WPC4 2 BTA w (TT)3|x)TT)MC\  P6QPCourier New (TT)Courier New (Bold) (TT)Times New Roman (TT)|P2V@ ZVLFTimes New Roman (TT)Xerox DocuTech 135 PCL5ePT1XEDO13PC.WRSx  @,,,"n|X@xxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZ*8888C8SSxJxJxJxJxJooJfJfJfJfJ8.8.8.8.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJfJfJfJxSxSxSxSxSCS8S888SAxSx]AN:*KS8JSSSSS.4}}S2~~S}288JJS88SS8J82N8\\^C`^SS`*8DSS88S^*8*.SSSSSSSSSS..^^^Jxooxf]xx8Axfxx]xo]fxxxxf8.8NS8JSJSJ8SS..S.SSSS8A.SSxSSJP!PZv8SJSS8]888JJ:S8A8xx*8SSSS!S8~.S^8~SC\228`K*824S}}}Jxxxxxxoffff8888xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS\SSSSSSS3|z2L+ X Courier New (TT)Courier New (Bold) (TT)II.PRSx  @HCNX@?xxxXUXx6X@DQX@6?xxxXXx `NQX7PC2X+O(XP\  P6QXP.7UC2XAHXU4  pQXSS888WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxSSS8JDDSSSSSS;SSSS;88VVS++SSffSSxSc]]8VS;"xxSxWxxS唔S88xfxxxxxxxxxxx8SxS]SxoS8SxJS`xlxxxxxxxxxxMxxxxxxofxGcxxxxxxxSxxxxxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxxfi]f]oJiAlJ{SxJ8.uJo]]{JoSxJxf`SfSSiJxJofx]fffxi{8SxxxfJffff88SSSSx{SSSxxxf8`SJ8"5^2CQdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CCCCPCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYzYzYzYdddddPdCdCCCdNdoNNF2ZdCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddxxxSxxxxxxxSxxxxSxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxxfo]f]oJoAoJJxJA.Jo]]xJoSJxffSfSSoJxJofx]fffxoASxxfJffff88SSSSxSSSxxxf8fSJ82^~u.iCourier New (TT)Courier New (Bold) (TT)Times New Roman (TT)Times New Roman (Bold) (TT)CCCddCYdYdYCdd88d8ddddJN8ddddYYdYddddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdddddddd~d~d~d~ddddddddd8ddddoddd~d~d<|8tddddddlLkdkd~d~d~ddddddXCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddzzdddvooChdF"Ȑdhd岲dCCȐzȲxCddodȐȅdCdYdsȐ]ȐȐȧzȐUvŐdȐYYCCCCŐz~ozoY~NYdYC8YooYdYzsdzdd~YYzozzz~CdzYzzzzCCdddddddzCsdYCCourier New (TT)Courier New (Bold) (TT)Times New Roman (TT)Times New Roman (Bold) (TT)CG Times (W1) (Italic)old Italic (Scalable)"5^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CCCCPCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYdddooPoNoNCNoddȐoNNF2ldCdddddd-GENERAL COMMUNICATIONS, INC.V) FOIA Control No. 95403 ` `  hh,V)  X-on Request for hh,V)  X-Inspection of Recordshh,V)  X -~  MEMORANDUM OPINION AND ORDER ă Adopted: May 27, 1997; Released: June 26, 1997 By the Commission:  X-XU (#5INTRODUCTION ă  X-1.` ` The Commission has before it a petition filed on March 19, 1996, by General Communications, Inc. ("GCI") seeking reconsideration of the Commission's decision released  b-on March 4, 1996 in #Xu&_ x$&7nXX#General Communications, Inc. on Requests for Inspection of Records,#Xw P7O(XP#  b-11 FCC Rcd 5373 (1996) ( #Xu&_ x$&7nXX#"March 4, 1996 Order").#Xw P7O(XP# The Commission's #Xu&_ x$&7nXX#March 4, 1996  b-Order#Xw P7O(XP# had granted in part and denied in part GCI's application for review of an initial  X-Freedom of Information Act (FOIA)b  O <ԍ#c P7P# 5 U.S.C.  552.b 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  X4-(collectively "Alascom").04h  OM <ԍ T#c P7P#he Commission's decision also denied another application for review filed by GCI on November 3, 1995, which sought review of another initial FOIA decision issued by the Bureau on October 30, 1995. GCI does not seek reconsideration of the Commission's decision denying the November 3, 1995 application for review. 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.  X- :BACKGROUND ă " `0*o(o(qq "Ԍ b-2.` ` In a #Xu&_ x$&7nXX#Memorandum Opinion and Order#Xw P7O(XP# released on May 24, 1994, WK<ԍ #b&_ x$&7KX#See Integration of Rates and Services for the Provision of Communications by Authorized Common  yW+-Carriers between Contiguous States and Alaska, Hawaii, Puerto Rico, and the Virgin Islands#c P7P#, 9 FCC Rcd 3023  yW-(1994). #b&_ x$&7KX#See also Alaska Joint Board Final Recommended Decision, #c P7P#9 FCC 2197 (1994).  the Commission adopted a plan to implement a new market structure designed to increase competition in telecommunications services to and from Alaska. As part of this plan, the Commission required Alascom to develop a cost allocation plan ("CAP") to apportion its costs between locations where Alascom faces facilitiesbased competition and locations where  Xi-Alascom has a facilities monopoly.i W* <ԍ#b&_ x$&7KX# See Alascom, Inc. Cost Allocation Plan for the Separation of Bush and nonBush Costs, #c P7P#10 FCC Rcd 9823 (1995). 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,  X$ -1995.$  WU<ԍ #b&_ x$&7KX#See Id. #c P7P#at 9823. In a related matter, on September 22, 1995, Alascom filed a tariff predicated on the  X -revised CAP approved by the Bureau in its September 11, 1995 order.58 ( O<ԍ #c P7P#Alascom, Inc. Tariff No. 11, Transmittal No. 790. In addition, on December 14, 1995, Alascom filed  yW-a second tariff that revised information offered in the September 22nd filing. #b&_ x$&7KX#See#c P7P# Alascom, Inc. Tariff No. 11. Transmittal No. 797. By order released on December 14, 1995, the Bureau announced that it would investigate Alascom's tariff filings. This investigation remains pending. 5  X -3.` ` In response to inquiries from the Bureau's staff, Alascom submitted documents  b -in support of its CAP and tariff filings. #Xu&_ x$&7nXX#See#Xw P7O(XP# Appendix A. In addition, Alascom submitted a diskette copy of the model implementing its revised CAP. In a December 1, 1995 FOIA  b-request, GCI, #Xu&_ x$&7nXX#inter alia#Xw P7O(XP# requested copies of the documents Alascom submitted in response to  X-the Bureau's requests.(  Wp<ԍ #b&_ x$&7KX#See #c P7P#Letter from Joe Edge to Andrew S. Fishel, dated December 1, 1995. By letter dated January 16, 1996, the Bureau granted in part and denied in part GCI's request, concluding that some of the documents were to be withheld under Exemption 4 of the FOIA.  b;-4.` ` In its #Xu&_ x$&7nXX#March 4, 1996,#Xw P7O(XP# 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" 0*%%33" and privileged or confidential."hI' Py<ԍ #c P7P#5 U.S.C.  552(b)(4).h 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  Y-made. iI' P<ԍ#c P7P##b&_ x$&7 X# See CNA Financial Corp. v. Donovan, # c P7P#830 F.2d 1132, 1153 (D.C. Cir. 1987), #b&_ x$&7 X#cert denied,# c P7P# 484 U.S.  xP-977 (1988).` ` #c*0 xM7 YX#ќ 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  YH-meaning of Exemption 4. HI' P <ԍ #b&_ x$&7 X#March 4, 1996 Order,# c P7P# 11 FCC Rcd at 5375,  12.  Y -5.` ` In its petition for partial reconsideration, GCI claims that a number of the  Y -documents withheld in the #Xu&_ x$&7/3XX#March 4, 1996 Order#Xw P7[hXP# 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  Yd-Commission in the #Xu&_ x$&7/3XX#March 4, 1996 Order#Xw P7[hXP# would likely cause Alascom substantial competitive harm if released. Alascom disputes these assertions, noting that the depreciation study, Part 36 study and the Form M data do not contain specific cost information disaggregated into specific site locations and that the access and intrastate records submitted by GCI do not include the data submitted by Alascom in response to the Bureau's staff inquiries.  Y-XU(#@ DISCUSSION ă  "LW   Y- "LW 6.` ` As an initial matter, we address Alascom's argument that GCI's petition for partial reconsideration should not be considered. In its petition, GCI, for the first time in  Y-this proceeding, argues that many of the documents withheld pursuant to Exemption 4 of the#b&_ x$&7 X## Xu&_ x$&7/3XX##Xw P7[hXP# FOIA contain information already within the public domain. Alascom argues that GCI has not demonstrated that this argument is based on new facts that arose or were unknown to GCI until after its last opportunity to present such facts, as required under 47 C.F.R.  1.106. GCI responds that it could not have raised this argument earlier because it was not"%s 0*%%33-"Ԍaware of the specific documents being withheld pursuant to Exemption 4 until the  Y-Commission issued its #Xu&_ x$&7/3XX#March 4, 1996 Order.#Xw P7[hXP#  Y-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  Yx-Exemption 4 only as "Attachments" to letters sent by Alascom to the Bureau staff. 1xI' P<ԍ #c P7P#For example, in specifying the documents from the November 29, 1995 submission that were to be withheld, the Bureau's order described only as "Attachments to letter from Brian Masterson, AT&T, to John Scott, FCC (Nov. 29, 1995)." The Bureau's order provided no other specific information about the withheld documents that were submitted on November 29, 1995.  No additional specific information was given about the documents being withheld until the  YJ-Commission issued its #Xu&_ x$&7/3XX#March 4, 1996 Order.#Xw P7[hXP# Thus, there is merit to GCI's claim that it  Y5-could not have raised its argument earlier than the reconsideration stage of the proceeding. i5I' P<ԍ #c P7P#GCI also complains that the #b&_ x$&7 X#March 4, 1996 Order# c P7P# did not provide specific information as to which of the documents in Alascom's November 30, 1995 submission were being withheld under Exemption 4. We have provided a listing of the documents contained in each of the three submissions in Appendix A.  Y -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  Yf-information disaggregated by specific site location.` fI' P <ԍ #c P7P##b&_ x$&7 X## c P7P##b&_ x$&7 X#See General Communications, Inc. on Requests for Inspection of Records# c P7P#, FCC 96191  7, released April 30, 1996.` In addition, Alascom's depreciation study contains information based on various accounts and is not sitespecific like the data submitted to the Bureau.  Y -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 trunkside connections, include extrapolated minutes of use, and rely on statewide 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 locationspecific basis. GCI disputes this arguing that actual conversation minutes are reported to the AECA, not "calculated minutes"  "LW "[ 0*%%33m"Ԍ  "LW 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 nonBush locations.  Yv-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  Y -Alascom's tariff, a publicly available document.pk I' P <ԍ #c P7P#This document was incorrectly identified as being among the tables contained in the December 4, 1995 submission showing implementation of Alascom's CAP model. Therefore, it was not specifically listed in  zP4 -the #b&_ x$&7 X#March 4, 1996 Order.p  Y -11.` ` GCI also generally questions our finding that these documents, if released, would likely cause Alascom substantial competitive harm. GCI has not persuaded us that our previous finding in that regard was in error. Accordingly, we affirm our original decision that these documents are not required to be disclosed pursuant to GCI's FOIA request.  Y-However, as we explained in the #Xu&_ x$&7/3XX#March 4, 1996 Order,#Xw P7[hXP# 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.  X6- !ORDERING CLAUSES ă  Y-12.` ` Accordingly, IS ORDERED that the petition for partial reconsideration filed  Y-by General Communications, Inc. on March 19, 1996 IS DENIED as explained in  Y-paragraphs 89 of this #Xu&_ x$&7/3XX#Memorandum Opinion and Order#Xw P7[hXP#, and the Commission's #Xu&_ x$&7/3XX#March 4,  Y-1996 Order#Xw P7[hXP# IS AFFIRMED except as specified in paragraph 10 of this #Xu&_ x$&7/3XX#Memorandum  Y-Opinion and Order. #Xw P7[hXP#Judicial review may be sought pursuant to 5 U.S.C.  552(a)(4)(B). In addition, pursuant to 47 C.F.R.  0.461(h)(4), Alascom will be afforded ten (10) working  Y-days from the release date of this #Xu&_ x$&7/3XX#Memorandum Opinion and Order#Xw P7[hXP# in which to seek a judicial stay. "0*%%33 "Ԍ  Y-13.` ` The Officials responsible for this action are the following Commissioners: Reed E. Hundt, Chairman; James H. Quello, Rachelle B. Chong and Susan Ness.  Y- ` `   FEDERAL COMMUNICATIONS COMMISSION  Y`- ` `  William F. Caton ` `  Acting Secretary " 0*%%33` " `(#(#  Y-XU(# Appendix A  Y- The following documents were submitted as part of Alascom's November 29, 1995 filing:  Y-(1)A description of Alascom's "Common Carrier Services Tariff Rate Development."  Yw-(2)Table of Alascom, Inc.'s Interstate Prospective Costs for 1996 (identified as "Table #2")  YI-(3)Table 3 "Alascom Historical Demand," Table 4 "Alascom Prospective Demand Forecast" and Table 5 "Alascom 1996 Demand Forecast for bush and NonBush."  Y -(4)Table containing information on Total Company Plant in Service expenses.  Y -(5)Table containing information on Total Company Depreciation Reserve  Y -(6)Table containing information on Total Expenses  Y -(7)Table containing information on Total Depreciation Expenses  Y -(8)Tables containing information on CAP model, including model results. The following documents were submitted as part of Alascom's November 30, 1995 filing:  Yc-(9)Table on Network Demand by NonBush Location.  YM-(10)Tables containing CAP Model results. The following documents were submitted as part of Alascom's December 4, 1995 filing:  Y-(11)A description of Alascom's revised "Common Carrier Services Tariff Rate Development"  Y-(12)Table containing Alascom's Demand Analysis.  Y-(13)Tables containing Alascom's Alaska Terminating Demand, Originating Demand, and Total Alaska Demand.  Y~-(14)Table listing NonBush demand by location.  Yg-(15)Chart of "Development of 1996 bush and NonBush Demand"  YP-(16)Tables listing Total Company 1996 separation categories and amounts  Y9-(17)Tables listing Total Company pro forma data.  Y"-(18)Tables showing implementation of Alascom's CAP model.  Y -(19)Prospective Rate Information Appendix D In addition, Alascom submitted a diskette containing its revised CAP (Item 20).