Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Media Bureau Clarifies Benchmark Condition, Issues Protective Order

Download Options

Released: December 4, 2012

Federal Communications Commission

DA 12-1950

Before the

Federal Communications Commission

Washington, D.C. 20554

In the matter of
)
)

Applications of Comcast Corporation,
)
General Electric Company
)
MB Docket No. 10-56
And NBC Universal, Inc.
)
)

For Consent to Assign Licenses and
)
Transfer Control of Licensees
)
)

Order

Adopted: December 4, 2012

Released: December 4, 2012

By the Chief, Media Bureau:

I. Introduction

1.
In this Order, we grant in part and deny in part the request of Comcast Corporation and
NBCUniversal Media, LLC (“C-NBCU”) for clarification concerning the “Benchmark Condition”
contained in the Comcast-NBC Universal Order (“C-NBCU Order”).1 In a letter filed with the Media
Bureau (the “Bureau”) in the above-referenced proceeding (“Clarification Request Letter”),2 C-NBCU
asks the Bureau to clarify that Online Video Distributors (“OVDs”) seeking access to programming of a
C-NBCU Programmer3 pursuant to the Benchmark Condition must disclose to the C-NBCU Programmer
the relevant “peer programming deal” that the C-NBCU Programmer is required to benchmark.4 C-
NBCU further requests that the Bureau issue a protective order in MB Docket No. 10-56, under which
OVDs would disclose peer programming agreements to certain authorized in-house business executives


1 Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to Assign
Licenses and Transfer Control of Licensees,
Memorandum Opinion and Order, MB Docket No. 10-56, 26 FCC Rcd
4238, 4360, App. A., § IV, A.2.b (2011).
2 Letter from David P. Murray, Counsel for C-NBCU, to William T. Lake, Chief, Media Bureau, FCC, MB Docket
No. 10-56 (February 17, 2012).
3 As defined in the C-NBCU Order and referenced in the Benchmark Condition, “C-NBCU Programmer” means
“Comcast, C-NBCU, their affiliates and any entity for which Comcast or C-NBCU manages or controls the
licensing of Video Programming and/or any local broadcast television station on whose behalf Comcast or
[NBCUniversal, Media LLC] negotiates retransmission consent.” C-NBCU Order, 26 FCC Rcd at 4356, App. A., §
I. The Clarification Request Letter specifcally requests that peer programming agreements be made available to
representatives of “NBCUniversal.” See Clarification Request Letter at 1. In this Order, we use the term “C-NBCU
Programmer,” as defined in the C-NBCU Order and used in the Benchmark Condition, in responding to C-NBCU’s
request.
4 As defined in the C-NBCU Order, an OVD means “any entity that provides Video Programming by means of . . .
the Internet or other IP-based transmission path provided by a Person other than the OVD. An OVD does not
include an MVPD inside its MVPD footprint or an MVPD to the extent it is offering Online Video Programming as
a component of an MVPD subscription to customers whose homes are inside its MVPD footprint.” Id. at 4357,
App. A., § I.

Federal Communications Commission

DA 12-1950

and in-house counsel at the C-NBCU Programmer who agree to the confidentiality restrictions and
conditions set forth in the proposed protective order.5
2.
We clarify that OVDs that invoke the Benchmark Condition must disclose the terms of
comparable peer programming agreements to the extent necessary to enable C-NBCU to carry out its
obligations under the condition. We find, however, that disclosure to a C-NBCU Programmer’s in-house
personnel, as C-NBCU requests, is not necessary to ensure compliance with the Benchmark Condition,
could cause competitive harm to both OVDs and third-party programmers, and is inconsistent with the
Model Protective Order appended to the C-NBCU Order as well as protective orders typically adopted by
the Commission. For the reasons discussed below, we instead adopt a Third Protective Order for
Compliance in this proceeding (“Third Protective Order”), which provides only a C-NBCU Programmer’s
Outside Counsel of Record and Outside Experts, as those terms are defined in the Third Protective Order,
with access to peer programming deals disclosed pursuant to the Benchmark Condition.

II. Background

3.
In response to concerns that post-merger C-NBCU could have incentives to hinder
competition in the growing OVD market, the Commission adopted conditions in the C-NBCU Order
designed to ensure that OVDs would have access to C-NBCU programming.6 Specifically, both the
MVPD Price Condition and the Benchmark Condition require a C-NBCU Programmer to provide OVDs
with access to its programming.7 The Benchmark Condition requires a C-NBCU Programmer to provide
a requesting OVD with Online Video Programming if the OVD has an agreement for Comparable
Programming with a peer programmer.8 The programming that a C-NBCU Programmer is required to
provide to the OVD must be on terms that are “economic[ally] equivalent” to the terms the OVD has
received from the peer programmer.9 The Benchmark Condition further specifies that “[t]he economic
equivalent should take account of . . . any difference in the value of the programming being sought
relative to the Comparable Programming” and that “economic equivalent terms and conditions shall
consist of the same basic Economic Model(s) for the Comparable Programming.”10 If negotiations fail to
produce a mutually acceptable agreement for the provision of Online Video Programming, the OVD may
initiate an arbitration proceeding in accordance with the procedures in the C-NBCU Order.11
4.
In its Clarification Request Letter, C-NBCU states that OVDs that have sought access to
programming of a C-NBCU Programmer under the Benchmark Condition have not disclosed the relevant
peer programming agreements to the C-NBCU Programmer because those agreements contain


5 Clarification Request Letter at 2.
6 Id. at 4272-73, ¶¶ 86-87.
7 See id. at 4359-60, App. A., § IV, A.2.a & b.
8 Online Video Programming is defined in the C-NBCU Order as “Video Programming that any C-NBCU
Programmer has the right to enable others (including but not limited to other MVPDs and OVDs, but not including
solely Comcast or C-NBCU) to display by means of the (i) Internet or (ii) other IP-based transmission path provided
by a Person other than the OVD.” Id. at 4357, App. A., § I. Comparable Programming is defined, in part, as “Video
Programming that is reasonably similar in kind and amount.” Factors to be considered in determining whether
programming is considered Comparable Programming include, “(i) the number of channels and/or shows; and (ii)
the similarity of the value of the Video Programming, as evidenced by ratings, affiliate fees and/or advertising
revenues and the time elapsed since the programming was first distributed.” Id. at 4356, App. A., § I.
9 Id. at 4360, App. A., § IV, A.2.b (ii).
10 Id.
11 Id. at 4360, App. A., § IV, A.3.
2

