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Center for Public Integrity v. Federal Communications Commission

August 27, 2007

CENTER FOR PUBLIC INTEGRITY, PLAINTIFF,
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

The Center for Public Integrity has sued the Federal Communications Commission ("FCC") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), seeking the release of approximately thirty-five thousand records that providers of telecommunications and related services have submitted to the FCC on a semiannual basis since March 2000. The FCC contends that much of the requested information may be withheld under FOIA Exemptions 4 and

6. The FCC's position is endorsed by defendant-intervenors the United States Telecom Association ("USTA"), AT&T Inc., Verizon (collectively, "the joint intervenors"), and the Wireless Communications Association International ("WCA"), as well as by amici curiae the National Cable & Telecommunications Association ("NCTA") and CTIA - The Wireless Association ("CTIA"). Before the Court are cross-motions for summary judgment filed by plaintiff, the FCC, and defendant-intervenors.

BACKGROUND

I. Parties and Amici

Plaintiff is a nonprofit organization whose mission is to "conduct[] investigative research and reporting on public policy issues in the United States and around the world." (Compl. ¶ 2.) As part of an "ongoing project on the political influence of the telecommunications and media industries," plaintiff "has published an internet-based searchable database of the radio, television, newspaper and cable companies reaching any particular zip code." (Id. ¶ 3.)Plaintiff would like to expand its "Media Tracker" database to include broadband companies. (Id.)

The FCC is an agency of the United States charged with "tak[ing] action to open all telecommunications markets to competition, and seek[ing] to promote innovation and investment in those markets by all participants, including new entrants." (Def.'s Statement of Material Facts for Which There Is No Genuine Issue ["FCC's Facts"] ¶ 11.) In order to reduce barriers to entry in local telecommunications markets; to improve the FCC's ability to "develop, evaluate, and revise policy" regarding local telecommunications and broadband markets; to "assess the availability of broadband services"; and to "reduc[e] government regulation whenever possible," the FCC began collecting information in March 2000 from providers of telecommunications and related services through a standardized form known as the "Form 477." (Id. ¶¶ 12--13 (quoting In the Matter of Local Competition and Broadband Reporting, 15 F.C.C.R. 7717, 7718--19 (2000)).)

Defendant-intervenors are companies required by the FCC to complete the Form 477 (AT&T Inc. and Verizon*fn1 ) and two trade organizations (USTA and WCA). Amicus curiae include the NCTA, which is the "principal trade association for the cable television industry" (Br. of the Nat'l Cable & Telecomm. Ass'n as Amicus Curiae in Support of Def. Fed. Commc'ns Comm'n's Mot. for Summ. J. ["NCTA Br."] at 1), and the CTIA, which is "an international trade association that represents wireless carriers and manufacturers involved in broadband and advanced telecommunications services[,] . . . . including Verizon Wireless, T-Mobile USA, Sprint Nextel, and Cingular Wireless, as well as many smaller providers." (Br. of CTIA - The Wireless Ass'n as Amicus Curiae in Support of Def. Fed. Commc'ns Comm'n's Mot. for Summ.

J. ["CTIA Br."] at 2.)

II. Form 477

Companies required to submit Forms 477 ("filers") must do so twice per year and must complete a separate form for each state in which they conduct business. (FCC's Facts ¶¶ 14, 17.)Each form consists of a cover page and five parts.(Id. ¶ 33; see FCC's Mot. for Summ. J. Ex. 7 ["Form 477"] at 18--24.)

The cover page must be completed by all filers. (See id. at 18.) On the first line, the filer must provide its company name. (See id.) In addition, each filer must identify the person who prepared the data contained in the form and list that person's phone number and email address. (See id.) The last line of the cover page provides a drop-down box so that filers may "request 'non-disclosure of some or all of the information in the [form] . . . because the information is privileged and confidential and public disclosure of such information would likely cause substantial harm to the competitive position of the filer.'" (FCC's Facts¶ 34 (quoting the text of the cover page).)

In Part I.A of the form "filers report the number of broadband connections provided to end user customers broken out by technology." (Id. ¶ 35.) For example, filers must list the number of cable modem connections provided to end users separately from the number of satellite connections provided. (See Form 477 at 19 (sections (1)--(10)).) For each technology, filers must also separately list "the share ([i.e.], percentage) of connections provided to residential end users, the share of connections provided over filers' own facilities, and the share of connections for which the filer bills the customer directly." (FCC's Facts ¶ 35; see Form 477 (sections (b)--(d)).) In addition, with respect to the connections provided to residential end users, filers must break out the data transfer rates for each technology. (See FCC's Facts ¶ 35; Form 477 at 19 (sections (e)--(j)).) Finally, in Part I.B of the Form 477, "incumbent local telephone companies [("ILECs")] and cable system operators report the share of residential end-user premises able to receive the digital subscriber line (xDSL) and cable modem connections that these companies provide in their service areas." (FCC's Facts ¶ 35; see Form 477 at 20.)

Part II of the Form 477 addresses "wireline and fixed wireless local telephone service." (FCC's Facts ¶ 36.) Filers are required to "report the total number of lines and wireless channels provided to end users." (Id.) Of this aggregate number, filers are also required to report "the share provided to residential end users, the share for which the filer is the presubscribed interstate long distance carrier, the share provided via filers' own facilities, and the shares of lines provided through various types of contracting agreements." (Id.; see Form 477 at 21.)

Mobile telephone service is addressed in Part III of the form. (FCC's Facts ¶ 37; see Form 477 at 22.) Filers are required to "report the number of mobile telephony subscribers served and the share of those subscribers that the filer bills directly." (FCC's Facts ¶ 37; see Form 477 at 22.)

Part IV of the form provides blank space in which filers may include comments or explanatory notes regarding the data submitted. (FCC's Facts ΒΆ 38; Form 477 at 23.) Filers are directed to identify the "part" and "line" of the ...


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