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APPLICATIONS OF AT&T INC. AND CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS

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Released: December 16, 2009

Federal Communications Commission

DA 09-2601

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Applications of AT&T Inc. and Cellco Partnership )
WT Docket No. 09-104
d/b/a Verizon Wireless
)
)

For Consent to Assign or Transfer Control of
)
Licenses and Authorizations and Modify a
)
Spectrum Leasing Arrangement
)

SECOND PROTECTIVE ORDER

Adopted: December 16, 2009


Released: December 16, 2009

By the Chief, Wireless Telecommunications Bureau:
1.
On November 19, 2009, the Wireless Telecommunications Bureau (the “Bureau”) issued
a Protective Order (the “First Protective Order”) regarding confidential or proprietary documents that
have been or may be submitted by AT&T Inc. (“AT&T”) and Cellco Partnership d/b/a Verizon Wireless
and certain of its subsidiaries (“Verizon Wireless” and, together with AT&T, the “Applicants”) and others
that have or may become parties to this proceeding (individually, each a “Submitting Party,” and
collectively, the “Submitting Parties”).1 For the reasons set forth below, we hereby adopt a further
Protective Order (the “Second Protective Order”) to ensure that certain highly confidential and
competitively sensitive documents and information that may be submitted by the Submitting Parties are
afforded adequate protection.
2.
On November 19, 2009, the Bureau issued a request for information to the Applicants.2
On November 25, 2009, the Applicants requested issuance of a second protective order that would
provide additional protection beyond that afforded in the First Protective Order to certain information that
the Applicants intend to submit in their responses to the Bureau’s request.3 The Applicants state that their
responses will include some of their most sensitive business data, release of which would place them at a
significant disadvantage in the highly competitive market for CMRS services. The Applicants assert that
the information for which they are seeking enhanced protection is similar to information that was
previously afforded second level protection by the Commission. This level of protection, the Applicants
state, was provided to exclude access to such information by other parties’ inside counsel who are not
involved in competitive decision making.4 For each response for which the Applicants seek heightened


1 Applications of AT&T Inc. and Cellco Partnership d/b/a Verizon Wireless, WT Docket No. 09-104, Protective
Order
, DA 09-2446 (WTB rel. Nov. 19, 2009).
2 Letter from Ruth Milkman, Chief, Wireless Telecommunications Bureau, to Michael P. Goggin, AT&T Inc., and
to Michael Samsock, Verizon Wireless (WT Docket 09-104) (Nov. 19, 2009).
3 Letter from Maureen R. Jeffreys, Arnold & Porter LLP (for AT&T), and Nancy J. Victory, Wiley Rein LLP (for
Verizon Wireless), to Marlene H. Dortch, Secretary, Federal Communications Commission (Nov. 25, 2009)
(“Request for Second Level Protective Order”).
4 Id. at 1.

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DA 09-2601

protection, the Applicants explain why the documents and information at issue are highly confidential and
competitively sensitive.
3.
The Rural Telecommunications Group, Inc. (“RTG”) opposes issuance of a second level
protective order in this proceeding, asserting that it “opposes any and all attempts by AT&T and Verizon
to subject information regarding AT&T’s plans regarding the divestiture CDMA network and roaming
plans and agreements to the proposed terms of a second protective order.”5 RTG raises concerns that its
members would not be allowed to review the information and that its counsel somehow would be
thwarted from reviewing the information subject to a second level protective order.6 RTG asserts that
“[r]oaming is a common carrier service and accordingly any roaming agreement to which AT&T is a
party should be made publicly available. RTG member companies and other wireless carriers interested
in entering into roaming arrangements with AT&T need to know the terms and conditions of other AT&T
roaming agreements in order to negotiate a roaming agreement under terms and conditions that are fair to
both parties.”7
4.
The Applicants replied to the RTG opposition, asserting that “RTG has provided no basis
for the Commission to depart from its longstanding and consistent practice – recently applied to the same
information at issue here – of allowing parties to protect their most sensitive business information from
disclosure to competitors.”8 The Applicants state that, based on the Commission’s definition of Outside
Counsel in previous second level protective orders, RTG’s attorneys would be eligible to review highly
confidential information submitted by the Applicants so long as any such attorney is not involved in
competitive decision-making by any of the Applicants’ competitors.9 The Applicants agree that RTG’s
member companies would not be allowed to have access to Highly Confidential Information or
Documents under a second level protective order in this proceeding.10 The Applicants finally assert that
the information RTG is seeking is competitively sensitive information to which they are not entitled and
which the Commission previously has determined should not be publicly disclosed.11
5.
As we have in the past, and contrary to the position taken by RTG, we will treat
information regarding network transition and CDMA roaming plans under the provisions of this Second
Protective Order. Contrary to RTG’s claims, there is no requirement that roaming agreements be made
public.12 RTG is correct that its own employees and employees of its members will not be allowed to
review the information, documents, and data that are submitted pursuant to a second level protective
order, but RTG’s counsel who sign the Acknowledgment of Confidentiality attached to this order can
review the information, documents, and data covered by this order, subject to the conditions imposed by


