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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 Access Charge Reform Price Cap Performance Review for Local Exchange Carriers Low-Volume Long-Distance Users Federal-State Joint Board on Universal Service ) ) ) ) ) ) ) ) ) ) CC Docket No. 96-262 CC Docket No. 94-1 CC Docket No. 99-249 CC Docket No. 96-45 ORDER Adopted: September 19, 2000 Released: September 20, 2000 By the Deputy Chief, Common Carrier Bureau: I. INTRODUCTION 1. Consistent with the Commission's recent order partially denying carriers' requests for confidential treatment of their wire center line count data under the federal intrastate high-cost support mechanism for non-rural carriers, we deny to a limited extent requests by certain price cap local exchange carriers (LECs) for confidential treatment of line count data submitted in accordance with the Commission's rules implementing the interstate access universal service support mechanism. We deny the confidentiality requests only to the extent necessary to enable the Universal Service Administrative Company (USAC) to publish the following information: (1) total interstate access support by state and by eligible carrier within each state; and (2) per-line interstate access support available in each price cap LEC's study area, by UNE zone and customer class. 2. This action is consistent with the Commission's recent denial of confidential treatment requested for carriers' universal service wire center line count data to enable USAC to publish per-line support amounts for non-rural carriers under the Commission's intrastate high-cost support mechanism. We partially deny the instant confidentiality requests consistent with the Commission's determination that the public availability of per-line and total support amounts is essential to ensure portability of universal service support. 3. We do not decide at this time, however, whether to afford confidential treatment to line count data that cannot be determined when USAC releases interstate access universal service support amounts as described above. In the Wire Center Line Count Order, the Commission stated that it would initiate a proceeding to resolve the issue of whether wire center line count data that could not be derived from the USAC publication of per-line support information should be afforded confidential treatment. We intend to resolve in that proceeding the question of whether line count data filed by UNE zone and customer class for the receipt of interstate access universal service support should be treated as confidential. Pending our resolution of these issues, study area or UNE zone line count data that cannot be determined when USAC releases interstate access universal service support amounts will be made available only pursuant to the companion Interim Protective Order released today. IV. background 5. On April 7, 2000, the Commission released an order denying in part requests for confidential treatment of quarterly line count data at the wire center level filed pursuant to sections 36.611 and 36.612 of the Commission's rules. In the Wire Center Line Count Order, the Commission denied carriers' requests for confidential treatment of wire center line count data to the limited extent that the number of lines in wire centers receiving federal non-rural intrastate high-cost support may be determined once USAC releases statewide forward-looking support amounts, carrier-by-carrier hold-harmless support amounts, and the per-line support amounts available in a wire center. The Commission determined that the line counts of wire centers that are eligible to receive non-rural high-cost support could be determined from USAC's release of data on statewide, carrier-by-carrier, and per-line support amounts. The Commission concluded that the public interest in disclosure of the line count data would outweigh any interest in non- disclosure. The Bureau released a companion Interim Protective Order protecting the line count data of wire centers that do not receive support. 6. In accordance with section 54.802 of the Commission's rules, on June 30, 2000, eligible carriers requesting interstate access universal service support submitted data to USAC showing the number of lines they serve in study areas served by price cap LECs. Section 54.802 of the Commission's rules provides that each eligible telecommunications carrier that provides service within a study area served by a price cap LEC and requests interstate access universal service support must submit to USAC on the last business day of March, June, September, and December of each year data showing the number of lines it served in that study area as of the last business day of the previous quarter. The line counts must be assigned to UNE zones if UNE zones have been established within that study area. This line count data must also show residential/single-line business line counts separate from multi-line business line counts. The residential/single-line business lines reported include single and non-primary residential lines, single- line business lines, basic rate interface integrated services digital network (ISDN) service, and other related residence class lines. Similarly, the multi-line business class lines reported include multi-line business, centrex, ISDN primary rate interface, and other related business class lines. 