Federal Communications Commission

DA 12-1950

confidentiality provisions that prohibit such disclosure.12 C-NBCU maintains that, in order to provide
programming to a requesting OVD in accordance with the Benchmark Condition, a C-NBCU
Programmer needs to review a full and unredacted copy of the comparable peer programming agreement
that creates the basis for the OVD’s request.13 C-NBCU specifically requests that the Bureau issue a
public notice clarifying that, going forward, an OVD invoking the Benchmark Condition must disclose
the underlying peer agreement to the C-NBCU Programmer’s authorized representatives.14
5.
C-NBCU also proposes that the Bureau issue a protective order under which OVDs
would submit peer programming deals to the C-NBCU Programmer’s authorized representatives, subject
to certain confidentiality restrictions and conditions. The proposed protective order submitted with C-
NBCU’s Clarification Request Letter (“C-NBCU Proposed Protective Order”), suggests a process and
timetable for: (1) an OVD to provide the C-NBCU Programmer with confidential notice of its intent to
invoke the Benchmark Condition; (2) the C-NBCU Programmer’s representatives to execute and serve
Acknowledgements of Confidentiality on the OVD and the Bureau; and (3) the disclosure of the peer deal
by the OVD to the C-NBCU Programmer’s authorized representatives. C-NBCU’s proposed protective
order would permit access to a peer deal disclosed pursuant to the Benchmark Condition to the C-NBCU
Programmer’s “(1) outside counsel, (2) outside experts, (3) in-house counsel, and (4) a limited number of
essential business unit(s) responsible for negotiating the licensing of content via particular business
models that are implicated by a Benchmark request.”15
6.
C-NBCU further explains that, under its proposal, for each business unit of a C-NBCU
Programmer entitled to access to the peer agreement, the number of essential business persons likely
would be three and would include the senior executive overseeing the unit, a mid-level executive, and the
head of the division who would approve the deal.16 In-house counsel at the C-NBCU Programmer would
designate these essential business persons on a case-by-case basis.17 C-NBCU states that such business
persons would be authorized to use the information in the peer agreement solely for purposes of
responding to a specific OVD’s request. C-NBCU’s Proposed Protective Order also provides that the 90-
day negotiation period for Online Video Programming requests under the Benchmark Condition would
begin on the C-NBCU Programmer’s receipt of the OVD’s peer deal.18
7.
On March 13, 2012, the Bureau released a Public Notice seeking comment on C-NBCU’s
Clarification Request Letter and the C-NBCU Proposed Protective Order.19 As described in greater detail


12 Clarification Request Letter at 1.
13 Clarification Request Letter at 1-3.
14 Id. at 3.
15 Id. at 3-4.
16 Id. at 4.
17 Id.
18 Id. at 3.
19 Media Bureau Seeks Comment on Whether Comcast-NBCU Benchmark Condition Needs Clarification and
Whether a Proposed Third Protective Order for Compliance Should be Adopted
, MB Docket No. 10-56, Public
Notice, 27 FCC Rcd 2527 (MB, 2012) at 4 (“Public Notice”). The Bureau established March 27, 2012 as the
deadline for filing comments in response to the Public Notice and April 3, 2012 as the deadline for filing reply
comments. The filing deadlines were later extended to April 3, 2012 for comments and April 17, 2012 for reply
comments. Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent
to Assign Licenses and Transfer of Control of Licenses,
MB Docket No. 10-56, Extension Order, 27 FCC Rcd 2869
(MB, 2012).
3

Federal Communications Commission

DA 12-1950

below, commenters object to C-NBCU’s requested access to peer deals. 20 Generally, commenters claim
that the clarification C-NBCU requests is unnecessary and that grant of the request would cause
competitive harm to content providers and online video providers.21 Some commenters also argue that
any mandatory disclosure of peer deals to C-NBCU should occur only during arbitration proceedings and
should be governed by the terms of the Model Protective Order appended to the C-NBCU Order.22
Commenters also argue that, at most, the Bureau should limit any required disclosure of peer deals
outside of the context of an arbitration proceeding to C-NBCU’s outside counsel and outside consultants,
which would be consistent with the terms of the Model Protective Order.23 In addition, some commenters
argue that C-NBCU’s request for clarification cannot be granted at the Bureau level because C-NBCU is
requesting a substantive change to the C-NBCU Order that cannot be addressed on delegated authority.24

III. Discussion

8.
We find that the Benchmark Condition implicitly requires an OVD seeking access to a C-
NBCU Programmer’s programming to disclose the terms of the peer programming agreement that forms
the basis for its claim that it qualifies for the condition and is entitled to terms that are economically
equivalent to those in a peer agreement. Accordingly, we clarify that OVDs invoking the Benchmark
Condition must disclose the relevant peer agreement upon the C-NBCU Programmer’s request. However,
the Bureau denies C-NBCU’s request to require OVDs to disclose such agreements to a C-NBCU
Programmer’s in-house business executives and in-house counsel. Instead, we conclude that OVDs
seeking access to a C-NBCU Programmer’s programming under the Benchmark Condition must disclose
relevant peer programming agreements only to Outside Experts and Outside Counsel of Record in
accordance with the Third Protective Order adopted contemporaneously with and attached to this Order.
Finally, we find that this clarification is within the delegated authority of the Bureau.

A. Clarification That Disclosure of Peer Programming Agreements Is Required

9.
In its Clarification Request Letter, C-NBCU claims that the Benchmark Condition
“necessarily require[s] that an OVD disclose the peer deal to [the C-NBCU Programmer] so that it can
respond with a proposal for comparable programming.”25 C-NBCU contends that, without the


20
Comments in response to the Public Notice were filed by CBS Corporation, News Corporation, Sony Pictures
Entertainment, Inc., Time Warner Inc., Viacom Inc., and The Walt Disney Company (collectively, the “Content
Companies”); Dish Network L.L.C. (“Dish Network”); and Public Knowledge. In addition, Project Concord, Inc.
(“PCI”) and the Content Companies submitted letters in response to the Clarification Request Letter in MB Docket
No. 10-56. See Letter from Monica Desai, Counsel for PCI, to William T. Lake, Chief, Media Bureau, FCC, MB
Docket No. 10-56 (February 23, 2012) (“PCI Feb. 23 Letter”); Letter from Monica S. Desai, Counsel for PCI, to
Marlene H. Dortch, Secretary, FCC, MB Docket No. 10-56, at 1-2 (March 15, 2012) (“PCI Mar. 15 Letter”); Letter
from Content Companies, to William T. Lake, Chief, Media Bureau, FCC, MB Docket No. 10-56 (February 27,
2012). The Bureau considers these letters as part of the record in this proceeding. C-NBCU was the only party to
file Reply Comments in response to the Public Notice. Reply Comments of Comcast Corporation and
NBCUniversal Media, LLC, MB Docket No. 10-56 (April 17, 2012).
21 See Content Companies Comments at 2-5; Dish Network Comments at 1; Public Knowledge Comments at 2-5;
PCI Mar. 15 Letter.
22 See Content Companies Comments at 18-20; Public Knowledge Comments at 4; PCI Mar. 15 Letter. The C-
NBCU Order
includes as an appendix a Model Protective Order, which is designed for the disclosure of confidential
information to parties to arbitration proceedings and which expressly limits such disclosure to parties’ outside
counsel and outside experts. C-NBCU Order, 26 FCC Rcd at 4419, App. E.
23 See Dish Network Comments at 2-4; PCI Feb. 23 Letter.
24 See Content Companies Comments at 6; PCI Feb. 23 Letter at 2; Dish Network Comments at 4.
25 Clarification Request Letter at 2.
4

