Before the
Federal Communications Commission FCC 96-109 
Washington, D.C. 20554
In the Matter of
Examination of Current Policy )
Concerning the Treatment of ) GC Docket No. 96-55
Confidential Information )
Submitted to the Commission )
NOTICE OF INQUIRY AND NOTICE OF PROPOSED RULEMAKING
Adopted: March 13, 1996 Released: March 25, 1996
Comment Date: 60 days following publication in Federal Register 
Reply Comment Date: 90 days following publication in Federal Register
By the Commission:
TABLE OF CONTENTS
Para. 
I. INTRODUCTION ....................................... 1
E. BACKGROUND ....................................... 3
A. Authority to Disclose and Withhold Competitively Sensitive Information . 3
1. Freedom of Information Act........................ 3
2. The Trade Secrets Act and Commission Authority to Disclose
Exemption 4 Records ............................ 9
B. Review of Commission's Policies Governing Disclosure ........... 17
1. Commission Rules and Procedures .................... 17
2. General Policies Regarding Disclosure of Exemption 4 Records . . 21
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3. The Protective Order Approach ...................... 25
HI. ISSUES FOR COMMENT ................................. 30
A. General Issues .................................... 30
B. Model Protective Order ............................... 36
C. Issues That Arise With Respect to Specific Types of FCC Proceedings . . 38
1. Title El Licensing proceedings ...................... 39
2. Tariff proceedings .............................. 42
3. Rulemaking proceedings .......................... 46
4. Requests for Special Relief and Waivers ................ 48
5. Formal Complaints ............................. 49
6. Audits ..................................... 51
7. Surveys and Studies. ............................ 53
D. .Scope of Materials Not Routinely Available for Public Inspection ..... 54
E. Proposed Clarifications to Commission Rules .................. 60
IV. INITIAL REGULATORY FLEXIBILITY ACT ANALYSIS ............ 62
V. PAPERWORK REDUCTION ACT ............................ 70
VI. PROCEDURAL PROVISIONS ............................... 71
VII. ORDERING CLAUSES ................................... 74
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I. INTRODUCTION
1. With this Notice of Inquiry and Notice of Proposed Rulemaking, we begin a 
proceeding to evaluate the Commission's practices and policies concerning the treatment of 
competitively sensitive information that has been provided to the Commission. Our objective 
is to develop a policy that will guide us in evaluating an increasing number of requests that 
the Commission afford confidential treatment to information that has been provided to us by 
regulated entities and others. The central issue that confronts us is how to avoid unnecessary 
competitive harm that could be caused by the disclosures of such information and still fulfill 
our regulatory duties in a manner that is efficient and fair to the parties and members of the 
public who have an interest in our proceedings. We seek to obtain a broad range of public 
comment on this question in order to ensure that our policies serve the public interest.
2. We begin by discussing, below, the basic legal framework of the 
Commission's authority both to withhold and to disclose competitively sensitive information. 
We follow with a discussion of the Commission's current policies .regarding disclosure of 
confidential data. We next address issues upon which we particularly request comment, 
including issues relating to particular types of proceedings, such as licensing, tariff, 
rulemaking, waiver, formal complaint, and audit proceedings. We also seek comment on the 
development of a "model" protective order that could be used in our proceedings. We seek 
comment on the scope of information that should not be routinely available for public 
inspection. Finally, we propose certain clarifying amendments to our confidentiality rules.
H. BACKGROUND
A. Authority to Disclose and Withhold Competitively Sensitive Information 
1. Freedom of Information Act
3. Under the Freedom of Information Act (FOIA), 1 the Commission is required 
to disclose reasonably described agency records requested by any person, unless the records 
contain information that fits within one or more of the nine exemptions from disclosure 
provided in the Act.2 The public right to examine non-exempt federal agency records is
1 5 U.S.C. § 552.
2 See 5 U.S.C. § 552(b). The nine exemptions provided by FOIA are for: (i) classified 
national defense or foreign policy materials; (ii) internal agency rules and practices; (iii) 
information specifically exempted from disclosure by another statute; (iv) trade secrets and 
commercial or financial information obtained from any person and privileged or confidential; 
(v) certain inter-agency and intra-agency memorandums or letters; (vi) personnel, medical 
and similar files, disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy; (vii) records compiled for law enforcement purposes; (viii) records of
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enforceable in federal district court.3 If a record contains segregable information that is 
exempt from disclosure, the agency must still release the remainder of the record.4 Even 
when particular information falls within the scope of a FOIA exemption, federal agencies 
generally are afforded the discretion to release the information on public interest grounds.5 
Affected persons may request, however, that the government protect all or part of certain 
records containing confidential information from disclosure to other persons.6
4. For the purposes of this proceeding, the most important of the FOIA 
exemptions is commonly referred to Exemption 4. Exemption 4 provides that the 
government need not disclose "trade secrets and commercial or financial information obtained 
from a person and privileged or confidential."7 In the context of the FOIA, a trade secret is 
defined as "a secret, commercially valuable plan, formula, process, or device that is used for 
the making, preparing, compounding, or processing of trade commodities and that can be 
said to be the end product of either innovation or substantial effort."8 The terms 
"commercial or financial information" are to be given their ordinary meaning for purposes of 
the FOIA. 9
financial institutions; and (ix) oil well data. 5 U.S.C. § 552(b); see also 47 C.F.R. § 0.457 
(types of records not routinely available for public inspection under the FOIA regulations of 
the Commission). < 
3 5 U.S.C. § 552(a)(4)(B).
4 47 U.S.C. § 552(b); see also 47 C.F.R. § 0.461(f)(5).
5 Chrysler v. Brown, 441 U.S. 281, 292-94 (1979). See also discussion of the Trade 
Secrets Act at paras. 9-16 below.
6 See Chrysler v. Brown, 441 U.S. at 318. Executive Order No. 12,600 requires 
federal agencies to establish pre-disclosure procedures to allow submitters of certain 
information to object to its release. 3 C.F.R. 235 (1988). Section 0.459 of the 
Commission's rules, 47 C.F.R. § 0.459, describes the procedures for requesting that 
information be withheld from public inspection. This rule is further discussed at para. 19 
below.
7 5 U.S.C. § 552(b)(4).
8 Public Citizen Health Research Group v. PDA, 704 F.2d 1280, 1288 (D.C. Cir. 
1983); see also AT&T Information Systems, Inc. v. GSA, 627 E.Supp. 1396, 1401 n.9 
(D.D.C. 1986).
9 Public Citizen Health Research Group. 704 F.2d. at 1290; see also Landfair v. U.S. 
Dep't of Army, 645 F.Supp. 325, 327 (D.D.C. 1986) (commercial and financial information 
can include business sales statistics, research data, technical designs, overhead and operating
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5. For many years, the applicable standard for whether commercial or financial 
information was "confidential" under Exemption 4 of FOIA was set forth in National Parks 
and Conservation Association v. Morton. 10 In National Parks, the Court set forth a two-part 
test, stating that "[c]ommercial or financial matter is 'confidential' ... if disclosure of the 
information is likely . . . either . . . (1) to impair the Government's ability to obtain 
necessary information in the future; or (2) to cause substantial harm to the competitive 
position of the person from whom the information was obtained." 11 While "conclusory and 
generalized allegations" cannot support nondisclosure, neither is an elaborate economic 
analysis necessary to establish the likelihood of substantial competitive injury. 12
6. In Critical Mass Energy Project v. Nuclear Regulatory Commission,13 the court 
revisited the definition of "confidential" set forth in National Parks. The court did not 
abandon the definition of "confidential" presented in National Parks, but chose to limit that 
definition's application to situations where a party must submit information to a federal 
agency. 14 In contrast, under Critical Mass, "financial or commercial information provided 
to the Government on a voluntary basis is 'confidential' for the purpose of Exemption 4 if it 
is of a kind that would customarily not be released to the public by the person from whom it 
was obtained." 15 Therefore, if commercial or financial information obtained from a person is 
submitted voluntarily and would not customarily be disclosed by the submitter, it is deemed 
confidential without requiring any examination of the competitive harm or governmental 
impairment portions of the National Parks test.16
costs, and information on financial condition); International Satellite, Inc., 57 RR 2d 460 
(1984) (information is commercial "if it relates to commerce" whether or not submitter is a 
for-profit entity).
10 498 F.2d 765 (D.C. Cir. 1974).
11 498 F.2d at 770; see also, e.g., Arvig Telephone Co., 3 FCC Red 3723, 3723-24 
(Com. Car. Bur. 1988) (applying National Parks).
12 Public Citizen Health Research Group, 704 F.2d. at 1291; National Parks and 
Conservation Association v. Kleppe, 547 F.2d 673, 680-81 (D.C. Cir 1976).
13 975 F.2d 871 (D.C. Cir. 1992), cert, denied, _ U.S. _, 113 S.Ct. 1579 (1993).
14 .975 F.2d at 879 (D.C. Cir. 1992).
