WPC͂ 2BJZ Courier3|x  x6X@`7X@HP LaserJet 6LHPLAS5L.PRS5x  @\\':YX@2 6 ZF f 3|x  HP LaserJet 6LHPLAS5L.PRS5x  @\\':YX@",tB^ f ^;C]ddCCCdCCCCddddddddddCCY~~vCN~sk~CCCddCYdYdYCdd88d8ddddJN8ddddYYdYddddddCddddddddd8YYYYYY~Y~Y~Y~YC8C8C8C8ddddddddddYdddddsdXdXXXddx|X~d~d|XdddddddC8ddddoddd|8|H~d|8|8dtddddHHdlLlLlLkd|H|8~dddddddXXXd~ddkd~ddxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCYQQddddddFddddFCChhd44ddxxdddvooChdF"dhddCCxCddoddCdYds]xUvdYYCCCCx~oxoY~NYdYC8YooYdYxsdxdd~YYxoxxx~CdxYxxxxCCdddddddxCsdYC\   pxtll\tll@\@\`L2*DB  f Jf CourierCG TimesCG Times BoldCG Times ItalicCG Times Bold Italic"i~'K2^18MSS888S8888SSSSSSSSSS88Jxir{icx{8Aui{x`xoYi{xxxl888SS8JSJSJ8SS..S.SSSS>A.SSxSSJJSJSSSSSS8SSSSSSSSS.xJxJxJxJxJorJiJiJiJiJ8.8.8.8.{SxSxSxSxS{S{S{S{SxSxJ{SxSxSxS{S`SxIxSxIqIqIrSrS{dgIiSiSgIxSxSxSxSxS{S{S8.SSSSz]SSuSg/g8wC;,WXw PE37XP.?7zC;,*Xz_ pi7XAx/c81,6c PE37PB6uC;,RXu&_ x7XXlC4wC;,/JIXw*0 x]7XDV"G($,lhG PE37hPEH<!,7,< PE37,Pz-b81,Ǝb&_ x7Xdddx"i~'K2^$(8<><q*"xxxxWWxxxWWkkxxx,?2?2>,H2H2H2H2H2J2J2!2222I822F2>>$?2>>J2:J2J2H2H2YHB$B$C26&6&6&62>$>?2J2J2J2J2J2^HH2@,@,@,J2?2J262?2H2<!22!!!WddddddddddddddddddddddddddddddddddddddddddddddddxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHHH222!,))22X222YY2#2222Y#!!442Ydd22<v;tg<< u=a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2A J> > ? R@a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2DCA BBCa6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technical2rGDE=FFa1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   29JGKHHIa3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . 2PkJ3J$Le(Pa8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:Theading 5heading 5" heading 6heading 6# heading 7heading 7$ heading 8heading 8% 2V&lT'vRU(rU)v:VDefault Paragraph FoDefault Paragraph Font& endnote textendnote text' endnote referenceendnote reference( footnote textfootnote text) 2]*eV+GW,eY-[footnote referencefootnote reference* toc 1toc 1+` hp x (#(#`(#`` hp x (#toc 2toc 2,` hp x (#` (#`` (#`` hp x (#toc 3toc 3-` hp x (#` (#` (#` hp x (#2d.]/_0b1v-dtoc 4toc 4.` hp x (# (# (#` hp x (#toc 5toc 5/` hp x (#h(#h(#` hp x (#toc 6toc 60` hp x (#(# (# ` hp x (#toc 7toc 71 2Mm2d3f4i5/ktoc 8toc 82` hp x (#(# (# ` hp x (#toc 9toc 93` hp x (#(#`(#`` hp x (#index 1index 14` hp x (#` (#` (#` hp x (#index 2index 25` hp x (#` (#`` (#`` hp x (#2p6m7vo8lp9Zptoa headingtoa heading6` hp x (#(#(#` hp x (#captioncaption7 _Equation Caption_Equation Caption8 1, 2, 3,?@65NumbersO@/"=(1*1÷$t ?.E91.2:d qf oq|FZA, B,t ?@65Uppercase Letters1 ?*1÷$t ?.E: .",tB^ f ^;LhddCCCdCCCCddddddddddCCdxLdxxoxxxCCCddCddYdYFdo88d8odddLL8oYdYLdddddddddCddddddddd8dddddYYYYYL8L8L8L8oddddoooozYddddxYdxddddXXddXddXdddddooL8ddddkdddx8xPxdxHx8ppoddLLdpLpLpLodxLx8xdopoopxdxLxLxLdxdoodxdxdCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddLdYYddddddCddddCCCkkd88ddzzdddsssCkdC"d~ddCCzCddoddCdYds`zUvdddCCCCzozoYNzYYYN8YooYdYzzdzddzYzYzozzzNdzzzYzzzzCCdddddddzzzzCzdYC\   pxtll\tll@\@\`L"i~'K2^18PSS888S8888SSSSSSSSSS88Sddoxd`xx8Jo]oxdxdS]xdd]]888SS8SSJSJ.SS..J.xSSSS??.SJoJJ?JSJSSSSSS8SSSSSSSSS.dSdSdSdSdSooJdJdJdJdJ8.8.8.8.oSxSxSxSxSxSxSxSxS]JdSxSxSxS]JxSdSdSdSdSnInIoSoSxddIdSdSdIxSxSxSxSxSxSxS9/SSSSSSSoS]/]<]S]/]/nSdnSoSxSxSod?d?dSS?S?S?SS]<]/]SxSxSxSxSxSo]S]?]?]?xS]SoSSS]S]Sd8SS888WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxSSS8SMMSSSSSS;SSSS;88SSS..SSddSSxSYSS8SS;"xxSxSxxS哓S88xdxxxxxxxxxx8SdS]SxoS8SxJS`xkxxxxxxxxxxMxxxxxxodxGcxxxxxxxSxxxxxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxddd]d]oJd?]JxSxJ8.oJo]]oJoSxJxddSdSS]J]Jodd]dddddx8Sx]]dJdddd88SSSSdxSSS]]]d8`SJ8Muu]daqqZZnn{{xu{{M{aZZ5M5M҅P?k2˂ X4  8 Y4#Xw PE37WXP#  Federal Communications Commission FCC 99262 `(#M ă8 X4#Xz_ pi7*X#DRAFT D3 1, 4 $8:$9 0D؟Պ#c PE376P#X01Í ÍX01Í Í#Xw PE37WXP#  b( Before the  Federal Communications Commission  X41Washington, D.C. 20554 Đ\(#\  Y4In the Matter of hhCq) ` `  hhCq)  Y_4Examination of Current PolicyhhC q)  YH4Concerning the Treatment ofhhCq) GC Docket No. 9655  Y14Confidential InformationhhCq)  Y 4Submitted to the CommissionhhCq)  X 4}  MEMORANDUM OPINION AND ORDER  X 4"TON RECONSIDERATION \ Adopted: September 28, 1999; Released: October 5, 1999 By the Commission:  Y44 I. A. 1. a.(1)(a) i) a) I. A. 1. a.(1)(a) i) a) I. A. 1. a.