[Federal Register Volume 63, Number 159 (Tuesday, August 18, 1998)]
[Rules and Regulations]
[Pages 44161-44170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22001]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[GC Docket No. 96-55; FCC 98-184]
Examination of Current Policy Concerning the Treatment of
Confidential Information Submitted to the Commission
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission amends its rules to set out more clearly what
should be contained in a request that information not be routinely
available for public disclosure, provide that audit information and
programming contracts will be presumed to be exempt from routine public
disclosure, codify its practice of sometimes deferring action on a
request for confidentiality until a request for inspection is made, and
otherwise clarify its rules, delete obsolete references, and renumber
the rules. The Commission also adopts a Model Protective Order (MPO)
for general use.
DATES: These rules are effective November 20, 1998. Public comments on
the information collection requirements are due on or before October
20, 1998.
ADDRESSES: Send comments on information collections contained herein to
Judy Boley, Federal Communications Commission, Room 234, 1919 M Street,
N.W., Washington, D.C. 20554 or via the Internet to jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of
General Counsel, (202) 418-1720. For additional information concerning
information collections contained herein, contact Judy Boley at (202)
418-0214.
SUPPLEMENTARY INFORMATION:
1. The handling of confidential information requires the Commission
to balance the concerns of the parties submitting information and the
interest of the public in accessing that information. The manner in
which the Commission performs this task affects both the competitive
nature of the telecommunications industry and the performance of the
Commission's public responsibilities. As the telecommunications
industry becomes increasingly competitive, participants increasingly
assert that the information they provide to the Commission is
competitively sensitive. Likewise, there are an increasing number of
disputes among competitors concerning requests for confidential
treatment.
A. Substantiating Confidentiality Claims
2. When a person submitting information to the Commission requests
that it not be made available routinely to the public, 47 CFR 0.459(b)
requires that each such request contain a statement of the reasons for
withholding the materials from inspection and the factual basis for the
request. We believe that specifically identifying types of information
we need to evaluate requests for confidentiality will reduce the number
of unsubstantiated requests that we receive and conserve the resources
of the submitters by providing them with guidance as to what kind of
information we require to decide a confidentiality request.
3. Accordingly, we will amend 47 CFR 0.459(b) to list the types of
information that should be included in a request. Where relevant, the
following should be submitted:
(i) identification of the specific information for which
confidential treatment is sought;
(ii) identification of the Commission proceeding in which the
information was submitted or a description of the circumstances giving
rise to the submission;
(iii) explanation of the degree to which the information is
commercial or financial, or contains a trade secret or is privileged;
(iv) explanation of the degree to which the information concerns a
service that is subject to competition;
(v) explanation of how disclosure of the information could result
in substantial competitive harm;
(vi) identification of any measures taken by the submitting party
to prevent unauthorized disclosure;
(vii) identification of whether the information is available to the
public and the extent of any previous disclosure of the information to
third parties;
(viii) justification of the period during which the submitting
party asserts that material should not be available for public
disclosure; and
(ix) any other information that the party seeking confidential
treatment believes may be useful in assessing whether its request for
confidentiality should be granted.
4. We do not agree that substantiation of a confidentiality request
at the time the request is made is arbitrary and unduly burdensome. To
the extent there are changes in, for example, the measures taken by the
submitter to prevent disclosure, the extent to which the information
has already been disclosed, and the degree of competition facing the
service in question, between the time the request for confidential
treatment is made and the time a request for disclosure is received, we
note that submitters are permitted to update their confidentiality
request before any records are released.
B. ``Persuasive Showing'' That Confidential Materials Should Be
Released
5. To obtain access to records listed in 47 CFR 0.457(d) or records
withheld from inspection under 47 CFR 0.459(a), our current rules
provide that the requesting party must make ``[a] persuasive showing as
to the reasons for inspection'' in a filing which must ``contain a
statement of the reasons for inspection and the facts in support
thereof.'' We believe that the determinations of whether the showing
standard has been met should continue to be made on a case-by-case
basis. A case-by-case determination is appropriate because it requires
a balancing of, inter alia, the type of proceeding, the relevance of
the information, and the nature of the information. The Commission's
current rules contemplate that the Commission will engage in a
balancing of the public and private interests when determining whether
the ``persuasive showing'' standard has been met. That balancing may
well take into account the type of proceeding involved, whether the
requestor is a party to the proceeding, and may also be affected by
other factors, such as whether it is feasible to use a protective
order. Because we believe that a case-by-case determination is most
appropriate, we decline to adopt a blanket rule requiring the requester
to demonstrate that access is ``vital'' to the conduct of a proceeding,
necessary to the ``fundamental integrity'' of the Commission process at
issue, or that the
[[Page 44162]]
information have a direct impact on the requestor. We also decline to
impose a requirement that the requester prove that the information or a
substitute cannot be obtained by other means.
6. Commenters also point out that, where materials are voluntarily
submitted, our rules allow a party to request that the information be
returned if confidentiality is not granted. These commenters express a
concern that the distinction between voluntarily submitted and required
information may put more heavily regulated entities at a competitive
disadvantage vis-a-vis new entrants. We recognize that a more heavily
regulated entity may in some instances be subject to mandatory
submissions that do not apply to a new entrant. As part of the biennial
review process pursuant to section 11 of the Communications Act and
otherwise, the Commission is striving to minimize any such burdens. We
also note that whether or not materials are submitted voluntarily, the
Commission may not return them to the submitter once it has received a
FOIA request for the documents. Therefore, as a practical matter, once
a request for documents is received, no submitter, whether regulated or
not, may have its documents returned.
C. Burden of Proof
7. Our rules provide that the party initially claiming
confidentiality pursuant to 47 CFR 0.459(a) bears the burden of proving
by a preponderance of the evidence that such treatment is appropriate.
We reject the suggestion that where a party initially claims
confidentiality, the Commission staff should bear the burden of showing
that the information should not be accorded confidential treatment.
Consistent with FOIA's presumption in favor of disclosure, the
Commission's rules appropriately place the burden of showing that a
record should not be routinely available for public inspection on the
proponent of that claim. If a party's request has been granted, it has,
by definition, met that burden of proof, sufficient to demonstrate that
the information falls within FOIA Exemption 4. The types of materials
listed in 47 CFR 0.457(d) are accepted by the Commission as
confidential because, on a generic basis, they have been found to
contain confidential information and are exempt from disclosure under
FOIA Exemption 4. Similarly, the Commission may find, on its own
motion, that specific materials should not be routinely made available
because they contain trade secrets or confidential information.
