District Court Grants Summary Judgment to FCC in Broadband Data FOIA Case

August 27, 2007. The U.S. District Court (DC) issued a Memorandum Opinion [18 pages in PDF] in Center for Public Integrity v. FCC, a case regarding whether the contents of Forms 477, submitted to the Federal Communications Commission (FCC), must be produced by the FCC in response to a request made pursuant to the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. 552. The District Court held that most of the information sought by the Center for Public Integrity (CPI) is exempt.

The FCC mandates the filing of Form 477 twice per year to enable it to study the extent of local telecommunications competition and deployment of broadband services. Form 477 is titled "Local Telephone Competition and Broadband Reporting". Wireline and fixed wireless telephone service providers, mobile telephone service providers, and broadband services providers are compelled to file this form twice per year, on March 1 and September 1, to provide the FCC with data on numbers of users. The FCC uses data supplied in these forms to compile reports that contain aggregate data on, among other things, broadband availability. However, the FCC does not make available the data contained in each filed Form 477.

The FCC's data collection and reporting methodology has come under criticism, especially from proponents of network neutrality mandates, who have argued that the FCC overstates the extend of competition in the provision of broadband services.

The CPI and Progress & Freedom Foundation (PFF) hosted an event on June 28, 2007, titled "Conference on Broadband Statistics". The two panels were titled "What Do We Know About Availability and Use of Broadband in the United States?" and "What Kinds of Broadband Data Collection Policies Should the U.S. Employ?" See, PFF web page with audio and video (but not a text transcript) of this event.

See also, the FCC document [17 pages in PDF] titled "Instructions for Local Telephone Competition and Broadband Reporting Form (FCC Form 477)".

The CPI submitted a FOIA request to the FCC on August 24, 2006, seeking "all records collected with FCC Form 477".

The FCC denied the CPI's request in its entirety pursuant to FOIA Exemption 4.

The CPI filed a complaint in the District Court on September 25, 2006, alleging violation of the FOIA. The United States Telecom Association (USTelecom), AT&T, Verizon, Wireless Communications Association International (WCA), National Cable Telecommunications Association (NCTA), and the CTIA -- Wireless Association all either intervened as defendants, or submitted amicus curiae briefs supporting the refusal of the FCC to produce records.

The CPI subsequently narrowed its request, and the FCC expanded the basis of its denial to include Exemption 6.

5 U.S.C. 552(a) requires agencies to provide access to agency records. However, certain records are exempted. In particular, 5 U.S.C. 552(b) provides that "This section does not apply to matters that are ... (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential ... (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy".

The District Court held that Exemption 6 applies to the data in boxes five and six of the cover page of Form 477, which contain the name, phone number, and e-mail address of the person who prepared the data for filing. (The parties agreed to the production of the rest of the cover page.)

The District Court held that Exemption 4 applies to all data from Parts IV of Form 477, except for the part and line data from Part IV for June 2005 through June 2006.

The District Court also held that the FCC conducted an adequate search for records regarding the structure of the Form 477 database.

This case is Center for Public Integrity v. FCC, et al., U.S. District Court for the District of Columbia, D.C. No. 06-01644 (ESH), Judge Ellen Huvelle presiding.