E9-17579. Comment Sought on Providing Eligible Entities Access to Aggregate Form 477 Data as Required by the Broadband Data Improvement Act

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

The Federal Communications Commission Wireline Competition Bureau (Bureau) released a public notice establishing a pleading cycle for comments on how the Federal Communications Commission should interpret and implement sections 106(h)(1) and 106(h)(2) of the Broadband Data Improvement Act of 2008 (BDIA). (Broadband Data Improvement Act of 2008, Public Law 110-385, 122 Stat. 4097 (codified at 47 U.S.C. 1301-04)).

DATES:

Comments are due on or before July 30, 2009, and reply comments are due on or before August 4, 2009.

ADDRESSES:

You may submit comments, identified by WC Docket No. 07-38; and GN Docket Nos. 09-47 and 09-51, by any of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Federal Communications Commission's Web Site: http://www.fcc.gov/​cgb/​ecfs/​. Follow the instructions for submitting comments.
• E-mail: [e-mail], and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. Include the docket number(s) in the subject line of the message.
• Mail: Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
• Hand Delivery/Courier: 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: [e-mail] or phone: [phone] or TTY: 202-418-0432.

All submissions received must include the agency name and docket numbers for this rulemaking, WC Docket No. 07-38; and GN Docket Nos. 09-47 and 09-51. All comments received will be posted without change to http://www.fcc.gov/​cgb/​ecfs. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Jeremy Miller, Industry Analysis and Technology Division, Wireline Competition Bureau at [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's e-Rulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/​cgb/​ecfs/​ or the Federal e-Rulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.
• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to [e-mail], and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

By this document, the Bureau seeks comment on how the Federal Communications Commission should interpret and implement sections 106(h)(1) and 106(h)(2) of the Broadband Data Improvement Act of 2008.

Since 2000, the Commission has collected basic service information from broadband service providers using Form 477. In 2008, the Commission adopted revisions to the Form 477, which would result in the collection of more detailed and granular data. At the same time, the Commission issued a further notice of proposed rulemaking, which, among other things, sought comment on the issue of how to provide Form 477 information to other broadband initiatives, including those undertaken by state agencies and public-private partnerships, and on how to preserve confidentiality when sharing the information collected on Form 477. (See 2008 Broadband Data Gathering Order and Further NPRM, 23 FCC Rcd at 9711-12, para 39; 73 FR 37911, July 2, 2008 (“In this Further Notice, we seek comment on ways in which we can preserve confidentiality when sharing the information collected on Form 477, the voluntary registry, and other sources with agencies such as the Department of Agriculture's Rural Utilities Service and with public-private partnerships such as ConnectKentucky and similar ventures, for example by sharing the data in a less granular or aggregated form than the level at which it is collected.”) (footnotes omitted).) On October 10, 2008, the BDIA became law. Section 106(h)(1) of the BDIA requires the Commission to “provide eligible entities access * * * to aggregate data collected by the Commission based on the Form 477 submissions of broadband service providers.” (47 U.S.C. 1304(h)(1). Section 106(i)(2) of the BDIA defines “eligible entity” as: (A) An entity that is either (i) an agency or instrumentality of a State, or a municipality or other subdivision (or agency or instrumentality of a municipality or other subdivision) of a State; (ii) a nonprofit organization that is described in section 501(c)(3) of the Internal Revenue Code of 1986 and that is exempt from taxation under section 501(a) of such Code; or (iii) an independent agency or commission in which an office of a State is a member on behalf of the State; and (B) is the single eligible entity in the State that has been designated by the State to receive a grant under this section. BDIA Sec. 106(i)(2); 47 U.S.C. 1304(i)(2).) Section 106(h)(2) of the BDIA imposes certain confidentiality requirements on eligible entities that receive the FCC Form 477 “aggregate data.” (Specifically, section 106(h)(2) provides that an eligible entity “shall treat any matter that is a trade secret, commercial or financial information, or privileged or confidential, as a record not subject to public disclosure except as otherwise mutually agreed to by the broadband service provider and the eligible entity. BDIA section 106(h)(2); 47 U.S.C. 1304(h)(2).) In this document, we seek comment on how the Commission should implement these statutory provisions.

First, we seek comment on how we should interpret the term “aggregate” in section 106(h)(1). Particularly, to what extent does the adjective “aggregate” require the Commission to provide to eligible entities data that is more aggregated than the raw data submitted by Form 477 filers. We also seek comment on whether the confidentiality provisions of section 106(h)(2) indicate that the Commission should provide access to data that is more disaggregated than the Form 477 filing-based data that it makes available to the public in various periodic statistical reports released by the Bureau. (See, e.g., Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology Division, High-Speed Services for Internet Access: Status as of December 31, 2007 (rel. Jan. 16, 2008), available at http://www.fcc.gov/​wcb/​iatd/​comp.html.) More generally, we seek comment on how much the Commission should aggregate the data that it provides to eligible entities, and what factors it should consider in determining the appropriate level of aggregation.

We also seek comment on section 106(h)(2) of the BDIA, which requires eligible entities to treat “any matter that is a trade secret, commercial or financial information, or privileged or confidential, as a record not subject to public disclosure except as otherwise mutually agreed to by the broadband service provider and the eligible entity.” In particular, we seek comment on whether that section is self-effectuating or whether the Commission should take any measures to ensure eligible entities' compliance with section 106(h)(2). If parties believe that the Commission should adopt safeguards to ensure compliance with section 106(h)(2), then we ask that they describe with specificity the nature of their proposed safeguards.

We recognize that the periods we are establishing for commenting on these issues are short but note also that the timeframes connected with the grant programs under BDIA require us to make the Form 477 information available in an expedited fashion. Furthermore, while the BDIA was enacted after the 2008 Broadband Data Gathering Order and Further NPRM was adopted, we note that the data-sharing issues raised by section 106(h) of the BDIA clearly fall within the scope of the more general data-sharing issues raised in the further NPRM, on which we previously received comment.

This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. See 47 CFR 1.1200, 1.1206. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented generally is required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

Federal Communications Commission.

Julie A. Veach,

Acting Chief, Wireline Competition Bureau.