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I.   2*3a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxx#-  12.` ` On April 28, 1995, SNET filed an application for authority pursuant to Section   214 of the Communications Act of 1934, as amended (Act), to construct, own, operate and   maintain a commercial video dialtone system within Connecticut (SNET Commercial"%0*0*0*p&"  Y-  Application).vv\ Yy- 0#Xw P7ZXP#ЍSNET has obtained Commission approval to conduct a video dialtone trial in West   Hartford, Connecticut. The Southern New England Telephone Company, 9 FCC Rcd 1019   (1993). SNET also has obtained Commission approval to expand its video dialtone trial to   ,additional areas in Connecticut. The Southern New England Telephone Company, 9 FCC Rcd   7715 (1994). Motions to revoke the expanded trial authorization are pending before the Commission.v As part of its application, SNET represented to the Commission that it would not   make decisions about bundling or tiering, or about how programming will be presented to  Y-consumers.\ Y -#Xw P7ZXP#эSNET Commercial Application at 9.  Y-  n3.` ` On June 9, 1995, NCTA, NECTA, Cox and Comcast Cable Communications,  Y-  Inc. (jointly), and TCI filed petitions to deny SNET's Commercial Application.g\ Y- #Xw P7ZXP#ЍThis Order addresses only the Joint Motion for Production. We do not herein consider   the substantive claims raised in the petitions to deny, except to the limited extent that they are relevant to the Joint Motion for Production.g In its Petition   to Deny, NECTA asserted that, "throughout SNET's history in the video dialtone business, it   thoroughly and fully engaged in proscribed cable operator functions involving the selection,   <packaging, bundling, presentation and pricing of programming offered to end users over its  Y1-  platform."u1: \ Y-#Xw P7ZXP#эNECTA Petition to Deny at 13.u In support, NECTA recounted a portion of the nonprotected record testimony from  Y -  the CDPUC proceeding.h \ Y-#Xw P7ZXP#эId. at 14.h That testimony refers to a contract between SNET and CCT that   governs CCT's provision of programming during SNET's video dialtone trials. The testimony   notes that the contract is subject to a protective order, and does not refer to specific language   in the contract. In response, SNET quoted portions of its contract with CCT to demonstrate that  Y -it had not been involved impermissibly in programming decisions. \ Y - #Xw P7ZXP#ЍOpposition of the Southern New England Telephone Company to Petitions to Deny (filed July 6, 1995) (SNET Opposition) at 67.  Y-  4.` ` As noted, the contract with CCT is subject to a protective order in the CDPUC   proceeding. NECTA participated in the CDPUC proceeding, and signed a protective order   promising not to disclose publicly the contents of SNET's contract with CCT. The other parties   that filed the Joint Motion for Production did not participate in the CDPUC proceeding, and apparently have not seen the CCT contract.  Y-  5.` ` On July 17, 1995, NECTA filed a Motion for Expedited Modification of   xProtective Order with the CDPUC. NECTA requested the CDPUC to modify the protective   order to enable NECTA to present to the FCC portions of the CCT contract and related   testimony in response to SNET's Opposition. The CDPUC denied the motion in a letter order"60*0*0*"  Y-  dated July 18, 1995, and instructed NECTA to request production from the FCC.Z Yy- ]#Xw P7[hXP#эJuly 18, 1995 Letter Order from Robert Murphy, Executive Secretary, Connecticut   jDepartment of Public Utility Control to James J. Valentino, Mintz, Levin, Cohen, Ferris, Glovsky and Popeo, P.C., Docket No. 950310, Motion #16.Z The CDPUC   noted that the FCC has authority and capability to require SNET to submit any data the FCC   deems necessary to render its decision. NECTA, NCTA, TCI and Cox (Petitioners) filed a Joint   Motion for Production on July 26, 1995. They assert that, absent production of SNET's contract   with CCT and related testimony presented in the CDPUC proceeding, they are unable to respond  Y-  hfully to SNET's statements.yK Y -#Xw P7[hXP#эJoint Motion for Production at 6.y On August 7, 1995, SNET filed an opposition to the Joint Motion for Production (Opposition to Joint Motion). The Petitioners filed a reply on August 10, 1995.  