Intel News Brief: 12/20/2006: 05:00 MST: Release to all sites:
General Information; Commentary:

Consumers have no idea how reliable their cell phone service will be
when they buy a phone and sign a long-term contract. The Federal
Communications Commission could offer some guidance, but it won't. The
agency refuses to make public a detailed database of cell phone
provider outages that it has maintained since 2004.

A federal Freedom of Information Act request for the data, filed in
August by MSNBC.com, has been rejected by the agency. The stated
reasons: Release of the information could help terrorists plan attacks
against the United States, and it would harm the companies involved.

Complaints about cell phone service are near the top of every list of
consumer gripes. The Illinois attorney general's office, for example,
last year ranked cell phone complaints as the fourth-most-common
complaint, trailing only gas prices, credit card firms and home
improvement scams.

To find out if a cell phone carrier service will be reliable, consumers
are forced to buy a phone, then use it at home and on their normal
commuting routes. Callers generally get 30 days at most to return a
phone if the service doesn't work well enough.

But that test won't reveal anything about carriers' periodic
outages.

The Federal Communications Commission does know something about
outages, however. It has collected outage reports from
telecommunications firms since the early 1990s. Any time a carrier has
an outage that affects 900,000 caller minutes - say a 30-minute
outage impacting 30,000 customers - it must report it to the Network
Outage Reporting System.

In the beginning, the reports all were from "wire line" telephone
providers and were available to the public. But in 2004, the commission
ordered wireless firms to supply outage reports as well. But at the
same time, it removed all outage reports from public view and exempted
them from the Freedom of Information Act.

The FCC took the action at the urging of the Department of Homeland
Security, which argued that publication of the reports would
"jeopardize our security efforts."

"The same outage data that can be so useful ... to identify and
remedy critical vulnerabilities and make the network infrastructure
stronger can, in hostile hands, be used to exploit those
vulnerabilities to undermine or attack networks," DHS said.

What use would wireless outage reports have to would-be terrorists? Not
much, said NBC terrorism analyst Roger Cressey, the former chief of
staff of the President's Critical Infrastructure Protection Board.

"There is nothing mysterious behind it, it is corporate competition
protection," said Cressey, now a partner in Good Harbor Consulting.
"The only reason for the government to not let these records get out
is then one telco provider could run a full-page ad saying 'the
government says we're more reliable.'"

Cressey added that he couldn't imagine a scenario where the reports
would be valuable to terrorists.

In October, MSNBC.com filed an administrative appeal of the FCC's
rejection of its FOIA request. The FCC has not yet responded to the
appeal.

In its initial answer to MSNBC.com's FOIA request, FCC officials
cited only one reason for the denial: "competitive harm" to
companies involved.

"NORS records are not available to the public," the rejection
letter said. "Given the competitive nature of many segments of the
communications industry and the importance that outage information may
have on the selection of a service provider or manufacturer, we
conclude that there is a presumptive likelihood of substantial
competitive harm from disclosure of information in outage reports."

That's likely true. A report that revealed which mobile phone company
suffered the most outages in a given area would likely impact
consumers' choice of provider. Such information would be in the
public interest, MSNBC.com believes.

"We believe that this is basic consumer information and we will
continue to fight for your right to know it," said MSNBC.com
editor-in-chief Jennifer Sizemore.

The explanation also does not meet the bar set by the Freedom of
Information Act for an agency to decline a request, according to an
analysis by The Reporters Committee for Freedom of the Press.

The competitive harm exemption "requires fairly detailed explanations
by the company involved as to how the release of information will put
it at a substantial competitive disadvantage," said analyst Nathan
Winegar.

In a subsequent response to a reporter's query, an FCC spokesman
pointed toward the second reason for the public record request denial:
The 2004 administrative order declaring the outage records off limits
to the public. That order cited both competitive harm and national
security.

Al Tompkins, a Freedom of Information Act expert at the Poynter
Institute, a journalism think-tank, said release of the cell phone
outage reports would be "a tremendous consumer tool," and compared
them to the Federal Aviation Administration's publication of airline
on-time records.

"It seems to me that while one could understand it might put one
company at a competitive disadvantage, it would put another at a
competitive advantage," he said. "The airwaves are owned by the
public. ... The public has a need to know what's reliable and
what's not."

Not every mobile phone firm thought the database needed to be hidden
from public view when the FCC decided to make it secret in 2004. Sprint
argued that the commission could "scrub" the reports of sensitive
material before they were made public and thus serve the "seemingly
divergent needs for public access and protection of confidential
information."

The FCC chose the blunt instrument.

Tompkins said the blanket removal of the entire outage report system
from public view was symptomatic of a larger trend in the Bush
administration.

"Every time we turn around something else is a national security
issue," he said.

Furthermore, if some larger pattern of cell phone outages could be
gleaned from the reports, he said, companies might "fix it, not bury
it."

"I can't think of one problem that has gone away because it's
kept a secret," he said.

The Freedom of Information Act, signed into law in 1966, provides
specific procedures for U.S. citizens to gain access to government
documents, through a procedure known as a FOIA request. The law was
amended in the mid-1970s in reaction to the Watergate scandal, with
time and fee limits imposed on government agencies to comply with
requests. The law was amended again in 1986, but journalists continued
to complain that federal agencies were still stonewalling. In response
to those complaints, in October 1993 then-President Bill Clinton issued
an administrative memo calling for federal agencies to "renew their
commitment" to the spirit of the Freedom of information Act.

The law was originally intended to make government paper records
available to the public, but gradually has been extended to apply to
electronic records as well.

Anyone can file a FOIA request, but the procedure is most frequently
used by journalists, lawyers and jail inmates seeking more information
about their cases. Many agencies, including the FCC, now allow FOIA
requests to be filed right from their Web sites.