[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Rules and Regulations]
[Pages 44161-44170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22001]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[GC Docket No. 96-55; FCC 98-184]


Examination of Current Policy Concerning the Treatment of 
Confidential Information Submitted to the Commission

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its rules to set out more clearly what 
should be contained in a request that information not be routinely 
available for public disclosure, provide that audit information and 
programming contracts will be presumed to be exempt from routine public 
disclosure, codify its practice of sometimes deferring action on a 
request for confidentiality until a request for inspection is made, and 
otherwise clarify its rules, delete obsolete references, and renumber 
the rules. The Commission also adopts a Model Protective Order (MPO) 
for general use.

DATES: These rules are effective November 20, 1998. Public comments on 
the information collection requirements are due on or before October 
20, 1998.

ADDRESSES: Send comments on information collections contained herein to 
Judy Boley, Federal Communications Commission, Room 234, 1919 M Street, 
N.W., Washington, D.C. 20554 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of 
General Counsel, (202) 418-1720. For additional information concerning 
information collections contained herein, contact Judy Boley at (202) 
418-0214.

SUPPLEMENTARY INFORMATION:

    1. The handling of confidential information requires the Commission 
to balance the concerns of the parties submitting information and the 
interest of the public in accessing that information. The manner in 
which the Commission performs this task affects both the competitive 
nature of the telecommunications industry and the performance of the 
Commission's public responsibilities. As the telecommunications 
industry becomes increasingly competitive, participants increasingly 
assert that the information they provide to the Commission is 
competitively sensitive. Likewise, there are an increasing number of 
disputes among competitors concerning requests for confidential 
treatment.

A. Substantiating Confidentiality Claims

    2. When a person submitting information to the Commission requests 
that it not be made available routinely to the public, 47 CFR 0.459(b) 
requires that each such request contain a statement of the reasons for 
withholding the materials from inspection and the factual basis for the 
request. We believe that specifically identifying types of information 
we need to evaluate requests for confidentiality will reduce the number 
of unsubstantiated requests that we receive and conserve the resources 
of the submitters by providing them with guidance as to what kind of 
information we require to decide a confidentiality request.
    3. Accordingly, we will amend 47 CFR 0.459(b) to list the types of 
information that should be included in a request. Where relevant, the 
following should be submitted:
    (i) identification of the specific information for which 
confidential treatment is sought;
    (ii) identification of the Commission proceeding in which the 
information was submitted or a description of the circumstances giving 
rise to the submission;
    (iii) explanation of the degree to which the information is 
commercial or financial, or contains a trade secret or is privileged;
    (iv) explanation of the degree to which the information concerns a 
service that is subject to competition;
    (v) explanation of how disclosure of the information could result 
in substantial competitive harm;
    (vi) identification of any measures taken by the submitting party 
to prevent unauthorized disclosure;
    (vii) identification of whether the information is available to the 
public and the extent of any previous disclosure of the information to 
third parties;
    (viii) justification of the period during which the submitting 
party asserts that material should not be available for public 
disclosure; and
    (ix) any other information that the party seeking confidential 
treatment believes may be useful in assessing whether its request for 
confidentiality should be granted.
    4. We do not agree that substantiation of a confidentiality request 
at the time the request is made is arbitrary and unduly burdensome. To 
the extent there are changes in, for example, the measures taken by the 
submitter to prevent disclosure, the extent to which the information 
has already been disclosed, and the degree of competition facing the 
service in question, between the time the request for confidential 
treatment is made and the time a request for disclosure is received, we 
note that submitters are permitted to update their confidentiality 
request before any records are released.

B. ``Persuasive Showing'' That Confidential Materials Should Be 
Released

    5. To obtain access to records listed in 47 CFR 0.457(d) or records 
withheld from inspection under 47 CFR 0.459(a), our current rules 
provide that the requesting party must make ``[a] persuasive showing as 
to the reasons for inspection'' in a filing which must ``contain a 
statement of the reasons for inspection and the facts in support 
thereof.'' We believe that the determinations of whether the showing 
standard has been met should continue to be made on a case-by-case 
basis. A case-by-case determination is appropriate because it requires 
a balancing of, inter alia, the type of proceeding, the relevance of 
the information, and the nature of the information. The Commission's 
current rules contemplate that the Commission will engage in a 
balancing of the public and private interests when determining whether 
the ``persuasive showing'' standard has been met. That balancing may 
well take into account the type of proceeding involved, whether the 
requestor is a party to the proceeding, and may also be affected by 
other factors, such as whether it is feasible to use a protective 
order. Because we believe that a case-by-case determination is most 
appropriate, we decline to adopt a blanket rule requiring the requester 
to demonstrate that access is ``vital'' to the conduct of a proceeding, 
necessary to the ``fundamental integrity'' of the Commission process at 
issue, or that the

[[Page 44162]]

information have a direct impact on the requestor. We also decline to 
impose a requirement that the requester prove that the information or a 
substitute cannot be obtained by other means.
    6. Commenters also point out that, where materials are voluntarily 
submitted, our rules allow a party to request that the information be 
returned if confidentiality is not granted. These commenters express a 
concern that the distinction between voluntarily submitted and required 
information may put more heavily regulated entities at a competitive 
disadvantage vis-a-vis new entrants. We recognize that a more heavily 
regulated entity may in some instances be subject to mandatory 
submissions that do not apply to a new entrant. As part of the biennial 
review process pursuant to section 11 of the Communications Act and 
otherwise, the Commission is striving to minimize any such burdens. We 
also note that whether or not materials are submitted voluntarily, the 
Commission may not return them to the submitter once it has received a 
FOIA request for the documents. Therefore, as a practical matter, once 
a request for documents is received, no submitter, whether regulated or 
not, may have its documents returned.

C. Burden of Proof

    7. Our rules provide that the party initially claiming 
confidentiality pursuant to 47 CFR 0.459(a) bears the burden of proving 
by a preponderance of the evidence that such treatment is appropriate. 
We reject the suggestion that where a party initially claims 
confidentiality, the Commission staff should bear the burden of showing 
that the information should not be accorded confidential treatment. 
Consistent with FOIA's presumption in favor of disclosure, the 
Commission's rules appropriately place the burden of showing that a 
record should not be routinely available for public inspection on the 
proponent of that claim. If a party's request has been granted, it has, 
by definition, met that burden of proof, sufficient to demonstrate that 
the information falls within FOIA Exemption 4. The types of materials 
listed in 47 CFR 0.457(d) are accepted by the Commission as 
confidential because, on a generic basis, they have been found to 
contain confidential information and are exempt from disclosure under 
FOIA Exemption 4. Similarly, the Commission may find, on its own 
motion, that specific materials should not be routinely made available 
because they contain trade secrets or confidential information. 
Thereafter, when a request is made for disclosure of materials deemed 
confidential under any of these circumstances, we agree with the 
parties commenting that the requester of such information should 
continue to bear the burden of making a persuasive showing as to the 
reasons for inspection when access to confidential information is 
sought.
    8. This burden of making a persuasive showing as to the reasons for 
inspection is consistent with FOIA's presumption in favor of disclosure 
because the burden only applies to information already determined to 
fall within Exemption 4. As discussed below, the Commission sometimes 
defers action on requests for confidentiality if a request for 
inspection has not been made. In those circumstances, if a request for 
inspection is made, we first consider whether the party submitting the 
information has met its burden of proving by a preponderance of the 
evidence that confidential treatment is appropriate, and then apply the 
persuasive showing test.

D. Model Protective Order

    9. In recent years, the Commission has tried to balance the 
interests in disclosure and the interests in preserving the 
confidentiality of competitively sensitive materials by making more use 
of special remedies such as protective orders. Protective orders can 
provide the benefit of protecting competitively valuable information 
while permitting limited disclosure for a specific public purpose. 
Nonetheless, the Commission is mindful that extensive reliance on 
protective orders may also impose burdens on the public and the 
Commission.
    10. On the whole, however, we conclude that the benefits of 
adopting an MPO for general use in Commission proceedings will be 
substantial. It will reduce the need for lengthy negotiations or 
litigation over the terms of such orders and help prevent delays in 
proceedings. It is not our intention, however, to suggest that 
protective agreements can be used for information falling outside of 
the nine categories of material exempt from disclosure under the FOIA.
    11. While we believe the MPO will prove appropriate in most 
instances where protective orders are appropriate, the Bureaus will 
retain the authority to use a different or modified protective order 
where they determine it is warranted. The MPO may also be used to 
provide limited access to information on a timely basis where the 
submitter has made a good faith request for confidential treatment of 
information pursuant to 47 CFR 0.459(a) and the Commission has not yet 
ruled on that request. The latter use is consistent with existing 
Commission practice. We note, however, that where a request for 
confidential treatment is pending, release of information, even under a 
protective order, will be delayed pursuant to 47 CFR 0.459(g) to permit 
the submitting party to file an application for review with the 
Commission and then a judicial stay.
    12. Off-Site Inspection. In some circumstances, where the quantity 
of material subject to inspection is very large, a submitting party may 
also file a request with the Commission that the entirety of the 
material not be filed with the Commission. If the Commission grants 
this request, Commission staff or any party examining the material 
under the terms of a protective order at an off-site location may 
designate portions of the material for inclusion in the record. The 
submitting party shall promptly file such designated material under 
seal in the record. This procedure will minimize the need for the 
Commission to store in a secure fashion large quantities of potentially 
irrelevant material while ensuring that relevant material is placed in 
the record.
    13. Restrictions on persons with authorized access to materials 
under the MPO. We decline to adopt the suggestion that parties 
examining information under a protective order should be limited to 
allowing review by a set number of persons with various sublimits. We 
believe such limitations may unreasonably preclude a party from 
utilizing individuals, consistent with its needs and resources, who can 
provide the requisite expertise to examine the documents. The serious 
consequences of violating a Commission protective order make this 
limitation unnecessary. We will, however, in rare instances such as 
when specific future business plans are involved, consider limiting 
access to documents to outside counsel and experts so as to minimize 
the potential for inadvertent misuse of such information. A party 
seeking this additional degree of protection must justify its request 
when filing a request for confidential treatment. In making such a 
request, a party should specify the modifications to the model 
protective order that it believes to be necessary. The Commission, as 
necessary, may seek comment from the other parties to a proceeding on 
whether such modified protective procedures are appropriate in the 
particular case at hand.
    14. Copying of confidential information under the MPO. We agree 
that a ban on copying materials subject to a protective order imposes 
an unnecessary burden on the review of

[[Page 44163]]

such information. Moreover, we believe a prohibition on copying might 
lead to a less thorough review of the confidential documents and 
accordingly to less useful public comment. We will modify the MPO to 
require a reviewing party to keep a written record of all copies made 
and to provide this record to the Submitting Party on reasonable 
request.
    15. Copying charges. We reject the proposal to delete the 25 cents 
maximum per page copying charge in the MPO and replace it with a 
reasonable cost-based maximum because we believe it is prudent to avoid 
disputes over what copying charges are reasonable by setting a maximum 
charge for copying. At the time individual protective orders are 
issued, however, the issuing Bureau may modify the maximum charge per 
page for copies as circumstances warrant.
    16. Sanctions for violations of the MPO. Current laws and 
regulations already provide the Commission and the courts with a broad 
range of sanctions for violations of Commission orders. Nonetheless, we 
modify the MPO to include more examples of the available sanctions for 
addressing violations of our protective orders to (i) specify that 
possible sanctions for violation of a protective order include 
disbarment from Commission proceedings, forfeitures, cease and desist 
orders, and a denial of access to confidential information in that and 
other Commission proceedings; (ii) clarify that the MPO is also an 
agreement between the reviewing parties and the submitting party; (iii) 
clarify that the submitting party retains all rights and remedies 
available at law or equity against any party using confidential 
information in a manner not authorized by the protective order; and 
(iv) require violating parties to notify immediately the Commission and 
the submitting party of the identity of anyone who improperly obtains 
or uses the confidential information.
    17. Duration of confidentiality protection. While we recognize that 
many types of confidential information become less sensitive as time 
passes, we do not believe that there is a sufficient basis in the 
record to limit treatment under a protective order to any set period. 
Accordingly, we will address claims of staleness on a case-by-case 
basis. The prohibition on the unauthorized disclosure or use of the 
confidential information remains binding indefinitely unless the 
submitting party otherwise agrees or the Commission or a court 
determines that particular information should be released from 
restrictions contained in the protective order. We also modify the MPO 
to allow a reviewing party to retain attorney work product containing 
confidential information, so long as that information remains subject 
to the MPO.
    18. Use of confidential materials subject to the MPO in other 
proceedings. We believe that routinely allowing confidential 
information from one proceeding to be used in other proceedings will 
increase the burdens, risks, and disputes associated with protective 
orders. Therefore, as a general matter, we will allow information 
subject to a protective order to be used only in the proceeding in 
which it was obtained. However, we reserve the right to permit the use 
of protected material in more than one Commission proceeding in the 
exceptional case where the Commission finds that such use would be in 
the public interest. A party seeking to use protected information 
obtained in one proceeding in another proceeding may file a petition 
with the Commission explaining why such use of the protected 
information is appropriate. Any such petition shall ensure that any 
protected information contained in or accompanying the petition is 
protected from public disclosure.
    19. Other MPO issues. The MPO, as originally proposed, already 
contains the requirement that all authorized representatives be 
required to execute non-disclosure agreements agreeing to be bound by 
the terms of the protective order. We will not adopt for general usage 
the suggestion that confidential information be made available only to 
an independent auditor. While appropriate in very unusual cases, this 
procedure would be impractical for conventional Commission proceedings. 
Finally, we reject the suggestion that we adopt a protective order that 
divides confidential information into two classes to be treated 
differently. A standard protective order that further subdivides the 
categories of confidential information, treats them differently, and 
denies parties the ability to copy any information from certain 
categories, would impose undue burdens on parties reviewing information 
and the Commission.

E. Issues That Arise With Respect to Specific Types of FCC 
Proceedings.

    20. Title III Licensing Proceedings. Although our rules specify 
that broadcast and other Title III license applications are routinely 
available for public inspection, applicants sometimes request 
confidential treatment pursuant to 47 CFR 0.459. We agree that a party 
should not be required to forego trade secrets as a condition of 
obtaining a Commission license, but note that, with the exception of 
experimental licenses, most information submitted in Title III 
licensing proceedings should be made publicly available. We will 
continue the practice of making broadcast and other Title III license 
applications routinely available for public inspection. We expect that 
requests for confidentiality or protective orders in licensing 
proceedings will and should remain relatively rare. Nevertheless, the 
Commission will consider requests pursuant to 47 CFR 0.459 of our rules 
to limit disclosure of confidential information to individuals and 
entities who file a petition to deny and who execute a protective 
order. Where appropriate, the Commission will issue protective orders 
consistent with the MPO discussed previously. We agree that if the 
Commission decides to permit disclosure of certain information only 
pursuant to a protective order, the petitioner should be given an 
opportunity to file or supplement its petition to deny the license 
after it has had an opportunity to review the protected material. If 
the Commission decides to issue a protective order, interested parties 
generally will be given at least 30 days from the date the protected 
material becomes available to file or supplement a petition to deny.
    21. Tariff Proceedings. Recently we have adopted new procedures to 
handle confidentiality requests in tariff review cases. First, in In 
the Matter of Implementation of Section 402(b)(1)(A) of the 
Telecommunications Act of 1996, Report and Order, 62 FR 5757 (February 
7, 1997) (Tariff Streamlining), petitions for reconsideration pending, 
we concluded that pre-effectiveness tariff review was required to 
implement Section 204(a)(3) of the Communications Act. Tariff 
Streamlining concluded that requests for confidentiality could not be 
resolved in the 7 or 15-day pre-effective review period. We therefore 
adopted a procedure for handling confidentiality requests in this 
context. A protective order will be issued where the submitting party 
includes with the tariff filing a showing by a preponderance of the 
evidence that the data should be accorded confidential treatment 
consistent with the provisions of the FOIA or makes a sufficient 
showing that the information should be subject to a protective order. 
To do this, a submitting party must comply with 47 CFR 0.459(b) and (c) 
of our rules to demonstrate that its supporting data should be afforded 
confidential treatment. If it does so, a standard

[[Page 44164]]

protective order will be issued. No written determination by the Bureau 
will be made because of the short time frames involved. If an 
investigation occurs, the Bureau can make a further determination 
concerning the carrier's entitlement to confidentiality. Subsequent to 
Tariff Streamlining, the Common Carrier Bureau decided to apply the 
protective order adopted for streamlined tariffs in non-streamlined 
tariff filings where the submitting party demonstrates that cost 
support data should be afforded confidential treatment. Southwestern 
Bell Telephone Co., 12 FCC Rcd 10271 (Common Carrier Bureau 1997), 
application for review denied, 13 FCC Rcd 3602 (1997).
    22. The procedures adopted in Tariff Streamlining, with the 
following modifications, will continue to govern confidentiality 
requests in both streamlined and non-streamlined tariff review 
proceedings. First, if a carrier seeks confidential treatment for 
tariff support information, it must either state that it will make its 
cost support information available to those signing a nondisclosure 
agreement, or file a request that the cost support information be kept 
entirely confidential. The request that information be released only 
pursuant to a protective order or that it be kept entirely confidential 
must include the supporting information required by 47 CFR 0.459(b) of 
our rules. We note that in the latter case, streamlined filings are 
likely to be suspended if the Commission is unable to determine the 
lawfulness of the tariff within the appropriate time frame without 
public participation. This would allow us to rule on the request for 
complete confidentiality, which we believe would be granted only in the 
rarest of instances. In addition, the protective order to be used in 
tariff review proceedings will be the one adopted in this proceeding, 
in place of the one adopted in Tariff Streamlining. We note that the 
MPO we adopt here does not differ substantially from that previously 
adopted, and that we specifically noted in Tariff Streamlining that 
this proceeding might modify the protective order adopted there.
    23. We have decided not to establish different procedures for the 
tariff review and the tariff investigation stage because, although the 
decisions to allow tariffs to go into effect are non-final, non-
judicially reviewable orders, we believe public comment is important in 
determining the lawfulness of rates at this stage, especially given the 
short time frames in streamlined proceedings. We have also decided not 
to require filing of confidential information in advance of a tariff 
filing because that would cause delays in the tariff filing process 
Congress may not have intended.
    24. Rulemaking Proceedings. The Commission generally has not 
afforded confidential treatment to material submitted in rulemakings, 
although on rare occasions protective agreements have been used in the 
context of rulemakings. Material submitted in rulemakings will continue 
to be routinely available for public inspection because, as the 
commenters who addressed rulemakings acknowledge, rulemakings have a 
broad impact on the public, and wide public participation, with a full 
opportunity to comment, is contemplated by the Administrative Procedure 
Act.
    25. To the extent that submissions made in rulemakings involve 
sensitive commercial information, one option is to utilize protective 
orders, as has been our policy in other procedural settings. Protective 
orders generally are not practical solutions in rulemakings, however, 
because rulemakings frequently involve numerous parties. Use of 
protective orders could also inhibit full public participation in 
proceedings that are of broad public interest. Nonetheless, a blanket 
refusal to apply protective orders in the context of rulemakings, or 
refusal to consider information accompanied by a request for 
confidentiality, could ultimately result in the Commission not having 
access to information that is highly relevant to our ultimate 
decisions. Accordingly, although we expect to act favorably upon them 
only in extremely rare instances, we will consider requests for 
confidential treatment that propose to limit the availability of 
confidential information in rulemaking proceedings to those who have 
executed a protective order. Parties seeking confidential treatment 
should request the Commission to return the materials without 
considering them, pursuant to 47 CFR 0.459(e) of our rules, if the 
request for confidentiality is denied, as we expect it would be in most 
cases. We note, however, that the Commission cannot return information 
if a FOIA request has been filed. Parties should also consider the 
option of presenting information in a manner that reduces or eliminates 
its commercial sensitivity, since, if such options are available, or if 
public disclosure of the information does not present a serious 
potential for competitive harm, we would not be inclined to authorize 
protective orders.
    26. Requests for Special Relief and Waivers. The comments reveal no 
need to modify our existing confidentiality rules for use in Commission 
proceedings dealing with requests for relief or special waivers. Thus, 
we will continue to consider requests for confidentiality on a case-by-
case basis. Where appropriate, we may make information available only 
subject to a protective order.
    27. Formal Complaints. The parties generally suggested little 
change to our current treatment of confidential information submitted 
to the Commission during formal complaints, and we agree that our 
current procedures are generally workable. We note, however, that the 
MPO adopted herein may be used by the parties to formal complaints and 
may be imposed by the Commission where parties cannot resolve discovery 
disputes between themselves. The suggestion that we eliminate discovery 
in formal complaint proceedings is beyond the scope of this proceeding.
    28. Audits. The Commission has a longstanding policy of treating 
information obtained from carriers during audits as confidential. Since 
we are able to make a finding that audit materials received from 
carriers generally fall within FOIA Exemption 4, and as an indication 
of the importance we place on upholding the confidentiality of these 
materials, we will amend 47 CFR 0.457 of our rules to indicate that 
information submitted in connection with audits, investigations and 
examination of records will not routinely be made available for public 
inspection. In the context of an FOIA request, the Commission would 
still need to make a particularized determination that the information 
is exempt from disclosure.
    29. As previously discussed, we have only rarely departed from the 
general policy of withholding audit information from public disclosure. 
Parties should note, however, that, we may publicly disclose audit 
information in rare cases where the underlying concerns that normally 
lead us to withhold audit information from public disclosure are 
diminished by the minimal risk posed by the release of aggregate data 
or, where the data is otherwise not highly commercially sensitive and 
disclosure is justified by significant public interest factors. We do 
not believe that carriers need be given an opportunity to object to the 
proposed disclosure of audit data in aggregate form, where the data 
does not reveal the confidences of any individual company.
    30. Some parties expressed concern about the indication in footnote 
109 of the Notice that the Bureaus and Offices have the authority to 
disclose audit records where the information is required to be 
disclosed under the

[[Page 44165]]

provision of the FOIA. We note that the Commission has previously 
delegated authority to the Common Carrier Bureau to (1) approve the 
release to state public utility commissions of information that the 
Bureau may obtain during the course of audit activities and that falls 
within the common interest and jurisdiction of the Commission and the 
states, and (2) act on requests for audit information that are filed 
pursuant to the FOIA, including the authority to furnish copies of 
documents and other records. We continue to believe this delegation is 
fully consistent with section 220(f) of the Communications Act.
    31. Surveys and Studies. We believe the best way to protect the 
confidentiality of these items is to allow survey and study respondents 
to request confidential treatment pursuant to 47 CFR 0.459 to the 
extent they can show by a preponderance of the evidence a case for non-
disclosure consistent with the FOIA. Assessments of the confidentiality 
of this information will be made on a case-by-case basis, as the nature 
of the information obtained in surveys and studies vary greatly.
    32. Other Proceedings. While we have discussed in some detail how 
confidential information will be treated in seven specific types of 
proceedings, we expect that the principles set forth in this Report and 
Order will also apply in other types of proceedings not specifically 
discussed above. Thus, for example, United States international 
carriers classified as dominant due to a foreign affiliation could seek 
confidential treatment of some quarterly reports regarding provisioning 
and maintenance and circuit status. We would expect to use the model 
protective order or a modified version thereof to protect confidential 
information if a sufficient case were made for confidential treatment 
of such reports. We also would expect to use the standard protective 
order where contributors to universal service support mechanisms 
justify non-disclosure of company-specific data pursuant to 47 CFR 
54.711(b) of the rules as well as in proceedings under section 271 of 
the Communications Act regarding Bell Operating Company entry into 
interLATA services. We expect that the off-site inspection procedures 
described above may prove useful in certain merger proceedings 
involving voluminous materials that are subject to claims of 
confidentiality.

F. Scope of Materials Not Routinely Available for Public Inspection

    33. We believe that the suggestion that 47 CFR 0.457(d) be replaced 
with provisions that automatically accord confidential treatment to any 
non-public information that can offer a competitor an advantage over 
the submitting party is overly broad. We also reject the suggestion 
that we categorically include ``information provided voluntarily to the 
Commission subject to a certification by the provider that such 
information is not customarily disclosed.'' Since judicial standards on 
the issue of ``voluntary'' submission are highly fact-specific and 
continue to evolve, we believe it is better to look at such requests on 
a case-by-case basis under our current rules. Nevertheless, we do not 
agree that we should reject all proposals classifying specific 
categories of information as confidential. It is certainly possible to 
identify categories of information that are likely to fall within FOIA 
Exemption 4. Identifying such categories reduces administrative burdens 
on submitters and the Commission. We conclude that certain programming 
contracts fall squarely within Exemption 4. The Commission has 
consistently recognized that disclosure of programming contracts 
between multichannel video program distributors and programmers can 
result in substantial competitive harm to the information provider and 
has afforded confidential treatment to such contracts in a variety of 
contexts. We believe that protecting such confidential information is 
compatible with the public interest, and the requirements of FOIA 
Exemption 4.
    34. Therefore, we amend 47 CFR 0.457 of our rules to state that 
programming contracts between programmers and multichannel video 
programming distributors will not be routinely available for public 
inspection. We note, however, that, consistent with our current rules, 
such contracts may be made available subject to the MPO in situations 
where they are relevant to the dispute at hand, e.g., program access 
complaints.
    35. Parties urge expanding the list of information not routinely 
available for public disclosure to include ``[i]nformation submitted in 
connection with audits, investigations and examination of records.'' We 
addressed the recommendation in the previous discussion on audit 
material, where we expanded the list of information not routinely 
available for public inspection to include that type of data.
    36. The submission of confidential materials to the Commission can 
pose problems in the drafting of agency decisions. In most instances, 
we expect it will be possible to write an order without publicly 
revealing the confidential information. In some instances, this may 
involve stating a conclusion that does not reveal confidential 
information, backed up by a citation to confidential information in the 
record that generally will have been available to parties signing a 
protective order. In other instances, orders may refer to industry-wide 
data that is aggregated in a manner that does not reveal confidential 
information. Some commenters suggest that submitters should be notified 
and given the opportunity to object, even when the data is aggregated, 
prior to the release of the data. As discussed above, we disagree. 
Aggregation of data ensures that confidential materials are released in 
a form that removes confidentiality issues. Similarly, releasing an 
order that cites to but does not reveal confidential information 
remedies confidentiality concerns. We therefore decline to adopt the 
commenters' suggestion as a matter of routine policy.
    37. One court has suggested that an order relying on confidential 
materials might be released all or in part under seal. We have only 
rarely engaged in this practice, and are not aware of its widespread 
use by other administrative agencies, although we note that the courts 
do utilize this approach. We consider this option to be a last resort 
when reference to confidential materials is necessary to support our 
decisions. In such cases, we note, the sealed decision and the 
confidential part of the record can be transmitted to the court under 
seal if judicial review is sought.

G. Clarifications to Commission Rules

    38. Deferral of rulings on confidentiality requests. We will amend 
47 CFR 0.459 to indicate that, based on considerations of 
administrative efficiencies, rulings on requests for confidentiality 
may in some instances be deferred until a request for inspection has 
been made. As long as the request for confidential treatment remains 
pending before the Commission, the information will be treated 
confidentially. In other instances, including, for example, where the 
information is gathered specifically so that it may be published in 
Commission reports, rulings on requests for confidentiality would 
likely be made even in the absence of requests for inspection. We will 
provide in our rules that the submitter will be notified of a request 
for inspection. At the time a request for inspection is made, the 
submitter may supplement its request for confidentiality, or revise it.
    39. Changing the title of Section 0.457(d) and deleting the 
introductory paragraph. The Commission also proposed to amend the title 
of 47 CFR

[[Page 44166]]

0.457(d) of its rules to describe better the Section's contents as 
follows: ``Certain trade secrets and commercial or financial 
information obtained from any person and privileged or confidential--
categories of materials not routinely available for public 
inspection.'' One party suggests leaving out the word ``certain,'' as 
it may lead to confusion. We will adopt this proposal along with the 
suggested amendment. We will also delete as unnecessary the 
introductory paragraph of 47 CFR 0.457(d), which is derived from the 
June 1967 Attorney General's Memorandum on the Public Information 
Section of the Administrative Procedure Act, and does not necessarily 
reflect the current state of the law concerning Exemption 4.
    40. Defining ``Required'' versus ``Voluntary''. Some parties seek 
clarification of the required submission vs. voluntary submission 
distinction as applied to our confidentiality rules. As a more general 
matter, we decline to make these clarifications, preferring that the 
distinction between ``required'' and ``voluntary'' for Exemption 4 
purposes be examined on a case-by-case basis, in light of the evolving 
case law. The provision in 47 CFR 0.459(e) of the rules governing the 
return of materials that are submitted voluntarily was adopted prior to 
Critical Mass Energy Project versus Nuclear Regulatory Commission, 975 
F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 (1993). 
For purposes of this rule, our use of the term ``voluntary'' was not 
intended to be co-extensive with the legal distinctions articulated in 
the Critical Mass decision. We shall also modify 47 CFR 0.459(e) to 
clarify that, if the information is subject to a request for 
inspection, it will not be returned. When requesting that information 
be afforded confidential treatment, a submitter will be required to 
indicate whether information provided is customarily disclosed to the 
public and the extent of any prior disclosure. We will assess this 
submission in making our confidentiality determination.
    41. Opportunity to comment. We agree that if the information 
belongs to third parties, they should be afforded the opportunity to 
participate in the Commission proceeding resolving the confidentiality 
issue. 47 CFR 0.459 will be amended accordingly.
    42. Clarification of review procedures. We find no need to clarify 
the procedures for review of denials of confidentiality requests as 
these matters are already addressed by the Commission's current rules. 
Specifically 47 CFR 0.459(g) provides that, if a request for 
confidentiality is denied, the requester may, within five working days, 
file an application for review by the Commission. If the application 
for review is denied, the requesting party will be afforded 5 working 
days in which to seek a judicial stay of the ruling. In such 
circumstances, the material is not released until the court denies a 
stay request. Similar provisions govern situations in which the records 
are the subject of a FOIA request. We believe that these procedures 
provide parties with sufficient opportunity to obtain timely and 
independent review of Bureau and Commission decisions denying 
confidentiality.
    43. Deletion of obsolete references and renumbering of rules. We 
will take this opportunity to update 47 CFR 0.457(d)(1) of our Rules. 
Under 47 CFR 0.457(d)(1)(i), financial reports filed under former 47 
CFR 1.611 are not routinely made available for public inspection. 47 
CFR 1.611 of our Rules was deleted when we eliminated the regular 
filing of financial reports by broadcast stations. We also no longer 
require radio or television networks to file financial reports. 
However, these reports are permanent records and therefore still exist. 
We will therefore amend 47 CFR 0.457(d)(1)(i) to indicate that 
financial reports submitted pursuant to former 47 CFR 1.611 remain not 
routinely available for public inspection. The parenthetical to 47 CFR 
0.457(d)(1)(i) states that ``fees paid on consummation of the 
assignment or transfer of a broadcast station licenses, pursuant to 
Sec. 1.1111 of this chapter, are computed from information contained in 
financial reports submitted pursuant to Sec. 1.611. Information and 
correspondence concerning such computations are not routinely available 
for public inspection.'' Fees for the assignment or transfer of 
broadcast stations are now set by statute as reflected in 47 CFR 1.1104 
of our rules. Therefore, we will eliminate the parenthetical portion of 
47 CFR 0.457(d)(1).
    44. Section 0.457(d)(1)(iii) of our rules provides that ``Schedules 
2, 3, and 4 of financial reports submitted for cable television systems 
pursuant to Sec. 76.403 of this chapter'' are not routinely available 
for public inspection. Section 76.403 was deleted in 1983 and cable 
television financial reports were eliminated at that time. While the 
Commission indicated that reports previously filed under 47 CFR 76.403 
would continue to be afforded confidentiality under 47 CFR 0.457(d), 
these reports have been destroyed pursuant to our records retention 
schedules. In addition, 47 CFR 0.457(d)(1)(iv) of our rules indicate 
that the ``annual fee computation forms submitted for cable television 
systems pursuant to 76.406 of this chapter'' are not routinely 
available for public inspection. These forms are no longer used. 
Section 76.406 was deleted from our rules in 1982. Under our record 
retention schedules, any such forms previously filed should have been 
long since been destroyed. We will therefore eliminate 47 CFR 
0.467(d)(1)(iii) and 0.467(d)(1)(iv) from our rules as unnecessary. If 
the reports have inadvertently not been destroyed, however, we intend 
that they remain not routinely available.
    45. Section 0.457(d)(2) lists various materials submitted 
confidentially to the Commission prior to March 25, 1974. We will 
renumber this subsection as part of 47 CFR 0.457(d)(1). We will also 
renumber current 47 CFR 0.457(d)(2)(i) as a new 47 CFR 0.457(d)(2).

H. Final Regulatory Flexibility Act Certification

    46. Our document incorporated an initial regulatory flexibility 
analysis of the proposed rules. No comments were received. Section 604 
of the Regulatory Flexibility Act, as amended, requires a final 
regulatory flexibility analysis in a notice and comment rulemaking 
proceeding unless we certify that ``the rule will not, if promulgated, 
have a significant economic impact on a significant number of small 
entities.'' The rule modifications adopted herein largely codify the 
Commission's existing practices regarding confidential information, and 
therefore will not have a substantial economic effect on small 
entities. We therefore certify, pursuant to Section 605(b) of the 
Regulatory Flexibility Act, that the rules will not have a significant 
economic impact on a substantial number of small entities. The Office 
of Public Affairs, Reference Operations Division, shall send a copy of 
this Report and Order, including this certification and statement, to 
the Chief Counsel for Advocacy of the Small Business Administration.

I. Paperwork Reduction Act

    47. This Report and Order contains new and modified information 
collections. As part of the Commission's continuing effort to reduce 
paperwork burdens, we invite the general public and the Office of 
Management and Budget (OMB) to comment on the information collections 
contained in this Order, as required by the Paperwork Reduction Act of 
1995, Public Law 104-13. Public and agency comments are due October 20, 
1998. Comments may address the following: (a) whether the

[[Page 44167]]

proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. Written comments on the proposed 
information collections must be submitted on or before October 20, 
1998. In addition to filing comments with the Secretary, a copy of any 
comments on the information collections contained herein should be 
submitted to Judy Boley, Federal Communications Commission, Room 234, 
1919 M Street, N.W., Washington, DC 20554, or via the Internet to 
<[email protected]>. For additional information concerning the information 
collections contained in the Report and Order contact Judy Boley at 
202-418-0214.

J. Ordering Clauses

    48. It is ordered that, pursuant to Sections 4(i), 4(j), 303(r) and 
403 of the Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 303(r) 
and 403, this Report and Order is hereby adopted and Part 0 of the 
Commission's rules are amended.

List of Subjects in 47 CFR Part 0

    Freedom of information.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 0 of Title 47 of the Code of Federal Regulations is amended as 
follows:

PART 0--COMMISSION ORGANIZATION

    1. The authority citation for part 0 continues to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 
225, unless otherwise noted.

    2. Section 0.457 is amended by revising paragraph (d) to read as 
follows:


Sec. 0.457  Records not routinely available for public inspection.

* * * * *
    (d) Trade secrets and commercial or financial information obtained 
from any person and privileged or confidential--categories of materials 
not routinely available for public inspection, 5 U.S.C. 552(b)(4) and 
18 U.S.C. 1905.
    (1) The materials listed in this subparagraph have been accepted, 
or are being accepted, by the Commission on a confidential basis 
pursuant to 5 U.S.C. 552(b)(4). To the extent indicated in each case, 
the materials are not routinely available for public inspection. If the 
protection afforded is sufficient, it is unnecessary for persons 
submitting such materials to submit therewith a request for non-
disclosure pursuant to Sec. 0.459. A persuasive showing as to the 
reasons for inspection will be required in requests for inspection of 
such materials submitted under Sec. 0.461.
    (i) Financial reports submitted by licensees of broadcast stations 
pursuant to former Sec. 1.611 or by radio or television networks are 
not routinely available for inspection.
    (ii) Applications for equipment authorizations (type acceptance, 
type approval, certification, or advance approval of subscription 
television systems), and materials relating to such applications, are 
not routinely available for public inspection prior to the effective 
date of the authorization. The effective date of the authorization 
will, upon request, be deferred to a date no earlier than that 
specified by the applicant. Following the effective date of the 
authorization, the application and related materials (including 
technical specifications and test measurements) will be made available 
for inspection upon request (see Sec. 0.460).
    (iii) Information submitted in connection with audits, 
investigations and examination of records pursuant to 47 U.S.C. 220.
    (iv) Programming contracts between programmers and multichannel 
video programming distributors.
    (v) Prior to July 4, 1967, the rules and regulations provided that 
certain materials submitted to the Commission would not be made 
available for public inspection or provided assurance, in varying 
degrees, that requests for nondisclosure of certain materials would be 
honored. See, e.g., 47 CFR chapter I revised as of October 1, 1966, 
Secs. 0.417, 2.557, 5.204, 5.255, 15.70, 21.406, 80.33, 87.153, 89.215, 
91.208, 91.605 and 93.208. Materials submitted under these provisions 
are not routinely available for public inspection. To the extent that 
such materials were accepted on a confidential basis under the then 
existing rules, they are not routinely available for public inspection. 
The rules cited in this paragraph (d)(1)(v) were superseded by the 
provisions of this paragraph (d), effective July 4, 1967. Equipment 
authorization information accepted on a confidential basis between July 
4, 1967 and March 25, 1974, will not be routinely available for 
inspection and a persuasive showing as to the reasons for inspection of 
such information will be required in requests for inspection of such 
materials submitted under Sec. 0.461.
    (2) Unless the materials to be submitted are listed in paragraph 
(d)(1) of this section and the protection thereby afforded is adequate, 
it is important for any person who submits materials which he wishes 
withheld from public inspection under 5 U.S.C. 552(b)(4) to submit 
therewith a request for non-disclosure pursuant to Sec. 0.459. If it is 
shown in the request that the materials contain trade secrets or 
commercial, financial or technical data which would customarily be 
guarded from competitors, the materials will not be made routinely 
available for inspection; and a persuasive showing as to the reasons 
for inspection will be required in requests for inspection submitted 
under Sec. 0.461. In the absence of a request for non-disclosure, the 
Commission may, in the unusual instance, determine on its own motion 
that the materials should not be routinely available for public 
inspection. Ordinarily, however, in the absence of such a request, 
materials which are submitted will be made available for inspection 
upon request pursuant to Sec. 0.461, even though some question may be 
present as to whether they contain trade secrets or like matter.
* * * * *
    3. Section 0.459 is amended by revising paragraphs (b), (d), and 
(e) to read as follows:


Sec. 0.459  Requests that materials or information submitted to the 
Commission be withheld from public inspection.

* * * * *
    (b) Each such request shall contain a statement of the reasons for 
withholding the materials from inspection (see Sec. 0.457) and of the 
facts upon which those records are based, including:
    (1) Identification of the specific information for which 
confidential treatment is sought;
    (2) Identification of the Commission proceeding in which the 
information was submitted or a description of the circumstances giving 
rise to the submission;
    (3) Explanation of the degree to which the information is 
commercial or financial, or contains a trade secret or is privileged;
    (4) Explanation of the degree to which the information concerns a 
service that is subject to competition;

[[Page 44168]]

    (5) Explanation of how disclosure of the information could result 
in substantial competitive harm;
    (6) Identification of any measures taken by the submitting party to 
prevent unauthorized disclosure;
    (7) Identification of whether the information is available to the 
public and the extent of any previous disclosure of the information to 
third parties;
    (8) Justification of the period during which the submitting party 
asserts that material should not be available for public disclosure; 
and
    (9) Any other information that the party seeking confidential 
treatment believes may be useful in assessing whether its request for 
confidentiality should be granted.
* * * * *
    (d)(1) The Commission may defer acting on requests that materials 
or information submitted to the Commission be withheld from public 
inspection until a request for inspection has been made pursuant to 
Sec. 0.460 or Sec. 0.461. The information will be accorded confidential 
treatment, as provided for in Sec. 0.459(g) and Sec. 0.461, until the 
Commission acts on the confidentiality request and all subsequent 
appeal and stay proceedings have been exhausted.
    (2) Requests which comply with the requirements of paragraphs (a) 
and (b) of this section will be acted upon by the appropriate Bureau or 
Office Chief, who is directed to grant the request if it presents by a 
preponderance of the evidence a case for non-disclosure consistent with 
the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the 
request is granted, the ruling will be placed in the public file in 
lieu of the materials withheld from public inspection. A copy of the 
ruling shall be forwarded to the General Counsel.
    (e) If the materials are submitted voluntarily (i.e., absent any 
direction by the Commission), the person submitting them may request 
the Commission to return the materials without consideration if the 
request for confidentiality should be denied. In that event, the 
materials will ordinarily be returned (e.g., an application will be 
returned if it cannot be considered on a confidential basis). Only in 
the unusual instance where the public interest so requires will the 
materials be made available for public inspection. However, no 
materials submitted with a request for confidentiality will be returned 
if a request for inspection is filed under Sec. 0.461. If submission of 
the materials is required by the Commission and the request for 
confidentiality is denied, the materials will be made available for 
public inspection.
* * * * *
    4. Section 0.461 is amended by revising paragraph (d)(3) to read as 
follows:


Sec. 0.461  Requests for inspection of materials not routinely 
available for public inspection.

* * * * *
    (d) * * *
    (3) An original and two copies of the request shall be submitted. 
If the request is for materials not open to routine public inspection 
under Sec. 0.457(d) or Sec. 0.459, or if a request for confidentiality 
is pending pursuant to Sec. 0.459, one copy of the request will be 
mailed by the custodian of the records to the person who originally 
submitted the materials to the Commission.
* * * * *

Appendix--Standard Protective Order and Declaration

    Note: This appendix will not appear in the Code of Federal 
Regulations.

Before the Federal Communications Commission

Washington, D.C. 20554

    In the Matter of [Name of Proceeding] Docket No. 
____________________.

Protective Order

    This Protective Order is intended to facilitate and expedite the 
review of documents containing trade secrets and commercial or 
financial information obtained from a person and which is privileged 
or confidential. It reflects the manner in which ``Confidential 
Information,'' as that term is defined herein, is to be treated. 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 under the Freedom 
of Information Act or other applicable law or regulation, including 
47 CFR 0.442.
    1. Definitions.
    a. Authorized Representative. ``Authorized Representative'' 
shall have the meaning set forth in Paragraph seven.
    b. Commission. ``Commission'' means the Federal Communications 
Commission or any arm of the Commission acting pursuant to delegated 
authority.
    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 or 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); (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; and 
(iii) information that the Commission has allowed to be examined 
off-site and that otherwise complies with the requirements of this 
paragraph. Confidential Information includes additional copies of 
and information derived from Confidential Information.
    d. Declaration. ``Declaration'' means Attachment A 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 seeks confidential treatment of Confidential Information 
pursuant to this Protective Order.
    2. Claim of Confidentiality. The Submitting Party, may designate 
information as ``Confidential Information'' consistent with the 
definition of that term in Paragraph 1 of this Protective Order. The 
Commission may, sua sponte or upon petition, pursuant to 47 CFR 
0.459 and 0.461, determine that all or part of the information 
claimed as ``Confidential Information'' is not entitled to such 
treatment.
    3. 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.
    4. 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.
    5. Access to Confidential Information. Confidential Information 
shall only be made available to Commission staff, Commission 
consultants and to counsel to the Reviewing Parties, or if a 
Reviewing Party has no counsel, to a person designated by the 
Reviewing Party. Before counsel to a Reviewing Party or such other 
designated person designated by the Reviewing Party may obtain 
access to Confidential Information, counsel or such other designated 
person must execute the attached

[[Page 44169]]

Declaration. Consultants under contract to the Commission may obtain 
access to Confidential Information only if they have signed, as part 
of their employment contract, a non-disclosure agreement or if they 
execute the attached Declaration.
    6. Counsel to a Reviewing Party or such other person designated 
pursuant to Paragraph 5 may disclose Confidential Information to 
other Authorized Representatives to whom disclosure is permitted 
under the terms of paragraph 7 of this Protective Order only after 
advising such Authorized Representatives of the terms and 
obligations of the Order. In addition, before Authorized 
Representatives may obtain access to Confidential Information, each 
Authorized Representative must execute the attached Declaration.
    7. Authorized Representatives shall be limited to:
    a. 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;
    b. 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; or
    c. Any person designated by the Commission in the public 
interest, upon such terms as the Commission may deem proper.
    8. Inspection of Confidential Information. Confidential 
Information shall be maintained by a Submitting Party for inspection 
at two or more locations, at least one of which shall be in 
Washington, D.C. Inspection shall be carried out by Authorized 
Representatives upon reasonable notice (generally not to exceed one 
business day) during normal business hours.
    9. Copies of Confidential Information. The Submitting Party 
shall provide a copy of the Confidential Material to Authorized 
Representatives upon request and may charge a reasonable copying fee 
not to exceed twenty five cents per page. Authorized Representatives 
may make additional copies of Confidential Information but only to 
the extent required and solely for the preparation and use in this 
proceeding, 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.
    10. Filing of Declaration. Counsel for Reviewing Parties shall 
provide to the Submitting Party and the Commission with 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. Confidential Information 
shall not be used by any person granted access under this Protective 
Order for any purpose other than for use in this proceeding 
(including any subsequent administrative or judicial review) unless 
otherwise ordered by the Commission or a court of competent 
jurisdiction, 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. Pleadings Using Confidential Information. Submitting Parties 
and Reviewing Parties may, in any pleadings that they file in this 
proceeding, reference the 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 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, [cite proceeding];'' 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. They 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.
    13. 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.
    14. Termination of Proceeding. Unless otherwise ordered by the 
Commission or a court of competent jurisdiction, 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. Authorized representatives shall certify in a 
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 and other attorney work 
product. 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 
paragraphs 9 and 11 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.
    15. 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 any privilege.
    16. 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.
    17. 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.
    18. 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).

[[Page 44170]]

Attachment A to Standard Protective Order

Declaration

    In the Matter of [Name of Proceeding] Docket No. ____________
    I, ____________________, hereby declare under penalty of perjury 
that I have read the Protective Order 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 Federal Communications Commission. I 
acknowledge that this Protective Order is also a binding agreement 
with the Submitting Party.
(signed)---------------------------------------------------------------

(printed name)---------------------------------------------------------

(representing)---------------------------------------------------------

(title)----------------------------------------------------------------

(employer)-------------------------------------------------------------

(address)--------------------------------------------------------------

----------------------------------------------------------------------

(phone)----------------------------------------------------------------

(date)-----------------------------------------------------------------

[FR Doc. 98-22001 Filed 8-17-98; 8:45 am]
BILLING CODE 6712-01-P