Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Connect America Phase II Third Supplemental Protective Order

Download Options

Released: December 11, 2012

Federal Communications Commission

DA 12-1995

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Connect America Fund
)
WC Docket No. 10-90

THIRD SUPPLEMENTAL PROTECTIVE ORDER

Adopted: December 11, 2012

Released: December 11, 2012

By the Chief, Wireline Competition Bureau:
1. On November 18, 2011, the Federal Communications Commission (Commission) released
the USF/ICC Transformation Order.1 In that Order, the Commission adopted a methodology for
distributing universal service support under the newly created Connect America Fund Phase II in areas
served by price cap carriers. The methodology will use a forward-looking cost model to estimate the
costs of deployment of voice and broadband capable networks in high-cost areas and identify at a granular
level the areas where support will be made available. The Commission delegated to the Wireline
Competition Bureau (Bureau) “the task of selecting a specific engineering cost model and associated
inputs” that meet the criteria specified in the USF/ICC Transformation Order.2
2.
In order to provide the Commission with a potential model, the Universal Service
Administrative Corporation (USAC) contracted with CostQuest Associates, Inc. (CostQuest) to develop
the Connect America Cost Model (or “CACM”), a forward-looking cost model intended to enable the
Commission to accurately “estimate the cost of a modern voice and broadband capable network in price
cap served areas.”3 The model will be made available to the public subject to a licensing agreement and a
non-disclosure agreement (respectively Appendices B and C attached hereto). To ensure that the
proprietary features of the cost model are afforded adequate protection in any submissions made to the
Commission and to ensure that the public has the opportunity for robust participation, the Bureau, on its
own motion, adopts this Third Supplemental Protective Order.4 We find that the procedures we adopt in
this Order, along with the acknowledgement of confidentiality, the licensing agreement and non-


1 Connect America Fund; A National Broadband Plan for Our Future; Establishing Just and Reasonable Rates for
Local Exchange Carriers; High-Cost Universal Service Support; Developing a Unified Intercarrier Compensation
Regime; Federal-State Joint Board on Universal Service; Lifeline and Link-Up; Universal Service Reform—
Mobility Fund
; WC Docket Nos. 10-90, 07-135, 05-337, 03-109, CC Docket Nos. 01-92, 96-45, GC Docket No. 09-
51, WT Docket No. 10-208, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663
(2011) (USF/ICC Transformation Order); pets. for review pending sub nom. In re: FCC 11-161, No. 11-9900 (10th
Cir. filed Dec. 8, 2011).
2 USF/ICC Transformation Order, 26 FCC Rcd at 17725, para. 157.
3 Id. at 17735, para. 184.
4 This Third Supplemental Protective Order does not constitute a determination whether any materials would be
released publicly by the Commission upon a proper request under the Freedom of Information Act or otherwise.

Federal Communications Commission

DA 12-1995

disclosure agreement, provide the public with appropriate access to the model while protecting
competitively sensitive information from improper disclosure.
3. There have been prior protective orders in this proceeding—a traditional Protective Order to
address the treatment of traditional confidential filings,5 a Supplemental Protective Order to address the
terms and conditions of access to the model that CostQuest submitted in September 2011,6 a Second
Protective Order to address access to highly confidential information, including a cost model submitted
in this proceeding by Alaska Communications Services (ACS),7 a Second Supplemental Protective
Order to address access to the CostQuest Broadband Analytical Tool (CQBAT) submitted in this
proceeding by the ABC Coalition,8 and a Third Protective Order to address the treatment of traditional
confidential filings that superseded the initial Protective Order and expanded its scope to include
additional relevant proceedings.9 We make no change here to the treatment of documents and other
materials already submitted or that may be submitted under the previous protective orders. Parties who
previously followed procedures to review materials under those orders need not take any additional steps
unless they want access to the CACM. Parties who obtained access to CostQuest’s models either under
the original Supplemental Protective Order or under the Second Supplemental Protective Order do not
automatically have access to the CACM. Any party—including a party who gained access under the
original Supplemental Protective Order or the Second Supplemental Protective Order—must follow the
terms of this Third Supplemental Protective Order in order to gain access to the CACM.
4. Definitions. As used herein, capitalized terms not otherwise defined in this Third
Supplemental Protective Order shall have the following meanings:
“Acknowledgement” means the Acknowledgement of Confidentiality attached as Appendix A
hereto.


