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ETC Protective Order

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Released: January 22, 2013

Federal Communications Commission

DA 13-81

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Petitions For Designation As An
) WC Docket No. 09-197
Eligible Telecommunications Carrier
) WT Docket No. 10-208
For Purposes of Participation in Mobility Fund
)
Auctions
)

PROTECTIVE ORDER

Adopted: January 22, 2013

Released: January 22, 2013

By the Associate Chief, Wireless Telecommunications Bureau and Deputy Chief, Wireline Competition
Bureau:
1. In this Protective Order, we adopt procedures to limit access to proprietary or confidential
information that may be filed in this proceeding in connection with petitions filed for designation as an
eligible telecommunications carrier for purposes of participation in any Mobility Fund auction. We
anticipate that such materials will be necessary to develop a more complete record on which to base the
Commission’s decisions. While we are mindful of the sensitive nature of such materials, we are also
mindful of the right of the public to participate in our proceedings in a meaningful way. We therefore will
make such information available, but only pursuant to a protective order. We conclude that the procedures
we adopt in this Protective Order give appropriate access to the public while protecting proprietary and
confidential information from improper disclosure, and that the procedures thereby serve the public
interest. We previously adopted the same procedures with respect to the Mobility Fund Phase I auction.1
We issue this Protective Order to make clear that the same procedures will continue to apply, subject to
further Orders, with respect to any future auctions for Mobility Fund support.
2. Definitions. As used herein, capitalized terms not otherwise defined in this Protective Order
shall have the following meanings:
“Acknowledgement” means the Acknowledgement of Confidentiality attached as Appendix A
hereto.
“Competitive Decision-Making” means that a person’s activities, association, or relationship with
any of its clients involve(s) advice about or participation in the relevant business decisions or the analysis
underlying the relevant business decisions of the client in competition with or in a business relationship
with the Submitting Party.
“Confidential Information” means information that is not otherwise available from publicly
available sources and that is subject to protection under FOIA and the Commission’s implementing rules.
“Counsel” means In-House Counsel and Outside Counsel of Record.


1 See Petitions For Designation As An Eligible Telecommunications Carrier For Purposes of Participation in
Mobility Fund Phase I (Auction 901), WC Docket No. 09-197, WT Docket No. 10-208, AU Docket No. 12-25,
Protective Order, DA 12-780 (released May 17, 2012).

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DA 13-81

“In-House Counsel” means an attorney employed by a party to this proceeding or employed by an
affiliated entity and who is actively engaged in the conduct of this proceeding, provided that such attorney
is not involved in Competitive Decision-Making.
“Outside Counsel of Record” or “Outside Counsel” means the attorney(s), firm(s) of attorneys, or
sole practitioner(s), as the case may be, representing a party in this proceeding, provided that such
attorneys are not involved in Competitive Decision-Making. The term “Outside Counsel of Record”
includes any attorney representing a non-commercial party in this proceeding, provided that such attorney
is not involved in Competitive Decision-Making.
“Outside Consultant” means a consultant or expert retained for the purpose of assisting Counsel
or a party in this proceeding, provided that such consultant or expert is not involved in Competitive
Decision-Making. The term “Outside Consultant” includes any consultant or expert employed by a non-
commercial party in this proceeding, provided that such consultant or expert is not involved in
Competitive Decision-Making.
“Redacted Confidential Document” means a copy of a Stamped Confidential Document in which
the Confidential Information has been redacted.
“Reviewing Party” means a person who has obtained access to Confidential Information
(including Stamped Confidential Documents) pursuant to paragraphs 5 or 8 of this Protective Order.
“Stamped Confidential Document” means any document, or any part thereof, that contains
Confidential Information and that, if filed prior to or on the date of this Protective Order, 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) “CONFIDENTIAL – NOT FOR PUBLIC INSPECTION,” or, if filed subsequent to
the date of this Protective Order, 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) “CONFIDENTIAL INFORMATION –
SUBJECT TO PROTECTIVE ORDER IN WC DOCKET NO. 09-197, WT DOCKET NO. 10-208
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 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 a “Stamped Confidential Document,” a Submitting Party signifies and represents
that it contains Confidential Information.
“Submitting Party” means a person who submits a Stamped Confidential Document.
3. Effect of Designation of Information as Confidential. By designating documents and
information as Confidential in this proceeding as described in this Protective Order, a Submitting Party
will be deemed to have submitted a request that the material not be made routinely available for public
inspection under the Commission’s rules.2 Any person wishing to challenge the designation of a
document or portion of a document as Confidential must file such a challenge at the Commission and
serve it on the Submitting Party. The Submitting Party must file any reply within five business days, and
include a justification for treating the information as confidential.3 The documents and information
challenged will continue to be accorded confidential treatment until the Commission acts on the request
and all subsequent appeal and stay proceedings have been exhausted.4 Any decision on whether the
materials should be accorded confidential treatment does not constitute a resolution of the merits


