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Second Protective Order in CenturyLink Forbearance Proceeding

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Released: March 5, 2013

Federal Communications Commission

DA 13-338

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Petition of CenturyLink for Forbearance
)
Pursuant to 47 U.S.C. § 160(c) from
)
WC Docket No. 12-60
Dominant Carrier and Certain Computer
)
Inquiry Requirements on Enterprise
)
Broadband Services
)

SECOND PROTECTIVE ORDER

Adopted:

March 5, 2013

Released:

March 5, 2013
By the Chief, Wireline Competition Bureau:
1.
On February 23, 2012, 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” for those services subject to the regulations.3 On March 22, 2012, the
Wireline Competition Bureau (Bureau) issued a Protective Order (First Protective Order) regarding
confidential or proprietary documents that may be submitted going forward in this proceeding by parties
and members of the public.4 For the reasons set forth below, we hereby adopt this Second Protective
Order to ensure that certain highly confidential and competitively sensitive documents and information
that may be submitted in this proceeding are afforded adequate protection.
2.
Today, the Wireline Competition Bureau (Bureau) issued a Public Notice inviting the
public to voluntarily submit data to assist the Commission in evaluating CenturyLink’s petition for
forbearance.5 In addition, the Commission also requested additional data from CenturyLink.6
Consequently, the Bureau hereby adopts this Second Protective Order to ensure that any confidential or
proprietary documents submitted by CenturyLink and others (each a Submitting Party) are afforded
adequate protection.


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. 12-60 (filed Feb. 23, 2012)
(CenturyLink Petition).
2 See 47 U.S.C. § 160.
3 CenturyLink Petition at 1, 9–10. On March 6, 2012, the Wireline Competition Bureau (Bureau) sought comment
on CenturyLink’s petition. 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. 12-60, Public Notice, 27 FCC Rcd 2306 (2012). On Feb. 22, 2013, the Bureau extended by 90 days the
date on which CenturyLink’s petition shall be deemed granted. 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. 12-60, Order, DA 13-286 (rel. Feb. 22, 2013).
4 See 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. 12-60, Protective Order, 27
FCC Rcd 2895 (2012) (First Protective Order).
5 Competition Data Requested in CenturyLink Forbearance Petition, WC Docket 12-60, Public Notice, DA 13-338
(rel. March 5, 2013) (Voluntary Data Request).
6 Letter of Julie Veach, FCC, to Craig Brown, CenturyLink, WC Docket No. 12-60, Letter, DA 13-339 (rel. March
5, 2013)(CenturyLink Data Request).

Federal Communications Commission

DA 13-338

3.
The Commission will grant more limited access to those materials which, if released to
competitors, would allow those competitors to gain a significant advantage in the marketplace.7
Accordingly, we will permit persons submitting such documents and information and those of a similarly
competitively sensitive nature to designate those materials as Highly Confidential and, as provided below,
we will limit access to such materials to Outside Counsel of Record, their employees, and Outside
Consultants whom they retain to assist them in this proceeding. We find that such materials are necessary
to develop a more complete record on which to base the Commission’s decision in this proceeding and
therefore require their production. We are mindful of their highly sensitive nature, but we must also
protect the right of the public to participate in this proceeding in a meaningful way. We conclude that the
protections adopted in this Second Protective Order will give appropriate access to the public while
protecting a Submitting Party’s competitively sensitive information, and will thereby serve the public
interest. We stress that this Second Protective Order covers only the specific data identified in paragraph
6 below that contain Highly Confidential Information.
4.
Acknowledgment. Any party seeking access to highly confidential documents subject to
this Second Protective Order shall request access pursuant to the terms of the Second Protective Order
and must sign the Acknowledgement of Confidentiality, attached as Appendix A (“Acknowledgement”).
5.
Definitions. As used herein, capitalized terms not otherwise defined in this Second
Protective Order shall have the following meanings:
“Stamped Highly Confidential Document” means any document, or any part thereof, 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) “HIGHLY CONFIDENTIAL INFORMATION – SUBJECT TO
SECOND PROTECTIVE ORDER IN WC DOCKET NO. 12-60 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 such 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 Highly Confidential Document,” a Submitting Party signifies and represents that it contains
information that the Submitting Party believes should be subject to protection under the Freedom of
Information Act (FOIA), the Commission’s implementing rules, and this Second Protective Order.
“Highly Confidential Information” means information contained in Stamped Highly Confidential
Documents or derived therefrom that is not otherwise available from public sources and that the
Submitting Party has kept strictly confidential and that falls within a category described in paragraph 6.
Specifically, Highly Confidential Information covered by the Second Protective Order refers to those
portions of documents or data – or entire documents, if eligible in their entirety – that meet the conditions
described in this paragraph. To the extent a Submitting Party believes that a submission satisfies the
definition of Highly Confidential Information, the Submitting Party must file a letter explaining which
category of paragraph 6 the information falls within.
“Outside Counsel of Record” or “Outside Counsel” means the firm(s) of attorneys, or sole
practitioner(s), as the case may be, representing a party in this proceeding, provided that such persons are
not involved in competitive decision-making, i.e., Outside Counsel’s activities, association, and
relationship with a client do not involve advice about or participation in the business decisions of the


