Before the Federal Communications Commission Washington DC 20554

Transcription

1 Before the Federal Communications Commission Washington DC In the Matter of ) National Association of Regulatory Utility ) Commissioners Petition for Clarification or ) WC Docket No Declaratory Ruling That No FCC Order or ) Rule Limits State Authority to Collect ) Broadband Data ) REPLY COMMENTS OF CTIA THE WIRELESS ASSOCATION INTRODUCTION AND SUMMARY CTIA The Wireless Association ( CTIA ) 1 respectfully submits the following reply comments in response to the Petition filed by the National Association of Regulatory Utility Commissioners ( NARUC ) asking the Federal Communications Commission ( FCC or Commission ) to declare that no Commission rule or order limits state authority to collect data directly from broadband providers. 2 As described below, CTIA believes that the Petition should be denied. While the FCC may need to take steps to improve the timeliness of the data it provides to states, states already have access to federal data. The Petition cites no specific 1 CTIA The Wireless Association is the international organization of the wireless communications industry for both wireless carriers and manufacturers. Membership in the organization covers Commercial Mobile Radio Service ( CMRS ) providers and manufacturers, including cellular, Advanced Wireless Service, 700 MHz, broadband PCS, and ESMR, as well as providers and manufacturers of wireless data services and products. 2 National Association of Regulatory Utility Commissioners ( NARUC ) Petition for Clarification or Declaratory Ruling That No FCC Order or Rule Limits State Authority to Collect Broadband Data, WC Docket No (the Petition ) (Sept. 25, 2009); see also Comment Sought on NARUC Petition for Clarification of Declaratory Ruling Regarding State Authority to Obtain Broadband-Related Data, Public Notice, DA , WC Docket No (Oct. 22, 2009). 1

2 problems regarding access to needed datasets or lack of cooperation from providers. 3 Further, the breadth of NARUC s proposed determination that federal law would never bar the collection of any data goes too far and could negatively affect federal broadband policies. While CTIA agrees with NARUC on the importance of closely coordinating FCC data collection efforts with the states to assemble a clear picture of current broadband deployment in the United States, we believe there is no reason to cause uncertainty in the data collection and sharing process by granting the NARUC Petition. States play an important and useful role in the national mapping effort to determine accuracy where broadband service deployment and adoption efforts may need to be targeted and strengthened. 4 Furthermore, all parties can agree that there has been an unprecedented conjunction of broadband policy and data collection initiatives, mapping grants, and information sharing during the first ten months of 2009, triggered by the Broadband Data Improvement Act 5 ( BDIA ) and the American Recovery and Reinvestment Act ( ARRA ). 6 In the midst of this unprecedented information gathering, however, the attributes of the data needed by, and available to, states are relatively clear. Moreover, if a real controversy were to arise over a state s authority to obtain data, the Commission has the authority to decide a Petition based on the specific facts and circumstances of the particular dispute. 3 CTIA assumes that this Petition involves a request concerning data availability to the states and is not, as some commenters suggest, an end-run around the FCC s well-established jurisdictional determination that broadband service is an interstate information service. See Comments of United States Telecom Association, WC Docket No (Nov. 2, 2009) at 5 ( USTA Comments ). 4 See Joint Comments of Verizon and Verizon Wireless, WC Docket No (Nov. 2, 2009) at 1 ( Verizon Comments ); Comments of AT&T Inc., WC Docket No (Nov. 2, 2009) at 1 ( AT&T Comments ). 5 P.L. No , 47 U.S.C (2008). 6 P.L. No , 123 Stat. 115 (2009). 2

3 I. SUBSTANTIAL BROADBAND DATA COLLECTED BY THE FCC S FORM 477 IS ALREADY AVAILABLE TO, AND SHOULD NOT BE RE-COLLECTED BY, THE STATES The Commission has collected data on broadband for several years through its Form 477. Moreover, just last year the FCC refined the form to collect data at the Census Tract level concerning the nature, availability and adoption of broadband. 7 For years, data collected under FCC Form 477 has been shared with state regulatory commissions. 8 If states want access to this data, they can and do request it from the FCC, subject to confidentiality protections. CTIA recognizes that states have a right and a need to receive the Form 477 data in a timely fashion. To the extent this is not occurring, 9 CTIA supports consideration of procedures, including the electronic transfer of files, that would expedite the FCC s delivery of the data to those states with appropriate confidentiality protections in place. The FCC, under its authority to develop the National Broadband Plan, may wish to initiate the consideration of such procedures. However, any current delay in receiving data does not justify broadband providers having to respond to a variety of state-initiated requests that essentially duplicate Form 477 collection requirements. Improving FCC data delivery procedures would be a much more efficient solution without adding needless burdens on broadband service providers. Indeed, because the 2008 order changed the way in which broadband providers must report data by Census Tract, as opposed to zip code, Census Block, or some other criteria it would now be especially 7 Development of Nationwide Broadband Data to Evaluate Reasonable And Timely Deployment of Advanced Services to All Americans; Improvement of Wireless Broadband Subscribership Data; Development of Data on Interconnected VoIP Subscribership, Report and Order, 23 FCC Rcd 9691 (2008). 8 See, e.g., Local Telephone Competition and Broadband Reporting, Report and Order, 19 FCC Rcd (2004) at 26 ( We also decide to retain our current policies and procedures regarding the sharing of Form 477 data with state commissions. ). 9 See NARUC, Resolution Supporting Access to Broadband Mapping Data, attached to Petition at 8 (noting that the FCC only provides outdated Form 477 reports). 3