YH-Discussion and Conclusion  Y -  6.` ` The Petitioners assert that the Commission has authority pursuant to Section   211(b) of the Communications Act of 1934, as amended (Act), and section 63.51 of the  Y -  Commission's rules to require SNET to produce its contract with CCT.  Y-#Xw P7[hXP#э47 U.S.C. 211(b); 47 C.F.R.  63.51. SNET does not dispute   /this, and in fact, states that, upon request, it will furnish a copy of the contract to the  Y -  =Commission.}  Y-#Xw P7[hXP#эSNET Opposition to Joint Motion at 2.} SNET asserts, however, that the Commission should not require SNET to   provide a copy of the contract to Petitioners, all of whom are cable industry members and  Y-  Jpotential competitors of SNET. ^  Y- #Xw P7[hXP#эId. at 1, 2. As noted above, NECTA has seen these documents, pursuant to a protective order. SNET argues that Section 0.457(d) of the Commission's rules   contemplates that the Commission will not require disclosure of any document containing  Yb-  "commercial information" absent a "persuasive showing" that disclosure is justified. b  Y -#Xw P7[hXP#эId. (citing 47 C.F.R.  0.457(d)). SNET   Jasserts that the Petitioners have not made the necessary showing. SNET states that it contacted   counsel for NECTA and offered to disclose to Petitioners all nonproprietary information in the   wCCT contract, but that counsel "flatly rejected" the offer and insisted that the entire contract be  Y-disclosed.H   Y`#- #Xw P7[hXP#эId. at 3 n.1. Counsel for NECTA confirms that it rejected SNET's offer to disclose only   nonproprietary portions of the contract. Counsel for NECTA responded that all of the material    was relevant, that confidentiality could be deemed to have been waived, and should be submitted   into the record. Reply to Opposition to Joint Motion for Production, Affidavit of Donna N.   Lampert, para. 8 (filed August 10, 1995). There is no evidence that SNET contacted counsel"' 0*((/'"   yfor any of the other Petitioners regarding SNET's proposal to provide all nonproprietary portions of the CCT contract.H"b 0*(("Ԍ Y-  ԙ7.` ` The Petitioners allege that, at most, Section 0.457(d) allows SNET to request that   the CCT contract and related testimony be afforded confidential treatment under the Freedom  Y-  of Information Act.yb Y-#Xw P7[hXP#эJoint Motion for Production at 9.y The Petitioners argue, however, that SNET has waived any claim it might  Y-  have had to confidential treatment of the contract.k Y -#Xw P7[hXP#эId. at 1011.k They assert that, because SNET voluntarily   disclosed portions of the contract, and put the substance of the contract in issue, SNET has   waived its right to claim that the document is protected. The Petitioners also assert that, because   SNET is a common carrier and must provide service on a nondiscriminatory basis, disclosure  Y_-  of the contract should not result in competitive harm.h_ Y-#Xw P7[hXP#эId. at 11.h The Petitioners further allege that   krequiring SNET to make the contract publicly available is "consistent with the general  Y1-  consideration of fairness."h1u YW-#Xw P7[hXP#эId. at 12.h The Petitioners claim that SNET "has attempted to undermine the   ,purpose of protective orders and use the guise of protection to distort the truth," and therefore  Y -should no longer be afforded the benefit of such protection. &  Y-#Xw P7[hXP#эJoint Parties Motion for Production at 12.#Xw P7[hXP#ѩ  Y -  8.` ` SNET responds that "a common carrier's customer contracts inherently contain  Y -  Zcommercial information."j  YF- #Xw P7[hXP#ЍSNET Opposition to Joint Motion at 3 (emphasis in original) (citing Competition in the  Y/-  Interexchange Marketplace, 6 FCC Rcd 5880, 5902 (1991), recon. denied, 10 FCC Rcd 4562, 4569 (1995).j It also contends that NECTA, not SNET, put the contents of the   contract in issue by asserting that the contract gives SNET the right to make programming   decisions. SNET asserts that the doctrine of voluntary waiver applies only where the party   Zseeking to preserve the confidentiality of a document puts the contents of the document into   issue, and therefore SNET has not waived its right to seek confidential treatment of the contract.   SNET further contends that the Commission should not establish a precedent that a party loses   its right to request confidential treatment of a document any time it cites relevant portions of the document to defend against false allegations.  