Federal Communications Commission fcc 13-158 Before the Federal Communications Commission
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- A.Confidentiality
A.Legal AuthorityCLI.The 911 Reliability NPRM sought comment on the potential sources of legal authority for Commission action to promote the reliability and resiliency of communications infrastructure that is essential for 911 service. Beyond the Commission’s general mandate to “promot[e] the safety of life and property through the use of wire and radio communications,”346 Congress has delegated to the Commission specific responsibilities to “designate 911 as the universal emergency telephone number for reporting an emergency to appropriate authorities and requesting assistance.”347 Our efforts to ensure that such reports and requests for assistance can reliably be transmitted are “necessary in the public interest to carry out” this provision of the Communications Act.348 Further, there has been judicial recognition of “[t]he broad public safety and 911 authority Congress has granted the FCC”349 through legislation such as the Wireless Communications and Public Safety Act of 1999, the NET 911 Improvement Act of 2008, and the Twenty-First Century Communications and Video Accessibility Act of 2010.350 CLII.To the extent that 911 service providers provide interstate common carrier service, the Communications Act also provides that their “practices” must be “just and reasonable,”351 and that a common carrier must “provide itself with adequate facilities for the expeditious and efficient performance of its service as a common carrier.”352 Because the rules we adopt today are not directed at wireless providers, insofar as that they do not currently provide 911 service directly to PSAPs, we need not address here the potential basis for promulgating these rules under the Commission’s Title III authority to “[p]rescribe the nature of the service to be rendered” 353 by wireless providers, and more generally “to manage spectrum . . . in the public interest.”354 CLIII.In light of these express statutory responsibilities, regulation of additional capabilities related to reliable 911 service, both today and in an NG911 environment, would be well within Commission’s foregoing statutory authority.355 Although few commenters question the Commission’s legal authority over 911 communications,356 one suggests that the Commission lacks authority to adopt 911 reliability rules because it asserts that 911 calls are purely intrastate. Thus, the commenter argues, the Commission “should at most adopt or endorse recommended best practices for state and/or local authorities to adopt.”357 The Commission has rejected similar arguments in the past, however, relying on the 911 statutes enacted by Congress as an endorsement of the Commission’s role in this area.358 Our plenary authority over 911 numbering, for example, was enacted pursuant to the Wireless Communications and Public Safety Act of 1999, whose express purpose is “to encourage and facilitate the prompt deployment throughout the United States of a seamless, ubiquitous, and reliable end-to-end infrastructure for communications, including wireless communications, to meet the Nation’s public safety and other communications needs.”359 Commenters also describe the interstate nature of at least some portions of 911 network architecture.360 Moreover, the state public utilities commissions filing comments in this proceeding have uniformly endorsed our proposals,361 which do not extend to matters of state or local jurisdiction such as tariff conditions and the internal operation of PSAPs. Indeed, as noted above, we have specifically declined to include PSAPs within our definition of Covered 911 Service Providers or otherwise to regulate the reliability of their own internal operations. To the extent that commenters express concern about the appropriate line between federal and state authority with respect to 911 service, we emphasize that the Commission’s actions here will be undertaken, consistent with past practice, in partnership with such authorities and in light of their unique interest in the delivery of reliable 911 service. The rules we adopt today are not intended to preempt state and local actions so long as they do not operate to frustrate the implementation of the Commission rules adopted here. We do not believe it is appropriate or feasible, however, to make any specific determinations about preemption, including whether supplemental state or local requirements are consistent with the balancing of costs and benefits reflected in our new rules, without an actual – not hypothetical – case of state or local action in this area. The question of whether such action would frustrate the implementation of the Commission’s federal regulatory framework would turn on the individual circumstances of each case. We do observe, however, that the rules adopted here may obviate the need for state and local jurisdictions to promulgate their own requirements, thereby reducing the prospect of disparate regulatory schemes and simplifying the regulatory burdens on service providers.362 A.ConfidentialityCLIV.We have long recognized that certain information about communications networks may be competitively sensitive or reveal vulnerabilities to individuals or organizations with hostile intent, and should therefore generally be treated as confidential.363 We also have observed, however, that “not all information needs to be protected” and that allegations of competitive harm “must flow from affirmative use of the information by competitors and not consist solely of injuries that flow from customer disgruntlement or public embarrassment.”364 CLV.The 911 Reliability NPRM sought comment on whether reliability information submitted by 911 service