[Federal Register Volume 63, Number 154 (Tuesday, August 11, 1998)]
[Rules and Regulations]
[Pages 42753-42756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21260]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 36, 54 and 69

[CC Docket Nos. 96-45, 97-160, DA 98-1490]


Universal Service Order; Protective Order for Non-Rural Local 
Exchange Carriers

AGENCY: Federal Communications Commission.

ACTION: Policy statement.

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SUMMARY: This protective order for non-rural local exchange carriers 
(LECs) is intended to facilitate and expedite review of documents 
containing trade secrets and commercial or financial information 
submitted by a person or entity that are either privileged or 
confidential. It reflects the manner in which ``Confidential 
Information,'' as that term is defined herein, is to be treated in the 
universal service proceeding to select a mechanism to determine high 
cost support. The Order is not intended to constitute a resolution of 
the merits concerning whether any Confidential Information would be 
released publicly by the Commission upon a proper request.

DATES: The procedures established in this Protective Order are 
effective as of July 27, 1998.

ADDRESSES: Interested parties may file comments with the Office of 
Secretary, Federal Communications Commission, Room 222, 1919 M Street 
N.W., Washington, D.C. 20554. Comments should reference CC Docket Nos. 
96-45, 97-160 and DA 98-1490. Parties are also asked to provide copies 
of comments to Sheryl Todd, Accounting Policy Division, 2100 M Street, 
N.W., Room 8611, Washington, D.C. 20554. Parties should also send one 
copy of their comments to the Commission's copy contractor, 
International Transcription Service, 1231 20th Street, N.W., 
Washington, D.C. 20036.

FOR FURTHER INFORMATION CONTACT: Chuck Keller or Richard D. Smith, 
Accounting Policy Division, Common Carrier Bureau, at (202) 418-7400.

SUPPLEMENTARY INFORMATION: This is a summary of the Protective Order 
released by the Commission on July 27, 1998. The full text of the 
Protective Order is available for inspection and copying during normal 
business hours in the FCC Reference Center (Room 239), 1919 M St., 
Washington, DC.
    1. In the Universal Service Order, 62 FR 32862 (June 17, 1997), the 
Commission established, as one criterion in developing a forward-
looking economic cost model to determine universal service support, 
that ``all underlying data, formulae, computations, and software 
associated with the model should be available to all interested parties 
for review and comment.'' In an effort to use the best possible data 
and increase the accuracy of the models, both HAI and BCPM have 
increasingly relied upon software and databases that are confidential. 
This Protective Order has been adopted to expedite the availability for 
review of the underlying confidential information in the above-
referenced proceedings and to establish the parameters for the use and 
treatment of such information, as follows in paragraphs 2 through 21:
    2. Definitions.
    a. Authorized Representative. An ``Authorized Representative'' is 
limited to:
    (1) Counsel for the Reviewing Parties to this proceeding, including 
in-house counsel actively engaged in the conduct of this proceeding and 
their associated attorneys, paralegals, clerical staff, and other 
employees, to the extent reasonably necessary to render professional 
services in this proceeding.
    (2) Specified persons, including employees of the Reviewing 
Parties, requested by counsel to furnish technical or other expert 
advice or service or otherwise engaged to prepare material for the 
express purpose of formulating filings in this proceeding, except that 
disclosure to persons in a position to use this information for

[[Page 42754]]

competitive commercial or business purposes shall be prohibited.
    (3) Any person designated by the Commission in the public interest, 
upon such terms as the Commission may deem proper.
    b. Commission. ``Commission'' means the Federal Communications 
Commission or any employee, consultant, or agent of the Commission 
acting pursuant to and within the scope of their official 
responsibilities to the Commission.
    c. Confidential Information. ``Confidential Information'' means (i) 
information submitted to the Commission by the Submitting Party that 
has been so designated by the Submitting Party and which the Submitting 
Party has determined in good faith constitutes trade secrets and 
commercial or financial information which is privileged or confidential 
within the meaning of Exemption 4 of the Freedom of Information Act, 5 
U.S.C. 552(b)(4) and (ii) information submitted to the Commission by 
the Submitting Party that has been so designated by the Submitting 
Party and which the Submitting Party has determined in good faith falls 
within the terms of Commission orders designating the items for 
treatment as Confidential Information. Confidential Information 
includes additional copies of notes and information derived from 
Confidential Information.
    d. Declaration. ``Declaration'' means the Attachment to this 
Protective Order.
    e. Reviewing Party. ``Reviewing Party'' means a person or entity 
participating in this proceeding or considering in good faith filing a 
document in this proceeding.
    f. Submitting Party. ``Submitting Party'' means a person or entity 
that submits information for which it seeks treatment as Confidential 
Information pursuant to this Protective Order.
    3. Claim of Confidentiality. The Submitting Party may designate 
information as ``Confidential Information'' consistent with the 
definition of that term as defined in this Protective Order. The 
Commission may, sua sponte or upon petition, pursuant to 47 CFR 0.459, 
0.461, determine that all or part of the information claimed as 
``Confidential Information'' is not entitled to such treatment. Each 
page or relevant portion of any document or information furnished 
subject to the terms of this Protective Order shall be clearly 
identified as ``Confidential'' by the Submitting Party.
    4. Procedures for Claiming Information is Confidential. 
Confidential Information submitted to the Commission shall be filed 
under seal and shall bear on the front page in bold print, ``CONTAINS 
PRIVILEGED AND CONFIDENTIAL INFORMATION--DO NOT RELEASE.'' Confidential 
Information shall be segregated by the Submitting Party from all non-
confidential information submitted to the Commission. To the extent a 
document contains both Confidential Information and non-confidential 
information, the Submitting Party shall designate the specific portions 
of the document claimed to contain Confidential Information and shall, 
where feasible, also submit a redacted version not containing 
Confidential Information.
    5. Storage of Confidential Information at the Commission. The 
Secretary of the Commission or other Commission staff to whom 
Confidential Information is submitted shall place the Confidential 
Information in a non-public file. Confidential Information shall be 
segregated in the files of the Commission, and shall be withheld from 
inspection by any person not bound by the terms of this Protective 
Order, unless such Confidential Information is released from the 
restrictions of this Order either through agreement of the parties, or 
pursuant to the order of the Commission or a court having jurisdiction. 
Notwithstanding the foregoing, inspection of Confidential Information 
by parties other than Commission staff shall occur pursuant to the 
provisions of this Order and not on the premises of the Commission's 
offices.
    6. Access to Confidential Information. Confidential Information 
shall only be made available to the Commission and to Authorized 
Representatives of the Reviewing Parties. Before any Authorized 
Representative of a Reviewing Party may obtain access to Confidential 
Information, such Authorized Representative must execute the attached 
Declaration. The Reviewing Party shall not be deemed, by reason of this 
Protective Order, to have waived the opportunity to argue before the 
Commission or any other appropriate body that any Confidential 
Information is not confidential or privileged in nature. Consultants or 
agents of the Commission may obtain access to Confidential Information 
only if they have signed a non-disclosure agreement or if they execute 
the attached Declaration.
    7. An Authorized Representative of a Reviewing Party may disclose 
Confidential Information to other Authorized Representatives, as 
defined in this Order, only after advising such Authorized 
Representatives of the terms and obligations or the Order. In addition, 
before Authorized Representatives may obtain access to Confidential 
Information, each Authorized Representative must execute the attached 
Declaration.
    8. Inspection of Confidential Information. Confidential Information 
shall be maintained by the Submitting Party for inspection at a 
location designated by the Submitting Party. An Authorized 
Representative shall give the Submitting Party reasonable notice of its 
intent to review Confidential Information. The Reviewing Party shall 
not remove Confidential Information or copies thereof from the premises 
of the Submitting Party without the Submitting Party's permission, and 
shall comply with any reasonable terms that the Submitting Party places 
upon the removal of Confidential Information.
    9. Copies of Confidential Information. The Reviewing Party must 
obtain the permission and comply with the terms of the Submitting Party 
in obtaining copies of Confidential Information. The Submitting Party 
may charge a reasonable copying fee not to exceed twenty-five cents per 
page. Authorized Representatives may, upon obtaining the permission of 
the Submitting Party, make additional copies of Confidential 
Information but only to the extent required and solely for the 
preparation and use in this proceeding. Subject to any additional 
conditions imposed by the Submitting Party, Authorized Representatives 
must maintain a written record of any additional copies made and 
provide this record to the Submitting Party upon reasonable request. 
The original copy and all other copies of the Confidential Information 
shall remain in the care and control of Authorized Representatives at 
all times. Authorized Representatives having custody of any 
Confidential Information shall keep the documents properly secured at 
all times. At the conclusion of these proceedings, the Reviewing Party 
shall return the Confidential Information (and any copies thereof) to 
the Submitting Party, or shall destroy such materials and notify the 
Submitting Party in writing that it has destroyed such materials in 
accordance with this Order.
    10. Filing of Declaration. Counsel for Reviewing Parties shall 
provide to the Submitting Party and the Commission a copy of the 
attached Declaration for each Authorized Representative within five (5) 
business days after the attached Declaration is executed, or by any 
other deadline that may be prescribed by the Commission.
    11. Use of Confidential Information. Reviewing Parties shall use 
the Confidential Information only in the

[[Page 42755]]

above-referenced proceeding for the purpose of reviewing the underlying 
information and analyzing the reliability of the forward-looking cost 
models submitted in this proceeding. Confidential Information shall not 
be used by any person granted access under this Order for any purpose 
other than for use in this proceeding (including any subsequent 
administrative or judicial review), shall not be used for competitive 
business purposes, and shall not be used or disclosed except in 
accordance with this Order. This shall not preclude the use of any 
material or information that is in the public domain or has been 
developed independently by any other person who has not had access to 
the Confidential Information nor otherwise learned of its contents.
    12. No patent, copyright, trademark or other intellectual property 
rights are licensed, granted, or otherwise transferred by this Order or 
any disclosure hereunder, except for the right to use information in 
accordance with this Order. Confidential Information shall at all times 
remain the property of the Submitting Party. Confidential Information 
that is properly obtained by the Reviewing Party, however, may be used 
to conduct its own analyses using the Confidential Information. 
Moreover, any such calculations or other analyses performed by 
Reviewing Party using Confidential Information, the outcomes of which 
do not reveal protected information, shall not be considered part of 
the Confidential Information nor shall said calculations and analyses 
be the property of the Submitting Party.
    13. Pleadings Using Confidential Information. Submitting Parties 
and Reviewing Parties may, in any pleadings that they file in this 
proceeding, reference Confidential Information, but only if they comply 
with the following procedures:
    a. Any portions of the pleadings, that contain or disclose 
Confidential Information must be physically segregated from the 
remainder of the pleadings and filed under seal;
    b. The portions containing or disclosing Confidential Information 
must be covered by a separate letter referencing this Protective Order;
    c. Each page or portion of any Party's filing that contains or 
discloses Confidential Information subject to this Order must be 
clearly marked: ``Confidential Information included pursuant to 
Protective Order, CC Docket Nos. 96-45; 97-160;'' and
    d. The confidential portion(s) of the pleading, to the extent they 
are required to be served, shall be served upon the Secretary of the 
Commission, the Submitting Party, and those Reviewing Parties that have 
signed the attached Declaration. Such confidential portions shall be 
served under seal, and shall not be placed in the Commission's Public 
File unless the Commission directs otherwise (with notice to the 
Submitting Party and an opportunity to comment on such proposed 
disclosure). A Submitting Party or a Reviewing Party filing a pleading 
containing Confidential Information shall also file a redacted copy of 
the pleading containing no Confidential Information, which copy shall 
be placed in the Commission's public files. A Submitting Party or a 
Reviewing Party may provide courtesy copies of pleadings containing 
Confidential Information to Commission staff so long as the notation 
required by subsection c of this paragraph is not removed.
    14. Disclosure. In the event that the reviewing Party desires to 
disclose Confidential Information to any person to whom disclosure is 
not authorized by this Order or wishes to include, use or disclose the 
substance of Confidential Information in testimony or exhibits, 
examination or cross-examination on the public record of this 
proceeding, or wishes to object to the designation of certain 
information or materials as Confidential Information, Reviewing Party 
will notify for Submitting Party, in writing no less than four (4) 
working days prior to making any disclosure or objection, and identify 
with particularity the Confidential Information it wishes to use or 
disclose.
    15. If the Submitting Party objects to such proposed 
reclassification or disclosure, Submitting Party shall notify Reviewing 
Party, in writing, of its position and the reasons therefor no more 
than four (4) working days subsequent to receipt of the notice 
described above. Thereafter, Submitting Party may request a 
determination from the Commission regarding the manner in which the 
Commission should allow Reviewing Party to use such Confidential 
Information.
    16. Dispute Resolution. The Submitting Party and Reviewing Party 
agree that they will undertake good-faith negotiations concerning the 
disclosure of Confidential Information if any party finds that the 
terms of this Order impede the balance between the need to protect the 
commercial interest in the Confidential Information and the 
requirements of the Commission. After undertaking such negotiations, 
and upon failing to reach a mutually satisfactory resolution, 
Submitting Party and Reviewing Party agree to seek the assistance of 
Commission's staff in resolving the dispute. If there is no mutually 
agreeable resolution after negotiations and conferring with the staff, 
any party may take the issue to the Commission for resolution.
    17. Violations of Protective Order. Should a Reviewing Party that 
has properly obtained access to Confidential Information under this 
Protective Order violate any of its terms, it shall immediately convey 
that fact to the Commission and to the Submitting Party. Further, 
should such violation consist of improper disclosure or use of 
Confidential Information, the violating party shall take all necessary 
steps to remedy the improper disclosure or use. The Violating Party 
shall also immediately notify the Commission and the Submitting Party, 
in writing, of the identity of each party known or reasonably suspected 
to have obtained the Confidential Information through any such 
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 attorneys from 
practice before the Commission, forfeitures, cease and desist orders, 
and denial of further access to 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 equity against any party using Confidential Information in a 
manner not authorized by this Protective Order.
    18. Termination of Proceeding. Within two weeks after final 
resolution of this proceeding (which includes any administrative or 
judicial appeals), Authorized Representatives of Reviewing Parties 
shall destroy or return to the Submitting Party all Confidential 
Information as well as all copies and derivative materials made, and 
shall certify in writing served on the Commission and the Submitting 
Party that no material whatsoever derived from such Confidential 
Information has been retained by any person having access thereto, 
except that counsel to a Reviewing Party may retain two copies of 
pleadings submitted on behalf of the Reviewing Party. Any Confidential 
Information contained in any copies of pleadings retained by counsel to 
a Reviewing Party or in materials that have been destroyed pursuant to 
this paragraph shall be protected from disclosure or use indefinitely 
in accordance with this Protective Order unless such Confidential 
Information is released from the restrictions of this Order either 
through agreement of the parties, or

[[Page 42756]]

pursuant to the order of the Commission or a court having jurisdiction.
    19. No Waiver of Confidentiality. Disclosure of Confidential 
Information as provided herein shall not be deemed a waiver by the 
Submitting Party of any privilege or entitlement to confidential 
treatment of such Confidential Information. Reviewing Parties, by 
viewing these materials: (a) agree not to assert any such waiver; (b) 
agree not to use information derived from any confidential materials to 
seek disclosure in any other proceeding; and (c) agree that accidental 
disclosure of Confidential Information shall not be deemed a waiver of 
the privilege.
    20. Additional Rights Preserved. The entry of this Protective Order 
is without prejudice to the rights of the Submitting Party to apply for 
additional or different protection where it is deemed necessary or to 
the rights of Reviewing Parties to request further or renewed 
disclosure of Confidential Information.
    21. Effect of Protective Order. This Protective Order constitutes 
an Order of the Commission and an agreement between the Reviewing 
Party, executing the attached Declaration, and the Submitting Party.

    Authority: This Protective Order is issued pursuant to sections 
4(i) and 4(j) of the Communications Act as amended, 47 U.S.C. 
154(i), (j) and 47 CFR 0.457(d).

List of Subjects

47 CFR 54

    Universal Service.

47 CFR 69

    Communications common carriers.

Federal Communications Commission.
James D. Schlichting,
Deputy Chief, Common Carrier Bureau.

Attachment

DECLARATION
    In the Matter of Federal-State Joint Board on Universal Service, 
Forward-Looking Mechanism for High Cost Support for Non-Rural LECs (CC 
Docket Nos. 96-45, 97-160). I,________, hereby declare under penalty of 
perjury that I have read the Protective Order that has been entered by 
the Common Carrier Bureau in this proceeding, and that I agree to be 
bound by its terms pertaining to the treatment of Confidential 
Information submitted by parties to this proceeding. I understand that 
the Confidential Information shall not be disclosed to anyone except in 
accordance with the terms of the Protective Order and shall be used 
only for purposes of the proceedings in this matter. I acknowledge that 
a violation of the Protective Order is a violation of an order of the 
Common Carrier Bureau. I acknowledge that this Protective Order is also 
a binding agreement with the Submitting Party.
(signed)---------------------------------------------------------------
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[FR Doc. 98-21260 Filed 8-10-98; 8:45 am]
BILLING CODE 6712-01-M