(1)(a) i) a) A 1. a (1)(a)(i) 1) a)1. ` `   The Commission has under consideration a petition for reconsideration filed by  Y4MCI Worldcom, Inc. (MCIW),  xP'ԍComments in this proceeding were previously filed by MCI Telecommunications Corporation, a wholly owned subsidiary of MCI Communications Corporation (MCI). MCIW is the successor to MCI. of our decision setting out our general policies governing  Y4the handling of confidential information.   xP'ԍ In the Matter of Examination of Current Policy Concerning the Treatment of Confidential Information  xP'Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998) (Report and Order).  MCIW seeks rule changes that would restrict the ability of a submitting party to seek confidential treatment of tariff cost support data and that would allow access to confidential information pursuant to a protective order while a denial of confidentiality was being appealed to the Commission. We deny MCIW's petition. In addition, we amend the rules to ensure that the General Accounting Office (GAO) has more efficient access to confidential materials, consistent with its statutory authority, and to make minor technical changes to the confidentiality portions of our Freedom of Information Act (FOIA) regulations.  Y74 2.` `  Treatment of Tariff Cost Support Data . In our Report and Order we determined that, if a carrier seeks confidential treatment of tariff support information, it must either state that it will make the information available to all parties signing a nondisclosure  Y4agreement or file a request that the information be kept completely confidential.Wx  xP&'ԍReport and Order at 24842.W If a carrier requests complete confidentiality, and the Commission determines that public participation is"0*~(~(bb^" necessary in order to determine the lawfulness of the tariff within the appropriate time frame, we stated that a streamlined tariff filing would likely be suspended. We also stated that we  Y4believed that full confidentiality would be granted only in the rarest of instances.: xPK'ԍId.: On reconsideration, MCIW asks that we clarify the way requests for confidential treatment of tariff support data will be handled. MCIW contends that total nondisclosure of tariff cost support data violates due process and is arbitrary and capricious, especially when the  Yv4standards for nondisclosure are not set forth in the rules.MvX xP 'ԍMCIW Pet. for Recon. at 29.M BellSouth Corporation (BellSouth)  Y_4opposes MCIW's petition for reconsideration.}_ xP 'ԍBellSouth was one of the "Joint Parties" filing comments in this proceeding.}  Y14 3.` `   MCIW's comments are largely repetitive of those presented in its comments in  Y 4this proceeding and in its petition for reconsideration in the Tariff Streamlining proceeding,  x xPC'ԍMCI Comments (June 14, 1996) at 1119; MCI Reply Comments (July 15, 1996) at 89; MCI Petition  xP 'for Reconsideration in CC Docket No. 96187 (Mar. 10, 1997) at 1518 (seeking reconsideration of In the  xP'Matter of Implementation of Section 402(b)(1)(A) of the Telecommunications Act of 1996, 12 FCC Rcd 2170  xP'(1997) (Tariff Streamlining)).   Y 4and we deny its petition. As we explained in our Report and Order, even if tariff cost support data is shown by a preponderance of the evidence to warrant confidential treatment, it will normally be released to interested parties pursuant to a protective order, thus affording  Y 4interested parties the opportunity to participate effectively in tariff proceedings.T `  xP'ԍReport and Order at 2484142.T MCIW complains that our order nevertheless envisioned instances where total nondisclosure of tariff  Y4cost support data might be allowed.K   xP1'ԍMCIW Pet. for Recon. at 4.K But as we explained, we envision that total  Yy4nondisclosure "would be granted only in the rarest of instances."Q y  xP'ԍReport and Order at 24842.Q Moreover, we noted that in instances where total nondisclosure is sought, the tariff is "likely to be suspended if the Commission is unable to determine the lawfulness of the tariff within the appropriate time  Y44frame without public participation.": 4 xP!'