Federal Communications Commission

DA 12-1950

opportunity to review an OVD’s peer deal, a C-NBCU Programmer will be unable to determine either
whether the online video programming an OVD is seeking is comparable to that in the peer agreement or
whether the terms the OVD proposes are economically equivalent to those in the existing agreement.26 C-
NBCU further claims that “[t]here was not, and could not have been, any contemplation that [a C-NBCU
Programmer] would simply have to take the word of the OVD on such critical matters.”27 According to
C-NBCU, the continued withholding of peer programming deals from C-NBCU Programmers will
frustrate the negotiation process and increase the likelihood that negotiations arising from the Benchmark
Condition will end up in arbitration, causing delay and increasing the burdens and costs for both parties.28
10.
Several commenters disagree with C-NBCU’s contention that the Benchmark Condition
implies that OVDs triggering the condition necessarily must disclose their peer programming deals. The
Content Companies claim that, if the Commission had intended for a C-NBCU Programmer to have
access to peer programming deals in connection with the Benchmark Condition, it would have stated
expressly in the C-NBCU Order that such access is required.29 The Content Companies further contend
that requiring disclosure of peer agreements during negotiations arising from the Benchmark Condition
would upend the arbitration process built into the C-NBCU Order. Because the conditions in that order
governing the arbitration process provide for the potential disclosure of confidential programming
agreements,30 the Content Companies argue, compulsory disclosure of peer agreements prior to
arbitration would render meaningless the “cautious, step-by-step” good faith negotiation and arbitration
approach the Commission envisioned.31 Public Knowledge similarly opposes any mandatory disclosure
of confidential peer agreements outside of the arbitration process set forth in the C-NBCU Order.32 On
the other hand, PCI, an OVD that has invoked the Benchmark Condition,33 and Dish Network both
maintain, for the reasons discussed below, that peer programming deals should be disclosed to a C-NBCU
Programmer prior to arbitration if such disclosure is governed by the protections afforded in the Model
Protective Order appended to the C-NBCU Order.34
11.
Under the Benchmark Condition, an OVD seeking access to the programming of a C-
NBCU Programmer must disclose information establishing that it has an agreement providing the OVD
with access to Comparable Programming. The Benchmark Condition further provides that a C-NBCU
Programmer must make an economically equivalent proposal based on the “price, terms and conditions


26 Id. at 2-3.
27 Id. at 3.
28 Id. at 2.
29 Content Companies Comments at 8-9.
30 Content Companies Comments at 19; C-NBCU Order, 26 FCC Rcd at 4370, App. A., §VIII, 4.
31 Content Companies Comments at 19-20. Dish Network argues that the C-NBCU request is overbroad because it
extends to confidential information beyond what is necessary for a C-NBCU Programmer to review in order to
comply with the Benchmark Condition. Dish Network Comments at 2.
32 Public Knowledge Comments at 3.
33 See Media Bureau Announces Decision Requiring NBCUniversal Media, LLC to Provide First-Year Films to
Startup Online Video Distributor Project Concord, Inc.
, MB Docket No. 10-56, Public Notice, DA 12-1829 (MB,
rel. Nov. 13, 2012).
34 PCI Feb. 23 Letter at 1-2. While PCI appears willing to disclose peer programming deals to C-NBCU outside
counsel and outside consultants in its February 23, 2012 letter to the Media Bureau, PCI subsequently argues that
lack of access to peer programming deals would not impair a C-NBCU Programmer during negotiations arising
from the Benchmark Condition and that it “defies common sense and logic” to conclude that the Commission
intended in the C-NBCU Order to require OVDs to provide C-NBCU with an “up-front look” at peer programming
deals. See PCI Mar. 15 Letter at 1-2.
5

Federal Communications Commission

DA 12-1950

the OVD paid for the Comparable Programming” and that “takes into account (among other things) any
difference in the value of the programming being sought relative to the Comparable Programming.”35
Disclosure of the terms of the relevant peer programming agreement will allow an OVD to establish that
it has access to Comparable Programming and will allow a C-NBCU Programmer a reasonable
opportunity to respond to an OVD request in a manner that will comply with the Benchmark Condition.
Accordingly, we grant C-NBCU’s request, in part, by clarifying that an OVD that invokes the Benchmark
Condition must disclose the underlying peer deal to the C-NBCU Programmer upon its request.
12.
As commenters explain, the confidentiality provisions in programming agreements
between OVDs and content providers often contain provisions that preclude disclosure to third parties.36
Accordingly, we clarify that it is the intent of this Order to override any such confidentiality or non-
disclosure provisions or agreements. Notwithstanding any contractual provisions that otherwise would
preclude disclosure of a peer agreement to a C-NBCU Programmer’s representatives, the C-NBCU
Programmer will have the right to receive from an OVD that invokes the Benchmark Condition the
operative peer agreements, pursuant to the specifications in this Order and the protections afforded in the
Third Protective Order. Although an OVD is required to disclose relevant peer agreements to the
representatives of a C-NBCU Programmer, this disclosure requirement is not intended to alter an OVD’s
right to pursue arbitration if negotiations under the Benchmark Condition fail to produce a “mutually
acceptable set of price, terms and conditions for Online Video Programming.”37 In addition, while we
recognize the potential for either a C-NBCU Programmer or an OVD to act in bad faith in negotiations
arising from the Benchmark Condition, the arbitration rights set forth in the condition are intended to
provide adequate recourse against any such bad-faith behavior.38 We remind both C-NBCU and OVDs
that, in the event parties proceed to arbitration, an arbitrator has the authority to assess costs and expenses,
including reasonable attorney fees, against a party if the arbitrator finds that its conduct has been
unreasonable during the course of arbitration.39

B. Third Protective Order for Disclosure of Peer Programming Agreements

13.
As discussed above, C-NBCU’s Proposed Protective Order requires that peer
programming deals be disclosed to a limited number of a C-NBCU Programmer’s business executives
and in-house counsel, as well as outside counsel and outside experts, when the Benchmark Condition is
triggered. C-NBCU argues that this level of disclosure, including disclosure to in-house business
executives involved in competitive decision-making, is necessary to “facilitate effective negotiations and
fashion appropriate agreements between [a C-NBCU Programmer] and an OVD under the relatively short
time periods for negotiations set forth in the [C-NBCU] Order – and without resort to arbitration if
avoidable.”40 It further claims that the conditions and restrictions contained in C-NBCU’s Proposed
Protective Order would ensure that use of any confidential information disclosed would be “strictly
limited to the relevant proceeding” and avers that its “in-house counsel and business executives are well-
versed in complying with” the obligations that would be imposed via the protective order.41


