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Notice of Request for Access to Form 477 Broadband Data

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Released: June 23, 2014
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PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-874

Released: June 23, 2014

NOTICE OF REQUEST FOR ACCESS TO FORM 477 BROADBAND DATA

COMMENT PERIOD ESTABLISHED

WC Docket No. 11-10

Comment Date: July 3, 2014

In connection with its investigation of the proposed acquisition of Time Warner Cable by

Comcast Corp., the Antitrust Division of the United States Department of Justice (the Department) has

requested access to data collected on the Commission’s Form 477.1 Specifically, the Department is

seeking access to “disaggregated broadband subscriber data collected through FCC Form 477 (and any

updates that become available during the pendency of the investigation), by carrier and census tract, from

June 2009 forward.”2 Pursuant to section 0.442 of the Commission’s rules, this Notice initiates a

pleading cycle that allows any affected provider to oppose such disclosure of Form 477 data.3

The Commission collects information about Internet access 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 477.4 The Commission allows filers to request confidential

treatment for competitively sensitive information in a particular Form 477 submission by making the

appropriate selection on the cover page of Form 477.5

While the Commission’s regulations provide that proprietary and commercially sensitive

information will be withheld from public disclosure, subject to the public’s right to seek disclosure under

the FOIA and implementing regulations,6 the Commission is authorized to share information it has

1 See infra Attachment, Letter from Scott Scheele, Chief, Telecommunications & Media Enforcement Section,

Antitrust Division, U.S. Department of Justice, to Julie Veach, Chief, Wireline Competition Bureau, Federal

Communications Commission (dated June 5, 2014) (DOJ Request).

2 Id.

3 See 47 C.F.R. § 0.442(d)(1).

4 See Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477), at 1 (2014),

http://www.fcc.gov/Forms/Form477/477inst.pdf (Form 477 Instructions).

5 See Local Competition and Broadband Reporting, CC Docket No. 99-301, Report and Order, 15 FCC Rcd 7717,

7759, at para. 90 (2000) (2000 Data Gathering Order); Local Telephone Competition and Broadband Reporting,

WC Docket No. 04-141, Report and Order, 19 FCC Rcd 22340, 22352, at para. 24 n.56 (2004); Form 477

Instructions at 19.

6 See 47 C.F.R. § 0.457(d), 0.459(d); 5 U.S.C. § 552.

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collected with another federal agency if such disclosure is not inconsistent with applicable law.7 The

Commission’s rules provide for interagency disclosure of information that has been submitted to the

Commission in confidence if certain conditions are met.8 Specifically, the Commission may engage in

sharing with other agencies, subject to notice and an opportunity for submitting parties to object, and

provided that: (1) specific assurances against such disclosure have not been given; (2) the receiving

agency has established a legitimate need for the information; (3) disclosure is made subject to 44 U.S.C.

3510(b); and (4) disclosure is not prohibited by the Privacy Act or other provisions of law.9 Under 44

U.S.C. § 3510(b), the officers and employees of an agency receiving information from another agency are

subject to the same provisions of law, including penalties, relating to unlawful disclosure of the

information as the officers and employees of the agency originally collecting it.10

Pursuant to the Commission’s regulations, affected parties have until June 30, 2014 to oppose

disclosure to the Department of the Form 477 data that the Commission collects from broadband service

providers.11 If the Commission receives no opposition from affected parties by that date, the Commission

will disclose the information requested above to the Department. If disclosure is opposed, the procedures

set forth in 47 C.F.R. § 0.442 shall apply. All pleadings should refer to WC Docket No. 11-10. The

scope of this Public Notice is limited to the Department’s request for Form 477 data; this Public Notice

does not seek comment on broader disclosure issues raised in WC Docket No. 11-10, except as needed to

address the Department’s request.

Filing Instructions. Pursuant to sections 1.415 and 1.419 of the Commission’s rules,12 interested parties

may file objections to the planned disclosure on or before the date indicated above. Comments may be

filed using the Commission’s Electronic Comment Filing System (ECFS), or by filing paper copies.13

Electronic Filers: Comments may be filed electronically using the Internet by accessing the

ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties who choose to file by paper must file an original and one copy 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. All filings must be addressed to the Commission’s

Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary

must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325,

Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries

7 44 U.S.C. § 3510.

8 See generally 47 C.F.R. § 0.442.

9 47 C.F.R. § 0.442(b). See also 47 C.F.R. § 0.442(a) (“The acceptance [by the Commission] of materials in

confidence under § 0.457 or § 0.459, or any other statute, rule or Commission order, does not preclude their

disclosure to other agencies.”). The Privacy Act is codified at 5 U.S.C. § 552a.

10 44 U.S.C. § 3510(b).

11 See 47 C.F.R. §§ 0.442(d)(1).

12 47 C.F.R. §§ 1.415, 1.419.

13 See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

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must be held together with rubber bands or fasteners. Any envelopes and boxes 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 fcc504@fcc.gov or call the

Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Ex Parte Presentations. This proceeding shall be treated as a “permit-but-disclose” proceeding in

accordance with the Commission’s ex parte rules.14 Persons making ex parte presentations must file a

copy of any written presentation or a memorandum summarizing any oral presentation within two

business days after the presentation (unless a different deadline applicable to the Sunshine period applies).

Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation

must (1) list all persons attending or otherwise participating in the meeting at which the ex parte

presentation was made, and (2) summarize all data presented and arguments made during the

presentation. If the presentation consisted in whole or in part of the presentation of data or arguments

already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the

presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or

other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be

found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission

staff during ex parte meetings are deemed to be written ex parte presentations and must be filed

consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has

made available a method of electronic filing, written ex parte presentations and memoranda summarizing

oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment

filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,

searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex

parte rules.

For further information, contact Kirk Burgee, Chief of Staff, Wireline Competition Bureau, at

(202) 418-1599 or kirk.burgee@fcc.gov.

- FCC -

14 47 C.F.R. §§ 1.1200 et seq.

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