******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Marcus Cable Associates, L.P. ) Complainant ) )P.A. No. 96-002 v. ) ) Texas Utilities Electric Company) Respondent ) DECLARATORY RULING AND ORDER Adopted: July 18, 1997Released: July 21, 1997 By the Chief, Cable Services Bureau: I. INTRODUCTION 1.In this Order, we address a complaint and request for declaratory ruling ("Complaint") brought under Section 224 of the Communications Act, as amended, by Marcus Cable Associates, L.P. ("Marcus") against Texas Utilities Electric Company ("TU Electric"). Section 224 empowers the Commission to adjudicate disputes between utilities and cable operators concerning allegedly unjust and unreasonable pole attachment rates, terms, and conditions. Marcus filed its Complaint on July 24, 1996. TU Electric filed a response ("Response") to the Complaint on August 22, 1996. Marcus filed a reply ("Reply") on September 10, 1996. 2.Marcus asks the Commission to declare unreasonable and terminate certain provisions in, and actions related to, a pole attachment agreement ("Agreement") between Marcus and TU Electric. Marcus requests relief from an Agreement requirement that Marcus give TU Electric written notice of its provision of nonvideo services and secure from each of its nonvideo service customers a release from liability in favor of TU Electric and Marcus. Marcus also seeks relief from TU Electric's alleged attempt to collect information about, and part of the revenues from, Marcus' nonvideo customers and services. In addition, Marcus asks for actual and punitive damages in an unspecified amount. TU Electric responds that the complaint is an attempt to camouflage that Marcus has breached a provision in the Agreement prohibiting Marcus from subleasing its pole attachment rights under the Agreement. TU Electric asserts that the Commission does not have jurisdiction to resolve a breach of contract dispute and asks that the complaint be denied or dismissed. 3.We also consider in this order a request by Marcus for confidential treatment of two of Marcus' contracts with its nonvideo customers, which Marcus filed at the request of the Commission staff. TU Electric opposes Marcus' request for confidential treatment. 4. For reasons discussed below, we find that we have jurisdiction under Section 224 to resolve the Complaint. We also find that Marcus' request for relief from unreasonable rates, terms, and conditions of the Agreement is justified. We order TU Electric to terminate the rates, terms, and conditions at issue. We grant Marcus' request for a declaratory ruling and deny its request for actual and punitive damages. We also grant Marcus' request for confidential treatment. II. BACKGROUND 5.TU Electric is a utility engaged in the generation, purchase, transmission, distribution, and sale of electric energy in Texas. TU Electric is affiliated with Texas Utilities Communications Inc., which has a 20 percent interest in each of three limited partnerships, the general partner of which is PrimeCo Personal Communications, L.P. ("PrimeCo"). The limited partnerships are involved in the provision of various telecommunications services within Texas, for which they are using TU Electric's private easements and rights-of-way. On November 1, 1995, Marcus, a franchised cable operator, and TU Electric entered into a new "CATV Pole Lease Agreement" (the above-referenced Agreement). According to TU Electric, the Agreement represented its standard pole attachment agreement. Pursuant to this Agreement, TU Electric allows Marcus "to maintain its existing Equipment, if any, on Poles solely for the purpose of providing Service in the Franchised Areas and to attach additional Equipment to Poles in the future solely for the purpose of providing Service in the Franchised Areas." The Agreement defines "Service" as "any transmission service" within the defined franchised areas. The transmission services offered by Marcus include video programming services as well as nonvideo services. Marcus' primary nonvideo service offering is fiber optic conductor capacity, which Marcus provides over the excess capacity of its cable system, on mixed-use, commonly sheathed fiber optic and coaxial conductors. 6.Marcus states that it executed the Agreement under protest because TU Electric had added a new section, Section 13.1A, that had not been in the parties' prior agreements. Pursuant to Section 13.1A, Marcus is required to indicate on a form entitled "Data Transmission Declaration Form" whether or not it is transmitting "data other than a TV signal through its facilities attached to TU Electric poles." A positive response requires Marcus to obtain a release from each of its nonvideo customers indemnifying both Marcus and TU Electric against claims arising out of Marcus' or TU Electric's "negligence, strict liability or other fault of any nature." Section 13.1A also requires Marcus to design the release so that it reads, in capital letters, that the nonvideo services being provided by Marcus "may not be completely private and are of such a nature that they may be interrupted, lost or limited for many reasons . . . ." 