Friday, November 27, 2009

Breaking News: FCC Responds to Proprietary Data Request from NTIA for Broadband Stimulus Program

Incumbents Have Until December 7 to Tell FCC Why Data Should Not Be Released to Federal Agency

(Editor's Note: This story was first published at 11:32 AM, today. It was updated with 3 items in the Updates section, and with greater detail on the FCC Form 477, at 10:00 PM.) 11/27/09 Boston
- The Federal Communications Commission (FCC) has opened a public proceeding which responds to a request for proprietary broadband commercial information made by one of the two federal agencies managing the Obama Administration's $7.2 billion broadband stimulus program mandated by the Recovery Act.

The proceeding, and the information request which triggered it, both go to the heart of the intense debate within the U.S. telecommunications industry over the definitions of areas of the nation which are "unserved" and "underserved" by broadband networks.

The proceeding was engendered by the issuance of a letter, dated November 23, to Ms. Sharon E. Gillett, Chief of the FCC's Wireline Competition Bureau (WCB), from Mr. Anthony G. Wilhelm, Director of the Broadband Technology Opportunities Program (BTOP) of the National Telecommunications and Information Administration (NTIA) of the U.S. Department of Commerce. NTIA, together with the Rural Utilities Service (RUS) of the U.S. Department of Agriculture, are the two agencies which jointly administer the broadband stimulus program.

FCC Form 477: Key to Unserved & Underserved Data Smackdown?
In specific, Mr. Wilhelm requested access to the FCC's entire current national database of so-called Form 477 data. As the FCC's Public Notice states, "The Commission collects information about broadband connections to end user locations, wired and wireless local telephone services, and interconnected Voice over Internet protocol (VoIP) services in individual states on FCC Form 477."

Service providers are required to disclose on the Form 477 where they operate broadband facilities. The aggregate of such data, retained by the WCB, could thus become a key element in validating the claims of broadband stimulus fund applicants as to "unserved" and "underserved" areas of the U.S. Under the provisions of the federal Recovery Act, and of the rules established for the current Round I of the program, broadband stimulus funds are targeted at "unserved" and "underserved" areas.

Given the long and successful effort by incumbent carriers to keep information about where their broadband facilities are deployed, and what subscriber "take rates" are for specific services at very localized levels, defining what areas are "served, unserved, and underserved" is especially difficult to determine.

The Wilhelm letter (cited as the NTIA Request Letter in the Public Notice), as directly quoted in the FCC Public Notice, states that NTIA "intends to use this data to help validate the served or underserved classifications of the BTOP applicants' proposed funded service areas."

Significantly, we think the reason for the issuance of the letter at this juncture, well into funding Round I of the broadband stimulus program, is referenced (emphasis ours) in the opening line of the Commission's Public Notice. As the document states, "The National Telecommunications and Information Administration (NTIA) is evaluating applications and comments to the applications that it has received from broadband service providers in its administration of the Broadband Technology Opportunities Program (BTOP)."

Incumbent service providers were allowed to issue Public Notice Filings stating that they operate broadband networks in "proposed service areas" in which funding applicants seek to build new networks with broadband stimulus funds. Thus, NTIA is now in the position of having to judge the claims and counter claims of applicants vs. incumbents in literally thousands of individual communities around the nation. Of threshold importance to the validity of those claims and counter claims is the underlying veracity of the "served, unserved, or undeserved" status of given locations.

In the NTIA Request Letter in the Public Notice, Director Wilhelm further stated the obligation of his agency to keep confidential data, derived from the the carriers and other service providers reporting information via their Form 477 filings, at NTIA on a continuing confidential nondisclosure basis.

Public Comment Deadline of December 7
In the Public Notice, below, issued on Wednesday, November 25, the WCB opened a public comment period with a deadline of December 7. During the comment period, incumbent communications service providers have the right to argue that all or some of their submitted "confidential and proprietary information" should not be subject to disclosure to NTIA, under either continuing nondisclosure or otherwise.

1. has requested a copy of the NTIA Request Letter of 11/23/09 from the 2 relevant agencies (FCC and NTIA). We will post same as soon as we receive it from either of the agencies. As of 9:30 PM we have not received the document, and now project we will go through the weekend without receiving the document for publication here, or seeing same posted on a federal site.

2. Mr. Mark Wigfield, of the media relations section of FCC-WCB informed us by email this afternoon that the Wilhelm request letter is not in the FCC "docket yet, but should be by next week."

3. To better facilitate tracking of the docket, via the FCC's electronic filing system, Mr. Wigfield kindly notes the "docket number in the footnote (footnote 1 of the Public Notice) is in error", the
NTIA Request Letter and all other docket items "should be searched under docket number 09-214." The WCB spokesperson stated that the error will be corrected.

Our deep content resources at on Scribd are being updated with background documents from agencies and the industry to assist our readers in understanding this developing issue.
FCC Public Notice in DA-09-2502A1 - Notice of Request for FCC Form 477 Data by NTIA Released: 11-25-2009
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