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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 ) ) Bell Atlantic Corporation ) ) ASD No. 98-86 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 April 2, 1998, Bell Atlantic Corporation ("Bell Atlantic"), on behalf of its separated affiliate Bell Atlantic Electronic Commerce Services, 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) of the Commission's rules, and 5 U.S.C. Section 552(b)(4) of the Freedom of Information Act ("FOIA"), Bell Atlantic requests confidential treatment of this information. For the reasons explained below, we deny Bell Atlantic'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, Bell Atlantic argues that the electronic publishing industry is highly competitive and that therefore it considers the information contained in its separated affiliates' 10-K Equivalent filing to be proprietary and confidential commercial and financial data. As such, Bell Atlantic contends that the information provided to the Commission is exempt from disclosure under section 552(b)(4) of the FOIA and section 0.457(d) of the Commission's rules because it contains information not ordinarily available to the public. Bell Atlantic presents no further arguments in support of its request. 4. Bell Atlantic fails to persuade us to extend confidential treatment to its 10-K Equivalent filing. 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. Bell Atlantic asserts, but provides no evidence to support its assertion, that disclosure of the information contained in its 10-K Equivalent filing could cause competitive harm. Although asserting that the electronic publishing industry is highly competitive, Bell Atlantic does not indicate the extent, nature, or likely impact that disclosure of its 10-K Equivalent filing 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. Bell Atlantic argues that even if the Commission does not view the 10-K Equivalent filing as voluntary, it contains information that is not otherwise available to the public, and thus should be exempted from public disclosure under Exemption 4 of the FOIA and the Commission's decision in Locke. We are not persuaded by Bell Atlantic's argument. Section 274(f) requires separated affiliates of BOCs to file annual reports of their 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 10-K Equivalent filings 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. Pursuant to the Commission's rules, the data in Bell Atlantic's Form 10-K Equivalent will not be released until the company has exhausted its appeal rights under Section 0.459(g). Bell Atlantic may file an application for review within 5 working days of this Order. If Bell Atlantic does not seek review, the data will be placed in the public file. 7. 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 Bell Atlantic's Request for Confidential Treatment is DENIED. FEDERAL COMMUNICATIONS COMMISSION Kenneth P. Moran Chief, Accounting Safeguards Division Common Carrier Bureau