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Hastings Communications and Entertainment Law Journal

Abstract

The Federal Communications Commission regularly promotes the competitiveness of the American broadband market and the availability of robust services to consumers. Since 2000, the Commission has reported on broadband deployment by zip code, and by late 2006 broadband was supposedly available in 99% of American zip codes, with those zip codes representing 99% of the population. However, the viability of the FCC's zip code-based measurement methodology has long been a matter of controversy, because until recently broadband was counted as "available" in a zip code even if as few as one household in the area has obtained service. This paper analyzes the viability of the FCC's broadband deployment statistics, as well as the suit by Center for Public Integrity, via a government transparency and freedom of information perspective. The paper then argues that the court failed to consider important precedents in trade secrets jurisprudence that would have placed more pressure on the FCC and the telecommunications firms to justify why withholding the requested information was in the public interest. Ultimately, questions remain as to whether the public should believe the FCC's pronouncements about a competitive broadband market, when such statements are based on statistics that are both exaggerated and are built upon incoming information that the Commission and private firms insist on keeping secret.

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