Public Knowledge Questions Redaction of Much Information Filed in AT&T/T-Mobile Docket
Public Knowledge asked the FCC to clarify how it and other organizations can challenge whether redacted information in the AT&T/T-Mobile and other proceedings should be made part of the public record. Too much of the time, AT&T and T-Mobile have stamped as confidential information they want to keep out of the public view, which is not the kind of “competitively-sensitive information” the FCC ought to protect in protective orders, Public Knowledge said in a letter signed by Legal Director Harold Feld (http://xrl.us/bmfba3).
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In the AT&T/T-Mobile docket, “again and again, the parties have claimed confidential and highly confidential protection not just for information that would put them at a competitive disadvantage, but for information that is merely embarrassing or contrary to the publicly-articulated justifications for the proposed merger,” Public Knowledge said. The group noted that even the economic justification for its merger was redacted. “A company does not gain trade secret protection over data it simply wishes were not widely known,” the letter said.
Public Knowledge said the nature of much of the information redacted by AT&T was revealed when AT&T inadvertently filed a letter at the FCC that contained information it had planned to redact, revealing that AT&T officials earlier concluded the company could get the same level of LTE coverage promised as part of the merger for a $3.8 billion investment (CD Aug 12 p1). AT&T officials decided at the time the price tag was too high.
"AT&T inadvertently showed the importance of some of its confidential data when it accidentally disclosed an unredacted version of one of its Commission filings,” Public Knowledge said. “It claims that it needs to pay $39 billion for T-Mobile’s spectrum and infrastructure to make the rural 4G upgrade possible. But its leaked confidential documents show otherwise. The leaked letter revealed that AT&T could expand LTE coverage to 97 percent of Americans through a $3.8 billion capital investment, but found there was no business case for doing so. ... Since this data contradicts its public case for the merger, AT&T has good reason to want to keep this data secret. But this does not give it grounds to claim confidentiality. Embarrassing facts are not trade secrets.”
Media Access Project Senior Vice President Andrew Schwartzman said he had similar concerns and had considered a similar filing. “AT&T has unjustifiably demanded confidential treatment for vast amounts of data,” Schwartzman said. “Most of these instances involve trivial matters in which the excessive confidentiality claims are of little consequence, but others are more substantial and interfere with citizens’ ability to explain to the public why this transfer is not in the public interest. As Public Knowledge explains, there is little incentive to tailor confidentiality claims because the FCC’s process for contesting these assertions is cumbersome and unworkable.”
AT&T spokesman Michael Balmoris said the company followed the commission’s rules on all of the information it submitted as part of the merger docket. “The Protective Orders entered in this case permit Public Knowledge full access to all materials submitted by the parties for purposes of participating in the proceeding,” he said. “AT&T’s confidential designations are fully consistent with the letter and spirit of these Protective Orders and standard regulatory practice. Public Knowledge’s desire to use this confidential information publicly would be contrary to the FCC’s Protective Orders and an abuse of this process."
Free State Foundation President Randolph May questioned whether the FCC should permit groups like Public Knowledge to publicize information gleaned in confidential filings. “What Public Knowledge says it wants to do is use information subject to confidentially claims in its public advocacy campaigns,” May said. “This does not seem to be a good reason to turn the protective order upside down since Public Knowledge admittedly has the information it needs to make its arguments to the commission.”