BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of the Petition of ) ) DOCKET NO. UT-990022 U S WEST COMMUNICATIONS, INC. ) ) for Competitive Classification of its ) FOURTH SUPPLEMENTAL ) ORDER High Capacity Circuits in Selected ) RE: JOINT MOTION TO AMEND Geographical Locations. ) . . . . . . . . . . . . . . . . . . . . . . ) BACKGROUND On March 11, 1999, Commission Staff, AT&T, MCImetro, ELI, GST, and NEXTLINK filed with the Commission a joint motion to amend the Protective Order entered in this matter. Specifically, the joint movants request that the Commission allow the intervenor, competitively classified local exchange companies to designate certain company-specific data as “highly confidential,” pursuant to a modified Protective Order. Thereafter, access to data so designated is to be restricted to Commission Staff, who must aggregate the data into documents and provide the aggregated data as a confidential document to all parties requesting access to the data. On March 15, 1999, the Commission requested answers to the Joint Motion and, for good cause shown, shortened the time for filing answers. U S WEST filed its answer to the Joint Motion on the same day. MEMORANDUM I. JOINT MOTION TO AMEND PROTECTIVE ORDER The Joint Movants ask the Commission to amend the Protective Order entered in this matter, to permit company-specific data filed by intervenor competitively classified companies (CLECs) in response to discovery requests, to be designated as “highly confidential.” Access to data so designated would be limited to Commission Staff who have executed the standard confidentiality agreement. Staff proposes to aggregate this data into such documents as appropriate and relevant to the proceeding, and provide such documents to all parties requesting the information. A. RCW 80.36.330 1. Joint Movants Joint Movants contend that while the Commission, in determining whether to competitively classify a service, must consider several statutory criteria (1) related to the existence and availability of alternative providers and services, there is no requirement that this information be utilized on a company-specific basis. They point to US WEST’s statement that it can make a prima facie case for competitive classification, even though it is not able to quantify market share in all markets. Joint Movants further assert that neither the Commission nor any party needs company-specific information on each and every competitor of U S WEST, in order to decide whether competition exists for high-capacity circuits in the relevant markets. 2. U S WEST U S WEST objects to the joint motion’s conclusion that “[n]o party to this proceeding needs company-specific information regarding competitive providers in order to fully participate in this proceeding.” U S WEST asserts that it has been challenged in its petition for competitive classification by each intervening CLEC, and “would be unfairly prejudiced by receiving data from the intervenors in unverifiable aggregate form only.” 3. Commission Discussion and Decision The Commission finds no basis for U S WEST’s assertion that it would be unfairly prejudiced by receiving aggregate data from intervenor CLECs. The data to be assembled by Commission Staff will be verified in the same manner as if U S WEST had requested and been provided the data. Commission Staff commits to aggregating data “into a single document or set of documents.” U S WEST should work collaboratively with Staff to ensure that its information needs are met by this aggregation of data. The Commission would expect to see at a minimum the aggregation of data by central office, delineation of the number of such providers, and the total number of functionally equivalent or substitute circuits available at that central office. Other non-company-specific data also can be aggregated to provide the Commission with the information it needs to resolve U S WEST’s petition, and that information should likewise be sufficient for U S WEST’s purposes. B. Proposed Amendment 1. Joint Movants Joint Movants argue that there is no limitation restraining the Commission’s authority to issue protective orders which contain provisions that differ from the standard protective order. They note that the Commission has so designated documents in other recent proceedings. (Citations omitted.) Joint Movants request that the individual responses by AT&T, MCImetro, GST, ELI, and NextLink to certain Commission Staff data requests be treated as highly confidential with access to those documents restricted to Commission Staff. 2. U S WEST U S WEST argues that the existing Protective Order is sufficient to protect “highly confidential” information. U S WEST acknowledges the use of more restrictive amendments to standard protective orders by the Commission, but argues that in those instances there was never an intention of the parties “to hide” company-specific data. Finally, U S WEST asserts that the intervenors should comply with the same discovery requirements in this proceeding as are applied to U S WEST. 3. Commission Discussion and Decision The Commission finds no inconsistency in the compliance by CLECs with their discovery obligations in the manner proposed by Commission Staff. U S WEST has the affirmative obligation to demonstrate to the Commission’s satisfaction that the services proposed for competitive classification are in fact subject to competition in the relevant markets. “The Commission may classify a telecommunication service . . . as a competitive telecommunications service if it finds, after notice and hearing, that the service is subject to effective competition.” RCW 80.36.330(1). The proposed aggregation of data relevant to this inquiry will aid the Commission in the factual determination it is required to make. The aggregation proposed by the Joint Movants is sufficient to provide a reliable record of evidence to this end. C. Aggregation of Data 1. U S WEST U S WEST complains that the Joint Movants “fail to describe which data will be aggregated and the manner in which that aggregation will occur.” U S WEST states that it “does not object to Staff aggregating data in an effort to show that effective competition exists in the high-capacity markets within the geographic areas U S WEST has identified.” U S WEST seems to imply that any other conclusion resulting from the aggregation of the data would be unacceptable, by inferring that such a showing would be per se unreliable for the purpose for which it is offered and unfair to U S WEST in its result. 2. Commission Discussion and Decision The Commission disagrees with U S WEST regarding the value of aggregating the data and the inherent reliability of that data. The Commission needs factual information on the level and amount of competing facilities for the geographic markets in which competitive classification is sought. Part of that analysis includes the number and size of competitors and the availability of equivalent or substitute facilities and services. Aggregation is precisely the exercise that yields a significant component of the information essential to our factual determination. If U S WEST is concerned about the methodology of aggregation, and wants additional formulations of aggregated data, it is encouraged to work collaboratively with Commission Staff and the parties to meet its needs. ORDER THE COMMISSION ORDERS That the Joint Motion to Amend Protective Order is granted consistent with the above discussion and decision. DATED at Olympia, Washington this 25th day of March 1999. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION MARILYN SHOWALTER, Chairwoman RICHARD HEMSTAD, Commissioner WILLIAM R. GILLIS, Commissioner (1) In determining whether a service is competitive, factors the commission shall consider include but are not limited to: (a) The number and size of alternative providers of services; (b) The extent to which services are available from alternative providers in the relevant market; (c) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive rates, terms, and conditions; and (d) Other indicators of market power, which may include market share, growth in market share, ease of entry, and the affiliation of providers of services. RCW 80.36.330 (1).