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PA Bulletin, Doc. No. 04-1379




[34 Pa.B. 3996]

Public Meeting held
July 8, 2004

Commissioners Present:  Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland

Petition of SBC Telecom, Inc. for Issuance of a Protective Order Regarding Contents of Its 2003 Annual Report; Doc. No. P-00042104


By the Commission:

   Before the Commission for consideration and disposition is a Petition for a Protective Order filed under 52 Pa. Code § 5.423 by applicant, SBC Telecom, Inc. (SBC), on April 30, 2004, regarding certain parts of SBC's 2003 Class C Annual Report. In its petition, SBC requests ''the issuance of a protective order restricting the disclosure of certain schedules which are deemed competitive, proprietary and confidential'' that are incorporated into SBC's 2003 Class C Annual Report. In this Order, we grant in part and deny in part SBC's request for a protective order.

I.  Background

   The Commission has established protection for proprietary information through 52 Pa. Code § 5.362(a)(7), which provides for the issuance of protective orders upon motion by a participant when good cause has been shown to prohibit disclosure of trade secrets or other confidential commercial information. Protective orders to protect or limit from disclosure proprietary information are issued under 52 Pa. Code § 5.423. This section provides, in pertinent part, as follows:

A protective order to limit the disclosure of a trade secret or other confidential information on the public record shall be issued only when a participant demonstrates that the potential harm to the participant of providing the information would be substantial and that the harm to the participant if the information is disclosed without restriction outweighs the public's interest in free and open access to the administrative hearing process.

   52 Pa. Code § 5.423(a). The section then goes on to spell out relevant factors that should be considered in determining whether a protective order to limit the availability of proprietary information should be issued. These factors include:  (1) the extent to which disclosure would create unfair economic or competitive harm; (2) the extent to which the information is known by others and used in similar activities; (3) the value of the information to the participant versus the participant's competitors; (4) the degree of difficulty and cost of developing the information; and (5) other statutes or regulations dealing with disclosure of the information.

   Generally, whenever a public utility claims that information in a tariff filing, annual report or quar- terly financial report is confidential, the Commission's internal rules require Commission staff to honor the claim by not placing the information in the public folder document. Under our rules, a petition for protective or- der generally does not need to be filed until or unless a third party requests access to the proprietary information and states that the proprietary designation is not warranted. When a proprietary designation is challenged, the party seeking the proprietary protection has 14 days to file the petition or its proprietary information claim will deemed to have been waived. 52 Pa.  Code § 5.423(b)(4).

   For telecommunications utilities filing annual reports, however, this general rule was recently changed because of recommendations made to the Commission in the Final Report of the Collaborative Working Group created by Commission order dated September 12, 2000, at M-00001374. In this Final Report, dated March 15, 2001, and filed at that docket, the Collaborative recommended that certain schedules in the annual reports should be treated in their entirety as proprietary, that another group of schedules should be treated as containing both proprietary and public information, and that other schedules should be treated in their entirely as public information. There are three different annual reports for telecommunications carriers, one each for incumbent local exchange carriers subject to alternative form of regulation (Class A Annual Report), incumbent local exchange carriers subject to rate base/rate of return regulation (Class B Annual Report) and competitive local exchange carriers (Class C Annual Report).

   To facilitate the administration of this process by Commission staff, the Collaborative further recommended that if a telecommunication utility's proprietary designation is limited to the schedules, or parts thereof, that were pre-determined to be proprietary in nature, then the same general procedure already in place at the Commission should be followed, that is, the reporting carrier may so designate without filing a petition for protective order and would not need to until a third party challenged the designation. The Collaborative also recommended, however, that if the reporting carrier attempts to designate as proprietary any schedules predetermined to be public information, then the carrier must immediately file a petition for protective order with its annual report or waive its proprietary designation. This new process for annual reports filed by telecommunications utilities was later approved by the Commission for implementation when we adopted all the recommendations of the Collaborative contained in its Final Report. Rulemaking Re:  Financial Reporting Requirements For All Telecom-munications Carriers, Doc. No. L-00010153, at 2-3 (Proposed Rulemaking Order entered June 28, 2001).1

   SBC filed its petition on April 30, 2004, under this new process at the same time it filed its 2003 Annual Report requesting proprietary designation of certain schedules appearing at pages 27, 41 and 43-44 of its report. The Secretary's Bureau thereafter directed SBC to serve copies of its instant petition on the Office of Consumer Advocate, the Office of Small Business Advocate and the Office of Trial Staff, which SBC did on June 3, 2004. No answers being filed by the deadline of June 28, 2004, this matter is now ripe for disposition. See 52 Pa. Code §§ 1.56(a) and (b) and 5.61(a).

