PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held July 13, 2001
Commissioners Present:
Glen R. Thomas, Chairman
Robert K. Bloom, Vice Chairman
Aaron Wilson, Jr.
Terrance J. Fitzpatrick
Motion of MCI WorldCom Communications,
Inc. and Affiliates for Protective Order
Regarding Annual Reports
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Docket No. P-00011892
ORDER
On May 8, 2001, MCI WorldCom Communications, Inc., WorldCom, Inc.,
Metropolitan Fiber Systems of Philadelphia, Inc., Metropolitan Fiber Systems of
Pittsburgh, Inc., and MCI Metro Access Transmission Services, LLC (collectively
“Movants”) filed a motion before the Commission pursuant to 52 Pa. Code
§ 5.423 seeking entry of a protective order to restrict access to claimed proprietary
information to be filed in connection with the filing of certain annual reports
required by Commission regulations or orders. Specifically, Movants request that
the Annual Reports filed under 52 Pa. Code § 63.36, the Intrastate Toll Minutes of
Use Report (“MOU Report”) filed pursuant to the Commission’s Global Order
entered September 30, 1999, at Docket Nos. P-00991648 and P-00991649, and the
Quarterly Tracking Report-Residence and Business Access Lines by LATA
(“Quarterly Tracking Report”) filed at Docket No. M-00970943 be accorded
proprietary treatment.
In support of the proposed protective order, Movants represent in their
motion that they will “be substantially harmed if this information were provided to
the Commission without restriction, particularly if the information were made
available to actual or potential competitors of Movants.” Motion for a Protective
Order at ¶ 1. In support of this claim, Movants offer no justification other than to
restate their position that “[p]ublic dissemination of the [claimed proprietary]
information . . . will cause unfair economic harm and competitive damage to
Movants if publicly released or improperly used.” Id. at ¶ 12.
First, as to the MOU Report and the Quarterly Tracking Report, the Motion
for a Protective Order pursuant to 52 Pa. Code § 5.423 is premature and need not
be acted upon at this time. Under internal Commission procedures, the
Commission and its staff will honor requests to treat certain information as
proprietary that is contained in tariff filings, quarterly financial reports, and similar
documents without the necessity of filing petitions for protective orders. Such
petitions for protective orders are only necessary if an interested party requests to
examine the proprietary information. At that point in time, the Secretary’s Bureau
will issue a Secretarial Letter directing the public utility to file such a petition
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pursuant to 52 Pa. Code § 5.423 within 14 days.1 We will follow this procedure as
to these two reports.
As to the Annual Reports filed pursuant to 52 Pa. Code § 63.36, the
Commission recently amended its internal procedures to incorporate the
recommendations of the Collaborative established at Docket No. M-00001374 to
determine the adequacy and interpretation of exisitng accounting procedures and
financial reporting regulations for all telecommunications carriers.2 Under the
Commission’s internal procedures, the reporting entity must concurrently file a
petition for protective order pursuant to 52 Pa. Code § 5.423 when it files its
Annual Report if proprietary treatment is desired. The Movants have done this in
the instant case.
However, petitioning for proprietary treatment is only the first step in the
process. The Commission must still determine whether the petition should be
granted based on the merits of the arguments raised by the reporting entity in its
petition seeking proprietary treatment. The general rule is that the party seeking
the issuance of a protective order to limit the disclosure of a trade secret or other
1
In addition, we note that as to the Quarterly Tracking Reports, they will no longer be required to be filed
with the Commission. Rulemaking Re: Financial Reporting Requirements For All Telecommunications
Carriers, Docket Nos. L-00010153 and M-00001374, Ordering Paragraph No. 2 (Order entered June 28,
2001).
This amendment is consistent with the recommendations contained in the “Final Report to the
Commission of the Collaborative to Determine the Adequacy and Interpretation of Existing Accounting
Procedures and Financial Reporting Regulations for All Telecommunications Carriers,” Docket No.
