[Federal Register Volume 78, Number 145 (Monday, July 29, 2013)]
[Rules and Regulations]
[Pages 45464-45470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17928]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 07-38; GN Docket Nos. 09-47 and 09-51, FCC 10-71]


Broadband Data Improvement Act; Eligible Entities Aggregate Form 
477 Data

AGENCY: Federal Communications Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission adopts 
rules interpreting and implementing sections of the Broadband Data 
Improvement Act (BDIA). These rules will facilitate the broadband 
mapping and other projects that eligible entities are undertaking under 
the BDIA to improve available data on broadband deployment and 
adoption.

DATES: Effective August 28, 2013.

FOR FURTHER INFORMATION CONTACT: Suzanne Yelen, Assistant Division 
Chief, at 202-418-0626, Industry Analysis and Technology Division, 
Wireline Competition Bureau.

SUPPLEMENTARY INFORMATION:  This is a summary of the Commission's 
Eligible Entities Aggregate Form 477 Data Order (Order) in WC Docket 
No. 07-38; GN Docket Nos. 09-47 and 09-51; FCC 10-71, released on April 
26, 2010. The full text of this document is available for public 
inspection during regular business hours in the FCC Reference Center, 
Room CY-A257, 445 12th Street SW., Washington, DC 20554, and may also 
be purchased from the Commission's copy contractor, BCPI, Inc., Portals 
II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers 
may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 
1-800-378-3160. This document is available in alternative formats 
(computer diskette, large print, audio record, and Braille). Persons 
with disabilities who need documents in these formats may contact the 
FCC by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-
0432.

Synopsis of Order

    1. Form 477 Data Collection. Since May 2000, the Commission has 
collected information from facilities-based providers of broadband 
connections on a semi-annual basis using Form 477. The Commission 
revised the Form 477 data collection program in 2008, and wireline and 
terrestrial-fixed wireless broadband service providers must now report, 
by Census Tract, the number of broadband subscribers, broken down by 
technology; more disaggregated speed tiers; and percentage of 
subscribers that are residential. Incumbent LECs must continue to 
report the percentage of their service areas to which DSL connections 
are available to residential end-user premises, and cable system 
operators must do the same with regard to cable modem service 
availability. Providers of terrestrial mobile wireless (TMW) broadband 
services must continue to submit their broadband subscriber totals on a 
state-by-state basis, rather than at the Census-Tract level, and must 
report the Census Tracts that ``best represent'' their broadband 
service footprint for each speed tier in which they offer service. The 
Commission also collects local telephone competition data from wireline 
and wireless providers.
    2. The Commission also sought comment in 2008 on further revising 
several aspects of its Form 477 collection, including whether and how 
to institute a nationwide broadband availability mapping program. Of 
relevance for the issues here, the Commission sought 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.''
    3. Form 477 Confidentiality. Due to the unique nature of this data 
collection, the Commission allows filers to request confidential 
treatment for competitively sensitive information by making a selection 
on the cover page of Form 477 without filing at that point the detailed 
confidentiality justification otherwise required by our rules. In 
establishing this framework, the Commission announced its intention not 
to reveal individual-provider data in published reports. At present, 
the Commission publishes aggregate Form 477 data in its Internet Access 
Services Report (formerly the High Speed Services report) and Broadband 
Progress Report (formerly the Section 706 report). In making the Form 
477 data publicly available, the Commission has had a longstanding 
policy of ``releasing only aggregated information about broadband 
deployment . . . to protect against release of company-specific 
information directly or indirectly.'' Both in the reports and the 
accompanying statistical summaries, the Commission has used 
``statistical methods, such as suppression and aggregation'' to prevent 
the release of company-specific information.
    4. The Commission has not made any formal findings about which data 
elements constitute competitively sensitive information and has never 
ruled on any requests for confidentiality. The Wireline Competition 
Bureau (WCB) has invoked FOIA Exemption 4 to protect against disclosure 
of filers' Zip-Code and other data in response to requests for that 
information under FOIA. In the one case where the Bureau's denial of 
access to Form 477 data was appealed, the federal district court 
affirmed the Commission's decision not to release Zip-Code data.
    5. State Commission Access to Raw Form 477 Data. In establishing 
the Form 477 data collection, the Commission created a limited 
exception to its general policy of releasing only aggregated and 
redacted Form 477 data. Specifically, it established a mechanism to 
allow state public utility commissions to view all disaggregated state-
specific data, provided that the state commission has appropriate 
confidentiality protections in place (which may include confidentiality 
agreements or designation of information as proprietary under state 
law). Where the relevant state law affords less protection than federal 
FOIA law, the state must agree to comply with the higher federal 
standard as a precondition to the data release. The Commission has 
delegated to the Chief of the WCB authority to release the information 
where these conditions are satisfied.
    6. Broadband Data Improvement Act. On October 10, 2008, Congress 
passed the Broadband Data Improvement Act (BDIA), Broadband Data 
Improvement Act of 2008, Pub. L. No. 110-385, 122 Stat. 4097 (codified 
at 47 U.S.C. 1301-04), which provides for improved federal data on the 
deployment and adoption of broadband services. Section 106(h)(1) of the 
BDIA, entitled ``Access to Aggregate Data,'' provides that, ``[s]ubject 
to paragraph (2), the Commission shall provide eligible entities 
access, in electronic form, to aggregate data collected by the

