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Protective Order for CenturyLink Petitions for Forbearance or Waiver

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Released: January 14, 2014

Federal Communications Commission

DA 14-37

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

CenturyLink’s Petition for Forbearance
)
Pursuant to 47 U.S.C. § 160(c) from
) WC Docket No. 14-9
Dominant Carrier and Certain Computer
)
Inquiry Requirements on Enterprise
)
Broadband Services
)

PROTECTIVE ORDER

Adopted:

January 14, 2014


Released: January 14, 2014

By the Chief, Wireline Competition Bureau:
1. On December 13, 2013, CenturyLink filed a petition1 pursuant to section 10 of the
Communications Act of 1934, as amended,2 requesting that the Commission forbear from “dominant
carrier regulation and the Computer Inquiry tariffing requirement with respect to its packet-switched and
optical transmission services” that are subject to the regulations.3 On January 14, 2014, the Wireline
Competition Bureau (Bureau) sought comment on CenturyLink’s petition.4
2. CenturyLink requested confidential treatment of certain information contained in its petition,
pursuant to sections 0.457 and 0.459 of the Commission’s rules.5 Consequently, the Bureau hereby
adopts this Protective Order to ensure that any confidential or proprietary documents submitted by
CenturyLink or a Submitting Party are afforded adequate protection. This Protective Order does not
constitute a resolution of the merits concerning whether any information submitted under the Protective
Order would be released publicly by the Commission upon a proper request under the Freedom of
Information Act (FOIA) or otherwise.
3. Acknowledgment. Any party seeking access to confidential documents and information
subject to the Protective Order shall request access pursuant to the terms of the Protective Order and must
sign the Acknowledgment of Confidentiality, attached as Appendix A (Acknowledgment).
4. Definitions. As used herein, capitalized terms not otherwise defined in this Protective Order
shall have the following meanings:
“Stamped Confidential Document” means any document, or any part thereof, that bears the

1 Petition of CenturyLink for Forbearance Pursuant to 47 U.S.C. §160(c) from Dominant Carrier and Certain
Computer Inquiry Requirements on Enterprise Broadband Services, WC Docket No. 14-9 (filed Dec. 13, 2013)
(2013 CenturyLink Petition).
2 See 47 U.S.C. § 160.
3 CenturyLink Petition at v.
4 Pleading Cycle Established for Comments on CenturyLink Petition for Forbearance from Dominant Carrier and
Certain Computer Inquiry Requirements on Enterprise Broadband Services
, WC Docket No. 14-9, Public Notice,
DA 14-36 (rel. Wireline Comp. Bur. Jan. 14, 2014).
5 Letter from Craig Brown, CenturyLink, to Marlene Dortch, Secretary, FCC, WC Docket No. 14-9 (filed Dec. 13,
2013). See also 47 C.F.R. §§ 0.457, 0.459.