7. By letter, dated May 20, 1996, TU Electric asked Marcus to "confirm that all overlashed cable, situated on CATV cable which Marcus Cable maintains and operates under the terms of the [Agreement], is owned and exclusively used by Marcus Cable." In a telephone conversation with TU Electric on June 3, 1996, a Marcus representative confirmed that "while Marcus owns all such overlashed cable, such cable is nevertheless being 'used' at least in part, by American Communications Services, Inc. ("ACSI") and/or others." By letter, dated June 18, 1996, TU Electric requested a meeting with Marcus to "clarify the nature and extent of any third party usage of Marcus' cable and other equipment, such as is maintained under the terms of [the] Agreement." The parties met on July 18, 1996. At that meeting, according to Marcus, "TU Electric demanded to know where, and to whom, Marcus was providing nonvideo telecommunications services" and also demanded "a portion of revenues that Marcus derives from provision of non-video telecommunications services." In response to these demands, Marcus filed its Complaint. III. DISCUSSION 8. The Complaint presents four questions for our consideration: (1) does Section 224 provide the Commission with jurisdiction to review the pole attachment agreement complained of in this proceeding; and, if so, (2) are TU Electric's requirements for release from liability by Marcus' customers and for disclosure of nonvideo transmissions over Marcus' facilities reasonable under Section 224; (3) is TU Electric's effort to collect information about, and money for, third party use of Marcus' cables permitted under Section 224; and (4) is Marcus entitled to actual and punitive damages because of TU Electric's actions? We answer the first question in the affirmative and the remaining three in the negative. We also grant Marcus' request for declaratory ruling. A. Jurisdiction 9.TU Electric urges the Commission to dismiss or deny Marcus' complaint as a breach of contract matter outside of the Commission's jurisdiction. According to TU Electric, if Marcus has allowed a third party to overlash its cable onto a Marcus cable, Marcus has violated the subleasing prohibition in Section 16.1 of the Agreement. Marcus denies that it has violated the sublease prohibition. 10.In the absence of state regulation, Section 224 directs the Commission to "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable . . . ." Marcus alleges, and TU Electric does not dispute, that "neither the state of Texas, nor any of its political subdivisions, agencies or instrumentalities, regulates the rates, terms or conditions of pole attachments in the manner required by Section 224." The authority conferred by Section 224, however, does not supplant that of the local jurisdiction when the issue between the parties is a breach of contract not involving unjust or unreasonable contractual rates, terms, or conditions. Consequently, the threshold question before us is whether the issues raised in the Complaint concern a breach of contract not involving unjust and unreasonable contractual rates, terms and conditions. 11.Section 16.1 of the Agreement provides that Marcus "shall not, without prior written consent of TU Electric (a) transfer, assign, delegate or sublet any of its rights or obligations under this Agreement . . . ." On December 18, 1996, Marcus responded to a December 2, 1996 request for information by the Commission, in which Marcus stated that it is not subleasing its pole attachment rights and no party is overlashing its facilities onto Marcus' facilities. Marcus stated that it owns all of the facilities that it attaches to TU Electric's poles, that Marcus "leases some capacity on its cable television system to certain third parties," and that its "lease of such capacity is functionally identical to the lease of certain video channel capacity to unaffiliated third parties." 12.In its responsive pleadings, TU Electric has provided no evidence that Marcus has assigned its rights under the Agreement to attach third parties' equipment to TU Electric's poles. Because the record shows that Marcus is leasing capacity within its own facilities for transmission services, rather than allowing a third party to overlash its wire onto Marcus' facilities, the issues raised in the Complaint are not covered by the sublease prohibition of the Agreement. The issues raised do, however, involve alleged unjust and unreasonable contractual rates, terms and conditions. We find that we have jurisdiction, pursuant to Section 224, to regulate the rates, terms and conditions in Marcus' pole attachment agreement in accordance with the Commission's decisions in Heritage Cablevision Assocs. of Dallas, L.P. v. Texas Utils. Elec. Co. ("Heritage) and Selkirk Communications, Inc. v. Florida Power & Light Co. ("Selkirk"). 