[[Page 45465]]

Commission based on the Form 477 submissions of broadband service 
providers.'' The BDIA defines ``eligible entity'' to be an entity that 
is (i) an agency or instrumentality of a State, or a municipality or 
other subdivision; (ii) a nonprofit organization; or (iii) an 
independent agency or commission in which an office of a State is a 
member on behalf of the State; and is the single eligible entity in the 
State that has been designated by the State to receive a grant under 
BDIA section 106(i)(2).
    7. Section 106(h)(2) of the BDIA imposes certain confidentiality 
requirements on eligible entities that receive the FCC Form 477 
``aggregate data.'' Section 106(b) of the BDIA sets forth the primary 
role for eligible entities through the establishment of a State 
Broadband Data and Development Grant Program (Program), which requires 
the Secretary of Commerce to award grants ``to eligible entities for 
the development and implementation of statewide initiatives to identify 
and track the availability and adoption of broadband services within 
each State.'' Section 106(e) identifies ten activities to be funded 
through the Program, which include the creation within each State of a 
geographic inventory map of broadband service availability. On July 2, 
2009, NTIA released a Notice of Funding Availability (NOFA), 74 FR 
32545, on funding this program, which defined several key terms for the 
purposes of the state broadband program. The NOFA defines ``broadband'' 
to include data-transmission technology with advertised speeds of at 
least 768 kbps downstream and at least 200 kbps upstream to end users. 
An ``area,'' consisting of ``one or more contiguous census blocks,'' is 
considered to be an ``underserved area'' if at least one of three 
factors is met: (1) 50% or fewer households in the area have access to 
facilities-based terrestrial broadband service, (2) no fixed or mobile 
broadband service provider advertises broadband transmission speeds of 
at least three Mbps downstream in the area, or (3) the rate of 
household broadband subscribership in the area does not exceed 40%. An 
area is ``unserved'' for purposes of the NOFA if 90% of households in 
the area lack access to facilities-based terrestrial broadband service. 
NTIA later issued a clarification of the Technical Appendix to the 
NOFA, 74 FR 40569, and later provided additional guidance to its 
implementation of the Program by posting responses to Frequently Asked 
Questions.
    8. On July 17, 2009, the Commission issued a Public Notice seeking 
comment on how to interpret and implement sections 106(h)(1) and 
106(h)(2) of the BDIA. On September 9, 2009, NTIA published a list of 
the eligible applicants that had filed applications under the Program, 
from all 50 states, five territories, and the District of Columbia. 
NTIA announced on October 5, 2009, that it had awarded the first four 
grants under the Program. As of March 5, 2010, NTIA had awarded a total 
of 54 grants totaling approximately $102 million under the Program.
    9. Interpretation of ``Aggregate Data'' under section 106(h)(1). 
While the BDIA does not include an explanation for the requirement that 
the Commission provide ``aggregate'' Form 477 data to eligible 
entities, the only mention of eligible entities in the statute is in 
connection with the State Broadband Data and Development Grant Program 
(Program) contemplated by section 106(b). Accordingly, we find the only 
reasonable interpretation of the requirement to be that Congress 
intended the Commission to provide aggregate Form 477 data to eligible 
entities in order to support the activities to be funded through the 
Program, as identified in section 106(e). This conclusion informs our 
interpretation of the requirement and the meaning of ``aggregate.'' In 
this regard, we note that section 106(e) sets forth a range of 