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DA 14-37

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. 14-9 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 information that the Submitting Party believes should be subject to
protection under FOIA and the Commission’s implementing rules.
“Confidential Information” means information contained in Stamped Confidential Documents or
derived therefrom that is not otherwise available from publicly available sources;
“Counsel” means In-House Counsel and Outside Counsel of Record;
“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
counsel is not involved in competitive decision-making, i.e., In-House Counsel’s activities, association,
and relationship with a client are not such as to involve such counsel’s advice and participation in any or
all of the client’s business decisions made in light of similar or corresponding information about a
competitor;
“Outside Counsel of Record” means the firm(s) of attorneys, or sole practitioner(s), as the case
may be, representing a party in this proceeding, provided that, the Outside Counsel of Record is not
involved in competitive decision-making; and
“Reviewing Party” means a person who has obtained access to Confidential Information
(including Stamped Confidential Documents) pursuant to paragraphs 7 and 10 of this Protective Order.
5. Submission of Stamped Confidential Documents. Two copies of each document that a
Submitting Party claims is confidential or proprietary (a “Confidential Document”) must be delivered in
person to Matt Warner, Competition Policy Division, Wireline Competition Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 5-C360, Washington, D.C. 20554. The
documents shall be accompanied by a cover letter stating “CONFIDENTIAL INFORMATION—
SUBJECT TO PROTECTIVE ORDER IN WC DOCKET NO. 14-9 BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION.” Each page of the Confidential Filing shall be stamped with this
legend as well. In addition, a Submitting Party shall file with the Secretary’s Office one copy of the
Confidential Document, two copies of the Confidential Document in redacted form, i.e., containing no
Confidential Information (the “Redacted Confidential Document”), and the accompanying cover letter.
Each Redacted Confidential Document shall have the same pagination as the Confidential Document
from which it is derived. The two copies of the Redacted Confidential Document and the accompanying
cover letter shall be stamped “REDACTED—FOR PUBLIC INSPECTION.” 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 filing shall clearly
distinguish the Confidential Information from the non-confidential information.
6. Copying Sensitive Documents. If, in the reasonable judgment of the Submitting Party, a
document contains information so sensitive that copying of it should be restricted, the Submitting Party
may mark the document with the legend “Additional Copying Prohibited.” A reviewing party shall
receive only one copy of the document and no further copies of such document, in any form, shall be
made. Application for relief from this restriction against further copying may be made to the
Commission, with notice to Outside Counsel of Record for the Submitting Party.
7. Procedures for Obtaining Access to Stamped Confidential Documents. In all cases where
access to Stamped Confidential Documents and Confidential Information is permitted pursuant to
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paragraph 10, before reviewing or having access to any Stamped Confidential Documents or Confidential
Information, each person seeking such access shall execute a copy of the Acknowledgment and file it
with the Bureau, on behalf of the Commission, and serve it upon each Submitting Party through its
Outside Counsel of Record so that the Acknowledgment is received by each Submitting Party at least five
business days prior to such person’s reviewing or having access to the Submitting Party’s Stamped
Confidential Documents or Confidential Information, except that, where the person seeking access is one
described in either clause 2, 3 or 4 of paragraph 10, 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 Stamped Confidential Documents or Confidential Information to any such persons. Any
objection must be filed at the Commission and served on Counsel representing, retaining or employing
such person within three business days after receiving a copy of that person’s Acknowledgment (or where
the person seeking access is one described in clause 2, 3 or 4 of paragraph 10, such objection shall be
filed and served as promptly as practicable after receipt of the relevant Acknowledgment). Until any such
objection is resolved by the Commission and, if appropriate, any court of competent jurisdiction, 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 Stamped Confidential Documents or Confidential
Information.
8. Review of Stamped Confidential Documents. The 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. Parties reviewing these documents will be provided the following
alternatives: (1) parties will be provided adequate opportunity to inspect the documents on site; (2)
parties may inspect the documents on site with the ability to request copies, at cost, of all or some of the
documents; or (3) parties may request a complete set of the documents at cost, allowing two business days
after the request is made for receipt of the copies. If a complete set of documents will be requested,
parties are encouraged to make such requests at the time they submit the Acknowledgment to allow
parties the opportunity to begin reviewing the documents at the end of the five-day period referred to in
paragraph 7 above. All copies of documents that are removed from the Submitting Party’s office will be
stamped as described above and in the following paragraph and must be returned or destroyed in
accordance with the terms of this Protective Order.
9. 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 as delineated in this paragraph
and paragraphs 10, 14, and 15, 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.
10. Permissible Disclosure. Subject to the requirements of paragraph 7, Stamped Confidential
Documents may be reviewed by Counsel, and Counsel may disclose Stamped Confidential Documents
and other Confidential Information to: (1) outside consultants or experts retained for the purpose of
assisting Counsel in this proceeding, provided that, the outside consultants or experts are not involved in
the analysis underlying the business decisions of any competitor of any Submitting Party nor participate