13.In Heritage, a pole attachment complaint proceeding, the Commission adopted an expansive definition of "cable services" for purposes of defining the scope of protection afforded cable system operators attaching their facilities to utility poles under Section 224 of the Act, as amended in 1978. In that case, Tele-Communications, Inc. ("TCI") alleged that TU Electric unjustly and unreasonably imposed a separate charge for the attachment of facilities employed to provide nonvideo broadband communications services, for example, data transmission services, in addition to the regulated rate TU Electric had assessed TCI and its predecessors to attach equipment used to provide more conventional cable television services to its subscribers. 14.The Commission, "for purposes of clarity" defined the terms "conventional" or "traditional" cable services as used in Heritage, "to refer to the delivery of television broadcast signals, cablecast or access programming, or other video programming by cable television systems to subscribers. Excluded from this category are nonvideo and other services not associated with the provision or selection of conventional or traditional cable services, such as electronic mail delivery, facsimile transmissions and other data transmission services." The Commission rejected TU Electric's challenge to the Commission's jurisdiction to resolve the dispute under Section 224, on the grounds that Congress had not intended Section 224 "to reach only those pole attachments supporting equipment employed exclusively (italics original) to distribute television broadcast signals and other video programming." 15.On appeal, the Court of Appeals for the District of Columbia Circuit affirmed the Commission's decision in Texas Utilities Electric Company v. FCC ("TUEC v. FCC"). The court held that although Section 224 was ambiguous as to whether the Commission's regulatory authority extended to cables used to transmit nonvideo communications, the Commission had reasonably interpreted the Act to conclude that its authority extended to cables transmitting nonvideo communications. The court also noted that the Commission's interpretation was limited by the facts of the case before it: a cable operator seeking Commission-regulated rates for all pole attachments within its system; where the cable operator is not maintaining separate video and data networks, but rather is commingling data and video over a single set of transmission cables. In Selkirk, the Commission, citing Heritage, held that it has jurisdiction under Section 224 to regulate the rates charged for pole attachments that support equipment employed to provide nonvideo services in addition to video and other traditional cable television services. In the Telecommunications Act of 1996 ("1996 Act"), Congress codified the Commission's holdings in Heritage and Selkirk by amending Section 224. Section 224 now requires the Commission to apply the same formula currently used to determine a reasonable rate for any pole attachment used by a cable system solely to provide cable service to "the rate for any pole attachment used by a cable system or any telecommunications carrier . . . to provide any telecommunications service." 16.We find that the dispute as to the rates, terms and conditions of the Agreement is within the scope of both Heritage and Selkirk. Marcus has requested that we review the rates, terms and conditions of a pole attachment agreement concerning pole attachments that support equipment and cables used to distribute both traditional cable services and data transmissions. Because the Commission has already found that it has jurisdiction to review the rates, terms and conditions of these types of pole attachment agreements, we will review the rates, terms and conditions of the Agreement at issue here. B. Section 13.1A Terms and Conditions 17. We next consider Marcus' request for relief from the nonvideo disclosure and the nonvideo customer release and indemnification requirements of Section 13.1A of the Agreement ("Section 13.1A Requirements"). Under Section 13.1A, Marcus must furnish TU Electric with a completed form (Attachment E of the Agreement) indicating whether or not Marcus transmits nonvideo data through facilities attached to TU Electric's poles. By checking the "yes" box, Marcus triggers the Section 13.1A Requirements and, consequently, under the Agreement it must secure from each of its nonvideo customers a signed indemnification and release, using the form appended to the Agreement as Attachment D. Attachment D is one-and-a-half pages long, approximately two-thirds of which is printed entirely in an upper case font noticeably larger than the mixed-case type face used for the remainder of the Agreement. The upper case portion of the form warns signatories that Marcus' nonvideo services may not be completely private and that they may be interrupted or lost for a variety of reasons other than negligence, "including, but not limited to, dialing errors, power failures, malfunctioning of wireline services or equipment, interruptions in company interconnections to wireline exchange carriers and interexchange carriers, and electronic or atmospheric interference." Attachment D then continues by requiring Marcus' customers to indemnify and release TU Electric and Marcus from almost every possible circumstance of liability. 