Thereafter, when a request is made for disclosure of materials deemed
confidential under any of these circumstances, we agree with the
parties commenting that the requester of such information should
continue to bear the burden of making a persuasive showing as to the
reasons for inspection when access to confidential information is
sought.
8. This burden of making a persuasive showing as to the reasons for
inspection is consistent with FOIA's presumption in favor of disclosure
because the burden only applies to information already determined to
fall within Exemption 4. As discussed below, the Commission sometimes
defers action on requests for confidentiality if a request for
inspection has not been made. In those circumstances, if a request for
inspection is made, we first consider whether the party submitting the
information has met its burden of proving by a preponderance of the
evidence that confidential treatment is appropriate, and then apply the
persuasive showing test.
D. Model Protective Order
9. In recent years, the Commission has tried to balance the
interests in disclosure and the interests in preserving the
confidentiality of competitively sensitive materials by making more use
of special remedies such as protective orders. Protective orders can
provide the benefit of protecting competitively valuable information
while permitting limited disclosure for a specific public purpose.
Nonetheless, the Commission is mindful that extensive reliance on
protective orders may also impose burdens on the public and the
Commission.
10. On the whole, however, we conclude that the benefits of
adopting an MPO for general use in Commission proceedings will be
substantial. It will reduce the need for lengthy negotiations or
litigation over the terms of such orders and help prevent delays in
proceedings. It is not our intention, however, to suggest that
protective agreements can be used for information falling outside of
the nine categories of material exempt from disclosure under the FOIA.
11. While we believe the MPO will prove appropriate in most
instances where protective orders are appropriate, the Bureaus will
retain the authority to use a different or modified protective order
where they determine it is warranted. The MPO may also be used to
provide limited access to information on a timely basis where the
submitter has made a good faith request for confidential treatment of
information pursuant to 47 CFR 0.459(a) and the Commission has not yet
ruled on that request. The latter use is consistent with existing
Commission practice. We note, however, that where a request for
confidential treatment is pending, release of information, even under a
protective order, will be delayed pursuant to 47 CFR 0.459(g) to permit
the submitting party to file an application for review with the
Commission and then a judicial stay.
12. Off-Site Inspection. In some circumstances, where the quantity
of material subject to inspection is very large, a submitting party may
also file a request with the Commission that the entirety of the
material not be filed with the Commission. If the Commission grants
this request, Commission staff or any party examining the material
under the terms of a protective order at an off-site location may
designate portions of the material for inclusion in the record. The
submitting party shall promptly file such designated material under
seal in the record. This procedure will minimize the need for the
Commission to store in a secure fashion large quantities of potentially
irrelevant material while ensuring that relevant material is placed in
the record.
13. Restrictions on persons with authorized access to materials
under the MPO. We decline to adopt the suggestion that parties
examining information under a protective order should be limited to
allowing review by a set number of persons with various sublimits. We
believe such limitations may unreasonably preclude a party from
utilizing individuals, consistent with its needs and resources, who can
provide the requisite expertise to examine the documents. The serious
consequences of violating a Commission protective order make this
limitation unnecessary. We will, however, in rare instances such as
when specific future business plans are involved, consider limiting
access to documents to outside counsel and experts so as to minimize
the potential for inadvertent misuse of such information. A party
seeking this additional degree of protection must justify its request
when filing a request for confidential treatment. In making such a
request, a party should specify the modifications to the model
protective order that it believes to be necessary. The Commission, as
necessary, may seek comment from the other parties to a proceeding on
whether such modified protective procedures are appropriate in the
particular case at hand.
14. Copying of confidential information under the MPO. We agree
that a ban on copying materials subject to a protective order imposes
an unnecessary burden on the review of
[[Page 44163]]
such information. Moreover, we believe a prohibition on copying might
lead to a less thorough review of the confidential documents and
accordingly to less useful public comment. We will modify the MPO to
require a reviewing party to keep a written record of all copies made
and to provide this record to the Submitting Party on reasonable
request.
15. Copying charges. We reject the proposal to delete the 25 cents
maximum per page copying charge in the MPO and replace it with a
reasonable cost-based maximum because we believe it is prudent to avoid
disputes over what copying charges are reasonable by setting a maximum
charge for copying. At the time individual protective orders are
issued, however, the issuing Bureau may modify the maximum charge per
page for copies as circumstances warrant.
16. Sanctions for violations of the MPO. Current laws and
regulations already provide the Commission and the courts with a broad
range of sanctions for violations of Commission orders. Nonetheless, we
modify the MPO to include more examples of the available sanctions for
addressing violations of our protective orders to (i) specify that
possible sanctions for violation of a protective order include
disbarment from Commission proceedings, forfeitures, cease and desist
orders, and a denial of access to confidential information in that and
other Commission proceedings; (ii) clarify that the MPO is also an
agreement between the reviewing parties and the submitting party; (iii)
clarify that the submitting party retains all rights and remedies
available at law or equity against any party using confidential
information in a manner not authorized by the protective order; and
(iv) require violating parties to notify immediately the Commission and
the submitting party of the identity of anyone who improperly obtains
or uses the confidential information.
17. Duration of confidentiality protection. While we recognize that
many types of confidential information become less sensitive as time
passes, we do not believe that there is a sufficient basis in the
record to limit treatment under a protective order to any set period.
Accordingly, we will address claims of staleness on a case-by-case
basis. The prohibition on the unauthorized disclosure or use of the
confidential information remains binding indefinitely unless the
submitting party otherwise agrees or the Commission or a court
determines that particular information should be released from
restrictions contained in the protective order. We also modify the MPO
to allow a reviewing party to retain attorney work product containing
confidential information, so long as that information remains subject
to the MPO.
18. Use of confidential materials subject to the MPO in other
proceedings. We believe that routinely allowing confidential
information from one proceeding to be used in other proceedings will
increase the burdens, risks, and disputes associated with protective
orders. Therefore, as a general matter, we will allow information
subject to a protective order to be used only in the proceeding in
which it was obtained. However, we reserve the right to permit the use
of protected material in more than one Commission proceeding in the
exceptional case where the Commission finds that such use would be in
the public interest. A party seeking to use protected information
obtained in one proceeding in another proceeding may file a petition
with the Commission explaining why such use of the protected
information is appropriate. Any such petition shall ensure that any
protected information contained in or accompanying the petition is
protected from public disclosure.
19. Other MPO issues. The MPO, as originally proposed, already
contains the requirement that all authorized representatives be
required to execute non-disclosure agreements agreeing to be bound by
the terms of the protective order. We will not adopt for general usage
the suggestion that confidential information be made available only to
an independent auditor. While appropriate in very unusual cases, this
procedure would be impractical for conventional Commission proceedings.
