PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION 1919 M STREET N.W. WASHINGTON, D.C. 20554 News media information 202/418-0500 Recorded listing of releases and texts 202/418-2222. _______________________________________________________________________________________ DA 96-1751 COMMEN T SOUGHT ON STANDARD PROTEC TIVE ORDER TO BE USED IN CONNECTION WITH SECTI ON 271 APPLICATIONS CCBPol 96-22 Releas ed: October 23, 1996 New section 271 of the Communications Act of 1934, as amended, 47 U.S.C.  271, allows the Bell companies to provide in-region, interLATA services if the Commission finds that certain conditions have been met. In the course of section 271 proceedings, we anticipate that parties may request confidential treatment for certain materials they submit to the Commission. Because of the short, 90-day time frame of section 271 proceedings, where confidential treatment of submitted materials is appropriate, we intend to adopt a standard protective order. This approach will ensure the confidentiality of such materials where appropriate, but enable those parties that sign the protective order to have access to the materials subject to the terms of the protective order. To this end, we are requesting public comment on the proposed standard protective order attached to this Notice. The proposed protective order is substantively identical to one that AT&T, drawing on the protective order the Commission used in its AT&T-McCaw Merger investigation, recently prepared and submitted to the Commission in connection with its Petition for an Order Requiring Advance Production of Motion to Vacate Documents (filed Aug. 23, 1996). Commenters suggesting changes to the proposed protective order should attach specific, alternate language in an appendix to their filings. We note that we have already received at least one party's comments regarding the proposed standard protective order, and will incorporate them into this proceeding. Commenters should file an original and two copies of all comments on or before November 6, 1996. Comments should be addressed to the Office of the Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 222, Washington, D.C. 20554, with a copy to Janice Myles of the Common Carrier Bureau, 1919 M Street, N.W., Room 544, Washington, D.C., 20554. A copy of all filings should also be submitted to the Commission's copy contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, Washington, D.C., 20037. Parties filing comments should include the Policy Division internal reference number, CCBPol 96-22, on their pleadings. Comments will be available for public inspection during regular business hours in the Common Carrier Bureau's Public Reference Room, Room 575, 2000 M Street, N.W., Washington, D.C. 20554. Copies can also be obtained from ITS by calling (202) 857- 3800. We are treating this proceeding as non-restricted for purposes of the Commission's ex parte rules. See generally 47 C.F.R.  1.1200-1.1216. For further information, contact Linda Kinney of the Policy and Program Planning Division, Common Carrier Bureau, at (202) 418- 1580. By the Chief, Common Carrier Bureau. -FCC- In the Matter of PROTECTIVE ORDER FOR DOCUMENTS SUBMITTED TO COMMISSION IN COURSE OF SECTION 271 PROCEEDINGS PROTECTIVE ORDER Adopted: _________, 1996 1. Documents submitted to the Commission in the course of section 271 proceedings may represent or contain confidential or proprietary information. To insure that documents and materials considered by the applicants or other submitters to be confidential and proprietary are afforded protection, the Commission hereby enters this Protective Order: 2. Non-disclosure of Stamped Confidential Documents. Except with the prior written consent of the person originally designating a document to be stamped as a confidential document, or as hereinafter provided under this order, no stamped confidential document may be disclosed to any person. A "stamped confidential document" means any document which bears the legend (or which shall otherwise have had the legend recorded upon it in a way that brings its attention to a reasonable examiner) "CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER" to signify that it contains information believed to be subject to protection under the Commission's rules. For purposes of this order, the term "document" means all written, recorded, or graphic material, whether produced or created by a party or another person, whether produced pursuant to the Commission's rules, subpoena, by agreement, or otherwise. Documents that quote, summarize, or contain materials entitled to protection may be accorded status as a stamped confidential document, but, to the extent feasible, shall be prepared in such a manner that the confidential information is bound separately from that not entitled to protection. 3. Permissible Disclosure. Notwithstanding paragraph 2, stamped confidential documents may be disclosed to counsel of record for the parties in proceedings arising under Section 271 or other provision of the Communications Act, including in-house counsel who are actively engaged in the conduct of this proceeding; to the partners, associates, secretaries, paralegal assistants, and employees of such an attorney to the extent reasonably necessary to render professional services in this proceeding; to persons with prior knowledge of the documents or the confidential information contained herein, and their agents; and to Commission officials involved in a proceeding in which the document is used. Subject to the provisions of subparagraph (c) below, such documents may also be disclosed: (a) to any person designated by the Commission in the interest of justice, upon such terms as the Commission may deem proper; and (b) in the event the Commission orders that depositions may be taken, to persons noticed for depositions or designated as trial witnesses to the extent reasonably necessary in preparing to testify; to outside consultants or experts retained for the purpose of assisting counsel in the proceeding; to employees of parties involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving data or designing programs for handling data connected with this proceeding, including the performance of such duties in relation to a computerized litigation support system; and to employees of third-party contractors performing one or more of these functions; provided, however, that in