DA 90-1219 Federal Communications Commission Record 5 FCC Red No. 19

expenses between regulated and non-regulated accounts, Before the and the development of the projected inside wire expenses Federal Communications Commission underlying 's 1988 access tariffs." ld. at 2. The Washington, D.C. 20554 audits referred to in the interrogatory included a Com­ mon Carrier Bureau audit of . According to AT&T, in its decision in the Phase II Order the Com­ In the Matter of mission stated that it used these audits to confirm that the LECs had improperly assigned all NTF ("no trouble AT&T Communications, found") report costs to regulated operations. AT&T argues that the Commission relies on audit findings concerning Complainant, one LEC "to determine the propriety of such practices by other carriers, in the absence of 'credible demonstrations' v. File No. E-90-02 by the LECs that their procedures differ materially from those of the audited company." Motion at 4. Therefore, it Company, concludes that since Ameritech did not claim that there Telephone Company, are substantial differences between the inside wire time Telephone Company, reporting practices of Wisconsin Bell and Illinois and Bell, information concerning the audit of Wisconsin Ohio , and Bell is properly discoverable. Wisconsin Bell, Inc., 4. In its opposition, Ameritech attacks the interrogatory Defendants. as being overly broad in that it seeks " all documents relating to the Bureau's audits ...." It states that it should not have to "assume the risk of a response based on an ORDER incorrect interpretation of AT&T's broad language." Op­ position at 3. In addition. Ameritech asserts that AT&T Adopted: September 13, 1990 Released: September 18, 1990 has failed to establish the relevance of documents relating to Wisconsin Bell to the claims against Ohio Bell and By the Deputy Chief, Enforcement Division, Common Illinois Bell. It states that the procedures and their im­ Carrier Bureau: plementation by Wisconsin Bell technicians were different from those of Illinois Bell and Ohio Bell. Therefore, it 1. Before the Bureau is a Motion to Compel Responses maintains, discovery of documents pertaining to Wiscon­ to Interrogatories filed by AT&T Communications sin Bell would not lead to evidence concerning Illinois ("AT&T") in the above-referenced matter. Defendants Bell's or Ohio Bell's projected inside wire expenses. (collectively "Ameritech") responded to most of the ques­ Moreover, it argues that if AT&T's request includes Com­ tions propounded by AT&T in its First Set of mission audit documents, such documents are confiden­ Interrogatories. However, Ameritech objected to Interro­ tial and are not discoverable. In support it cites a gatory No. 4. Commission and a Common Carrier Bureau letter which 2. That interrogatory asked Ameritech to "[i]dentify all denied Freedom of Information Act (FOIA) requests and documents relating to the Bureau's audits in CC Docket Section 220(f) of the Communications Act, 47 U.S.C. § No. 88-1, Phase II referred to in paragraph 32 and foot­ 220(f) which prohibits Commission personnel from dis­ note 37 of Annual 1988 Access Tariff Filings, 4 FCC Red. closing information gathered during an audit absent an 4115, 4120, 4151 (1988)." Defendants argue that the ques­ order by the Commission or the court. It contends that tion "is overly broad, seeks irrelevant information which "AT&T should not be permitted to obtain indirectly is beyond the scope of the cause of action allegedly set through discovery what it cannot obtain directly from the forth in the complaint since no allegations have been Commission." Opposition at 5. made against Michigan Bell, Indiana Bell or Wisconsin 5. In its reply AT&T reiterates that since the Commis­ Bell relating to inside wire expenses. No Common Carrier sion used the audit of Wisconsin Bell to confirm its Bureau audits in CC Docket 88-1, Phase II, were per­ conclusion that Illinois Bell and Ohio Bell assigned non­ formed at Ohio Bell or Illinois Bell." Answers and Objec­ regulated expenses for inside wire repairs to regulated tions to Interrogatories at 3. accounts, documents relating to that audit are relevant. It 3. In its motion to compel, AT&T argues that the argues that Ameritech made no "credible demonstration" information it sought "is directly relevant to the issues that the procedures of those two carriers differ substan­ raised in the complaint and is required to develop a full tially from the audited carrier. In fact. according to record ...." Motion at 1. AT&T explains that in an AT&T, Ameritech's only submission on this point was the investigation in CC Docket No. 88-1 of local exchange bare assertion in its opposition that Wisconsin Bell's in­ carriers' (LECs) tariffs, the Commission concluded that side wire practices "were different from Illinois Bell's and Illinois Bell and Ohio Bell, among other LECs, had im­ Ohio Bell's procedures and implementation" with neither properly allocated certain unregulated inside wire work description nor evidence of the nature or extent of the functions to regulated accounts. 1 AT&T's complaint re­ alleged differences. Reply at 3. Moreover, it maintains that quests damages of the difference between the access rates Ameritech's current claim is inconsistent with previous it was charged and what it would have been charged but submissions to the Commission which indicated that the for the overstatement by Ameritech of its revenue require­ inside wire practices of the Ameritech operating com­ ment. AT&T states that its interrogatories sought informa­ panies are "fundamentally :;imilar." !d. AT&T also attacks tion and the identification of documents concerning Ameritech's argument that its documents concerning the Ameritech's "practices for recording time spent on inside audit are immune from discovery. AT&T asserts that wire work activities, the methods used to allocate those Ameritech's reliance on FOIA law is misplaced since that