15 Id.
16 See, e.g., Allnet Communication Services, Inc. v. F.C.C., 800 F.Supp. 984 (D.D.C. 
1992) (applying Critical Mass to request by Allnet for cost information submitted to the FCC 
by other telecommunications companies in support of proposed changes in rates); see also 
Lykes Bros. Steamship Co., Inc v. Pena, No. 92-2780, slip op. at 8-11 (D.D.C. Sept 9,
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7. In addition to National Parks' well-known, two-prong test, (i.e., protecting 
from mandatory disclosure information likely either (i) to impair the Government's ability to 
obtain necessary information in the future or (ii) to cause substantial harm to the competitive 
position of the submitter), National Parks also left open the possibility of a third prong that 
would protect other governmental interests, such as compliance and program effectiveness. 17 
Critical Mass embraced the view that the governmental and private interests identified in 
National Parks' two-prong test are not exclusive18 and other cases have recognized that 
Exemption 4 protects a governmental interest in the effectiveness of government programs. 19
8. Finally, Exemption 4 protects commercial or financial information that is 
"privileged." Because the language of Exemption 4 applies to trade secrets and commercial 
or financial information that are "privileged or confidential," some courts have suggested that 
information may be privileged for purposes of Exemption 4, even if it is not confidential.20 
Other courts have recognized that Exemption 4 may incorporate certain privileges, while 
rejecting the claims of privilege specifically before them.21
2. The Trade Secrets Act and Commission Authority to Disclose 
Exemption 4 Records
9. While FOIA Exemption 4 allows an agency to withhold business competitive
1992) (submission required from one seeking benefits of voluntary program is considered 
mandatory for purposes of Critical Mass).
17 498F.2dat770n.17.
18 975 F.2d at 879.
" AUnei Communication-Services. 800 F.Supp. at 990; see also 9 to 5 Organization for 
Women Office Workers v. Board of Governors of the Federal Reserve System, 721 F.2d 1, 10 
(1st Cir. 1983) (test is whether disclosure of Exemption 4 material will harm an "identifiable 
private or governmental interest which the Congress sought to protect").
20 E.g., Washington Post Co. v. HHS, 690 F.2d 252, 267 n.50 (D.C. Cir. 1982).
21 Anderson v. HHS, 907 F.2d 936, 945 (10th Cir. 1990) (recognizing that certain 
discovery privileges may constitute additional ground for non-disclosure under Exemption 4, 
but rejecting argument that trade secret for purposes of a state protective order is privileged 
for purposes of FOIA on the grounds that Exemption 4 sets the sole standard for determining 
what is a trade secret under that exemption); Sharyland Water Supply Corp. v. Block, 755 
F.2d 397, 400 (5th Cir.) (recognizing that Exemption 4 extends to privileges created by 
Constitution, statute or common law, but declining to hold that Exemption 4 incorporates a 
lender-borrower privilege), cerr. denied, 471 U.S. 1137 (1985).
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information from public disclosure, the Trade Secrets Act22 acts as an affirmative restraint on 
an agency's ability to release such information. The Trade Secrets Act provides criminal and 
employment penalties for federal officers or employees who disclose trade secrets, except in 
certain circumstances. It states:
Whoever, being an officer or employee of the United States or of any department or 
agency thereof, ... publishes, divulges, discloses, or makes known in any manner or 
to any extent not authorized by law any information coming to him in the course of 
his employment or official duties ... [that] concerns or relates to the trade secrets, 
processes, operations, style of work, or apparatus ... shall be fined not more than 
$1000, or imprisoned not more than one year, or both; and shall be removed from 
office or employment.23
Notably, the sanctions supplied by the Trade Secrets Act do not apply where disclosure is 
"authorized by law."
10. In Chrysler Corp. v. Brown,24 the Supreme Court held that a violation of the 
Trade Secrets Act would not only be a criminal offense, but would also constitute an abuse 
of agency discretion rediressible under the Administrative Procedure Act through what is 
commonly referred to as a "reverse FOIA" action.25 The. Supreme Court there also discussed 
the relationship between the Trade Secrets Act and Exemption 4 as follows:
Although there is a theoretical possibility that material might be outside Exemption 4 
yet within the substantive provisions of [the Trade Secrets Act]. . . that possibility is 
at most of limited practical significance in view of the similarity of language between 
Exemption 4 and the substantive provisions of [the Trade Secrets Act].26
11. The United States Court of Appeals for the District of Columbia Circuit has 
described the relationship between the two statutes in more detail, holding that the Trade
22 18 U.S.C. § 1905.
23 18 U.S.C. § 1905 (emphasis added).
24 441 U.S. 281 (1979).
25 See 441 U.S. at 318; see also Freedom Of Information Act Guide and Privacy Act 
Overview (U.S. Dep't of Justice, September 1995 ed.) at 159. Under the Administrative 
Procedure Act, a court may review agency action to determine if it is "arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
26 Id. at 319 n. 49.
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Secrets Act is "at least coextensive with" Exemption 4 of FOIA. 27 Thus, if information 
may be withheld under Exemption 4, the agency is barred from disclosing it by the terms of 
the Trade Secrets Act unless the disclosure is otherwise authorized by law.28 Conversely, to 
the extent the Trade Secrets Act is broader than Exemption 4 and information does not fall 
within the ambit of Exemption 4, FOIA itself would serve as the requisite authorization by 
law under the Trade Secrets Act to permit disclosure.29
12. In Chrysler Corp., the Court also made clear that an administrative regulation 
has the force of law for purposes of serving as the requisite "authorization by law" under the 
Trade Secrets Act to permit disclosure if the regulation (i) is substantive in that it affects 
individual rights and obligations, (ii) is rooted in a grant of power by Congress and (iii) was 
promulgated in conformance with any procedural requirements established by Congress, such 
as those found in the Administrative Procedure Act.30 Sections 0.457(d)(l) and 
0.457(d)(2)(i) of the Commission's rules constitute the requisite legal authorization for 
disclosure of competitively sensitive information under the Trade Secrets Act. These rules 
permit disclosure of trade secrets and commercial or financial information upon a "persuasive 
showing" of the reasons in favor of the information's release.31
13. In particular, Section 0.457' ') provides that certain categories of materials 
listed therein, such as broadcasters' am .lancial reports, are presumed not routinely 
available for public inspection and that a persuasive showing as to the reasons for 
inspection" will be required for such ma -rial. Section 0.457(d)(2)(i) applies to materials 
not falling within the specific categoric tablished by Section 0.457(d)(l) for which the 
Commission has granted a submitter's \ quest that the information not be made routinely 
available. Section 0.457(d)(2)(i) thus provides that "[i]f 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 . . . ."
14. Sections 0.457(d)(l) and 0.457(d)(2)(i) satisfy all three elements of the 
Chrysler test because the rules: (i) are substantive in that they affect the public's right to 
access records and the confidentiality rights of those submitting information to the
27 CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1151-52 (B.C. Cir. 1987), cert, 
denied. 485 U.S. 977 (1988).
28 Id.
29 Id. at 1152 n. 139.
30 441 U.S. at 301-303.
31 47 C.F.R. §§ 0.457(d)(l), 0.457(d)(2)(i).
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Commission, (ii) are authorized by Section 4(j) of the Communications Act,32 which provides 
that "[t]he Commission may conduct its proceedings in such manner as will best conduce to 
the proper dispatch of business and to the ends of justice," and (iii) were adopted according 
to the procedural requirements imposed on the FCC by Congress.33 In Northern Television 
v. FCC,34 the court concluded that the Commission's disclosure of broadcasters' annual 
financial reports was authorized by Section 0.457(d)(l) and accordingly that release was 
authorized by law and did not violate the Trade Secrets Act.35
15. As indicated above, the Commission's legal authority to adopt a rule that 
permits disclosure of materials covered by the Trade Secrets Act is grounded in Section 4(j) 
of the Communications Act.36 In Federal Communications Commission v. Schreiber,^. the 
Supreme Court expressly addressed the Commission's authority under that Section, noting: 
"Grants of agency authority comparable in scope to § 4(j) [of the Communications Act] have 
been held to authorize public disclosure of information, or receipt of data in confidence, as 
the agency may determine to be proper upon a balancing of the public and private interests
32 47 U.S.C. § 40).
33 Sections 0.457(d)(l) and (d)(2)(i) were promulgated by the FCC in 1967 as a 
reenactment of a rule initially adopted by the Commission in 1945 following notice and 
comment. See Amendment of Pan 0, Rules and Regulations to Implement P,L. 89-487, 8 
FCC 2d 908, 924 (1967); 10 Fed. Reg. 9718 (1945); 9 Fed Reg. 801 (1944) (notice of 
proposed rulemaking); see also Northern Television v. FCC, No. 79-3468, 1 Gov't 
Disclosure Serv (P-H) para. 80,124 (D.D.C. Apr. 18, 1980) (describing history of rule).
34 No. 79-3468, 1 Gov't Disclosure Serv (P-H) para. 80,124 (D.D.C. Apr. 18, 1980).
35 Although Northern Television applied to Section 0.457(d)(l) of our rules, Section 
0.457(d)(2)(i) differs from Section 0.457(d)(J) only in that Section 0.457(d)(l) deals with 
categories of materials that are presumed not routinely available for public disclosure, while 
Section 0.457(d)(2) applies to materials not falling within those categories. Section 
0.457(d)(2)(i) thus satisfies all the elements of the Chrysler test for precisely the same 
reasons as the Northern Television decision explains that Section 0,457(d)(l) meets the test. 
See generally, Petition of Public UtiMes Commission, State of Hawaii, 10 FCC Red 2881, 
2887 n.77 (Wireless Bur. 1995) (noting that Commission has authority to disclose Exemption 
4 materials under authority of both § 0.457(d)(l) and § 0.457(d)(2)), modified on other 
grounds, 10 FCC Red. 3984 (1995).
36 Section 4(j) of the Communications Act provides in relevant part: "[t]he Commission 
may conduct its proceedings in such manner as will best conduce to the proper dispatch of 
business and to the ends of justice. 47 U.S.C. § 4(j).
37 381 U.S. 279 (1965).
