**DA 05-174**

**January 25, 2005**

NOTICE OF REQUEST FOR ACCESS TO DATA TO CARRIERS WHO FILE

NUMBERING RESOURCE UTILIZATION AND FORECAST REPORTS (NRUF)

PLEADING CYCLE ESTABLISHED

**CC Docket No. 99-200**

**CC Docket No. 95-116**

**Comment Date: February 4, 2005**

The United States Department of Justice, Antitrust Division (the
"Department") is investigating the proposed merger of Sprint Corporation
and Nextel Communications, Inc., and the proposed acquisition of Western
Wireless Corp. by ALLTEL Corporation. For the purpose of assisting in
those investigations, the Department has requested access to information
contained in the Numbering Resource Utilization and Forecast ("NRUF")
reports filed by wireless telecommunications carriers and to
disaggregated, carrier-specific local number portability (LNP) data
related to wireless telecommunications carriers.

Section 251 of the Communications Act grants the Commission jurisdiction
over the North American Numbering Plan ("NANP") and related telephone
numbering issues. In order to better monitor the way numbering resources
are used within the NANP and efficiently allocate NANP resources, the
Commission requires telecommunications carriers to provide the
Commission with a utilization report of their current inventory of
telephone numbers and a five-year forecast of their numbering resource
requirements.[^1] LNP data is collected by the LNP Administrator, and
provided to the FCC. The Commission has recognized that disaggregated,
carrier-specific forecast and utilization data should be treated as
confidential and should be exempt from public disclosure under 5 U.S.C.
§ 552(b)(4).[^2]

In general, the Commission may share information collected with another
government agency. 44 U.S.C. § 3510. Section 3510 further provides that
all provisions of law that relate to the unlawful disclosure of
information apply to the employees of the agency to which the
information is released. While the Commission's regulations provide that
proprietary and commercially sensitive information will be withheld from
public disclosure, subject to the public's right to seek disclosure
under the Freedom of Information Act, 5 U.S.C. § 552, 47 C.F.R. §
0.457(d), 0.459(d), the Commission may disclose records to other federal
government agencies that have been submitted to the Commission in
confidence upon another agency's request, 47 C.F.R. § 0.442. The other
agency must establish a legitimate need for the information and the
disclosure is made subject to the provisions of 44 U.S.C. § 3510(b). 47
C.F.R. § 0.442(b). Further, parties that furnished records in confidence
to the Commission will be notified of the request and be given 10 days
in which to oppose disclosure. 47 C.F.R. § 0.442(d).

The Department states in its requests that it is its policy to protect
the confidentiality of sensitive information and to prevent it from
being shared among competitors.[^3] The Department further states that
the information requested will be used only for a legitimate law
enforcement purpose and that it will not disclose such sensitive
information unless it is required by law or is necessary to further a
legitimate law enforcement purpose. The Department states that if it is
necessary to disclose any confidential business information in court
filings, it is its policy to notify the affected party as soon as is
reasonably practical, seek to file such information under seal, and make
reasonable efforts to limit disclosure of the information until the
affected party has had an opportunity to appear before the court and the
court has ruled on any request by the affected party.

The Department further states that if a request is made under the
Freedom of Information Act or another law for the disclosure of
confidential information, it is its policy to assert all applicable
exemptions and to use its best efforts to provide concerned parties with
notice prior to the release of any information. It also states that if
confidential business information becomes the subject of discovery in
any litigation to which the Department is a party, it is the
Department's policy to use its best efforts to assure that a protective
order is entered, and to not voluntarily provide the information until
concerned parties have had an opportunity to review and comment on the
protective order and to apply to the court for further protection.

Pursuant to Commission's regulations, affected parties have 10 days from
the date of this notice to oppose disclosure of NRUF and local number
portability data to the Department of Justice. 47 C.F.R. § 0.442. If the
Commission receives no opposition from affected parties within 10 days
of this notice, the Commission will disclose the information requested
above to the Justice Department. If disclosure is opposed, the
procedures set forth in 47 C.F.R § 0.442 shall apply. All filings should
refer to CC Docket Nos. 99-200 and 95-116. Comments may be filed using
the Commission's Electronic Comment Filing System (ECFS) or by filing
paper copies.[^4]

Comments filed through the ECFS can be sent as an electronic file via
the Internet to \<http://www.fcc.gov/e-file/ecfs.html\>. Generally, only
one copy of an electronic submission must be filed. If multiple docket
or rulemaking numbers appear in the caption of this proceeding, however,
commenters must transmit one electronic copy of the comments to each
docket or rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S.
Postal Service mailing address, and the applicable docket or rulemaking
number. Parties may also submit an electronic comment by Internet
e-mail. To get filing instructions for e-mail comments, commenters
should send an e-mail to \<ecfs@fcc.gov\>, and should include the
following words in the body of the message, "get form \<your e-mail
address\>." A sample form and directions will be sent in reply.

Parties who choose to file by paper must file an original and four
copies of each filing. If more than one docket or rulemaking number
appears in the caption of this proceeding, commenters must submit two
additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S. Postal
Service mail).

The Commission's contractor, Natek, Inc., will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002. The
filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.

Commercial overnight mail (other then U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail,
and Priority Mail should be addressed to 445 12th Street, SW,
Washington, D.C. 20554. All filings must be addressed to the
Commission's Secretary, Marlene H. Dortch, Office of the Secretary,
Federal Communications Commission.

Parties also must send three paper copies of their filing to Sheryl
Todd, Telecommunications Access Policy Division, Wireline Competition
Bureau, Federal Communications Commission, 445 12th Street, S.W., Room
5-B540, Washington, D.C. 20554. In addition, commenters must send
diskette copies to the Commission's copy contractor, Qualex
International, Portals II, 445 12th Street, S.W., Room CY-B402,
Washington, D.C. 20054.

Pursuant to section 1.1206 of the Commission's rules, 47 C.F.R. §
1.1206, this proceeding will be conducted as a permit-but-disclose
proceeding in which ex parte communications are permitted subject to
disclosure.

For further information, contact Sanford Williams, Telecommunications
Access Policy Division, Wireline Competition Bureau at (202) 418-1508,
TTY (202) 418-0484, or sanford.williams@fcc.gov.

[^1]: *See* *In the Matter of Numbering Resource Optimization*, *Report
    and Order and Further Notice of Proposed Rule Making*, 15 FCC Rcd
    7574, 7578-79 ¶ 5 (2000).

[^2]: *In the Matter of Numbering Resource Optimization*, *Report and
    Order and Further Notice of Proposed Rule Making*, 15 FCC Rcd 7574,
    7607 ¶ 78 (2000).

[^3]: *See* Letter to Alan Feldman, Acting Chief, Industry Analysis and
    Technology Division, Wireline Competition Bureau, and Eric Einhorn,
    Chief, Telecommunications Access Policy Division, Wireline
    Competition Bureau, from Nancy Goodman, Chief, Telecommunications
    and Media Section, Antitrust Division, U.S. Department of Justice,
    dated December 22, 2004; Letter to Rodger Woock, Chief, Industry
    Analysis and Technology Division, Wireline Competition Bureau, and
    Narda Jones, Chief, Telecommunications Access Policy Division,
    Wireline Competition Bureau, from Nancy Goodman, Chief,
    Telecommunications and Media Section, Antitrust Division, U.S.
    Department of Justice, dated January 19, 2005.

[^4]: *See Electronic Filing of Documents in Rulemaking Proceedings*, 63
    Fed. Reg. 24121 (1998).