Does the FCC Fear Evidence of Competition in Special Access?

In the long-running saga of the Federal Communication Commission’s (FCC) special access proceeding – which started before the iPhone existed and even before Peyton Manning won his first Super Bowl – some now suggest that it’s time to shine the light of transparency on the question of whether or not competition exists in the market for business data services and, thus, whether the nation needs continued “special access” regulation.

A bit of background: As part of its special access proceeding, the FCC required service providers to submit highly confidential route maps of their fiber optic networks. This data collection effort was deemed necessary to determine whether, and where, competition exists in the business data market.

Yet, in a break with precedent, the FCC is refusing to allow parties to see and analyze the detailed maps that each provider submitted and to which the FCC alone has access.

Rather than provide access to the maps, the FCC has only provided access to a table that identifies each Census block containing competing fiber facilities deployed by fiber competitors. One provider AT&T is challenging the FCC’s lack of transparency and argues that Census block data shows that “special access competition is ubiquitous in the areas where there is special access demand.”

The company maintains,  however, that since the CLECs in this proceeding insist “that competition exists only in buildings they already serve, the Commission should immediately permit all parties to gain access to the detailed fiber route maps, consistent with the highly confidential designations of such maps in the applicable protective orders, so that these claims can be fully vetted.”

As AT&T notes, some of the map information understandably counts as sensitive business information, and both CLECs and the FCC have been eager to keep it under wraps.  Other companies have been able to see data but not the actual maps.

In a normal proceeding, in which all parties and the regulator were trying to reach a thoughtful and serious conclusion in an expedited fashion, that might suffice. But, upon closer inspection, the argument that the maps should remain hidden – in this case to ensure confidentiality of business information – fails to hold up.

First, reasonably sufficient aggregation of the map data should obviate any commercial concerns. (From one perspective, though, it’s a little hard to understand why this information should necessarily be so sensitive. Here’s the trick: Where business is, competitive operators go. Just think of it as the opposite of “if you build it, they will come.”)

Second, some might raise concerns about the security of critical infrastructure from the public disclosure of map data. Again, reasonably sufficient aggregation of the data should solve the problem.

Third, FCC precedent dictates that this type of information should be disclosed.  There’s no reason for another “special” rule for “special access.” The sum of the Commission’s recent actions in this proceeding has been directed at getting accurate data on the state of the marketplace.

So why not release this data and then let everyone analyze and comment on it, to help inform the Commission in its decision?

In short, it will take steps like this to cut through the Gordian Knot of this tedious, drawn-out proceeding. Why would CLECs fear disclosure – after all, if the maps show that no real competition exists? Then wouldn’t that bolster their case? Why is the FCC afraid of disclosure? Do they fear evidence of competition in virtually every Census block for which there is special access demand?  Such a finding would allow the agency to declare victory and unwind existing regulations.

I’m expecting the maps to show real competition exists in areas where demand for business services is high, just as one would expect in the competitive market of 2016.

Justice Louis Brandeis once said that “sunshine is the best disinfectant.” It’s time to shed the light of an appropriate transparency on the real facts of competition in the special access market. I’m confident this will prove there is no reason to continue regulating a well-working, innovative market that is already bringing better products and faster speeds to American businesses.

Bruce Mehlman formerly served as Assistant Secretary of Commerce for Technology Policy and is founding co-chairman of the Internet Innovation Alliance (IIA).

Morning Consult