all such cases the individual to whom disclosure is to be made has signed a form containing: (1) a recital that the signatory has read and understands this order; and (2) a recital that the signatory understands that unauthorized disclosures of the stamped confidential documents are prohibited. (c) Before disclosing a stamped confidential document to any person listed in subparagraph (a) or (b) who is a competitor (or an employee of a competitor) of the party that so designated the document, the party wishing to make such disclosure shall give at least ten days' advance notice in writing to the counsel who designated such information as confidential, stating the names and addresses of the person(s) to whom the disclosure will be made, identifying with particularity the documents to be disclosed, and stating the purposes of such disclosure. If, within the ten-day period, a motion is filed objecting to the proposed disclosure, disclosure is not permissible until the Commission has denied such motion. 4. Declassification. A party (or aggrieved entity permitted by the Commission to intervene for such purpose) may apply to the Commission for a ruling that a document (or category of documents) stamped as confidential is not entitled to such status and protection. Applicants or other persons that designated the document as confidential shall be given notice of the application and an opportunity to respond. To maintain confidential status, the proponent of confidentiality must show by a preponderance of the evidence that there is good cause for the document to have such protection. 5. Confidential Information in Depositions. In the event the Commission orders that depositions may be taken in this proceeding: (a) A deponent may during the deposition be shown, and examined about, stamped confidential documents if the deponent already knows the confidential information contained therein or if the provisions of paragraph 3(c) above are complied with. Deponents shall not retain or copy portions of the transcripts of their depositions that contain confidential information not provided by them or the entities they represent unless they sign the form prescribed in paragraph 3(b) above. A deponent who is not a party or a representative of a party shall be furnished a copy of this order before being examined about, or asked to produce, potentially confidential documents. (b) Parties (and deponents) may, within fifteen (15) days after receiving a deposition transcript, designate pages of the transcript (and exhibits thereto) as confidential. Confidential information within the deposition transcript may be designated by underlining the portions of the pages that are confidential and marking such pages with the following legend: "Confidential-subject to protection pursuant to Commission Order." Until expiration of the 15-day period, the entire deposition will be treated as subject to protection against disclosure under this order. If no party or deponent timely designates confidential information in a deposition, then none of the transcript or its exhibits will be treated as confidential; if a timely designation is made, the confidential portions and exhibits shall be filed under seal separate from the portions and exhibits not so marked. 6. Confidential Information Filed in the Record. Subject to the Federal Rules of Evidence, stamped confidential documents and other confidential information may be offered in the record made by the parties and submitted to the Commission in any proceeding pursuant to section 271(a)(1), provided that such confidential information is furnished under seal. The Commission will then determine whether the proffered evidence should continue to be treated as confidential information. 7. Filing. If confidential documents are submitted to the Commission in accordance with paragraph 6, the materials shall be filed under seal and shall remain sealed while in the Secretary's office or such other place as the Commission may designate so long as they retain their status as stamped confidential documents. 8. Subpoena by Courts or Other Agencies. If a court or another administrative agency subpoenas or orders production of stamped confidential documents which a party has obtained under terms of this order, such party shall promptly notify the party or other person who designated the document as confidential of the pendency of such subpoena or order. 9. Client Consultation. Nothing in this order shall prevent or other wise restrict counsel from rendering advice to their clients and, in the course thereof, relying generally on examination of stamped confidential documents; provided, however, that in rendering such advice and otherwise communicating with such client, counsel shall not make specific disclosure of any item so designated except pursuant to the procedures of paragraph 3(b) and (c) above. 10. Prohibited Copying. If a document contains information so sensitive that it should not be copied by anyone, it shall bear the additional legend "Copying Prohibited." Application for relief from this restriction against copying may be made to the Commission, with notice to counsel so designating the document. 11. Use. Persons obtaining access to stamped confidential documents under this order shall use the information only for preparation and the conduct of proceedings arising under Section 271 or other provisions of the Communications Act and any subsequent judicial proceeding, and shall not use such information for any other purpose, including business, governmental, commercial, or other administrative or judicial proceedings. 12. Non-Termination. The provisions of this order shall not terminate at the conclusion of this proceeding or any subsequent section 271(a)(1) proceeding. 13. Modification Permitted. Nothing in this order shall prevent any party or other person from seeking modification of this order. 14. Responsibility of Attorneys. The attorneys of record are responsible for employing reasonable measures to control, consistent with this order, duplication of, access to, and distribution of copies of stamped confidential documents. Parties shall not duplicate any stamped confidential document except working copies and for filing at the Commission under seal. 15. This Order is issued pursuant to Sections 4(i) and 271 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 271, and is effective upon its adoption. -FCC-