7. Based on line count and cost data filed by eligible telecommunications carriers, USAC estimates per line interstate access universal service support amounts for each price cap LEC study area, by UNE zone and customer class. USAC, which is charged with administering the interstate access universal service mechanism, is required to file a quarterly report with the Commission detailing per-line support amounts available in each price cap LEC study area, by UNE zone and customer class. The quarterly USAC report also provides information by state and by eligible telecommunications carrier. Quarterly USAC filings are posted on the Commission's Web site. Thus, both incumbents and competitors will know the per-line support amounts available for serving customers in a particular area, and can plan their business strategies accordingly. 8. Pursuant to section 0.459 of the Commission's rules, Aliant, Bell Atlantic, GTE, and U S WEST filed requests for confidential treatment of their line count data submitted on June 30, 2000. Although the requests for confidential treatment of these data vary in detail depending on the submission, we understand their claims to be based on the disaggregated nature of the data, i.e., the filing of study area line counts, by UNE zone and customer class, as opposed to the filing of total lines in the study area(s). The requests for confidential treatment of study area line count data filed by Aliant, Bell Atlantic, GTE, and U S WEST are substantively similar to previous requests for confidential treatment of wire center line counts data submitted in accordance with section 36.611 and 36.612 of the Commission's rules and which were denied in part in the Wire Center Line Count Order. IX. DISCUSSION 10. Consistent with the Commission's Wire Center Line Count Order, we deny carriers' requests for confidential treatment of line count data filed pursuant to section 54.802(a) of the Commission's rules to the extent necessary to enable USAC to publish the following information: (1) total interstate access support by state and by eligible carrier within each state; and (2) per-line interstate access support available in each price cap LEC's study area, by UNE zone and customer class. We find that the public availability of these per-line and total support amounts is essential to ensure that support amounts are portable and to maintain a mechanism that is competitively neutral, as required by the Act. 11. We do not decide at this time whether to treat as confidential the requesting carriers' study area or UNE zone line count data that cannot be determined when USAC releases the results of calculations showing per line and statewide interstate access universal service support levels. As discussed below, we address the instant requests using the Commission's analysis outlined in the Wire Center Line Count Order regarding carriers' wire center line counts submitted under the Commission's high-cost mechanism for non- rural carriers. We recognize that the data submissions at issue in the Wire Center Line Count Order (line counts by wire center) differ somewhat from the data submissions at issue here (line counts by UNE zone and customer class). Nonetheless, we conclude that both proceedings raise the same considerations and should be subject to the same analytical framework. We intend to seek comment on the carriers' remaining confidentiality requests and intend to resolve these issues in a proceeding addressing the confidential treatment of line counts filed for universal service purposes. 12. Standards for Disclosure. The Commission's rules permit disclosure of commercially sensitive information upon a "persuasive showing" of the reasons in favor of releasing the information. Consistent with the United States Supreme Court's decision in FCC v. Schreiber, the rules also contemplate that the Commission will engage in a balancing of the interests favoring disclosure and non- disclosure. In balancing these public and private interests, the Commission has been sensitive to ensure that the fulfillment of its regulatory responsibilities does not result in the unnecessary disclosure of information that might put its regulatees at a competitive disadvantage. Accordingly, the Commission generally has exercised its discretion to release to the public competitively sensitive information in only limited circumstances, such as where the Commission has identified a compelling public interest in disclosure. 