18. Marcus alleges that the real purpose behind Section 13.1A is to enable TU Electric to gain competitively sensitive information, destroy Marcus' efforts to deploy fiber optic communications facilities and market nonvideo services, and destroy or interfere with Marcus' nonvideo customer relationships. Marcus explains that providing TU Electric with the executed copies of Attachment D is tantamount to providing it with Marcus' entire nonvideo customer list, complete with the customers' names, addresses, and locations, as well as the locations where Marcus possesses excesses capacity. Marcus argues that other provisions in the Agreement that require Marcus to indemnify TU Electric, provide it with insurance coverage of $10 million, and post a bond of $20 per pole, are more than sufficient to shield TU Electric from liability. 19. TU Electric dismisses Marcus' concerns about the disclosure of nonvideo service information by explaining that TU Electric does not need to obtain information from Attachments D and E in order to be able "to determine who else is offering and advertising non-video service," and that the information is not sensitive. TU Electric justifies its requirement for a release and indemnification from Marcus' nonvideo customers by claiming that TU Electric bears a higher risk of liability with data transmission services than with traditional video services. TU Electric also states that it has "recently amended its standard form of pole attachment contract to reduce the insurance requirements imposed upon cable companies." 20.We disagree with TU Electric's assertion that the indemnification found in the Agreement is inadequate to protect its interests. A review of the Agreement reveals that it provides extensive indemnification of TU Electric by Marcus including, but not limited to, claims arising out of Marcus' breach of the agreement or arising out of the "attachment, maintenance, replacement, relocation, repair, modification, removal, use or operation of, or in any way arising out of . . .[e]quipment . . . installed for the purpose of supporting [e]quipment on or in the vicinity of the poles." Marcus must also indemnify TU Electric against any claims "arising out of, relating to, caused by or incident to any Texas Utility's Party sole or concurrent (a) negligence; (b) strict liability in tort; (c) breach of warranty, express or implied; or (d) other fault of any nature." In addition, Marcus must furnish a bond or other security "of not less than the greater of $10,000 or $20.00 per pole" which "is subject to increase at any time and from time to time to such amount as TU Electric may reasonably determine to be necessary." Because of the all-encompassing nature of the Agreement's indemnifications in favor of TU Electric, we find that TU Electric has failed to show that the general insurance and bond requirements of the Agreement are inadequate to protect its interests. 21.TU Electric also claims that the 1996 amendments to Section 224 "make it absolutely essential for a utility to know whether a pole is being used by a cable system solely for video or for other purposes, because different rates will apply." This argument is based upon Section 224(d), as amended by the 1996 Act and Section 224(e), which was added by the 1996 Act. Under the amendments to Section 224(d), the Commission is required to prescribe regulations for pole attachment rates charged by a utility to a cable system providing other than solely traditional cable services, as well as rates charged by a utility to a telecommunications carrier not party to an existing pole attachment agreement. Section 224(e)(1) requires the Commission to prescribe new regulations by February 8, 1998. The new regulations, however, will not become effective until February 8, 2001. 