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