PUBLIC NOTICE![](media/image1.png){width="0.95in"
height="0.9055555555555556in"}

FEDERAL COMMUNICATIONS COMMISSION

445 12th STREET, S.W.

WASHINGTON, D.C. 20554 **DA 00-1068**

News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet:
http://www.fcc.gov ftp.fcc.gov

**COMMON CARRIER BUREAU SEEKS COMMENT ON REQUESTS FOR CONFIDENTIAL
TREATMENT OF WIRE CENTER LINE COUNT DATA**

**PLEADING CYCLE ESTABLISHED**

#  CC Docket No. 96-45

**Release Date: May 12, 2000**

**Comment Date: June 26, 2000**

**Reply Comment Date: July 17, 2000**

On April 6, 2000, the Commission denied to a limited extent requests by
certain non-rural carriers for confidential treatment of quarterly line
count data at the wire center level filed pursuant to sections 36.611
and 36.612 of the Commission's rules.[^1] Specifically, the Commission
denied requests by Anchorage Telephone Utility, Bell Atlantic, BellSouth
Corporation, GTE Corporation, SBC, Sprint, and U S West, Inc. for
confidential treatment of such data to the limited extent that the
number of lines in wire centers receiving high-cost universal service
support may be determined once the Commission releases the statewide
carrier-by-carrier support amounts and the per-line support amounts
available in a wire center.[^2] The Commission did not decide whether
the line count data for wire centers that do not receive support from
the Commission\'s high-cost universal service support mechanism for
non-rural carriers should be afforded confidential treatment.[^3] The
Common Carrier Bureau (Bureau) now seeks comment on whether such data
should be afforded confidential treatment.

Carriers seeking confidential treatment of their wire center line count
data claim that such data are trade secrets and commercial or financial
information that fall within exemption 4 of the Freedom of Information
Act (FOIA) and section 0.457(d) of the Commission's rules.[^4] They
generally argue that disclosure of such data would cause them
substantial competitive harm.[^5] As noted in the *Line Count
Confidentiality Order*, we understand their claims to be based on the
disaggregated nature of the data, i.e., the filing of line counts in
individual wire centers, as opposed to total lines in the study
area.[^6] In addition, the carriers generally claim that such data are
not customarily released to the public.[^7]

We seek comment on whether line count data at the wire center level
constitute either trade secrets or commercial or financial information
within the meaning that these terms are given in the context of the
FOIA. A trade secret is "a secret, commercially valuable plan, formula,
process, or device that is used in the making, preparing, compounding,
or processing of trade commodities and that can be said to be the end
product of either innovation or substantial effort."[^8] The terms
"commercial or financial information" are given their ordinary meaning
for purposes of the FOIA.[^9] Commercial or financial information that
is submitted on a mandatory basis is "confidential" under exemption 4 of
FOIA when disclosure of the information is likely "to cause substantial
harm to the competitive position of the person from whom the information
was obtained."[^10] In addition, we seek comment on whether line count
data at the wire center level are publicly available from other sources
such as state commissions.

We also seek comment on whether there is a compelling public interest in
disclosing the wire center line count data even if such data were to be
considered confidential under exemption 4.[^11] The Commission's rules
permit disclosure of commercially sensitive information upon a
"persuasive showing" of the reasons in favor of releasing the
information.[^12] Consistent with the United States Supreme Court's
decision in *FCC v. Schreiber*,[^13] the rules also contemplate that the
Commission will engage in a balancing of the interests favoring
disclosure and non-disclosure. In balancing these public and private
interests, the Commission has been sensitive to ensure that the
fulfillment of its regulatory responsibilities does not result in the
unnecessary disclosure of information that might put its regulatees at a
competitive disadvantage.

Pursuant to sections 1.415 and 1.419 of the Commission\'s rules, 47
C.F.R. §§ 1.415, 1.419, interested parties may file comments on or
before **June 26, 2000**, and reply comments on or before **July 17,
2000**. Comments may be filed using the Commission\'s Electronic Comment
Filing System (ECFS) or by filing paper copies. *See Electronic Filing
of Documents in Rulemaking Proceedings*, 63 Fed. Reg. 24,121 (1998).
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, Postal
Service mailing address, and the applicable docket or rulemaking number.
Parties may also submit electronic comments by Internet e-mail. To
receive 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. All filings must be sent to the
Commission\'s Secretary, Magalie Roman Salas, Office of the Secretary,
Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554.

Parties also must send three paper copies of their filing to Sheryl
Todd, Accounting Policy Division, Common Carrier Bureau, Federal
Communications Commission, 445 Twelfth Street S.W., Room 5-B540,
Washington, D.C. 20554. In addition, commenters must send diskette
copies to the Commission\'s copy contractor, International Transcription
Service, Inc., 1231 20th Street, N.W., Washington, D.C. 20037.

