24. In determining whether and which speed tiers are appropriate to aggregate, we look to the NOFA's definition of "broadband" as being above 768 kpbs downstream, and its 3 Mpbs cutoff for downstream transmission speeds as part of its definition of "underserved area." We conclude that aggregating the 72 tiers of combined upstream and downstream speeds into two speed tiers--between 768 kbps and 3 Mbps downstream, and above 3 Mbps downstream--comports with the statutory directive to aggregate, while preserving the distinctions that NTIA has deemed critical to carry out section 106(b) of the BDIA. While we agree with commenters that aggregation of speed tiers will shield particular provider's performance, we decline to adopt the differing proposed breakpoints that do not comport with these key NTIA definitions.
25. Provider Data--Data Set 4: List, by Census Tract, of Terrestrial-Mobile Wireless Broadband Providers Representing Service. The Commission will provide, for each Census Tract, a list of the TMW providers identifying the Census Tract as a part of their "broadband" service territory, along with data indicating whether or not they provide service at speeds above 3 Mbps. Similar to Data Set 3, this data set will assist in identifying the universe of TMW providers from whom eligible entities are seeking to collect availability data. The data set could also assist in the identification of "underserved" areas by providing an indication that service is available or may be advertised in an area. While a TMW provider's identification of those Census Tracts best representing its footprint is not necessarily indicative of "access" as defined in NTIA's NOFA, such information provides useful guidance for the eligible entity to follow up.
26. DSL and Cable-Modem Service Availability--Data Set 5: Percentages of Incumbent LEC DSL and Cable Modem Service Residential Availability. The Commission will provide percentages, by state, of residential end-user premises in incumbent LEC and cable provider service territories that have access to high-speed DSL and cable-modem services, disaggregated by technology. This dataset is the same as the percentages that are published as part of the High-Speed Services Report, although without any redaction. Again, these figures are based on providers' responses to questions about "availability" on Form 477 which may differ from NTIA's definition of "access," but these data can be helpful to eligible entities in tracking down availability.
27. Confidentiality of Form 477 Data--Need for Protection. We turn now to the question of whether the Commission should seek to prevent inappropriate release of sensitive data, or whether it is more appropriate under the statute to release data to eligible entities and leave them to determine how to comply. We identify two issues of commercial sensitivity posed by the release of confidential data to an eligible entity: (1) An eligible entity's inadvertent disclosure of confidential Form 477 data to third parties potentially could cause competitive harm to the broadband provider that submitted the data to the Commission; and (2) where the eligible entity is itself a provider of broadband service, it could unfairly use these aggregated data in marketing its own services or planning its investment strategy. In this regard, we note the language of section 106(h)(2) requiring eligible entities to treat "any matter that is a trade secret, commercial or financial information, or privileged or confidential, as a record not subject to public disclosure," unless providers expressly agree to such disclosure. This provision establishes important protections for the aggregated data that the Commission will provide. Even in aggregated form, however, the data will contain provider-specific information, which the Commission has historically protected and which may give rise to competitive sensitivities even in limited release. Accordingly, we find it appropriate to condition our release of the aggregate data by instituting the procedural mechanism described below.
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