole affair. For example, when the press began digging into the agency’s shaky claims, Pai’s FCC thought it would be a good idea to send a prickly statement to numerous media outlets. That statement not only tried to claim reporters were “irresponsible” simply for trying to clear up the matter, but that the FCC had “voluminous documentation” proving the DDOS attack occurred:
“The FCC has never stated that it lacks any documentation of this DDoS attack itself,” the agency states. “And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners.”
Outside of the first sentence, nothing in that official FCC statement is true. So again, the idea that Pai knew nothing at all about this mess is hard to believe. Especially given that his own press shop and numerous employees were busy lying to Congress and denigrating reporters simply for getting to the truth. Pai’s explanation for this should make for good television, whether or not Congress grows a spine and actually holds Pai’s feet to the fire.
If you’ve watched Pai’s FCC work, it seems pretty clear at this point that the nonexistent DDOS attack, much like the FCC’s refusal to address bogus comments during the net neutrality public comment period, are all part of the same effort: doing everything possible try and downplay the scope and importance of the massive, unprecedented public opposition to Pai’s historically unpopular policies.
You’d like to think there’s something vaguely resembling accountability at the end of this story. At the very least, it’s likely that the bogus DDOS attack and fake comments will be playing starring roles during the upcoming net neutrality hearings, where all of this can be used to add context to the FCC’s rushed, facts-optional efforts to repeal net neutrality exclusively at broadband monopolies’ behest.
Whatever you do, don’t point out that some people think China’s President Xi Jinping vaguely resembles Winnie the Pooh.
HBO Comedian John Oliver recently learned this the hard way when Chinese users of popular social networking website Weibo found they weren’t able to mention Oliver by name without receiving an error message stating such comments violated “rules and regulations.” After that, censorship monitor GreatFire.org indicated that HBO?s website was blocked entirely for the lion’s share of the country since last weekend.
The cause of China’s efforts to remove Oliver from the internet? This recent twenty minute segment took a semi-deep dive into China’s political leadership, noting their abolition of term limits, ongoing censorship, the routine murder and/or imprisonment of political dissidents, the country’s rather terrifying implementation of “citizen scores,” and oh — the fact that some people think that Chinese President Xi has a semi-decent resemblance to a rotund, honey-adoring cartoon:
“Apparently, Xi Jinping is very sensitive about his perceived resemblance to Winnie the Pooh,? Mr. Oliver said on the show. ?And I?m not even sure it?s that strong a resemblance, to be honest. But the fact he?s annoyed about it means people will never stop bringing it up.”
Like most Chinese internet censorship, more technical users can get around the attempt to remove Oliver from the Chinese internet by using a VPN. That said, like Russia and other countries, China has been busy saddling VPN vendors with all manner of cumbersome restrictions as part of an effort to effectively ban the technology from widespread use. Last year, China’s Ministry of Industry and Information Technology declared that all VPN providers now needed prior government approval to operate, imposing fines up to $2000 on companies offering “unsanctioned” VPNs (read: nearly all of them).
Of course the censorship only proves Oliver’s point: that the country remains entirely intolerant to free speech, Xi has arguably thin skin, and the Chinese leader does, in fact, strike a fleeting resemblance to a certain pantless bear with self-esteem issues and an eating disorder:
So we’ve been noting how (thanks to FOIA requests) the FCC has been caught completely making up a DDOS attack in a bizarre, ham-fisted attempt to downplay public opposition to their net neutrality repeal. In short, agency e-mails confirm agency staffers routinely fed false claims to gullible reporters that the FCC website outages caused by John Oliver’s coverage of the repeal were the result of a malicious attack, then used those false claims to further prop up the bogus narrative. The goal was apparently to try and downplay massive public backlash to what Americans overwhelmingly believe to be shitty, corruption-fueled policy.
Not too surprisingly, the FCC has gone radio silent in response to press inquiries on this from numerous press outlets. For such a normally chatty agency, that suggests that FCC lawyers are well aware that this entire fracas could prove to be legally problematic, given the repeated false DDOS claims to the reporters, press, and public (pdf). Most of the e-mails provided so far via FOIA requests are heavily redacted, suggesting there’s likely much more to this story that’s going to emerge over time.
Meanwhile, Senators Brian Schatz and Ron Wyden this week pressed the issue, sending the FCC a letter demanding more insight into the DDOS attack that never was. In the letter, the duo ask for any and all FCC evidence on the phantom attack, and the results of any internal FCC investigations that may have occurred so far:
“On May 9, 2017, we sent you a letter regarding alleged cyberattacks on the Federal Communication Commission’s Electronic Comment Filing System during that month. There was also an ECFS issue involving the net neutrality proceeding in 2014. In our letter we asked that you keep Congress fully briefed as to your investigation.
