NARUC Predicts Appeal if Court Bans CPUC From Sharing ISP Data

A court injunction sought by top ISPs to ban disclosure of subscriber data in California could disrupt the authority of state commissions across the country, NARUC warned Friday. In an amicus brief (in Pacer) at the U.S. District Court in San Francisco, NARUC joined the California Public Utilities Commission and The Utility Reform Network in opposing the ISP lawsuit. NARUC General Counsel Brad Ramsay said to expect an appeal to the 9th U.S. Circuit Court of Appeals if the district court rules against the CPUC.

AT&T, Comcast, CTIA, Verizon and other industry plaintiffs seek to stop the CPUC from enforcing a May 3 ruling compelling top ISPs to disclose subscriber data to TURN or other third parties as part of a state investigation of market competition. The court case has held up the probe. The companies claim the FCC pre-empts state disclosure of Form 477 and other confidential data about phone and broadband deployment. In May the federal court issued a preliminary injunction against the CPUC (see 1605240014). June 30, the companies asked the court to make the prohibition permanent (see 1607010006). The ISPs also said a CPUC division already violated the temporary ban (see 1607200016). Oral argument is scheduled for Sept. 29 in San Francisco.

The telecom companies are wrong that the FCC pre-empts state disclosure of the data, Ramsay said. “If the judge goes the other way and decides in favor of preemption, this will go to the ninth circuit,” he emailed. “States simply cannot accomplish tasks Congress assigned them without being able to use the ‘protective order’ procedure to validate the due process rights of other stakeholders impacted by the agency action.” He said the FCC “routinely gives access to the same and even more detailed and sensitive information via protective order -- to a much broader swath of potential stakeholders.”

A permanent ban would inflict massive damage to the jurisdiction of California's telecom regulator, the CPUC said in a Thursday motion (in Pacer). "Such relief would cut a wide swath through existing Commission programs, undertaken pursuant to federal and state law, designed to promote universal service, competition, and broadband buildout, to map broadband deployment and penetration, and to reverse the digital divide between those who have access to modern communications technology and those who do not,” the CPUC wrote. “Such an order would offend the notion of state sovereignty embedded in the Eleventh Amendment, and would be based on a blatant one-sided reading of federal law.”

"Taken to its logical conclusion, Plaintiffs’ claims mean that any time a state agency obtains data independently under state law that is also provided to a federal agency, it must seek permission from that federal agency to use that data,” the state commission said. “Instead, it is the Plaintiffs that should petition the FCC for preemption if they take issue with the CPUC’s use of this data.” The FCC has ruled that state broadband data gathering is complementary to federal efforts, and it has never pre-empted state confidentiality regimes applying to the data, said the CPUC, citing a 2010 FCC order on a NARUC petition for clarification that no FCC order or rule limits state authority to collect broadband data. The state commission also pointed to policy statements in the Broadband Data Improvement Act, the NTIA's broadband mapping program and language setting up Form 477 collection in Section 706 of the Communications Act.

Data disclosure to third parties is an important part of regulatory proceedings, TURN said Thursday in a separate motion (in Pacer). "As a large state administrative agency, the CPUC’s regulatory proceedings benefit from active and meaningful participation from a broad cross-section of stakeholders,” the consumer group said. “For TURN to meaningfully participate and contribute to the record in the proceeding, TURN must have access to the data at issue to calculate the level of competition using consumer friendly assumptions and to demonstrate how the level of competition impacts consumers in different geographic and socio-economic categories." The FCC doesn’t pre-empt states from sharing carrier data as a rule, said TURN, but rather "engages in a balancing exercise where it weighs the clear value of meaningful party participation in its own proceedings with the undisputed goal of protecting carrier confidential data.”