**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control No. 2005-586    |
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| JOHN E. WALL, JR.,               | ** |                              |
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| On Request for Inspection of     | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** February 7, 2007 **Released:** February 9, 2007

By the Commission:

1.  The Commission has before it an application for review[^1] filed by
    John E. Wall, Jr. of the denial by the Wireline Competition Bureau
    (WCB) of his Freedom of Information Act (FOIA) request.[^2] Pursuant
    to FOIA Exemption 4, 5 U.S.C. § 552(b)(4), we deny the application
    for review.

2.  Wall's FOIA request sought "\[a\]ll supporting worksheets and FCC
    Form 499-A filings made by MCI/WorldCom for the years 1995 to
    present."[^3] Under section 54.711(b) of our rules, "Contributors
    \[to universal service support programs\] may make requests for
    Commission nondisclosure of company-specific revenue information
    under § 0.459 of this chapter by so indicating on the
    Telecommunications Reporting Worksheet at the time that the subject
    data are submitted."[^4] MCI sought confidential treatment of its
    filings, and therefore WCB sought comment by MCI, Inc. concerning
    the FOIA request.[^5] MCI opposed Wall's FOIA request to the extent
    it sought "disclosure of any of the financial information" in the
    worksheets and Form 499-A filings because such information is
    considered privileged and confidential under FOIA Exemption 4, 5
    U.S.C. § 552(b)(4).[^6] Wall replied, claiming "there would be no
    competitive advantage provided to any competitor" by releasing the
    records, and that it is in the interest of MCI customers to know how
    much MCI contributed to the USF.[^7] WCB then denied Wall's FOIA
    request, finding that the information on MCI's worksheet "could be
    used to determine growth and placement of competitive lines of
    business, and general market segmentation and positioning."[^8] Wall
    sought review of WCB's decision.[^9] Verizon Business (MCI's
    successor in interest) filed a response to the AFR.[^10] Wall did
    not reply to Verizon Business's response.

3.  We conclude that the records sought by Wall may be withheld pursuant
    to FOIA Exemption 4.[^11] This FOIA exemption permits us to withhold
    commercial or financial information obtained from a person that is
    privileged or confidential.[^12] We previously discussed the
    confidentiality of records relating to USF contributions in *Lakin
    Law Firm, P.C.*, 19 FCC Rcd 12727 (2004). We explained that "USF
    contributions of a carrier, when combined with other publicly
    available information, would enable competitors to estimate carrier
    revenues for specific product families, particular companies, and
    geographic areas, giving competitors a substantial competitive
    advantage."[^13] WCB's *FOIA Decision* is consistent with *Lakin*
    and past FOIA decisions concerning USF contributions.[^14] Moreover,
    we agree that Verizon Business has demonstrated that substantial
    competitive harm would likely result from the disclosure of the
    requested records. Verizon Business explained that the information
    sought would result in competitive harm by enabling competitors to
    identify demand for individual types of services, thereby targeting
    facility construction and service marketing to the detriment of
    Verizon Business.[^15] This type of competitive harm has been
    recognized as the basis for withholding records under FOIA Exemption
    4.[^16] Verizon Business also explained that this information is
    kept confidential by the company,[^17] and was not filed publicly in
    the MCI bankruptcy, as Wall asserted.[^18] Based on this record, we
    conclude that WCB's decision to withhold the records was consistent
    with FOIA Exemption 4 and our decision in *Lakin*.

4.  Wall also claims WCB failed to segregate and release
    non-confidential matters.[^19] WCB, as the Bureau handling the
    initial FOIA request, routinely reviews all records responsive to a
    FOIA request to determine whether there are any segregable
    portions.[^20] We have also reviewed the records to determine if
    there are any segregable portions that, if released, would not
    reveal confidential commercial information. The only segregable part
    of the records is the company identifying information, as Verizon
    Business notes, but that information is already publicly
    available.[^21] Wall seeks segregation of the records to disclose
    "the total amount of universal service fees paid by MCI during the
    relevant periods, without any geographic breakdown." [^22] However,
    neither the Form 499-A filings nor the supporting worksheets contain
    this specific figure,[^23] and therefore it is impossible to
    segregate this figure from the records.[^24]

5.  IT IS ORDERED that the application for review by John E. Wall, Jr.
    IS DENIED. Wall may seek judicial review of this action pursuant to
    5 U.S.C. § 552(a)(4)(b).

6.  The officials responsible for this action are the following
    Commissioners: Chairman Martin, Commissioners Copps, Adelstein and
    Tate.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: Letter from John E. Wall, Jr., Law Offices of John E. Wall, Jr.,
    to Office of General Counsel, FOIA Control No. 2006-037 (Jan. 20,
    2006) (AFR).

[^2]: E-mail from John E. Wall, Jr., to FOIA@fcc.gov (Sept. 15, 2005).

[^3]: *Id.* FCC Form 499-A is the Telecommunications Reporting Worksheet
    and is used to determine universal service support obligations.
    *See* http://www.fcc.gov/Forms/Form499-A/499a-2005.pdf.

