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MetroPCS, Deutsche Telekom Protective Order

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Released: October 17, 2012

Federal Communications Commission

DA 12-1664

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Applications of Deutsche Telekom AG, T-Mobile ) WT Docket No. 12-301
USA, Inc., and MetroPCS Communications, Inc. )
)
For Consent To Assign or Transfer Control of
)
Licenses and Authorizations
)

PROTECTIVE ORDER

Adopted: October 17, 2012

Released: October 17, 2012

By the Chief, Wireless Telecommunications Bureau:
1. In this Protective Order, we adopt procedures to limit access to proprietary or confidential
information that may be filed in this proceeding. We anticipate that such information will be necessary to
develop a more complete record on which to base the Commission’s decision. While we are mindful of
the sensitive nature of such information, we are also mindful of the right of the public to participate in this
proceeding in a meaningful way. We therefore will make such information available to participants in
this proceeding, 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.
2. Definitions. As used herein, capitalized terms not otherwise defined in this Protective Order
shall have the following meanings:
“Acknowledgment” means the Acknowledgment 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 advice about or participation in the relevant business decisions or the analysis
underlying the relevant business decisions of the client in competition with or 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.
“In-House Counsel” means an attorney employed by Participant in 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. (In this regard, an In-House Counsel’s
employer is considered his or her client.)
“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 Participant 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 Participant in this proceeding, provided that such
attorney is not involved in Competitive Decision-Making.

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“Outside Consultant” means a consultant or expert retained for the purpose of assisting Counsel
or a Participant 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 Participant in this proceeding, provided that such consultant or expert is not involved in
Competitive Decision-Making.
“Participant” means a person or entity that has filed, or has a good faith intention to file, an
application, petition to deny, or material comments in the proceeding.
“Redacted Confidential Document” means a copy of a Stamped Confidential Document where
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 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 WT DOCKET NO. 12-301 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 under 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.1 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.2 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.3 Any decision on whether the materials should be accorded
confidential treatment does not constitute a resolution of the merits 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).4
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, two copies of the
Stamped Confidential Document in redacted form and an accompanying cover letter. Each page of the
Stamped Confidential Document shall be stamped “CONFIDENTIAL INFORMATION – SUBJECT TO
PROTECTIVE ORDER IN WT DOCKET NO. 12-301 BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION.” The cover letter also shall contain this legend. Each Redacted
Confidential Document shall have the same pagination as the Stamped Confidential Document from
which it is derived. The two copies of the Redacted Confidential Document and the accompanying cover


1 See 47 C.F.R. §§ 0.459(a), 0.459(a)(3).
2 See 47 C.F.R. § 0.459(b).
3 See 47 C.F.R. § 0.459(g).
4 See 47 C.F.R. §§ 0.459(h), 0.461.
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letter shall be stamped “REDACTED – FOR PUBLIC INSPECTION.” 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. In addition, two copies of each Stamped
Confidential Document and the accompanying cover letter must be delivered as directed by Commission
staff to Scott Patrick, scott.patrick@fcc.gov, (202) 418-2853, Mobility Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 445 12th Street, S.W., Room 6313,
Washington, D.C. 20554.
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 with the Bureau, on behalf of the Commission. 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 five 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, retaining or employing such person within three business days after
receiving a copy of that person’s Acknowledgment (or where the person seeking access is one described
in clause 1 or 2 of paragraph 8, filed 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 on site; (2) a Reviewing Party may
inspect the documents on site with the ability to request copies, at cost, of 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 to
allow it the opportunity to begin reviewing the documents at the end of the five-day period referred to in
paragraph 5. 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
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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 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”), two copies 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 WT DOCKET NO. 12-301 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. The
two 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 Scott Patrick, scott.patrick@fcc.gov, (202) 418-2853,
Mobility Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445
12th Street, S.W., Room 6313, Washington, D.C. 20554, and one copy must be served on the relevant
Submitting Party. Parties should not provide courtesy copies of pleadings containing Confidential
Information to Commission staff unless the Bureau so requests, and any such 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.
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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
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 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.
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18. Authority. This Order is issued pursuant to sections 4(i), 214 and 310(d) of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 214 and 310(d), Section 4 of the
Freedom of Information Act, 5 U.S.C. § 552(b)(4), and authority delegated under section 0.331 of the
Commission’s rules, 47 C.F.R. § 0.331, and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Ruth Milkman
Chief, Wireless Telecommunications Bureau
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APPENDIX A

Acknowledgment of Confidentiality

WT Docket No. 12-301

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 shall have the meanings ascribed to them in the Protective Order.
Executed this ___ day of _____________, 201_.

_________________________________

[Name]

[Position]


[Firm]
[Telephone]
7

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