II.  Discussion

   In this matter, SBC seeks a protective order to prevent public disclosure of its ''Accounts Payable to Affiliated Companies,'' ''Territory Served'' and ''Customers Served by County'' schedules. We note preliminarily that pages 43-44 of the 2003 Class C Annual Report referred to in SBC's petition for the ''Customers Served by County'' schedule is actually an internal document for Commission staff and not intended to be attached to the report. Moreover, pages 43-44 provide the same information that is included in the ''Territory Served'' schedule at page 41 that SBC requests proprietary treatment as well. Pages 43-44, therefore, will be removed from SBC's Annual Report for filing purposes, and we will address SBC's concerns relating to this information when we address the ''Territory Served'' schedule.

   To justify its request to grant proprietary treatment of the ''Accounts Payable to Affiliated Companies'' schedule at page 27 of the 2003 Class C Annual Report, SBC simply states that this information is of a ''competitive, proprietary and confidential nature'' and, therefore, its petition should be granted. The information provided in this schedule by SBC is an aggregate number with no further breakdown as to how or what it was used for within the company. SBC fails to provide any further justification or to otherwise elaborate how making this information publicly available would provide competitive harm to it. Other than its summary language, SBC has not provided any proof which would show potential harm sufficient to warrant a protective order.

   The ''Territory Served'' schedule at page 41 of the 2003 Class C Annual Report provides a somewhat different problem. This schedule was added as a filing requirement after the Collaborative engaged in its effort to streamline the filing requirements for annual reports and to designate which schedules should receive proprietary versus public treatment. Specifically, this schedule was added by the Commission to support the Pennsylvania Emergency Management Agency's (PEMA) homeland security responsibilities because PEMA believes it is important to know the territories each public utility serves in the State. SBC makes the same general claim that this information is competitive in nature and should be treated as proprietary.

   This schedule actually provides two different types of information: the counties served by the carrier and the number of actual customers in each county served. As for identifying the counties served, this was the specific information requested by PEMA and the information is routinely contained in the tariffs filed by carriers, including SBC. We, therefore, do not believe granting SBC's request for a protective order to protect disclosure of the counties served by SBC is justified, especially where SBC has failed to provide any proof that would show potential harm sufficient to warrant an order. The number of customers served in each county, however, was not specifically requested by PEMA, and we can see where providing this information publicly could be unfairly used by SBC's competitors to SBC's disadvantage; Therefore,

It Is Ordered That:

   1.  The Petition for Protective Order filed by SBC is granted with respect to all the information identifying the actual number of customers served by county contained in the schedule appearing at page 41 of SBC's 2003 Class C Annual Report but is denied with respect to all the information identifying the territory served by counties in the same schedule for the reasons discussed in the body of this Order.

   2.  The Petition for Protective Order is denied with respect to all the information contained in the ''Accounts Payable to Affiliated Companies'' schedule appearing at page 27 of SBC's 2003 Class C Annual Report for the reasons discussed in the body of this Order.

   3.  The Petition for Protective Order requesting proprietary treatment of all information appearing at pages 43-44 of the 2003 Class C Annual Report is deemed moot for the reasons discussed in the body of this Order.

   4.  SBC is directed to file revised public and proprietary versions of its 2003 Class C Annual Report within 30 days of entry of this Order, incorporating the changes identified in Ordering Paragraphs 1 and 2 and excluding pages 43 and 44 for the reasons discussed in the body of this Order.

   5.  The proprietary information designated in the ''Territory Served'' schedule at page 41 of the Class C Annual Report will be made available, consistent with the process approved by Commission Order entered June 28, 2001, at L-00010153, to the Office of Trial Staff, the Office of Consumer Advocate, the Office of Small Business Advocate or any State-level executive or legislative branch agency that may make a request to the Commission to review proprietary information if that executive or legislative branch agency confirms that the information is for official governmental use only, and that each of the agencies receiving this Annual Report agrees not to disclose publicly the proprietary information without permission from SBC or by Commission order and to disclose the proprietary information only to employees who have a need to know. As per the procedures approved in our earlier Order at L-00010153, a confidentially agreement must be executed by each requesting party to have access to any information designated as proprietary.



1 Our final regulations in this proceeding were approved by order entered December 4, 2001, and became effective upon publication in the Pennsylvania Bulletin on April 6, 2002, at 32 Pa.B. 1723. The Final Rulemaking Order, however, did not reference the issue of proprietary treatment of annual reports as this issue had been fully resolved in the Proposed Rulemaking Order.

[Pa.B. Doc. No. 04-1379. Filed for public inspection July 23, 2004, 9:00 a.m.]

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