activities that grants can support, and NTIA has made clear that 
``[w]ith respect to this Program, NTIA's highest priority is the 
development and maintenance of a national broadband map.''
    10. We also conclude that, at a minimum, section 106(h)(1) requires 
the Commission to aggregate at least some of the Form 477 data that it 
collects, and that ``aggregate data'' necessarily includes some 
confidential information. Traditional canons of statutory 
interpretation compel us to read all of section 106(h) to have meaning. 
We therefore conclude that the BDIA's use of the term ``aggregate'' in 
section 106(h)(1) directs us to collapse or combine some of the 
granular categories of information collected on Form 477. Several 
commenters assert that we should share fully disaggregated, raw Form-
477 data with eligible entities, largely because Census-Tract data are 
already an aggregation of Census Block information or street address 
availability, and the NTIA has already directed the grantees to collect 
such availability data from providers. We do not find these arguments 
persuasive; logically, ``aggregate data'' must mean something other 
than fully disaggregated data. Moreover, the statute directs us to 
aggregate the data we collect through Form 477, not to aggregate based 
on a broader set of more granular data that we do not collect. 
Similarly, we also conclude that Congress contemplated that ``aggregate 
[Form 477] data'' would include some confidential information, to avoid 
rendering section 106(h)(2) superfluous or irrelevant.
    11. We squarely reject the argument advanced by some commenters 
that, under the Commission's longstanding treatment of Form 477 
broadband information, ``aggregate data'' must mean that no provider-
specific data are to be disclosed. Such an interpretation misreads or 
overstates precedent in several ways. First and foremost, we find that 
previous statements regarding Commission policies of data disclosure to 
the public have little if any relevance in the context of disclosure to 
designees selected by states subject to the protective provisions of 
this Order, and the existence of our past practices does not indicate 
congressional intent to extend Form 477 reporting methodologies to this 
context. The issue of defining ``aggregate data'' to share with a state 
designee is a novel one for the Commission, and past references in a 
distinct context do not dispositively define this term here. Similarly, 
we find reliance on Bureau-level actions to establish longstanding 
Commission precedent to be inappropriate here.
    12. Accordingly, we interpret ``aggregate data'' to mean data that 
are combined in a manner that involves providing utility to eligible 
entities in carrying out activities under section 106(e), while 
protecting the confidentiality interests of providers submitting the 
data. In crafting a balance between sharing as much as possible to help 
eligible entities and preserving confidentiality, we rely heavily on 
the language and purpose of the BDIA, as well as on the lines drawn by 
the NTIA in its NOFA and subsequent guidance in implementing the 
statute. Specifically, our guiding policy in aggregating data is to 
maximize disclosure to eligible entities to allow them to carry out 
their activities under section 106(e) without unnecessarily 
disseminating, or creating an undue risk of misuse of, data the 
Commission has historically protected.
    13. In making this determination, we acknowledge that competitively 
sensitive information will be shared with eligible entities, and that, 
especially where there are only one or two providers in an area, 
eligible entities may be able to reverse engineer additional 
granularity for some data. In light of the confidentiality protections 
of section 106(h)(2), however, this will not make confidential data 
available to the

