******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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) ) GENERAL COMMUNICATIONS, INC.) FOIA Control No. 95-403 ) on Request for) Inspection of Records) MEMORANDUM OPINION AND ORDER Adopted: May 27, 1997; Released: June 26, 1997 By the Commission: INTRODUCTION 1.The Commission has before it a petition filed on March 19, 1996, by General Communications, Inc. ("GCI") seeking reconsideration of the Commission's decision released on March 4, 1996 in General Communications, Inc. on Requests for Inspection of Records, 11 FCC Rcd 5373 (1996) ( "March 4, 1996 Order"). The Commission's March 4, 1996 Order had granted in part and denied in part GCI's application for review of an initial Freedom of Information Act (FOIA) decision issued by the Common Carrier Bureau (Bureau) on January 16, 1996. Specifically, the Commission concluded that it should grant in part, and otherwise deny GCI's FOIA request for certain documents relating to a cost allocation plan and tariff filing submitted by Alascom, Inc. and/or its parent company AT&T (collectively "Alascom"). Alascom filed an opposition to GCI's petition for partial reconsideration and GCI filed a reply. For the reasons discussed below, we deny GCI's petition. BACKGROUND 2.In a Memorandum Opinion and Order released on May 24, 1994, the Commission adopted a plan to implement a new market structure designed to increase competition in telecommunications services to and from Alaska. As part of this plan, the Commission required Alascom to develop a cost allocation plan ("CAP") to apportion its costs between locations where Alascom faces facilities-based competition and locations where Alascom has a facilities monopoly. Alascom first filed the required CAP on August 29, 1994. However, in response to concerns raised by the Bureau, GCI submitted a revised CAP on July 3, 1995, which was approved by the Bureau in an order released September 11, 1995. In a related matter, on September 22, 1995, Alascom filed a tariff predicated on the revised CAP approved by the Bureau in its September 11, 1995 order. 3.In response to inquiries from the Bureau's staff, Alascom submitted documents in support of its CAP and tariff filings. See Appendix A. In addition, Alascom submitted a diskette copy of the model implementing its revised CAP. In a December 1, 1995 FOIA request, GCI, inter alia requested copies of the documents Alascom submitted in response to the Bureau's requests. By letter dated January 16, 1996, the Bureau granted in part and denied in part GCI's request, concluding that some of the documents were to be withheld under Exemption 4 of the FOIA. 4.In its March 4, 1996, the Commission ruled on GCI's application for review of the Bureau's decision. Specifically, it agreed with the Bureau that the documents designated in Appendix A as items (4)-(10), (12)-(19), and (20) could be withheld pursuant to Exemption 4, which permits withholding of "commercial or financial information obtained from a person and privileged or confidential." Under the "competitive harm" test of Exemption 4, information is confidential if the party seeking confidentiality demonstrates both actual competition and the likelihood of substantial competitive injury if disclosure is made. The Commission agreed that Alascom had demonstrated the likelihood of competitive injury if this information were disclosed. The Commission, however, did not agree that the documents designated in Appendix A as items (1)-(3) and (11) could be withheld. The Commission concluded that the information contained in those documents was already within the public domain and, hence, it could not be deemed "confidential" information within the meaning of Exemption 4. 5.In its petition for partial reconsideration, GCI claims that a number of the documents withheld in the March 4, 1996 Order contain information that is already available to the public. Specifically, GCI argues that data on Alascom's plant in service, equipment depreciation reserve, total expenses, and depreciation expenses are outlined in Alascom's publicly available depreciation study and Form M data. In addition, it argues that Alascom's demand data can be found in the Alaska Exchange Carrier Association (AECA) access and intrastate service bulk bills, copies of which GCI has attached to its petition. GCI also disputes the Commission's previous findings that the confidential information withheld by the Commission in the March 4, 1996 Order would likely cause Alascom substantial competitive harm if released. Alascom disputes these assertions, noting that the depreciation study, Part 36 study and the Form M data do not contain specific cost information disaggregated into specific site locations and that the access and intrastate records submitted by GCI do not include the data submitted by Alascom in response to the Bureau's staff inquiries. DISCUSSION 6.As an initial matter, we address Alascom's argument that GCI's petition for partial reconsideration should not be considered. In its petition, GCI, for the first time in this proceeding, argues that many of the documents withheld pursuant to Exemption 4 of the FOIA contain information already within the public domain. Alascom argues that GCI has not demonstrated that this argument is based on new facts that arose or were unknown to GCI until after its last opportunity to present such facts, as required under 47 C.F.R.  1.106. GCI responds that it could not have raised this argument earlier because it was not aware of the specific documents being withheld pursuant to Exemption 4 until the Commission issued its March 4, 1996 Order. 