35 C-NBCU Order, 26 FCC Rcd at 4360, App. A., § IV, A.2.b.
36 See PCI Feb. 23 Letter at 1; see also Clarification Request Letter at 1 (“OVDs suggest that they cannot share their
peer deals due to confidentiality restrictions in those deals.”).
37 C-NBCU Order, 26 FCC Rcd at 4360, App. A, § IV, A.3. An OVD seeking to initiate arbitration must follow the
procedures set forth in the C-NBCU Order. Id. at 4364, App. A, § VII, A.
38 Id. at 4360, App. A, § IV, A.3.
39 Id. at 4367, App. A, § VII, B.10.
40 Clarification Request Letter at 4-5.
41 Clarification Request Letter at 5.
6

Federal Communications Commission

DA 12-1950

14.
Commenters in this proceeding object to the disclosure of peer programming agreements
to the in-house personnel of C-NBCU Programmers, arguing that such disclosure would inflict
competitive harms on both peer programmers and OVDs. For example, the Content Companies claim
that programming contracts contain their “most sensitive business data and information” and contend that
having access to the confidential terms of peer programming agreements would give a C-NBCU
Programmer an “enormous advantage” over third-party programmers.42 According to the Content
Companies, C-NBCU, in its capacity as an online programming distributor, “would be able to use its
knowledge of the terms of third parties’ agreements to wield extraordinary leverage against other content
producers.”43 At the same time, the Content Companies further argue, the C-NBCU Programmer “would
glean insight into what competing content companies are charging OVDs, thereby gaining a strategic
advantage of its own.”44 The Content Companies also claim that programmers may be reluctant to license
programming to OVDs if there is a possibility that the resulting agreement would be disclosed via the
Benchmark Condition.45 In addition, the Content Companies allege that the disclosure of peer
programming agreements would frustrate an OVD’s ability to negotiate successfully with a C-NBCU
Programmer, which would “simply select the most advantageous terms for itself” if it were given access
to all of the terms and conditions of the OVD’s other programming deals.46
15.
Public Knowledge similarly argues that a C-NBCU Programmer could use the
information gleaned from peer programming agreements to “cement its market dominance” and warns
that OVDs that disclose peer programming agreements may be shut out of future negotiations with
programmers or be sued.47 Dish Network and PCI also oppose the mandatory disclosure of peer
programming agreements to a C-NBCU Programmer’s in-house personnel. They argue that such
disclosure would be overbroad, harmful to competition, and contrary to the intent of and framework set
forth in the Benchmark Condition.48

16.
Several commenters discuss the relevance of the Model Protective Order, which was
appended to the C-NBCU Order, to C-NBCU’s Clarification Request Letter.49 The Model Protective
Order provides a model for the disclosure of confidential documents, which can be employed in
arbitrations initiated under various conditions in the C-NBCU Order at an arbitrator’s discretion. Unlike
C-NBCU’s Proposed Protective Order, the Model Protective Order limits access to confidential
documents to outside counsel of record and outside experts.50 Dish Network and PCI argue that terms
consistent with the Model Protective Order, and not C-NBCU’s Proposed Protective Order, should govern
the disclosure of peer programming deals under the Benchmark Condition.51 Other commenters, while


42 Content Companies Comments at 10-12.
43 Content Companies Comments at 11-12.
44 Content Companies Comments at 12.
45 Id. at 12.
46 Content Companies Comments at 12.
47 Public Knowledge Comments at 4.
48 See Dish Network Comments at 1-4; PCI Mar. 15 Letter at 2-4.
49 C-NBCU Order, 26 FCC Rcd at 4419, App. E; see also id. at 4370, App. A., §VIII, 4.
50 “Outside Counsel of Record” and “Outside Experts” are defined terms in the Model Protective Order. C-NBCU
Order
, 26 FCC Rcd at 4419, App. E., § 2.b (i) & (ii).
51 Dish Network Comments at 2; PCI Feb. 23 Letter at 2 (urging the Bureau to issue a protective order consistent
with the terms of the Model Protective Order to help facilitate the disclosure of PCI’s peer agreements to a C-NBCU
Programmer).
7

Federal Communications Commission

DA 12-1950

supporting the use of the Model Protective Order in arbitration proceedings, object to its use prior to
arbitration in negotiations arising from the Benchmark Condition.52 Commenters also contend that the
inclusion of the Model Protective Order in the C-NBCU Order demonstrates that the Commission never
intended to permit a C-NBCU Programmer’s in-house business executives to have access to peer
programming agreements during negotiations triggered by the Benchmark Condition. In this regard, Dish
Network claims that, if the Commission had believed it necessary to permit a C-NBCU Programmer’s
business executives to review the peer agreements prior to the start of arbitration, “it would have been
pointless to adopt a more restrictive Model Protective Order for use after the arbitration has
commenced.”53 The Content Companies similarly maintain that C-NBCU’s Proposed Protective Order
would undermine the restrictive protections contained in the Model Protective Order.54
17.
In its reply comments, C-NBCU responds that restrictions such as those contained in the
Model Protective Order are inappropriate in the negotiation context. C-NBCU argues that it must rely on
internal business executives’ knowledge of available programming in order to negotiate a contract within
the expedited framework set forth in the Benchmark Condition.55 C-NBCU adds that business executives
ultimately must approve a programming deal negotiated pursuant to the Benchmark Condition and that
neither outside counsel nor an outside expert can replace an executive at a C-NBCU Programmer in
making the judgments necessary to shape an agreement that is economically equivalent under the
condition.56 Based on these claims, C-NBCU reasserts that it cannot comply with the Benchmark
Condition if its business executives do not have access to underlying peer programming deals.57
18.
Consistent with the terms of the Model Protective Order, we adopt a Third Protective
Order for use in negotiations triggered by the Benchmark Condition that limits access to peer
programming agreements to Outside Counsel of Record and Outside Experts of a C-NBCU Programmer,
as those terms are defined in the Third Protective Order. While we find that the disclosure of peer
programming agreement terms is necessary to establish that an OVD has access to Comparable
Programming and to enable a C-NBCU Programmer to offer terms that are economically equivalent to the
terms of a peer agreement, we reject C-NBCU’s request to require such disclosure to a C-NBCU
Programmer’s internal personnel. We agree with commenters who argue that allowing a C-NBCU
Programmer’s business executives and in-house counsel access to the confidential terms of peer
programming agreements has the potential to cause competitive harm to both OVDs and peer
programmers. In particular, we agree that providing the access C-NBCU requests would give a C-NBCU
Programmer’s personnel access to competitively sensitive information that could provide them with an
unfair advantage in the programming marketplace. Moreover, we are not persuaded by C-NBCU’s
arguments that its internal business executives must have access to the terms of peer programming
agreements in order to formulate an offer on terms that comply with the requirements of the Benchmark
Condition. We find that providing access to Outside Counsel and Outside Experts will make it more
feasible for a C-NBCU Programmer to confirm, through outside advisors, that an OVD’s request for
programming is consistent with the terms of an underlying peer deal and to respond with an offer that is
based on economically equivalent terms and conditions