5 Developing a Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local
Exchange Carriers; Connect America Fund; High-Cost Universal Service Support; A National Broadband Plan for
Our Future
, CC Docket No. 01-92, WC Docket Nos. 07-135, 10-90, 05-337, GN Docket No. 09-51, Protective
Order, 25 FCC Rcd 13160 (Wireline Comp. Bur. 2010) (Protective Order).
6 Developing a Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local
Exchange Carriers; Connect America Fund; High-Cost Universal Service Support; A National Broadband Plan for
Our Future
, CC Docket No. 01-92, WC Docket Nos. 07-135, 10-90, 05-337, GN Docket No. 09-51, Supplemental
Protective Order, 26 FCC Rcd 12795 (Wireline Comp. Bur. 2011) (Supplemental Protective Order).
7 Developing a Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local
Exchange Carriers; Connect America Fund; High-Cost Universal Service Support; A National Broadband Plan for
Our Future
, CC Docket No. 01-92, WC Docket Nos. 07-135, 10-90, 05-337, GN Docket No. 09-51, Second
Protective Order, 27 FCC Rcd 1494 (Wireline Comp. Bur. 2012) (Second Protective Order).
8 Developing a Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local
Exchange Carriers; Connect America Fund; High-Cost Universal Service Support; A National Broadband Plan for
Our Future
, CC Docket No. 01-92, WC Docket Nos. 07-135, 10-90, 05-337, GN Docket No. 09-51, Second
Supplemental Protective Order, 27 FCC Rcd 1503 (Wireline Comp. Bur. 2012) (Second Supplemental Protective
Order).
9 Developing a Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local
Exchange Carriers; Connect America Fund; High-Cost Universal Service Support; A National Broadband Plan for
Our Future
, CC Docket No. 01-92, WC Docket Nos. 07-135, 10-90, 05-337, GN Docket No. 09-51, Third
Protective Order, 27 FCC Rcd 10276 (Wireline Comp. Bur. 2012) (Third Protective Order).
2

Federal Communications Commission

DA 12-1995

“Competitive Decision Making” means that a person’s activities, association, or relationship with
his or her employer or any of his or her clients involve advice about or participation in the relevant
business decisions or the analysis underlying the relevant business decisions of the employer or client in
competition with or in a business relationship with CostQuest.
“CACM” means the Connect America Cost Model, a proprietary software application owned by
CostQuest.
“Licensed Materials” means, and includes any derivative works of: (i) the CACM and CACM
documentation, (ii) the output of the CACM which includes only screen shots, CACM Reports, CACM
Solution Sets, CACM derived data provided by CostQuest to USAC, and downloads available directly
from the CACM website (“CACM Output”), (iii) proprietary CACM inputs, data and databases, (iv) a
system evaluator version of the CACM along with any sample CACM databases, which may be used to
test the operation of the CACM (“System Evaluator package”), (v) network topologies provided as inputs to
CACM, (vi) a digital rights management protected PDF file or files containing the processing source code
for the network topology application and CACM, as appropriate, and (vii) related drawings, designs, object
code, applications, analytic tools, data provided by CostQuest that is not otherwise publicly available and that
CostQuest has kept strictly confidential, defined processes and approaches, and concepts, created or generated
by CostQuest at any time before, during, and under this protective order.
“Licensee” means a person who has obtained access to Licensed Materials pursuant to the
Licensing Agreement.
“Licensing Agreement” means the Licensing Agreement attached as Appendix B hereto.
“Non-Disclosure Agreement for Source Code” means the Non-Disclosure Agreement attached as
Appendix C hereto.
“Reviewing Party” means a person who has obtained access to any Licensed Materials pursuant
to this Third Supplemental Protective Order.
“Source Code Materials” means subsections (iv) and (vi) of the definition of Licensed Materials.
“User Materials” means subsections (i) through (iii), (v) and (vii) of the definition of Licensed
Materials.
5. Persons Eligible To Obtain Access to Licensed Materials. Access to Licensed Materials is
limited to persons not engaged in Competitive Decision Making.
6. Procedures for Obtaining Access. Any person seeking access to any Licensed Materials shall
sign and date the Acknowledgment (Appendix A) agreeing to be bound by the terms and conditions of the
Third Supplemental Protective Order, and file it with the Commission in ECFS in the above-referenced
docket. In addition, any person seeking access to the User Materials shall sign and date the Licensing
Agreement (Appendix B); any person seeking access to the Source Code Materials shall sign and date the
Non-Disclosure Agreement for Source Code (Appendix C); and any person seeking access to the System
Evaluator package shall sign and date both the Licensing Agreement and the Non-Disclosure Agreement
for Source Code. Any person seeking access to any Licensed Materials shall serve a copy of all relevant,
fully executed documents to CostQuest through its Counsel of Record so that they are received at least
3

