Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Protective Order For MMTC Cross Media Ownership Study Data

Download Options

Released: July 26, 2013

Federal Communications Commission

DA 13-1652

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

2010 Quadrennial Regulatory Review Review of
) MB Docket No. 09-182
the Commission's Broadcast Ownership Rules and
)
Other Rules Adopted Pursuant to Section 202 of
)
the Telecommunications Act of 1996
)
)

Promoting Diversification of Ownership
) MB Docket No. 07-294
In the Broadcasting Services
)

PROTECTIVE ORDER

Adopted: July 26, 2013

Released: July 26, 2013

By the Chief, Media Bureau:
1. In this Protective Order, we adopt procedures to limit access to certain confidential
information that Minority Media and Telecommunications Council ("MMTC") anticipates filing, as
described in its July 25, 2013 letter.1 We find that such information is 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
any Commission broadcast licensee.
"Confidential Information" means information that is not otherwise available from publicly
available sources and that is subject to protection under FOIA and the Commission's implementing rules.
"Counsel" means In-House Counsel and Outside Counsel of Record.

1 Letter from David Honig, President, Minority Media and Telecommunications Council, MB Docket No. 09-182,
MB Docket No. 07-294 (filed July 25, 2013).

Federal Communications Commission

DA 13-1652

"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.
"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, material
comments in this 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 MB DOCKET NOS. 09-182 and 07-294
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," the Submitting Party signifies and
represents that it contains Confidential Information.
"Submitting Party" means Minority Media and Telecommunications Council.
3. Effect of Designation of Information as Confidential. By designating documents and
information as Confidential under this Protective Order, the Submitting Party will be deemed to have
submitted a request that the material not be made routinely available for public inspection under the
Commission's rules.2 Any person wishing to challenge the designation of a document or portion of a
document as Confidential must file such a challenge at the Commission and serve it on the Submitting
Party. The Submitting Party must file any reply within five business days, and include a justification for
treating the information as confidential.3 The documents and information challenged will continue to be
accorded confidential treatment until the Commission acts on the request and all subsequent appeal and
stay proceedings have been exhausted.4 Any decision on whether the materials should be accorded
confidential treatment does not constitute a resolution of the merits concerning whether such information

2 See 47 C.F.R. 0.459(a), 0.459(a)(3).
3 See 47 C.F.R. 0.459(b).
4 See 47 C.F.R. 0.459(g).
2

Federal Communications Commission

DA 13-1652

would be released publicly by the Commission upon a proper request under our rules implementing the
Freedom of Information Act (FOIA).5
4. Submission of Stamped Confidential Documents. A Submitting Party shall submit to the
Secretary's Office one copy of each Stamped Confidential Document it wishes to file. Each page of the
Stamped Confidential Document shall be stamped "CONFIDENTIAL INFORMATION SUBJECT TO
PROTECTIVE ORDER IN MB DOCKET NOS. 09-182 and 07-294 BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION." The cover letter also shall contain this legend. The Submitting
Party shall submit a copy of each Stamped Confidential Document in redacted form (the Redacted
Confidential Document) to the Commission via the Commission's Electronic Comment Filing System
("ECFS").6 Each Redacted Confidential Document shall have the same pagination as the Stamped
Confidential Document from which it is derived. The Redacted Confidential Documents and the
accompanying cover 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 Brendan Holland, Brendan.Holland@fcc.gov, Industry Analysis
Division, Media Bureau, Federal Communications Commission, 445 12th Street, S.W., 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 Submitting Party through its Counsel of Record so that it
is received at least three 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. The Submitting Party may waive the three-
day notice period. The Submitting Party shall have an opportunity to object to the disclosure of its
Stamped Confidential Documents or Confidential Information to any such person. The Submitting Party
must file any such objection at the Commission and serve it on Counsel representing, retaining or
employing such person within one 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 the 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 the Submitting Party shall not have access to the relevant Stamped
Confidential Documents or Confidential Information.
6. Review of Stamped Confidential Documents. The Submitting Party shall make available for
review the Stamped Confidential Documents of such party at the offices of its Outside Counsel of Record.
A Reviewing Party shall be provided the following alternatives: (1) a Reviewing Party shall be provided