52 See Public Knowledge Comments at 3; Content Companies Comments at 9.
53 Dish Network Comments at 4 (emphasis in original).
54 Content Companies Comments at 21.
55 C-NBCU Reply Comments at 6.
56 Id. at 7.
57 Id. at 10.
8

Federal Communications Commission

DA 12-1950

19.
At the same time, we believe that limiting access to Outside Experts and Outside Counsel
mitigates the competitive harms that could result from the disclosure of confidential and competitively
sensitive information to a C-NBCU Programmer’s internal executives. As specified in the Third
Protective Order, Outside Experts and Outside Counsel permitted access to peer programming deals may
not be involved in C-NBCU’s “competitive decision-making,” meaning that the Outside Expert’s or
Outside Counsel’s relationship with C-NBCU may not “involve advice about or participation in the
business decisions of any C-NBCU Programmer . . . nor the analysis underlying the business decisions.”58
In addition, the Third Protective Order provides that Outside Counsel and Outside Experts are prohibited
from disclosing confidential information contained in the peer programming agreements.59 They may not
disclose to a C-NBCU Programmer’s business executives any Highly Confidential Information (as such
term is defined in the Third Protective Order), including, but not limited to, specific price terms.
20.
The Bureau agrees with commenters who argue that it would not be reasonable for it to
provide a C-NBCU Programmer with greater access to the information in peer programming agreements
during negotiations arising under the Benchmark Condition than would be available to it under the Model
Protective Order if an OVD invokes its right to proceed to arbitration. Moreover, limiting access to
Outside Counsel and Outside Experts is consistent with Commission precedent in the context of the
program access and program carriage disputes in which parties need access to confidential information in
order to substantiate their claims and defenses.60 Such limitations also are consistent with typical
Commission protective orders used in other contexts, including the Model Protective Order attached to
the C-NBCU Order.
21.
If a C-NBCU Programmer will require access to a peer programming agreement in order
to provide access to its programming pursuant to the Benchmark Condition, it must so inform the


58 Applications of Comcast Corporation, General Electric Company, and NBC Universal, Inc. for Consent to Assign
Licenses and Transfer Control of Licensees
, MB Docket No. 10-56, Third Protective Order for Compliance,
DA 12-1950, App. A, ¶ 2(k), (l) (rel. December 4, 2012) (“Third Protective Order”).
59 Third Protective Order at 4, ¶ 9.
60 See Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order
and Notice of Proposed Rulemaking, MB Docket No. 07-294, 22 FCC Rcd 17791, 17893 (2010) (“Program Access
Order”) (adopting a Protective Order under which discovery in program access complaints is submitted to parties
and which prohibits disclosure to “any persons in a position to use the Confidential Information for competitive
commercial or business purposes”); see also id. at 17896; EchoStar Satellite LLC v. Home Box Office, Inc., Order,
DA 06-2481, 21 FCC Rcd 14197 (2006); WaveDvision Holdings LLC, et al., v. Comcast Corp., et al., Order, DA
10-381, 25 FCC Rcd 2231 (2010); Herring Broadcasting, Inc. D/B/A WealthTV v. Time Warner Cable, Inc., Order,
MB Docket No. 08-214, 24 FCC Rcd 346 (2009) (noting that the parties used, with some modifications, the
Protective Order adopted in the Program Access Order.)
The Content Companies also claim that the Trade Secrets Act prohibits the Bureau from requiring the disclosure of
the confidential agreements requested by C-NBCU. Id. at 15-18. C-NBCU responds that the Trade Secrets Act
merely prohibits “unauthorized” disclosures of confidential material and that the “Content Companies wrongly
argue that there is no FCC regulation authorizing the disclosure of confidential information” in connection with the
Benchmark Condition. C-NBCU Reply Comments at 13. C-NBCU further argues that such disclosure is authorized
under Section 310(d) of the Communications Act, which requires the Commission to review transfers and
assignments of FCC licenses, and its authority to impose remedial conditions to address potential transaction-related
harms. C-NBCU Reply Comments at 13-14 (citing 47 U.S.C. §§ 310(d), 303(r)). As the Content Companies
expressly acknowledge in their comments, permitting the disclosure of confidential information to outside counsel
and experts, when necessary, is consistent with “substantial [FCC] precedent.” Content Companies Comments at
22. We further note that the confidentiality protections afforded in the Third Protective Order adopted with this
Order are fully consistent with those in the Model Protective Order, the use of which the Content Companies support
in the context of arbitration proceedings. See id. at 21 (noting “restrictive protections” imposed in Model Protective
Order); see also id. at 19.
9

Federal Communications Commission

DA 12-1950

requesting OVD in writing within seven (7) days of receipt of a formal request for access to programming
under the condition. For each negotiation arising under the Benchmark Condition in which access to a
peer programming agreement is sought, authorized representatives of a C-NBCU Programmer must
execute the Acknowledgement of Confidentiality attached to the Third Protective Order, file it in MB
Docket No. 10-56, and serve it upon the OVD and the other parties to the peer programming agreement.61

C. Clarification of the Benchmark Condition Is Within the Bureau’s Delegated Authority.

22.
The Content Companies urge the Bureau to dismiss the request for clarification as an
untimely petition for reconsideration of the C-NBCU Order.62 Specifically, the Content Companies
contend that the C-NBCU request for clarification of the Benchmark Condition is akin to a petition for
reconsideration because C-NBCU is seeking substantive changes to the provisions adopted in the C-
NBCU Order
.63 They argue that a decision to grant C-NBCU’s request would go beyond the scope of the
C-NBCU Order and that the Bureau does not have the authority to take action that would modify a
decision issued by the full Commission.64 PCI and Dish Network also contend that grant of C-NBCU’s
request to permit a C-NBCU Programmer’s in-house personnel to have access to peer programming
agreements must be made by the full Commission.65
23.
In its reply comments, C-NBCU claims that it is not seeking to modify the C-NBCU
Order, but rather that it is seeking only to clarify a disclosure requirement that already is implicit in the
order.66 Therefore, C-NBCU argues, the Bureau, in granting its request, would not be acting ultra vires,
as the Content Companies contend.67 C-NBCU also acknowledges the Bureau’s delegated authority
under Commission rules and notes that, under this authority, the Bureau previously has issued two
protective orders in this proceeding as well as clarifications of merger conditions in other proceedings and
non-merger-related Commission rules and orders.68 C-NBCU further argues that the Bureau’s authority
under the C-NBCU Order to conduct the initial review of arbitration awards in disputes arising from the
Online Programming Conditions and other conditions supports C-NBCU’s conclusion that it would be
appropriate for the Bureau to provide clarification of disclosure requirements, confidential submissions,
and other aspects of the Benchmark Condition.69 Accordingly, C-NBCU rejects the arguments that its
request should be viewed as a petition for reconsideration and contends that the Bureau has authority to
clarify the Benchmark Condition and to issue an additional protective order.