5 Letter from Caressa D. Bennet, Bennet & Bennet, PLLC (for RTG), to Marlene H. Dortch, Secretary, Federal
Communications Commission (Dec. 3, 2009) at 1.
6 Id. at 1 n.1.
7 Id. at 2.
8 Letter from Maureen R. Jeffreys, Arnold & Porter LLP (for AT&T), and Nancy J. Victory, Wiley Rein LLP (for
Verizon Wireless), to Marlene H. Dortch, Secretary, Federal Communications Commission (Dec. 3, 2009) at 1
(footnote omitted).
9 Id. at 2.
10 Id. at 3 n.11.
11 Id. at 3-4.
12 Examination of Roaming Obligations of Commercial Mobile Radio Service Providers, WT Docket No. 05-265,
Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15839 ¶ 62 (2007).
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this order. For the reasons expressed below, we believe that given the competitively sensitive nature of
this material, it is appropriate to limit access to it in this fashion.
6.
Accordingly, consistent with past practice, the Commission will in this proceeding grant
more limited access to those materials which, if released to competitors, would allow those competitors to
gain a significant advantage in the marketplace.13 We will permit persons submitting such documents and
information to designate those materials as Highly Confidential and, as provided below, we will limit
access to such materials to Outside Counsel of Record, their employees, and Outside Consultants and
experts whom they retain to assist them in this proceeding. We find that such materials are necessary to
develop a more complete record on which to base the Commission’s decision in this proceeding and
therefore require their production. We are mindful of the highly sensitive nature of all information,
documents, and data subject to this order, but we must also protect the right of the public to participate in
this proceeding in a meaningful way. We conclude that the protections adopted in this Second Protective
Order will give appropriate access to the public while protecting a Submitting Party’s competitively
sensitive information, and will thereby serve the public interest. We stress that this Second Protective
Order covers only those portions of the narrative responses, documents, or data that are responsive to the
requests listed in paragraph 9 below and contain Highly Confidential Information. To the extent portions
of the narrative responses, documents, or data are responsive to the requests listed in paragraph 9 but do
not contain Highly Confidential Information, they are to be produced in unredacted format or under the
First Protective Order, as appropriate.
7.
Acknowledgment. Any party seeking access to Highly Confidential Documents subject to
this Second Protective Order shall request access pursuant to the terms of the Second Protective Order
and must sign the Acknowledgment of Confidentiality attached as Appendix A (“Acknowledgement”).
8.
Definitions. As used herein, capitalized terms not otherwise defined in this Second
Protective Order shall have the following meanings:
“Stamped Highly Confidential Document” means any document, or any part thereof, that bears
the legend (or which otherwise shall have had the legend recorded upon it in a way that brings its
attention to a reasonable examiner) “HIGHLY CONFIDENTIAL INFORMATION – SUBJECT TO
SECOND PROTECTIVE ORDER IN WT DOCKET NO. 09-104 before the Federal Communications
Commission,” unless the Commission determines, sua sponte or by request pursuant to Sections 0.459 or
0.461 of its rules, that any such document is not entitled to such confidential treatment. The term
“Document” means any written, recorded, electronically stored, or graphic material, whether produced or
created by the Submitting Party or another person. By designating a document as “Stamped Highly
Confidential Document,” a Submitting Party signifies and represents that it contains information that the
Submitting Party believes should be subject to protection under FOIA, the Commission’s implementing
rules and this Second Protective Order.