4 burdensome on service providers if states were to insist that Form 477 filers reconfigure the data to meet various states individual reporting obligations. Granting the Petition would have precisely that effect. The need for a special FCC ruling at this time makes even less sense when one considers that the FCC s release of Form 477 data to the states now has been codified into law by the BDIA, so that it is no longer within the FCC s own discretion. Specifically, the BDIA requires the release to each state of aggregate Form 477 data to eligible entities, as designated by the states themselves pursuant to BDIA criteria. 10 The FCC has an outstanding inquiry into how to implement the provisions of the BDIA 11 consistent with the need for confidentiality and aggregation. 12 Moreover, the BDIA also recognizes that state entities might be entitled to collect other information, 13 but it presciently does not go as far as the NARUC Petition s proposal to bar any FCC limitation on the collection of data. II. THE NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION HAS PRIMARY RESPONSIBILITY FOR COORDINATING STATE AND NATIONAL BROADBAND MAPS UNDER THE BDIA; GRANTING THE PETITION COULD COMPLICATE THOSE EFFORTS Further enhancing the broadband data collection landscape, the BDIA established (and the ARRA funded) a state-specific mapping initiative administered by the National Telecommunications and Information Administration ( NTIA ) to provide greater detail U.S.C. 1304(h)(1) ( [T]he Commission shall provide eligible entities access, in electronic form, to aggregate data collected by the Commission based on the Form 477 submissions of broadband providers. ). 11 Comment Sought on Providing Eligible Entities Access to Aggregate Form 477 Data as Required by the Broadband Data Improvement Act; Pleading Cycle Established, WC Docket No ; GN Docket Nos , 09-51, Public Notice, DA (rel. July 17, 2009). 12 See, e.g., CTIA Reply Comments, WC Docket No ; GN Docket Nos , (Aug. 4, 2009) (commenting on the interpretation of aggregate data and confidentiality requirements). 13 Specifically, Section 1304 of the BDIA states that [t]his paragraph... shall not otherwise limit or affect the rules governing public disclosures of information collected by any... State entity under any other Federal or State law or regulation. 47 U.S.C. 1304(h)(2). 4

5 concerning deployment, adoption, and the types of broadband services available. The collected data will be available to NTIA and the FCC, and each state s map will be posted to NTIA s national broadband map on its website. The FCC should reiterate NTIA s role in directing this mapping effort and should not complicate this already-complex process by endorsing a multiple-state collection mandate that risks duplicating already collected data. Under NTIA s program, state entities receive federal grants to undertake mapping efforts within their borders. To date, more than $20 million has been awarded to eligible entities in fourteen states. (Broadband providers and others who must actually prepare the data responses, however, receive no funding). As Verizon notes, NTIA has issued detailed data elements to be collected. And as the General Accountability Office observed, consistency of the data collection is a key dimension of data quality and a key attribute of a successful performance measure. 14 Separate, burdensome requests might actually delay the collection of critical information for the mapping effort and diminish the project s overall value in identifying areas needing greater attention regarding broadband deployment and adoption. States may already collect other broadband-related data in completing the mapping exercise. Indeed, the broadband mapping grant program contemplates that a state s eligible entity will collect data beyond that collected by the Form Broadband-related providers 14 Verizon Comments at 4, quoting Government Accountability Office, Current Broadband Measures Have Limitations, and New Measures Are Promising But Need Improvement, Report to Congressional Committees (Oct. 2009) at 5, available at 15 For example, the grant program contemplates data collection involving: Broadband service availability at public schools, libraries, hospitals, colleges and universities and all public buildings owned or leased by agencies or instrumentalities of the States or municipalities or other subdivisions of the States and their respective agencies or instrumentalities. National Telecommunications and Information Administration State Broadband Data and Development Grant Program, 74 Fed. Reg , (July 8, 2009). This data is not necessarily reported in Form