Federal Communications Commission

DA 12-1995

five business days prior to such person’s reviewing or having access to Licensed Materials,10 except that,
where the person seeking access is one described in the third sentence of paragraph 8, the executed
documents shall be delivered promptly prior to the person’s obtaining access. CostQuest shall have an
opportunity to object to granting access to Licensed Materials to any such person. CostQuest must file
any such objection at the Commission and serve it on counsel representing, retaining or employing such
person (or on such person directly if counsel is not indicated) within three business days after receiving
copies of that person’s executed documents (or where the person seeking access is one described in the
third sentence of paragraph 8, file and serve such objection as promptly as practicable after receipt of the
relevant executed documents). Until any such objection is resolved by the Commission and, if
appropriate, by any court of competent jurisdiction, and unless such objection is resolved in favor of the
person seeking access, a person subject to an objection from CostQuest shall not have access to Licensed
Materials. Unless CostQuest has filed an objection to granting access to Licensed Materials to a person
seeking such access, and that objection remains pending at the Commission, CostQuest shall execute the
Licensing Agreement and/or Non-Disclosure Agreement for Source Code on or before the fourth business
day after receiving the Licensing Agreement and/or Non-Disclosure Agreement for Source Code (or
where the person seeking access is one described in the third sentence of paragraph 8, as promptly as
practicable after receipt of the relevant Acknowledgment and Licensing Agreement and/or Non-
Disclosure Agreement for Source Code) and return a copy of the executed Licensing Agreement and/or
Non-Disclosure Agreement for Source Code to the Reviewing Party.
7. Use of Licensed Materials. A Reviewing Party shall use the Licensed Materials solely for the
preparation for and conduct of this proceeding before the Commission and any concurrent related or
subsequent related administrative or judicial proceedings and, except as provided herein, shall not use
such Licensed Materials for any other purpose, including without limitation business, educational,
research, governmental, or commercial purposes, or in any other administrative, regulatory or judicial
proceedings. A Reviewing Party also shall not disassemble, decompile, reverse engineer, or otherwise
recreate the Licensed Materials, or allow any other person to do so.
8. Permissible Disclosure. A Reviewing Party with access to the Licensed Materials may
discuss and share those materials with another Reviewing Party with equivalent access and with USAC
and the Commission and their respective staffs. CostQuest’s Licensed Materials may also be disclosed to
employees and counsel of CostQuest. Subject to the requirements of paragraph 6, a Reviewing Party may
disclose Licensed Materials to (1) paralegals or other employees of such Reviewing Party assisting him in
this proceeding; and (2) employees of third-party contractors 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 materials connected with this proceeding. A Reviewing Party may disclose, without restriction,
any information that properly has been made publicly available by the FCC or USAC.
9. Filings with the Commission. A Reviewing Party or CostQuest may in any document that it
files in this proceeding disclose Licensed Materials only if it complies with the following procedure. The
party shall submit to the Secretary’s Office one copy of the filing containing Licensed Materials (the
“Highly Confidential Filing”), two copies of the filing in redacted form, i.e., containing no Licensed
Materials (the “Redacted Highly Confidential Filing”), and an accompanying cover letter. The cover or
first page of the Highly Confidential Filing, and each page of the Highly Confidential Filing that contains
or discloses Licensed Materials subject to this order must be clearly marked: “CONFIDENTIAL
INFORMATION – SUBJECT TO THIRD SUPPLEMENTAL PROTECTIVE ORDER IN WC


10 Service by electronic mail is acceptable and can be sent to CostQuest’s Counsel of Record at
lawson@taftlaw.com.
4

Federal Communications Commission

DA 12-1995

DOCKET NO. 10-90 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION.” The cover
letter shall also contain this legend. The Highly Confidential Filing shall be made under seal, and will not
be placed in the Commission’s public file. The two copies of the Redacted Highly Confidential Filing
and the accompanying cover letter shall be stamped “REDACTED – FOR PUBLIC INSPECTION.” The
cover letter accompanying the Redacted Highly Confidential Filing shall state that the party is filing a
redacted version of the filing. Each Redacted Highly Confidential Filing shall have the same pagination
as the Highly Confidential Filing from which it is derived. To the extent that any page of the Highly
Confidential Filing contains both Licensed Materials and non-protected materials, only the Licensed
Materials may be redacted and the page of the unredacted Highly Confidential Filing shall clearly
distinguish the Licensed Materials from the non-protected Materials. Two copies of each Highly
Confidential Filing and the accompanying cover letter must be delivered, as directed by Commission
staff, to Katie King, Telecommunications Access Policy Division, Wireline Competition Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554, or katie.king@fcc.gov
and one copy must be served on CostQuest’s counsel of record, Margaret Avril Lawson, Taft Stettinius &
Hollister LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202-3957 or lawson@taftlaw.com.
Parties should not provide courtesy copies of pleadings containing Licensed Materials to Commission
staff unless the Bureau so requests, and any such courtesy copies shall be submitted under seal.
10. Non-Disclosure of Licensed Materials. Except with the prior written consent of CostQuest,
or as provided under this Third Supplemental Protective Order, no Licensed Materials may be disclosed
further.
11. Protection of Licensed Materials. A Reviewing Party shall have the obligation to ensure that
access to Licensed Materials is strictly limited as prescribed in this Third Supplemental Protective Order
and that Licensed Materials are retained in a secure place of limited access. A Reviewing Party shall
further have the obligation to ensure that Licensed Materials are used only as provided in this Third
Supplemental Protective Order.
12. Requests for Additional Disclosure. If any person requests disclosure of Licensed Materials
outside the terms of this Third Supplemental Protective Order, requests will be treated in accordance with
Sections 0.442 or 0.461 of the Commission’s rules. In the event of such a request, CostQuest will be
deemed to have submitted a request that the Licensed Materials not be made routinely available for public
inspection under the Commission’s rules.11
13. Client Consultation. Nothing in this Third Supplemental Protective Order shall prevent or
otherwise restrict Reviewing Parties from rendering advice to their employers and clients relating to the
conduct of this proceeding and any concurrent related or subsequent related administrative or judicial
proceedings and, in the course thereof, relying generally on examination of Licensed Materials; provided,
however, that in rendering such advice and otherwise communicating with such employer or client,
Reviewing Parties shall not disclose Licensed Materials to anyone who is not a Reviewing Party entitled
to access to the portion of the Licensed Materials that is disclosed to such Reviewing Party. For example,
a Reviewing Party may not disclose Source Code Materials to a Reviewing Party who has executed
Appendices A and B but not Appendix C.
14. No Waiver of Confidentiality. Disclosure of Licensed Materials as provided herein by any
person shall not be deemed a waiver by CostQuest of any privilege, trade secret claim or entitlement to
confidential treatment of such Licensed Materials. Reviewing Parties, by accessing Licensed Materials,
agree: (1) not to assert any such waiver; (2) not to use Licensed Materials to seek disclosure in any other