13 See, e.g., Applications of AT&T Inc. and Centennial Communications Corp. For Consent to Transfer Control of
Licenses, Authorizations, and Spectrum Leasing Arrangements, WT Docket No. 08-246, Second Protective Order,
24 FCC Rcd 7182 (WTB 2009); Application of News Corporation and The DIRECTV Group, Inc., Transferors, and
Liberty Media Corporation, Transferee, for Authority to Transfer Control, MB Docket 07-18, Protective Order, 22
FCC Rcd 12797 (MB 2007) (adopting a second protective order); Applications for Consent to the Assignment
and/or Transfer of Control of Licenses, Adelphia Communications Corporation, Time Warner Cable Inc., and
Comcast Corporation, MB Docket No. 05-192, Order, 20 FCC Rcd 20073 (MB 2005) (adopting a second protective
order); News Corporation, General Motors Corporation, and Hughes Electronic Corporation, MB Docket No. 03-
124, Order, 18 FCC Rcd 15198 (MB 2003) (adopting a second protective order).
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“Highly Confidential Information” means information contained in Stamped Highly Confidential
Documents or derived therefrom that is not otherwise available from public sources and that the
Submitting Party has kept strictly confidential. Specifically, the responses requested by the Bureau’s
Letter of November 19, 2009 in WT Docket No. 09-104 covered by the Second Protective Order are those
portions of documents or data – or entire documents, if eligible in their entirety – that disclose one or
more of the categories of highly competitively sensitive information covered by this Second Protective
Order. To the extent that a Submitting Party believes that future submissions fall into one of these
categories, the Submitting Party must file a letter explaining which category the information falls within,
and the Submitting Party may file under this Second Protective Order only those documents specifically
authorized by the Bureau.
“Outside Counsel of Record” or “Outside Counsel” means the firm(s) of attorneys, or sole
practitioner(s), as the case may be, representing a party in these proceedings, provided that such persons
are not involved in competitive decision-making, i.e., Outside Counsel’s activities, association, and
relationship with a client do not involve advice about or participation in the business decisions of the
client or of any competitor of a Submitting Party nor the analysis underlying the business decisions.
Outside Counsel of Record includes any attorney representing a non-commercial party in these
proceedings, provided that such a person is not involved in the competitive decision-making activities of
any competitor of a Submitting Party.
“Outside Consultants” means consultants or experts retained for the purpose of assisting Counsel
or a party in this proceeding, provided that the Outside Consultants are not involved in competitive
decision-making, i.e., Outside Consultants’ activities, association, and relationship with a client do not
involve advice about or participation in the business decisions of the client or any competitor of a
Submitting Party nor the analysis underlying the business decisions. Outside Consultants include any
expert employed by a non-commercial party in these proceedings, provided that such a person is not
involved in the competitive decision-making activities of any competitor of a Submitting Party.
“Reviewing Party” means a person who has obtained access to Highly Confidential Information
(including Stamped Highly Confidential Documents) pursuant to paragraphs 12 and 15 of this Second
Protective Order.
9.
Categories of Highly Confidential Information Covered by This Second Protective Order.
A narrative response, document, or data (or portions thereof) may be submitted under the Second
Protective Order only if it is responsive to one of the particular requests covered by this Order and it
contains Highly Confidential Information as defined above. With regard to the Applicants’ requests, the
Second Protective Order covers those portions of the responses, documents, and data provided in response
to the Bureau’s Letter of November 19, 2009:
·
that provide revenues and numbers of customers broken down by customer type (e.g., CMRS
customers) and relatively narrow geographic area (CMA, regional cluster, or state) (Request
IX.);
·
that discuss in detail the Submitting Party’s future plans to compete for a customer or specific
groups or types of customers, including the Submitting Party’s future procurement strategies,
deployment strategies, pricing strategies, product strategies, or advertising or marketing
strategies (Requests II.3.; II.4.a.i.-iii.; II.4.iv.-v., to the extent that the response provides
further information than an affirmative or negative response; II.4.b.i.; II.4.b.ii., second
sentence; II.4.b.iii., second sentence; II.5.; II.5.a.i.-ii.; II.5.a.iii.-iv., to the extent that the
response provides further information than an affirmative or negative response; II.5.a.v.-vi.;
II.5.b.i.; II.5.b.ii., to the extent that the response provides further information than an
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affirmative or negative response; II.5.b.iii., second sentence; II.6.; II.7., second and third
sentence; II.8., second and third sentences; III.4., to the extent that the response provides
further information than an affirmative or negative response; III.5., to the extent that the
response provides further information than an affirmative or negative response; III.6., second
sentence; V.A.5., second sentence; V.A.5.a.; V.A.5.b.; V.A.5.c., second sentence; V.A.5.d.;
V.B.3.; VIII.1., second sentence; VIII.2.);
·
that provide granular information about a Submitting Party’s current costs, market share,
marginal revenue, and firm-specific price elasticities (Requests II.6.; II.11., only schedules
that provide granular information, e.g., pricing and subscriber numbers; III.7., to the extent
that the response provides granular information);
·
that discuss in detail the process for selling divestiture assets, only to the extent not publicly
or widely available, including the identity or characteristics of specific persons with whom a
company is negotiating, prices for and values of the assets, granular information regarding the
