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.
'Corporate competition protection'
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.
Explanation doesn't measure up, expert says
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.
Another 'national security issue'
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.