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Protective Order For M-LMS Testing Report

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Released: November 20, 2012

Federal Communications Commission

DA 12-1877

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Request by Progeny LMS, LLC for Waiver of
) WT Docket No. 11-49
Certain Multilateration Location and Monitoring
)
Service Rules
)

PROTECTIVE ORDER

Adopted: November 20, 2012

Released: November 20, 2012

By the Chief, Wireless Telecommunications Bureau:
1. In this Protective Order, we adopt procedures to limit access to proprietary or confidential
information that have been filed in this proceeding. Such materials are necessary to develop a more
complete record on which to base the Commission’s decision. While we are mindful of their sensitive
nature, 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:
“Acknowledgement” means the Acknowledgement of Confidentiality attached as Appendix A
hereto.
“Competitive Decision-Making” means that a person’s activities, association, or relationship with
any of its clients involve 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 Document” means any document, or any part thereof, that contains Confidential
Information 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 confidential hereunder a Submitting
Party signifies and represents that it contains Confidential Information.
“Confidential Information” means information contained in the following reports and letter filed
in this proceeding that is not otherwise available from publicly available sources and that is subject to
protection under the Freedom of Information Act (“FOIA”) and the Commission’s implementing rules.
The reports and letter are as follows:

Federal Communications Commission

DA 12-1877

Joint Itron-Progeny Testing, July 23-August 1, 2012 (Oct. 26, 2012);1
Joint Landis+Gyr-Progeny Testing, August 7-8, 2012 (Oct. 26, 2012);2 and
Progeny Letter on Demonstration of Compliance with Section 90.353(d) (Oct. 31, 2012).3
“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 attorney
is not involved in Competitive Decision-Making.
“Outside Counsel of Record” or “Outside Counsel” means the attorney(s), firm(s) of attorneys, or
sole practitioner(s), as the case may be, representing a party in this proceeding, provided that such
attorneys are not involved in Competitive Decision-Making. The term “Outside Counsel of Record”
includes any attorney representing a non-commercial party in this proceeding, provided that such attorney
is not involved in Competitive Decision-Making.
“Outside Consultant” means a consultant or expert retained for the purpose of assisting Counsel
or a party in this proceeding, provided that such consultant or expert is not involved in Competitive
Decision-Making. The term “Outside Consultant” includes any consultant or expert employed by a non-
commercial party in this proceeding, provided that such consultant or expert is not involved in
Competitive Decision-Making.
“Redacted Confidential Document” means a copy of a Confidential Document where the
Confidential Information has been redacted.
“Reviewing Party” means a person who has obtained access to Confidential Information
(including Confidential Documents) pursuant to paragraphs 5 or 8 of this Protective Order.
“Submitting Party” means a person who submits a Confidential Document.
3. Effect of Designation of Information as Confidential. 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.4 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.5 Any decision on
whether the materials should be accorded confidential treatment does not constitute a resolution of the


1 The Joint Itron-Progeny Testing is attached to the Letter from Bruce A. Olcott, Counsel to Progeny LMS, LLC and
Laura Stefani, Counsel for Itron, Inc. to Marlene H. Dortch, Secretary, Federal Communications Commission,
Progeny LMS, LLC & Itron, Inc., Request for Confidential Treatment, Part 15 Joint Test Report, WT Docket No.
11-49 (filed October 31, 2012).
2 The Joint Landis+Gyr-Progeny Testing is attached to the Letter from Bruce A. Olcott, Counsel to Progeny LMS,
LLC and Lawrence J. Movshin, Counsel for Landis+Gyr Company to Marlene H. Dortch, Secretary, Federal
Communications Commission, Progeny LMS, LLC & Landis+Gyr Company, Request for Confidential Treatment,
Part 15 Joint Test Report, WT Docket No. 11-49 (filed October 31, 2012).
3 Letter from Bruce A. Olcott, Counsel to Progeny LMS, LLC to Marlene H. Dortch, Secretary, Federal
Communications Commission, Progeny LMS, LLC, Demonstration of Compliance with Section 90.353(d) of the
Commission’s Rules, WT Docket No. 11-49 (filed October 31, 2012). This letter is attached to the Letter from
Bruce A. Olcott, Counsel to Progeny LMS, LLC to Marlene H. Dortch, Secretary, Federal Communications
Commission, Progeny LMS, LLC, Request for Confidential Treatment, Ex Parte Letter on Part 15 Joint Test
Reports, WT Docket No. 11-49 (filed October 31, 2012).
4 See 47 C.F.R. § 0.459(b).
5 See 47 C.F.R. § 0.459(g).
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DA 12-1877

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).6
4. Submission of Confidential Documents. [Reserved].
5. Procedure for Obtaining Access to Confidential Information. Any person seeking access to
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 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 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
Confidential Documents or Confidential Information.
6. Review of Confidential Documents. A Submitting Party shall make available for review the
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 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 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.


6 See 47 C.F.R. §§ 0.459(h), 0.461.
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8. Permissible Disclosure. A Reviewing Party may discuss and share the contents of the
Confidential Documents and Confidential Information with another Reviewing Party and with the
Commission and its staff. A Submitting Party’s 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 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. 11-49 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
“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 Paul Murray, Assistant Bureau Chief, Wireless
Telecommunications Bureau, Federal Communications Commission, 445 12th Street, S.W., Room 6405,
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 Confidential Documents. Except with the prior written consent of the
Submitting Party, or as provided under this Protective Order, neither a Confidential Document nor any
Confidential Information may be disclosed further.
11. Protection of Confidential Documents and Confidential Information. A Reviewing Party
shall have the obligation to ensure that access to 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 Confidential Documents and Confidential Information are used only as provided in this
Protective Order.
12. Requests for Additional Disclosure. If any person requests disclosure of Confidential
Information outside the terms of this Protective Order, such a request will be treated in accordance with
sections 0.442 and 0.461 of the Commission’s rules.
13. Client Consultation. Nothing in this Protective Order shall prevent or otherwise restrict
Counsel from rendering advice to their clients relating to the conduct of this proceeding and any
subsequent judicial proceeding arising therefrom and, in the course thereof, relying generally on
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DA 12-1877

examination of Confidential Documents or Confidential Information; provided, however, that in
rendering such advice and otherwise communicating with such client, Counsel shall not disclose
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 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 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
Confidential Documents and all copies of the same. No material whatsoever derived from 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 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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Federal Communications Commission

DA 12-1877

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 0.291 of the
Commission’s rules, 47 C.F.R. § 0.291, and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Ruth Milkman
Chief, Wireless Telecommunications Bureau
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Federal Communications Commission

DA 12-1877

APPENDIX A

Acknowledgment of Confidentiality

WT Docket No. 11-49

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 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 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 Confidential Documents and Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Protective Order.
Executed this ___ day of _____________, 201_.

_________________________________

[Name]


[Position]

[Firm]
[Telephone]
7

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