assets, future plans or strategies to compete for customers, and future deployment strategies
(Requests VI.A.1., only the auditable financials; VI.A.2., second sentence; VI.A.4., second
sentence; VI.A.6.; VI.B.; VI.C.; VI.D.; VI.E.1., second sentence; VI.E.2.; VI.E.3, second
sentence; VI.E.4.-5., VI.E.6., second sentence; VI.E.7., second sentence; VI.E.8.-10.).
10.
Use of Highly Confidential Information. Persons obtaining access to Highly Confidential
Information (including Stamped Highly Confidential Documents) under this Second Protective Order
shall use the information solely for the preparation and conduct of this license transfer proceeding before
the Commission as delimited in this and subsequent paragraphs, and any judicial proceeding arising
directly from this proceeding and, except as provided herein, shall not use such documents or information
for any other purpose, including, without limitation, business, governmental, or commercial purposes, or
in other administrative, regulatory or judicial proceedings. Should the Commission rely upon or
otherwise make reference to the contents of any of the Stamped Highly Confidential Documents or
Highly Confidential Information in its decision in this proceeding, it will do so by redacting any Highly
Confidential Information from the public version of the decision and by making the unredacted version of
the decision available only to a court and to those persons entitled to access to Highly Confidential
Information under this Second Protective Order.
11.
Non-Disclosure of Stamped Highly Confidential Information. Except with the prior
written consent of the Submitting Party, or as hereinafter provided under this Second Protective Order,
neither a Stamped Highly Confidential Document nor any Highly Confidential Information may be
disclosed further.
12.
Permissible Disclosure. Subject to the requirements of paragraph 15, Stamped Highly
Confidential Documents may be reviewed by Outside Counsel and Outside Consultants. Outside Counsel
and Outside Consultants may disclose Stamped Highly Confidential Documents and other Highly
Confidential Information to: (1) paralegals or other employees of such Outside Counsel or Outside
Consultants not described in clause 2 of this paragraph assisting Outside Counsel or Outside Consultants
in this proceeding; (2) employees of such Outside Counsel or Outside Consultants involved solely in one
or more aspects of organizing, filing, coding, converting, storing, or retrieving documents or data or
designing programs for handling data connected with this proceeding, or performing other clerical or
ministerial functions with regard to documents connected with this proceeding; and (3) employees of
third-party contractors performing one or more of the functions set forth in clause 2 of this paragraph.
Reviewing Parties may discuss and share the contents of the Stamped Highly Confidential Documents
and Highly Confidential Information with any other Reviewing Party and with the Commission and its
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staff. A Submitting Party’s Stamped Highly Confidential Documents and Highly Confidential
Information may also be disclosed to employees and Counsel of the Submitting Party.
13.
Protection of Stamped Highly Confidential Documents and Highly Confidential
Information. Persons described in paragraph 15 shall have the obligation to ensure that access to Stamped
Highly Confidential Documents and Highly Confidential Information is strictly limited as prescribed in
this Second Protective Order. Such persons shall further have the obligation to ensure that Stamped
Highly Confidential Documents and Highly Confidential Information are used only as provided in this
Second Protective Order.
14.
Copying Sensitive Documents. Any Highly Confidential Documents may be marked with
the legend “Additional Copying Prohibited.” A reviewing party shall receive only one copy of the
document14 and no further copies of such document, in any form, shall be made, subject to the provisions
for access to information in electronic format in paragraph 16. Application for relief from this restriction
against further copying may be made to the Commission, with notice to Outside Counsel of Record for
the Submitting Party.
15.
Procedures for Obtaining Access to Highly Confidential Documents. In all cases where
access to Stamped Highly Confidential Documents and Highly Confidential Information is permitted
pursuant to paragraph 12, before reviewing or having access to any Stamped Highly Confidential
Documents or Highly Confidential Information, each person seeking such access shall execute the
attached Acknowledgment of Confidentiality (“Acknowledgment”) and file it with the Bureau, on behalf
of the Commission, and serve it upon each Submitting Party through its Outside Counsel of Record so
that the Acknowledgment is received by each Submitting Party at least five business days prior to such
person’s reviewing or having access to such Submitting Party’s Stamped Highly Confidential Documents
or Highly Confidential Information, except that, where the person seeking access is one described in
either clause 2 or 3 of paragraph 12, the Acknowledgment shall be delivered promptly prior to the person
obtaining access. Each Submitting Party shall have an opportunity to object to the disclosure of Stamped
Highly Confidential Documents to any such persons. Any objection must be filed at the Commission and
served on Counsel representing, retaining or employing such person within three business days after
receiving a copy of that person’s Acknowledgment (or where the person seeking access is one described
in either clause 2 or 3 of paragraph 12, such objection shall be filed and served as promptly as practicable
after receipt of the relevant Acknowledgment). Until any such objection is resolved by the Commission
and, if appropriate, any court of competent jurisdiction prior to any disclosure, and unless such objection
is resolved in favor of the person seeking access, persons subject to an objection from a Submitting Party
shall not have access to Stamped Highly Confidential Documents or Highly Confidential Information.
The Submitting Party shall make available for review the Stamped Highly Confidential Documents of