Finally, we reject the suggestion that we adopt a protective order that
divides confidential information into two classes to be treated
differently. A standard protective order that further subdivides the
categories of confidential information, treats them differently, and
denies parties the ability to copy any information from certain
categories, would impose undue burdens on parties reviewing information
and the Commission.
E. Issues That Arise With Respect to Specific Types of FCC
Proceedings.
20. Title III Licensing Proceedings. Although our rules specify
that broadcast and other Title III license applications are routinely
available for public inspection, applicants sometimes request
confidential treatment pursuant to 47 CFR 0.459. We agree that a party
should not be required to forego trade secrets as a condition of
obtaining a Commission license, but note that, with the exception of
experimental licenses, most information submitted in Title III
licensing proceedings should be made publicly available. We will
continue the practice of making broadcast and other Title III license
applications routinely available for public inspection. We expect that
requests for confidentiality or protective orders in licensing
proceedings will and should remain relatively rare. Nevertheless, the
Commission will consider requests pursuant to 47 CFR 0.459 of our rules
to limit disclosure of confidential information to individuals and
entities who file a petition to deny and who execute a protective
order. Where appropriate, the Commission will issue protective orders
consistent with the MPO discussed previously. We agree that if the
Commission decides to permit disclosure of certain information only
pursuant to a protective order, the petitioner should be given an
opportunity to file or supplement its petition to deny the license
after it has had an opportunity to review the protected material. If
the Commission decides to issue a protective order, interested parties
generally will be given at least 30 days from the date the protected
material becomes available to file or supplement a petition to deny.
21. Tariff Proceedings. Recently we have adopted new procedures to
handle confidentiality requests in tariff review cases. First, in In
the Matter of Implementation of Section 402(b)(1)(A) of the
Telecommunications Act of 1996, Report and Order, 62 FR 5757 (February
7, 1997) (Tariff Streamlining), petitions for reconsideration pending,
we concluded that pre-effectiveness tariff review was required to
implement Section 204(a)(3) of the Communications Act. Tariff
Streamlining concluded that requests for confidentiality could not be
resolved in the 7 or 15-day pre-effective review period. We therefore
adopted a procedure for handling confidentiality requests in this
context. A protective order will be issued where the submitting party
includes with the tariff filing a showing by a preponderance of the
evidence that the data should be accorded confidential treatment
consistent with the provisions of the FOIA or makes a sufficient
showing that the information should be subject to a protective order.
To do this, a submitting party must comply with 47 CFR 0.459(b) and (c)
of our rules to demonstrate that its supporting data should be afforded
confidential treatment. If it does so, a standard
[[Page 44164]]
protective order will be issued. No written determination by the Bureau
will be made because of the short time frames involved. If an
investigation occurs, the Bureau can make a further determination
concerning the carrier's entitlement to confidentiality. Subsequent to
Tariff Streamlining, the Common Carrier Bureau decided to apply the
protective order adopted for streamlined tariffs in non-streamlined
tariff filings where the submitting party demonstrates that cost
support data should be afforded confidential treatment. Southwestern
Bell Telephone Co., 12 FCC Rcd 10271 (Common Carrier Bureau 1997),
application for review denied, 13 FCC Rcd 3602 (1997).
22. The procedures adopted in Tariff Streamlining, with the
following modifications, will continue to govern confidentiality
requests in both streamlined and non-streamlined tariff review
proceedings. First, if a carrier seeks confidential treatment for
tariff support information, it must either state that it will make its
cost support information available to those signing a nondisclosure
agreement, or file a request that the cost support information be kept
entirely confidential. The request that information be released only
pursuant to a protective order or that it be kept entirely confidential
must include the supporting information required by 47 CFR 0.459(b) of
our rules. We note that in the latter case, streamlined filings are
likely to be suspended if the Commission is unable to determine the
lawfulness of the tariff within the appropriate time frame without
public participation. This would allow us to rule on the request for
complete confidentiality, which we believe would be granted only in the
rarest of instances. In addition, the protective order to be used in
tariff review proceedings will be the one adopted in this proceeding,
in place of the one adopted in Tariff Streamlining. We note that the
MPO we adopt here does not differ substantially from that previously
adopted, and that we specifically noted in Tariff Streamlining that
this proceeding might modify the protective order adopted there.
23. We have decided not to establish different procedures for the
tariff review and the tariff investigation stage because, although the
decisions to allow tariffs to go into effect are non-final, non-
judicially reviewable orders, we believe public comment is important in
determining the lawfulness of rates at this stage, especially given the
short time frames in streamlined proceedings. We have also decided not
to require filing of confidential information in advance of a tariff
filing because that would cause delays in the tariff filing process
Congress may not have intended.
24. Rulemaking Proceedings. The Commission generally has not
afforded confidential treatment to material submitted in rulemakings,
although on rare occasions protective agreements have been used in the
context of rulemakings. Material submitted in rulemakings will continue
to be routinely available for public inspection because, as the
commenters who addressed rulemakings acknowledge, rulemakings have a
broad impact on the public, and wide public participation, with a full
opportunity to comment, is contemplated by the Administrative Procedure
Act.
25. To the extent that submissions made in rulemakings involve
sensitive commercial information, one option is to utilize protective
orders, as has been our policy in other procedural settings. Protective
orders generally are not practical solutions in rulemakings, however,
because rulemakings frequently involve numerous parties. Use of
protective orders could also inhibit full public participation in
proceedings that are of broad public interest. Nonetheless, a blanket
refusal to apply protective orders in the context of rulemakings, or
refusal to consider information accompanied by a request for
confidentiality, could ultimately result in the Commission not having
access to information that is highly relevant to our ultimate
decisions. Accordingly, although we expect to act favorably upon them
only in extremely rare instances, we will consider requests for
confidential treatment that propose to limit the availability of
confidential information in rulemaking proceedings to those who have
executed a protective order. Parties seeking confidential treatment
should request the Commission to return the materials without
considering them, pursuant to 47 CFR 0.459(e) of our rules, if the
request for confidentiality is denied, as we expect it would be in most
cases. We note, however, that the Commission cannot return information
if a FOIA request has been filed. Parties should also consider the
option of presenting information in a manner that reduces or eliminates
its commercial sensitivity, since, if such options are available, or if
public disclosure of the information does not present a serious
potential for competitive harm, we would not be inclined to authorize
protective orders.
26. Requests for Special Relief and Waivers. The comments reveal no
need to modify our existing confidentiality rules for use in Commission
proceedings dealing with requests for relief or special waivers. Thus,
we will continue to consider requests for confidentiality on a case-by-
case basis. Where appropriate, we may make information available only
subject to a protective order.