Beyond your initial internal analyses that you reference in your June 15, 2017, response, have any subsequent FCC or third-party (e.g., vendor, contractor, or government agency) analyses or investigations verified that a cyberattack on ECFS occurred in 2017 and, if so, that the attack is best classified as a DDoS attack? If not, why was no investigation conducted? Please provide any and all reports, findings, and other relevant details of any such investigations.”
Of course from reading the news, the Senators already know the FCC appears to have zero hard evidence that the attack occurred, and previous claims that internal “analysis” had confirmed the attacks were false. Democrats have been hoping to use the repeal of net neutrality to their advantage during the midterms, and the fact evidence proves the FCC lied during their justifications for the move is likely to be politically problematic for the “freedom restorin'” FCC.
Meanwhile, the nonpartisan GAO is currently investigating both this scandal and the identity theft and fraud that occurred during the net neutrality repeal. There’s likely several more layers to this story, some of which are likely to be revealed during the net neutrality court challenges that should take flight sometime in the next few weeks.
We’ve discussed for a while how the FCC appears to have completely made up a DDOS attack in a bizarre effort to downplay the “John Oliver effect.” You’ll recall that both times the HBO Comedian did a bit on net neutrality (here’s the first and the second), the resulting consumer outrage crashed the FCC website. And while the FCC tried to repeatedly conflate genuine consumer outrage with a malicious attack, they just as routinely failed to provide any hard evidence supporting their allegations, resulting in growing skepticism over whether the FCC was telling the truth.
Last week, e-mails obtained via FOIA request revealed that yes, FCC staffers routinely misled journalists in order to prop up this flimsy narrative, apparently in the belief they could conflate consumer outrage with criminal activity. The motive? It was likely for the same reason the FCC refused to do anything about the identity theft and bogus comments we witnessed during the repeal’s open comment period: they wanted to try and downplay the massive, bipartisan public opposition to what the lion’s share of Americans thought was an idiotic, corruption-fueled repeal of popular consumer protections.
Understandably with so much going on, the story floated semi-quietly under the cacophony of other national outrages. But the FCC’s response to the story has proven to be somewhat comical all the same.
One of the FCC staffers accused of making false statements about the DDOS attack was recently departed FCC IT chief David Bray. Original reports stated that Bray and other staffers had been feeding this flimsy DDOS narrative to gullible reporters for years, then pointing to these inaccurate stories as “proof” the nonexistent attack occurred. Under fire in the wake of last week’s report, Bray first doubled down on his claims, adding that the 2014 “attack” hadn’t been publicized because former FCC boss Tom Wheeler covered it up. But Wheeler himself subsequently stated in a report late last week that this was unequivocally false:
“When I was in the greenroom waiting to come in here, I got an email from David Bray, who said ‘I never said that you told us not to talk about this and to cover up,’ which was the term that got used. Which of course is logical, because as the Gizmodo article that you referenced pointed out, A) FCC officials who were there at the time said it didn?t happen, [and] B) the independent IT contractors that were hired said it didn?t happen. So if it didn?t happen it?s hard to have a cover up for something that didn?t happen.”
Since this story was first published, the Trump FCC (which you’ll recall bragged it would be super transparent) has gone radio silent about the story. Multiple requests for comment from numerous news outlets have been ignored since the story broke:
“The FCC has gone dark on this issue. It is refusing to answer questions from reporters. It is even refusing to go on the record to say it stands by its own story about a malicious cyberattack causing its system to crash for a second time last year….(FCC media relations contact Brian Hart) did not respond to multiple follow ups. In fact, his office has not responded to related inquiries for the past eight days. And not just from Gizmodo; it did not respond to Newsweek nor Ars Technica either. When somehow reached by Nextgov, it declined to say anything at all.
It’s understandable the FCC doesn’t want to chat about why it’s withholding data and repeatedly making false statements (pdf) to the press and public, especially given the GAO is currently investigating this whole kerfuffle. Between this and the identity theft and comment fraud during the net neutrality repeal’s public comment period, one gets the aching suspicion there’s a few additional layers to this story that have yet to be unearthed. Both issues may also make an appearance during legal efforts to get popular net neutrality rules restored.
You might remember that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss Trump FCC boss Ajit Pai’s myopic plan to kill those same rules, the FCC website crashed under the load a second time. That’s not a particular shock; the FCC’s website has long been seen as an outdated relic from the wayback times of Netscape, hit counters, and awful MIDI music.
