The Federal Communications Commission (FCC) issued a public notice on Nov. 16, 2012 (DA-12-1855A1) notifying cable operators of a Freedom of Information Act (FOIA) request for public disclosure of pricing, tiering and system capacity data submitted to the Commission by cable companies from 1998 to 2012 as part of the FCC’s annual Cable Price Survey. The disclosure request (DA-12-1855A2) was made by a professor of economics at Stanford University, who states that he is researching "the effect of vertical integration of cable and satellite networks with content, with a focus on regional sports networks." Comments in opposition to disclosure must be filed with the FCC by Nov. 26, 2012.
Many cable companies claimed, at the time the surveys were submitted, that some or all of such data was confidential in nature. Those confidentiality claims are still pending, as the FCC generally does not decide such claims until an actual FOIA disclosure request is received.
Now, with a disclosure request having been made, the FCC has indicated that cable operators who continue to believe that their data should not be publicly disclosed must respond to the FOIA request and demonstrate that their data is entitled to confidential treatment under Sections 0.457 and 0.459 of the Commission’s rules.
Cable operators should assess whether any information as to which confidentiality previously was claimed remains commercially sensitive to a degree that the company wishes to resist public disclosure of the data by the FCC. A general sense that company data should be treated as confidential is not an adequate basis for the FCC to deny a FOIA request for disclosure. Rather, such information may be withheld by the FCC only if it is shown that the company has treated the requested information as confidential and that disclosure would be likely to cause substantial competitive injury to the company.
In deciding whether to continue to seek confidential treatment for information previously submitted in prior years’ cable price surveys, you should consider:
- Was any of the information as to which confidentiality was claimed made publicly available at the time of submission or subsequently (e.g., through publicly available rate cards, advertisements, trade press surveys, etc.)?
- Is any of the information now so old that it could no longer be demonstrated to be commercially sensitive and likely to cause substantial competitive injury to the company if disclosed?
- Are you able to explain how public disclosure of the information would be likely to cause substantial competitive injury to the company?