22.TU Electric is correct in its assertion that the amended Section 224 requires the Commission to prescribe regulations, in the future, to govern the "charges for pole attachments used by telecommunications carriers to provide telecommunications services." TU Electric may also be correct in its assertion that, when the regulations prescribed by the Commission under Section 224 become effective, a utility pole owner will need to know "whether a pole is being used by a cable system solely for video or for other purposes." Because these regulations have yet to be written, however, it would mere speculation for us to formulate what informational requirements, if any, may be incorporated into the regulations. Under our existing regulations, Marcus is under no obligation to TU Electric to disclose any information regarding the lease of its capacity to third parties. On a forward-looking basis, Marcus may need only disclose that it is providing telecommunications services. Therefore, because Marcus has already disclosed to TU Electric that it offers telecommunications services, TU Electric's reliance on the amended Section 224 to compel additional information from Marcus is misplaced. 23. TU Electric's own involvement in the provision of telecommunications services also makes suspect the inclusion of the Section 13.1A Requirements in the Agreement. TU Electric acknowledges that it is affiliated with TU Communications and admits that TU Communications' partnerships with PrimeCo are engaged in the provision of telecommunications services. TU Electric does not deny, or admit, that TU Communications and PrimeCo will compete directly with Marcus in the provision of such services. We find that the likelihood of direct competition between Marcus and TU Communications magnifies the unreasonableness of the Section 13.1A Requirements. The Section 13.1A Requirements' exaggerated warning to nonvideo customers, excessive indemnification required from, and, specific identification of, nonvideo customers, and their location on Marcus's system, seem to exist only to interfere with, if not to destroy, Marcus' relationship with those customers. Consequently, the Section 13.1A Requirements appear to be an attempt by TU Electric to interfere with the provision of telecommunications services offered by a potential, or actual, competitor. We find, therefore, that the anti-competitive motive behind the Section 13.1A Requirements only adds to their unreasonableness. 24.Consequently, we find that TU Electric has failed to make a sufficient showing that there is a reasonable basis for the Section 13.1A Requirements in the Agreement. TU Electric has failed to show that the general insurance and bond requirements of the Agreement are inadequate to protect its interests. TU Electric has also failed to show that Section 224, as amended, requires the disclosure of the names of Marcus' nonvideo transmission customers. Lacking such showings, we find that the Section 13.1A Requirements are unjust and unreasonable under Section 224. Accordingly, we order TU Electric to terminate both the nonvideo service notification and the customer indemnification and release requirements of Section 13.1A. C. Request for Third Party Information and Additional Payment 25.We next turn to the issue raised by Marcus in its complaint concerning TU Electric's July 18, 1996 requests for information about Marcus' third party endeavors and for payment. TU Electric calls the requested payment "restitution" for Marcus' breach of the Agreement. Marcus argues that TU Electric's demand for a portion of Marcus' revenues from its nonvideo services is an excessive attachment rate and notes that the Commission's current pole attachment rate formula applies to both video and nonvideo communications. TU Electric disputes Marcus' interpretation of the charge, stating that, in TUEC v. FCC, the U.S. Court of Appeals for the District of Columbia Circuit "emphasized that a cable system could not use rights available to it for the benefit of the services provided by separate entities, even if these entities were acquired by the cable system." We find that TU Electric's request for restitution is an unreasonable rate. 26.We also disagree with TU Electric's characterization of the TUEC v. FCC opinion. In both Heritage and Selkirk, the Commission held that a utility cannot increase its pole attachment charges simply because nontraditional cable services are being provided. In TUEC v. FCC, the court upheld the Commission's finding that "a cable operator may seek Commission-regulated rates for all pole attachments within its system." The court determined that Section 224 "is aimed at the rates charged for pole attachments, not the content of the transmissions carried over the attachments." The court also noted that TU Electric had attempted to charge the cable operator, in TUEC v. FCC, a surcharge for the nonvideo communications carried over fiber optic cable attached to the coaxial cable, but not for the data transmission services that it provided over coaxial cable to local schools, fire and police departments, and offered no basis for the disparate treatment. The record before us shows that Marcus is leasing capacity to third parties within its facilities; such third parties may be nonvideo as well as video providers. According to Marcus, however, TU Electric requests only a portion of revenues derived from the provision of nonvideo telecommunications services. There is no allegation that TU Electric requested a portion of revenues derived from the provision of video services. For pole attachment purposes under the existing rules, we find no reason to differentiate between the transmissions being sent through Marcus' facilities, whether they are data transmissions or video transmissions such as leased access. Because the facts before us show that Marcus has done nothing more than provide both nontraditional and traditional cable services as part of its transmission services, we find TU Electric's request for payment based on Marcus' revenues from nonvideo services to be unjust and unreasonable under Section 224. 