DE 98-133 LEVEL 3 COMMUNICATIONS L.L.C. Petition for Authority to Provide Local Telecommunications Services Order Denying Motion for Proprietary Treatment O R D E R N O. 23,026 September 22, 1998
On July 21, 1998, Level 3 Communications L.L.C. (Level 3) filed with the New Hampshire Public Utilities Commission (Commission), pursuant to RSA 374:22-g and N.H. Admin. Rules Chapter Puc 1300, a petition for authority to provide local exchange telecommunications services, pursuant to RSA 374:22-g and N.H. Admin. Rules Puc Chapter 1300. Level 3 filed a Motion for Confidential Treatment to exempt from disclosure Attachment 4, its balance sheet and income statement, filed in support of its petition, pursuant N.H. Admin. Rule Puc 204.06. Level 3 does not indicate that it has sought concurrence from the Office of the Consumer Advocate or the Commission Staff. Level 3 filed Attachment 4 in full, as is appropriate. Pursuant to Puc 204.05(b), documents submitted to the Commission or Staff accompanied by a motion for confidentiality are not disclosed to the public and are maintained as provided in 204.06(d) until the Commission rules on the Motion for Confidential Treatment. In its motion, Level 3 argues that Attachment 4 consists of confidential financial information which is within the exemptions from disclosure permitted by RSA 91-A:5,IV because it is not generally available to the public and Level 3 makes efforts to prevent disclosure of this financial information. Level 3 cites our Order No. 22,613 (June 2, 1997) in support of its argument. Furthermore, Level 3 argues that disclosure of Attachment 4 could result in an unfair competitive disadvantage by revealing the financial condition of the company with greater particularity than is revealed by compliance with the minimum capitalization requirement of Puc 1304.01(b)(1). Level 3 describes the benefits of nondisclosure as the protection of commercial information and encouragement of additional CLEC applications. We find that Attachment 4 is a balance sheet and income statement of actual, not projected, revenues. The numbers are not pro forma. This information is available in annual reports of the company. If Attachment 4 contained projected financial information valuable to competitors, i.e., a pro-forma income statement, the information, if made public, would likely create a competitive disadvantage, pursuant to Puc 204.06(c)(1). However, insofar as Attachment 4 contains financial information which would otherwise be filed as part of an annual report, i.e., the balance sheet and income statement, Level 3 fails to meet any of the requirements of Puc 204.06(c). Although we find that Level 3's filing provides the information required by Puc 204.06(b), it fails to satisfy the requirements of Puc 204.06(c). Level 3 does not demonstrate any competitive disadvantage (c)(1), no customer information is implicated (c)(2), and efforts to prevent dissemination of the information are not shown(c)(3). The Commission order cited by Level 3, Order No. 22,613 is one of the earliest filings by a CLEC for confidential treatment. Our analysis of such filings has been refined. See, Re Business Communications Networks Corporation, Order No. 22954 (June 8, 1998), and Re ICG Telecom Group, Inc., Order No 22,955, (June 8, 1998). Under the balancing test we have applied in prior cases, e.g., Re US WEST Interprise America, Inc., Order No. 22,642 (July 7, 1997); Re New England Telephone Company (Auditel), 80 NHPUC 437 (1995); Re Bell Atlantic, Order No. 22,851 (February 17, 1998); Re EnergyNorth Natural Gas, Inc., Order No. 22,859 (February 24, 1998), we find that the benefits to Level 3 of non-disclosure in this case do not outweigh the benefits to the public of disclosure with regard to Attachment 4. Based upon the foregoing, it is hereby ORDERED, that Level 3's Motion for Confidential Treatment of Attachment 4 is DENIED; and it is FURTHER ORDERED, that this Order is subject to the ongoing rights of the Commission, on its own motion or on the motion of Staff, any party or any other member of the public, to reconsider this Order in light of RSA 91-A, should circumstances so warrant. By order of the Public Utilities Commission of New Hampshire this twenty-second day of September, 1998. Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger Chairman Commissioner Commissioner Attested by: Thomas B. Getz Executive Director and Secretary