[[Page 45466]]

general public. In combination with the additional safeguards we impose 
today, we find that our sharing of this information with eligible 
entities is consistent with, and indeed necessary to furthering, the 
overall purposes of the statute.
    14. We emphasize that the decisions we reach in this Order are 
limited to the issues raised in the Public Notice, and that we do not 
reach any of the issues regarding disclosure of Form 477 data to the 
public that many commenters raise and which remain pending. As we 
explain in more detail below, eligible entities are expressly 
prohibited from publishing directly or indirectly any of the aggregate 
data that they access. We also recognize that several designated 
awardees are state commissions, which have rights to disaggregated data 
through the data-sharing mechanism set forth our prior orders. We 
emphasize that nothing we do here today expands or diminishes the 
rights and obligations of state commissions as set forth in that order.
    15. Aggregate Data Sets. As set forth below, we have developed a 
data-sharing framework intended to enable eligible entities to carry 
out the activities specified in section 106(e), particularly with 
regard to mapping. Several commenters, including Form 477 broadband 
filers, support such disclosure of comprehensive data to eligible 
entities to carry out their mapping activities. Two associations of 
broadband providers expressly recognize that the disclosure should be 
tied to the speed thresholds used in the stimulus programs' definitions 
of ``unserved'' and ``underserved.'' We agree, but also recognize that 
the release of aggregate data should support the fuller set of 
responsibilities set forth in section 106(e), rather than just mapping.
    16. Rather than adopt a single form of aggregation, we find that 
the creation of the complementary data sets described below would be 
the most useful approach for eligible entities. For each such data set, 
we identify below how we aggregate the data so as to help the eligible 
entities carry out their responsibilities without unduly risking 
exposure of confidential information. In adopting these data sets, we 
emphasize that nothing we do today modifies the Commission's definition 
of ``broadband,'' and that we reach these conclusions exclusively for 
the more narrow concerns of implementing section 106(h).
    17. Subscriber-Count Data--Data Set 1: Number of Total Wireline, 
Terrestrial-Fixed Wireless and Satellite Broadband Subscribers per 
Census Tract, with Disaggregated Technology and Residential/Business 
Classification Data. With this data set, we will provide eligible 
entities with the total number of wireline, terrestrial-fixed wireless 
(TFW), and satellite ``broadband'' connections for each Census Tract in 
their state, broken down by technology and residential/business 
classification. We will aggregate all speed tiers above 768 kbps 
downstream and 200 kbps upstream, and will not supply provider names as 
part of this data set for any specific provider.
    18. Providing access to this data set advances the activities of 
eligible entities in multiple ways. First, by showing actual 
subscribership in a Census Tract, the data set will assist eligible 
entities in verifying the availability data they collect, confirming 
their findings or alerting them to areas that may warrant further 
investigation. Additionally, numbers of the wireline and TFW 
residential subscribers could also be used to inform eligible entities' 
identification of ``underserved'' and ``unserved'' areas, as defined in 
the NTIA NOFA. Where an eligible entity determines, for example, that a 
tract has a level of household fixed subscription penetration of less 
than 10 percent, it could investigate and verify, based on availability 
data collected from providers, that the tract, as a whole or some 
portion thereof, is ``unserved.''
    19. In addition, the technology and residential/business breakdowns 
in this data set should help eligible entities carry out their non-
mapping functions in sections 106(e)(1)-(9) of the BDIA, specifically 
with regard to identifying problems and barriers unique to certain 
technologies or to the residential market. With regard to geographical 
granularity, due to the importance in both the statute and the NOFA of 
identifying those geographical areas that lack broadband availability, 
we decline to aggregate geographically any of the Census-Tract 
information that we collect on Form 477. We find that the Census Tract 
is the appropriate level of granularity to assist in identifying areas 
where broadband service is or is not available.
    20. Subscriber-Count Data--Data Set 2: Total Number of Terrestrial 
Mobile Wireless Broadband Subscribers per State by Residential/Business 
Classification. For each state, we will provide the total number of 
terrestrial mobile wireless (TMW) ``broadband'' subscribers, broken out 
by business/residential classification, and will aggregate all provider 
data and all speed tiers above 768 kbps downstream and 200 kbps 
upstream. We will not supply individual provider identities as part of 
this data set. This is the most geographically granular TMW 
subscribership data we collect. This information complements the 
information in Data Set 1, and will similarly assist eligible entities 
in carrying out non-mapping functions under sections 106(e)(1)-(9) of 
the BDIA.
    21. Provider Data--Data Set 3: List, by Census Tract, of Wireline, 
Satellite and Terrestrial-Fixed Wireless Providers, Reporting at Least 
One Broadband Subscriber, Disaggregated According to NTIA NOFA Speed 
Breakpoint for ``Underserved'' and by Residential/Business 
Classification. The Commission will provide, for each Census Tract, a 
list of all wireline, TFW and satellite providers reporting at least 
one ``broadband'' subscriber in the Census Tract. We will also provide 
data indicating whether or not each provider reported at least one 
connection above 3 Mbps downstream as well as whether they reported at 
least one business connection, at least one residential connection or 
both.
    22. Access to this data set will provide eligible entities with a 
tool useful in identifying broadband providers and broadband service 
availability in their respective states. This data set will thus assist 
eligible entities in creating a geographic inventory map of broadband 
service, as contemplated by section 106(e)(10). In particular, this 
data set will allow eligible entities to identify providers for whom 
they do not have data and assess the availability of service in an 
area. This data set can also help providers carry out several other 
activities funded under section 106(e), including the identification 
and tracking of possible suppliers of broadband services to areas that 
have low levels of broadband service deployment.
    23. This data set can also inform eligible entities' identification 
of ``underserved'' Census Tracts, since an area is underserved if ``ii) 
no fixed or mobile broadband service provider advertises broadband 
transmission speeds of at least three megabits per second (`mbps') 
downstream in the area.'' Specifically, where an eligible entity 
otherwise fails to find an advertised speed over 3 Mbps, the existence 
of a fixed subscriber at a tier above that speed would signal that 
further investigation is necessary, and the identity of the relevant 
provider would assist an eligible entity to locate any associated 
advertisement.
    24. In determining whether and which speed tiers are appropriate to 
aggregate, we look to the NOFA's definition of ``broadband'' as being 
above 768 kpbs downstream, and its 3

[[Page 45467]]

