[Federal Register Volume 74, Number 140 (Thursday, July 23, 2009)]
[Proposed Rules]
[Pages 36446-36447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17579]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[WC Docket No. 07-38; GN Docket Nos. 09-47, 09-41; DA 09-1550]


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.

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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: [email protected], 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: [email protected] or phone: 202-418-
0530 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 (202) 418-0940.

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 [email protected], 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 [email protected] 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

[[Page 36447]]

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.
[FR Doc. E9-17579 Filed 7-22-09; 8:45 am]
BILLING CODE 6712-01-P