VI. Treatment of Confidential Information

A. Parties' Positions

The Coalition seeks a rule prohibiting both ILECs and incumbent electric utilities from disclosing CLCs' requests for information and requests for access to their ROW and support structures. The Coalition argues such information should be available only to persons with an actual, verifiable "need to know" for the purposes of responding to such requests, and proposes that violation of such regulations should be visited with harsh sanctions by the Commission, accompanied by findings of fact that violation of such regulations by ILECs are a breach of the duty to fulfill the requirements of §§ 251(b) and 251 (c) of the Act, to negotiate for interconnection, in good faith.

The Coalition proposes use of a standard nondisclosure agreement to protect the confidentiality of requests for information concerning the availability of space on utility support structures, or requests for access to available space, as well as any maps, plans, drawings or other information that discloses a competitor's plans for where it intends to compete against incumbent utilities.

Pacific objects to the Coalition's proposed treatment of the CLC's confidential information as overly broad and one-sided with no reciprocal duty not to disclose the utility's proprietary information. Pacific believes in most cases, a request for access should not be considered proprietary, and a utility should not be required to erect the "Great Wall of China" around employees responsible for responding to requests for access.

Pacific proposed measures to protect the confidentiality of its own information, requiring the party requesting competitively sensitive information to sign a nondisclosure agreement. Pacific believes the party providing the information should have the right to redact any information that is non-vital to the requesting party. Edison asserts that its pole data and inventory maps are confidential and competitively sensitive, and that utilities should be permitted to require telecommunications carriers to execute the utility's nondisclosure agreements before receiving competitively sensitive pole data and mapping information.

B. Discussion

We recognize that various sorts of data exchanged between parties in negotiating access rights may contain commercially sensitive information, and each party should be permitted to request that certain data be kept confidential. As competition for telecommunications services becomes more pervasive, the need to protect commercially sensitive information from competitors may become more of an issue. The standard for protection of confidential data should not be one-sided, but should equally apply to CLCs, incumbent utilities, and any other party to an access agreement. The dissemination of information which a party has identified as commercially sensitive should be subject to reciprocal protective orders and limited only to those persons who need the information in order to respond to or process an inquiry concerning access. Parties providing confidential information should be permitted to redact nonessential data and require that nondisclosure agreements be signed by those individuals who are provided access to such materials.