6 and trade associations, including CTIA, have pledged their support to work with NTIA eligible entities in the data collection effort and have commented on how NTIA can best develop working collection methodologies. 16 CTIA agrees with the importance of prompt responses to state-initiated requests made pursuant to the BDIA mapping efforts, as expressed by the Michigan Public Service Commission in this proceeding. 17 With the level of unprecedented funding and public-private cooperation overall, a declaratory ruling regarding state authority to obtain data is superfluous and only likely to confuse a complicated, deadline-driven national effort. III. THE PETITION IDENTIFIES NO SPECIFIC DATA COLLECTION PROBLEM AND SHOULD BE DENIED It is difficult to discern NARUC s concerns in light of the data already collected under Form 477 available to the states and the cooperative, federally-funded efforts underway to complete a national broadband map. NARUC has not identified a specific data collection problem that states are facing, nor did the three state commissions that filed in this proceeding. The breadth of the proposed ruling that federal law would never bar the collection of any data, no matter its effect on federal broadband policies goes too far, as other commenters have argued. 18 Given Congress s (and the FCC s) intense focus on broadband issues, NARUC has not demonstrated why the FCC should declare a position on data collection today that might be inconsistent with broadband policies initiated in the future. Nor has it provided persuasive 16 See Letter to The Hon. Lawrence E. Strickling, Assistant Secretary for Communication and Information, NTIA, from Steve Largent, President and CEO, CTIA, and 13 other trade associations and companies (Aug. 6, 2009), available at 17 Comments of the Michigan Public Service Commission, WC Docket No (Nov. 2, 2009) at See, e.g., USTA Comments at 5; AT&T Comments at 2. 6

7 reasons to encourage the FCC to affirmatively enable the potential for 50 different collection requirements (that may even conflict with Form 477 s methodology), given the workability of the current collection efforts under the BDIA 19 and the availability of Form 477 data. States can, and have, contributed considerably to identifying geographic areas needing broadband service. The FCC has noted ConnectKentucky and other successful state programs that focus public and private attention on the need for resources for service to unserved areas. 20 But authority over broadband, including information-gathering authority, varies by state, and all states are limited by the FCC s declaration that broadband Internet service is an interstate information service. 21 Given the myriad FCC broadband proceedings and federal-state data collection efforts, there is simply no reason for the FCC to pronounce judgment on the extent of federal preemption of state-mandated broadband data collection. Certainly, no directive from Congress requires it. In particular, NARUC s Petition wrongly suggests that additional data collection burdens on broadband providers are somehow consistent with Section 706 of the Telecommunications Act of That deregulatory provision directs the Commission to accelerate broadband capability by removing barriers to infrastructure investment. 23 It is inappropriate to argue that an FCC declaration affirming unbounded state regulatory reporting requirements is consistent with removing regulatory barriers. 19 Verizon Comments at 4, AT&T Comments at Development of Nationwide Broadband Data to Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans, Improvement of Wireless Broadband Subscribership Data, and Development of Data on Interconnected Voice Over Internet Protocol (VoIP) Subscribership, Report and Order and Further Notice of Proposed Rulemaking, 23 FCC Rcd 9691 (2008) at See AT&T Comments at 2 n.7 (noting that state laws prohibit or limit state commission jurisdiction over broadband service). 22 Petition at 4-5, citing 47 U.S.C Telecommunications Act of 1996, Pub. L. No , 706(b), 110 Stat. 153 (codified at 47 U.S.C. 157). 7

8 If a state finds itself unable to collect broadband data that it believes it is empowered to collect and the source of the data refuses to provide that data, citing FCC authority, there is time enough for the FCC or NTIA to consider such a dispute. But, drawing on the fundamental judicial principle of requiring an actual case or controversy to decide a matter (or at least the strong likelihood of such an occurrence), 24 the FCC should not grant NARUC s broad request. CONCLUSION CTIA supports voluntary efforts at the state level to collect data as part of the BDIA and the continued sharing of Form 477 broadband data with states, consistent with the requirements of aggregation and confidentiality. However, for the reasons expressed, NARUC s Petition should be denied. Respectfully submitted, Dated: November 9, 2009 By: /s/ Brian M. Josef Brian M. Josef Director, Regulatory Affairs Michael F. Altschul Senior Vice President, General Counsel Christopher Guttman-McCabe Vice President, Regulatory Affairs CTIA The Wireless Association th Street, NW Suite 600 Washington, DC (202) See, e.g., Flast v. Cohen, 392 U.S. 83 (1968). 8