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.

The full text of this document is available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, DC,
20554. This document may also be purchased from the Commission's copy
contractor, International Transcription Service, Inc. (ITS), 1231 20th
Street, NW, Washington, DC 20036, telephone 202-857-3800, facsimile
202-857-3805.

For further information, contact Katie King, Accounting Policy Division,
Common Carrier Bureau at (202) 418-7400, TTY (202) 418-0484.

[^1]: *See* 47 C.F.R. §§ 36.611, 36.612; *Federal-State Joint Board on
    Universal Service*, CC Docket No. 96-45, Order, FCC 00-125 (rel.
    April 7, 2000) (*Line Count Confidentiality Order*).

[^2]: Letter from Steven R. Beck, Senior Attorney, U S WEST, Inc., to
    Magalie Roman Salas, Secretary (Jan. 7, 2000) (U S WEST 1^st^
    Quarter Request); Request for Confidential Treatment of Anchorage
    Telephone Utility (Jan. 11, 2000) (ATU Request); letter from Richard
    M. Sbaratta, General Attorney, BellSouth Corporation, to Magalie
    Roman Salas, Secretary (Jan. 7, 2000) (BellSouth Request); letter
    from Hope Thurott, Senior Counsel---External Affairs-FCC, SBC to
    Magalie Roman Salas, Secretary (Jan. 7, 2000) (SBC 1^st^ Quarter
    Request); letter from Hope Thurott, Senior Counsel---External
    Affairs-FCC; letter from Gail L. Polivy, Assistant General Counsel,
    GTE Corporation, to Magalie R. Salas, Secretary (Jan. 13, 2000) (GTE
    1^st^ Quarter Request); Response of Bell Atlantic to Data Request
    (Jan. 7, 2000) (Bell Atlantic 1^st^ Quarter Request); letter from
    Jay C. Keithley, Vice President, Law & External Affairs, Sprint, to
    Magalie Roman Salas (Dec. 30, 1999) (Sprint 1^st^ Quarter Request).
    Some carriers also sought confidential treatment of the data filed
    with NECA on or before March 30, 1999. *See* SBC to Magalie Roman
    Salas, Secretary (March 30, 2000) (SBC 2^nd^ Quarter Request);
    letter from Gail L. Polivy, Assistant General Counsel, GTE
    Corporation, to Magalie R. Salas, Secretary (March 20, 2000) (GTE
    2^nd^ Quarter Request). letter from Jay C. Keithley, Vice President,
    Law & External Affairs, Sprint, to Magalie Roman Salas (March 31,
    2000) (Sprint 2^nd^ Quarter Request); Response of Bell Atlantic to
    Data Request (March 31, 2000) (Bell Atlantic 2^nd^ Quarter Request);
    Letter from Steven R. Beck, Senior Attorney, U S WEST, Inc., to
    Magalie Roman Salas, Secretary (April 6, 2000) (U S WEST 2^nd^
    Quarter Request). The BellSouth Request, filed January 7, 2000,
    sought confidential treatment for the first quarter and subsequent
    data submissions, so BellSouth did not file a separate request for
    confidential treatment for the second quarter of 2000. Frontier
    Telephone of Rochester, Inc., (Frontier/Rochester) also sought
    confidential treatment of wire center line count data, but was not
    included in the *Line Count Confidentiality Order* because the
    letter was not received before that order was released.
    Frontier/Rochester receives no high-cost support so it is not
    possible to "reverse engineer" to determine its wire center line
    counts.

[^3]: Pending the Commission's resolution of the issues raised by these
    confidentiality requests, the line count data for wire centers not
    receiving support, including that of Frontier/Rochester, will be
    made available pursuant to the interim protective order adopted
    April 7, 2000. *See Federal-State Joint Board on Universal Service*,
    CC Docket No. 96-45, Interim Protective Order, DA 00-773 (*Interim
    Protective Order*).

[^4]: 5 U.S.C. § 552(b)(4); 47 C.F.R. § 0.457(d).

[^5]: *See, e.g.,* SBC 1^st^ Quarter Request, at 2 (the data "would
    permit competitors to identify high concentrations of customers that
    may be valuable to a competitor's market approach"); ATU Request at
    2 (stating that competitors would "gain an unfair competitive
    advantage over ATU in the local exchange market" because data could
    be used for pricing and marketing); BellSouth Request at 1
    (disclosure would "enable competitors to target on a narrow
    geographic basis those areas where t would be most lucrative to
    compete with BellSouth" ); GTE 1^st^ Quarter Request at 1 (data
    could be used to evaluate operational and business plans); Bell
    Atlantic 1st Quarter Request at 2 (data could allow competitors to
    target area of highest concentration of customers); U S West 2^nd^
    Quarter Request at 2 ("Public disclosure of the detailed line count
    information, especially when provided on a wire center basis, would
    likely result in substantial competitive harm to U S West.").