27. We also find TU Electric's attempt to obtain information about Marcus' third party endeavors to be unjust and unreasonable. Marcus states that TU Electric asked Marcus to "disclose the parties to whom, and location on Marcus' network at which, Marcus provides non-video services." According to TU Electric, it sought information about "the nature and extent of any subleasing to third parties of pole attachments . . . to determine the extent of the breach and as a means toward bringing Marcus in compliance with its agreement." We have not found subleasing that would be prohibited by the Agreement. Consequently, we find that TU Electric's request for additional information is motivated by the same anti- competitive interests that motivated TU Electric to include the Section 13.1A Requirements in the Agreement. Beyond its allegation regarding the possibility of subleases, TU Electric has failed to provide a reasonable basis for requiring information about Marcus' provision of nonvideo services to third parties. Consequently, we find TU Electric's attempt to obtain information about such services to be an unjust and unreasonable term. D.Request for Declaratory Ruling 28.In its Complaint, Marcus requests that the Commission issue a declaratory ruling that (1) TU Electric's actions violate the legislative intent and public interest objectives of the 1996 Act; (2) terminates the provision requiring cable operators to secure the customer release set forth at Section 13.1A in all TU Electric pole attachment agreements; and (3) terminates the provision contained in Section 13.1A and Attachment E of all TU Electric pole attachment agreements requiring cable operators to disclose their provision of nonvideo services. Given the standardized nature of TU Electric's pole attachment agreements, we agree that declaratory relief is appropriate in this situation. Because of their anti- competitive effect, we find that these provisions are unreasonable terms and conditions in any TU Electric pole attachment agreement. Consequently, we will terminate, in all TU Electric pole attachment agreements, the provision requiring cable operators to secure the customer release set forth at Section 13.1A, as well as the provision contained in Section 13.1A and Attachment E requiring cable operators to disclose their provision of nonvideo services. E.Request for Actual and Punitive Damages 29.Also in its Complaint, Marcus asks the Commission to award actual and punitive damages because of TU Electric's actions. Other than the request itself, Marcus has not attempted to substantiate its claim for damages with any showing. We find that while Marcus is entitled to the other relief granted in this order, it has failed to show that it is entitled to damages, actual or punitive. Consequently, its request for such damages is denied. IV. REQUEST FOR CONFIDENTIALITY 30. In order to assess the nature of the relationship between Marcus and ASCI and any other third parties relevant to this case, the Commission, on December 2, 1996, asked Marcus for copies of all agreements Marcus has entered into for the sale or resale of capacity on facilities subject to the Agreement. On December 18, 1996, Marcus submitted partial copies of four agreements. Two are copies of excerpts from its franchise agreements with the cities of Fort Worth and Hurst, Texas. Marcus also submitted, under seal and request for confidentiality, copies of two partially redacted agreements with ACSI, and TCG Dallas ("TCG"), respectively. Citing Sections 0.457 and 0.459 of the Commission's Rules, Marcus asks that we refrain from making the submitted ACSI and TCG agreements available for public inspection. On December 31, 1996, TU Electric filed an opposition to Marcus' request for confidentiality. Marcus filed a reply on January 10, 1997. 