But then something weird happened. In the midst of all the media attention Oliver was receiving for his segment, the FCC issued a statement (pdf) by former FCC Chief Information Officer David Bray, claiming that comprehensive FCC “analysis” indicated that it was a malicious DDoS attack, not angry net neutrality supporters, that brought the agency’s website to its knees:
“Beginning on Sunday night at midnight, our analysis reveals that the FCC was subject to multiple distributed denial-of-service attacks (DDos). These were deliberate attempts by external actors to bombard the FCC?s comment system with a high amount of traffic to our commercial cloud host. These actors were not attempting to file comments themselves; rather they made it difficult for legitimate commenters to access and file with the FCC.”
But the FCC’s claims were seen as suspect by numerous security experts, who say the crash showed none of the usual telltale signs of an actual DDOS. And reports subsequently emerged indicating that the “analysis” the FCC supposedly conducted never actually occurred. When media outlets began noticing that something fishy was going on, the Trump FCC issued a punchy statement accusing the media of being “completely irresponsible.” No evidence was ever provided to journalists or lawmakers that pressured the agency for hard data proving the claims.
Fast forward to this week, and new internal FCC e-mails obtained via FOIA request show that yes, the FCC did routinely try to mislead the public and the press with repeated claims of DDOS attacks that never actually happened:
“The FCC has been unwilling or unable to produce any evidence an attack occurred?not to the reporters who?ve requested and even sued over it, and not to U.S. lawmakers who?ve demanded to see it. Instead, the agency conducted a quiet campaign to bolster its cyberattack story with the aid of friendly and easily duped reporters, chiefly by spreading word of an earlier cyberattack that its own security staff say never happened.”
The story is worth a read, and highlights how former FCC CIO David Bray and FCC media relations head Mark Wigfield repeatedly fed false information about the nonexistent attack to reporters, then used those (incorrect) stories to further prop up their flimsy claims about the DDOS:
“Bray is not the only FCC official last year to push dubious accounts to reporters. Mark Wigfield, the FCC?s deputy director of media relations, told Politico: ?there were similar DDoS attacks back in 2014 right after the Jon Oliver [sic] episode.? According to emails between Bray and FedScoop, the FCC?s Office of Media Relations likewise fed cooked-up details about an unverified cyberattack to the Wall Street Journal.
The Journal apparently swallowed the FCC?s revised history of the incident, reporting that the agency ?also revealed that the 2014 show had been followed by DDoS attacks too,? as if it were a fact that had been concealed for several years. After it was published, the Journal?s article, authored by tech reporter John McKinnon, was forwarded by Bray to reporters at other outlets and portrayed as a factual telling of events. Bray also emailed the story to several private citizens who had contacted the FCC with questions and concerns about the comment system?s issues.”
The story isn’t going to get much mainstream traction thanks to numerous other instances of cultural idiocy we’re all currently soaking in, but it’s fairly amazing all the same. In short, the FCC appears to have completely concocted a fake DDOS attack in a ham-fisted effort to try and downplay the massive public opposition to its extremely-unpopular policies.
Of course that’s pretty standard behavior for an agency that also blocked a law enforcement inquiry into fraud during the public comment period, likely also an effort to downplay massive public opposition to the repeal. It’s also pretty standard behavior from a Trump administration that enjoys using bullshit to distract from the fact that countless policies (like repealing net neutrality) run in stark, violent contrast to the admin’s “populist” election message.
This isn’t likely to be the end of this story, and more details are likely to surface in the looming lawsuits against the FCC attempting to restore net neutrality.
Thought the whole Bob Murray / John Oliver story was over with the judge making it clear Murray had no case and preparing to dismiss the whole thing? It appears that Murray cannot let it go. As first spotted by YouTubing lawyer Leonard French, Murray (not his lawyers) sent the judge a letter whining about the whole thing (check out French’s video for a wonderful dramatic reading of the letter):
Or just go check out the letter yourself (kudos to French for getting the document and posting it and doing the dramatic read, shame on the West Virginia courts for not having web-accessible electronic records, and a plea to French to stop putting lame ugly watermarks on public documents). Of course, the reason the letter is public is that (1) parties are not supposed to talk to the judge about their case without telling the other side, and (2) parties are not supposed to communicate with the court directly, rather than via their attorneys. And, thus, the judge added Murray’s letter to the docket in the case, along with a bit of a benchslap:
This date the Court received the attached unsolicited missive from the Plaintiff, Robert E. Murray. As it does not appear Mr. Murray forwarded copies of the same to Defense Counsel, pursuant to Rule 2.9(B) of the West Virginia Rules of Judicial Conduct, the Court has copied and enclosed the correspondence herein and filed the original in the Court’s file.