14 The Applicants request that “the Commission allow submitting parties to determine whether it is necessary to
prohibit copying of highly confidential documents . . . since permitting even a single copy to be in the hands of a
third party increases the risk of accidental disclosure.” Request for Second Level Protective Order at 5. By this
order, the Commission is affording the Applicants with a very high level of protection for their Highly Confidential
Documents by limiting reviewing parties to Outside Counsel and Outside Consultants only. To impose even greater
limits by not allowing Outside Counsel or Outside Consultants to obtain a single copy of the Highly Confidential
Documents would, as the Commission noted when it adopted a model protective order, “impose[] an unnecessary
burden on the review of such information.” Examination of Current Policy Concerning the Treatment of
Confidential Information Submitted to the Commission, GC Docket No. 96-55, Report and Order, 13 FCC Rcd
24816, 24834 ¶ 27 (1998). The Commission specifically concluded that “a prohibition on copying might lead to a
less thorough review of the confidential documents and accordingly to less useful public comment.” Id.
Accordingly, we decline to grant the Applicants’ request and instead permit reviewing persons to obtain one copy of
Highly Confidential Documents, but provide the Applicants with the opportunity to designate these documents as
being subject to no further copying by the reviewing persons.
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such party at the offices of such party’s Outside Counsel of Record or, if the Submitting Party does not
have Outside Counsel of Record, at the offices of such party’s in-house counsel; provided, however, that
the Applicants shall make available for review all of their Stamped Highly Confidential Documents at the
offices of one Applicant’s Outside Counsel of Record (the “Applicants’ Custodian Counsel”). Parties
reviewing these documents will be provided the following alternatives: (1) parties will be provided
adequate opportunity to inspect the documents on site; (2) parties may inspect the documents on site with
the ability to request copies, at cost, of all or some of the documents; or (3) parties may request a
complete set of the documents at cost, allowing two business days after the request is made for receipt of
the copies. If a complete set of documents will be requested, parties are encouraged to make such
requests at the time they submit the Acknowledgment. This will allow parties the opportunity to begin
reviewing the documents at the end of the five-day period referred to above. All copies of documents that
are removed from the Submitting Party’s office will be stamped as described herein and must be returned
or destroyed in accordance with the terms of this Second Protective Order.
16.
Highly Confidential Information in Electronic Format. If a party’s Outside Counsel or
Outside Consultant has been granted access to Stamped Highly Confidential Documents and Highly
Confidential Information pursuant to paragraphs 12 and 15, that Outside Counsel or Outside Consultant
may request one copy of information contained, recorded, or electronically stored on a CD-ROM, DVD,
flash drive, portable hard drive or similar electronic storage device. The disk or other medium containing
Highly Confidential Information in electronic format shall be physically sent to the Outside Counsel or
Outside Consultant; it shall not be transmitted electronically.
a. A person in receipt of Highly Confidential Information in electronic format shall load the
information onto a computer solely for the purpose of analysis in connection with this
proceeding and for no other purpose. The original disk or other storage medium shall be
stored in a secure location and a record kept of any persons given access to the disk. Only
persons who have signed the Acknowledgement to this Second Protective Order may be
given access to the disk.
b. Once loaded onto a computer, the files containing Highly Confidential Information shall
be password protected immediately. The password shall be given only to persons who have
signed the Acknowledgement to this Order. The Highly Confidential Information may not be
stored on a computer after being analyzed. After the analysis is complete, the results of such
analysis may be stored by saving the results (but not the underlying Highly Confidential
Information) to a mobile data storage medium. All files containing Highly Confidential
Information shall be deleted from the computer as soon as practicable.
17.
Requests for Additional Disclosure. If any person requests disclosure of Highly
Confidential Information outside the terms of this Second Protective Order, such a request will be treated
in accordance with Sections 0.442 and 0.461 of the Commission’s rules.
18.
Filings with the Commission. Persons described in paragraphs 12 and 15 may, in any
documents that they file in this proceeding, reference Highly Confidential Information, but only if they
comply with the following procedure:
a.
The cover or first page of the filing, and each page of the filing that contains or
discloses Confidential Information subject to this order must be clearly marked: “Highly Confidential
Information – Subject to Protective Order in WT Docket No. 09-104 before the Federal Communications
Commission.”
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b.
One copy of the filing shall be filed with the Secretary’s Office. The filing shall
be accompanied by a cover letter stating “HIGHLY CONFIDENTIAL INFORMATION – SUBJECT TO
PROTECTIVE ORDER IN WT DOCKET NO. 09-104 before the Federal Communications
Commission.” The filing shall be made under seal, and will not be placed in the Commission’s public
file.
c.
Those portions of the filing that constitute Highly Confidential Information shall
be clearly identifiable as such, so that those portions that are deemed to be Highly Confidential
