NCTA Faces Opposition to Request for Review of Wireline Bureau’s Special Access Order

NCTA faces opposition to its request for the FCC to review the Wireline Bureau’s data collection order on the state of the special access marketplace. In comments filed Tuesday, USTelecom, the Independent Telephone & Telecommunications Alliance and Sprint argued against full commission review. NCTA had asked the commission to modify the data request “to reduce the burden on cable operators and other competitive providers” in accordance with the Paperwork Reduction Act (http://bit.ly/18RlukP). NCTA also argued the bureau ignored “critical concerns” about the security of the data it would collect. The bureau submitted the data collection request to the Office of Management and Budget (OMB) for PRA approval earlier this month.

Granting NCTA’s request would leave the commission with large gaps in its understanding of the market and create an inaccurate picture of where competition exists, USTelecom said (http://bit.ly/18N74aE). This would undermine the commission’s efforts to develop a “meaningful picture of the high-capacity services marketplace,” the association of ILECs said. “No one denies that complying with the Bureau Order will be burdensome. But that alone is not a reason to grant special relief to a critical marketplace segment.” Comcast’s footprint covers more than 40 percent of the population, and reaches 80 percent of the businesses in its service territory, USTelecom said. Comcast is just one example of a cable operator that’s thriving, it said. “In light of their current and projected success in this marketplace, there is no basis for the Commission to fail to collect from cable operators the same data as it has proposed collecting from all other competitors."

ITTA expressed sympathy for NCTA’s positions, but still recommended rejecting the petition (http://bit.ly/1fKlfMW). It’s true that the commission has “drastically underestimated” the amount of time and effort it will take to respond to the data collection, but ITTA “takes issue with NCTA’s characterization that the data collection ‘punishes the very companies that are investing private capital to finally bring widespread competition to the special access marketplace,'” the association said. It’s not the competitive providers but the incumbent providers -- like ITTA member companies -- that “bear the brunt of the burden” of responding, ITTA said. The commission must embrace principles of “regulatory parity, practicality, and fairness” in considering any modifications to its data collection, ITTA said. “The Commission should view NCTA’s request with a healthy amount of skepticism."

ITTA agreed with NCTA’s concerns on security. “The data collection calls for highly detailed maps of every telecommunications network in the United States,” ITTA said. “Information of this nature is exceedingly sensitive, making it ripe for misuse by bad actors intent on disrupting the nation’s communications networks. Given the paramount importance of making sure that such information does not fall into the wrong hands, the Commission must ensure that it has policies and controls in place so that this information is not placed at unnecessary risk.” It’s not clear that the FCC has allocated resources to secure the information, ITTA said, and “there is a clear national security risk if the network mapping data is not managed and stored properly."

Sprint opposed NCTA’s request for review, saying the commission and Wireline Bureau have already considered and rejected NCTA’s arguments. OMB is the proper forum now for parties to raise a PRA challenge, Sprint said. “Because the PRA expressly vests authority to approve information collections with OMB, and because the Commission has formally requested OMB approval, OMB -- and not the Commission -- is now the proper forum to raise PRA concerns,” Sprint said, saying parties have until Jan. 8 to file comments with the OMB.

The security concerns raised by NCTA don’t warrant delay, Sprint said. Sprint shares NCTA’s goal of protecting the data parties will submit to the commission, but NCTA’s security concerns aren’t new and are not grounds for commission review of the bureau’s order, the carrier said. “An argument that the Commission should not collect information because the government lacks the ability to protect data even if it commits to do so in a protective order is beyond the scope of this proceeding,” Sprint said. “Inability of the FCC to protect confidential data would affect every Commission merger review, equipment certification, outage report, and any proceeding where parties must submit proprietary information to comply with regulations or to participate in rulemaking.”