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involved."38
16. Other provisions of the Communications Act may also authorize the release of 
materials governed by the Trade Secrets Act in particular circumstances. For example, 
Section 220(f) of the Communications Act39 authorizes FCC employees, upon direction of the 
Commission, to disclose information gathered by the Commission while examining a 
carrier's books or accounts. As the Commission has written, "[Section 220(f)] is precisely 
the type of congressional authorization to disclose information which exempts disclosure from 
the strictures of the Trade Secrets Act." 40
B. Review of Commission's Policies Governing Disclosure 
1. Commission Rules and Procedures
17. The Commission adopted general rules to implement the provisions of the 
FOIA in 1967.41 Although the rules have been amended several times, they generally track 
the statutory language of the FOIA. Section 0.457(d) of the Commission's Rules implements 
FOIA Exemption 4. Quoting Exemption 4, it provides that records not routinely available 
for public inspection include "[t]rade secrets and commercial or financial information 
obtained from any person and privileged or confidential."412 Like the statute, the rule also 
states that under Exemption 4, "the Commission is authorized to withhold from public 
inspection materials which would be privileged ... if retained by the person who submitted 
them." Finally, the rule permits the withholding of "materials which would not customarily 
be released to the public by [the person submitting them], whether or not such materials are 
protected from disclosure by a privilege. "43 In implementing this rule, however, the 
Commission generally relies not upon the precise language of the rule, but upon the statutory 
language of Exception 4 and the general case law construing it, discussed above.44
38 381 U.S. at 291-92 (notes omitted). 
?" 47 U.S.C. § 220(f).
40 Amendment of Pan O of the Commission's Rules with Respect to Delegation of 
Authority to the Chief, Common Carrier Bureau, 104 F.C.C.2d 733, 737 (1986).
41 Amendment of Pan 0, Rules and Regulations, to Implement P.L. 89-487, 8 FCC 2d 
908 (1967), codified as amended at 47 C.F.R. §§ 0.441-0.461.
4: 47 C.F.R. § 0.457(d).
43 Id.
44 See paras. 4-8 above.
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18. Section 0.457 of the Commission's rules also provides that certain categories 
materials listed therein are deemed to be within Exemption 4 and therefore are "not routinely 
available for public inspection."45 As indicated above,46 such Exemption 4 materials may not 
be disclosed by Commission employees unless an appropriate request for inspection is made 
and, after weighing the considerations favoring disclosure and non-disclosure, the 
Commission determines that a "persuasive showing" has been made to warrant disclosure.47
19. Any person submitting information or materials to the Commission not falling 
within the specific categories set forth in Section 0.457 may also request on an ad hoc basis 
that such information not be made routinely avaikble for public inspection under Exemption 
4.48 Each such request must contain a statement of the reasons for withholding the materials 
from inspection and of the facts upon which those reasons are based.49 A request that 
information not be made routinely avaikble for public inspection will be granted if it presents 
by a preponderance of the evidence a case for non-disclosure consistent with the provisions
45 The materials presumed not routinely avaikble for public inspection are: (i) financial 
reports submitted by Licensees of broadcast stations pursuant to 47 C.F.R § 1.611, (ii) 
applications for equipment authorizations (type acceptance, type approval, certification, or 
advance approval of subscription television systems), and materials relating to such 
applications, (iii) Schedules 2, 3, and 4 of financial reports submitted for cable television 
systems pursuant to 47 C.F.R. § 76.403, (iv) annual fee computation forms submitted for 
cable television systems pursuant to 47 C.F.R, § 76,406 and (v) certain materials submitted 
to the Commission prior to July 4, 1967 or with respect to equipment authorizations between 
July 4, 1967 and March 25, 1974. 47 C.F.R. § 0.457.
46 See para. 13 above.
47 47 C.F.R. §§ 0.451(b)(5), 0.457(d)(l); 0.457(d)(2)(i); 0.461(f)(4).
48 47 C.F.R. § 0.459(a). In the absence of a request that materials not be routinely 
available for public inspection, the Commission may, in the unusual instance, determine on 
its own motion that the materials should not be routinely avaikble for public inspection. 47 
C.F.R. § 0.457(d)(2)(i). Ordinarily, however, in the absence of such a request, materials 
which are submitted to the Commission will be made available for inspection upon request 
pursuant to Section 0.461, even though some question may be present as to whether they 
contain trade secrets or like matter. 47 C.F.R. § 0.457(d)(2)(i).
49 47 C.F.R. § 0.459(b). Requests which comply with these requirements are acted on 
by the appropriate Bureau or Office Chief. 47 C.F.R. § 0.459(d).
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of FOIA.50 If a request that materials not be routinely available for public inspection is 
granted, the material will be treated the same as those categories of information presumed 
not routinely available for public disclosure under Section 0.457(d) of the Commission's 
rules.51 That is, any person wishing to inspect such materials must submit a request for 
inspection (i.e., a FOIA request) under Section 0.46152 and a persuasive showing as to the 
reasons for inspection will be required.53
20. The Commission's rules also contain procedures to protect the confidentiality 
of information until appeals procedures have been completed. Thus, if a request for 
confidentiality is denied, the person who submitted the request may, within 5 working days, 
file an application for review by the Commission.54 If the application for review is denied, 
the person who submitted the request will b& afforded 5 working days in which to seek a 
judicial stay of the ruling.55 In the interim, the material will not be disclosed. Similar 
provisions govern in instances in which the records in question are the subject of a FOIA 
request. That is, even if the Commission determines that the information must be disclosed 
pursuant to FOIA, the information will not be disclosed until the person requesting 
confidentiality has had an opportunity to pursue administrative and judicial appeals.56
2. General Policies Regarding Disclosure of Exemption 4 Records
21. As indicated above, the Commission's rules provide for the disclosure of 
Exemption 4 material if a "persuasive showing is made ""  Consistent with the Supreme 
Court's decision in FCC v. Schreiber, discussed above, the rules also contemplate that the 
Commission will engage in a  balancing of the public and private interests favoring disclosure
50 47 C.F.R. § Q.459(d). Prior to a regulatory amendment in 1984, the Commission 
required clear and convincing evidence to justify release of materials not routinely available 
for public inspection. See Amendment of Commission's Rules Regarding Confidential 
Treatment of Information Submitted to Commission, 98 FCC 2d 1, 3-5 (1984).
51 47 C.F.R. § 0.459(h).
52 Id.
5? 47 C.F.R. § 0.457(d)(l).
54 47 C.F.R. §0.459(g).
55 Id.
56 47 C.F.R. § 0.461 (h).
57 See paras. 13, 18 above.
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and non-disclosure.58 The Commission generally has exercised its discretion to release 
FOIA Exemption 4 information only in very limited circumstances such as where a party 
placed its financial condition at issue in a Commission proceeding or where the Commission 
has identified a compelling public interest in disclosure.59
22. An example of a matter in which a party placed its financial condition at issue 
in a Commission proceeding is Kannapolis Television Company.60 In that case, the 
Commission granted partial disclosure of the Annual Financial Reports filed by WCCB-TV, 
Inc. WCCB had filed a petition to deny Kannapolis's applications for a construction permit 
and for subscription television authorization, claiming that grant of the applications would 
impair WCCB's ability to compete effectively and would also jeopardize WCCB's financial 
viability. Kannapolis sought access to certain Annual Financial Reports filed by WCCB so 
that it could assess WCCB's claims. The parties agreed, and the Commission found, 
pursuant to Commission precedent, that by placing its financial condition at issue, release of 
some of WCCB's financial reports was required.61 In determining which of the financial 
reports to release publicly, the Commission stated that it considered "the relevancy and 
materiality of the information sought and the inability to obtain the requested information 
from other sources."62
23. MCI Telecommunications Corporation63 illustrates a second type of 
circumstance under which discretionary release of competitively sensitive information has 
been permitted under the Commission's FOIA decisions, i.e., where a compelling public 
interest exists in disclosure. In that proceeding, MCI had requested access to certain 
agreements filed by AT&T and a number of regional bell holding companies relating to 
shared network facilities. Although the Commission found that the information contained in 
the agreements was exempt from mandatory disclosure under the FOIA because its release 
could have injured AT&T competitively, it found nonetheless that MCI had presented public 
interest concerns warranting release. MCI had argued that, through the subject agreements, 
AT&T had obtained facilities for transport of "access-like" services at rates substantially
58 See 381 U.S. at 291-292.
59 See The Western Union Telegraph Company, 2 FCC Red 4485, 4487 (1987) (citing 
Kannapolis Television Co., 80 FCC 2d 307 (1980)).
60 80 F.C.C.2d 307 (1980); see also, e.g., Leflore Broadcasting Company, 36 FCC 2d 
101, 103 (1972) (release of Annual Financial Reports authorized because "poor financial 
position" had been claimed).
61 80 FCC 2d at 308-309.
62 Id. at 310.
63 58 RR 2d 187 (1985).
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lower than those which MCI and other interexchange carriers could obtain under special 
access tariffs, and that such preferences called into question the reasonableness of AT&T's 
private line tariffs (which were based in part on rates paid for such "access like" services). 
The Commission concluded that MCI needed the information in order to press its claims in 
ongoing proceedings considering special access tariffs, and ordered release for this limited 
purpose.64
24. Even where a party has placed its financial condition at issue or a compelling 
public interests exists to disclose confidential information, however, the Commission does not 
automatically authorize release of such information.65 In determining whether a public 
interest in the privacy of proprietary business data exists, the Commission has adhered to a 
policy whereby it "will not authorize the disclosure of confidential financial information on 
the mere chance that it might be helpful, but insists upon a showing that the information is a 
necessary link in a chain of evidence that will resolve a public interest issue. ll66 In other
64 Id. at 189-190; see also Rogers Radiocall, 52 RR 2d 1373 (1982) (describing 
unappealed Common Carrier Bureau decision that release of estimation of customer levels in 
35 cities in which AT&T subsidiary had applied to offer domestic cellular radio service 
would be in the public interest as deletion of this estimation would cause application to be 
deficient and withholding estimation would deprive commenters from evaluating this aspect 
of the application); National Exchange Carrier Assoc., Inc., 5 FCC Red 7184, 7185 (1990) 
(finding public interest in disclosure of audit report pertaining to adjustments by four Bell 
Operating Companies to the NECA common line pool where no information related to 
individual products or services and ratepayers had vital interest in outcome of show 
cause/forfeiture proceeding).
65 Hubbard-Broadcasting, Inc. , 46 RR 2d 1261, 1264 (1979) (where released financial 
data already demonstrates losses, it is not necessary to disclose additional data to pinpoint 
causes of losses); Newport TV Cable Co., Inc., 55 FCC 2d 805, 806 (1975) (where released 
balance sheets already demonstrate profits, it is not necessary to disclose additional data to 
prove profitability).
06 Classical Radio for Connecticut, Inc., 69 FCC 2d 1517, 1520 n.4 (1978) (citing 
Sioux Empire Broadcasting Company, 10 FCC 2d 132 (1967)); accord Cincinnati Bell 
Telephone Co. Tariff. ("Cincinnati"), 10 FCC Red 10574 (Com. Car. Bur. 1995) (citing 
Classical Radio); see also Petition of Public Utility Commission, State of Hawaii, 10 FCC 
Red 2881, 2888 (Wireless Bur. 1995) (information must be directly relevant to a required 
determination), modified on other grounds 10 FCC Red. 3984 (Wireless Bur. 1995); 
American Telephone and Telegraph Co., 5 FCC Red 2464 (1990) (quoting Letter of Chief 
Common Carrier Bureau (Nov. 23, 1988) distinguishing between material of "critical 
significance" and data providing a "factual context" for the consideration of broad policy 
issues and concluding with respect to the latter the prospect of competitive harm likely to 
flow from release outweighs value of making information available).
12419
words, the Commission requires that "specific and concrete public benefits be reasonably 
anticipated before properly exempt information will be released on a discretionary basis."67
3. The Protective Order Approach
25. In recent years, the Commission also has increasingly relied on special 
remedies such as redaction,68 aggregated data or summaries,69 and protective orders70 to 
balance the interests in disclosure and the interests in preserving the confidentiality of 
competitively sensitive materials. In particular, the Commission has refined the manner in 
which it releases confidential information by relying more frequently on protective orders or 
agreements. Protective orders or agreements essentially require parties to whom confidential 
information is made available to limit the persons who will have access to the information 
and the purposes for which the information will be used.
26. As two recent Bureau orders have recently noted with respect to competitively 
sensitive information: "even when information is critical to resolution of a public interest 
issue, the competitive threat posed by widespread disclosure under the FOIA may outweigh
67 The Western Union Telegraph Co., 2 FCC Red at 4487.
68 Allnet Communications Services, Inc., 8 FCC Red 5629, 5630 (1993) (withholding 
from public release some redacted material provided to the parties under a protective order, 
but releasing other redacted material that did not contain confidential information).
69 Id. (finding certain averaged data not to be competitively sensitive); Bellsouth Corp., 
8 FCC Red 8129, 8130 (1993) (releasing summary of audit findings despite claim of 
confidentiality since summary nature of information significantly diminished the likelihood of 
competitive harm).
70 See, e.g., Cincinnati, 10 FCC Red 10574; Petition of Public Utilities Commission, 
State of Hawaii, for Authority to Extend its Rate Regulation of Commercial Mobile Radio 
Services in the State of Hawaii ("Hawaii"), 10 FCC Red 2359 and 10 FCC Red 2881 
(Wireless Bur. 1995); In re Applications ofCraig O. McCaw, Transferor, and American 
Telephone and Telegraph Company, Transferee, for Consent to the Transfer of Control of 
McCaw Cellular Communications, Inc. and its Subsidiaries, 9 FCC Red 2610 (Com. Car. 
Bur. 1994); Commission Requirements for Cost Support Material to be Filed with Open 
Network Architecture Access Tariffs ("Open Network Architecture"), 7 FCC Red 1526 (Com. 
Car. Bur. 1992), offd, 9 FCC Red 180 (1993); Motorola Satellite Communications, Inc. 
Request for Pioneer's Preference to Establish a Low-Earth Orbit Satellite System in the 1610- 
1626.5 MHz Band ("Motorola"), 1 FCC Red 5062 (1992).
12420
the public benefit in disclosure. "71 In such instances, disclosure under a protective order or 
agreement may serve the dual purpose of protecting competitively valuable information while 
still permitting limited disclosure for a specific public purpose.72
27. For example, in the context of the Shared Network Facilities Arrangement 
(SNFA) investigation, the Commission determined that inter-carrier SNFA contracts to which 
MCI sought access, although exempt from mandatory disclosure under FOIA Exemption 4, 
were relevant to MCI's claims that AT&T had obtained facilities for transport of "access- 
like" services at rates substantially lower than those which MCI and other interexchange 
carriers, and that such preferences called into question the reasonableness of AT&T's private 
line tariffs.73 The Commission therefore allowed MCI to have access to the documents, but 
it directed the Office of General Counsel to impose a protective order that would prevent 
MCI, the party seeking access to confidential SNFA materials, from revealing that 
information to third parties or using it for competitive purposes.74
28. Likewise, in proceedings to consider petitions by various states seeking to 
continue to regulate the intrastate rates of commercial mobile radio services, the Wireless 
Telecommunications Bureau found that certain carrier financial information submitted by 
California was sufficiently relevant to disposition of California's petition that it could not be 
excluded from consideration of the issues on the merits. The Bureau found that excluding 
the information would in effect deny California the opportunity to make the demonstration, 
required by Congress, that it should be allowed to regulate intrastate rates, The Bureau 
found that it, was therefore desirable to allow the public to comment on the data. Unlimited 
disclosure was not appropriate, however, due to the potential for competitive injury. 
Accordingly, the Bureau ordered limited disclosure of the data, pursuant to a protective order.75
29. While protective orders permit the Commission to make confidential 
information available on a limited basis while minimizing the competitive harm that might 
ensue froni widespread disclosure, the Commission is mindful of the fact that extensive
71 Cincinnati, 10 FCC Red at 10575; Hawaii, 10 FCC Red at 2366; see also Open 
Network Architecture, 1 FCC Red at 1533 (citing Penzoil Co. v. FPC, 534 F.2d 627, 631-32 
(5th Cir. 1976), for the proposition that in-considering discretionary disclosure of Exemption 
4 material, agencies must consider whether less extensive disclosure may provide the public 
with adequate knowledge while protecting proprietary information).
7: Cincinnati. 10 FCC Red at 10575; Hawaii, 10 FCC Red at 2366 (footnotes omitted).
13 MCI Telecommunications Corp., 58 RR 2d 187, 190'(1985).
74 Id.
75 Hawaii, 10 FCC Red at 2367.
12421
reliance on protective orders may also impose burdens on the public and the Commission. 
For example, the Commission's Office of Engineering and Technology stated that to 
reflexively grant limited disclosure of confidential information under protective orders as a 
"routine matter" in pioneer preference proceedings76 "would result in significant new burdens 
upon our staff and delay completion of such proceedings . . . . tl77
m. ISSUES FOR COMMENT
A. General Issues
30. The Commission's policies implementing its rules governing confidentiality 
affect both the competitive nature of the telecommunications industry and performance of the 
Commission's public responsibilities. As indicated in the preceding discussion, the 
Commission has long been sensitive to the concern that fulfillment of its regulatory 
responsibilities does not result in unnecessary disclosure of confidential information that 
places Commission regulatees at an unfair competitive disadvantage. In that respect, we 
recognize that the "private" interests of regulatees in ensuring their own competitive vitality 
generally coincide with the public interest in promoting a robust and competitive 
telecommunications market. Further, allowing confidential submission increases the 
willingness of holders of confidential information to provide that information to the 
Commission and, even where submission is mandatoi'y, often avoids the burden and delay of 
invoking such mandatory means.78 For these reasons, the Commission's policy has been to 
avoid disclosures of confidential information except where necessary to the effective 
performance of its regulatory duties and to employ protective orders where appropriate.
31. At the same time, allowing confidential subr-ission necessarily decreases the 
amount of information publicly available to facilitate public participation in the regulatory 
process. Public participation in Commission proceedings cannot be effective unless 
meaningful information is made available lo the interested persons. As noted, in recent 
years, the Commission also has relied more frequently on protective orders and agreements. 
Protective orders and agreements have die advantage of permitting the release   albeit on a 
limited basis ~ of more information than would be possible without them, given our 
obligations to protect trade secrets and commercial or financial information. On the other
76 A pioneer's preference allows a party demonstrating that it has developed an 
innovative proposal leading to establishment of a spectrum-based service not currently 
provided, or substantial enhancement of an existing spectrum-based service, to be considered 
for a construction permit or license for the service free from any mutually exclusive 
applications. See 47 C.F.R. § 1.402.
77 Motorola Satellite Communications Inc., 1 FCC Red 5062, 5064 (1992) (quoting 
Letter of Thomas P Stanley, Chief Engineer (June 3, 1992)).
78 See, e.g., Probe Research, Inc., 50 RR 2d 351, 353 (1981).
12422
hand, protective orders are inconvenient and sometimes cumbersome and increase the 
administrative burdens on the Commission and those subject to them. In addition, protective 
orders may make it less likely that the Commission will receive a diversity of public 
comment on the protected materials. Given the Commission's obligation to balance these 
concerns, we therefore seek comment whether the Commission should adopt additional 
policies or rules governing the treatment of information submitted to the Commission in 
confidence.
32. Specifically, we seek comment on the standard in the Commission's current 
rules that permits disclosure of trade secrets and confidential commercial or financial 
information upon a "persuasive showing" of the reasons in favor of the information's 
release.79 We ask commenters to address whether this continues to be the appropriate 
standard or whether the Commission should adopt some other standard. Assuming we retain 
this standard, we seek comment on what should constitute a "persuasive showing" of the 
reasons in favor of the information's release. As discussed in more detail below, we also ask 
comment on standards that should apply in particular types of Commission proceedings.
33. We also seek comment on whether the Commission's current approach to the 
use of protective orders is the appropriate approach or whether the Commission should adopt 
some other approach. Advantages and disadvantages of the current approach should be 
discussed. We specifically request, comment on any problems or burdens that commenters 
perceive with the current protective order approach and ways in which these problems or 
burdens might be minimized. Commenters should also address whether the Commission's 
willingness to release confidential information subject to a protective order reduces 
submitters willingness to voluntarily submit information to the Commission. And, we seek 
comment on whether the use of protective orders unduly interferes with the Commission's 
ability to obtain public comment or with the public's right to know what actions the 
Commission is taking and why it is taking them.
34. As a related matter, we note that a recent D.C, Circuit opinion suggests that 
the Commission may have the option of releasing all or part of an order under seal.80 We 
seek comment whether it is appropriate for the Commission to draft a decision that relies on 
confidential data (or data disclosed pursuant to protective order) without publicly revealing 
the information. 81 If the Commission determines that the data is necessary to support the 
order, should the Commission place the relevant order under seal or should the information 
lose protected status at this point?
79 See 47 C.F.R. § 0.457(d)(l), (d)(2)(i).
80 SBC Communications, Inc. v. FCC, 56 F.3d 1484, 1492 (D.C. Cir. 1995).
81 See also para. 41. below.
12423
35. Commenters also are invited to address and comment on any other issues 
relating to the Commission's policies and rules governing confidential treatment of 
information submitted to the Commission.
B. Model Protective Order
36. As discussed, release of confidential information under a protective order or 
agreement can often serve to resolve the. conflict between safeguarding competitively 
sensitive information and allowing interested parties the opportunity to fully respond to 
assertions put forth by the submitter of confidential information. We seek comment as to 
whether it would be helpful for the Commission to develop a standard form protective order 
that could then be modified as appropriate to fit the circumstances of particular cases. We 
have supplied, as Appendix A to this Notice, a draft model protective order. We look 
forward to receiving comments on this draft order, and in particular what modifications need 
to be made to make it suitable to the varied types of Commission proceedings in which issues 
of confidentiality arise.
37. We also seek comment on what procedures the Commission should use to 
resolve disputes about the issuance and content of protective orders and how to ensure 
compliance with them. We are especially interested in whether commenters believe that our 
rules should be amended to address such issues directly.
C. Issues That Arise With Respect to Specific Types of FCC Proceedings
38. As indicated above, we also seek comment on whether different standards 
should apply for various categories of proceedings with respect to (i) what constitutes a 
"persuasive showing" of the reasons in favor of confidential information's release and (ii) 
what, if any, protective conditions we should place upon released material and whether this 
should vary depending on the nature of a proceeding. Specifically, we seek comment on 
whether the Commission should apply different disclosure policies to rulemakings, licensing 
proceedings, tariff proceedings and perhaps other categories of proceedings. For example, 
we seek comment on whether the Commission should require public disclosure of 
information without protective orders in some types of Commission proceedings even though 
that information is within FOIA Exemption 4. Specific issues that arise in connection with 
various types of proceedings are discussed below. In addition, we request comments on 
whether special disclosure policies should apply to other categories of proceedings, not 
specifically mentioned below, and, if so, what those procedures should be.
1. Title in Licensing proceedings
39. Section 309 of the Communications Act provides that the Commission must 
allow at least 30 days following issuance of a public notice of certain radio license
12424
applications for interested parties to file petitions to deny an application.82 Section 309 thus 
contemplates that interested members of the public will have a full opportunity to challenge 
the grant of license applications. In addition, relevant case law indicates generally that 
petitioners to deny must be afforded access to all information submitted by licensees that bear 
upon their applications. 83
40. We seek comment on whether the fact that the statutory scheme expressly 
contemplates public participation in Title in license application proceedings makes it 
inappropriate to withhold information filed in such proceedings from routine public 
disclosure. In this regard, we note that Commission rules currently specify that broadcast 
and other Title HI license applications are routinely available for public inspection.84 
Nevertheless, applicants do sometimes request confidential treatment pursuant to Section 
0.459 of our rules for information submitted with their applications in both contested and 
uncontested application proceedings. In light of the special issues regarding public 
participation that arise in Section 309 proceedings, we therefore seek comment on whether 
our general policy should be to discourage submission of confidential information in the 
application context but still to leave the Commission some discretion to use protective orders 
where it seems warranted. Or, is it appropriate to adopt a general policy with regard to 
licensing proceedings, permitting disclosure of trade secrets and commercial or financial 
information only pursuant to protective orders?
41. If the Commission were to adopt a policy favoring the use of protective orders 
in licensing proceedings, we assume that petitioners would be given an opportunity to 
supplement their petitions to deny after reviewing the protected material. We also seek 
comment on whether members of the public should be afforded access to such protected 
material (pursuant to protective orders) in order to enable them to determine whether they 
wish to file petitions to deny. Would such policies tend to unduly delay Commission action
82 47 U.S.C. § 309(b), (d)(l).
83 'See, e.g., Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621, 
634 (D.C. Cir. 1978) (en bane) (although Commission need not allow discovery on EEO 
claim in license renewal case, the full report of the Commission's investigation, including all 
evidence it receives, must be placed in the public record, and a stated reasonable time 
allowed for response by petitioners); see also Amendment of Subpart H, Pan 1 of the 
Commission's Rules and Regulations Concerning Ex Pane Communications and Presentations 
in Commission Proceedings, 2 FCC Red 6053, 6054 (1987) (applicability of ex parte rules to 
information submitted in connection with Commission investigation of license applications), 
amended, 3 FCC Red 3995 (1988).
84 See 47 C.F.R. §§ 0.453, 0.455.
12425
on license applications?85 We also seek comment on whether it is ever appropriate to 
withhold from release entirely some Exemption 4 information, as has sometimes been done 
in the context of licensing proceedings86 and if so what standard should be used. Finally, we 
seek comment on whether different policies apply to different categories of material. For 
example, commenters should address whether our policy would be to use protective orders in 
licensing proceedings only in instances in which the material in question satisfies the trade 
secrets or "substantial competitive harm" prongs of Exemption 4 and to require public 
disclosure in all other cases in which the Exemption is invoked.
2. Tariff proceedings
42. Section 203 of the Communications Act requires that common carriers file and 
maintain tariffs with the Commission. Section 204 gives the Commission the authority to 
review tariffs for lawfulness, which involves, among other things, a determination of whether 
the tariff is just and reasonable pursuant to Section 201 (b) and is not unjustly discriminatory 
pursuant to Section 202 of the Act. The Commission has adopted rules specifying what 
support materials carriers must file to enable it to carry out its tariff review authority. 
Section 61.38 of the Commission's rules requires that a dominant carrier filing a letter of 
transmittal proposing to change its rates, offer a new service or change the terms and 
conditions underwMcrran existing service is offered must include certain cost support data. 87 
Section 61.49 of the Commission's rules contains a list of the support information that must 
be filed by carriers subject to price cap regulation.88 Pursuant to Section 0.455(b)(ll) of the 
Commission's rules, cost support data are routinely available for public inspection.89
85 See generally Motorola Satellite Communications, Inc. Request for Pioneer's 
Preference to Establish a Low-Earth Orbit Satellite System in the 1610-1626.5 MHz Band, 1 
FCC Red 5062, 5064 n.7 (1992) (noting that GET had declined to grant confidentiality 
requests and to issue protective orders as a routine matter in pioneer preference proceedings 
because use of protective orders tends to delay completion of proceedings)
86 See e.g., Application of Mobile Communications Holdings, Inc. for Authority to 
Construct the ELLJPSO Elliptical Orbit Mobile Satellite System, 10 FCC Red 1547, 1548 
(Int'l Bur. 1994) (declining to release, even under protective order, detailed cost and pricing 
information of applicant for a license).
87 47C.F.R. §61.38.
88 47C.F.R. §61.49.
89 47C.F.R. §§0.455(b)(ll).
12426
43. The Commission has generally made tariff support material publicly 
available. 90 It has departed from this policy only in a few limited circumstances, for 
example, to protect third-party vendor data where the data were made available subject to a 
protective agreement. 91 Recently, a number of carriers have filed requests for confidential 
treatment of their cost support data with their tariff transmittals.92 This presents a number of 
problems during the tariff review process. The maximum period for tariff review is defined 
by statute. Specifically, the tariff review process is initiated by the filing of a letter of 
transmittal by a carrier proposing a change to the carrier's tariff. The Commission's rules 
afford interested parties an opportunity to file an opposition to the transmittal, which may 
take the form of a petition to reject and/or to suspend and investigate.93 The filing carrier 
may file a reply.94 Under the Communications Act, the Commission has a maximum of one 
hundred and twenty days to determine the lawfulness of the tariff transmittal.95 The tariff 
goes into effect on its effective date unless the Commission issues an order rejecting or 
suspending and investigating the tariff.96 Section 402(b) of the Telecommunications Act of 
1996 provides that, effective one year after enactment, a local exchange carrier may file 
charges, classifications, regulations or practices on a streamlined basis, which shall be
90 Cincinnati, 10 FCC Red at 10575 (citing Classical Radio for Connecticut, Inc., 69 
FCC 2d 1517, 1520 n. 4 (1978)).
91 See paras. 27-28, above; Letter from Kathleen M.H. Wallman to Jonathan E. Canis, 
et al., FOIA Control Nos. 94-310, 325, 328, 9 FCC Red 6495 (1994) (denying unrestricted 
access to cost support data filed in connection with virtual collocation tariff, but allowing 
access pursuant to protective order), application for review pending; see also Cincinnati, 10 
FCC Red at 10575 (restating adherence to history of allowing open tariff proceedings, but 
allowing protection where cost data disaggregated and with potential of revealing market 
plans and positions in access services market); MCI Telecommunications Corporation, 58 
RR 2d 187, 190 (1985) (allowing MCI access under protective agreement to certain 
agreements filed by AT&T where MCI argued that, through the agreements, AT&T had 
obtained facilities for transport of "access-like" services at rates substantially lower than 
those which MCI and other interexchange earners could obtain under special access tariffs, 
and that such preferences called into question the reasonableness of AT&T's private line 
tariffs).
92 See Ameritech Transmittal No. 863, filed February 10, 1995; Southwestern Bell 
Telephone Company Transmittal No. 2470, filed June 16, 1995; Southwestern Bell 
Telephone Company Transmittal No. 2438, filed March 10, 1995.
93 47C.F.R. § 1.773.
94 Id.
"  See 47 U.S.C. §203(b)(2); 47-C.F.R.§ 61.58(a)(2).
"6 47 U.S.C. § 204.
12427
effective 7 days (in the case of a reduction in rates) or 15 days (in the case of an increase in 
rates) after the date on which they are filed unless the Commission takes action before the 
end of the period.
44. A request for confidential treatment may not be resolved within the 120 day 
statutory time frame established for the tariff review process under current law, especially if 
a ruling is appealed. A request for confidentiality is unlikely to be resolved under the 7 or 
15 day time frame that is to become effective for streamlined local exchange carrier filings 
under the Telecommunications Act of 1996. We therefore seek comment on how to resolve 
a request for confidentiality made in the context of the tariff review process. One possibility 
that takes account of the statutory time frame for the tariff review process is to require that 
carriers file any confidential information first, independent of the filing of the tariff 
transmittal. Under this alternative, the tariff filing could not be made until the request for 
confidentiality was resolved. Commenters should also address whether we should continue 
to make exceptions to the Commission's rule requiring such data to be made pubb'cly 
available. In this regard, we seek comment on how petitioners will be able to formulate 
meaningful objections to the proposed tariff rates, terms and conditions, often a critical part 
of the tariff review process, if they are unable to review all support material prior to the date 
that petitions are due. One possible solution is to develop a generic protective agreement 
that parties can use to protect the information during the tariff review process.
45. Commenters also should address whether different disclosure policies should 
apply to different phases of the tariff review process. Specifically, should different 
disclosure policies be applied to the tariff review and tariff investigation stages? Actions 
denying petitions to suspend or reject tariffs, thereby allowing a tariff to go into effect, are 
considered non-final, non-judicially reviewable actions because a party can seek further 
redress by filing a formal complaint pursuant to Section 208 of the Act. In contrast, a tariff 
set for investigation is assigned a docket number and a pleading cycle is established 
providing for direct cases, comments and replies. Al the conclusion of the investigation, the 
Commission issues an order which is subject to judicial review. Therefore since decisions to 
allow tariffs to go into effect are non-reviewable, non-final orders, should the Commission's 
policies focus on the need for disclosure to petitioners (whether or not pursuant to protective 
orders) primarily in instances in which a particular tariff has been set for investigation?
3. Rulemaking proceedings
46. Section 553(b) of the Administrative Procedure Act97 (APA) generally requires 
notice and an opportunity to comment before promulgation of a final agency rule. 
Specifically, the APA requires that a rulemaking notice include, among other things, "either 
the terms or substance of the proposed rule or a description of the subjects and issues
97 5U.S.C. §551 etseq.
12428
involved."98 Further, after the required rulemaking notice has been provided, the agency 
"shall give interested persons an opportunity to participate in the rule making through 
submission of written data, views, or arguments" and "after consideration of the relevant 
matter presented, the agency shall incorporate in the rules adopted a concise general 
statement of their basis and purpose.""
47. An agency's decision to withhold information in the context of a rulemaking 
can have a significant impact on whether meaningful notice/and opportunity to comment on 
the bases of an agency's decision have been given. In addition, issues arise to the extent that 
an agency relies on information that has not been made available to commenters. 10  For 
these reasons, the Commission generally has not afforded confidential treatment to material 
submitted in rulemakings, although it has on rare occasions utilized protective orders or 
agreements in the context of rulemakings. For example, in the Review of Prime Time Access 
Rule, the Commission allowed the examination, but not the copying of data based on 
Arbitron ratings reports and NAB/BCFM financial reports. 101 Rulemakings also may create 
special problems for use of protective orders, however, because a large number of 
commenters may be involved. On the other hand, a blanket refusal to apply protective 
orders in the context of rulemakings might cause the Commission to have access to less 
information than if it used protective orders. We seek comment on these issues as well as 
the general issue of whether it is ever appropriate to withhold competitively sensitive 
information filed in rulemaking proceedings from routine public disclosure. We note that the 
Commission has the option of refusing to consider information in a rulemaking that is 
submitted along with a request for confidentiality.
4. Requests for Special Relief and Waivers
48. Parties affected by our rules have the right to seek special relief from the 
rules' scope or waiver of these rules. In certain cases, parties may base their request for 
relief upon or other-wise put into issue information that is confidential. This information
"8 5 U.S.C. § 553(b). 
g" 5 U.S.C. § 553(c).
100 Abbot Laboratories v. Young, 691 F.Supp. 462, 467 (D.D.C. 1988) (one purpose of 
the requirement that agencies disclose the documents it deems relevant to a proceeding is to 
ensure that interested parties have a meaningful opportunity to participate in the proceeding), 
remanded on other grounds, 920 F.2d 984 (D.C. Cir. 1990), cert, denied, 502 U.S. 819 
(1991); see also e.,g., Petition of Public Utilities Commission, State of Hawaii, for Authority 
to Extend its Rate Regulation of Commercial Mobile Radio Services in the State of Hawaii 
("Hawaii"), 10 FCC Red 2881, 2884 (Wireless Bur. 1995).
101 See Letter from Independent Television to Roy Stewart, MM Docket 94-123, March 
28. 1995.
12429
may include financial information explaining cash flow, profitability, or bankruptcy 
problems, or corporate or partnership structure designed to demonstrate insulation from 
control or interest.- For example, in various cable television special relief proceedings, a 
party may seek relief based on severe financial difficulties, or upon corporate or partnership 
structure and insulation from control. 102 Likewise, for example, a party may ask the 
Commission's Office of Engineering and Technology ("OET") to waive a technical standard 
applicable to industrial, scientific or medical equipment and submit commercially sensitive 
information about the design of or marketing plans for the equipment in support of the 
request. 103 We seek comment on whether and under what circumstances it is appropriate to 
withhold information filed in such proceedings from routine public disclosure, particularly 
when the information is potentially decisional to a point placed in issue by the party seeking 
to withhold such information and may have precedential value for future cases.
5. Formal Complaints
49. Section 208 of the Communications Act permits any party to bring before the 
Commission a complaint against a common carrier for acts or omissions in violation of either 
the Act or a Commission rule or order. 104 Our rules, in turn, establish both informal and 
formal procedures for handling such complaints. 105 Confidentiality issues frequently arise in 
formal complaint proceedings, especially in connection with discovery. Parties often use 
protective agreements to ensure the confidentiality of materials provided pursuant to 
discovery, and, in 1993, we amended our formal complaint regulations to include limitations 
on the manner in which an opposing party may use, duplicate, and disseminate materials that 
are obtained through discovery and deemed proprietary by the submitter, 106 While 
discovered materials are not routinely filed with the Commission, parties may be directed to 
submit particular documents that the staff determines to be decisionally significant. In 
addition, parties may describe or include excerpts of materials that are subject to protective 
agreements in briefs or other pleadings filed in formal complaint cases. Thus, even when
102 See generally 47 C.F.R. § 76.7(a) (cable petitions for special relief).
103 See generally 47 U.S.C. §§ 18.101- 18.31.
104 47 U.S.C. § 208.
105 47 C.F.R. § 1.711 el seq. An informal complaint may be lodged simply by 
forwarding to the Commission a brief letter explaining the dispute between a complainant and 
the carrier. Formal complaints, however, are intended to provide an alternative to litigation 
in federal district court and are subject to various substantive and procedural requirements. 
47 C.F.R. §§ 1.720-1.735.
106 47 C.F.R. § 1.731; see Amendment of Rules Governing Procedures to Be Followed 
When Formal Complaints Are Filed Against Common Carriers, 8 FCC Red 2614, 2621-22 
(1993).
12430
opposing parties agree that particular materials should be protected from disclosure, the 
Commission must sometimes confront the difficulty of resolving a dispute in which 
significant portions of a lengthy and complicated record are subject to a protective agreement 
and a request for confidential treatment under Section 0.459.
50. We ask commenters to consider the most effective means of balancing our 
sometimes conflicting obligations to ensure protection of .proprietary business data, to prevent 
undue delay in resolving formal complaints, and to produce decisions that adequately explain, 
by reference to a specific record, the basis for our disposition of a complaint. For instance, 
in some cases, a factually and legally sound decision cannot be drafted without referring to 
information subject to a claim of confidentiality. The particular information deemed by the 
staff as necessary for resolution may be only a small portion of voluminous materials that are 
subject to a protective order and provided to the Commission in confidence. Thus, 
considerable time might be necessary for the staff to examine all materials subject to claims 
of confidentiality and rule on those claims. If the staff were to rule on the confidentiality of 
only the particular information determined to be decisionally significant, however, this ruling 
might prematurely indicate to the parties the staffs recommendation for Commission or 
Bureau disposition of the complaint In either instance, the complaint process could be 
delayed by administrative and judicial appeals of a confidentiality ruling. We ask 
commenters to consider whether any such delays and burden on Commission resources could 
or should be mitigated by issuing parts of adjudicatory decisions that rely on confidential 
information under seal. We seek comment on whether such a procedure would serve the 
public interest, given that complaint cases - although adjudications of disputes between 
particular parties   may result in rulings that indirectly, through the establishment of 
precedent, determine the legality of the practices of non-parties. We welcome suggestions as 
to how we can preserve the broad utility of the formal complaint process to elucidate the 
Commission's judgments regarding carrier conduct without either compromising sensitive 
business data or miring complaint proceedings in protracted peripheral disputes involving 
confidentiality.
6. Audits
5 1. The Commission has a statutory right of access to all accounts, records and 
memoranda, including all documents, papers, and correspondence kept or required to be kept 
by common carriers. 107 The detailed financial and commercial information inspected during 
an audit is generally sensitive in nature and is not customarily released to the public. This 
fact is highlighted by section 220(f) of the Communications Act, 108 which expressly prohibits
10~ 47 U.S.C. § 220(c). 
108 47 U.S.C. § 220(f).
12431
the release of information gathered during an audit absent a Commission or court order. 109 
The Commission has held that the public disclosure of data gathered in an audit is likely to 
impair its future ability to obtain such data because while the Commission could rely on 
compulsory measures to obtain the desired materials, such measures would involve 
significant expense and delay. 110 The Commission has also recognized in this regard that 
although the information gathering process that takes place during an audit begins with a 
general inquiry that presents an opportunity for a very selective response by the carrier, 
carriers have been very cooperative, not only permitting examination of company records, 
but also allowing employee interviews and preparing new documents. 111 The Commission 
has also recognized .that if audit materials were routinely disclosed, it would be likely that 
voluntary assistance in providing information would diminish, especially since the audits do 
not present the expectation of a government-bestowed benefit on the carrier. 112
52. The Commission has departed from its general policy and publicly released 
audit reports only in extraordinary circumstances when (i) the summary nature of the data 
contained in a particular report is not likely to cause the providing carrier substantial 
competitive injury, (ii) the release of the summary data and information is not likely to 
impair our ability to obtain information in future audits and (iii) overriding public interest
109 Section 22Q\f) does not, however, constitute authority to withhold information that is 
required to be disclosed under the FOIA, since Section 220(f) does not satisfy the 
requirements of Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). Exemption 3 provides that 
material need not be released where it is "specifically exempted from disclosure by statute 
. . . provided that such statute (A) requires that matters be withheld from the public *n such a 
manner as to leave no discretion on the issue, or (B) establishes particular criteria for 
withholding or refers to particular types of matters to be withheld." The Commission has 
also made clear that the Bureaus and Offices who may be custodians of such audit records 
have the authority to disclose such information where the iaformation is required to be 
disclosed under the provisions of the FOIA. Amendment of Pan 0 of the Commission's Rules 
with Respect to Delegation of Authority to Chief, Common Carrier Bureau, 104 FCC 2d 733, 
737 (1986).
110 J. David Stoner, 5 FCC Red 6458, 6459 (1990); Martha H. Plan, 5 FCC Red 5742, 
5743 (1990); Scott JRafferty, 5 FCC Red 4138, 4138 (1990); Western Union Telegraph Co., 
2 FCC Red 4485, 4486 (1987). In addition, the Commission has recognized that 
Commission-generated audit reports are intra-agency memoranda that are exempt from 
disclosure under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5). J. David Stoner, 5 FCC Red 
at 6460.
111 J. David Stoner, 5 FCC Red at 6459.
112 Id.
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concerns favor release of the report. 113 In the past, we have normally allowed submitters to 
request confidentiality for such data and have dealt with such requests on a case-by-case 
basis, consistent with the applicable standards in FOIA."4 We seek comment on whether we 
should continue to follow this policy and on whether and in what circumstances information 
gathered during an audit should be released even under a protective order.
7. Surveys and Studies.
53. "Hie Commission has authority to conduct studies and surveys needed to fulfill 
its regulatory functions. The precise authority for such studies may come directly from 
Congress115 or pursuant to the Commission's authority to inquire into matters within its 
jurisdiction. 116 Unlike information submitted in support of a specific regulatory action 
involving the submitting entity, surveys may request information from a broad category of 
regulated entities who are only submitting data because they were selected as part of a survey 
sample. Because these studies may involve the submission of information deemed 
competitively sensitive by responding entities, we seek comment on standards that should be 
applied to protect the confidentiality of information submitted in this context. We also seek 
comment regarding the treatment of such information when the information is used ultimately 
in the development of Commission rules or policies.
D. Scope of Materials Not Routinely Available for Public Inspection
54. The need for and burdens associated with protective orders are necessarily 
affected by the amount of information eligible for protected status. Accordingly, we seek 
comment on several issues raised by our current rules on materials not routinely available for 
public release.
55. Categories of Materials that are not Routinely Available for Public Inspection. 
Section 0.457(d) of our rules contains a list of categories of materials that, are not routinely 
available for public inspection and as such do not require a request for such treatment under 
Section 0.459. To the extent it is possible to define broad categories of information that 
should not be routinely available for public inspection, we can reduce administrative burdens
113 Bell Telephone Operating Companies, FCC 94-418 (released Oct. 17, 1995); see also, 
e.g., Bell Communications Research, Inc, 1 FCC Red 891 (1992); BellSouth Corp., 8 FCC 
Red 8129, 8130 (1990).
114 E.g., Bell Communications Research, Inc, 1 FCC Red 891 (1992); BellSouth Corp., 8 
FCC Red 8129, 8130 (1990).
"s See, e.g., 47 U.S.C. § 543(k) (requiring survey of prices between competitive and 
noncompetitive cable television systems).
116 See, e.g., 47 U.S.C. §403.
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on the Commission and submitters. On the other hand, over-inclusive categories would not 
be consistent with the presumption FOIA creates in favor of disclosure. We seek comment 
whether the current list of materials that are not routinely available for public inspection is 
appropriate or whether the list ought to be expanded or contracted.
56. Substantiating Confidentiality Claims. Section 0.461(a) of the Commission's 
confidentiality regulations provides that a person submitting information or materials to the 
Commission may request that the information not be made routinely available to the public. 
Section 0.46l(b) requires that each such request contain a statement of the reasons for 
withholding the materials from inspection and of the facts upon which those reasons are 
based. Because the Commission sometimes receives frivolous or unsubstantiated requests 
for confidentiality, we seek comment on whether the Commission should establish a policy or 
rule specifying more explicitly types of information that should be provided to comply with 
Section 0.461 (b).
57. Information that the submitter could be required to provide to substantiate 
requests for confidentiality might include:
(1) What portion of the information the submitter believes is entitled to 
confidential treatment;
(2) The length of time for which confidential treatment is desired;
(3) Measures taken by the business to prevent undesired disclosure to others;
(4) The extent to which the information has already been disclosed to others;
(5) Specific information showing the degree to which the information concerns a 
service that is subject to competition; and
(6) Specific information concerning why disclosure would result in substantial 
harmful effects to the business1 competitive position.
58. Establishing a policy specifying what types of information should be provided 
to comply with Section 0.461 (b) might be beneficial for several reasons. First, it would 
enable the Commission to deal in a more efficient fashion with requests that materials not be 
made routinely available to the public and with requests to release materials not made 
routinely available to the public. For example, even though our rules provide for seeking 
confidential treatment for only portions of documents when other portions of documents are 
nonconfidential,"7 submitters frequently assert an entire submission as confidential, even 
though many documents are not composed entirely of confidential business information.
117 47 C.F.R. § 0.459(a).
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When the Commission is dealing with masses of data from multiple submitters, uncertainty 
as to what specific confidentiality claims are being asserted can be a significant barrier to 
efficient action. In addition, a policy specifying what types of information should be 
provided to comply with Section 0.46l(b) might help reduce those confidentiality claims 
made as a matter of course and induce submitters to be more selective in their confidentiality 
claims. We seek comment on these benefits and on whether more precise substantiation 
requirements might burden a submitter's assertion of a claim for information which is truly 
entitled to confidential treatment. We also seek comment on what measures might be 
appropriate to deter frivolous requests for confidential treatment.
59. Aggregated or Sanitized Information. The Commission sometimes finds it 
beneficial to disclose to the public non-confidential information derived from data supplied by 
businesses and claimed as confidential. Such releases might take the form of industry-wide 
data aggregated into a non-confidential figure, or sanitized documents where all information 
that could identify the submitters has been removed. We seek comment on procedures the 
Commission could use to ensure that the portions of the sanitized or aggregated documents 
which are.disclosed do not contain information claimed as confidential and whether the rules 
should be amended to incorporate such procedures.
E. Proposed Clarifications to Commission Rules
60. Any person submitting information or materials to the Commission that do not 
fall within the specific categories of information not subject to routine disclosure118 may also 
request, on an ad hoc basis, that such information not be made routinely available for public 
inspection under Exemption 4. 119 The Commission is considering amending Section 0.459 of 
its rules to make express in the rules an existing practice whereby the Commission 
sometimes defers acting on a request for confidentiality if no request for inspection has been 
made. This practice conserves Commission resources because Exemption 4 determinations 
are often complex and require substantial Commission analysis. In such Instances, the party 
submitting the information for which confidentiality is claimed is not banned because the 
information is not available for public inspection pending Commission action on the 
confidentiality request. Likewise, the public is not harmed, because, under the FOIA, the 
Commission would be required to rule on any request that the information be disclosed. We 
seek comment on codifying this practice of deferring action on requests for confidentiality in 
the absence of a FOIA or other request for the information.
61. The Commission also proposes a clarifying amendment to the title of Section 
0.457(d) of its rules to better describe the Section's contents. The amended title would read: 
"Certain trade secrets and commercial or financial information obtained from any person and
118 See 47 C.F.R. § 0.457(d).
119 47 C.F.R. § 0.459(a).
12435
privileged or confidential categories of materials not routinely available for public 
inspection."
IV. INITIAL REGULATORY FLEXIBILITY ACT ANALYSIS
62. Pursuant to Section 603 of the Regulatory Flexibility Act, the Commission has 
prepared the following initial regulatory flexibility analysis (IRFA) of the expected impact of 
these proposed policies and rules on small entities. Written public comments are requested 
on the IRFA. These comments must be filed in accordance with the same filing deadlines as 
comments on the rest of the Notice, but they must have a separate and distinct heading 
designating them as responses to the regulatory flexibility analysis. The Secretary shall cause 
a copy of the Notice, including the initial regulatory flexibility analysis, to be sent to the 
Chief Counsel for Advocacy of the Small Business Administration in accordance with Section 
603(a) of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. 
Section 601 et seq. (1981).
63. Reason for action. The Communications Act of 1934 and the Commission's 
rules require the Commission to balance various factors in determining whether and under 
what conditions to withhold or to disclose competitively sensitive information that has been 
submitted to the Commission and that is not required to be publicly disclosed under the 
Freedom of Information Act. This Notice proposes to examine the Commission's 
regulations and policies to determine whether the Commission should modify its existing 
disclosure policies and rules.
64. Objectives. To implement the Communications Act of 1934 and the Freedom 
of Information Act and to develop a policy that will guide the Commission in evaluating the 
increasing number of requests that it afford confidential treatment to information that has 
been provided to it by regulated entities and others.
65. Legal Basis. Action as proposed for this rulemaking is contained in Sections 
4(i). 4(j). 303(r) and 403 of the Communications Act of 1934, as amended.
66. Description, potential impact and number of small entities affected. The 
Commission's policies and rules regarding the disclosure of confidential commercial and 
financial information affects small entities that are regulated by the Commission and small 
entities that participate in Commission proceedings.
67. Reporting, record keeping and other compliance requirements. None.
68. Federal rules which overlap, duplicate or conflict with this rule. None.
69. Any significant alternatives minimizing impact on small entities and consistent 
with stated objectives. None.
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V. PAPERWORK REDUCTION ACT
70. The requirements proposed herein have been analyzed with respect to the 
Paperwork Reduction Act of 1995 and found to impose no new or modified information 
collection requirement on the public.
VI. PROCEDURAL PROVISIONS
71. This Notice of Inquiry and Notice of Proposed Rulemaking is issued pursuant 
to authority contained in Sections 4(i), 4(j), 303(r) and 403 of the Communications Act of 
1934, as amended, 47 U.S.C. §154(i), 154(j), 303(r) and 403. Pursuant to applicable 
procedures set forth in Sections 1.415, 1.419 and 1.430 of the Commission's Rules, 47 
C.F.R. §§ 1.415, 1.419 and 1.430, interested parties may file comments on or before 60 
days following publication in Federal Register and reply comments on or before 90 days 
following publication in Federal Register. To file formally in this proceeding, participants 
must file an original and four copies of all comments, reply comments and supporting 
comments. If participants want each Commissioner to receive a personal copy of their 
comments, an original plus ten copies must be filed. Comments and reply comments should 
be sent to the Office of the Secretary, Federal Communications Commission, Washington, 
D.C. 20554. Comments and reply comments will be available for public inspection during 
regular business hours in the FCC Reference Center (Room 239) of the Federal 
Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554.
72. Ex parte Rules - Non-Restricted Proceeding. This is a non-restricted notice 
and comment rulemaking proceeding. Ex parte presentations are permitted, except during 
the Sunshine Agenda period, provided that they are disclosed as provided in Commission 
rules. See generally 47 C.F.R. Sections 1.1202, 1.1203, and 1.1206(a).
73. Further information on this proceeding may be obtained by contacting Joel 
Kaufman in the Office of General Counsel at (202) 418-1720.
VH. ORDERING CLAUSES
74. 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 0'), 303(r) and 403, NOTICE IS 
HEREBY GIVEN of proposed amendments to Part 0, in accordance with the proposals and 
discussions, in this Notice of Proposed Rulemaking, and that COMMENT IS SOUGHT 
regarding such proposals, discussion, and statement of issues.
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1.
75. IT IS FURTHER ORDERED that, the Secretary shall send a copy of this Notice 
of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration in accordance with paragraph 
603(a) of the Regulatory Flexibility Act. Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. §§ 
601 et sea- (1981).
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton 
Acting Secretary
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APPENDIX A: MODEL PROTECTIVE ORDER AND DECLARATION
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of 
[Name of Proceeding] ) Docket No. _
PROTECTIVE ORDER
This Protective Order is a device to facilitate and expedite the review of documents 
containing trade secrets and commercial or financial information obtained from a person and 
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 
otherwise.
1. For purposes of this Order, "Confidential Information" shall in the first 
instance mean either (i) information submitted to the Commission by the Submitting Party 
that has been so designated by the Submitting Party and which the Submitting Party has 
determined in good faith constitutes trade secrets and .commercial or financial information 
which is privileged or confidential within the meaning of Exemption 4 of the Freedom of 
Information Act, 5 U.S.C. § 552(b)(4) or (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 [cite Commission 
order designating items for treatment as Confidential Information]. Confidential Information 
shall be deemed to include additional copies of and information derived from Confidential 
Information.
2. The Commission may sua spome or upon petition determine that all or pan of 
the information claimed as "Confidential Information" is not entitled to such treatment.
3. Confidential Information submitted to the Commission 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
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submitting party shall desigaate tfee specific portions of the document claimed to contain 
Confidential Information and staE, where feasible, also submit a redacted version not 
containing Confidential Information.
4. 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. In the event that any person requests that Confidential Information be released publicly, 
the Commission will treat the request pursuant to 47 C.F.R. § 0.461.
5. Confidential Information shall only be made available to Commission staff, 
Commission consultants aad to counsel to the Reviewing Parties or if a Reviewing Party has 
no counsel to a person designated by the Reviewing Party. Reviewing Party shall mean a 
party to a Commission proceeding or any person or entity filing a pleading in a Commission 
proceeding. Before counsel to a Reviewing Party or such other designated person may 
obtain access to Confideatial Information, counsel or such other designated person must 
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, 
Authorized Representatives must execute the attached Declaration.
7. Authorized Representatives shall be limited to:
a. Counsel for the Reviewing Parties to this proceeding including in-houss 
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, provided that such persons are not representing or advising 
or otherwise assisting . . .;
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 except that disclosure 
10 persons in a position to use this information for competitive 
commercial or business purposes shall require the approval of the 
Commission; or
c. Any person designated by the Commission in the public interest, upon 
such terms as the Commission may deem proper.
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8. Confidential Information shall be maintained by a Submitting Party for 
inspection at least the two locations, at least one of which shall be in Washington, D.C. 
Inspection shall be carried out by Authorized Representatives by appointment during normal 
business hours. The Submitting Party shall provide copies of the Confidential Material to 
Authorized Representatives upon request and may charge a reasonable copying fee not to 
exceed twenty five cents per page.
9. 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, and provided further that the original copy and all other copies of the 
Confidential Information shall remain in the care and control of Authorized Representatives 
at all times and shall not pass to any other persons except as provided herein.
10. 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 prescribed by the Commission.
11. 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), shall not be used for competitive business 
purposes .'and shall not be 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. Reviewing Parties may, in any pleadings that they file in this proceeding, 
 ence the Confidential Information, but only if they comply with the followingrerer 
procedures:
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 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 shall be served upon the 
Secretary of the Commission, the Submitting Party, and those
12441
Reviewing Parties that have signed the attached Declaration. Such 
confidential portions shall be served under seal, and shall not be placed 
in the Commission's Public File unless the Commission directs 
otherwise (with notice to the Submitting Party and an opportunity to 
comment on such proposed disclosure). A 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. Reviewing 
Parties may provide courtesy copies of pleadings containing 
Confidential Infonnation to Commission staff.
13. 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 of Confidential Information, the violating party 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 denial of further access to Confidential Information in this proceeding,
14. Within two weeks after final resolution of this proceeding (which includes any 
administrative or judicial appeals), Authorized Representatives of Reviewing Parties shall 
destroy all Confidential Infonnation as well as all copies and derivative materials made, and 
shall certify that no material whatsoever derived from such Confidential Infonnation 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.
15. 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 privileged information shall not be deemed a waiver of the privilege.
 16. 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. Moreover, it in no way precludes the Commission from disclosing any 
Confidential Information where it determines the public interest so requires.
17. This Protective Order is issued pursuant to Section 4(i) of the Communications 
Act as amended, 47 U.S.C. § 154(i) and 47 C.F.R. § 0.457(d).
18. As used in this Order, the term "Commission" shall also include any arm of 
the Commission acting pursuant to delegated authority.
12442
DECLARATION 
[Cite Proceeding]
I, ___________________, hereby declare under penalty of perjury that I have 
read the foregoing Protective Order that has been entered by the Commission in this 
proceeding, and that I agree that I will 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.
(signed) ___________________
(printed name) 
(title) ____
(affiliation) 
(address) _
(phone) 
(date) _
12443