providers should be made publicly available or presumed confidential.365 The NPRM also inquired whether such information “should be shared within the PSAP community, or made accessible to 911 industry associations (e.g., APCO, NENA),” as was the case with previous reports on redundancy and resiliency of 911 networks under section 12.3 of our rules.366 Additionally, the NPRM asked whether reliability information should be shared with state public utilities commissions.367 CLVI.Most commenters agree that proprietary 911 network information is potentially sensitive and should not be disclosed to the general public, although they disagree about the scope of disclosure to other entities. Verizon, for example, states that “[w]hile the CPNI certification is filed in a public docket, a 911 resiliency certification should be afforded full confidentiality protection in light of the sensitive nature of the information disclosed.”368 ATIS contends that certification results should be withheld from the states unless proper safeguards are in place.369 Similarly, CenturyLink comments that “[t]o the extent any [circuit] audits are mandated, those audits should be treated as proprietary business information that is presumed confidential.”370 CenturyLink, however, generally agrees that PSAPs should have access to relevant information in at least a summary form.371 CLVII.Public safety and state government commenters recognize the sensitivity of this information, but argue for at least limited access to information. Fairfax County specifically argues that “detailed information from [circuit] audits needs to be shared with the PSAP to which the information relates,” though it agrees that “such detailed network configuration information should be required to be treated by all parties as sensitive and confidential information.”372 State regulators in California and Pennsylvania request access to information collected through the Commission’s certification process.373 CLVIII.It is clear that the information at issue in the certifications holds great value for public safety and state authorities, but we have consistently recognized the sensitivity of this type of information and the need to protect it from broad disclosure.374 On balance, we conclude that some components of annual 911 reliability certifications are likely to raise genuine public safety and competitive concerns, while other portions of the certification will not and may be of legitimate interest to the public. For example, we perceive little threat to public safety or competition in the mere fact of whether a Covered 911 Service Provider has filed a certification, or whether a service provider answers in the affirmative or negative to each element of the certification. Thus, we would not consider confidential a service provider’s responses on the face of the form with respect to whether it adheres to certification elements or relies on alternative measures to satisfy other elements of the certification. CLIX.We recognize, however, that confidentiality concerns increase significantly if a certification includes proprietary information about a service provider’s specific network architecture or operations on less than an aggregated basis. Accordingly, as with our mandatory outage-reporting requirements,375 we will treat as presumptively confidential and exempt from routine public disclosure under the Freedom of Information Act (FOIA): (1) descriptions and documentation of alternative measures to mitigate the risks of nonconformance with certification standards; (2) information detailing specific corrective actions taken; and (3) supplemental information requested by the Commission or Bureau with respect to a certification. Examples of information we will treat as presumptively confidential include circuit routes and diagrams, maintenance records, internal policies and procedures, and outage data.376 CLX.We also recognize that PSAPs and state 911 authorities have a strong interest in obtaining relevant information about the reliability and resiliency of their 911 service. As NENA states, PSAPs may be in the best position to use this information to prompt 911 service providers to make specific reliability improvements in their networks, but they may not otherwise be able to negotiate reliable access to this information through their contracts or tariffs.377 As noted, Fairfax County argues for disclosure to PSAPs of detailed information on circuit audits.378 The record in this proceeding supports allowing PSAPs and, as relevant, state 911 authorities, access to potentially sensitive information on the circuit routes to the PSAP. No PSAPs have identified any other proprietary information that they believe to be important in assessing reliability of their service, and accordingly, we have no reason to address here the need for disclosure of additional information to PSAPs and/or state 911 authorities. CLXI.To this end, we expect that a Covered 911 Service Provider will, at the request of the PSAP (or state 911 authority, as relevant), enter into discussions concerning the content of the provider’s 911 circuit auditing certification with respect to the PSAP. In light of the wide variety of circumstances involved in how PSAPs nationwide purchase 911 service, we decline to require specific disclosure by rule, preferring to allow parties to negotiate reasonable and appropriate terms for assuring protection of proprietary information. We make clear, however, that Covered 911 Service Providers should respond promptly to a PSAP request in this area and reiterate our belief that PSAPs should have access to the details of circuit-auditing certifications, as long as the sensitive and proprietary nature of the information can be maintained. 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