. - *._ JOSEPH J. STARSICK, JR. Associate General Counsel Frontier COMM UN ICATIONS 1500 MacCorkle Ave., S.E. Charleston, West Virginia 25396 (304) 344-7644 [email protected]

August 8,2018

HAND DELIVERY

Ingrid Ferrell Executive Secretary Public Service Commission 201 Brooks Street Charleston, West Virginia 25323

Re: Case No. 08-0761-T-GI

Dear Ms. Ferrell:

Enclosed for filing in the above-referenced case please find the original and twelve (12) copies of the Verified Motion of Frontier West Virginia Inc. for Protective Order in the referenced matter.

Thank you for your attention to this matter.

Very truly yours,

ksSr. WV State Bar ID No. 3576

cc: Parties of Record PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

CASE NO. 08-0761-T-GI

VERIZON WEST VIRGINIA INC., a public utility, Charleston, Kanawha County. Investigation into Quality of Service.

VERIFIED MOTION OF FRONTIER WEST VIRGINIA INC. AND CITIZENS TELECOMMUNICATIONS COMPANY OF WEST VIRGINIA D/B/A FRONTIER COMMUNICATIONS OF WEST VIRGINIA FOR PROTECTIVE ORDER

Pursuant to Rule 4.1 .f of the Commission’s Rules of Practice and Procedure,

Frontier West Virginia Inc. and Citizens Telecommunications Company of West Virginia d/b/a Frontier Communications of West Virginia (collectively and individually

“Frontier”) hereby move for an Order protecting the confidentiality of certain information filed under seal in this proceeding. All of the information in Frontier’s August 1, 201 8 closed entry report, which shows trouble rates by wire center, is public except for one column showing access lines broken down by wire center. Frontier requests confidential treatment of the information in that column.’

Disaggregated access line information reflects Frontier’s relative success in each exchange in line retention. It is even more valuable to competitor since Frontier is filing the information monthly. Competitors will be able to see Frontier’s disaggregated line losses and gains disaggregated by wire center. That information will allow them to infer on a specific geographical basis where they should next target their investment and

’ Frontier previously filed similar confidential information under seal in this docket. Through an internal miscommunication, a motion for a protective order did not accompany those prior confidential filings. This motion moves for a protective order for those filings as well. While this Motion is pending, Frontier will make the information available to any party subject to an appropriate agreement between the parties or requirement of the

Commission protecting its confidentiality.

I. The Confidential Information for Which Frontier Seeks Protection Falls within the Plain Meaning of the West Virginia Freedom of Information Act’s Definition of Trade Secret.

“Trade secrets” are “expansively defined,” AT&T Communications c!f’ West

Virginia Inc. v. Public Service Commission of West Virginia, 188 W.Va. 250, 423 S.E.2d

859 (1992), under the West Virginia Freedom of Information Act (“WVFOIA”) to include:

(1) Trade secrets, as used in this section which may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over its competitors . . .

W.Va. Code $29B-1-4( 1).

A party seeking a protective order under WVFOIA must make “a credible showing of likely harm” that would result were the information to be disclosed. See

AT&T Communications of W.Va., Inc. v. PSC, 423 S.E.2d 859, 862 (W.Va. 1992). See also Order on Motions, Hope Gas, Znc., Case No. 99-0348-G-PS (Dec. 12, 2000)

(incorporating the West Virginia Supreme Court of Appeal’s six-prong test for determining whether “good cause” has been shown for the issuance of a protective order under Stute ex rel. Johnson v. Tsnpis),419 S.E.2d 1 (1992).

2 The Commission has applied the WVFOIA’s “trade secrets” exemption numerous times to protect competitively sensitive information. See, e.g., Commission Order, West

Virginin-American Water Company, Case No. 06-0597-W-PC (January 26, 2007)

(finding information constituted “trade secrets” deserving permanent protection from disclosure, in part because the information in question contained “confidential information relating to competitive positions[ .]” and because “[Tlhese documents could not be replicated by competitors without investing considerable resources and having access to the underlying private data.”); see also Commission Order, p. 30,

Monongahela Power Co., Case No. 00-080 1-E-PC (recognizing as a protected “trade secret” information regarding “future business plans, opportunities and their relative promise, and/or strategies for implementation.”); Commission Order, Elkem Metals

Company,Case No. 02-2025-E-C (March 4, 2003) (granting protective order for various information regarding company’s pricing and operations that could be used by competitors).

This information in the Attachment is entitled to confidential treatment. First, is a

“compilation of information which is not patented.” See Verification and Affidavit of

Angela McCall. Second, it is known only to certain individuals within Frontier, who use it in connection with the reporting of information to regulators and in connection with

Frontier’s network operations. Id. Third, it was developed at a considerable expense for that purpose. JcJ. Fourth, its release would likely harm Frontier in competition.

Namely, disagregated access line information reflects Frontier’s relative success in each exchange in line retention. It is even more valuable to competitors since Frontier is filing the information monthly. Competitors will be able to see Frontier’s

3 disaggregated line losses and gains disaggregated by wire center. That information will allow them to infer on a specific geographical basis where they should next target their investment and advertising efforts. To make matters worse, those competitors, including cable competitors and others, are not required to file such information on their own operations. Hence, they will obtain an unfair competitive advantage. a.

11. Alternatively, the Commission Need Not Rule Until at Least Such Time as the Information is Received Into the Evidentiary Record and a Public Request is Made for the Information.

The Commission has on numerous occasions deferred its ruling on motions for confidential treatment until such time as an actual public request is made for the information. See, e.g., Commission Order, Case No. 09-087 1-T-PC, et al., Frontier

Communications Corp., et al. (May 13, 2010), pp. 32-33. Cj: Commission Order,

General Investigation into the Provision of 9-1-I Datu Base Management Services and

Who Pays the Costs of Such Services, Case No. 04-0102-T-GI (November 20, 2007), p.

22 & Conclusion of Law No. 15. (“[Tlhere was no need to rule” upon the protective status of sensitive information at issue there, as it was possible for the Commission to issue an Order without including that information. . . . The Commission “directled] its

Executive Secretary to maintain the information separate and apart from the rest of the file. If there is a request filed with the Commission to make such information public, the

Commission shall require the entity seeking protective treatment to argue its request for protective treatment at that time.”)

As an alternative to granting the protective treatment that Frontier requests at the present time, the Commission could take a similar approach here. Indeed, the

Commission has taken precisely this approach for prior Eligible Telecommunications

4 Carrier filings. See, e.g., General Investigation Regarding the Use of Federal Universal

Service Funding by Eligible Telecommunications Carriers in West Virginia, Case No. 13-

0503-T-G1, Commission Order, (December 4, 2013), p. 7 & Conclusion of Law No. 3.

If a request filed with the Commission to make the information public, the Commission should require Frontier to argue its request for protective treatment at that time. In the meantime, Frontier will provide the information to the parties under an appropriate confidentiality agreement.

111. Conclusion and Prayer for Relief.

For the foregoing reasons, Frontier respectfully asks the Commission for an Order as follows:

(a) That the information at issue be deemed confidential and thus protected

from disclosure by maintaining it under seal;

(b) That the use of any such confidential information in any written filings or

submissions made with the Commission be protected from disclosure; and,

(c) That the information at issue be made available to any party under an

appropriate agreement between the parties or requirement of the

Commission preventing its further disclosure.

As an alternative to the above relief, Frontier respectfully asks the Commission to enter an Order:

(a) That the Commission’s Executive Secretary keep the information separate

and apart from the rest of the file in this proceeding, and that the parties

treat the information as confidential pending further Commission Order;

and

5 (b) That the Commission, without tahng any final position on this Motion,

defer consideration of the matter until the Commission receives a request

to make the redacted material public.

FRONTER WEST VIRGINIA INC. By counsel:

Joseph J! Starsick, Jr. (WV State Bar #3576) Associate General Counsel Frontier Communications 1500 MacCorkle Avenue, S.E. Charleston, West Virginia 253 14 (304) 344-7644 J0seph.S [email protected]

6 VERIFICATION and AFFIDAVIT

STATE OF WEST VIRGINIA,

COUNTY OF MERCER, to-wit:

Angela McCall, Manager for Government and External Affairs for Frontier West Virginia

Inc., being duly sworn, says that the facts attributable to this Verification and Affidavit in the foregoing Verified Motion of Frontier West Virginia Inc. For Protective Order are true, except so far as they are therein stated to be on information, and that, so far as they are therein stated to be on infomation, she believes them to be true.

Taken, sworn to and subscribed before me this 8' day of August 201 8. CERTIFICATE OF SERVICE

I, Joseph J. Starsick, Jr., Counsel for Verizon West Virginia Inc., do hereby certify that I have served the forgoing Verified Motion of Frontier West Virginia Inc. for Protective Order upon the parties of record this 8'h day of August 2018, by U.S. Mail, postage prepaid, addressed as follows:

Lisa L. Wansley, Esquire Public Service Commission Legal Division P.O. Box 8 12 Charleston, WV 25323

David A. Sade, Esquire Jennifer Lea Stollings Consumer Advocate Division 700 Union Building 723 Kanawha Blvd., E. Charleston, West Virginia 2530 1

Steven Hamula, Esquire Fibernet, LLC 1200 Greenbrier Street Charleston, West Virginia 253 1 I

Jeffrey A. Ray 113 Platinum Drive, Suite B Bridgeport, West Virginia 26330

Benjamin B. Ware Goodwin & Ware, LLP 430 Drummond Street, Suite 200 Morgantown, West Virginia 26505

Vicent Trivelli The Law Offices of Vincent Trivelli, PLLC 178 Chancery Row Morgantown, WV 26505

Shirley Jones, Cornmissioner Angie Britton Pratt, Commissioner Jerald E. Evans, Commissioner Doddridge County Commission 118 East Court Street, Room 102 West Union, West Virginia 26456- 1297

te Bar ID #3576)