2 See 47 C.F.R. §§ 0.459(a), 0.459(a)(3).
3 See 47 C.F.R. § 0.459(b).
4 See 47 C.F.R. § 0.459(g).
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concerning whether such information would be released publicly by the Commission upon a proper
request under our rules implementing the Freedom of Information Act (FOIA).5
4. Submission of Stamped Confidential Documents. A Submitting Party shall submit to the
Secretary’s Office one copy of each Stamped Confidential Document it wishes to file, one copy of the
Stamped Confidential Document in redacted form, and an accompanying cover letter. In addition, two
copies of each Stamped Confidential Document and the accompanying cover letter must be delivered as
directed by Commission staff to Denise Linn, Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 445 12th Street, S.W., Portals I,
Room 6503B, Washington, D.C. 20554. Each page of a Stamped Confidential Document filed
subsequent to the date of this Protective Order shall be stamped “CONFIDENTIAL INFORMATION –
SUBJECT TO PROTECTIVE ORDER IN WC DOCKET NO. 09-197, WT DOCKET NO. 10-208
BEFORE THE FEDERAL COMMUNICATIONS COMMISSION.” The cover letter also shall have this
stamp. Each Redacted Confidential Document shall have the same pagination as the Stamped
Confidential Document from which it is derived. Copies of the Redacted Confidential Document shall be
stamped “REDACTED – FOR PUBLIC INSPECTION.” Any cover letter transmitting only Redacted
Confidential Documents also shall have this stamp. To the extent that any page of the filing contains both
Confidential Information and non-confidential information, only the Confidential Information may be
redacted and the page of the unredacted filing shall clearly distinguish the Confidential Information from
the non-confidential information.
5. Procedure for Obtaining Access to Confidential Information. Any person seeking access to
Stamped Confidential Documents and Confidential Information subject to this Protective Order shall sign
and date the Acknowledgment agreeing to be bound by the terms and conditions of the Protective Order;
and file the Acknowledgment in the Commission Dockets identified on the Acknowledgment. Such
person shall also serve a copy of the Acknowledgment upon the relevant Submitting Party through its
Counsel of Record so that it is received at least two business days prior to such person’s reviewing or
having access to the Submitting Party’s Stamped Confidential Documents or Confidential Information,
except that, where the person seeking access is one described in either clause 1 or 2 of paragraph 8, the
Acknowledgment shall be delivered promptly prior to the person’s obtaining access. Each Submitting
Party shall have an opportunity to object to the disclosure of its Stamped Confidential Documents or
Confidential Information to any such person. A Submitting Party must file any such objection at the
Commission and serve it on Counsel representing, or retained or employed by, such person within two
business days after receiving a copy of that person’s Acknowledgment (or, where the person seeking
access is one described in clause 1 or 2 of paragraph 8, file and serve such objection as promptly as
practicable after receipt of the Acknowledgment). Further, if a Submitting Party files additional
Confidential Documents, it must file any objection to the disclosure of those additional Confidential
Documents to any Reviewing Party before or contemporaneous with filing those documents. Until any
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 a Submitting Party shall not have access to the relevant Stamped Confidential Documents or
Confidential Information.
6. Review of Stamped Confidential Documents. A Submitting Party shall make available for
review the Stamped Confidential Documents of such party at the offices of the 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. A Reviewing Party shall be provided the following alternatives: (1) a Reviewing
Party shall be provided adequate opportunity to inspect the documents where made available for review;
(2) a Reviewing Party may inspect the documents on site with the ability to request copies, at cost, of


5 See 47 C.F.R. §§ 0.459(h), 0.461.
3

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some or all of the documents; or (3) a Reviewing Party 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 Reviewing Party
plans on requesting a complete set of documents, it is encouraged to make such a request at the time it
submits the Acknowledgment. All copies of documents that are removed from the Submitting Party’s
office must be returned or destroyed in accordance with the terms of paragraph 17.
7. Use of Confidential Information. Persons obtaining access to Confidential Information
(including Stamped Confidential Documents) under this Protective Order shall use the information solely
for the preparation and conduct of this proceeding before the Commission and any subsequent 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 Confidential
Documents or Confidential Information in its decision in this proceeding, it will do so by redacting any
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 Confidential Information
under this Protective Order.
8. Permissible Disclosure. A Reviewing Party may discuss and share the contents of the
Stamped Confidential Documents and Confidential Information with another Reviewing Party and with
the Commission and its staff. A Submitting Party’s Stamped Confidential Documents and Confidential
Information may also be disclosed to employees and Counsel of the Submitting Party. Subject to the
requirements of paragraph 5, a Reviewing Party may disclose Stamped Confidential Documents and
Confidential Information to: (1) paralegals or other employees of such Reviewing Party assisting them 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 documents connected with this proceeding.
9. Filings with the Commission. A Reviewing Party or a Submitting Party may, in any
document that it files in this proceeding subsequent to the date of this Protective Order, disclose
Confidential Information only if it complies with the following procedure. The party shall submit to the
Secretary’s Office one copy of the filing containing Confidential Information (the “Confidential Filing”),
one copy of the filing in redacted form, i.e., containing no Confidential Information (the “Redacted
Confidential Filing”), and an accompanying cover letter. The cover or first page of the Confidential
Filing and each page of the Confidential Filing that contains or discloses Confidential Information must
be clearly marked “CONFIDENTIAL INFORMATION – SUBJECT TO PROTECTIVE ORDER IN WC
DOCKET NO. 09-197, WT DOCKET NO. 10-208 BEFORE THE FEDERAL COMMUNICATIONS
COMMISSION.” The cover letter shall also contain this legend. The Confidential Filing shall be made
under seal, and will not be placed in the Commission’s public file. Copies of the Redacted Confidential
Document and the 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. Each Redacted Confidential Filing shall have
the same pagination as the Confidential Filing from which it is derived. To the extent that any page of the
Confidential Filing contains both Confidential Information and non-confidential information, only the
Confidential Information may be redacted, and the page of the unredacted Confidential Filing shall
clearly distinguish the Confidential Information from the non-confidential information. Two copies of
each Confidential Filing and the accompanying cover letter must be delivered as directed by Commission
staff to Denise Linn, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau,
Federal Communications Commission, 445 12th Street, S.W., Portals I, Room 6503B, Washington, D.C.
20554, and one copy must be served on the relevant Submitting Party. Parties should not provide
4

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courtesy copies of pleadings containing Confidential Information to Commission staff unless the Bureau
so requests, and any such requested courtesy copies shall be submitted under seal.
10. Non-Disclosure of Stamped Confidential Documents. Except with the prior written consent
of the Submitting Party, or as provided under this Protective Order, neither a Stamped Confidential
Document nor any Confidential Information may be disclosed further.
11. Protection of Stamped Confidential Documents and Confidential Information. A Reviewing
party shall have the obligation to ensure that access to Stamped Confidential Documents and Confidential
Information is strictly limited as prescribed in this Protective Order. A Reviewing Party shall further
have the obligation to ensure that Stamped Confidential Documents and Confidential Information are
used only as provided in this Protective Order.
12. Requests for Additional Disclosure. If any person requests disclosure of Confidential
Information outside the terms of this Protective Order, such a request will be treated in accordance with
sections 0.442 and 0.461 of the Commission’s rules.
13. Client Consultation. Nothing in this Protective Order shall prevent or otherwise restrict
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 Confidential Documents or Confidential Information; provided, however, that in
rendering such advice and otherwise communicating with such client, Counsel shall not disclose Stamped
Confidential Documents or Confidential Information.
14. No Waiver of Confidentiality. Disclosure of 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 Confidential Information. Reviewing Parties, by viewing this material,
agree: (1) not to assert any such waiver; (2) not to use Confidential Information to seek disclosure in any
other proceeding; and (3) that accidental disclosure of 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.
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 Stamped Confidential Documents or
Confidential Information that a party has obtained under terms of this 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 Confidential Document or Confidential Information.
16. Violations of Protective Order. Should a Reviewing Party violate any of the terms of this
Protective Order, such Reviewing Party shall immediately convey that fact to the Commission and to the
Submitting Party. Further, should such violation consist of improper disclosure of Confidential
Information, the violating 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 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 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 Confidential
Information in a manner not authorized by this Protective Order.
17. Termination of Proceeding. The provisions of this 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, Reviewing Parties shall destroy or return to the Submitting Party
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Stamped Confidential Documents and all copies of the same. No material whatsoever derived from
Stamped Confidential Documents may be retained by any person having access thereto, except that
Counsel may retain, under the continuing strictures of this 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 Confidential
Information, and one copy of orders issued by the Commission or Bureau that contain Confidential
Information. All Counsel shall certify compliance with these terms and shall deliver such certification to
Counsel for the Submitting Party not more than three weeks after conclusion of this proceeding. The
provisions of this paragraph regarding retention of Stamped Confidential Documents and copies of the
same and Confidential Information shall not be construed to apply to the Commission or its staff.
18. Authority. This Order is issued pursuant to sections 4(i), 214 and 254 of the Communications
Act of 1934, as amended; 47 U.S.C. §§ 154(i), 214 and 254; 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
Jane Jackson
Associate Chief, Wireless Telecommunications Bureau
Carol Mattey
Deputy Chief, Wireline Competition Bureau
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DA 13-81

APPENDIX A

Acknowledgment of Confidentiality

WC Docket No. 09-197, WT Docket No. 10-208

I hereby acknowledge that I have received and read a copy of the foregoing Protective Order in
the above-captioned proceeding, and I understand it.
I agree that I am bound by the Protective Order and that I shall not disclose or use Stamped
Confidential Documents or Confidential Information except as allowed by the Protective Order.
I acknowledge that a violation of the Protective Order is a violation of an order of the Federal
Communications Commission.
I certify that I am not involved in Competitive Decision-Making.
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
advocacy organization), I acknowledge specifically that my access to any information obtained as a result
of the Protective Order is due solely to my capacity as Counsel or Outside Consultant to a party or as a
person described in paragraph 8 of the foregoing Protective Order and agree that I will not use such
information in any other capacity.
I acknowledge that it is my obligation to ensure that Stamped Confidential Documents are not
duplicated except as specifically permitted by the terms of the Protective Order.
I certify that I have verified that there are in place procedures at my firm or office to prevent
unauthorized disclosure of Stamped Confidential Documents and Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Protective Order.
Executed this ____ day of _____________, ______.


_________________________________

[Name]

[Position]

[Firm]
[Telephone]
7

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