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$//MO&O, Denying TKR Cable Co. of Ramapo Confidentiality, FCC 96-102//$
$/0.459 Withholding Information From Public Inspection/$
$/76.956 Cable Operator Response to Complaint/$

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

	FCC 96-102

In the Matter of					)			
							)
TKR Cable Company of Ramapo			)
in the following communities:			)
Mahwah, New Jersey (NJ0421)			)
Sloatsburg, New York (NY0905)			)
Tuxedo, New York (NY0906)			)
							)
Application for Review of Confidentiality Order	)

MEMORANDUM OPINION AND ORDER 

	Adopted:  March 11, 1996					Released:  March 20, 1996

By the Commission:

I.	Introduction

	1.	In this Order, we deny the Application for Review ("Application") of TKR Cable Company of Ramapo ("TKR") filed on July 14, 1994.  In its Application, TKR seeks Commission review of the Order of the Cable Services Bureau ("Bureau") released on July 7, 1994, denying TKR's requests for confidentiality of rate justification information submitted pursuant to the Commission's rate regulations.  

II.	Background	

	2.	Section 0.459 of the Commission's rules allows a person who is submitting information to the Commission to request that such information not be made routinely available for public inspection.  The standards of this section are governed by the Freedom 
of Information Act ("FOIA"), and the requesting party must show "by a preponderance of the evidence" that non-disclosure is consistent with the pertinent provisions of FOIA.

	3.	Exemption 4 of the FOIA permits the Commission, in its discretion, to withhold from disclosure any documents containing either (1) trade secrets or (2) information which is (a) commercial or financial, and (b) obtained from a person, and (c) privileged or confidential.  Commercial or financial information is privileged or confidential if either (1) disclosure of the information is likely to impair the government's ability to obtain necessary information in the future or (2) disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was obtained.

	4.	The Commission has said, "the entity or person seeking confidentiality must show that substantial competitive injury is likely to result from disclosure.  While an elaborate economic analysis need not be made to establish the likelihood of substantial competitive injury,  conclusory and generalized allegations  cannot support nondisclosure."  Furthermore, "casual" requests for confidentiality will not be honored.

III.	Facts

	5.	TKR owns and operates cable television systems serving Mahwah, New Jersey, and Sloatsburg and Tuxedo, New York.  In response to complaints regarding the cable programming service ("CPS") rates charged in those communities, TKR filed an FCC Form 393 in each of the three communities pursuant to Section 76.956 of the Commission's rules.  TKR's submissions were accompanied by requests, citing Section 0.459 of the Commission's rules, that none of the information contained in the rate justifications be made routinely available for public inspection.  TKR claimed that the material contained in the Form 393 responses and attachments was confidential proprietary information, consisting of the details of its revenues, expenses, profits and losses.  Therefore, TKR asserted that the Form 393 materials should be withheld from public inspection.

IV.	The Bureau's Order

	6.	In its TKR Order, the Cable Services Bureau noted that TKR did not claim that the information contained in the Forms 393 and attachments were trade secrets.  As a result, TKR was required to show that the information was (1) commercial or financial, and (2) obtained from a person, and (3) privileged or confidential.  The Bureau concluded that the government's ability to obtain such information in the future would not be impeded by its disclosure since the 1992 Cable Act specifically requires that cable operators file such information.  Therefore, the pivotal question was whether disclosure of the information was likely to cause substantial harm to TKR's competitive position.

	7.	Although TKR claimed that its Form 393 submissions contained financial information similar to that routinely afforded protection under Section 0.457 of our rules, the Bureau found that TKR made no allegations concerning the likelihood of competitive harm which would result if the materials were made available for public inspection.  As a result, the Bureau found that TKR had failed to demonstrate any likelihood of competitive injury from disclosure of the rate justification materials.  In addition, the Bureau noted that TKR's subscribers have a vital interest in the conduct and outcome of cable rate proceedings involving TKR.  The Bureau found that this was a compelling public interest supporting disclosure.  For all of these reasons, the Bureau denied TKR's requests for confidentiality of the Form 393 materials.