Mpbs cutoff for downstream transmission speeds as part of its 
definition of ``underserved area.'' We conclude that aggregating the 72 
tiers of combined upstream and downstream speeds into two speed tiers--
between 768 kbps and 3 Mbps downstream, and above 3 Mbps downstream--
comports with the statutory directive to aggregate, while preserving 
the distinctions that NTIA has deemed critical to carry out section 
106(b) of the BDIA. While we agree with commenters that aggregation of 
speed tiers will shield particular provider's performance, we decline 
to adopt the differing proposed breakpoints that do not comport with 
these key NTIA definitions.
    25. Provider Data--Data Set 4: List, by Census Tract, of 
Terrestrial-Mobile Wireless Broadband Providers Representing Service. 
The Commission will provide, for each Census Tract, a list of the TMW 
providers identifying the Census Tract as a part of their ``broadband'' 
service territory, along with data indicating whether or not they 
provide service at speeds above 3 Mbps. Similar to Data Set 3, this 
data set will assist in identifying the universe of TMW providers from 
whom eligible entities are seeking to collect availability data. The 
data set could also assist in the identification of ``underserved'' 
areas by providing an indication that service is available or may be 
advertised in an area. While a TMW provider's identification of those 
Census Tracts best representing its footprint is not necessarily 
indicative of ``access'' as defined in NTIA's NOFA, such information 
provides useful guidance for the eligible entity to follow up.
    26. DSL and Cable-Modem Service Availability--Data Set 5: 
Percentages of Incumbent LEC DSL and Cable Modem Service Residential 
Availability. The Commission will provide percentages, by state, of 
residential end-user premises in incumbent LEC and cable provider 
service territories that have access to high-speed DSL and cable-modem 
services, disaggregated by technology. This dataset is the same as the 
percentages that are published as part of the High-Speed Services 
Report, although without any redaction. Again, these figures are based 
on providers' responses to questions about ``availability'' on Form 477 
which may differ from NTIA's definition of ``access,'' but these data 
can be helpful to eligible entities in tracking down availability.
    27. Confidentiality of Form 477 Data--Need for Protection. We turn 
now to the question of whether the Commission should seek to prevent 
inappropriate release of sensitive data, or whether it is more 
appropriate under the statute to release data to eligible entities and 
leave them to determine how to comply. We identify two issues of 
commercial sensitivity posed by the release of confidential data to an 
eligible entity: (1) An eligible entity's inadvertent disclosure of 
confidential Form 477 data to third parties potentially could cause 
competitive harm to the broadband provider that submitted the data to 
the Commission; and (2) where the eligible entity is itself a provider 
of broadband service, it could unfairly use these aggregated data in 
marketing its own services or planning its investment strategy. In this 
regard, we note the language of section 106(h)(2) requiring 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,'' unless providers expressly agree to 
such disclosure. This provision establishes important protections for 
the aggregated data that the Commission will provide. Even in 
aggregated form, however, the data will contain provider-specific 
information, which the Commission has historically protected and which 
may give rise to competitive sensitivities even in limited release. 
Accordingly, we find it appropriate to condition our release of the 
aggregate data by instituting the procedural mechanism described below.
    28. We make clear at the outset that the affirmative steps we 
impose to safeguard confidentiality do not constitute a non-disclosure 
agreement (NDA), as some parties suggest. In contrast to an NDA that is 
a product of a contractual negotiation between two parties, we 
emphasize that we safeguard the limited release of our data through the 
issuance of a non-negotiated and non-negotiable order, and we require a 
certification from each eligible entity to several terms and conditions 
set forth below.
    29. We decline to adopt the several alternative procedural vehicles 
that some commenters propose. For example, one provider suggests that 
the Commission require all eligible entities to abide by the 
safeguarding regimes that are at least as robust as the Commission's, 
and require all non-governmental eligible entities to sign an NDA that 
is mutually agreeable to the mapping entity and each broadband provider 
and afford providers rights to notice and objection to the publication 
or sharing of data. For reasons of administrability, efficiency, and 
fairness, we find that a uniform mechanism featuring streamlined 
reviews of a standardized declaration form and avoiding assessments of 
state disclosure laws or non-standard commitments will promote the 
timely processing of access requests and most effectively advance the 
goals of the BDIA.
    30. Although we look to our past precedent for guidance on the 
necessary safeguards, we find that the more minimal set of conditions 
for release of the raw Form 477 data to state commissions set forth in 
the 2000 Data Gathering Order and NPRM, 65 FR 19675, are insufficient 
in this context for a variety of reasons, most notably the potential 
for misuse in a recipient's provision of its own broadband services. We 
also find that imposing a traditional protective order, such as those 
issued in recent merger and other adjudicatory proceedings, including 
the National Broadband Plan, would not be appropriately tailored to the 
instant proceeding. In particular, unlike those proceedings, the Form 
477 data collection is mandatory for thousands of broadband providers, 
the list of entities eligible to gain access is enumerated by statute, 
and interested third parties have no right to review the data and use 
that information to participate in any Commission proceeding. 
Nevertheless, we respect the concerns identified by those commenters 
seeking the imposition of a protective order, and we find many of the 
terms and conditions of prior adjudicatory protective orders--
particularly those adopted in the National Broadband Plan Protective 
Order--are instructive in crafting the safeguards we impose today.
    31. Specific Safeguards. We conclude that the Chief of the WCB may 
provide electronic access to state-specific aggregate data collected on 
Form 477 to the eligible entity for each state, subject to the 
conditions set out below. We agree with commenters who identify the 
importance of protecting against inadvertent disclosure in transit, and 
direct the WCB Chief to exercise its discretion in establishing the 
medium for such electronic access and appropriate security measures, 
such as encryption and passwords. We therefore revise our delegation of 
authority to the WCB Chief consistent with the new regulations adopted 
by this Order.
    32. Non-Disclosure of Aggregate Data. Consistent with the terms of 
BDIA section 106(h)(2) and the Commission's historical practice with 
regard to Form 477 data, we will condition our release of the aggregate 
data upon a commitment from each eligible entity that they will abide 
by the protections of section 106(h)(2) and will not disclose the 
aggregate data to any third

