The FCC released a Public Notice concerning the public disclosure of analyses of the confidential and highly confidential data filed in response to its special access data collection (SADC- nka the business data services data collection).
In response to recent public statements and various inquiries, the FCC is reminding parties that the results of any analyses (including statistical descriptions) performed on the confidential and highly confidential data submitted in response to the SADC are themselves confidential or highly confidential, as the case may be. As such, they may be disclosed only to those persons who are eligible to review the information under the terms of the FCC’s Protective Order. If the results are contained in a filing with the FCC, they must be marked as Confidential or Highly Confidential; the filing must be made under seal; and the public version of the filing must redact the results depending on the data from which they are derived.
The FCC also reminded parties that:
- They are not permitted to disclose information submitted as confidential or highly confidential based on their own belief that the information is not, in fact, confidential. This restriction applies to the results of analyses of confidential information, including aggregations, statistical descriptions, etc., of confidential information and data.
- There is a procedure to challenge the confidential designation of information, and unless the FCC rules in favor of any challenge, the information must continue to be treated as confidential. Parties who have obtained access to confidential information under the terms of the FCC’s Protective Orders in the proceeding are not free to determine for themselves what information derived from that information is and is not “still” confidential or highly confidential.
- Persons who have reviewed confidential and highly confidential information may, in the course of advising their clients, “rely generally” on their examination of the information, provided that, in doing so, they do not disclose any confidential or highly confidential Information. The FCC has never interpreted its protective orders to prevent the public version of filings from containing general, qualitative descriptions or characterizations of confidential or highly confidential information, such as “the majority,” “almost all,” “virtually none,” or “only a small number of,” or statements such as “This view is confirmed by the party’s own documents,” as violating a protective order’s prohibitions against the release of confidential information.
- SADC confidential and highly confidential information may be used only for the preparation and conduct of the FCC’s special access proceeding and any subsequent judicial proceeding and may not be used for any other purpose, including business, governmental, or commercial purposes, or in any other administrative, regulatory or judicial proceedings.