31. Marcus supports its request for confidential treatment of its agreements with ACSI and TCG by explaining that the agreements contain "proprietary information which includes trade secrets and commercial information", as well as "highly sensitive information on the contract terms, network route maps, and other data." Marcus further describes the agreements as including "the specific facilities and routes over which Marcus' customers' communications will be carried, negotiated wholesale transport rates, technical and confidential transport standards [note omitted] and other information." According to Marcus, allowing anyone other than Bureau staff access to the agreements would cause Marcus and its customers "substantial and irreparable competitive injury." Marcus argues that requiring cable operators to disclose competitively sensitive materials to the very competitors who pose the greatest threat would undermine the Commission's confidentiality procedures. Marcus explains that the competitor that concerns it the most is TU Electric. 32. TU Electric opposes Marcus' request for confidentiality and asks the Commission not to permit Marcus' partial redaction of the agreements. TU Electric argues that Marcus has not met the burden of proof required by the Commission's rules. TU Electric also maintains that denying it access to the agreements would interfere with the due process requirements of the Constitution and the Administrative Procedure Act that TU Electric be afforded notice of the evidence against it and an opportunity to respond. Finally, TU Electric claims that access to the redacted information in the agreements may be necessary to determine the true nature of the relationships between Marcus and the third parties, for purposes both of the instant case and a separate, ongoing proceeding before the Commission involving TU Electric and TCG. 33. 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 the FOIA. 34. 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. The Court of Appeals for the District of Columbia later reaffirmed this test, but limited it to those cases involving information that persons were required to provide the government. 35. 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." Instead, the requesting must party demonstrate by a preponderance of the evidence the likelihood of competitive harm. Moreover, the Commission will not honor "casual" requests for confidentiality. 36. We find that Marcus has made a sufficient showing that its agreements with ACSI and TCG ("agreements") are exempt from mandatory public disclosure under Exemption 4 of the FOIA which protects "confidential" commercial and financial information. Because release of these agreements could cause substantial competitive harm to Marcus, we find that the agreements qualify as "confidential" information under the second prong of Exemption 4 which protects information if disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was obtained. The Commission has previously granted confidential treatment for tariff support data and rejected efforts of a competitor to secure access to such data in Southwestern Bell Telephone Company ("SWBT"). In that order, the Commission found that disclosure of confidential information "could substantially harm the competitive position of SWBT by assisting competitors in preparing marketing strategies to use indirect competition with SWBT." The Commission has also denied attempts to secure access to confidential commercial telecommunications lease agreements submitted to the Commission in Thomas N. Locke ("Locke"). In Locke, the Commission gave confidential treatment to building leases between U.S. West and various tenants, accepting U.S. West's contention that "release of the information could give prospective or current tenants or leasing competitors valuable insight into how U.S. West structures and prices its leasing operations." 37.We find that the rationale of the holdings in SWBT and Locke apply to the facts presently before us. Marcus is attempting to protect sensitive commercial information, i.e., the terms and conditions of its agreements with third parties, from public inspection, and specifically, from a competitor. We have previously commented on the competitive positions of TU Electric, and its affiliates, and Marcus in the provision of telecommunications services. We have found that TU Electric's attempts to obtain information about Marcus' nonvideo customers is anti-competitive behavior motivated by a desire to interfere with Marcus' relationships with its nonvideo customers. To release the terms and conditions of Marcus' agreements with its customers to the public, and to TU Electric in particular, would only disadvantage Marcus to a greater degree as it attempts to compete with TU Electric and its affiliates in the provision of telecommunications services. 