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Network Transition Trials Can’t Be Conducted in Secrecy

April 11, 2014

This past Tuesday, Public Knowledge and the NCLC challenged AT&T’s attempts to mark certain parts of its phone network transition trials proposal as confidential in the FCC’s trials proceeding. The trials are a crucial part of the network transition, so the public needs to have a meaningful opportunity to review and comment on the trial plans, including knowing when they will start and stop.

Challenging AT&T’s Confidentiality Claims

In our filing, we pointed out how the trials’ timeline doesn’t qualify as a trade secret or even commercially sensitive information. It’s simply basic information about the parameters of a set of limited, reversible, public experiments to test new technologies to inform policymakers’ decisions about whether these technologies will be good enough to replace the network infrastructure people rely on today. So, legally, there is no justification for hiding this information from the public, and keeping the trials’ timeline secret just hampers the public debate around this important experiments.

Our filing also pointed out that AT&T has claimed confidentiality over certain information about how much of the trial areas will receive wireline service, wireless service, or both, but AT&T has also disclosed that information to the trade publication TR Daily. A company can’t reveal information to the press and still claim it’s confidential in an official proceeding, so the FCC should require AT&T to formally submit that information, unredacted, in the docket as well.

Why Does this Matter?

This challenge is about much more than just being a stickler for the rules. The protections given to confidential information impose very real burdens on the stakeholders trying to give input in a proceeding. Of course, if the information at issue is truly confidential those burdens can be justified, but it’s important to recognize that giving confidentiality protection to information that doesn’t deserve it imposes very real costs on the members of the public trying to comment on the issue.

Confidential treatment at the FCC obviously means that individuals who have filed the necessary paperwork to view the information can’t speak about it publicly, but even just that step of signing onto a protective order is enough to stop academics, consumer advocates, economists, engineers and other third parties who may have valuable insights but don’t want to get involved in worrying about following confidentiality procedures. This also means the conversations that usually happen among public interest groups, academics, companies, and the press are stifled. And finally, the extra work that goes into handling and filing documents that contain confidential information is no small matter, and can take multiple extra hours every time a stakeholder files a document at the FCC.

Again, this does not mean that truly confidential information needs to be made public.  But it does mean that claiming confidential treatment for information that should be public imposes very real costs on the public and hampers the public discourse on an issue.

The Bigger Picture: Overclaiming Confidentiality Hurts Public Engagement

The information at the heart of our confidentiality challenge is important to public review and debate about the network transition trials, but the FCC’s moves here can also bear on how other companies will use confidentiality protections in many other proceedings at the FCC. The FCC needs to show that it is serious about stopping abuses of the confidentiality rules, so companies can’t simply hide information that is embarrassing or hurts their case.

Broadly speaking, we’ve seen this problem before. When AT&T tried (and failed) to buy T-Mobile, it abused confidentiality rules to hide embarrassing or damaging information. Similarly, Verizon, Comcast, and other cable companies overclaimed confidentiality to information about a Joint Operating Entity the companies formed as part of their massive deal to cooperate instead of compete against each other.

If the FCC doesn’t send a clear signal to companies that they can’t play fast and loose with confidentiality claims to short-circuit public debate on an issue, the companies will continue to have every incentive to push the limits of the rules as much as they can. Especially as the FCC is now beginning to review yet another merger attempt between Comcast and Time Warner Cable, the FCC needs to make it clear to companies that they must follow the confidentiality rules and respect the public’s right to review and engage with policymakers on this topic.