Information are readily identifiable based on an examination of the filing.
d.
Two redacted copies of the filing containing neither Highly Confidential
Information nor Confidential Information (the “Redacted Confidential Filing”) shall also be filed with the
Secretary’s Office. Each Redacted Confidential Filing shall have the same pagination as the Confidential
Filing from which it is derived. The two copies of the Redacted Confidential Filing and their
accompanying cover letter shall be stamped “REDACTED – FOR PUBLIC INSPECTION.” The cover
letter accompanying the Redacted Confidential Filing shall state that the Submitting Party is filing a
redacted version of the filing.
e.
Two copies of the filing containing Highly Confidential Information and the
accompanying cover letter shall be delivered in person to Kathy Harris, Mobility Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington,
D.C. 20554. In addition, a person making a filing containing Highly Confidential Information shall serve
a copy on the relevant Submitting Party.
f.
Parties should not provide courtesy copies of pleadings containing Highly
Confidential Information to Commission staff unless the Bureau so requests. Any courtesy copies shall
be submitted under seal.
19.
Client Consultation. Nothing in this order shall prevent or otherwise restrict Outside
Counsel from rendering advice to their clients relating to the conduct of this proceeding and any
subsequent judicial proceeding arising therefrom and, in the course thereof, relying generally on
examination of Stamped Highly Confidential Documents or Highly Confidential Information; provided,
however
, that in rendering such advice and otherwise communicating with such client, Counsel shall not
disclose Stamped Highly Confidential Documents or Highly Confidential Information.
20.
No Waiver of Confidentiality. Disclosure of Highly Confidential Information as provided
herein by any person shall not be deemed a waiver by any Submitting Party of any privilege or
entitlement to confidential treatment of such Highly Confidential Information. Reviewing Parties, by
viewing this material agree: (1) not to assert any such waiver; (2) not to use Highly Confidential
Information to seek disclosure in any other proceeding; and (3) that accidental disclosure of Highly
Confidential Information by a Submitting Party shall not be deemed a waiver of any privilege or
entitlement as long as the Submitting Party takes prompt remedial action.
21.
Subpoena by Courts, Departments, or Agencies. If a court, or a federal or state
department or agency issues a subpoena or orders production of Stamped Highly Confidential Documents
or Highly Confidential Information that a party has obtained under terms of this Second Protective Order,
such party shall promptly notify each Submitting Party of the pendency of such subpoena or order.
Consistent with the independent authority of any court, department or agency, such notification must be
accomplished such that the Submitting Party has a full opportunity to oppose such production prior to the
production or disclosure of any Stamped Highly Confidential Document or Highly Confidential
Information.
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22.
Violations of Protective Order. Should a person that has properly obtained access to
Highly Confidential Information under this Second Protective Order violate any of its terms, that person
shall immediately convey that fact to the Commission and to the Submitting Party. Further, should such
violation consist of improper disclosure of Highly Confidential Information, the violating person shall
take all necessary steps to remedy the improper disclosure. The Commission retains its full authority to
fashion appropriate sanctions for violations of this Second Protective Order, including but not limited to
suspension or disbarment of Counsel from practice before the Commission, forfeitures, cease and desist
orders, and denial of further access to Highly Confidential Information in this or any other Commission
proceeding. Nothing in this Protective Order shall limit any other rights and remedies available to the
Submitting Party at law or in equity against any person using Highly Confidential Information in a
manner not authorized by this Protective Order.
23.
Termination of Proceeding. The provisions of this Second Protective Order shall not
terminate at the conclusion of this proceeding. Within two weeks after conclusion of this proceeding and
any administrative or judicial review, persons described by paragraph 12 shall destroy or return to the
Submitting Party Stamped Highly Confidential Documents and all copies of the same. No material
whatsoever derived from Stamped Highly Confidential Documents may be retained by any person having
access thereto, except Outside Counsel (as described in paragraph 8 and 12) may retain, under the
continuing strictures of this Second Protective Order, two copies of pleadings (one of which may be in
electronic format) containing Highly Confidential Information prepared by them. All Outside Counsel
shall make certification of compliance herewith and shall deliver the same to Outside Counsel for the
Submitting Party not more than three weeks after conclusion of this proceeding and any administrative or
judicial review. The provisions of this paragraph regarding retention of Stamped Highly Confidential
Documents and copies of same shall not be construed to apply to the Commission or its staff.
24.
Authority. This Order is issued pursuant to Sections 4(i) and 310(d) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 310(d), Section 4 of the Freedom of
Information Act, 5 U.S.C. § 552(b)(4), and authority delegated under Section 0.331 of the Commission’s
rules, 47 C.F.R. § 0.331, and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Ruth Milkman
Chief, Wireless Telecommunications Bureau
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APPENDIX A