11 See 47 C.F.R. § 0.459(a), 0.459(a)(3).
5

Federal Communications Commission

DA 12-1995

proceeding; and (3) that accidental disclosure of Licensed Materials by CostQuest shall not be deemed a
waiver of any privilege, trade secret claim or entitlement as long as CostQuest takes prompt remedial
action.
15. Subpoena by Courts, Departments, or Agencies. If a court or a federal or state department or
agency issues a subpoena for or orders the production of Licensed Materials that a party has obtained
under terms of this Third Supplemental Protective Order, such party shall promptly notify CostQuest 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 CostQuest has a full opportunity
to oppose such production prior to the production or disclosure of any Licensed Materials.
16. Violations of the Third Supplemental Protective Order. Should a Reviewing Party violate
any of the terms of this Third Supplemental Protective Order, such Reviewing Party shall immediately
convey that fact to the Commission and to CostQuest. Further, should such violation consist of improper
access to or disclosure of Licensed Materials, the violating person shall take all necessary steps to remedy
the improper access or disclosure. The Commission retains its full authority to fashion appropriate
sanctions for violations of this Third Supplemental Protective Order, including but not limited to
suspension or disbarment from practice before the Commission, forfeitures, cease and desist orders, and
denial of further access to Licensed Materials in this or any other Commission proceeding. Nothing in
this Third Supplemental Protective Order shall limit any other rights and remedies available to CostQuest
at law or in equity against any person using Licensed Materials in a manner not authorized by this Third
Supplemental Protective Order.
17. Termination of Proceeding. The provisions of this Third Supplemental Protective Order shall
not terminate at the conclusion of this proceeding and any concurrent related or subsequent related
administrative or judicial proceedings. Within two weeks after conclusion of this proceeding and any
concurrent related or subsequent related administrative or judicial proceedings, Reviewing Parties shall
destroy or return to CostQuest Licensed Materials and all copies of the same. No material whatsoever
derived from Licensed Materials may be retained by any person having access thereto, except parties may
retain, under the continuing strictures of this Third Supplemental Protective Order, two copies of
pleadings (one of which may be in electronic format) prepared in whole or in part by that party that
contain Licensed Materials, and one copy of orders issued by the Commission or Bureau that contain
Licensed Materials. In addition, a Reviewing Party may retain any information that properly has been
made publicly available by the FCC or USAC.
18. All Reviewing Parties shall certify compliance with these terms and shall deliver the same to
counsel for CostQuest not more than three weeks after conclusion of this proceeding. The provisions of
this paragraph regarding retention of Licensed Materials and copies of the same shall not be construed to
apply to the Commission or its staff.
19. Authority. This Order is issued pursuant to sections 4(i), 4(j), and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j) and 403, Section 4 of the Freedom
of Information Act, 5 U.S.C. § 552(b)(4), and authority delegated under sections 0.91 and 0.291 of the
Commission’s rules, 47 C.F.R. §§ 0.91 and 0.291, and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Julie A. Veach
Chief, Wireline Competition Bureau
6

Federal Communications Commission

DA 12-1995

APPENDIX A

Acknowledgement of Confidentiality—WC Docket No. 10-90 and Concurrent Related or

Subsequent Related Administrative or Judicial Proceedings

I hereby acknowledge that I have received and read a copy of the foregoing Third Supplemental
Protective Order in the above-captioned proceeding. If I am seeking access to the User Materials, I also
acknowledge that I have received and read a copy of the attached Restricted CACM License (the
“Licensing Agreement”), and I understand it. If I am seeking access to the Source Code Materials, I
acknowledge that I have received and read a copy of the attached Non-Disclosure Agreement for Source
Code, and I understand it. If I am seeking access to the System Evaluator package, which provides access
to both User Materials and Source Code Materials, I acknowledge that I have received and read a copy of
both the Licensing Agreement and the Non-Disclosure Agreement for Source Code, and I understand
both.
I agree that I am bound by the Third Supplemental Protective Order and by one or both of the
Licensing Agreement and/or Non-Disclosure Agreement for Source Code, as appropriate, and that I shall
not disclose or use Licensed Materials except as allowed by the Third Supplemental Protective Order, the
Licensing Agreement and/or Non-Disclosure Agreement for Source Code.
I acknowledge that a violation of the Third Supplemental Protective Order is a violation of an
order of the Federal Communications Commission.
I acknowledge specifically that my access to any information obtained as a result of the Third
Supplemental Protective Order and the Licensing Agreement and/or Non-Disclosure Agreement for
Source Code is due solely to my capacity as a party or representative of a party to this proceeding or as a
person described in paragraph 9 of the Third Supplemental Protective Order and agree that I shall not use
such information in any other capacity.
I acknowledge that it is my obligation to ensure that Licensed Materials are not accessed or used
except as specifically permitted by the terms of the Third Supplemental Protective Order and the
Licensing Agreement and/or Non-Disclosure Agreement for Source Code, as appropriate.
I certify that I have verified that there are in place procedures at my firm or office to prevent
unauthorized access to or disclosure of Licensed Materials.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Third Supplemental Protective Order.