13. Publication of Interstate Access Universal Service Support Amounts. Because support under the interstate access universal service mechanism is targeted to study areas or UNE zones by customer class, USAC must publish per-line support amounts for recipient study areas, by UNE zone and customer class, in order to ensure that the support is available to any eligible telecommunications carrier. As the Commission recently concluded, competitive eligible carriers must have access to information on per-line support amounts when evaluating whether to provide service in a particular area. 14. We have identified instances in which carrier line counts may be determined when USAC releases the results of calculations showing per-line and statewide interstate access universal service support amounts. For example, in instances where a carrier receives support for the provision of services to only one customer class (for example, multi-line business customers) in only one UNE zone or study area in a given state, it may be possible to determine the number of lines that the carrier serves in that UNE zone or study area by dividing the total amount of support directed to that carrier by the carrier's per-line support. The disclosure of line counts in study areas or UNE zones receiving support by means of such "reverse-engineering" could be avoided only by nondisclosure of either per-line support amounts for different customer classes in recipient study areas or UNE zones or nondisclosure of total statewide carrier- by-carrier support amounts, on the one hand, or by abandonment of the Commission's decision to direct support to study areas or UNE zones by customer class, on the other hand. Consistent with the Commission's reasoning in the Wire Center Line Count Order, we conclude that neither of these means for protecting this information is a viable alternative because each would be inconsistent with the principles underlying section 254 of the Communications Act of 1934 (Act), and adverse to the public interest. 15. We conclude, as discussed more fully below, that public availability of per-line support amounts in study areas, by UNE zone and customer class, and total statewide carrier-by-carrier support amounts serves the public interest. Because we conclude that the public interest in disclosure would outweigh any interest in non-disclosure, we do not make a threshold finding at this time as to whether study area or UNE zone line count data are commercially sensitive information. We conclude that the public availability of support amounts is essential to implement a competitively neutral universal service support mechanism, and to ensure availability of support amounts to any eligible competitive telecommunications carrier, consistent with sections 254(e) and 214(e) of the Act. We therefore deny the instant requests for confidentiality only to the limited extent that disclosure of line counts in study areas or UNE zones that are receiving interstate access universal service support results from the publication of the support amounts described above. 16. Section 254 and the Principle of Competitive Neutrality. Consistent with the Commission's Wire Center Line Count Order, we conclude that the public availability of per-line interstate access universal service support amounts in study areas, by UNE zone and customer class, is essential to any competitively neutral universal service support mechanism that provides portable support to any price cap LEC. According to the principle of competitive neutrality adopted by this Commission and recommended by the Joint Board, universal service support mechanisms and rules should neither unfairly advantage nor disadvantage one provider over another. Consistent with this principle, the Commission implemented the universal service principles in section 254 of the Telecommunications Act of 1996 (1996 Act) to ensure that interstate access universal service support is "portable," in essence, available to all competing eligible telecommunications carriers. Under the Commission's interstate access universal service mechanism, if a competitive eligible telecommunications carrier serves a customer in a supported study area or UNE zone, the competitor will receive the incumbent's support for that line. 17. If per-line interstate access universal service support amounts were kept confidential, a competitor would not be able to determine per-line support amounts in the incumbent's study area or UNE zone until it began providing service to that customer class in that study area or UNE zone. The Commission has concluded that it is unreasonable to expect a competitive eligible telecommunications carrier to make the substantial financial investment to enter a specific market and compete against an incumbent carrier that is receiving support, without first knowing the amount of support it will be eligible to receive. If a competitive eligible telecommunications carrier does not have access to such information, it may be unable to formulate a business strategy that includes entry into areas potentially eligible to receive interstate access universal service support. Consistent with these findings of the Commission, we conclude that the public availability of data on per-line interstate access universal service support amounts is necessary for encouraging competition in areas served by carriers eligible to receive such support. 