7.We find GCI's new argument is not barred by Section 1.106 of our rules. With the exception of the computer diskette containing Alascom's CAP model, the initial FOIA decison issued by the Bureau referred to the documents being withheld pursuant to Exemption 4 only as "Attachments" to letters sent by Alascom to the Bureau staff. No additional specific information was given about the documents being withheld until the Commission issued its March 4, 1996 Order. Thus, there is merit to GCI's claim that it could not have raised its argument earlier than the reconsideration stage of the proceeding. 8.Turning to the substantive arguments, we find that, with one exception noted below, GCI has not demonstrated that the documents being withheld pursuant to Exemption 4 contain information that is already within the public domain. Contrary to GCI's assertions, the plant in service, total expenses, depreciation expense and depreciation reserve tables submitted by Alascom in response to the Bureau's inquiries do not contain the same information that is found in Alascom's depreciation study or its Form M data. Moreover, as we have stated previously, Alascom's Part 36 study and Form M data do not contain cost information disaggregated by specific site location. In addition, Alascom's depreciation study contains information based on various accounts and is not site-specific like the data submitted to the Bureau. 9.Moreover, GCI has not persuaded us that the bills submitted in its petition contain the same type of information contained in Alascom's demand data submissions. Alascom notes that the AECA access bills submitted by GCI are based on trunk-side connections, include extrapolated minutes of use, and rely on state-wide operations data. In contrast, the information contained in Alascom's demand data submissions is based on Alascom's actual minutes of use and demand on a location-specific basis. GCI disputes this arguing that actual conversation minutes are reported to the AECA, not "calculated minutes" as Alascom suggests. However, GCI provides no supporting evidence for this claim. Alascom also points outs that the access and intrastate service bulk bills submitted by GCI are not based on the same locations as Alascom's CAP since the bills report data for 22 "high density locations" while the CAP reports information for 33 non-Bush locations. 10.In reviewing our prior decision, however, we find that a chart containing prospective rate information submitted as Appendix D of Alascom's December 4, 1995 response should be released. The information contained in this document is not confidential within the meaning of Exemption 4 because the information it contains can be found in Alascom's tariff, a publicly available document. 11.GCI also generally questions our finding that these documents, if released, would likely cause Alascom substantial competitive harm. GCI has not persuaded us that our previous finding in that regard was in error. Accordingly, we affirm our original decision that these documents are not required to be disclosed pursuant to GCI's FOIA request. However, as we explained in the March 4, 1996 Order, the Bureau's decision did not address the issue of possible discretionary disclosure of this information under a protective order. The Bureau should resolve that issue in the first instance in the ongoing tariff proceeding. ORDERING CLAUSES 12.Accordingly, IS ORDERED that the petition for partial reconsideration filed by General Communications, Inc. on March 19, 1996 IS DENIED as explained in paragraphs 8-9 of this Memorandum Opinion and Order, and the Commission's March 4, 1996 Order IS AFFIRMED except as specified in paragraph 10 of this Memorandum Opinion and Order. Judicial review may be sought pursuant to 5 U.S.C.  552(a)(4)(B). In addition, pursuant to 47 C.F.R.  0.461(h)(4), Alascom will be afforded ten (10) working days from the release date of this Memorandum Opinion and Order in which to seek a judicial stay. 13.The Officials responsible for this action are the following Commissioners: Reed E. Hundt, Chairman; James H. Quello, Rachelle B. Chong and Susan Ness. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary Appendix A The following documents were submitted as part of Alascom's November 29, 1995 filing: (1)A description of Alascom's "Common Carrier Services Tariff Rate Development." (2)Table of Alascom, Inc.'s Interstate Prospective Costs for 1996 (identified as "Table #2") (3)Table 3 "Alascom Historical Demand," Table 4 "Alascom Prospective Demand Forecast" and Table 5 "Alascom 1996 Demand Forecast for bush and Non-Bush." (4)Table containing information on Total Company Plant in Service expenses. (5)Table containing information on Total Company Depreciation Reserve (6)Table containing information on Total Expenses (7)Table containing information on Total Depreciation Expenses (8)Tables containing information on CAP model, including model results. The following documents were submitted as part of Alascom's November 30, 1995 filing: (9)Table on Network Demand by Non-Bush Location. (10)Tables containing CAP Model results. The following documents were submitted as part of Alascom's December 4, 1995 filing: (11)A description of Alascom's revised "Common Carrier Services Tariff Rate Development" (12)Table containing Alascom's Demand Analysis. (13)Tables containing Alascom's Alaska Terminating Demand, Originating Demand, and Total Alaska Demand. (14)Table listing Non-Bush demand by location. (15)Chart of "Development of 1996 bush and Non-Bush Demand" (16)Tables listing Total Company 1996 separation categories and amounts (17)Tables listing Total Company pro forma data. (18)Tables showing implementation of Alascom's CAP model. (19)Prospective Rate Information - Appendix D In addition, Alascom submitted a diskette containing its revised CAP (Item 20).