I hereby request access to the User Materials:

____ Yes ____ No

I hereby request access to the Source Code Materials:

____ Yes ____ No

I hereby request access to the System Evaluator package:

____ Yes ____ No

Executed this ___ day of _____________, ____.

_________________________________

[Name] and [Position]


[Address]

[Telephone]
[E-mail address]
7

Federal Communications Commission

DA 12-1995

APPENDIX B

CostQuest Associates, Inc. Restricted CACM License Limited To Use Solely for Review and

Evaluation for Purposes of the FCC Proceeding in WC Docket No. 10-90 and Concurrent Related

or Subsequent Related Administrative or Judicial Proceedings
THIS LIMITED LICENSE (“Licensing Agreement”) is accepted and made effective as of the
___ day of ____________, 20__ (“Effective Date”), between CostQuest Associates, Inc. (“CostQuest”)
and __________________ (“Licensee”) with respect to, and including any derivative works of: (i)
CostQuest’s proprietary software application (the Connect America Fund Phase II forward-looking model
or the “Connect America Cost Model” or “CACM”), (ii) the output of the CACM which includes only
screen shots, CACM Reports, CACM Solution Sets, CACM audit reports, CACM derived data provided
by Contractor to Company, and downloads available directly from the CACM website (“CACM
Output”), (iii) proprietary CACM inputs, data and databases, (iv) network topologies provided as inputs to
the CACM, and shall also include related drawings, designs, object code, applications, analytic tools, data
provided by CostQuest that is not otherwise publicly available and that CostQuest has kept strictly confidential,
defined processes and approaches, and concepts, created or generated by CostQuest at any time before, during,
and under this protective order (collectively, the “User Materials”). Licensee and CostQuest will be referred
to collectively as the “Parties.”
CostQuest hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, non-
transferable, limited license to use the User Materials, whether in form of the on-line or system evaluator
versions, without fees, charges, or costs to the Licensee of any kind. Licensees will be provided with a
minimum of 50 GB of storage capacity for Licensee CACM solution sets at no charge (for additional
storage, a fee of $55 per 10 GBs may be assessed). Licensee shall make use of the User Materials under
the following terms and restrictions:
1. License Grants and Restrictions
1.1. Licensee shall utilize the User Materials only for review and evaluation for purposes of
providing comments and other filings to the Federal Communication Commission (“FCC”) in
WC Docket No. 10-90, and in concurrent related or subsequent related administrative or judicial
proceedings (the “Project”).
1.2. Licensee shall not transfer, sell, rent, disclose, make available or otherwise communicate, resell,
sublicense or use the User Materials for any other purpose or in any other manner.
1.3. Licensee shall make copies only of the licensed CACM Output as required for the Project as
described in section 1.1 above. On any copy of the CACM Output that Licensee is permitted to
make or distribute, Licensee shall reproduce all copyright notices and any other proprietary
legends of CostQuest as they appear.
1.4. Licensee shall not make any copies, distribute, sublicense, transfer, sell, rent, disclose, or make
available any User Materials provided under this Licensing Agreement except consistent with
the Third Supplemental Protective Order.
1.5. Licensee shall at all times maintain the confidentiality of the User Materials, handling the User
Materials in compliance with the Third Supplemental Protective Order. In the event that any
portion of the User Materials should come into the possession of unauthorized third parties as a
result of a breach by Licensee of this Licensing Agreement, Licensee shall, at its expense and
8

Federal Communications Commission

DA 12-1995

without limiting any other rights available to CostQuest, immediately notify CostQuest and use
all commercially reasonable efforts to retrieve such materials and shall reimburse CostQuest for
all reasonable expenses incurred by CostQuest in attempting to retrieve such materials.
1.6. Licensee shall not, and shall not permit any third party to, disassemble, decompile, reverse
engineer, or otherwise recreate the User Materials.
1.7. In accessing or using the User Materials, Licensee shall not, by any action or inaction, violate
laws or regulations promulgated by any governmental or quasi-governmental authorities that are
binding upon it and shall take all reasonable steps to assist CostQuest or any other participant in
the Project, or their affiliates, to avoid any violations of any such laws or regulations that are
binding upon them.
1.8. Upon reasonable notice to Licensee, and at CostQuest’s sole expense, CostQuest’s auditors shall
have the right to inspect Licensee’s records relating to the Project as necessary for CostQuest to
verify Licensee’s compliance with the terms of this Licensing Agreement. Audits shall be
conducted at Licensee’s premises during normal business hours and in a manner that does not
unreasonably interfere with Licensee’s operations.
1.9. If Licensee sells, makes available to a third party, or otherwise disposes of Licensee-owned
media on which the User Materials are or were resident, that media must be erased and scrubbed
of the User Materials before such sale or disposal.
1.10. The Universal Service Administrative Company (“USAC”) in consultation with the FCC, may
limit or may allow CostQuest to limit the number of downloads of each type of CACM audit
report by Licensee and other licensees each day where necessary to manage server resources
(including bandwidth) and to preserve the integrity and/or proprietary nature of the data
provided.
1.11. The foregoing does not preclude Licensee from disclosing any information made publicly
available by the FCC or USAC.
2. Disclaimer of Warranties
2.1. LICENSEE ACKNOWLEDGES AND AGREES THAT (A) COSTQUEST HAS NOT MADE
ANY EXPRESS OR IMPLIED WARRANTIES TO LICENSEE REGARDING THE USER
MATERIALS AND (B) THE USER MATERIALS ARE BEING PROVIDED TO LICENSEE
“AS IS,” WITHOUT WARRANTIES OF ANY KIND. COSTQUEST DOES NOT
WARRANT THAT THE USER MATERIALS ARE FREE FROM DEFECTS. COSTQUEST
EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT OF
THIRD PARTY RIGHTS.
3. Term and Termination
3.1. This Licensing Agreement shall terminate automatically upon the termination of the FCC
proceeding in WC Docket No. 10-90 and concurrent related or subsequent related administrative
or judicial proceedings.
9

