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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 ) ) Ameritech Corporation ) ) ) ASD No. 98-85 Request For Confidential Treatment ) of Section 274(f) Form 10-K Equivalent ) ) ORDER Adopted: October 16, 1998 Released: October 16, 1998 By the Chief, Accounting Safeguards Division 1. On March 31, 1998, Ameritech Corporation ("Ameritech"), on behalf of its separated affiliates Ameritech Interactive Media Services, Inc. and Ameritech Interactive Media, Inc., filed with the Commission certain information required under section 274(f) of the Communications Act, as amended ("the Act"). Pursuant to Section 0.457(d) and Section 0.459 of the Commission's rules, and section 220(f) of the Act, Ameritech requests confidential treatment of this information. For the reasons explained below, we deny Ameritech's request. 2. Section 274(f) requires any separated affiliate of Bell Operating Companies ("BOCs") engaged in electronic publishing activities, as defined by the Act, to "file with the Commission annual reports in a form substantially equivalent to the Form 10-K required by regulations of the Securities and Exchange Commission." In the Accounting Safeguards Order, the Commission interpreted section 274(f) to mean that all BOC electronic publishing separated affiliates must file annual reports containing "the same information in the same format" as the Form 10-K required by the regulations of the Securities and Exchange Commission ("SEC"). Under SEC requirements, the Form 10-K must contain a description of the company filing the report and its operations, financial statements with supporting financial data, and certain legal and financial disclosures concerning the company. The SEC Form 10-K is a publicly available document. 3. In support of its request for confidential treatment of its separated affiliates' 10-K Equivalent filings, Ameritech argues that the electronic publishing industry is highly competitive and that the 10-K Equivalent filings contain sensitive financial and marketing information that is not routinely available to the public. For these reasons, Ameritech contends that disclosure would cause substantial competitive harm to its electronic publishing separated affiliates. 4. Ameritech fails to persuade us to extend confidential treatment to its 10-K Equivalent filings. The Commission's rules require that each request for confidential treatment "contain a statement of the reasons for withholding the materials from public inspection and of the facts upon which those reasons are based." For mandatory filings, the petitioner bears the burden of showing the likelihood of substantial competitive injury if disclosure is made. Ameritech asserts, but provides no evidence to support its assertion, that disclosure of the information contained in its 10-K Equivalent filings could cause competitive harm. Although asserting that the electronic publishing industry is highly competitive, Ameritech does not indicate the extent, nature, or likely impact that disclosure of its 10-K Equivalent filings would have on its electronic publishing operations. We find that unsupported assertions of competitive harm are an insufficient basis to grant a request for withholding mandatory filings from public disclosure. 5. Nor are we persuaded by Ameritech's argument that the 10-K Equivalent filings contain sensitive information that is not routinely available to the public and is therefore exempt from public disclosure under Sections 0.457(d) and 0.459 of the Commission's rules. Section 274(f) requires separated affiliates of BOCs to file annual reports of its electronic publishing activities "in a form substantially equivalent to the Form 10-K required by regulations of the Securities and Exchange Commission." The plain language of section 274(f) refers to the SEC's Form 10-K and to the regulations of the SEC pertaining to the Form 10-K, which require that it be made available to the public. We fully expect therefore that information contained in the 10-K Equivalent filing to the Commission will be substantially the same as information contained in publicly available reports filed with the SEC by other companies engaged in electronic publishing. 6. We find no merit to Ameritech's assertion that under section 0.457(d) of the Commission rules, the information is exempt from public disclosure. The Commission's decision to exempt information from public disclosure under section 0.457(d) is discretionary and based upon weighing the policy considerations favoring non-disclosure against the policy considerations favoring disclosure. We find that Ameritech has presented no convincing evidence to demonstrate that there might be competitive harm that would favor non-disclosure over public disclosure. 7. Further, we find Ameritech's reliance on section 220(f) of the Act is misplaced. Section 220(f) states: "No member, officer, or employee of the Commission shall divulge any fact or information which may come to his knowledge during the course of examination of books or other accounts, as hereinbefore provided, except insofar as he may be directed by the Commission or a court." The information contained in Ameritech's 10-K Equivalent filings has not been revealed to Commission staff through an audit or other examination, but has been submitted pursuant to the mandatory provisions of section 274(f). We therefore reject Ameritech's assertion that its 10-K Equivalent filings are protected from disclosure under section 220(f) of the Act. 8. Pursuant to the Commission's rules, the data in Ameritech's Form 10-K Equivalent will not be released until the company has exhausted its appeal rights under Section 0.459(g). Ameritech may file an application for review within 5 working days of this ruling. If Ameritech does not seek review, the data will be placed in the public file. 9. Accordingly IT IS ORDERED, pursuant to the authority that is contained in Section 0.459 of the Commission's rules, 47 C.F.R.  0.459 that Ameritech's Request for Confidential Treatment is DENIED. FEDERAL COMMUNICATIONS COMMISSION Kenneth P. Moran Chief, Accounting Safeguards Division Common Carrier Bureau