V.	TKR's Application for Review

	8.	In its Application, TKR challenges the Bureau's conclusion that TKR failed to make a showing sufficient to warrant withholding the materials contained in the Form 393 responses from public inspection.  As it noted in its original requests for confidentiality, TKR states that the Form 393 materials consisted of details of its revenues, expenses, profits and losses.  TKR states that it will soon be subject to competition from wireless cable, direct broadcast satellite and video dial-tone service providers.  TKR also contends that the information at issue is of a type similar to materials the Commission has withheld from public inspection in other decisions.  Specifically, TKR claims that the information is nearly identical to the types of information automatically withheld by the Commission pursuant to Section 0.457(d) of the rules.  Therefore, TKR concludes that the information contained in its Form 393 responses is privileged or confidential commercial material which should not be open to routine public inspection.  TKR requests that the Bureau's order be reversed and the requests for confidentiality be granted.

VI.	Discussion	

	9.	According to Exemption 4 of FOIA and the case law interpreting the exemption, the pivotal question in this case is whether disclosure of the information contained in the Forms 393 and attachments is likely to cause substantial harm to TKR's competitive position.  In its initial requests for confidentiality, TKR did not even allege that its competitive position would be harmed or provide any showing as to how its potential competitors could utilize the information to TKR's disadvantage.  It simply stated in a conclusory manner that the materials at issue were proprietary information.  In its Application for Review, TKR has provided little new information relating to the likelihood of competitive harm which would result if the materials were made available for public inspection.  Although TKR contends that it will face actual competition from emerging satellite, wireless, and telephone video dial-tone industries, it has failed to specifically demonstrate how competitive harm would occur if the information at issue here was made publicly available.  TKR merely states in a categorical fashion that "there are present and potential competitors to whom such financial information would be valuable" without providing any substantive details to support this assertion.  TKR does not detail what specific information contained in the FCC Form 393 could be used by competitors to harm TKR nor does TKR explain, with specific examples, how such information could be used to cause substantial competitive harm to the operator.  In its confidentiality request, TKR expresses a concern as to the disclosure of its "profit margins".  However, it is not evident how the forms in question, which relate to the "benchmark" rather than the "cost of service" rate regulation process, disclose such information either as to the company as a whole or in the specific location involved.  TKR has not indicated how such information is revealed by the data submitted.  TKR, not the Commission, bears the burden of demonstrating the extent of the harm which it asserts is likely to result from public disclosure of the materials and precisely how that harm would occur.  

	10.	TKR's argument that its Form 393 submissions contained financial information similar to that routinely afforded protection by the Commission under Section 0.457 of our rules does not help TKR satisfy the requirement of demonstrating a likelihood of competitive harm.  TKR merely concludes that since the information is similar to information routinely withheld by the Commission, it too should be withheld.  However, because the FCC Form 393 is not specifically listed in Section 0.457, TKR must make a request for confidentiality under Section 0.459 which requires the operator to demonstrate by a preponderance of the evidence the likelihood of competitive harm.  That the information TKR seeks to have protected from public disclosure is allegedly similar to information not routinely available for public inspection does not relieve TKR of its burden under Section 0.459.  The fact remains that TKR has not provided enough information about competitive harm for the Commission to determine whether the rate justification material is privileged or confidential, as required by the applicable provisions of FOIA.  

	11.	Therefore, we affirm the Bureau's finding that TKR failed to make a showing of the likelihood of competitive injury which would result from disclosure of the rate justification materials.  Furthermore, we concur with the Bureau's finding that there is a compelling public interest supporting disclosure of rate justification information: cable rate cases should be conducted in the open.  We agree that "subscribers have a vital interest in the conduct and outcome of cable rate proceedings which are based upon these materials."  For these reasons, we affirm the Bureau's denial of TKR's requests for confidentiality of its rate justification materials and deny its Application for Review.

VII.	Ordering Clause

	12.	Accordingly, IT IS ORDERED that TKR's Application for Review IS DENIED pursuant to Section 1.115(g) of the Commission's rules.

					FEDERAL COMMUNICATIONS COMMISSION

					William F. Caton
					Acting Secretary