38.Contrary to TU Electric's contentions, we also find that withholding access to the agreements from public disclosure does not interfere with the due process requirements of the Constitution and the Administrative Procedure Act. We have already found that TU Electric has no basis to require from Marcus its nonvideo customers' names, addresses, and specific locations on Marcus' cable system. Consequently, TU Electric has no obvious right to review the even more specific terms of the agreements between Marcus and two of its nonvideo customers. V. CONCLUSION 39. We find that Section 224 empowers the Commission to regulate the rates, terms, and conditions of the pole attachment agreement at issue, and that TU Electric's requirements for release from liability by Marcus' customers and disclosure of nonvideo transmissions over Marcus' facilities to be unreasonable under Section 224. Therefore, we terminate the unreasonable requirements of Section 13.1A and Attachments D and E of the pole attachment agreement to the extent indicated herein. We also grant Marcus' request for a declaratory ruling terminating those provisions in all TU Electric pole attachment agreement. We further find that under Section 224 TU Electric's requirement that Marcus provide information about, and payment for, third party use of Marcus' cables is unreasonable. We also find that Marcus has failed to make a sufficient showing to support its request for actual and punitive damages and, consequently, we deny Marcus' request. Moreover, we find that Marcus has made a sufficient showing to support its request to maintain the confidentiality of the copies of its agreements with third party customers that were submitted in response to a Commission request for additional information. Therefore, we grant Marcus' request for confidential treatment of the copies of the two third party agreements it submitted. VI. ORDERING CLAUSES 40. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Sections 1.2 and 1.1401 through 1.1416 of the Commission's rules, 47 C.F.R.  1.2 and 1.1401 through 1.1416, that the complaint of Marcus Cable Associates, L.P. against Texas Utilities Electric Company IS GRANTED to the extent indicated above. 41. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Section 1.1410 of the Commission's rules, 47 C.F.R.  1.1410, that the request by complainant for actual and punitive damages IS DENIED. 42. IT IS FURTHER ORDERED, pursuant to Sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, that the request for declaratory ruling by complainant IS GRANTED. 43. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Section 1.1410(a) of the Commission's rules, 47 C.F.R.  1.1410(a), that the requirement that complainant secure the customer release and indemnification set forth in Section 13.1A and Attachment D of the pole attachment agreement IS TERMINATED, effective upon release of this order. 44. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Section 1.1410(a) of the Commission's rules, 47 C.F.R.  1.1410(a), that the requirement that a cable operator secure the customer release and indemnification set forth in Section 13.1A and Attachment D of the pole attachment agreement IS TERMINATED in all TU Electric pole attachment agreements, effective upon release of this order. 45. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Section 1.1410(a) of the Commission's rules, 47 C.F.R.  1.1410(a), that the provision contained in Section 13.1A and Attachment E of the pole attachment agreement requiring complainant to disclose its provision of nonvideo services IS TERMINATED, effective upon release of this order. 46. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 224, and Section 1.1410(a) of the Commission's rules, 47 C.F.R.  1.1410(a), that the provision contained in Section 13.1A and Attachment E of the pole attachment agreement requiring a cable operator to disclose its provision of nonvideo services IS TERMINATED in all TU Electric pole attachment agreements, effective upon release of this order. 47. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 403 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 403, and Section 0.459 of the Commission's rules, 47 C.F.R.  0.459, that the request by complainant to withhold from public inspection the redacted copy of its agreement with American Communication Services, Inc., as submitted to the Commission during this proceeding, IS GRANTED. 48. IT IS FURTHER ORDERED, pursuant to Sections 4(i), 4(j), and 403 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 403, and Section 0.459 of the Commission's rules, 47 C.F.R.  0.459, that the request by complainant to withhold from public inspection the redacted copy of its agreement with TCG Dallas, as submitted to the Commission during this proceeding, IS GRANTED. 49. IT IS FURTHER ORDERED, pursuant to Section 1.3 of the Commission's rules, 47 C.F.R.  1.3, for the purposes of this proceeding, Sections 0.453(n) and 0.455(d), 47 C.F.R.   0.453(n), 0.455(d), as to the Marcus agreements with ASCI and TCG Dallas submitted to the Commission during this proceeding, ARE WAIVED. 50. As required by Section 0.459(d) of the Commission's rules, 47 C.F.R.  0.459(d), a copy of this ruling has been forwarded to the Commission's Office of General Counsel. 51. This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by Section 0.321 of the Commission's Rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau