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FCC Restricts Disclosure of 'Confidential' and 'Highly Confidential' Information

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WASHINGTON, October 12, 2009 – The Federal Communication Commission last week issued an order allowing it to restrict the disclosure of information deemed proprietary or confidential in the creation of a national broadband plan.

Released on October 8, the FCC’s Wireline Competition Bureau has adopted this protective order, it said, to serve the public’s interest by “giv[ing] appropriate access to the public,” while at the same time, protecting the confidential information that has been submitted by the individual or the party.

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[private_Premium Content][private_Free Trial]With this, however, the Protective Order does not “constitute a resolution of the merits “of any information that is submitted.” This information, if properly requested, could be potentially release by the Federal Communications Commission under the Freedom of Information Act.

Of what is deemed as confidential, information that has been submitted is fit into two categories: confidential or highly confidential.

Confidential information is information that is submitted for protection, and which is not readily available from public sources, the order says. The FCC retains the right to declare, on its own authority, that such information is not confidential.

Highly confidential information is information that has been submitted under the protection of the FOIA, the FCC’s implement rules, and the Protective Order.  This level of information, which is also not publicly available, consists of “detailed or granular information regarding the location, type, or cost of last-mile infrastructure used by a submitting party to offer broadband service.”

The Commerce Department’s National Telecommunications and Information Administration recently declared that the identities of carriers offering broadband on a Census-block basis is not confidential, and will not be protected. It was unclear whether the FCC was adopting a similar approach to that of the NTIA in issuing the order.

If any person who wished to use confidential or highly confidential information, can only do so by using this information preparing and conducting the National Broadband Plan. Information that is used for this cannot be used for any other purpose, including “business or commercial purposes, or in other administrative, regulatory or judicial proceedings.”

Before any of the information can be released, a person requesting to obtain the information must go through a process including signing an acknowledgment statement and “file it with the Bureau via the Commission’s Electronic Comment Filing System.”

Once a person has gained the clearance to receive the confidential or highly confidential information, it will be loaded onto their computer and will be under password protection.  In the Protective Order, it is stressed that the information, if accessible to others may only be used for the “purpose of analysis in connection with this proceeding” pertaining to the National Broadband Plan.

Information is not available to those who have not signed the Acknowledgment Statement.  When this happens, the information will not be sent electronically.  It will be physically sent to the person who is requesting it.

If a person who has requested and properly obtained the confidential or highly confidential information violates any of the terms under the Protective Order, that person must inform the FCC and the submitting party immediately, also they would have to immediately begin taking the “necessary steps to remedy the improper disclosure.” The Commission from there has the authority to give the proper punishment for violating the Protective Order, including suspension of working before the FCC and denying the opportunity to access confidential or highly confidential information.

With the Protective Order, information that is deemed confidential or highly confidential pertaining to the proceeding of a National Broadband Plan, is under great restriction, only giving access to those who have the necessary clearance; A clearance that can only be given if the person who is requesting the information is using it in connection to the National Broadband Plan.

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An intern at the National Journalism Center and a student at American University’s Washington Semester Program, Christina is a Reporter-Researcher for BroadbandBreakfast.com. She is a student at Concordia College in Moorhead, Minnesota.

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