18. Finally, we believe that price cap LECs should have anticipated that the Commission and USAC would publish the per-line support amounts available for study areas and UNE zones that are receiving interstate access universal service support. Section 54.802(d) of the Commission rules, which was proposed by an industry coalition in its modified proposal filed with the Commission on March 8, 2000, directs USAC to file a quarterly report with the Commission detailing per-line support amounts available in each price cap LEC study area, by UNE zone and customer class, and to report information by state and by eligible telecommunications carrier. As of April 2000, carriers were also on notice of the Commission's decision denying in part requests for confidential treatment of line count data filed at the wire center level. We also note that, since the Commission's initial implementation of section 254's universal service provision in 1997, USAC has made publicly available portable per-line support amounts at the study area level. Under these circumstances, price cap LECs should reasonably have expected that per-line support amounts at the study area level, by UNE zone and customer class, would be made publicly available. 19. Publication of Statewide Support Amounts. Consistent with the Commission's Wire Center Line Count Confidentiality Order, we further conclude that, even though statewide carrier-by-carrier interstate access universal service support amounts may be used to "reverse engineer" line counts for recipient study areas or UNE zones, the public interest requires publication of the total support received by each carrier in a state. Public availability of these support amounts will enable fund contributors, consumers, and state commissions to provide the Commission with feedback regarding whether the mechanism is operating in a manner that ensures that rates and services are affordable and reasonably comparable among the states, consistent with section 254. 20. Future Proceeding to Resolve Confidentiality Requests. We reiterate that we do not, at this time, make a final determination as to whether confidential treatment should be afforded to line count data that cannot be determined when USAC releases the results of calculations showing per-line and statewide interstate access universal service support levels. Such a determination is not required at this time because this line count information will not be disclosed nor be ascertainable upon publication of a carrier's per-line and statewide total support amounts. In the Wire Center Line Count Order, the Commission stated that it would initiate a proceeding to resolve the issue of whether wire center line count data that could not be derived from USAC's publication of per-line support information should be afforded confidential treatment. We intend to resolve in that proceeding the question of whether line count data filed by UNE zone and customer class for the receipt of interstate access universal service support should be treated as confidential. 21. Consistent with the Commission's rules and practice, while the carriers' requests for confidential treatment remain pending before the Commission, we will afford confidential treatment to study area or UNE zone line count data that cannot be determined when USAC releases the results of calculations showing per line and statewide interstate access universal service support levels. Unless and until the Commission makes a final determination on the carriers' requests for confidential treatment, such study area or UNE zone line count data will be made available only pursuant to the interim protective order we adopt today. This will enable state commissions, interested parties, and members of the public to verify support amounts available and distributed under the new mechanism. Carriers that have requested confidential treatment of line count data submitted pursuant to section 54.802(a) of the Commission's rules need not request confidential treatment for subsequent submissions of such data. We will treat in the same manner any subsequent study area or UNE zone line count submissions for those carriers that have pending requests for confidential treatment of such data. XXII. ordering clauses 23. Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 1-4, 201- 205, 214, 218-220, 254, 303(r), 403, and 410 of the Communications Act of 1934, as amended, 47 U.S.C.  151-154, 201-205, 214, 218-220, 254, 303(r), 403, and 410, and sections 0.291, 0.457 and 0.459 of the Commission's rules, 47 C.F.R.  0.291, 0.457, 0.459, the requests for confidential treatment, filed June 30, 2000 by Aliant Communications Co.; filed June 30, 2000 by Bell Atlantic Network Services, Inc.; filed June 29, 2000 by GTE Service Corporation; and filed June 28, 2000 by U S WEST, Inc., ARE DENIED IN PART to the extent described in this Order, and otherwise DEFERRED until further consideration and resolution by the Commission. 24. IT IS FURTHER ORDERED that, pursuant to section 0.459(g) of the Commission's rules, 47 C.F.R.  0.459(g), Aliant Communications Co., Bell Atlantic Network Services, Inc., GTE Service Corporation, and U S WEST, Inc., will be afforded five (5) working days in which to seek a judicial stay of this ruling. 25. IT IS FURTHER ORDERED that the Common Carrier Bureau shall, upon release of this Order, furnish immediate notice by telephone of our determination and of the time for seeking a judicial stay to Aliant Communications Co., Bell Atlantic Network Services, Inc., GTE Service Corporation, and U S WEST, Inc., and shall follow up by serving a copy of this Order on such parties. FEDERAL COMMUNICATIONS COMMISSION Carol E. Mattey Deputy Chief, Common Carrier Bureau