CPUC, TURN Oppose Data Confidentiality Lawsuit by Top ISPs
A utilities regulator and consumer group in California urged a federal court to reject a lawsuit by big telecom companies about disclosure of subscriber data in a state investigation of market competition. AT&T, Comcast, CTIA, Verizon and others sued the California Public Utilities Commission May 5 in U.S. District Court in San Francisco, challenging the lawfulness of a CPUC order requiring the telcos to provide data about carrier subscriptions to The Utility Reform Network (TURN), a California consumer advocacy group. In opposition last week, the CPUC and TURN said the data is critical to an ongoing investigation of telecom competition in California.
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The data at issue involves carrier market share and includes Form 477 data that carriers report to the FCC. In their complaint (in Pacer), the telecom companies said the data is confidential and can't be disclosed. The order to disclose was made by an assigned commissioner and administrative law judge, with no opportunity for review of the decision from the full commission, the companies said. The ruling exceeded CPUC authority and violated the Supremacy Clause of U.S. Constitution and the companies’ Fourth Amendment privacy rights, they said. The companies asked the court for a temporary restraining order, preliminary injunction and permanent injunction to stop enforcement of the CPUC order.
"The Commission’s Investigation is a matter of public importance," the CPUC said in opposition (in Pacer) dated Wednesday. The commission deregulated the phone industry in California 10 years ago, but since then, “the world has changed,” the commission said. "What was the telephone network, while still providing the basic communications needs for well over 30 million Californians, 'has evolved into ‘the essential communications medium of the digital economy.’” The quote is from April FCC Lifeline order. “Consumers have more choices, but have the underlying market and network dynamics changed?" said the CPUC. "Does the market work well for urban as well as rural, lower-income as well as affluent, communities? Only the granular market share data at issue here can answer these questions with a necessary level of precision.”
Disclosure will benefit the people of California, TURN agreed in opposition (in Pacer) filed Thursday. “The data at issue here is critical for TURN to adequately advocate its positions on the state of telecommunications competition to the CPUC,” TURN wrote. “Competition in California is not sufficient to ensure affordable, reliable and ubiquitous telecommunications services. TURN believes consumers will benefit from the CPUC’s investigation if there is a robust, comprehensive and data-driven record where all parties to the proceeding can fully and effectively advocate their positions.”
But the telecom companies said disclosure will harm their businesses: “If these Plaintiffs and their affiliates are compelled to disclose this confidential information, they will permanently lose a portion of their investments in, and the value they gain from, retaining its confidentiality with respect to this proceeding. Further, if they are compelled to disclose this information based solely on the AC/ALJ’s ruling, they will permanently lose their constitutional right to precompliance review before a neutral decisionmaker.”
The CPUC clarified the scope of the data at issue. “The crux of the dispute is not the Form 477 data as received from the FCC, but very specific and granular market share (subscription) data -- which includes but is not limited to the 477 data sent by the carriers to the FCC -- and a good part of which California law explicitly requires the carriers to produce,” it said. “The FCC has acknowledged the states’ right to ask the carriers directly for such data.” The contested CPUC orders require disclosure under a “strict” protective order, and other carriers -- not plaintiffs in this case -- have provided this kind of data to TURN before, the commission added. “Non-profit public interest groups like real party in interest TURN, and two other public interest groups qualified here to obtain the data, regularly review highly confidential documents in Commission proceedings. … Plaintiffs are unable to show, and have not shown, any demonstrable harm that has come from any of the present or prior productions, or that might come in the future from this production.”
While TURN filed opposition, it wasn't named in the suit and the court hasn't decided if the consumer group can participate. "If allowed to intervene, the applicant will join with Defendants in arguing that the actions of the CPUC, as alleged by the Plaintiffs, are not preempted by federal law, that the Commission can and has ordered appropriate safeguards to protect the confidentiality of the information at issue herein, and that the Plaintiffs Fourth Amendment rights are not violated by the CPUC’s order to produce the information in question,” TURN wrote in a motion (in Pacer) filed with its opposition. “TURN will argue that it has a long history of receiving access to confidential information from public utilities for use on proceedings before the CPUC and of safeguarding such information from disclosure to unauthorized persons. ... The data in question is critical for TURN to adequately advocate its positions.”