5 See 47 C.F.R. 0.459(h), 0.461.
6 If the Submitting Party is not able to submit a copy of a Redacted Confidential Document via ECFS, it must submit
two copies of the Redacted Confidential Document to the Secretary's Office along with the appropriately stamped
cover letter, as described in this paragraph.
3

Federal Communications Commission

DA 13-1652

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. All copies of documents that are removed
from the Submitting Party's office must be returned or destroyed in accordance with the terms of
paragraph 17.
7. Use of Confidential Information. Persons obtaining access to Confidential Information
(including Stamped Confidential Documents) under this Protective Order shall use the information solely
for the preparation and conduct of this proceeding before the Commission and any subsequent judicial
proceeding arising directly from this proceeding and, except as provided herein, shall not use such
documents or information for any other purpose, including without limitation business, governmental, or
commercial purposes, or in other administrative, regulatory or judicial proceedings. Should the
Commission rely upon or otherwise make reference to the contents of any of the Stamped Confidential
Documents or Confidential Information in its decision in this proceeding, it will do so by redacting any
Confidential Information from the public version of the decision and by making the unredacted version of
the decision available only to a court and to those persons entitled to access to Confidential Information
under this Protective Order.
8. Permissible Disclosure. A Reviewing Party may discuss and share the contents of the
Stamped Confidential Documents and Confidential Information with another Reviewing Party and with
the Commission and its staff. A Submitting Party's Stamped Confidential Documents and Confidential
Information may also be disclosed to employees and Counsel of the Submitting Party. Subject to the
requirements of paragraph 5, a Reviewing Party may disclose Stamped Confidential Documents and
Confidential Information to: (1) paralegals or other employees of such Reviewing Party assisting them in
this proceeding; and (2) employees of third-party contractors involved solely in one or more aspects of
organizing, filing, coding, converting, storing, or retrieving documents or data or designing programs for
handling data connected with this proceeding, or performing other clerical or ministerial functions with
regard to documents connected with this proceeding.
9. Filings with the Commission. A Reviewing Party or the 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") 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 MB DOCKET NOS. 09-182 and 07-294 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
party shall submit a copy of the filing in redacted form, i.e., containing no Confidential Information (the
"Redacted Confidential Filing"), to the Commission via ECFS.7 The Redacted Confidential Filing 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

7 If a party is not able to submit a copy of the Redacted Confidential Filing via ECFS, it must submit two copies of
the Redacted Confidential Filing to the Secretary's Office along with the appropriately stamped cover letter, as
described in this paragraph.
4

Federal Communications Commission

DA 13-1652

Filing and the accompanying cover letter must be delivered as directed by Commission staff to Brendan
Holland, Brendan.Holland@fcc.gov, Industry Analysis Division, Media Bureau, Federal Communications
Commission, 445 12th Street, S.W., Washington, D.C. 20554, and one copy must be served on the
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.
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 the Submitting Party or any affected entity 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 the
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 the Submitting Party and any affected entity 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 and each affected entity 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 and any affected entity. 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
5

Federal Communications Commission

DA 13-1652

other rights and remedies available to the Submitting Party or any affected entity 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.
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
William T. Lake
Chief, Media Bureau
6

Federal Communications Commission

DA 13-1652

APPENDIX A

Acknowledgment of Confidentiality

MB Docket No. 09-182, MB Docket No. 07-294

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 further acknowledge that 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 or Consultants from practice before the Commission, forfeitures,
cease and desist orders, and denial of further access to any type of Confidential Information in this or any
other Commission proceeding. 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, and to ensure that there is
no disclosure of Stamped Confidential Documents or Confidential Information in my possession or in the
possession of those who work for me 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

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.