Y-  9.` ` Some of the Petitioners have opposed SNET's Commercial Application on the   ground that SNET has been involved impermissibly in programming decisions in its trials.   kPetitioners assert that SNET's contract with CCT and related testimony in the CDPUC   proceeding offer proof of that claim and support for their position that the Commercial"Z0*(("   Application should be rejected. Petitioners urge us to reject SNET's Commercial Application   -on the basis of these alleged prior bad acts. It is not apparent that the Commission could or   should reject the Commercial Application on the basis of these alleged prior bad acts, and it is   Ltherefore not clear that SNET's contract with CCT will be relevant to those proceedings.   Nevertheless, t f^T he Commission can require SNET to provide a copy of its contract with CCT,   and the parties do not appear to dispute this. We believe that review of the documents will help   resolve the issue before the Commission, at least for purposes of assessing whether it is relevant   to deciding whether to approve the Commercial Application. Therefore, we require SNET to   produce its contract with CCT and testimony in the CDPUC proceeding related to that contract.   KThis information must be produced within five business days after the release of this Order.   Pursuant to Commission rules, SNET may request confidential treatment of portions of that   information that it believes are proprietary. If SNET seeks confidential treatment for part of the   information, it also should submit a redacted version of the materials that includes all information it believes to be nonproprietary. #Xw P7[hXP#  Y -  o 10.` ` The cases cited by the parties regarding whether SNET waived its right to   confidentiality relate to attorneyclient and work product privileges. Neither of those privileges   was raised as the basis for protecting SNET's contract with CCT. To the extent that the waiver   Zdoctrine cited by the parties applies to the documents at issue, we find that NECTA initially   raised the substance of the CCT contract as an issue, and that SNET cited the contract in   opposition to NECTA's claims. We reject the Petitioners' claim that SNET has waived its right   to request confidential treatment of the contract and related testimony. We also reject the   Petitioners' assertion that, because SNET is a common carrier, its contract with CCT may not   xbe subject to confidential treatment. The Commission has recognized that contracts between   Ycommon carriers and customers may contain proprietary information in addition to information  Y-  that is subject to public disclosure. Y:- >#Xw P7[hXP#ЍCompetition in the Interexchange Marketplace, 6 FCC Rcd 5880, 5902 (1991), recon.  Y#-denied, 10 FCC Rcd 4562, 4569 (1995). For example, contracts between a local exchange carrier   and a video program provider could contain provisions for services that are not regulated under  Y-  + the Act, and are not otherwise subject to nondiscrimination requirements.b Y- #Xw P7[hXP#ЍSee e.g., Telephone CompanyCable Television CrossOwnership Rules, Sections 63.54  63.58, Second Report and Order, Recommendation to Congress and Second Further Notice of   Proposed Rulemaking, 7 FCC Rcd 5781, 582829, para. 92 (stating that the Commission will not impose nondiscrimination requirements on enhanced and other unregulated services). We cannot conclude, without seeing the contract, that it does not contain any proprietary information.  YN-Ordering Clause  Y -  11. Accordingly, IT IS ORDERED that the Joint Motion for Production is GRANTED   ;to the extent indicated above, and that, pursuant to Sections 4(i) and (j), 211(b), and 403 of the   Communications Act of 1934, as amended, 47 U.S.C.  154(i) and (j), 211(b), and 403, and"0*(("   authority delegated thereunder pursuant to Sections 0.91(g) and 63.51 of the Commission's rules,   47 C.F.R.  0.91(g) and 63.51, SNET must produce to the Commission within five business   Ydays after the release of this Order its contract with CCT and testimony in the CDPUC hearing related to that contract. #Xw P7[hXP# ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION ` `  hh,VKathleen M.H. Wallman ` `  hh,VChief, Common Carrier Bureau