61 The C-NBCU Order provides that an OVD may notify a C-NBCU Programmer that it intends to request
arbitration to determine the terms and conditions of a new programming agreement no more than 90 days after the
first time request for Online Video Programming. C-NBCU Order, 26 FCC Rcd at 4364, App. A., § VII, A.1.
These procedures for initiation of arbitration will continue to apply.
62 Content Companies Comments at 6.
63 Content Companies Comments at 7.
64 Id. at 8.
65 PCI Feb. 23 Letter at 2; see also id. (“The Bureau has authority to immediately issue a Protective Order that
mirrors the Commission-approved Model Protective Order.”); PCI Mar. 15 Letter at 4. Dish Network Comments at
4.
66 C-NBCU Reply Comments at 3.
67 C-NBCU Reply Comments at 4-5.
68 Id. at 4, Clarification Request Letter at 6-7, n.18 citing 47 C.F.R. § 0.283; Media Bureau Clarifies 2009 Biennial
Filing Requirements for Ownership Report (Form 323)
, Public Notice, 25 FCC Rcd 7986 (MB, 2010); Media
Bureau Clarifies Issues Concerning Franchise Authority Certification to Regulate Rates
, Public Notice, 24 FCC
Rcd 399 (MB, 2009).
69 Clarification Request Letter at 6 (citing C-NBCU Order, 26 FCC Rcd at 4369, App. A., § VII.E.1).
10

Federal Communications Commission

DA 12-1950

24.
The Bureau has authority to perform the duties delegated to it under Commission rules,
provided that a decision does not present a novel question of law, fact, or policy that cannot be resolved
under existing precedent or guidelines.70 We have concluded that disclosure of peer programming
agreements is implicit in the C-NBCU Order based on the express requirements the Commission adopted
in the Benchmark Condition. Furthermore, the Bureau’s decision to issue a protective order with the
same scope of access provided in the Model Protective Order comports with, rather than departs from, the
procedures set forth in the C-NBCU Order. Accordingly, we find that our clarification does not modify
the C-NBCU Order and that issuance of this clarification and the Third Protective Order is within our
delegated authority.

IV. CONCLUSION

25.
We clarify that OVDs that invoke the Benchmark Condition must disclose the terms of
peer programming agreements to a C-NBCU Programmer upon request and that the confidentiality
protections provided in the Model Protective Order attached to the C-NBCU Order extend to pre-
arbitration disclosures of peer agreement terms. Accordingly, we grant C-NBCU’s request for
clarification to this extent. We reject, however, C-NBCU’s request to allow certain internal business
executives and in-house counsel to have access to these agreements and any information contained
therein. Contemporaneously with this Order, we adopt a Third Protective Order for use in negotiations
triggered by the Benchmark Condition. The Third Protective Order restricts review of peer programming
deals and the information contained therein to Outside Counsel of Record and Outside Experts, as those
terms are defined in the Third Protective Order.

V. ORDERING CLAUSES

26.
Accordingly, having reviewed the request and the record in this proceeding,

IT IS

ORDERED

, 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), and authority delegated under Section 0.283 of the Commission’s rules, 47
C.F.R. § 0.283, that the above-captioned request filed by Comcast Corporation and NBCUniversal Media,
LLC

IS GRANTED IN PART

to the extent set forth above and otherwise

IS DENIED

.
27.

IT IS FURTHER ORDERED

that peer programming deal(s) that are the basis for an
OVD’s request for programming under the Benchmark Condition of the C-NBCU Order be disclosed
pursuant to the terms of the Third Protective Order adopted contemporaneously with and attached to this
Order.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau


70 47 C.F.R. §§ 0.61, 0.283.
11

Federal Communications Commission

DA 12-1950

APPENDIX A

12

Federal Communications Commission

DA 12-1950

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Applications of Comcast Corporation,
)
MB Docket No. 10-56
General Electric Company
)
and NBC Universal, Inc.
)
)

For Consent to Assign Licenses or
)
Transfer Control of Licensees
)

THIRD PROTECTIVE ORDER FOR COMPLIANCE

Adopted:

December 4, 2012


Released: December 4, 2012

By the Chief, Media Bureau:

1. This Third Protective Order for Compliance (“Third Protective Order”) is intended to protect trade
secrets and other commercially and competitively sensitive confidential information contained in
Protected Program Agreements that are provided, given, or exchanged by and among the Parties to a
Negotiation arising out of the Benchmark Condition as required in the Order released in MB Docket No.
10-56 on December 4, 2012 (the “Benchmark Order”).
2. Definitions. Capitalized terms not otherwise defined herein shall have the meaning set forth in
Paragraph 2.
(a) Acknowledgement. “Acknowledgement” means an Acknowledgement of Confidentiality in
the form of Attachment A to this Third Protective Order.
(b) Authorized Representative. “Authorized Representative” means an individual who has
signed and filed an Acknowledgment in the form of Attachment A to this Third Protective Order and is
one of the following:
(i)
Outside Counsel of Record for the C-NBCU Programmer in the Negotiation; or
(ii)
Outside Expert engaged by the C-NBCU Programmer in the Negotiation.
(c) Benchmark Condition. “Benchmark Condition” means the condition of the C-NBCU Order
that requires C-NBCU to provide Comparable Programming to requesting qualified Online Video
Distributors, as described in the C-NBCU Order at 26 FCC Rcd 4238, 4360, App. A., § IV, A.2.b.
(d) C-NBCU Order. “C-NBCU Order” means the Applications of Comcast Corporation, General
Electric Company, and NBC Universal, Inc. for Consent to Assign Licenses and Transfer Control of
Licensees
, Memorandum Opinion and Order, MB Docket No. 10-56, 26 FCC Rcd 4238 (2011).
13