[[Page 45468]]

party except with the consent of the provider that submitted it. 
Additionally, we will require each eligible entity to execute and 
submit a Declaration (in the format attached as Appendix A to the 
preamble) containing an express commitment to protect the data in this 
fashion.
    33. Procedures for Obtaining Access to Aggregate Data. In order to 
initiate its request for electronic access to aggregate data, each 
eligible entity seeking access shall execute the Declaration and file 
it with the Bureau via the Commission's Electronic Comment Filing 
System (ECFS) for this docket, and must also submit an electronic copy 
to the WCB Chief and the Chief of the Industry Analysis and Technology 
Division (IATD). We agree with the several commenters that emphasize 
the need for certifications from eligible entities as critical tools in 
keeping the aggregate data secure. We also find that making these 
certifications public by requiring them to be filed in this docket will 
enhance the transparency and accountability of this process, and that 
the standardized Declaration and the request process for eligible 
entities will lead to a more efficient administration of the processing 
of requests for access. For these administrative and efficiency 
reasons, we reject the proposals that the Commission review protections 
of state-instrumentality eligible entities individually.
    34. Each prospective party seeking access must demonstrate that it 
qualifies as an eligible entity by submitting into ECFS documentation 
of the fact that it ``is the single eligible entity in the State that 
has been designated by the State to receive a grant under'' section 
106(i)(2). NTIA has already established a procedure for identifying the 
designation of an eligible entity, and has published a list of eligible 
applicants for all 50 states, the five territories, and the District of 
Columbia. Although the Commission will make its own determinations of 
which entities qualify under section 106(i)(2), we find NTIA's Letter 
of Designation standard to be appropriate and administrable, and we 
adopt this standard here.
    35. Use of Aggregate Data. Each eligible entity obtaining access 
under this Order must certify that it shall use the aggregate data only 
for the purposes of the section 106(b) State Broadband Data and 
Development Grant Program and, except as provided herein, shall not use 
such documents or information for any other purpose, including without 
limitation, business, governmental, or commercial purposes, or in other 
administrative, regulatory or judicial proceedings. We agree with those 
filers that assert that eligible entities should not be permitted to 
use data received pursuant to the BDIA to enhance their own efforts to 
compete against Form 477 filers, or to provide data to entities that 
are direct or even indirect competitors. These restrictions are 
necessary to prevent an eligible entity's right to access aggregate 
data from becoming an unfair, anticompetitive tool in its own provision 
of broadband service.
    36. Numerous commenters express concerns about grantee publication 
of confidential, provider-specific Form 477 data, and several propose 
different mechanisms for the Commission to deem confidential all or 
part of those data prior to sharing them with the grantee, including a 
review for confidential information by the Commission of grantee 
broadband maps and appropriate redaction. We recognize the legitimacy 
of these concerns. Rather than undertaking any case-by-case review of 
maps or data, however, we specifically prohibit any eligible entity, 
contractor, or other party from publishing, sharing or otherwise 
disseminating Form 477 aggregate data or further aggregation of these 
aggregate data, including maps designating broadband subscription based 
on Form 477 aggregate data, as well as penetration or other indicators 
derived from subscription. We view this approach as administratively 
efficient and as an effective safeguard, and consistent with the goal 
of the BDIA and the NTIA NOFA--to award grants for eligible entities to 
track availability, not to republish information supplied to them by 
the Commission. We are aware of the utility that the Form 477 broadband 
subscribership data has to states, providers, and the public, and to 
the extent possible, we will publish those data in our High-Speed 
Services Reports and miscellaneous reports.
    37. Permissible Disclosure. We limit access to aggregate data to 
certain personnel. NTIA expressly anticipates that awardees may use 
contractors and subcontractors, including for-profit companies, and we 
devise our disclosure rules to be consistent with that relationship. At 
least one commenter has recognized, however, that use restrictions 
should extend to third parties, and we agree that avoiding potential 
conflicts of interest--as well the appearance of such conflicts--
warrant certain measures. Accordingly, subject to the use description 
described above, we specifically limit access to aggregate data to (1) 
principals or employees of the eligible entity; (2) outside 
contractors, subcontractors, consultants or experts retained for the 
purpose of assisting eligible entities, provided that such outside 
consultants are not employees of or consultants or contractors to any 
broadband service provider in the relevant state, and do not otherwise 
participate directly in the business decisions of any broadband service 
provider in the state nor the analysis underlying the business 
decisions; and (3) outside counsel to eligible entities, provided that 
such persons are not involved in competitive decision-making, i.e., 
outside counsel's activities, association, and relationship with any 
broadband service provider in the relevant state do not involve advice 
about or participation in the business decisions of that provider nor 
the analysis underlying the business decisions. We find this protective 
measure necessary to ensure against anticompetitive misuse.
    38. Protection of Aggregate Data. Persons described in paragraphs 
33 and 37 shall have the obligation to ensure that access to aggregate 
data is strictly limited as prescribed in this Order. We agree with 
those commenters who seek strengthened safeguards to preserve 
confidentially, and agree with the proposal of some commenters that 
eligible entities should be required to implement reasonable internal 
data protection policies, such as employee training and security of 
storage. Furthermore, each eligible entity must work with the 
encryption, password-protection, designation-of-confidentiality, or 
other security measures that the Commission may attach to the aggregate 
data or the electronic access to those data, and may not remove, alter, 
or otherwise adjust any such security feature. We adopt similar file 
protections as those adopted in the National Broadband Plan Protective 
Order, as set forth below, although in this docket we expressly allow 
WCB to transmit information electronically, consistent with the BDIA's 
requirement to provide access in electronic form.
    39. In order to receive a password to access directly the state-
specific aggregate data, an eligible entity will submit, via the 
Commission's Electronic Comment Filing System, a Declaration, 
consistent with Appendix A, signed by a corporate officer, director, 
managing partner or equivalent official of the eligible entity. Upon 
receipt of a properly executed Declaration, the Wireline Competition 
Bureau will supply the Declarant with a password for access. Other 
individuals may then access the aggregate data consistent with the 
terms of this Order, although at all times the eligible entity and 
Declarant assume full responsibility for

[[Page 45469]]

compliance with all terms and conditions of this Order. The Declarant 
must maintain a list of the names and titles of all employees, 
contractors, and others who access these aggregate data, and must 
produce this list to the Commission upon request.
    40. A person in receipt of aggregate data in electronic format 
shall load the information onto a computer solely for the purpose of 
analysis in connection with this proceeding and for no other purpose.
    41. Once loaded onto a computer, the files containing aggregate 
data shall be password protected immediately. The aggregate data may 
not be stored on a computer after being analyzed. Consequently, 
aggregate data should not be stored in computer memory that is copied, 
such as to a network's back-up or archival storage. After the analysis 
is complete, the results of such analysis may be stored by saving the 
results (but not the underlying aggregate data) to a mobile data 
storage medium. All files containing aggregate data shall, as soon as 
practicable, be deleted from the computer.
    42. Subpoena by Courts, Departments or Agencies. If a court, or a 
federal or state department or agency issues a subpoena or orders 
production of aggregate data that an eligible entity has obtained under 
terms of this Order, the eligible entity shall promptly notify the WCB 
Chief of the pendency of such subpoena or order. Consistent with the 
independent authority of any court, department or agency, such 
notification must be accomplished such that the Commission has a full 
opportunity to oppose such production prior to the production or 
disclosure of any aggregate data.
    43. Violations of Order. Should a person that has properly obtained 
access to aggregate data under this Protective Order violate any of its 
terms, that person shall immediately convey that fact to the 
Commission, including the WCB Chief. Further, should such violation 
consist of improper disclosure of aggregate data, the violating person 
shall take all necessary steps to remedy the improper disclosure. The 
Commission retains its full authority to fashion appropriate sanctions 
for violations of this Order, including but not limited to suspension 
or disbarment of Counsel from practice before the Commission, 
forfeitures, cease and desist orders, and denial of further access to 
aggregate data.
    44. Several commenting parties urge the Commission to recognize a 
right to recovery by providers against eligible entities. We decline at 
this time to address this issue, but we do make clear that nothing in 
this Order shall limit any other rights and remedies available to a 
provider that has submitted underlying Form 477 data at law or in 
equity against any person using aggregated data in a manner not 
authorized by this Order.
    45. Adequacy of Notice. We reject the argument raised by one 
commenter that the Aggregate Data Notice is inadequate to implement 
section 106(h), and that a new rulemaking proceeding is necessary in 
order to adopt new Form 477 data distribution rules. That commenter 
contends that rural broadband service providers may have 
``inadvertently'' submitted confidential information that they would 
not have otherwise disclosed, and therefore ``fairness'' and due 
process dictates that the Commission should not apply section 106(h) 
retrospectively to data that have already been collected. We disagree 
for several reasons. First, the mandatory nature of Form 477 negates 
the argument that any broadband provider may somehow have not included 
certain information that is required from all facilities-based 
broadband providers. Second, the breadth of the current pending 2008 
Broadband Data Gathering Further Notice and the Aggregate Data Public 
Notice provide more than enough opportunity for filers to provide 
meaningful comment on the rule change that we make today. Third, the 
combination of aggregation and the confidentiality protections 
described above provide ample protection for the confidential data.

