The FCC initiated a proceeding to review special access competition way back in 2012 for which it gathered a huge amount of data from incumbent local exchange carriers (ILECs), competitive local exchange carriers (CLECs) and others (a whopping 120 million records making up more than 15 Gigabytes of data).  After reviewing this data, late last month interested parties submitted economic analyses about the state of competition in the special access marketplace.

So as not to disclose any single company’s confidential data (like specific facility locations, which we agree must be kept under lock and key, subject to the FCC’s highly confidential rules), the analysts aggregated the granular, company-specific data to provide high level, yet accurate, snapshots on the state of competitive deployment both nationally and in specific markets.  A typical result would look something like this:  In the San Jose market, X% of census blocks with special access demand are served by non-ILEC competitors.  Y% of San Jose businesses are located within census blocks where competitive providers are present.  Z% of those census blocks have two or more competitive providers.

By the way, this is exactly the type of information the government and tech companies use routinely.  When the government issues its Census Report, it aggregates numbers with the explicit understanding that aggregating data makes it anonymous.  Google does the same thing when it aggregates user data, by, for example, providing traffic data with its Google Maps app.  Indeed, the FCC itself regularly publishes reports that utilize aggregate data to publicly discuss the state of mobile competition as well as broadband deployment.  For instance, in the 2015 Broadband Progress Report, the FCC reported almost identical types of statistics, such as the percentage of U.S. households by the count of available fixed broadband competitors.  And the FCC makes public a store of carrier-specific statistics in its annual Mobile Wireless Competition Report.  In fact, the FCC has not had any qualms about publicly using aggregate revenue and market-share statistics based on this very same special access data when doing so suited its own needs.

Given all of that, one would naturally assume that aggregate data showing the levels of competitive entry nationally and in specific markets would be entirely proper and fair game – even essential – to having a transparent and public discussion about the central issue in the special access debate – i.e., the level of competition, right?  Guess again.  Pursuant to a Commission edict issued on the eve of the filing deadline, commenters were instructed that they could not include in the public versions of their comments any aggregate statistics that were derived from the data submitted in this proceeding without first receiving the Commission’s affirmative permission.

As a result of this FCC action, only the FCC and outside counsel and consultants are allowed to see any of the calculations derived from the FCC’s data collection, including aggregated results that reveal no one’s confidential information. The public is limited to generic descriptions that lack the specificity of hard data – phrases like “the majority of.” But does “the majority” mean 51% or 75%? The Commission has never before stifled speech in this manner.  It has never told parties they may not publicly reveal aggregate data on competition in the marketplace, data that does not reveal any sensitive information about any carrier, and that the FCC itself routinely publicizes.  So what gives?  Whether intended or not, the FCC’s actions here at least create the appearance that the Commission is selectively suppressing the free flow of information to impede public debate on the merits of increased special access regulation.

The FCC might argue that it has only acted out of an abundance of caution, to prevent someone from inadvertently disclosing an individual company’s confidential data.  If that was the case, however, one would expect the FCC to respond quickly to requests for permission to make public aggregate statistics that do not reveal any individual company information. Instead, the Commission has sat on those requests.  In fact, it has been almost a month since both AT&T and CenturyLink filed such requests, and the Commission has given no indication that it intends to act on either request anytime soon.

By the way, the analyses at issue here clearly show that competition is present in nearly all census blocks where there is demand for special access services, and that virtually all business establishments are located within those census blocks. (I’d like to show you just how much competition there is, but, sadly, I can’t even see these aggregate statistics.)

The outcome of the Special Access proceeding has huge implications – it will significantly impact telecommunications infrastructure investment for the foreseeable future.  Heavy-handed, monopoly-era regulation will result in fewer infrastructure jobs, slow the roll-out of new, fiber-based broadband services and faster speeds, and delay all the positive economic and social benefits those products and speeds will create.  So c’mon FCC, take your thumb off the scale so that we can have a fair and transparent fact-based discussion here.

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