[^4]: 47 C.F.R. § 54.711(b) (citing 47 C.F.R. §0.459).

[^5]: *See* 47 C.F.R. § 0.461(d)(3) (requiring the Commission to seek
    comment from submitter of materials for which a FOIA request is made
    and the submitter's request for confidentiality is pending).

[^6]: Letter from Jeffrey W. Jacobs, Associate Counsel, MCI, to Managing
    Director (Oct. 13, 2005) (MCI Response).

[^7]: Letter from John E. Wall, Jr. to Managing Director (Dec. 8, 2005).
    Although the original FOIA request in this matter (*supra* footnote
    2) was filed by Wall in his name only, Wall begins his December 8
    letter by stating that he "write\[s\] on behalf of Richard H. Drew
    and all others similarly situated who are requesting the form 499-A
    filings and supporting worksheets." If Drew, *et al.*, were the true
    FOIA requesters, as the December 8 letter suggests, the initial FOIA
    request should have so indicated. We accordingly consider the FOIA
    request to have been filed by Wall in his personal capacity. *See*
    47 C.F.R. § 0.461(a)(1), (a)(2) and (b)(1) (all referring to "the
    person requesting" the records).

[^8]: Letter from Joseph T. Hall, Ass't Bureau Chief, Management, WCB to
    John E. Wall, Jr. (Dec. 21, 2005) (*FOIA Decision*) at 3.

[^9]: Letter from John E. Wall, Jr. to Sam Feder, General Counsel (Jan.
    20, 2006) (AFR).

[^10]: Letter from Kathleen Grillo, Vice President, Federal Regulatory,
    Verizon to Laurence H. Schecker, Attorney-Adviser, Office of General
    Counsel (Feb. 24, 2006) (Verizon Business Reply). The reply noted
    that on January 6, 2006, MCI, Inc. merged into MCI, LLC, a wholly
    owned subsidiary of Verizon Communications, Inc. MCI business units
    and certain other Verizon business units that serve enterprise and
    government customers are now called Verizon Business. MCI business
    units serving customer residential and small business customers
    continue to operate under the name MCI. The reply was filed on
    behalf of Verizon Business, and therefore we will refer to that
    name.

[^11]: 5 U.S.C. §552(b)(4) ("trade secrets and commercial or financial
    information obtained from a person \[that is\] privileged or
    confidential").

[^12]: *See, e.g., National Parks and Cons. Ass'n v. Morton*, 498 F.2d
    765 (D.C. Cir. 1974).

[^13]: *Lakin*, 19 FCC Rcd at 12729-30.

[^14]: *See Lakin*, 19 FCC Rcd at 12730 and n.30 ("The Bureau has
    consistently refused to release company-specific USF contribution
    data"), *citing* FOIA Control No. 2002-268 letter to Fred B.
    Campbell, Harris Wiltshire & Grannis from Joseph T. Hall (July 8,
    2002); FOIA Control No. 2002-351 letter to Roy Thompson, Black Radio
    Network from Joseph T. Hall (Aug. 19, 2002).

[^15]: Verizon Business Reply, at 2-3. *See Lakin*, 19 FCC Rcd at
    12729-30.

[^16]: *See* *National Park and Cons. Ass'n v. Kleppe,* 547 F.2d 673,
    684 (D.C. Cir. 1976) (insight into business strategies recognized as
    competitive harm under FOIA Exemption 4)*; Lakin*, 19 FCC Rcd at
    12728 (revealing USF contributions would allow competitors to
    "estimate carrier revenues for specific product families, particular
    customers, and geographic areas").

[^17]: Verizon Business Reply at 3.

[^18]: *Id.*

[^19]: AFR at 1.

[^20]: *See* 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a
    record shall be provided to any person requesting such record after
    deletion of the portions which are exempt under this section"); 47
    C.F.R. § 0.461(f)(5) ("If there is a statutory basis for withholding
    part of a document only from inspection, that part will be deleted
    and the remainder will be made available for inspection.").

[^21]: *See* Verizon Business Reply, at 3, *citing* Instructions to the
    Telecommunications Reporting Worksheet, Form 499-A, at 29,
    *reprinted at* \<http://www.fcc.gov/Forms/Form499-A/499a-2005.pdf\>
    (*Instructions*).

[^22]: AFR at 2.

[^23]: *See* *Instructions*, at 32 ("Filers do not calculate, in this
    Worksheet, the amounts that they must contribute. The administrators
    will use the revenue information on the Worksheet to calculate a
    funding base and individual contributions for each support
    mechanism.").

[^24]: *See* *Students Against Genocide v. Dep't of State*, 257 F.3d
    828, 837 (D.C. Cir. 2001) *citing* *Yeager v. DEA*, 678 F.2d 315,
    321 (D.C. Cir. 1982), *citing NLRB v. Sears, Roebuck & Co.*, 421
    U.S. 132, 161-62 (1975).