Investigation 11-06-009
1. In this Protective Order, we adopt procedures to limit access to confidential information that may be filed in this proceeding. We anticipate that such information will be necessary to develop a complete record on which to base the Commission's decision and comments to the Federal Communications Commission. While we are mindful of its sensitive nature, we are also mindful of the right of the parties to participate in this proceeding in a meaningful way. We therefore will make such information available to parties19 in this proceeding, but only pursuant to this Protective Order. We conclude that the procedures we adopt in this Protective Order give appropriate access to parties while protecting confidential information from improper disclosure, and that the procedures thereby serve the public interest.20
2. Definitions. As used herein, capitalized terms shall have the following meanings:
"Acknowledgement" means the Acknowledgement of Confidentiality attached as Attachment 2 hereto.
"Competitive Decision-Making" means that a person's activities, association, or relationship with any of its clients involve advice about or participation in the relevant business decisions or the analysis underlying the relevant business decisions of the client in competition with or a business relationship with the Submitting Party.
"Confidential Information" means information that a party (either the Submitting Party or the party who provided the information to the Submitting Party) reasonably claims to be confidential information and, if revealed, would place the company at an unfair business advantage.
"Counsel" means In-House Counsel and Outside Counsel of Record.
"Employee" means a person employed by a party to this proceeding or employed by an affiliated entity and who is actively engaged in the conduct of this proceeding, provided that such person is not involved in Competitive Decision-Making.
"Highly Confidential Information" means information that the Submitting Party has kept strictly confidential; that is subject to protection under the Freedom of Information Act; that the Submitting Party claims constitutes some of its most sensitive business data which, if released to competitors or those with whom the Submitting Party does business, would allow those persons to gain a significant advantage in the marketplace or in negotiations; and that is described in Attachment 1 to this Protective Order, as the same may be amended from time to time.
"In-House Counsel" means an attorney employed by a party to this proceeding or employed by an affiliated entity and who is actively engaged in the conduct of this proceeding, provided that such attorney is not involved in Competitive Decision-Making.
"Outside Counsel of Record" or "Outside Counsel" means the attorney(s), firm(s) of attorneys, or sole practitioner(s), as the case may be, representing a party in this proceeding, provided that such attorneys are not involved in Competitive Decision-Making. The term "Outside Counsel of Record" includes any attorney representing a non-commercial party in this proceeding, provided that such attorney is not involved in Competitive Decision-Making.
"Outside Consultant" means a consultant or expert retained for the purpose of assisting Counsel or a party in this proceeding, provided that such consultant or expert is not involved in Competitive Decision-Making. The term "Outside Consultant" includes any consultant or expert employed by a noncommercial party in this proceeding, provided that such consultant or expert is not involved in Competitive Decision-Making.
"Redacted Confidential Document" means a copy of a Stamped Confidential Document where the Confidential Information has been redacted.
"Redacted Highly Confidential Document" means a copy of a Stamped Highly Confidential Document where the Highly Confidential Information has been redacted.
"Reviewing Representative" means a party or a party's Counsel, Employee or Outside Consultant who has obtained access to Stamped Confidential Documents or to Stamped Highly Confidential Documents pursuant to paragraphs 5, 6, or 8 of this Protective Order.
"Stamped Confidential Document" means any document, or any part thereof, that contains Confidential Information and that bears the legend (or which otherwise shall have had the legend recorded upon it in a way that brings its attention to a reasonable examiner) "CONFIDENTIAL INFORMATION -SUBJECT TO PROTECTIVE ORDER IN I.11-06-009." The term "document" means any written, recorded, electronically stored, or graphic material, whether produced or created by the Submitting Party or another person. By designating a document a "Stamped Confidential Document," a Submitting Party signifies and represents that it contains Confidential Information.
"Stamped Highly Confidential Document" means any document, or any part thereof, that contains Highly Confidential Information and that bears the legend (or which otherwise shall have had the legend recorded upon it in a way that brings its attention to a reasonable examiner) "HIGHLY CONFIDENTIAL INFORMATION -SUBJECT TO PROTECTIVE ORDER IN I.11-06-009." The term "document" means any written, recorded, electronically stored, or graphic material, whether produced or created by the Submitting Party or another person. By designating a document a "Stamped Highly Confidential Document," a Submitting Party signifies and represents that it contains Highly Confidential Information.
"Submitting Party" means a party who files Confidential Information and/or Highly Confidential Information in the proceeding.
3. Submitting Party's Obligations in Designating Documents. By this Protective Order, the Commission has modified its standing procedures for the submission of information claimed to be confidential (Rule 11.4), due to the expedited nature of this proceeding. The Submitting Party is not required to file a motion for submission of information and documents under seal. However, the designation of any document or information as Confidential, Highly Confidential, or Additional Copying Prohibited (see below) shall constitute a representation by the Submitting Party, subject to the Commission's Rule 1.1, that the Confidential, Highly Confidential or Additional Copying Prohibited documents meet the requirements set forth herein for such designations.
4 Copying Sensitive Documents. If, in the reasonable judgment of the Submitting Party, a Stamped Confidential Document or Stamped Highly Confidential Document contains information so sensitive that copying of it should be restricted, the Submitting Party may mark the document with the legend "Additional Copying Prohibited." A party shall receive only one copy of the document and no further copies of such document, in any form, shall be made. Motions for relief from this restriction against further copying may be filed in the proceeding.
5. Procedure for Obtaining Access to Stamped Confidential Documents. Any person seeking access to Stamped Confidential Documents and Confidential Information shall sign and date the Acknowledgment agreeing to be bound by the terms and conditions of the Protective Order; and the party on whose behalf the person seeks such access shall file the Acknowledgment in the proceeding and electronically serve it pursuant to Rule 1.10 of the Commission's Rules of Practice and Procedure. Each Submitting Party may file an objection to the disclosure of its Stamped Confidential Documents or Confidential Information to any such person no later than three business days of the date that the Acknowledgment was filed. Until any such objection is resolved by the assigned Administrative Law Judge or a law and motion Administrative Law Judge, a person subject to an objection from a Submitting Party shall not have access to Stamped Confidential Documents or Confidential Information. The provisions of this paragraph shall not be construed to apply to the Commission or its staff.
6. Access to Stamped Highly Confidential Documents. Only a party's Outside Counsel of Record, Outside Consultants and experts whom they retain to assist them in this proceeding, and their Outside Counsel's and Outside Consultants' employees may access Stamped Highly Confidential Documents and Highly Confidential Information. Any person seeking access to Stamped Highly Confidential Documents and Highly Confidential Information shall sign and date the Acknowledgment agreeing to be bound by the terms and conditions of the Protective Order; and the party on whose behalf the person seeks such access shall file the Acknowledgment in the proceeding and electronically serve it pursuant to Rule 1.10 of the Commission's Rules of Practice and Procedure. Each Submitting Party may file an objection to the disclosure of its Stamped Highly Confidential Documents or Highly Confidential Information to any such person no later than three business days of the date that the Acknowledgment was filed. Until any such objection is resolved by the assigned Administrative Law Judge or a law and motion Administrative Law Judge, a person subject to an objection from a Submitting Party shall not have access to Stamped Highly Confidential Documents or Highly Confidential Information. The provisions of this paragraph shall not be construed to apply to the Commission or its staff.
7. Use of Confidential Information and Highly Confidential Information. Persons obtaining access to Confidential Information (including Stamped Confidential Documents) or Highly Confidential Information (including Stamped Highly Confidential Documents) under this Protective Order shall use the information solely for the preparation and conduct of this proceeding before the Commission and any subsequent judicial proceeding arising directly from this proceeding and, except as provided herein, shall not use such documents or information for any other purpose, including without limitation business, governmental, or commercial purposes, or in other administrative, regulatory or judicial proceedings. The provisions of this paragraph shall not be construed to apply to the Commission or its staff.
8. Permissible Disclosure. A Reviewing Representative may discuss and share the contents of the Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, and Highly Confidential Information with another Reviewing Representative who has obtained access to such documents and with the Commission and its staff. A Submitting Party's Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, and Highly Confidential Information may also be disclosed to Employees and Counsel of the Submitting Party. Subject to the requirements of paragraphs 5 and 6, a Reviewing Representative may disclose Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, or Highly Confidential Information to: (1) paralegals or other employees of such Reviewing Party assisting them in this proceeding; and (2) employees of third-party contractors involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving documents or data or designing programs for handling data connected with this proceeding, or performing other clerical or ministerial functions with regard to documents connected with this proceeding.
9. Filings with the Commission. A party may in any document that it files in this proceeding disclose Confidential Information or Highly Confidential Information only if it files the Confidential Information or Highly Confidential Information under seal.
10. Non-Disclosure of Stamped Confidential Documents and Stamped Highly Confidential Documents. Except with the prior written consent of the Submitting Party, or upon further order or ruling of the Commission, the assigned Commissioner, the assigned Administrative Law Judge, or a law and motion Administrative Law Judge, neither a Stamped Confidential Document nor any Confidential Information, nor a Stamped Highly Confidential Document, nor any Highly Confidential Information may be disclosed further.
11. Protection of Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, and Highly Confidential Information. A Reviewing Representative shall have the obligation to ensure that access to Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, and Highly Confidential Information is strictly limited as prescribed in this Protective Order. A Reviewing Representative shall further have the obligation to ensure that Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, and Highly Confidential Information are used only as provided in this Protective Order.
12 Client Consultation. Nothing in this Protective Order shall prevent or otherwise restrict Counsel from rendering advice to their clients relating to the conduct of this proceeding and any subsequent judicial proceeding arising therefrom and, in the course thereof, relying generally on examination of Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, or Highly Confidential Information; provided, however, that in rendering such advice and otherwise communicating with such client, Counsel shall not disclose Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, or Highly Confidential Information.
13. No Waiver of Confidentiality. Disclosure of Confidential Information or Highly Confidential Information as provided herein by any person shall not be deemed a waiver by any Submitting Party of any privilege or entitlement to confidential treatment of such Confidential Information or Highly Confidential Information. Reviewing Representatives, by viewing this material, agree: (1) not to assert any such waiver; (2) not to use Confidential Information or Highly Confidential Information to seek disclosure in any other proceeding; and (3) that accidental disclosure of Confidential Information or Highly Confidential Information by a Submitting Party shall not be deemed a waiver of any privilege or entitlement as long as the Submitting Party takes prompt remedial action.
14. Subpoena by Courts, Departments, or Agencies. If a court, or a federal or state department or agency issues a subpoena for or orders the production of Stamped Confidential Documents, Confidential Information, Stamped Highly Confidential Documents, or Highly Confidential Information that a party has obtained under terms of this Protective Order, such party shall promptly notify each Submitting Party of the pendency of such subpoena or order. Consistent with the independent authority of any court, department or agency, such notification must be accomplished such that the Submitting Party has a full opportunity to oppose such production prior to the production or disclosure of any Stamped Confidential Document, Confidential Information, Stamped Highly Confidential Document, or Highly Confidential Information.
15. Violations of Protective Order. Should a Reviewing Representative violate any of the terms of this Protective Order, such Reviewing Representative shall immediately convey that fact to the Commission and to the Submitting Party. Further, should such violation consist of improper disclosure of Confidential Information or Highly Confidential Information, the violating person shall take all necessary steps to remedy the improper disclosure. The Commission retains its full authority to fashion appropriate sanctions for violations of this Protective Order, including but not limited to suspension or disbarment of Counsel from practice before the Commission; forfeitures, cease and desist orders, and denial of further access to Confidential Information or Highly Confidential Information in this or any other Commission proceeding. Nothing in this Protective Order shall limit any other rights and remedies available to the Submitting Party at law or in equity against any person using Confidential Information or Highly Confidential Information in a manner not authorized by this Protective Order.
16. Termination of Proceeding. The provisions of this Protective Order shall not terminate at the conclusion of this proceeding. Within two weeks after conclusion of this proceeding and any administrative or judicial review, Reviewing Representatives shall destroy or return to the Submitting Party Stamped Confidential Documents and Stamped Highly Confidential Documents and all copies of the same. No material whatsoever derived from Stamped Confidential Documents or Stamped Highly Confidential Documents may be retained by any person having access thereto, except Counsel may retain, under the continuing strictures of this Protective Order, two copies of pleadings (one of which may be in electronic format) prepared in whole or in part by that party that contain Confidential Information, and Outside Counsel may retain, under the continuing strictures of this Protective Order, two copies of pleadings (one of which may be in electronic format) prepared in whole or in part by that party that contain Highly Confidential Information . All Counsel shall certify compliance with these terms and shall deliver such certification to Counsel for the Submitting Party not more than three weeks after conclusion of this proceeding. The provisions of this paragraph regarding retention of Stamped Confidential Documents, Stamped Highly Confidential Documents, and copies of the same, and Confidential Information and Highly Confidential Information shall not be construed to apply to the Commission or its staff.
APPENDIX C, ATTACHMENT 1
19 Parties are determined pursuant to Rule 1.4 of the Commission's Rules of Practice and Procedure.
20 This Protective Order does not constitute a resolution of the merits concerning whether any information submitted under the Protective Order would be released publicly by the Commission upon a proper request under the Freedom of Information Act (FOIA) or otherwise.
