Broadband Companies Urge Caution on FCC Form 477 Data Disclosure

Providers said they could be disadvantaged in competition if the FCC releases overly detailed data or doesn’t impose adequate protections of confidentiality. “The data culled from Form 477, were it to be made public or available without significant restrictions and disincentives against improper disclosure, could undermine broadband providers’ network investments,” the Independent Telephone & Telecommunications Alliance and the Organization for the Promotion & Advancement of Small Telecommunications Companies said in joint comments.

But public-interest groups said the raw Form 477 data submitted by providers are already general enough to protect companies. “Existing regulations require disclosure of data by census tract, which already represents an aggregation of addresses and data,” Public Knowledge, Media Access Project and the New America Foundation said in joint comments. “Accordingly, census tract information has already protected the information of providers through aggregation.”

The National Association of State Utility Consumer Advocates agreed that the FCC should provide eligible entities with raw data. “All levels of aggregation, including the most disaggregated possible … should be provided to eligible entities to facilitate and support any broadband mapping projects such entities may undertake with stimulus monies as well as to support any broadband planning projects they may undertake on their own.”

States also demanded access to full Form 477 data, arguing that Congress wanted them to play a central role in broadband stimulus. “It seems obvious that whatever data the FCC finds necessary and useful to collect, their fellow regulators at the State level, looking to accomplish the exact same goals, will also,” said the National Association of Regulatory Utility Commissioners. At its recent meeting in Seattle, NARUC adopted a resolution asking the FCC to provide requesting states with raw data “from the relevant current Form 477 submissions,” and require providers to file future reports with the FCC and requesting states at the same time.

But providers said the raw data submitted through Form 477 aren’t aggregated enough to be disclosed. The FCC has historically interpreted “aggregate data” to mean “the accumulation and organization of data from multiple providers such that no provider-specific information is disclosed,” AT&T said. In the BDIA, “Congress intended for the Commission to continue to use the same practices and methodologies that the Commission has developed and utilized for broadband data collection and reporting for nearly a decade.”

The FCC “should interpret ‘aggregate’ to ensure that any Form 477 data disclosed does not identify, even by anonymous designation, the number or types of subscribers of various broadband providers in a particular area,” said ITTA and OPASTCO. And any disclosure of speed data “should be limited to the speed thresholds used in the stimulus programs’ definitions of ‘unserved’ and ‘underserved,'” they said. More specific information is irrelevant, they said. “The primary purpose of the mapping effort should be to determine where broadband is not offered.”

Even aggregate data that eliminates providers’ identities could be damaging, many providers warned. “The Commission should avoid disclosure of aggregate data when such data could be disaggregated by a competitor operating in the region,” said USTelecom. For example, the FCC should avoid disclosure of customer counts in any census tract with fewer than three providers, it said. And the commission should combine some speed tiers to shield some providers better, it said. The FCC shouldn’t reveal subscriber count at a particular speed tier when only a few providers offer that speed, it said.

Many providers urged the FCC to enforce confidentiality with penalties. Confidentiality requirements “must have teeth,” said ITTA and OPASTCO. “It cannot, and must not, be assumed that all eligible entities will possess either the experience or expertise to control confidential information appropriately.” AT&T said “affirmative steps to protect confidentiality of sensitive, commercial information should be taken, and would also be fully consistent with long-standing Commission practices.”

Verizon urged the FCC to require eligible entities to provide “notice and an opportunity to object” to a provider before its data is disclosed. That’s “the same standard the Commission applies to itself under Section 0.459 of its rules,” it said.

USTelecom said the FCC should require third parties seeking data to sign a confidentiality agreement with the commission, and the FCC “should impose stringent penalties” if the entity violates it. ITTA and OPASTCO agreed, adding that agreements should permit recovery and “separate action” by the victim broadband company against whoever improperly released information. And Time Warner Cable said any eligible entity that violates confidentiality rules should be banned from access to Form 477 broadband data.

A confidentiality agreement is needed only for bodies seeking data that aren’t state agencies, NARUC said. “Where the eligible entity is an instrumentality of the State,” the confidentiality requirement “is likely to be self- effectuating,” because most states have Freedom of Information Acts “that protect trade secrets and commercial, privileged and financial information from disclosure,” it said.

Although the FCC must protect confidentiality, it should also encourage voluntary contribution of data, XO Communications said. Providers “may wish to provide additional data on a disaggregated basis to the mapping entities,” it said. To accomplish both goals, the FCC should recommend eligible entities and broadband providers enter into non-disclosure agreements, it said. “These negotiated agreements can include damages provisions that apply to disclosures of competitively sensitive information, thereby eliminating the need for Commission enforcement in those cases.”