Mr. Murray’s letter is an improper ex parte communication with the Court, therefore the request to reconsider the Court’s decision cannot and will not be entertained.
The Court respectfully requests Plaintiffs’ Counsel to advise Mr. Murray against future ex parte correspondence which could result in sanctions against the Plaintiffs in this matter.
In other words: don’t do this shit, Bob.
But, of course, the real joy is in Murray’s letter itself, which is absolutely hilarious. It starts off talking about how disappointed he is in the ruling, which, sure, is understandable but it’s totally improper to send a personal letter to the judge about it.
We are deeply disappointed to learn that you intend to dismiss our lawsuit against Home Box Office, Inc., Time Warner Inc., Mr. John Oliver, and others (collectively “Defendants”). We will appeal that decision in due course.
Right. If you (stupidly) decide to appeal this, your lawyers should appeal it in due course. Reaching out to the judge on your own is… not part of that “due course.”
The jobs of our 6,000 coal miners depend on me and my reputation.
Right, then maybe you shouldn’t have done a bunch of things that caused John Oliver and many others to mock you. And those mockable things include suing John Oliver for mocking you in the first place. Because the “harm” to your reputation was caused by you — not John Oliver. There is no right in this country not to have people mock you, and considering how frequently Murray seems to be flag waving about how proud he is to be an American, he might want to take some time to read the First Amendment of the Constitution.
So, if 6,000 coal miner jobs really depend on your reputation (which, also: citation needed), then perhaps the first thing you should do is improve your reputation (pro tip: sending a hilariously dumb letter to the judge in your case does the opposite of improving your reputation).
My name is on the Company, and I am the one who our 140 lenders, our utility customers, the regulators, and the public look to in order to keep these jobs. You have enabled the Defendants to further destroy our miners’ families. We write you today to inform you of the continued personal attack and harassment by the Defendants in this case.
If your lenders and customers bail because John Oliver made fun of you, perhaps there are larger issues at play. And, of course, Murray presents no evidence that any such lender, customer, regulator or anyone else has done anything to the company as a result of Oliver’s story, or the ruling in this case.
As for “continued personal attacks,” again I have to point you to the First Amendment. Personal attacks are protected. Making fun of you is protected. Telling you to “eat shit, Bob” is protected. This isn’t even close. Telling the court that just told you such things are protected that such “personal attacks” have continued is not a compelling argument. It suggests someone is acting like a sore loser without even understanding why he lost.
Just because you feel bad, Bob, it doesn’t make it illegal.
Indeed, just yesterday, the Defendants aired worldwide the enclose attack on the undersigned and our Compay, whereby John Oliver taunted us, once again, stating “Eat Sh-t Bob” and announcing that, once your order is issued, he will “gloat” and he will be “rubbing it in the face of the person that lost over and over again.”
Oooooooooooooh. He taunted you again. I mean, that’s positively Pythonesque, and we all know how King Arthur v. French Knight turned out, don’t we?
This clearly demonstrates the vindictiveness and intentional destruction that the Defendants have caused.
No. It means that you were mocked, had such thin skin that you sued in a case that you quickly lost, and thus were called out on filing a bad case (pretty mildly too, frankly). It doesn’t show “vindictiveness.” You know what shows vindictiveness? Suing a television comedian for reporting on your antics because you don’t like how you were portrayed. And, really, if anyone’s trying to “destroy” anyone, I think that honor must go to the person who sued someone for making fun of them, demanding “general damages,” “special damages,” “punitive damages,” “attorneys’ fees” and “a permanent injunction” against the person who made fun of you.
It shows that these attacks will continue in perpetuity, as a result of your order.
No, not as a result of the order. As a result of you doing silly, mockable things up to and including filing a lawsuit over someone expressing their opinion that things you did were silly and mockable.
I am a dying old man, but our employees will pay for your decision.
Nice baseless appeal to emotion. But, of course, if you’re dying, then how does your earlier statement about how all these employees relying on your reputation for their jobs make sense? Does that mean once you die they’re all out of work? If so, isn’t that a bigger threat to their jobs?
Further, since your ruling, we have been subjected to multiple insulting and threatening email and telephone messages, including these: “BOB, KISS MY A–“‘ “Hey Bob, I guess John Oliver f—ed you in your a–. You are a real evil piece of s–t”; “Consume defecation, Bob.”; “What an old and selfish c–t of a human being. You and your industry are no longer relevant and the entire world knows it.”; “Congratulations on having HBO make you look like a big fat lardass loser in court. Idiot.;” And “Ha ha you fat pig, you lost your lawsuit… burn in hell dr. evil.” This is a very small sampling of the flagrant and extremely damaging personal attacks that we continue to receive on a daily basis.