27. Formal Complaints. The parties generally suggested little
change to our current treatment of confidential information submitted
to the Commission during formal complaints, and we agree that our
current procedures are generally workable. We note, however, that the
MPO adopted herein may be used by the parties to formal complaints and
may be imposed by the Commission where parties cannot resolve discovery
disputes between themselves. The suggestion that we eliminate discovery
in formal complaint proceedings is beyond the scope of this proceeding.
28. Audits. The Commission has a longstanding policy of treating
information obtained from carriers during audits as confidential. Since
we are able to make a finding that audit materials received from
carriers generally fall within FOIA Exemption 4, and as an indication
of the importance we place on upholding the confidentiality of these
materials, we will amend 47 CFR 0.457 of our rules to indicate that
information submitted in connection with audits, investigations and
examination of records will not routinely be made available for public
inspection. In the context of an FOIA request, the Commission would
still need to make a particularized determination that the information
is exempt from disclosure.
29. As previously discussed, we have only rarely departed from the
general policy of withholding audit information from public disclosure.
Parties should note, however, that, we may publicly disclose audit
information in rare cases where the underlying concerns that normally
lead us to withhold audit information from public disclosure are
diminished by the minimal risk posed by the release of aggregate data
or, where the data is otherwise not highly commercially sensitive and
disclosure is justified by significant public interest factors. We do
not believe that carriers need be given an opportunity to object to the
proposed disclosure of audit data in aggregate form, where the data
does not reveal the confidences of any individual company.
30. Some parties expressed concern about the indication in footnote
109 of the Notice that the Bureaus and Offices have the authority to
disclose audit records where the information is required to be
disclosed under the
[[Page 44165]]
provision of the FOIA. We note that the Commission has previously
delegated authority to the Common Carrier Bureau to (1) approve the
release to state public utility commissions of information that the
Bureau may obtain during the course of audit activities and that falls
within the common interest and jurisdiction of the Commission and the
states, and (2) act on requests for audit information that are filed
pursuant to the FOIA, including the authority to furnish copies of
documents and other records. We continue to believe this delegation is
fully consistent with section 220(f) of the Communications Act.
31. Surveys and Studies. We believe the best way to protect the
confidentiality of these items is to allow survey and study respondents
to request confidential treatment pursuant to 47 CFR 0.459 to the
extent they can show by a preponderance of the evidence a case for non-
disclosure consistent with the FOIA. Assessments of the confidentiality
of this information will be made on a case-by-case basis, as the nature
of the information obtained in surveys and studies vary greatly.
32. Other Proceedings. While we have discussed in some detail how
confidential information will be treated in seven specific types of
proceedings, we expect that the principles set forth in this Report and
Order will also apply in other types of proceedings not specifically
discussed above. Thus, for example, United States international
carriers classified as dominant due to a foreign affiliation could seek
confidential treatment of some quarterly reports regarding provisioning
and maintenance and circuit status. We would expect to use the model
protective order or a modified version thereof to protect confidential
information if a sufficient case were made for confidential treatment
of such reports. We also would expect to use the standard protective
order where contributors to universal service support mechanisms
justify non-disclosure of company-specific data pursuant to 47 CFR
54.711(b) of the rules as well as in proceedings under section 271 of
the Communications Act regarding Bell Operating Company entry into
interLATA services. We expect that the off-site inspection procedures
described above may prove useful in certain merger proceedings
involving voluminous materials that are subject to claims of
confidentiality.
F. Scope of Materials Not Routinely Available for Public Inspection
33. We believe that the suggestion that 47 CFR 0.457(d) be replaced
with provisions that automatically accord confidential treatment to any
non-public information that can offer a competitor an advantage over
the submitting party is overly broad. We also reject the suggestion
that we categorically include ``information provided voluntarily to the
Commission subject to a certification by the provider that such
information is not customarily disclosed.'' Since judicial standards on
the issue of ``voluntary'' submission are highly fact-specific and
continue to evolve, we believe it is better to look at such requests on
a case-by-case basis under our current rules. Nevertheless, we do not
agree that we should reject all proposals classifying specific
categories of information as confidential. It is certainly possible to
identify categories of information that are likely to fall within FOIA
Exemption 4. Identifying such categories reduces administrative burdens
on submitters and the Commission. We conclude that certain programming
contracts fall squarely within Exemption 4. The Commission has
consistently recognized that disclosure of programming contracts
between multichannel video program distributors and programmers can
result in substantial competitive harm to the information provider and
has afforded confidential treatment to such contracts in a variety of
contexts. We believe that protecting such confidential information is
compatible with the public interest, and the requirements of FOIA
Exemption 4.
34. Therefore, we amend 47 CFR 0.457 of our rules to state that
programming contracts between programmers and multichannel video
programming distributors will not be routinely available for public
inspection. We note, however, that, consistent with our current rules,
such contracts may be made available subject to the MPO in situations
where they are relevant to the dispute at hand, e.g., program access
complaints.
35. Parties urge expanding the list of information not routinely
available for public disclosure to include ``[i]nformation submitted in
connection with audits, investigations and examination of records.'' We
addressed the recommendation in the previous discussion on audit
material, where we expanded the list of information not routinely
available for public inspection to include that type of data.
36. The submission of confidential materials to the Commission can
pose problems in the drafting of agency decisions. In most instances,
we expect it will be possible to write an order without publicly
revealing the confidential information. In some instances, this may
involve stating a conclusion that does not reveal confidential
information, backed up by a citation to confidential information in the
record that generally will have been available to parties signing a
protective order. In other instances, orders may refer to industry-wide
data that is aggregated in a manner that does not reveal confidential
information. Some commenters suggest that submitters should be notified
and given the opportunity to object, even when the data is aggregated,
prior to the release of the data. As discussed above, we disagree.
Aggregation of data ensures that confidential materials are released in
a form that removes confidentiality issues. Similarly, releasing an
order that cites to but does not reveal confidential information
remedies confidentiality concerns. We therefore decline to adopt the
commenters' suggestion as a matter of routine policy.
37. One court has suggested that an order relying on confidential
materials might be released all or in part under seal. We have only
rarely engaged in this practice, and are not aware of its widespread
use by other administrative agencies, although we note that the courts
do utilize this approach. We consider this option to be a last resort
when reference to confidential materials is necessary to support our
decisions. In such cases, we note, the sealed decision and the
confidential part of the record can be transmitted to the court under
seal if judicial review is sought.
G. Clarifications to Commission Rules
38. Deferral of rulings on confidentiality requests. We will amend
47 CFR 0.459 to indicate that, based on considerations of
administrative efficiencies, rulings on requests for confidentiality
may in some instances be deferred until a request for inspection has
been made. As long as the request for confidential treatment remains
pending before the Commission, the information will be treated
confidentially. In other instances, including, for example, where the
information is gathered specifically so that it may be published in
Commission reports, rulings on requests for confidentiality would
likely be made even in the absence of requests for inspection. We will
provide in our rules that the submitter will be notified of a request
for inspection. At the time a request for inspection is made, the
submitter may supplement its request for confidentiality, or revise it.
39. Changing the title of Section 0.457(d) and deleting the
introductory paragraph. The Commission also proposed to amend the title
of 47 CFR
[[Page 44166]]
0.457(d) of its rules to describe better the Section's contents as
follows: ``Certain trade secrets and commercial or financial
information obtained from any person and privileged or confidential--
categories of materials not routinely available for public
inspection.'' One party suggests leaving out the word ``certain,'' as
it may lead to confusion. We will adopt this proposal along with the
suggested amendment. We will also delete as unnecessary the
introductory paragraph of 47 CFR 0.457(d), which is derived from the
June 1967 Attorney General's Memorandum on the Public Information
Section of the Administrative Procedure Act, and does not necessarily
reflect the current state of the law concerning Exemption 4.
40. Defining ``Required'' versus ``Voluntary''. Some parties seek
clarification of the required submission vs. voluntary submission
distinction as applied to our confidentiality rules. As a more general
matter, we decline to make these clarifications, preferring that the
distinction between ``required'' and ``voluntary'' for Exemption 4
purposes be examined on a case-by-case basis, in light of the evolving
case law. The provision in 47 CFR 0.459(e) of the rules governing the
return of materials that are submitted voluntarily was adopted prior to
Critical Mass Energy Project versus Nuclear Regulatory Commission, 975
F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 (1993).
For purposes of this rule, our use of the term ``voluntary'' was not
intended to be co-extensive with the legal distinctions articulated in
the Critical Mass decision. We shall also modify 47 CFR 0.459(e) to
clarify that, if the information is subject to a request for
inspection, it will not be returned. When requesting that information
be afforded confidential treatment, a submitter will be required to
indicate whether information provided is customarily disclosed to the
public and the extent of any prior disclosure. We will assess this
submission in making our confidentiality determination.
41. Opportunity to comment. We agree that if the information
belongs to third parties, they should be afforded the opportunity to
participate in the Commission proceeding resolving the confidentiality
issue. 47 CFR 0.459 will be amended accordingly.
42. Clarification of review procedures. We find no need to clarify
the procedures for review of denials of confidentiality requests as
these matters are already addressed by the Commission's current rules.
Specifically 47 CFR 0.459(g) provides that, if a request for
confidentiality is denied, the requester may, within five working days,
file an application for review by the Commission. If the application
for review is denied, the requesting party will be afforded 5 working
days in which to seek a judicial stay of the ruling. In such
circumstances, the material is not released until the court denies a
stay request. Similar provisions govern situations in which the records
are the subject of a FOIA request. We believe that these procedures
provide parties with sufficient opportunity to obtain timely and
independent review of Bureau and Commission decisions denying
confidentiality.
43. Deletion of obsolete references and renumbering of rules. We
will take this opportunity to update 47 CFR 0.457(d)(1) of our Rules.
Under 47 CFR 0.457(d)(1)(i), financial reports filed under former 47
CFR 1.611 are not routinely made available for public inspection. 47
CFR 1.611 of our Rules was deleted when we eliminated the regular
filing of financial reports by broadcast stations. We also no longer
require radio or television networks to file financial reports.
However, these reports are permanent records and therefore still exist.
We will therefore amend 47 CFR 0.457(d)(1)(i) to indicate that
financial reports submitted pursuant to former 47 CFR 1.611 remain not
routinely available for public inspection. The parenthetical to 47 CFR
0.457(d)(1)(i) states that ``fees paid on consummation of the
assignment or transfer of a broadcast station licenses, pursuant to
Sec. 1.1111 of this chapter, are computed from information contained in
financial reports submitted pursuant to Sec. 1.611. Information and
correspondence concerning such computations are not routinely available
for public inspection.'' Fees for the assignment or transfer of
broadcast stations are now set by statute as reflected in 47 CFR 1.1104
of our rules. Therefore, we will eliminate the parenthetical portion of
47 CFR 0.457(d)(1).
44. Section 0.457(d)(1)(iii) of our rules provides that ``Schedules
2, 3, and 4 of financial reports submitted for cable television systems
pursuant to Sec. 76.403 of this chapter'' are not routinely available
for public inspection. Section 76.403 was deleted in 1983 and cable
television financial reports were eliminated at that time. While the
Commission indicated that reports previously filed under 47 CFR 76.403
would continue to be afforded confidentiality under 47 CFR 0.457(d),
these reports have been destroyed pursuant to our records retention
schedules. In addition, 47 CFR 0.457(d)(1)(iv) of our rules indicate
that the ``annual fee computation forms submitted for cable television
systems pursuant to 76.406 of this chapter'' are not routinely
available for public inspection. These forms are no longer used.
Section 76.406 was deleted from our rules in 1982. Under our record
retention schedules, any such forms previously filed should have been
long since been destroyed. We will therefore eliminate 47 CFR
0.467(d)(1)(iii) and 0.467(d)(1)(iv) from our rules as unnecessary. If
the reports have inadvertently not been destroyed, however, we intend
that they remain not routinely available.
45. Section 0.457(d)(2) lists various materials submitted
confidentially to the Commission prior to March 25, 1974. We will
renumber this subsection as part of 47 CFR 0.457(d)(1). We will also
renumber current 47 CFR 0.457(d)(2)(i) as a new 47 CFR 0.457(d)(2).
H. Final Regulatory Flexibility Act Certification
46. Our document incorporated an initial regulatory flexibility
analysis of the proposed rules. No comments were received. Section 604
of the Regulatory Flexibility Act, as amended, requires a final
regulatory flexibility analysis in a notice and comment rulemaking
proceeding unless we certify that ``the rule will not, if promulgated,
have a significant economic impact on a significant number of small
entities.'' The rule modifications adopted herein largely codify the
Commission's existing practices regarding confidential information, and
therefore will not have a substantial economic effect on small
entities. We therefore certify, pursuant to Section 605(b) of the
Regulatory Flexibility Act, that the rules will not have a significant
economic impact on a substantial number of small entities. The Office
of Public Affairs, Reference Operations Division, shall send a copy of
this Report and Order, including this certification and statement, to
the Chief Counsel for Advocacy of the Small Business Administration.
