28. We make clear at the outset that the affirmative steps we impose to safeguard confidentiality do not constitute a non-disclosure agreement (NDA), as some parties suggest. In contrast to an NDA that is a product of a contractual negotiation between two parties, we emphasize that we safeguard the limited release of our data through the issuance of a non-negotiated and non-negotiable order, and we require a certification from each eligible entity to several terms and conditions set forth below.
29. We decline to adopt the several alternative procedural vehicles that some commenters propose. For example, one provider suggests that the Commission require all eligible entities to abide by the safeguarding regimes that are at least as robust as the Commission's, and require all non-governmental eligible entities to sign an NDA that is mutually agreeable to the mapping entity and each broadband provider and afford providers rights to notice and objection to the publication or sharing of data. For reasons of administrability, efficiency, and fairness, we find that a uniform mechanism featuring streamlined reviews of a standardized declaration form and avoiding assessments of state disclosure laws or non-standard commitments will promote the timely processing of access requests and most effectively advance the goals of the BDIA.
30. Although we look to our past precedent for guidance on the necessary safeguards, we find that the more minimal set of conditions for release of the raw Form 477 data to state commissions set forth in the 2000 Data Gathering Order and NPRM, 65 FR 19675, are insufficient in this context for a variety of reasons, most notably the potential for misuse in a recipient's provision of its own broadband services. We also find that imposing a traditional protective order, such as those issued in recent merger and other adjudicatory proceedings, including the National Broadband Plan, would not be appropriately tailored to the instant proceeding. In particular, unlike those proceedings, the Form 477 data collection is mandatory for thousands of broadband providers, the list of entities eligible to gain access is enumerated by statute, and interested third parties have no right to review the data and use that information to participate in any Commission proceeding. Nevertheless, we respect the concerns identified by those commenters seeking the imposition of a protective order, and we find many of the terms and conditions of prior adjudicatory protective orders--particularly those adopted in the National Broadband Plan Protective Order--are instructive in crafting the safeguards we impose today.
31. Specific Safeguards. We conclude that the Chief of the WCB may provide electronic access to state-specific aggregate data collected on Form 477 to the eligible entity for each state, subject to the conditions set out below. We agree with commenters who identify the importance of protecting against inadvertent disclosure in transit, and direct the WCB Chief to exercise its discretion in establishing the medium for such electronic access and appropriate security measures, such as encryption and passwords. We therefore revise our delegation of authority to the WCB Chief consistent with the new regulations adopted by this Order.
32. Non-Disclosure of Aggregate Data. Consistent with the terms of BDIA section 106(h)(2) and the Commission's historical practice with regard to Form 477 data, we will condition our release of the aggregate data upon a commitment from each eligible entity that they will abide by the protections of section 106(h)(2) and will not disclose the aggregate data to any third party except with the consent of the provider that submitted it. Additionally, we will require each eligible entity to execute and submit a Declaration (in the format attached as Appendix A to the preamble) containing an express commitment to protect the data in this fashion.
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