Acknowledgment of Confidentiality

WT Docket No. 09-104

I hereby acknowledge that I have received and read a copy of the foregoing Second Protective
Order in the above-captioned proceeding, and I understand it. I agree that I am bound by the Second
Protective Order and that I shall not disclose or use Stamped Highly Confidential Documents or Highly
Confidential Information except as allowed by the Second Protective Order. I acknowledge that a
violation of the Second Protective Order is a violation of an order of the Federal Communications
Commission.
Without limiting the foregoing, to the extent that I have any employment, affiliation or role with
any person or entity other than a conventional private law firm (such as, but not limited to, a lobbying or
public interest organization), I acknowledge specifically that my access to any information obtained as a
result of the Second Protective Order is due solely to my capacity as Outside Counsel or Outside Counsel
of Record or Outside Consultant to a party or other person described in paragraph 12 of the foregoing
Second Protective Order and that I will not use such information in any other capacity nor will I disclose
such information except as specifically provided in the Second Protective Order.
I acknowledge that it is my obligation to ensure that: (1) Stamped Highly Confidential
Documents and Highly Confidential Information are used only as provided in the Second Protective
Order; and (2) Stamped Highly Confidential Documents are not duplicated except as specifically
permitted by the terms of the Second Protective Order, and I certify that I have verified that there are in
place procedures at my firm or office to prevent unauthorized disclosure of Stamped Highly Confidential
Documents or Highly Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Second Protective Order.
Executed at ________________________ this ___ day of _____________, ____.

_________________________________
[Name]
[Position]

[Address]
[Telephone]
10

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