Federal Communications Commission

DA 12-1950

(e) C-NBCU Programmer. “C-NBCU Programmer” means the term defined in the C-NBCU
Order at 26 FCC Rcd at 4356, App. A, § I.
(f) Commission. “Commission” means the Federal Communications Commission or any bureau
or subdivision of the Commission acting pursuant to delegated authority.
(g) Comparable Programming. “Comparable Programming” means the term defined in the C-
NBCU Order, 26 FCC Rcd at 4356, App. A., § I.
(h) Negotiation. “Negotiation” means only the negotiations between an Online Video Distributor
and a C-NBCU Programmer concerning the request for Online Video Programming under the Benchmark
Condition. This term does not include negotiations arising from provisions other than the Benchmark
Condition.
(i) Online Video Distributor. “Online Video Distributor” means the term defined in the C-NBCU
Order, 26 FCC Rcd at 4357, App. A., § I.
(j) Online Video Programming. “Online Video Programming” means the term defined in the C-
NBCU Order, 26 FCC Rcd at 4357, App. A., § I.
(k) Outside Counsel of Record. “Outside Counsel of Record” means the firms of attorneys, or
sole practitioners, as the case may be, representing the C-NBCU Programmer in the Negotiation,
including its attorneys, paralegals, clerical staff and other employees of outside counsel, and vendors
reasonably necessary to render professional services in the Negotiation, provided that such persons are
not involved in competitive decision-making, i.e., Outside Counsel of Record’s activities, association, and
relationship with the C-NBCU Programmer do not involve advice about or participation in the business
decisions of any C-NBCU Programmer, a Party, or any competitor of a Protected Third Party, nor the
analysis underlying the business decisions.
(l) Outside Expert. “Outside Expert” means a person who, in addition to any other work for the
C-NBCU Programmer, is retained or employed as a bona fide expert to furnish technical or other expert
advice or service, or who is otherwise engaged to prepare material for the express purpose of participating
in the Negotiation, whether full or part time, by or at the direction of Outside Counsel of Record, as well
as personnel associated with such person who provide support or clerical services or other employees of
such expert’s firm reasonably necessary to render professional services in the Negotiation, provided that
such persons are not involved in competitive decision-making, i.e., Outside Expert’s activities,
association, and relationship with the C-NBCU Programmer do not involve advice about or participation
in the business decisions of any C-NBCU Programmer, a Party, or any competitor of a Protected Third
Party, nor the analysis underlying the business decisions.
(m) Parties. The “Parties” to a Negotiation are the Online Video Distributor and the C-NBCU
Programmer. No other entity or natural person may become a Party absent the express, written consent of
the Parties.
(n) Protected Program Agreement. “Protected Program Agreement” means a program carriage
agreement, together with any amendments, extensions, modifications, addenda that is disclosed to
Authorized Representatives of the C-NBCU Programmer pursuant to this Third Protective Order and the
Benchmark Order.
(o) Protected Third Party. “Protected Third Party” means any entity that is a party to a Protected
Program Agreement.
(p) Reviewing Party. “Reviewing Party” means an Authorized Representative of the C-NBCU
Programmer.
3. Procedures for Claiming Protected Program Agreements Are Highly Confidential. Documents or data
comprising Protected Program Agreements (or any material contained therein or any copies or derivative
works thereof) shall be designated as Highly Confidential Information for purposes of this Third
Protective Order by affixing the legend “HIGHLY CONFIDENTIAL INFORMATION SUBJECT TO
14

Federal Communications Commission

DA 12-1950

THIRD PROTECTIVE ORDER FOR COMPLIANCE IN MB DOCKET NO. 10-56” to the front page of
the document. The Online Video Distributor shall, prior to disclosing to any other party any Highly
Confidential Information, ensure that any Reviewing Party (and any representative thereof) is authorized
under this Third Protective Order to receive such Highly Confidential Information (including, without
limitation, that such Reviewing Party has executed the Acknowledgment and that any applicable waiting
period has expired). The inadvertent failure to designate a document or data as Highly Confidential
Information does not constitute a waiver of such claim and may be corrected by supplemental written
notice at any time, accompanied by a copy of the document or data bearing the appropriate legend, with
the effect that such document or data shall be subject to the protections of this Third Protective Order
from the time it is designated as Highly Confidential Information.
4. Storage of Highly Confidential Information. Any person to whom Highly Confidential Information is
provided shall place the Highly Confidential Information in a non-public file. Highly Confidential
Information shall be withheld from inspection by any person not bound by the terms of this Third
Protective Order, unless such Highly Confidential Information is released to the Commission or a court of
competent jurisdiction pursuant to Paragraph 13 hereto.
5. Access to Highly Confidential Information.
(a) Other than in accordance with Paragraph 13 of this Third Protective Order, Highly
Confidential Information may be disclosed, summarized, described, characterized, or otherwise
communicated or made available in whole or in part only to Authorized Representatives.
(b) If Highly Confidential Information is disclosed to an Outside Expert, such Outside Expert
shall not work for any entity or individual in connection with any negotiation or agreement for the
distribution of programming by an MVPD or an online video programming distributor if the negotiation
or agreement involves a Protected Third Party for a period of one year commencing on the date that the
Outside Expert executes an Acknowledgement in connection with a Negotiation. Nothing in this
paragraph shall preclude an Outside Expert from advising, assisting, or otherwise participating on behalf
of a Party or Protected Third Party in future negotiations or arbitrations (and any following proceedings at
the Commission or in federal court) arising under the Benchmark Condition, subject to any and all
restrictions on the use of Highly Confidential Information in this Third Protective Order.
(c) If Highly Confidential Information is disclosed to a person who is Outside Counsel of
Record, and such person subsequently becomes an employee of any MVPD, online video programming
distributor, programming network, or entity that supplies programming to MVPDs or online distributors,
such person shall not work for such employer in connection with any negotiation or agreement for the
distribution of programming if the negotiation or agreement involves a Protected Third Party for a period
of one year commencing on the date that the Outside Counsel of Record executes an Acknowledgement
in connection with a Negotiation. Nothing in this paragraph shall preclude such counsel from advising,
assisting, or otherwise participating on behalf of a Party or Protected Third Party in future negotiations or
arbitrations (and any following proceedings at the Commission or in federal court) arising under the
Benchmark Condition, subject to any and all restrictions on the use of Highly Confidential Information in
this Third Protective Order.
6. Procedures for Obtaining Access to Highly Confidential Information. If the C-NBCU Programmer
will require access to Protected Program Agreements pursuant to the provisions of the Benchmark Order,
it must so inform the Online Video Distributor in writing within seven (7) days of receipt of a formal
request for access to programming under the Benchmark Condition. In all cases where access to Highly
Confidential Information is permitted pursuant to Paragraph 5 hereof, before reviewing or receiving
access to any Highly Confidential Information, each person seeking such access shall execute an
Acknowledgment, file it in MB Docket No. 10-56, and serve it upon the Protected Third Parties, with a
copy to the Media Bureau. Each Protected Third Party shall have an opportunity to object to the
disclosure of the Highly Confidential Information to any such persons. Any objection must be filed in
MB Docket No. 10-56 and served on the Online Video Distributor and the C-NBCU Programmer, and
their respective counsel, within three (3) business days after receiving a copy of that person’s
15