[^6]: *Line Count Confidentiality Order* at para. 10. Since the
    inception of the Commission's high-cost loop support program,
    carriers have been required to file line count and cost data at the
    study area level and such data always have been publicly available.

[^7]: *See e.g.,* Sprint 2^nd^ Quarter Request at 1 ("It is the
    companies' practice to withhold this information from public
    inspection as proprietary in all circumstances."); U S West 2^nd^
    Quarter Request at 2 ("It is U S West's practice to withhold this
    information from public inspection as proprietary in all
    circumstances."); Bell Atlantic 2^nd^ Quarter Request at 2 ("Bell
    Atlantic keeps these data confidential and has not made the data
    publicly available."); SBC 1^st^ Quarter Request at 3 ("This
    information has been maintained on a confidential basis within the
    SBC Companies and would not ordinarily be disclosed to parties
    outside the company.")

[^8]: *Public Citizen Health Research Group v. FDA,* 704 F.2d 1280, 1288
    (D.C. Cir. 1983); *see also AT&T Information Systems, Inc. v. GSA,*
    627 F. Supp. 1396, 1401 n. 9 (D.D.C. 1986); *Examination of Current
    Policy Concerning the Treatment of Confidential Information
    Submitted to the Commission*, GC Docket No. 96-55, *Report and
    Order*, FCC 98-184, 13 FCC Rcd 24816, 24818 (1998) (*Confidential
    Information Policy Report & Order*).

[^9]: *See Public Citizen health Research Group*, 704 F.2d at 1290.

[^10]: ^?^ *See National Parks and Conservation Ass'n v. Morton*, 498
    F.2d 765, 770 (D.C. Cir. 1974) (*National Parks*). This is the
    "competitive injury" prong of the applicable standard under the
    *National Parks* two-part test. The other part of the test is
    whether disclosure would be likely "to impair the Government's
    ability to obtain necessary information in the future." 498 F.2d at
    770. Where the information is compelled, rather than voluntary, the
    Government's interest is in ensuring its continued reliability. *See
    Critical Mass Energy Project v. Nuclear Regulatory Commission*, 975
    F.2d 871, 878 (D.C. Cir. 1992) (*en banc*), *cert denied*, 507 U.S.
    984 (1993) (*Critical Mass*). The public and private interests
    identified in the *National Parks* test are not exclusive. The D.C.
    Circuit Court of Appeals subsequently distinguished between
    voluntary and compelled information in applying the *National Parks*
    test. The competitive injury part of the *National Parks* test
    applies to mandatory data submissions. *See Critical Mass,* 975 F.2d
    at 878. *See also* *Confidential Information Policy Report & Order,*
    13 FCC Rcd at 24819. Non-rural incumbent local exchange carriers are
    required to file wire center line count data under sections 36.611
    and 36.612 of the Commission's rules. 47 C.F.R. §§ 36.611, 36.612.
    Competitive eligible telecommunications carriers must file wire
    center line count data in order to receive high-cost universal
    service support. 47 C.F.R. § 54.307.

[^11]: For example, if the Commission were to rerun the model using the
    wire center line count data, a determination that such data are
    confidential would preclude the Commission from posting the rerun
    model on the Web. In contrast to the Commission's previous practice,
    the model results would only be available subject to a protective
    order.

[^12]: 47 C.F.R. §§ 0.457, 0.457(d)(1), 0.457(d)(2). While exemption 4
    of FOIA, 5 U.S.C. § 552(b)(4), allows an agency to withhold business
    competitive information from public disclosure, the Trade Secrets
    Act acts as an affirmative restraint on an agency's ability to
    release such information, except as "authorized by law." *See* 18
    U.S.C. § 1905, *and see* *CNA Fin. Corp. v. Donovan,* 830 F.2d 1132,
    1151-52 (D.C. Cir. 1987), *cert. denied*, 485 U.S. 977 (1988).
    Section 0.457 of the Commission's rules, 47 C.F.R. § 0.457, and
    section 254 of the Communications Act, 47 U.S.C. § 254, constitute
    the requisite legal authority for such disclosure of competitively
    sensitive information. *See* *Chrysler Corp. v. Brown*, 441 U.S.
    281, 301-03 (1979).

[^13]: 381 U.S. 279, 291-92 (1965).