5582 5 FCC Red No. 19 Federal Communications Commission Record DA 90-1219 statute relates to "agency records," not material in FEDERAL COMMUNICATIONS COMMISSION Ameritech's possession, "such as materials reviewed by auditors, or memoranda discussing the audit process." Id. at 4. In any event, AT&T points out that the interrogatory requested only identification of the documents. 6. Among the Commission's goals in adopting its dis­ Howard M. Wilchins covery rules was creating a full record on which to base a Deputy Chief, Enforcement Division resolution of the issues raised in a complaint. Amendment of Rules Governing Procedures To Be Followed Where Common Carrier Bureau Formal Complaints Are Filed Against Common Carriers, CC Docket No. 86-498, 3 FCC Red 1806, 1810 (1988). To that end, we follow the federal courts' broad and liberal inter­ FOOTNOTE pretation of the Federal Rules of Civil Procedure in rec­ 1 See Annual 1988 Access Tariff Filings, 4 FCC Red 4115, ognizing that "discovery should be allowed if the 4119-20, 4137-40 (1988) (Phase II Order); recon., 4 FCC Red information sought appears reasonably calculated to lead 3965, 3967-68, 3970-71 (1989). to the discovery of admissible evidence." See, e.g., Dunbar v. United States, 502 F.2d 506 (1974). In this instance, information about the Commission's audit of one Ameritech operating company is clearly relevant to the practices of other Ameritech companies absent a "credible demonstration" that the practices of the companies differ, especially when the Commission stated that it relied on the audit in reaching its conclusions about the practices of other carriers. Ameritech's bald assertion that the prac­ tices of its operating companies are different. but with no particulars. is not that type of demonstration. Accord­ ingly, we find that the information sought in the interro­ gatory is relevant. 7. Turning to Ameritech's argument that the question is overly broad, we interpret AT &T's request to identify " all documents relating to " particular audits to include only those documents which specifically relate to the audit itself, the audit process, or the materials reviewed in the audit. Documents which are beyond the scope of these categories of documents have only a "remote" relation­ ship to the audit and, without a further showing, would not be properly producible. If Ameritech is in doubt about whether a particular document should be identified and/or produced, it can request clarification from the Bureau, but we have concluded that in most circum­ stances discoverability will be clear. 8. Finally, whether documents must be disclosed under FOIA is not relevant to documents in Ameritech's posses­ sion in the context of litigation. We need not reach Ameritech's argument that AT&T should not be able to obtain material through discovery that it cannot obtain directly from the Commission since the interrogatory does not request the Commission's audit report. AT&T has merely asked Ameritech to identify the documents in its possession relating to the audit. For these reasons, we find that the information requested in Interrogatory No. 4 is discoverable and we direct Ameritech to respond fully as discussed above. If documents contain proprietary infor­ mation, the parties are instructed to implement the non­ disclosure agreement they have already negotiated within two weeks of the release of this Order. 9. Accordingly, IT IS ORDERED pursuant to authority delegated in Section 0.291 of the Rules, 47 C.F.R. § 291, that AT &T's motion to compel Ameritech to respond fully to Interrogatory No. 4 IS GRANTED under the terms and conditions set forth above.

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