*Pages 1--9 from Microsoft Word - 42746* Federal Communications Commission DA 04- 3152 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Unbundled Access to Network Elements Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers ) ) ) ) ) ) ) WC Docket No. 04- 313 CC Docket No. 01- 338 ORDER Adopted: September 29, 2004 Released: September 29, 2004 By the Chief, Wireline Competition Bureau: 1. On August 20, 2004, the Commission released an Order and Notice of Proposed Rulemaking (Interim Order and Notice) in the above- referenced dockets. 1 At the same time, the Wireline Competition Bureau issued a Protective Order to allow interested parties to submit and gain access to confidential or proprietary information in a manner that permits meaningful discussion while protecting the confidential or proprietary nature of the information. 2 For the reasons described below, we modify certain timing provisions set forth in the August 20 Protective Order in order to expedite, in some cases, the process for making confidential data available. We find that this adjustment will serve the public interest by allowing parties to access information subject to the protective order with sufficient time to compose their reply comments. 2. Paragraph 8 of the August 20 Protective Order establishes procedures for obtaining access to confidential documents. Specifically, the August 20 Protective Order sets forth a five- day period between service of the Acknowledgment of Confidentiality (Acknowledgment) by a requesting party and the point at which the requesting party may have access to the Stamped Confidential Documents or Confidential Information. Service of the Acknowledgment also triggers the beginning of a three- day time period during which the Submitting Party may object to providing access to the requesting party. In this Order, we establish an expedited process for use when a party seeking access to Stamped Confidential Documents or Confidential Information provides the Submitting Party its Acknowledgment via same- day (hand) or next- day delivery. Under these conditions, we reduce to three days the standard five- day period between service of the Acknowledgment and access to Stamped Confidential Documents or Confidential Information. Moreover, the modifications we make here reduce, under these circumstances, the time period in which the Submitting Party may object to disclosure from three days to 1 See Unbundled Access to Network Elements, CC Docket No. 01- 338, WC Docket No. 04- 313, Order and Notice of Proposed Rulemaking (2004). 2 Unbundled Access to Network Elements, CC Docket No. 01- 338, WC Docket No. 04- 313, Order, DA 04- 2603 (WCB Aug. 20, 2004) (August 20 Protective Order). 1 Federal Communications Commission DA 04- 3152 2 two days. 3 3. Although the expedited process we adopt here might not necessarily be warranted in other proceedings, we find sufficient reason to modify the timing provisions relating to notice and objection in this matter, under certain circumstances. In particular, we find that the complexity, scale, and scope of issues to be addressed in this proceeding, in combination with both the compressed time- frame between the comment and reply comment due dates 4 and the likelihood that the comments will generate significant confidential filings of interest to other parties, strongly support this revised process. We find that service by same- day (hand) or next- day delivery provides sufficient notice and allows for immediate action by a Submitting Party. Further, we retain a procedure for a Submitting Party to object to providing access to its Stamped Confidential Documents or Confidential Information to ensure that a Submitting Party’s interests are sufficiently protected. 4. Accordingly, we modify the language of paragraph 8 of the August 20 Protective Order as follows, with new text appearing in boldface: Procedures for Obtaining Access to Confidential Documents. In all cases where access to Stamped Confidential Documents and Confidential Information is permitted pursuant to paragraph 5, before reviewing or having access to any Stamped Confidential Documents or Confidential Information, each person seeking such access shall execute the Acknowledgment of Confidentiality (“ Acknowledgment”) (see Appendix B) and file it with the Bureau, on behalf of the Commission, and serve it upon each Submitting Party through its Outside Counsel of Record so that the Acknowledgment is received by each Submitting Party. Service of the Acknowledgment, if by same- day (hand) or next- day delivery, must be received by the Submitting Party at least three business days prior to the requesting party’s reviewing or having access to such Submitting Party’s Stamped Confidential Documents or Confidential Information. Service conducted otherwise must be received by the Submitting Party at least five business days prior to the requesting party’s reviewing or having access to such Submitting Party’s Stamped Confidential Documents or Confidential Information. Where the person seeking access is one described in either clause 3 or 4 of paragraph 5, the Acknowledgment shall be delivered promptly prior to the person’s obtaining access. Each Submitting Party shall have an opportunity to object to the disclosure of Stamped Confidential Documents to any such persons. When the Acknowledgment has been received by same- day (hand) or next- day delivery, any objection to disclosure must be filed at the Commission 3 Because the Protective Order refers to “business days,” this change could in some cases save parties up to four days – a significant portion of the 15- day period between when comments are reply comments are due to the Commission. 4 See Pleading Cycle Established For Comments Regarding Final Unbundling Rules, CC Docket No. 01- 338, WC Docket No. 04- 313, Public Notice, DA 04- 2967 (WCB Sept. 13, 2003) (establishing a comment due date of October 4, 2004 and a reply comment due date of October 19, 2004). 2 Federal Communications Commission DA 04- 3152 3 and served by same- day (hand) or next- day delivery on Counsel representing, retaining or employing such person within two business days after receipt of that person’s Acknowledgment. In other cases, any objection must be filed at the Commission and served on Counsel representing, retaining or employing such person within three business days after receiving a copy of that person’s Acknowledgment (or where the person seeking access is one described in either clause 3 or 4 of paragraph 5, such objection shall be filed and served as promptly as practicable after receipt of the relevant Acknowledgment). Until any such objection is resolved by the Commission and, if appropriate, any court of competent jurisdiction prior to any disclosure, and unless such objection is resolved in favor of the person seeking access, persons subject to an objection from a Submitting Party shall not have access to Stamped Confidential Documents or Confidential Information. The Submitting Party shall make available for review the Stamped Confidential Documents of such party at the offices of such party’s Outside Counsel of Record or, if the Submitting Party does not have Outside Counsel of Record, at the offices of such party’s In- House Counsel. 5. To avoid confusion, we have included (as Attachment A) a revised Protective Order including the newly adopted language described above. Additionally, we have included (as Attachment B) a copy of the same Acknowledgment of Confidentiality that was included in the August 20 Protective Order. 6. Any party seeking access to confidential documents subject to the Protective Order shall request access pursuant to the terms of the Protective Order. 7. Accordingly, IT IS ORDERED that pursuant to Sections 4( i), 4( j), and 251 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 154( i), 154( j), and 251, and Section 4 of the Freedom of Information Act, 5 U. S. C. § 552( b)( 4), and authority delegated under Section 0.291 of the Commission’s rules, 47 C. F. R. § 0.291, the Protective Order is MODIFIED as indicated above, and the changes are effective upon release. FEDERAL COMMUNICATIONS COMMISSION Jeffrey J. Carlisle Chief, Wireline Competition Bureau 3 Federal Communications Commission DA 04- 3152 4 APPENDIX A Protective Order CC Docket No. 01- 338 & WC Docket No. 04- 313 1. Introduction. Today, the Commission has released an Order and Notice of Proposed Rulemaking in the Unbundled Access to Network Elements docket (Interim Order and Notice). 1 We anticipate that parties commenting in this proceeding (individually, each a Submitting Party and collectively, the Submitting Parties) may need to rely on commercially sensitive business information or other confidential or proprietary information in order to provide meaningful answers to the questions raised by the Interim Order and Notice and that, therefore, such documents should be made available pursuant to a Protective Order. Consequently, the Wireline Competition Bureau (Bureau) has adopted this Protective Order to ensure that any confidential or proprietary documents submitted by the Submitting Parties are afforded adequate protection. This Protective Order does not 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 (FOIA) or otherwise. 2. Definitions. As used herein, capitalized terms, not otherwise defined herein, shall have the following meanings: “Confidential Information” means information contained in Stamped Confidential Documents (as defined in paragraph 4 of this Protective Order) or derived therefrom that is not otherwise available from publicly available sources; “Counsel” means In- House Counsel and Outside Counsel of Record; “In- House Counsel” means the attorney or attorneys employed by a party to these proceedings or who is employed by an affiliated entity and who are actively engaged in the conduct of this proceeding, provided that such counsel are not involved in competitive decision- making, i. e., In- House Counsel’s activities, association, and relationship with a client are not such as to involve such counsel’s advice and participation in any or all of the client’s business decisions made in light of similar or corresponding information about a competitor; and “Outside Counsel of Record” means the firm( s) of attorneys, or sole practitioner( s), as the case may be, representing a party in these proceedings. 3. Use of Confidential Information. Persons obtaining access to Confidential Information (including Stamped Confidential Documents) under this Protective Order shall use the information solely for preparation and the conduct of this proceeding as delimited in this paragraph and paragraphs 5, 10, and 11, and any subsequent judicial proceeding arising directly from this proceeding and, except as provided herein, shall not use such documents or information for any other purpose, including without limitation business, governmental, or commercial purposes, or in other administrative, regulatory or judicial proceedings. Should the Commission rely upon or otherwise make reference to the contents of 1 See Unbundled Access to Network Elements, CC Docket No. 01- 338, WC Docket No. 04- 313, Order and Notice of Proposed Rulemaking (2004). 4 Federal Communications Commission DA 04- 3152 5 any of the Stamped Confidential Documents or Confidential Information in its decision in this proceeding, it will do so in the same manner in which it maintained the confidentiality of similar protected information in the Bell Atlantic/ NYNEX Order, 12 FCC Rcd 19985 (1997). 4. Non- Disclosure of Stamped Confidential Documents. Except with the prior written consent of the Submitting Party, or as hereinafter provided under this Protective Order, neither a Stamped Confidential Document nor any Confidential Information may be disclosed by a reviewing party to any person other than the Commission and its staff. A “Stamped Confidential Document” shall mean any document, or part thereof, that bears the legend (or which otherwise shall have had the legend recorded upon it in a way that brings its attention to a reasonable examiner) “CONFIDENTIAL INFORMATION – SUBJECT TO PROTECTIVE ORDER IN CC DOCKET NO. 01- 338 & WC DOCKET NO. 04- 313 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION” to signify that it contains information that the Submitting Party believes should be subject to protection under FOIA and the Commission’s implementing rules, unless the Commission determines, sua sponte or by request pursuant to Sections 0.459 or 0.461 of its rules, that any such document is not entitled to confidential treatment. For purposes of this Protective Order, the term “document” means all written, recorded, electronically stored, or graphic material, whether produced or created by the reviewing party or another person. 5. Permissible Disclosure. Subject to the requirements of paragraph 8, Stamped Confidential Documents may be reviewed by Counsel. Subject to the requirements of paragraph 8, Counsel may disclose Stamped Confidential Documents and other Confidential Information to: (1) outside consultants or experts retained for the purpose of assisting Counsel in this proceeding, provided that the outside consultants or experts are not involved in the analysis underlying the business decisions of any competitor of any Submitting Party nor do they participate directly in those business decisions; (2) paralegals or other employees of such Counsel not described in clause 3 of this paragraph 5 assisting Counsel in this proceeding; (3) employees of such Counsel involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving documents or data or designing programs for handling data connected with this proceeding, or performing other clerical or ministerial functions with regard to documents connected with this proceeding; and (4) employees of third- party contractors performing one or more of the functions set forth in clause 3 of this paragraph 5. Individuals who have obtained access to Stamped Confidential Documents and Confidential Information in accordance with the provisions of this paragraph 5 and paragraph 8 may discuss and share the contents of the Stamped Confidential Documents and Confidential Information with any other person who has also obtained access in accordance with the provisions of this paragraph 5 and paragraph 8, and with the Commission and its staff. 6. Protection of Stamped Confidential Documents and Confidential Information. Persons described in paragraph 5 shall have the obligation to ensure that access to Stamped Confidential Documents and Confidential Information is strictly limited as prescribed in this Protective Order. Such persons shall further have the obligation to ensure that: (1) Stamped Confidential Documents and Confidential Information are used only as provided in this Protective Order; and (2) Stamped Confidential Documents are not duplicated except as necessary for filing at the Commission under seal as provided in paragraph 10 below. 7. Prohibited Copying. If, in the judgment of the Submitting Party, a document contains information so sensitive that it should not be copied by anyone, it shall bear the additional legend “Copying Prohibited,” and no copies of such document, in any form, shall be made. Application for relief from this restriction against copying may be made to the Commission, with notice to Outside Counsel of Record for the Submitting Party. 5 Federal Communications Commission DA 04- 3152 6 8. Procedures for Obtaining Access to Confidential Documents. In all cases where access to Stamped Confidential Documents and Confidential Information is permitted pursuant to paragraph 5, before reviewing or having access to any Stamped Confidential Documents or Confidential Information, each person seeking such access shall execute the Acknowledgment of Confidentiality (“ Acknowledgment”) (see Appendix B) and file it with the Bureau, on behalf of the Commission, and serve it upon each Submitting Party through its Outside Counsel of Record so that the Acknowledgment is received by each Submitting Party. Service of the Acknowledgment, if by same- day (hand) or next- day delivery, must be received by the Submitting Party at least three business days prior to the requesting party’s reviewing or having access to such Submitting Party’s Stamped Confidential Documents or Confidential Information. Service conducted otherwise must be received by the Submitting Party at least five business days prior to the requesting party’s reviewing or having access to such Submitting Party’s Stamped Confidential Documents or Confidential Information. Where the person seeking access is one described in either clause 3 or 4 of paragraph 5, the Acknowledgment shall be delivered promptly prior to the person’s obtaining access. Each Submitting Party shall have an opportunity to object to the disclosure of Stamped Confidential Documents to any such persons. When the Acknowledgment has been received by same- day (hand) or next- day delivery, any objection to disclosure must be filed at the Commission and served by same- day (hand) or next- day delivery on Counsel representing, retaining or employing such person within two business days after receipt of that person’s Acknowledgment. In other cases, any objection must be filed at the Commission and served on Counsel representing, retaining or employing such person within three business days after receiving a copy of that person’s Acknowledgment (or where the person seeking access is one described in either clause 3 or 4 of paragraph 5, such objection shall be filed and served as promptly as practicable after receipt of the relevant Acknowledgment). Until any such objection is resolved by the Commission and, if appropriate, any court of competent jurisdiction prior to any disclosure, and unless such objection is resolved in favor of the person seeking access, persons subject to an objection from a Submitting Party shall not have access to Stamped Confidential Documents or Confidential Information. The Submitting Party shall make available for review the Stamped Confidential Documents of such party at the offices of such party’s Outside Counsel of Record or, if the Submitting Party does not have Outside Counsel of Record, at the offices of such party’s In- House Counsel. 9. Requests for Additional Disclosure. If any person requests disclosure of Confidential Information outside the terms of this Protective Order, requests will be treated in accordance with Sections 0.442 and 0.461 of the Commission’s rules. 10. Filings with the Commission. Persons described in paragraph 5 may, in any documents that they file in this proceeding, reference Confidential Information, but only if they comply with the following procedure: a. Any portions of the pleadings that contain or disclose Confidential Information must be physically segregated from the remainder of the pleadings; b. The portions of pleadings containing or disclosing Confidential Information must be covered by a separate letter to the Secretary of the Commission 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, CC Docket No. 01- 338 & WC Docket No. 04- 313”; and 6 Federal Communications Commission DA 04- 3152 7 d. The confidential portion( s) of the pleading shall be served on the Secretary of the Commission, the Bureau, and each Submitting Party. Such confidential portions shall be served under seal, and shall not be placed in the Commission’s public file. A party filing a pleading containing Confidential Information shall also file redacted copies of the pleading containing no Confidential Information, which copies shall be placed in the Commission’s public files. Parties should not provide courtesy copies of pleadings containing Confidential Information to Commission Staff unless the Bureau so requests. Any courtesy copies containing Confidential Information shall be submitted under seal. 11. Client Consultation. Nothing in this order shall prevent or otherwise restrict Counsel from rendering advice to their clients relating to the conduct of this proceeding and any subsequent judicial proceeding arising therefrom and, in the course thereof, relying generally on examination of Stamped Confidential Documents or Confidential Information; provided, however, that in rendering such advice and otherwise communicating with such client, Counsel shall not disclose Stamped Confidential Documents or Confidential Information. 12. No Waiver of Confidentiality. Disclosure of Confidential Information as provided herein by any person shall not be deemed a waiver by any Submitting Party of any privilege or entitlement to confidential treatment of such Confidential Information. Reviewing parties, by viewing this material, agree: (1) not to assert any such waiver; (2) not to use Confidential Information to seek disclosure in any other proceeding; and (3) that accidental disclosure of Confidential Information by a Submitting Party shall not be deemed a waiver of any privilege or entitlement as long as the Submitting Party takes prompt remedial action. 13. Subpoena by Courts, Departments or Agencies. If a court, or a federal or state department or agency, issues a subpoena or orders production of Stamped Confidential Documents or Confidential Information that a party has obtained under terms of this Protective Order, such party shall promptly notify each Submitting Party of the pendency of such subpoena or order. Consistent with the independent authority of any court, department or agency, such notification must be accomplished such that the Submitting Party has a full opportunity to oppose such production prior to the production or disclosure of any Stamped Confidential Document or Confidential Information. 14. Violations of Protective Order. Should a person that has properly obtained access to Confidential Information under this Protective Order violate any of its terms, that person shall immediately convey that fact to the Commission and to the Submitting Party. Further, should such violation consist of improper disclosure of Confidential Information, the violating person shall take all necessary steps to remedy the improper disclosure. The Commission retains its full authority to fashion appropriate sanctions for violations of this Protective Order, including but not limited to suspension or disbarment of Counsel from practice before the Commission, forfeitures, cease and desist orders, and denial of further access to Confidential Information in this or any other Commission proceeding. Nothing in this Protective Order shall limit any other rights and remedies available to the Submitting Party at law or in equity against any person using Confidential Information in a manner not authorized by this Protective Order. 7 Federal Communications Commission DA 04- 3152 8 15. Termination of Proceeding. The provisions of this Protective Order shall not terminate at the conclusion of this proceeding. Within two weeks after conclusion of this proceeding and any administrative or judicial review, persons described by paragraph 5 shall destroy or return to the Submitting Party Stamped Confidential Documents and all copies of the same. No material whatsoever derived from Stamped Confidential Documents may be retained by any person having access thereto, except Counsel (as described in paragraph 5) may retain, under the continuing strictures of this Protective Order, two copies of pleadings (one of which may be in electronic format) containing Confidential Information. All Counsel shall make certification of compliance herewith and shall deliver the same to Counsel for the Submitting Party not more than three weeks after conclusion of this proceeding. The provisions of this paragraph 15 regarding retention of Stamped Confidential Documents and copies of same shall not be construed to apply to the Commission or its staff. FEDERAL COMMUNICATIONS COMMISSION Jeffrey J. Carlisle Chief, Wireline Competition Bureau 8 Federal Communications Commission DA 04- 3152 9 APPENDIX B Acknowledgment of Confidentiality CC Docket No. 01- 338 & WC Docket No. 04- 313 I hereby acknowledge that I have received and read a copy of the Protective Order in the above-captioned proceeding, and I understand it. I agree that I am bound by the Protective Order and that I shall not disclose or use Stamped Confidential Documents or Confidential Information except as allowed by the Protective Order. I acknowledge that a violation of the Protective Order is a violation of an order of the Federal Communications Commission. Without limiting the foregoing, to the extent that I have any employment, affiliation or role with any person or entity other than a conventional private law firm (such as, but not limited to, a lobbying or public interest organization), I acknowledge specifically that my access to any information obtained as a result of the order is due solely to my capacity as Counsel or consultant to a party or other person described in paragraph 5 of the foregoing Protective Order and that I will not use such information in any other capacity nor will I disclose such information except as specifically provided in the Protective Order. I hereby certify that I am not involved in “competitive decision- making” as that term is used in the definition of In- House Counsel in paragraph 2 of the Protective Order. I acknowledge that it is my obligation to ensure that: (1) Stamped Confidential Documents and Confidential Information are used only as provided in the Protective Order; and (2) Stamped Confidential Documents are not duplicated except as specifically permitted by the terms of paragraph 10 of the Protective Order. I certify that I have verified that there are in place procedures, at my firm or office, to prevent unauthorized disclosure of Stamped Confidential Documents or Confidential Information. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Protective Order. Executed at ________________________ this ___ day of _____________, ____. _________________________________ [Name] [Position] [Address] [Telephone] 9