ԍId.: We believe the prospect of suspension of a tariff is likely to deter carriers from making frivolous requests for total nondisclosure of underlying cost data. At the same time, since the lawfulness of a tariff may be clear to the Commission even without public comment on the cost support data, we do not believe we should automatically suspend a tariff that requests complete confidentiality. Moreover, if any of" 0*&&bb " MCIW's concerns should come to pass in a specific case, we will have ample opportunity to weigh MCIW's concerns in the context of concrete factual circumstances. We therefore deny MCIW's petition for reconsideration in this regard.  Y4   Y44.` `  Confidentiality/FOIA Procedures . MCIW argues that the provisions of our rules providing that materials will remain confidential pending consideration of an application  Yw4for review result in "the de facto denial of applications filed by parties requesting disclosure"  Y`4because of delays in ruling on the applications for review.L ` xP'ԍMCIW Pet. for Recon. at 18.L It therefore seeks disclosure of  YI4materials under a protective order while applications for review are pending.A IX xPR 'ԍId. at 20.A Although we agree that disclosure may be delayed pending the appeals process, we also agree with BellSouth that disclosure pending review would effectively moot any applications for review because it would place the assertedly confidential information in the hands of all parties signing the protective order without first granting the objecting party the opportunity to seek  Y 4Commission or judicial review of the disclosure decision.F  xPo'ԍBellSouth Reply at 3.F We therefore deny MCIW's petition for reconsideration.  Y4 5.` `    Disclosure to the GAO.  Section 0.442 of our Rules,Fx xP'ԍ47 C.F.R.  0.442.F along with 44 U.S.C.  3510, governs disclosure of records to other federal government agencies (but not to  Yg4Congress, see 47 C.F.R.  0.442(e)). Section 0.442 currently provides that information submitted to the Commission in confidence will be disclosed to other federal agencies as long as the Commission has not given specific assurances against such disclosure, the requesting agency has established a legitimate need for the information, the confidentiality of the information will be maintained by the requesting agency, and disclosure is not prohibited by the Privacy Act or other law. 47 C.F.R.  0.442(b). A party who submits confidential information to the Commission is notified at the time the records are requested by another federal agency and may oppose the requests. No notice is provided, however, if notice will unduly interfere with law enforcement activities, in which case notice is provided once the potential for interference is eliminated. 47 C.F.R.  0.442(d)(1), (2). If the party who submitted the confidential information does not object, the information is provided to the requesting federal agency. 47 C.F.R.  0.442(d)(3). If disclosure is opposed, and the Commission decides to provide the information to the requesting agency, the submitting party is afforded 10 working days to seek a judicial stay. 47 C.F.R.  0.442(d)(4). "%0*&&bb"Ԍ Y4 6.` `     Recently, the Commission has received numerous requests for documents from GAO. The 10 day notice procedures of section 0.442 have resulted in unnecessary delay when GAO requests information that is deemed confidential by the submitting party. We do not believe this notice period is necessary, as GAO is required under its own statute, 31  Y4U.S.C.  716(e),  xP'ԍThat statute provides, "The Comptroller General shall maintain the same level of confidentiality for a record made available under this section as is required by the head of the agency from which it is obtained. Officers and employees of the General Accounting Office are subject to the same statutory penalties for unauthorized disclosure or use as officers of employees of the agency."  to maintain the confidentiality of confidential information that it obtains from the Commission. Moreover, the Commission is obligated by law to allow GAO access  Yv4to its records.lXv xP 'ԍSee 31 U.S.C.  716(a) ("Each agency shall give the Comptroller General information the Comptroller General requires about the duties, powers, activities, organization, and financial transactions of the agency. The Comptroller General may inspect an agency record to get the information."). l Given GAO's undisputed statutory authority, in our experience the 10 day period has merely resulted in delaying GAO's ability to gain access to requested information. We will therefore amend section 0.442(e) to provide that the advance notification requirement does not apply to requests from the GAO, although we will continue to provide  Y 4notice that GAO has been afforded access to the documents.  xP'ԍWe will issue a Public Notice when a large number of parties must be notified that the GAO has been given access under section 0.442(e).              We find good cause that this rule change may be made without notice and comment because it is more consistent with Congress' clear intent that GAO be afforded unimpeded access to Commission records, and  Y 4thereby better serves the public interest. See 5 U.S.C.  553(b)(B). For the same reason,  Y 4we will make this change effective upon publication in the Federal Register. See 5 U.S.C.  553(d)(3).  Yy4 7.` `  Technical Amendments to the Rules . We take this opportunity to make several minor procedural amendments to our confidentiality regulations. Section 0.459(g) will be modified to clarify that documents will not be disclosed until the Commission disposes of any application for review of the order denying confidentiality and, if a judicial stay of that order is sought, until the court disposes of the motion for stay. This is consistent  Y4with out current practice.(  xP'ԍReport and Order at 2485657; Tariff Streamlining at 221213 n.232. In addition, in the Report and Order we indicated that we would amend section 0.459 to permit third party owners of materials subject to confidentiality disputes to participate in the proceeding resolving the confidentiality issue, but by oversight  Y4section 0.459 was not so amended.]  xP+$'ԍReport and Order, 13 FCC Rcd at 24856.] Section 0.459 will be amended accordingly and  Y4corresponding changes will be made to section 0.461.    We also believe that the rules should be amended to make clear that if a response in opposition to a confidentiality request is filed,"H 0*&&bb" the party requesting confidentiality should be able to reply. Section 0.459 will be amended  Y4to so provide.  We will also correct the citation to the Paperwork Reduction Act (PRA) in 47 C.F.R.  0.442(a) and (b), because the confidentiality section of the PRA was recodified as 44 U.S.C.  3510(b). These modifications are either nonsubstantive rule changes or procedural rules that do not require notice and comment under the Administrative Procedure  Y4Act, 5 U.S.C.  553(b)(A) (rules of agency procedure do not require notice and comment).X xP'ԍSee Aluminum Co. of America v. FTC, 589 F. Supp. 169, 178 (S.D.N.Y. 1984) (holding FOIA rules  xP'are procedural rules); see also JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 32628 (D.C. Cir. 1994) (rules of agency procedure are exempt from general notice and comment requirements of the APA). For the same reason, we will make this change effective upon publication in the Federal  Y_4Register. See 5 U.S.C.  553(d).  X14  Ordering Paragraphs  Y 48.` ` IT IS ORDERED that MCIW's petition for reconsideration is DENIED.  Y 49.` ` IT IS FURTHER ORDERED that, pursuant to sections 4(i), 4(j), 303(r) and 403 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 303(r), and 403, Part 0 of the Commission's rules IS AMENDED as set forth in Appendix B, effective upon publication in the Federal Register. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCMagalie Roman Salas ` `  hhCSecretary"0*&&bb " bAPPENDIX U(Changes in Bold)  \Part 0 of Title 47 of the Code of Federal Regulations is amended as follows:  X4 Part 0 COMMISSION ORGANIZATION  Y_41.` ` The authority citation for Part 0 continues to read as follows:  X14 AUTHORITY: Sec 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise  X 4noted.  Y 42.` ` Section 0.442 is amended by revising paragraphs (a) and (b) by replacing "3508(a)" with "3510(b)," by revising paragraph (d)(1) and (e), and by creating a new subparagraph (d)(3) as follows:  X4  0.442 Disclosure to other Federal government agencies of information  Xy4submitted to the Commission in confidence. )* * * * *  Y4(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this section, a party who furnished records to the Commission in confidence will be notified at the time that the request for disclosure is submitted and will be afforded 10 days in which to oppose disclosure. )* * * * *  X}4 (d)(3) A party who furnished records to the Commission in confidence under section 0.457(d) or 0.459 will not be afforded prior notice when the disclosure is made to the Comptroller General. Such a party will instead be notified of disclosure of the  X84records to the Comptroller General either individually or by public notice. )* * * * *  Y4(e) Except as provided in paragraph (d)(3), nothing in this section is intended to  Y 4govern disclosure of information to Congress or the Comptroller General.  Y"43. ` ` Section 0.459 is amended by adding a sentence to the end of paragraph (d)(1),  Y#4by adding a sentence to the end of paragraph (g), and by creating a new paragraph (i) as follows: "V%0*&&bbe#"Ԍ X4  0.459 Requests that materials or information submitted to the Commission be withheld from public inspection.  Y4 ) * * * * *   Y4\\(d)(1) * * * If a response in opposition to a confidentiality request is filed, the  Xw4party requesting confidentiality may file a reply. pp ) * * * * * \  Y 4(g) * * * Materials will be accorded confidential treatment, as provided in  0.459(g) and  0.461, until the Commission acts on any timely applications for review of an order denying a request for confidentiality, and until a court acts on any timely  X 4motion for stay of such an order denying confidential treatment. QT* * * * *\  XM4 (i) Third party owners of materials submitted to the Commission by another  X94party may participate in the proceeding resolving the confidentiality of the materials.  Y 44. Section 0.461 is amended by revising paragraph (i) as follows:  X4  0.461. Requests for inspection of materials not routinely available for public  X4inspection.  Y4\ )* * * * * (i)(1) If a request for inspection of records submitted to the Commission in confidence under  0.457(d) or  0.459 is granted, an application for review of the action may be filed  Y>4by the person who submitted the records to the Commission or by a third party owner of  Y(4the records . The application for review and the envelope containing it (if any) shall be captioned "Review of Freedom of Information Action." The application for review shall be filed within 10 working days after the date of the written ruling, shall be delivered or mailed to the General Counsel, and shall be served on the person who filed the request for inspection of records. The first day to be counted in computing the time period for filing the application for review is the day after the date of the written ruling. If an application for review is not filed within this period, the records will be produced for inspection. The person who filed the request for inspection of records may respond to the application for review within 10 working days after it is filed. "Z%0*&&bbe#"Ԍ(2) If the request for inspection of records submitted to the Commission in confidence under  0.457(d) or  0.459 is partially granted and partially denied, the person who  Y4submitted the records to the Commission , a third party owner of the records and the person who filed the request for inspection of those records may file an application for review within the 10 working days after the date of the written ruling. The application for review and the envelope containing it (if any) shall be captioned "REVIEW OF FREEDOM OF INFORMATION ACTION." The application for review shall be delivered or mailed to the General Counsel. If either person files an application for review, it shall be served upon the other person.  Y 4 (3) If an application for review is denied, the person filing the application for  Y 4review will be notified in writing and advised of their rights. (4) If an application for review filed by the person who submitted the records to the  Y 4Commission or who owns the records is denied, or if the records are made available on review which were not initially made available, the person who submitted the records to the  Y4Commission or who owns the records will be afforded 10 working days from the date of the written ruling in which to move for a judicial stay of the Commission's action. The first day to be counted in computing the time period for seeking a judicial stay is the day after the date of the written ruling. If a motion for stay is not made within this period, the record will be produced for inspection. QT* * * * * \