I. Paperwork Reduction Act
47. This Report and Order contains new and modified information
collections. As part of the Commission's continuing effort to reduce
paperwork burdens, we invite the general public and the Office of
Management and Budget (OMB) to comment on the information collections
contained in this Order, as required by the Paperwork Reduction Act of
1995, Public Law 104-13. Public and agency comments are due October 20,
1998. Comments may address the following: (a) whether the
[[Page 44167]]
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology. Written comments on the proposed
information collections must be submitted on or before October 20,
1998. In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Judy Boley, Federal Communications Commission, Room 234,
1919 M Street, N.W., Washington, DC 20554, or via the Internet to
jboley@fcc.gov>. For additional information concerning the information
collections contained in the Report and Order contact Judy Boley at
202-418-0214.
J. Ordering Clauses
48. It is ordered that, pursuant to Sections 4(i), 4(j), 303(r) and
403 of the Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 303(r)
and 403, this Report and Order is hereby adopted and Part 0 of the
Commission's rules are amended.
List of Subjects in 47 CFR Part 0
Freedom of information.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 0 of Title 47 of the Code of Federal Regulations is amended as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 0.457 is amended by revising paragraph (d) to read as
follows:
Sec. 0.457 Records not routinely available for public inspection.
* * * * *
(d) Trade secrets and commercial or financial information obtained
from any person and privileged or confidential--categories of materials
not routinely available for public inspection, 5 U.S.C. 552(b)(4) and
18 U.S.C. 1905.
(1) The materials listed in this subparagraph have been accepted,
or are being accepted, by the Commission on a confidential basis
pursuant to 5 U.S.C. 552(b)(4). To the extent indicated in each case,
the materials are not routinely available for public inspection. If the
protection afforded is sufficient, it is unnecessary for persons
submitting such materials to submit therewith a request for non-
disclosure pursuant to Sec. 0.459. A persuasive showing as to the
reasons for inspection will be required in requests for inspection of
such materials submitted under Sec. 0.461.
(i) Financial reports submitted by licensees of broadcast stations
pursuant to former Sec. 1.611 or by radio or television networks are
not routinely available for inspection.
(ii) Applications for equipment authorizations (type acceptance,
type approval, certification, or advance approval of subscription
television systems), and materials relating to such applications, are
not routinely available for public inspection prior to the effective
date of the authorization. The effective date of the authorization
will, upon request, be deferred to a date no earlier than that
specified by the applicant. Following the effective date of the
authorization, the application and related materials (including
technical specifications and test measurements) will be made available
for inspection upon request (see Sec. 0.460).
(iii) Information submitted in connection with audits,
investigations and examination of records pursuant to 47 U.S.C. 220.
(iv) Programming contracts between programmers and multichannel
video programming distributors.
(v) Prior to July 4, 1967, the rules and regulations provided that
certain materials submitted to the Commission would not be made
available for public inspection or provided assurance, in varying
degrees, that requests for nondisclosure of certain materials would be
honored. See, e.g., 47 CFR chapter I revised as of October 1, 1966,
Secs. 0.417, 2.557, 5.204, 5.255, 15.70, 21.406, 80.33, 87.153, 89.215,
91.208, 91.605 and 93.208. Materials submitted under these provisions
are not routinely available for public inspection. To the extent that
such materials were accepted on a confidential basis under the then
existing rules, they are not routinely available for public inspection.
The rules cited in this paragraph (d)(1)(v) were superseded by the
provisions of this paragraph (d), effective July 4, 1967. Equipment
authorization information accepted on a confidential basis between July
4, 1967 and March 25, 1974, will not be routinely available for
inspection and a persuasive showing as to the reasons for inspection of
such information will be required in requests for inspection of such
materials submitted under Sec. 0.461.
(2) Unless the materials to be submitted are listed in paragraph
(d)(1) of this section and the protection thereby afforded is adequate,
it is important for any person who submits materials which he wishes
withheld from public inspection under 5 U.S.C. 552(b)(4) to submit
therewith a request for non-disclosure pursuant to Sec. 0.459. If it is
shown in the request that the materials contain trade secrets or
commercial, financial or technical data which would customarily be
guarded from competitors, the materials will not be made routinely
available for inspection; and a persuasive showing as to the reasons
for inspection will be required in requests for inspection submitted
under Sec. 0.461. In the absence of a request for non-disclosure, the
Commission may, in the unusual instance, determine on its own motion
that the materials should not be routinely available for public
inspection. Ordinarily, however, in the absence of such a request,
materials which are submitted will be made available for inspection
upon request pursuant to Sec. 0.461, even though some question may be
present as to whether they contain trade secrets or like matter.
* * * * *
3. Section 0.459 is amended by revising paragraphs (b), (d), and
(e) to read as follows:
Sec. 0.459 Requests that materials or information submitted to the
Commission be withheld from public inspection.
* * * * *
(b) Each such request shall contain a statement of the reasons for
withholding the materials from inspection (see Sec. 0.457) and of the
facts upon which those records are based, including:
(1) Identification of the specific information for which
confidential treatment is sought;
(2) Identification of the Commission proceeding in which the
information was submitted or a description of the circumstances giving
rise to the submission;
(3) Explanation of the degree to which the information is
commercial or financial, or contains a trade secret or is privileged;
(4) Explanation of the degree to which the information concerns a
service that is subject to competition;
[[Page 44168]]
(5) Explanation of how disclosure of the information could result
in substantial competitive harm;
(6) Identification of any measures taken by the submitting party to
prevent unauthorized disclosure;
(7) Identification of whether the information is available to the
public and the extent of any previous disclosure of the information to
third parties;
(8) Justification of the period during which the submitting party
asserts that material should not be available for public disclosure;
and
(9) Any other information that the party seeking confidential
treatment believes may be useful in assessing whether its request for
confidentiality should be granted.
* * * * *
(d)(1) The Commission may defer acting on requests that materials
or information submitted to the Commission be withheld from public
inspection until a request for inspection has been made pursuant to
Sec. 0.460 or Sec. 0.461. The information will be accorded confidential
treatment, as provided for in Sec. 0.459(g) and Sec. 0.461, until the
Commission acts on the confidentiality request and all subsequent
appeal and stay proceedings have been exhausted.
(2) Requests which comply with the requirements of paragraphs (a)
and (b) of this section will be acted upon by the appropriate Bureau or
Office Chief, who is directed to grant the request if it presents by a
preponderance of the evidence a case for non-disclosure consistent with
the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the
request is granted, the ruling will be placed in the public file in
lieu of the materials withheld from public inspection. A copy of the
ruling shall be forwarded to the General Counsel.
(e) If the materials are submitted voluntarily (i.e., absent any
direction by the Commission), the person submitting them may request
the Commission to return the materials without consideration if the
request for confidentiality should be denied. In that event, the
materials will ordinarily be returned (e.g., an application will be
returned if it cannot be considered on a confidential basis). Only in
the unusual instance where the public interest so requires will the
materials be made available for public inspection. However, no
materials submitted with a request for confidentiality will be returned
if a request for inspection is filed under Sec. 0.461. If submission of
the materials is required by the Commission and the request for
confidentiality is denied, the materials will be made available for
public inspection.
* * * * *
4. Section 0.461 is amended by revising paragraph (d)(3) to read as
follows:
Sec. 0.461 Requests for inspection of materials not routinely
available for public inspection.
* * * * *
(d) * * *
(3) An original and two copies of the request shall be submitted.
If the request is for materials not open to routine public inspection
under Sec. 0.457(d) or Sec. 0.459, or if a request for confidentiality
is pending pursuant to Sec. 0.459, one copy of the request will be
mailed by the custodian of the records to the person who originally
submitted the materials to the Commission.
* * * * *
Appendix--Standard Protective Order and Declaration
Note: This appendix will not appear in the Code of Federal
Regulations.
Before the Federal Communications Commission
Washington, D.C. 20554
In the Matter of [Name of Proceeding] Docket No.
____________________.
Protective Order
This Protective Order is intended to facilitate and expedite the
review of documents containing trade secrets and commercial or
financial information obtained from a person and which is privileged
or confidential. It reflects the manner in which ``Confidential
Information,'' as that term is defined herein, is to be treated. The
Order is not intended to constitute a resolution of the merits
concerning whether any Confidential Information would be released
publicly by the Commission upon a proper request under the Freedom
of Information Act or other applicable law or regulation, including
47 CFR 0.442.
1. Definitions.
a. Authorized Representative. ``Authorized Representative''
shall have the meaning set forth in Paragraph seven.
b. Commission. ``Commission'' means the Federal Communications
Commission or any arm of the Commission acting pursuant to delegated
authority.
c. Confidential Information. ``Confidential Information'' means
(i) information submitted to the Commission by the Submitting Party
that has been so designated by the Submitting Party and which the
Submitting Party has determined in good faith constitutes trade
secrets or commercial or financial information which is privileged
or confidential within the meaning of Exemption 4 of the Freedom of
Information Act, 5 U.S.C. 552(b)(4); (ii) information submitted to
the Commission by the Submitting Party that has been so designated
by the Submitting Party and which the Submitting Party has
determined in good faith falls within the terms of Commission orders
designating the items for treatment as Confidential Information; and
(iii) information that the Commission has allowed to be examined
off-site and that otherwise complies with the requirements of this
paragraph. Confidential Information includes additional copies of
and information derived from Confidential Information.
d. Declaration. ``Declaration'' means Attachment A to this
Protective Order.
e. Reviewing Party. ``Reviewing Party'' means a person or entity
participating in this proceeding or considering in good faith filing
a document in this proceeding.
f. Submitting Party. ``Submitting Party'' means a person or
entity that seeks confidential treatment of Confidential Information
pursuant to this Protective Order.
2. Claim of Confidentiality. The Submitting Party, may designate
information as ``Confidential Information'' consistent with the
definition of that term in Paragraph 1 of this Protective Order. The
Commission may, sua sponte or upon petition, pursuant to 47 CFR
0.459 and 0.461, determine that all or part of the information
claimed as ``Confidential Information'' is not entitled to such
treatment.
3. Procedures for Claiming Information is Confidential.
Confidential Information submitted to the Commission shall be filed
under seal and shall bear on the front page in bold print,
``CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION--DO NOT
RELEASE.'' Confidential Information shall be segregated by the
Submitting Party from all non-confidential information submitted to
the Commission. To the extent a document contains both Confidential
Information and non-confidential information, the Submitting Party
shall designate the specific portions of the document claimed to
contain Confidential Information and shall, where feasible, also
submit a redacted version not containing Confidential Information.
4. Storage of Confidential Information at the Commission. The
Secretary of the Commission or other Commission staff to whom
Confidential Information is submitted shall place the Confidential
Information in a non-public file. Confidential Information shall be
segregated in the files of the Commission, and shall be withheld
from inspection by any person not bound by the terms of this
Protective Order, unless such Confidential Information is released
from the restrictions of this Order either through agreement of the
parties, or pursuant to the order of the Commission or a court
having jurisdiction.
5. Access to Confidential Information. Confidential Information
shall only be made available to Commission staff, Commission
consultants and to counsel to the Reviewing Parties, or if a
Reviewing Party has no counsel, to a person designated by the
Reviewing Party. Before counsel to a Reviewing Party or such other
designated person designated by the Reviewing Party may obtain
access to Confidential Information, counsel or such other designated
person must execute the attached
[[Page 44169]]
Declaration. Consultants under contract to the Commission may obtain
access to Confidential Information only if they have signed, as part
of their employment contract, a non-disclosure agreement or if they
execute the attached Declaration.
6. Counsel to a Reviewing Party or such other person designated
pursuant to Paragraph 5 may disclose Confidential Information to
other Authorized Representatives to whom disclosure is permitted
under the terms of paragraph 7 of this Protective Order only after
advising such Authorized Representatives of the terms and
obligations of the Order. In addition, before Authorized
Representatives may obtain access to Confidential Information, each
Authorized Representative must execute the attached Declaration.
7. Authorized Representatives shall be limited to:
a. Counsel for the Reviewing Parties to this proceeding,
including in-house counsel actively engaged in the conduct of this
proceeding, and their associated attorneys, paralegals, clerical
staff and other employees, to the extent reasonably necessary to
render professional services in this proceeding;
b. Specified persons, including employees of the Reviewing
Parties, requested by counsel to furnish technical or other expert
advice or service, or otherwise engaged to prepare material for the
express purpose of formulating filings in this proceeding; or
c. Any person designated by the Commission in the public
interest, upon such terms as the Commission may deem proper.
8. Inspection of Confidential Information. Confidential
Information shall be maintained by a Submitting Party for inspection
at two or more locations, at least one of which shall be in
Washington, D.C. Inspection shall be carried out by Authorized
Representatives upon reasonable notice (generally not to exceed one
business day) during normal business hours.
9. Copies of Confidential Information. The Submitting Party
shall provide a copy of the Confidential Material to Authorized
Representatives upon request and may charge a reasonable copying fee
not to exceed twenty five cents per page. Authorized Representatives
may make additional copies of Confidential Information but only to
the extent required and solely for the preparation and use in this
proceeding, Authorized Representatives must maintain a written
record of any additional copies made and provide this record to the
Submitting Party upon reasonable request. The original copy and all
other copies of the Confidential Information shall remain in the
care and control of Authorized Representatives at all times.
Authorized Representatives having custody of any Confidential
Information shall keep the documents properly secured at all times.
10. Filing of Declaration. Counsel for Reviewing Parties shall
provide to the Submitting Party and the Commission with a copy of
the attached Declaration for each Authorized Representative within
five (5) business days after the attached Declaration is executed,
or by any other deadline that may be prescribed by the Commission.
11. Use of Confidential Information. Confidential Information
shall not be used by any person granted access under this Protective
Order for any purpose other than for use in this proceeding
(including any subsequent administrative or judicial review) unless
otherwise ordered by the Commission or a court of competent
jurisdiction, shall not be used for competitive business purposes,
and shall not be used or disclosed except in accordance with this
Order. This shall not preclude the use of any material or
information that is in the public domain or has been developed
independently by any other person who has not had access to the
Confidential Information nor otherwise learned of its contents.
12. Pleadings Using Confidential Information. Submitting Parties
and Reviewing Parties may, in any pleadings that they file in this
proceeding, reference the Confidential Information, but only if they
comply with the following procedures:
a. Any portions of the pleadings that contain or disclose
Confidential Information must be physically segregated from the
remainder of the pleadings and filed under seal;
b. The portions containing or disclosing Confidential
Information must be covered by a separate letter referencing this
Protective Order;
c. Each page of any Party's filing that contains or discloses
Confidential Information subject to this Order must be clearly
marked: ``Confidential Information included pursuant to Protective
Order, [cite proceeding];'' and
d. The confidential portion(s) of the pleading, to the extent
they are required to be served, shall be served upon the Secretary
of the Commission, the Submitting Party, and those Reviewing Parties
that have signed the attached Declaration. Such confidential
portions shall be served under seal. They shall not be placed in the
Commission's Public File unless the Commission directs otherwise
(with notice to the Submitting Party and an opportunity to comment
on such proposed disclosure). A Submitting Party or a Reviewing
Party filing a pleading containing Confidential Information shall
also file a redacted copy of the pleading containing no Confidential
Information, which copy shall be placed in the Commission's public
files. A Submitting Party or a Reviewing Party may provide courtesy
copies of pleadings containing Confidential Information to
Commission staff so long as the notation required by subsection c.
of this paragraph is not removed.
13. Violations of Protective Order. Should a Reviewing Party
that has properly obtained access to Confidential Information under
this Protective Order violate any of its terms, it shall immediately
convey that fact to the Commission and to the Submitting Party.
Further, should such violation consist of improper disclosure or use
of Confidential Information, the violating party shall take all
necessary steps to remedy the improper disclosure or use. The
Violating Party shall also immediately notify the Commission and the
Submitting Party, in writing, of the identity of each party known or
reasonably suspected to have obtained the Confidential Information
through any such disclosure. The Commission retains its full
authority to fashion appropriate sanctions for violations of this
Protective Order, including but not limited to suspension or
disbarment of attorneys from practice before the Commission,
forfeitures, cease and desist orders, and denial of further access
to Confidential Information in this or any other Commission
proceeding. Nothing in this Protective Order shall limit any other
rights and remedies available to the Submitting Party at law or
equity against any party using Confidential Information in a manner
not authorized by this Protective Order.
14. Termination of Proceeding. Unless otherwise ordered by the
Commission or a court of competent jurisdiction, within two weeks
after final resolution of this proceeding (which includes any
administrative or judicial appeals), Authorized Representatives of
Reviewing Parties shall destroy or return to the Submitting Party
all Confidential Information as well as all copies and derivative
materials made. Authorized representatives shall certify in a
writing served on the Commission and the Submitting Party that no
material whatsoever derived from such Confidential Information has
been retained by any person having access thereto, except that
counsel to a Reviewing Party may retain two copies of pleadings
submitted on behalf of the Reviewing Party and other attorney work
product. Any confidential information contained in any copies of
pleadings retained by counsel to a Reviewing Party or in materials
that have been destroyed pursuant to this paragraph shall be
protected from disclosure or use indefinitely in accordance with
paragraphs 9 and 11 of this Protective Order unless such
Confidential Information is released from the restrictions of this
Order either through agreement of the parties, or pursuant to the
order of the Commission or a court having jurisdiction.
15. No Waiver of Confidentiality. Disclosure of Confidential
Information as provided herein shall not be deemed a waiver by the
Submitting Party of any privilege or entitlement to confidential
treatment of such Confidential Information. Reviewing Parties, by
viewing these materials: (a) agree not to assert any such waiver;
(b) agree not to use information derived from any confidential
materials to seek disclosure in any other proceeding; and (c) agree
that accidental disclosure of Confidential Information shall not be
deemed a waiver of any privilege.
16. Additional Rights Preserved. The entry of this Protective
Order is without prejudice to the rights of the Submitting Party to
apply for additional or different protection where it is deemed
necessary or to the rights of Reviewing Parties to request further
or renewed disclosure of Confidential Information.
17. Effect of Protective Order. This Protective Order
constitutes an Order of the Commission and an agreement between the
Reviewing Party, executing the attached Declaration, and the
Submitting Party.
18. Authority. This Protective Order is issued pursuant to
sections 4(i) and 4(j) of the Communications Act as amended, 47
U.S.C. 154(i), (j) and 47 CFR 0.457(d).
[[Page 44170]]
Attachment A to Standard Protective Order
Declaration
In the Matter of [Name of Proceeding] Docket No. ____________
I, ____________________, hereby declare under penalty of perjury
that I have read the Protective Order in this proceeding, and that I
agree to be bound by its terms pertaining to the treatment of
Confidential Information submitted by parties to this proceeding. I
understand that the Confidential Information shall not be disclosed
to anyone except in accordance with the terms of the Protective
Order and shall be used only for purposes of the proceedings in this
matter. I acknowledge that a violation of the Protective Order is a
violation of an order of the Federal Communications Commission. I
acknowledge that this Protective Order is also a binding agreement
with the Submitting Party.
(signed)---------------------------------------------------------------
(printed name)---------------------------------------------------------
(representing)---------------------------------------------------------
(title)----------------------------------------------------------------
(employer)-------------------------------------------------------------
(address)--------------------------------------------------------------
----------------------------------------------------------------------
(phone)----------------------------------------------------------------
(date)-----------------------------------------------------------------
[FR Doc. 98-22001 Filed 8-17-98; 8:45 am]
BILLING CODE 6712-01-P