First off, Bob, thank you for sharing those. We never would have seen them otherwise. I’m assuming that Bob self-censored the dashes in the curse words, which is nice of him. But, really, the “consume defecation, Bob” statement is a really tremendous work of art.
Oh, and Bob, defamation is not “people made fun of me and I’m sad.” It requires false statements of fact made with actual malice. That’s not what’s happening. And you don’t even bother to allege that’s what’s happening, because it isn’t.
Accordingly, we respectfully request that you reconsider your decision to dismiss this lawsuit and allow this case to proceed on the merits.
What merits? There are no merits, which is what the judge has already made clear.
Indeed, this lawsuit is extremely important to our employees, who rely on Murray Energy and me for their continued livelihoods, and to our lenders, customers, and suppliers who depend on our integrity and performance. We cannot sit idly and allow our jobs and livelihoods to be destroyed by the cruel and baseless attacks of these defendants.
Wait. This lawsuit — in which a key part is about John Oliver quoting one of your employees writing “Eat Shit Bob” on a bonus check he was voiding over safety concerns — is “important” to your employees? You sure about that, Bob?
And, again, it’s not the people making fun of you that’s “destroying livelihoods.”
The ACLU of West Virginia’s Legal Director, Jamie Lynn Crofts, put out a nice statement in response to all of this:
?Other than the fact that Bob Murray?s case against John Oliver is a ridiculous attempt to quell speech by abusing our legal system, it really is the gift that keeps on giving. With the disdain Mr. Murray has shown for our constitution and our legal system, I?m not surprised that he would also improperly try to influence a judge in this way (or with such a hilarious letter). Unfortunately for Bob, everything John Oliver has said on his show was and continues to be protected speech. It is, in fact, legal for anyone to say, ?Consume defecation, Bob.’?
Remember Bob Murray? He’s the Ohio-based coal mining CEO who threatened and then sued John Oliver and HBO over this fun episode of Oliver’s show, Last Week Tonight, which discussed the ridiculousness of our President’s focus on “coal jobs.” However, it also spent a fair bit of time talking about Bob Murray, Murray Energy, and how his actions did not appear to support actual coal miners. A prominent part of the story features the phrase (originally written by a coal miner at Murray Energy as part of the process to void a bonus check) “Eat Shit, Bob.”
As we noted, this was an obvious SLAPP suit with a bunch of ridiculous claims. On top of that, Murray and Murray Energy also sought an injunction silencing Oliver and HBO, which was classic prior restraint. There was some procedural back-and-forth as HBO sought to remove the case to federal court, which failed. State courts can be more of a crap shoot, but this was such an obvious SLAPP suit that it does not appear to have mattered at all.
On Friday, the judge sent a letter to the various parties which I would say is the judicial equivalent of telling Bob and his lawyers to “Eat Shit.” The letter makes it clear that the judge is going to dismiss the case, and agrees entirely with the arguments HBO made in its motion to dismiss:
The Court adopts, with little exception, Defendants’ arguments in
support of their Motion regarding all issues addressed in the same.
This is not the official order, but that should be coming soon. The judge has asked HBO’s lawyers to “prepare and forward a proposed Order, including findings of fact and conclusions of law supporting the Court’s ruling. The same shall be forwarded within 20 days via email in Microsoft Word format to the Court…” and gives his own email address. Admittedly, that feels a little lazy on the part of the judge to basically ask the prevailing party to write his order, but I’m sure HBO’s lawyers are thrilled with the opportunity to make sure it says exactly what they want. I’ve seen parties submit “proposed orders” before — and have seen judge’s sign off on them — but don’t recall seeing a judge so directly ask for such a proposed order.
Either way, it’s a pretty quick and complete win for Oliver and HBO. Of course, if West Virginia actually had an anti-SLAPP law (spoiler alert: it doesn’t), then HBO could also make Murray pay their legal fees (including the fees they’ll charge for drafting the order dismissing the case). But, unfortunately, that’s not the case here. I’m still hoping that this now encourages Oliver to do an episode on anti-SLAPP laws, because it’s a topic that could certainly use his brand of exploration. In the meantime, Oliver did very briefly address the issue on his show last night, saying that now was not the time to discuss or gloat as the dismissal was not yet final (though promising he would address it in the future). Of course, while he was saying that, the human-dressed-in-a-squirrel costume, better known as, Mr. Nutterbutter, held up a sign saying “Eat Shit, Bob!” HBO hasn’t put this clip on its YouTube page for me to embed, but here’s a screenshot:
