FCC Seeks Comment on Request to Disclose Confidential Broadband Service Data

On March 19, 2010, the Federal Communications Commission (FCC) issued a request for comments on Free Press’ recent request that the FCC disclose confidential and proprietary broadband service coverage and penetration data submitted by cable, wireline, wireless and voice over Internet protocol (VoIP) providers in their biannual Form 477 filings. Such data, disaggregated to a large degree, formed the basis for the Commission’s most recent High-Speed Internet Access Report (“Report”), which was released on Feb. 12, 2010.

All facilities-based broadband providers, wired and fixed wireless local exchange carriers (LECs), interconnected VoIP providers, and mobile telephony service providers must submit service coverage and penetration data at the ZIP code or census tract level, depending on the type of service reported, in every state that a provider offers services. Consequently, the request, if granted, would give Free Press, and any other “interested party,” access to competitively sensitive and proprietary data of effectively all cable, wireline, wireless and VoIP service providers in the United States.

Free Press claims that access to the Form 477 data is necessary to conduct a “more comprehensive analysis” of the data in light of what it believes to be the FCC’s analytical failings in its recently released Report. However, and possibly unknown to Free Press at the time of filing its request, the FCC also released detailed information regarding penetration rates and the number of broadband providers for what appears to be every census tract and county in the country.¹ Nevertheless, Free Press’ request goes beyond the level of detail already available to the public.

Specifically, Free Press proposes to use the data to analyze competition in local markets, including the development of Herfindahl-Hirschman Index (HHI) analyses to measure market concentration. Free Press would also use the confidential data to create “more granular maps and charts” reflecting subscribership according to speed tiers and broadband technologies utilized.

Apart from any additional “competitive analysis” Free Press may perform with this data, what may be more problematic is the potential limitless use of this data once released to Free Press or other advocacy organizations. In addition, Free Press attacks the Commission’s presumption that the Form 477 data is confidential and asserts that the confidential treatment of service provider data is “a departure from prior policies” and Commission precedent.

While Free Press acknowledges the “potentially competitively sensitive” nature of the data sought, and proposes that the FCC adopt a protective order to govern the release of this data, the protective order proposed by Free Press could potentially give recipients fairly broad access to the Form 477 data. For example, in the recent National Broadband Plan proceeding, the Commission adopted a protective order that limited disclosure of highly confidential information to a party’s outside counsel and outside consultants.

In contrast, Free Press’ proposed protective order would permit disclosure of information to both in-house and outside counsel, and any “specified persons” hired by such counsel to “prepare material for the express purpose of formulating filings in this docket,” as well as “[a]ny person designated by the Commission in the public interest.” As such, the proposed protective order may not sufficiently guard the legitimate interests of companies whose data is released.

Comments regarding this request are due April 19, 2010. Despite the Commission’s recent release of penetration and provider data at the census tract and county level, the release of additional competitively sensitive and proprietary Form 477 data is possible. Additionally, while not explicitly identified as an issue of discussion in the public notice, the procedural concerns raised by Free Press—namely, the presumption of confidentiality of the Form 477 data—could potentially give the Commission a forum to reconsider, among other things, the confidential nature of such data.

Davis Wright Tremaine counsels communications companies on issues surrounding the submission of broadband data to federal and state agencies. If you are interested in filing comments in this proceeding, please contact us.

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