Federal Communications Commission

DA 12-1950

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 Protected Third Party shall not have access
to Highly Confidential Information. If there are no objections or upon the resolution of any objections in
favor of the C-NBCU Programmer, the Online Video Distributor shall deliver a copy of the Protected
Third Party Agreement to the Authorized Representatives of the C-NBCU Programmer within five (5)
business days of receipt of the executed Acknowledgment. One copy shall be provided to each
Authorized Representative.
7. Disclosure of Highly Confidential Information. An Authorized Representative may disclose Highly
Confidential Information only to other Authorized Representatives to whom disclosure is permitted under
this Third Protective Order.
8. Use of Highly Confidential Information. Highly Confidential Information shall be used solely for the
preparation and conduct of a specific Negotiation for which Highly Confidential Information has been
disclosed; shall not be used for any other purpose (including but not limited to competitive business
purposes); and shall not be disclosed except in accordance with this Third Protective Order. This Third
Protective Order shall not preclude the use of any material or information that is in the public domain or
has been developed independently by any other person who has not had access to Protected Program
Agreements through this Negotiation.
9. Client Consultation. Nothing in this Third Protective Order shall prevent or otherwise restrict Outside
Counsel of Record from rendering advice to the C-NBCU Programmer relating to the conduct of the
Negotiation or any subsequent administrative or judicial proceeding arising therefrom and, in the course
thereof, relying generally on examination of any Highly Confidential Information; provided, however,
that in rendering such advice and otherwise communicating with the C-NBCU Programmer, Outside
Counsel of Record shall not disclose Highly Confidential Information.
10. Violations of Agreement.
(a) Should a Party that has obtained access to Highly Confidential Information under this Third
Protective Order violate any of its terms, it shall immediately convey that fact to the Online Video
Distributor and to any Protected Third Party whose Highly Confidential Information has been utilized in
violation of this Third Protective Order, any of whom may choose to bring it to the attention of the
Commission as appropriate. Further, should such violation consist of improper disclosure or use of
Highly Confidential Information, the violating party shall take all necessary steps to remedy the improper
disclosure or use. The violating party shall also immediately notify the Online Video Distributor and any
Protected Third Party whose Highly Confidential Information has been utilized in violation of this Third
Protective Order, in writing, of the identity of each party known or reasonably suspected to have obtained
the Highly Confidential Information through any such disclosure.
(b) By participating in a Negotiation the parties agree that Highly Confidential Information is of
special, unique, and extraordinary character, and a Protected Third Party’s ability to pursue damages
alone would be an inadequate remedy for a violation of this Third Protective Order. In the event that any
Protected Third Party believes that use of its Highly Confidential Information in violation of this Third
Protective Order has occurred or is about to occur, or that any other party hereto has violated or is about
to violate this Third Protective Order, such Protected Third Party shall be entitled to seek an injunction
restraining any such violation or threatened violation and enforcement of this Third Protective Order by a
decree of specific performance requiring each party hereto to fulfill its obligations under this Third
Protective Order, in any such case without the necessity of showing economic loss or other actual damage
and without any bond or other security being required. Protected Third Parties also shall have the right to
seek appropriate relief from the Commission and, to the extent that the Commission’s authority is so
delegated, the Media Bureau. Nothing in this Third Protective Order shall limit any other rights and
remedies available to a Protected Third Party at law or equity against any person using Highly
Confidential Information in a manner not authorized by this Third Protective Order.
16

Federal Communications Commission

DA 12-1950

(c) Each Protected Third Party shall have all of the rights and remedies identified herein only
individually with respect to its own Highly Confidential Information; no Protected Third Party shall be
required to act in concert or coordination with any other Protected Third Party to exercise its rights and
remedies hereunder.
11. Termination of Negotiations. Within fifteen (15) days after an agreement for programming
negotiated under the Benchmark Condition has been executed by the Parties or within fifteen (15) days
after the termination of a Negotiation, as represented by at least one Party to the Negotiation in writing to
the other Party, Authorized Representatives of the C-NBCU Programmer shall make their best efforts to
destroy all Highly Confidential Information as well as all copies and derivative materials made therefrom,
and shall certify in a writing served on the Protected Third Parties that such best efforts have been
conducted to ensure that no Highly Confidential Information has been retained by any person having
access thereto. Authorized Representatives shall have a continuing obligation to destroy any previously
undestroyed documents if and when they are discovered.
12. No Waiver of Confidentiality. Disclosure of Highly Confidential Information as provided herein
shall not be deemed a waiver by the any Protected Third Party of any entitlement to highly confidential
treatment of such information. Reviewing Parties, by viewing these materials:
(a) agree not to assert any such waiver;
(b) agree not to use Highly Confidential Information in any proceeding other than such as
permitted herein unless obtained independently of the Negotiation; and
(c) agree that accidental disclosure of Highly Confidential Information shall not be deemed a
waiver of entitlement to highly confidential treatment of such information.
13. Subpoena by Courts, Departments, or Agencies. If a court or a federal or state department or agency
issues a subpoena or orders production of Highly Confidential Information that a Reviewing Party has
obtained under terms of this Third Protective Order, such Reviewing Party shall promptly notify in
writing each Protected Third Party whose Highly Confidential Information is affected, of the pendency of
such subpoena or order. Consistent with the independent authority of any court, department, or agency,
the Reviewing Party to whom the subpoena or order is directed shall not provide or otherwise disclose
Highly Confidential Information prior to providing the Protected Third Parties notice and waiting fifteen
(15) business days so that the Protected Third Parties shall have an opportunity to contest the validity of
the subpoena or order of production through appeal or seek a confidentiality order or other protection
against disclosure of any Highly Confidential Information.
14. Effect of Third Protective Order. This Third Protective Order and its protections will continue in
force indefinitely. The express terms of this Third Protective Order control and supersede any course of
performance and/or usage of trade inconsistent with any of the terms hereof.
15. Severability. In the event that one or more provisions of this Third Protective Order are held to be
unenforceable under applicable law, such provisions shall automatically be replaced with one that
incorporates the original intent of the Commission to the maximum extent permitted by law and the
balance of the Third Protective Order shall be enforced in accordance with its terms.
17

Federal Communications Commission

DA 12-1950

ATTACHMENT A

THIRD PROTECTIVE ORDER FOR COMPLIANCE

Acknowledgment of Confidentiality

MB Docket No. 10-56

I hereby acknowledge that I have received and read a copy of the foregoing Third Protective
Order for Compliance (“Third Protective Order”) in the above-captioned proceeding, and I understand it.
I agree that I am bound by the Third Protective Order and that I shall not disclose or use Highly
Confidential Information except as allowed by the Third Protective Order. I acknowledge that a violation
of the Third 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
advocacy organization), I acknowledge specifically that my access to any information obtained as a result
of the Third Protective Order is due solely to my capacity as Outside Counsel of Record or Outside
Expert to a C-NBCU Programmer as described in the foregoing Third 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 Third Protective Order.
I acknowledge that it is my obligation to ensure that: (1) Highly Confidential Information is used
only as provided in the Third Protective Order; and (2) Highly Confidential Information is not duplicated
except as specifically permitted by the terms of the Third 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
Highly Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Third Protective Order.
Executed at ________________________ this ___ day of _____________, ____.
_________________________________

[Name]
[Position]
[Address]

[Telephone]
18

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.