Federal Communications Commission

DA 12-1995

3.2. Notwithstanding section 3.1, if Licensee agrees that Licensee does not continue to require any
User Materials, CostQuest may terminate this Licensing Agreement.
3.3. If CostQuest believes that Licensee is in violation of the Third Supplemental Protective Order or
this Licensing Agreement, CostQuest shall so notify the FCC. If the FCC determines that
Licensee is in violation of the Third Supplemental Protective Order or this Licensing Agreement
and so orders, CostQuest may terminate this Licensing Agreement.
4. Limitation of Liability
4.1. IN NO EVENT SHALL COSTQUEST HAVE ANY LIABILITY FOR DAMAGES
SUSTAINED BY LICENSEE IN CONNECTION WITH THIS LICENSING AGREEMENT,
THE PROJECT OR THE POSSESSION OR USE OF USER MATERIALS, INCLUDING,
WITHOUT LIMITATION, ANY LOST REVENUES OR PROFITS, OR ANY INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF COSTQUEST
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Ownership of Intellectual Property
5.1. Licensee acknowledges that the User Materials, including without limitation all output and
derivatives of, as well as all modifications and customizations to the User Materials, are
proprietary to CostQuest and that CostQuest retains exclusive ownership of all such User
Materials and all proprietary rights associated therewith. Licensee shall, at the direction of
CostQuest, take all commercially reasonable measures to protect CostQuest’s rights in the User
Materials. Nothing in this Section 5.1 limits Licensee’s ability to use outputs and descriptions of
the User Materials in accordance with the terms of this Licensing Agreement in the above-
captioned proceeding and concurrent related or subsequent related administrative and judicial
proceedings.
5.2. Except as expressly provided herein, Licensee is not granted any other rights or license to
patents, copyrights, trade secrets, data or trademarks with respect to User Materials. Licensee
shall promptly notify CostQuest in writing upon its discovery of any unauthorized use or
infringement of the User Materials.
6. Additional Terms
6.1. Compliance with FCC Requirements and Other Laws. This Licensing Agreement is expressly
made subject to any United States government laws, regulations, orders or other restrictions
regarding the Project or use of software, data, output or products thereof. Notwithstanding
anything to the contrary in this Licensing Agreement, Licensee shall not directly or indirectly
export, or permit the transfer of, any software, data, output or products (a) to any country or
destination for which the United States government or a United States governmental agency
requires an export license or other approval for export without first having obtained such license
or other approval; or (b) otherwise contrary to United States law, including, without limitation,
FCC rules, policies and regulations.
6.2. No Waivers. No delay or omission by either party to exercise any right or power accruing upon
any noncompliance or default by the other party with respect to any of the terms of this
Licensing Agreement shall impair any such right or power or be construed to be a waiver
thereof. A waiver by either party of any breach of the covenants, conditions or agreements to be
10

Federal Communications Commission

DA 12-1995

performed or honored by the other party shall not be construed to be a waiver of any later breach
thereof or of any other covenant, condition or agreement herein contained.
6.3. Assignments. This Licensing Agreement is binding upon and inures to the benefit of the Parties
hereto and their respective successors and assigns. Licensee shall not assign this Licensing
Agreement or transfer any rights granted hereunder, in whole or in part, without obtaining the
prior written consent of CostQuest, and any attempted assignment or transfer in violation of this
provision is void.
6.4. Severability and Survival of Obligations. If any provision of this Licensing Agreement is held
invalid or unenforceable, the remainder of this Licensing Agreement shall not be affected
thereby, and each remaining provision of this Licensing Agreement shall be valid and
enforceable to the extent permitted by law. Sections 1, 2, 4, 5, and 6 shall survive any expiration
or termination of this Licensing Agreement.
6.5. Nothing in this Licensing Agreement gives anyone, other than the Parties, any rights or remedies
under this Licensing Agreement.
6.6. This Licensing Agreement may be executed in counterparts, and each (whether an original or
facsimile) is considered an original and all constitute one and the same instrument.
6.7. Governing Law. This Licensing Agreement shall be governed by and construed in accordance
with Federal law.
6.8. Entire Agreement. This Licensing Agreement, the Third Supplemental Protective Order, and the
Non-Disclosure Agreement for Source Code (if it is executed) constitute the Parties’ entire
understanding with regard to the matters herein, and there are no other understandings, either
written or unwritten, with regard to such matters. Any terms on either Party’s web site, product
schedule, or contained in any “shrinkwrap” or “clickwrap” agreement shall not have force or
effect if the provision conflicts with the terms of this Licensing Agreement. The Licensing
Agreement may not be modified, amended, canceled or waived, in whole or in part, except by a
written instrument signed by the Parties hereto.
11

Federal Communications Commission

DA 12-1995

IN WITNESS WHEREOF, the Parties have executed this Licensing Agreement by their duly authorized
representatives effective as of the date first set forth above.
COSTQUEST: LICENSEE:
CostQuest Associates, Inc. _______________________________________
[name]
By: ___________________
James Stegeman, President _______________________________________
[position]
________________________________________
[company]
________________________________________

[address]
________________________________________
[telephone]
________________________________________
[email address]
________________________________________
[fax]
12

Federal Communications Commission

DA 12-1995

APPENDIX C

Non-Disclosure Agreement for CostQuest CACM Source Code for Use in the FCC Proceeding in

WC Docket No. 10-90 and Concurrent Related or Subsequent Related Administrative or Judicial

Proceedings

THIS NON-DISCLOSURE AGREEMENT (“Non-Disclosure Agreement for Source Code”) is
accepted and made effective as of the ___ day of ____________, 201_ (“Effective Date”), between
CostQuest Associates, Inc. (“CostQuest”) and __________________ (“Viewer”) with respect to
CostQuest’s proprietary and confidential source code for its Connect America Phase II forward-looking
cost model software application (the Connect America Cost Model or “CACM”). The source code means
(i) a system evaluator version of the CACM along with any sample CACM databases, which may be used
to test the operation of the CACM (“System Evaluator package”) and which contains CACM source code,
(ii) a digital rights management protected PDF file or files containing the processing source code for the
network topology application and CACM, as appropriate (collectively, the “Source Code Materials”).
Viewer and CostQuest will be referred to collectively as the “Parties.”
1. General Terms and Restrictions
1.1. CostQuest shall provide the Source Code Materials, including the relevant digital rights
management protected PDF file or files containing the processing source code for the network
topology application and CACM, as appropriate, to Viewer, without fees, charges, or costs to
Viewer. The PDF file or files shall be viewable on a Windows-based personal computer and
may require the use of a free PDF viewer.
1.2. Viewer shall hold Source Code Materials in strict confidence, and use at least the same degree of
care as it uses to safeguard its own most confidential information, including trade secret
information, so as to ensure that no unauthorized person has access to the Source Code
Materials. Viewer shall access and use the Source Code Materials only for official purposes
pertaining to providing comments and other filings to the Federal Communication Commission
(“FCC”) for use in the FCC proceeding in WC Docket No. 10-90, and in concurrent related or
subsequent related administrative and judicial proceedings (the “Project”).
1.3. Viewer shall not transfer, sell, rent, disclose, make available or otherwise communicate, resell,
sublicense or use the Source Code Materials for any other purpose or in any other manner.
1.4. Viewer shall not copy or reproduce the Source Code Materials in any manner except to
reproduce limited excerpts in filings with the FCC consistent with the terms of the Third
Supplemental Protective Order.
1.5. Viewer shall at all times maintain the confidentiality of the Source Code Materials, handling the
Source Code Materials in compliance with the Third Supplemental Protective Order. In the
event that any portion of the Source Code Materials should come into the possession of
unauthorized third parties as a result of a breach by Viewer of this Non-Disclosure Agreement
for Source Code, Viewer shall, at its expense and without limiting any other rights available to
CostQuest, immediately notify CostQuest and use all commercially reasonable efforts to retrieve
such materials and shall reimburse CostQuest for all reasonable expenses incurred by CostQuest
in attempting to retrieve such materials.
13

Federal Communications Commission

DA 12-1995

1.6. Viewer shall not, and shall not permit any third party to, disassemble, decompile, reverse
engineer, or otherwise recreate the Source Code Materials.
2. Disclaimer of Warranties
2.1. VIEWER ACKNOWLEDGES AND AGREES THAT (A) COSTQUEST HAS NOT MADE
ANY EXPRESS OR IMPLIED WARRANTIES TO VIEWER REGARDING THE SOURCE
CODE MATERIALS AND (B) THE SOURCE CODE MATERIALS ARE BEING PROVIDED
TO VIEWER “AS IS,” WITHOUT WARRANTIES OF ANY KIND. COSTQUEST DOES
NOT WARRANT THAT THE SOURCE CODE MATERIALS ARE FREE FROM DEFECTS.
COSTQUEST EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-
INFRINGEMENT OF THIRD PARTY RIGHTS.
3. Term and Termination
3.1. This Agreement shall terminate automatically upon the termination of the above-captioned
proceeding and concurrent related or subsequent related administrative or judicial proceedings.
3.2. Notwithstanding section 3.1, if Viewer agrees that Viewer does not continue to require the
Source Code Materials, CostQuest may terminate this Agreement.
3.3. If CostQuest believes that Viewer is in violation of the Third Supplemental Protective Order or
this Non-Disclosure Agreement for Source Code, CostQuest shall so notify the FCC. If the
FCC determines that Viewer is in violation of the Third Supplemental Protective Order or this
Non-Disclosure Agreement for Source Code and so orders, CostQuest may terminate this Non-
Disclosure Agreement for Source Code.
3.4. As part of the digital rights management process, access to the Source Code Materials may
terminate on a periodic basis. Should the Viewer need to maintain access to the document,
CostQuest, upon the reasonable request of Viewer, shall renew the Viewer’s access rights.
4. Limitation of Liability
4.1. IN NO EVENT SHALL COSTQUEST HAVE ANY LIABILITY FOR DAMAGES
SUSTAINED BY THE VIEWER IN CONNECTION WITH THIS AGREEMENT, THE
PROJECT OR THE POSSESSION OR USE OF THE SOURCE CODE MATERIALS,
INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES OR PROFITS, OR ANY
INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF
COSTQUEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Ownership of Intellectual Property
5.1. Viewer acknowledges that the Source Code Materials, including without limitation all output
and derivatives of, as well as all modifications and customizations to the Source Code Materials,
are proprietary to CostQuest and that CostQuest retains exclusive ownership of the Source Code
Materials and all proprietary rights associated therewith. Viewer shall, at the direction of
CostQuest, take all commercially reasonable measures to protect CostQuest’s rights in the
Source Code Materials.
14

Federal Communications Commission

DA 12-1995

5.2. Except as expressly provided herein, Viewer is not granted any other rights or license to patents,
copyrights, trade secrets, data or trademarks with respect to the Source Code Materials. Viewer
shall promptly notify CostQuest in writing upon its discovery of any unauthorized use or
infringement of the Source Code Materials.
6. Additional Terms
6.1. Compliance with FCC Requirements and Other Laws. This Non-Disclosure Agreement for
Source Code is expressly made subject to any United States government laws, regulations,
orders or other restrictions regarding the Project or use of software, data, output or products
thereof. Notwithstanding anything to the contrary in this Non-Disclosure Agreement for Source
Code, Viewer shall not directly or indirectly export, or permit the transfer of, any software, data,
output or products (a) to any country or destination for which the United States government or a
United States governmental agency requires an export license or other approval for export
without first having obtained such license or other approval; or (b) otherwise contrary to United
States law, including, without limitation, FCC rules, policies and regulations.
6.2. No Waivers. No delay or omission by either party to exercise any right or power accruing upon
any noncompliance or default by the other party with respect to any of the terms of this
Agreement shall impair any such right or power or be construed to be a waiver thereof. A
waiver by either party of any breach of the covenants, conditions or agreements to be performed
or honored by the other party shall not be construed to be a waiver of any later breach thereof or
of any other covenant, condition or agreement herein contained.
6.3. Assignments. This Non-Disclosure Agreement for Source Code is binding upon and inures to
the benefit of the Parties hereto and their respective successors and assigns. Viewer shall not
assign this Agreement or transfer any rights granted hereunder, in whole or in part, without
obtaining the prior written consent of CostQuest, and any attempted assignment or transfer in
violation of this provision is void.
6.4. Severability and Survival of Obligations. If any provision of this Non-Disclosure Agreement for
Source Code is held invalid or unenforceable, the remainder of this Non-Disclosure Agreement
for Source Code shall not be affected thereby, and each remaining provision of this Non-
Disclosure Agreement for Source Code shall be valid and enforceable to the extent permitted by
law. Sections 1, 2, 4, 5, and 6 shall survive any expiration or termination of this Agreement.
6.5. Nothing in this Non-Disclosure Agreement for Source Code gives anyone, other than the Parties,
any rights or remedies under this Non-Disclosure Agreement for Source Code.
6.6. This Non-Disclosure Agreement for Source Code may be executed in counterparts, and each
(whether an original or facsimile) is considered an original and all constitute one and the same
instrument.
6.7. Governing Law. This Non-Disclosure Agreement for Source Code shall be governed by and
construed in accordance with Federal law.
6.8. Entire Agreement. This Non-Disclosure Agreement for Source Code, the Licensing Agreement
between CostQuest and Viewer or Viewer’s employer (if executed), and the Third Supplemental
Protective Order constitute the Parties’ entire understanding with regard to the matters herein,
and there are no other understandings, either written or unwritten, with regard to such matters.
15

Federal Communications Commission

DA 12-1995

Any terms on either Party’s web site, product schedule, or contained in any “shrinkwrap” or
“clickwrap” agreement shall not have force or effect if the provision conflicts with the terms of
this Non-Disclosure Agreement for Source Code. This Non-Disclosure Agreement for Source
Code may not be modified, amended, canceled or waived, in whole or in part, except by a
written instrument signed by the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have executed this Non-Disclosure Agreement for Source
Code through their authorized representatives.
VIEWER:
CostQuest Associates, Inc. _______________________________________
[name]
By: ___________________
James Stegeman, President _______________________________________
[position]
________________________________________
[Viewer company]
________________________________________

[address]
_____________________________________
[telephone]
________________________________________
[email address]
________________________________________
[fax]
16

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.