directly in those business decisions; (2) paralegals or other employees of such Counsel not described in
clause 3 of this paragraph assisting Counsel in this proceeding; (3) employees of such Counsel involved
solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving documents or
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data or designing programs for handling data connected with this proceeding, or performing other clerical
or ministerial functions with regard to documents connected with this proceeding; and (4) employees of
third-party contractors performing one or more of the functions set forth in clause 3 of this paragraph.
Reviewing Parties 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.
11. 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.
12. Protection of Stamped Confidential Documents and Confidential Information. Persons
described in paragraphs 7 and 10 shall have the obligation to ensure that access to Stamped Confidential
Documents and Confidential Information is strictly limited as prescribed in this Protective Order. Such
persons shall further have the obligation to ensure that: (1) Stamped Confidential Documents and
Confidential Information are used only as provided in this Protective Order; and (2) Stamped Confidential
Documents are not duplicated except as necessary for filing at the Commission under seal as provided in
paragraph 14 below.
13. Requests for Additional Disclosure. If any person requests disclosure of Confidential
Information outside the terms of this Protective Order, requests will be treated in accordance with sections
0.442 and 0.461 of the Commission’s rules.
14. Filings with the Commission. Persons described in paragraphs 7 and 10 may, in any
documents that they file in this proceeding, reference Confidential Information, but only if they comply
with the following procedure:
a.
The cover or first page of the filing, and each page of the filing that contains or discloses
Confidential Information subject to this order must be clearly marked: “CONFIDENTIAL INFORMATION—
SUBJECT TO PROTECTIVE ORDER IN WC DOCKET NO. 14-9 BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION.”
b.
One copy of the filing shall be filed with the Secretary’s Office. The filing shall be accompanied
by a cover letter stating “CONFIDENTIAL INFORMATION—SUBJECT TO PROTECTIVE ORDER IN WC
DOCKET NO. 14-9 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION.” The filing shall be made
under seal, and will not be placed in the Commission’s public file.
c.
Those portions of the filing that constitute Confidential Information shall be clearly identifiable as
such, so that those portions that are deemed to be Confidential Information are readily identifiable based on an
examination of the filing.
d.
Two redacted copies of the filing containing no Confidential Information (the “Redacted
Confidential Filing”) shall also be filed with the Secretary’s Office. Each Redacted Confidential Filing shall have
the same pagination as the Confidential Filing from which it is derived. The two copies of the Redacted
Confidential Filing and their accompanying cover letter shall be stamped “REDACTED—FOR PUBLIC
INSPECTION.” The cover letter accompanying the Redacted Confidential Filing shall state that the Submitting
Party is filing a redacted version of the filing.
e.
Two copies of the filing containing Confidential Information and the accompanying cover letter
shall be delivered in person to Matt Warner, Competition Policy Division, Wireline Competition Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 5-C360, Washington, D.C. 20554. In addition, a person
making a filing containing Confidential Information shall serve a copy on the relevant Submitting Party.
f.
Parties should not provide courtesy copies of pleadings containing Confidential
Information to Commission staff unless the Bureau so requests. Any courtesy copies shall be submitted
under seal.
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15. 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.
16. 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.
17. Subpoena by Courts, Departments, or Agencies. If a court, or a federal or state department
or agency issues a subpoena or orders production of Stamped 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.
18. Violations of Protective Order. Should a person who has properly obtained access to
Confidential Information under this Protective Order violate any of its terms, that person shall
immediately convey that fact to the Commission and to the Submitting Party. Further, should such
violation consist of improper disclosure of 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.
19. 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, persons described by paragraph 10 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) containing Confidential Information prepared in
whole or in part by that party, and one copy of orders issued by the Commission or Bureau containing
Confidential Information. All Counsel shall make certification of compliance herewith and shall deliver
the same 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 same shall not be construed to apply to the Commission or its staff.
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20. Authority. This Order is issued pursuant to sections 4(i), 201, and 202 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 201, and 202, section 4 of the Freedom
of Information Act, 5 U.S.C. § 552(b)(4), and authority delegated under section 0.291 of the
Commission’s rules, 47 C.F.R. § 0.291, and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Julie A. Veach
Chief, Wireline Competition Bureau
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DA 14-37

APPENDIX A

Acknowledgment of Confidentiality

WC Docket No. 14-9

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.
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 consultant to a party or other person
described in paragraph 4 of the foregoing 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 Protective
Order.
I hereby certify that I am not involved in “competitive decision-making” as that term is used in
the definition of In-House Counsel in paragraph 4 of the Protective Order.
I acknowledge that it is my obligation to ensure that: (1) Stamped Confidential Documents and
Confidential Information are used only as provided in the Protective Order; and (2) 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 or 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 _____________, 2014.

_________________________________

[Name]

[Position]

[Address]
[Telephone]
7

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