M-00001374, at 13-14 (Filed March 15, 2001) (hereinafter “Final Report”), which recommendations were
adopted in their entirety by the same Commission order discussed in footnote 1, supra, at Ordering
Paragraph No. 1.
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confidential information on the public record bears the burden of demonstrating
that “the potential harm to the [requesting party] of providing the information
would be substantial and that the harm to [it] if the information is disclosed . . .
outweighs the public’s interest in free and open access to the administrative
hearing process.” 52 Pa. Code § 5.423(a). The regulation further provides that
any protective order issued is to apply the “least restrictive means of limitation”
while providing “the necessary protections from disclosure.” Id. Finally, the
regulation provides that in considering whether a protective order should be
granted, the Commission will consider evidence presented to show the operation
of one or more of the five factors enumerated at 52 Pa. Code § 5.423(a)(1)-(5),3 or
any other relevant factor.
We conclude that the motion and attached proposed protective order are not
consistent with or in compliance with 52 Pa. Code § 5.423.4 While the Movants
3
The five factors identified in 52 Pa. Code § 5.423 are as follows: (1) the extent to which the disclosure
would cause unfair economic or competitive harm, (2) the extent to which the information is known by
others and used in similar activities, (3) the value of the information to the requesting party and to its
competitors, (4) the degree of difficulty and cost of developing the information, and (5) other laws or
regulations dealing with disclosure of the information.
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We also note that the Collaborative identified in footnote 2, above, directly addressed this issue as to what
information in these Annual Reports should be protected from disclosure versus being made public, and the
Collaborative developed what it considered to be an appropriate and reasonable balance between the two
conflicting interests. In short, the Colloborative, in which MCI WorldCom Communications, Inc.
participated actively through counsel, recommended that certain portions of the Annual Reports should be
protected from disclosure while other portions should be made public, subject to the reporting carrier’s
right to petition the Commission for proprietary treatment of any portion thereof the reporting carrier
believed should be protected as to it individually. In petitioning the Commission, however, the reporting
carrier has the burden to show why this initially-determined public information should now be protected
from disclosure. As discussed in this Order, the Movants offer no evidence or information to support their
claim that the entire Annual Report, as opposed to the previously-identified schedules or portions thereof,
should otherwise be protected from disclosure contrary to the Collaborative’s own recommendations in
which at least one of the Movants actively participated.
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allege that they will suffer “unfair economic harm” through the disclosure of the
information contained in their Annual Reports, they fail to provide any supporting
information or evidence in either the motion or the attached proposed protective
order that enable us to determine whether any of the relevant factors enumerated
in 52 Pa. Code 5.423(a)(1)-(5) are applicable herein. Unsubstantiated claims of
harm without more are not sufficient to outweigh the public’s interest in free and
open access to much of the financial information contained in the Annual Reports
filed pursuant to 52 Pa. Code § 63.36;5 THEREFORE,
IT IS ORDERED:
1.
The motion of MCI WorldCom Communications, Inc., WorldCom,
Inc., Metropolitan Fiber Systems of Philadelphia, Inc., Metropolitan Fiber Systems
of Pittsburgh, Inc., and MCI Metro Access Transmission Services, LLC for a
protective order as to the MOU Report and the Quarterly Tracking Report is
denied as premature at this time.
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Administrative Law Judge Robert P. Meehan in a recent case rejected a similar request for proprietary
treatment where no factual support was provided by the requesting party seeking a protective order. Pa.
PUC v. West Penn Power Company, d/b/a Allegheny Power, Docket Nos. R-00005538 & R-00005539
(Order entered October 4, 2000).
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2.
The motion of MCI WorldCom Communications, Inc., WorldCom,
Inc., Metropolitan Fiber Systems of Philadelphia, Inc., Metropolitan Fiber Systems
of Pittsburgh, Inc., and MCI Metro Access Transmission Services, LLC for a
protective order as to the Annual Reports is denied, without prejudice, for failure
to provide any information or evidence in support of their claims of economic
harm.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: July 13, 2001
ORDER ENTERED: July 17, 2001
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