Congressional Review Act

    46. The Commission will send a copy of this Order in a report to be 
sent to Congress and the Government Accountability Office, pursuant to 
the Congressional Review Act.

Paperwork Reduction Act

    47. This Order contains no new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13.

 Final Regulatory Flexibility Analysis

    48. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' The RFA generally defines ``small entity'' as having 
the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' In addition, 
the term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).
    49. This Order takes steps to provide for the sharing of Form 477 
data with other entities. Our rule imposes no burden on Form 477 filers 
or on the eligible entities. Therefore, we certify that the 
requirements of this Order will not have a significant economic impact 
on a substantial number of small entities. The Commission will send a 
copy of the Order including a copy of this final certification, in a 
report to Congress pursuant to the Small Business Regulatory 
Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In 
addition, the Order and this certification will be sent to the Chief 
Counsel for Advocacy of the Small Business Administration, and will be 
published in the Federal Register. See 5 U.S.C. 605(b).

Ordering Clauses

    50. Accordingly, it is ordered that pursuant to sections 4(i), 
4(j), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), and 403, and sections 101-06 of the Broadband Data 
Improvement Act, 47 U.S.C. 1301-04, this Order is adopted, effective 
upon its release.
    51. It is further ordered that this Order shall be effective 30 
days after date of publication in the Federal Register.
    52. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.
    53. It is further ordered that the Commission shall send a copy of 
this Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Appendix A to the Preamble

Declaration

 
 
 
In the Matter of
Providing Eligible Entities Access    WC Docket No. 07-38
 to Aggregate Form 477 Data
Implementation of the Broadband Data  GN Docket No. 09-47
 Improvement Act of 2008
A National Broadband Plan for our     GN Docket No. 09-51
 Future
 

    I, ------------------, of the eligible entity --------

[[Page 45470]]

for the state of ----------------, hereby declare under penalty of 
perjury that I have read the Order that has been entered by the 
Commission in this proceeding, and I understand it.
    I agree to be bound by its terms pertaining to the treatment of 
section 106(h) aggregate data, and I agree that I shall not disclose or 
use section 106(h) aggregate data except as allowed by the Order.
    I certify that I have verified that there are in place procedures 
at my place of business where the data is accessed to prevent 
unauthorized disclosure of section 106(h) aggregate data.
    I acknowledge that a violation of the Order is a violation of an 
order of the Federal Communications Commission.
    Executed at ------------ this ---- day of ----------------------.
[signed]
-----------------------------------------------------------------------
[Name]
-----------------------------------------------------------------------
[Position]
-----------------------------------------------------------------------
[Eligible Entity]
-----------------------------------------------------------------------
[Address]
-----------------------------------------------------------------------
[Telephone]
-----------------------------------------------------------------------
[Email]
-----------------------------------------------------------------------

List of Subjects in 47 CFR Part 1

    Broadband, Communications, Eligible entities, Intergovernmental 
relations, and Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 227, 303(r), and 309, Cable Landing License Act of 
1921, 47 U.S.C. 35-39, and the Middle Class Tax Relief and Job 
Creation Act of 2012, Pub. L. 112-96.

0
2. Section 1.7001 is amended by revising paragraph (d) to read as 
follows:


Sec.  1.7001  Scope and content of filed reports.

* * * * *
    (d) Respondents may make requests for Commission non-disclosure of 
provider-specific data contained in FCC Form 477 under Sec.  0.459 of 
this chapter by so indicating on Form 477 at the time that the subject 
data are submitted. The Commission shall make all decisions regarding 
non-disclosure of provider-specific information, except that:
    (1) The Chief of the Wireline Competition Bureau may release 
provider-specific information to a state commission provided that the 
state commission has protections in place that would preclude 
disclosure of any confidential information, and
    (2) The Chief of the Wireline Competition Bureau may release 
provider-specific information to ``eligible entities,'' as those 
entities are defined in the Broadband Data Improvement Act, in an 
aggregated format and pursuant to confidentiality conditions prescribed 
by the Commission.
* * * * *
[FR Doc. 2013-17928 Filed 7-26-13; 8:45 am]
BILLING CODE 6712-01-P