7 See, e.g., News Corporation, The DIRECTV Group, Inc, and Liberty Media Corporation, Application for Authority
to Transfer Control
, MB Docket No. 07-18, Order, 22 FCC Rcd 2797 (2007) (adopting a second protective order);
Adelphia Communications Corp., Time Warner Cable Inc. and Comcast Corp., Applications for Consent to the
Assignment and/or Transfer of Control
, MB Docket No. 05-192, Order, 20 FCC Rcd 20073 (2005) (adopting a
second protective order); News Corporation, General Motors Corporation, and Hughes Electronic Corporation,
MB Docket No. 03-124, Order, 18 FCC Rcd 15198 (2003) (adopting a second protective order).
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DA 13-338

client or of any competitor of a Submitting Party nor the analysis underlying the business decisions.
Outside Counsel of Record includes any attorney representing a non-commercial party in these
proceedings, provided that such a person is not involved in the competitive decision-making activities of
any competitor of a Submitting Party.
“Outside Consultants” means consultants or experts retained for the purpose of assisting Counsel
or a party in this proceeding, provided that the Outside Consultants are not involved in competitive
decision-making, i.e., Outside Consultants’ activities, association, and relationship with a client do not
involve advice about or participation in the business decisions of the client or any competitor of a
Submitting Party nor the analysis underlying the business decisions. Outside Consultants include any
expert employed by a non-commercial party in these proceedings, provided that such a person is not
involved in the competitive decision-making activities of any competitor of a Submitting Party.
“Reviewing Party” means a person who has obtained access to Highly Confidential Information
(including Stamped Highly Confidential Documents) pursuant to paragraphs 9 and 12 of this Second
Protective Order.
6.
Categories of Highly Confidential Information Covered by This Second Protective Order.
A document or a portion of a document may be submitted under the Second Protective Order if it contains
highly detailed or granular customer or geographic information as requested in the CenturyLink Data
Request and Voluntary Data Request.8 A document or a portion of a document may also be submitted
under the Second Protective Order if it provides customer category information or detailed technical or
financial information, or competition analysis for Listed Services.9
7.
Use of Highly Confidential Information. Persons obtaining access to Highly Confidential
Information (including Stamped Highly Confidential Documents) under this Second Protective Order
shall use the information solely for participation in this proceeding before the Commission as delineated
in this and subsequent paragraphs, and any 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 Highly Confidential Documents or Highly Confidential Information in its
decision in this proceeding, it will do so by redacting any Highly 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 Highly Confidential Information under this Second
Protective Order.
8.
Non-Disclosure of Stamped Highly Confidential Documents and Highly Confidential
Information. Except with the prior written consent of the Submitting Party, or as hereinafter provided
under this Second Protective Order, neither a Stamped Highly Confidential Document nor any Highly
Confidential Information may be disclosed further.
9.
Permissible Disclosure. Subject to the requirements of paragraph 12, Stamped Highly
Confidential Documents may be reviewed by Outside Counsel and Outside Consultants. Outside Counsel
and Outside Consultants may disclose Stamped Highly Confidential Documents and other Highly
Confidential Information to: (1) paralegals or other employees of such Outside Counsel or Outside
Consultants not described in clause 2 of this paragraph assisting Outside Counsel or Outside Consultants
in this proceeding; (2) employees of such Outside Counsel or Outside Consultants 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


8 Voluntary Data Request; CenturyLink Data Request.
9 Voluntary Data Request; CenturyLink Data Request.
3

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DA 13-338

ministerial functions with regard to documents connected with this proceeding; and (3) employees of
third-party contractors performing one or more of the functions set forth in clause 2 of this paragraph.
Reviewing Parties may discuss and share the contents of the Stamped Highly Confidential Documents
and Highly Confidential Information with any other Reviewing Party and with the Commission and its
staff. A Submitting Party’s Stamped Highly Confidential Documents and Highly Confidential
Information may also be disclosed to employees and Counsel of the Submitting Party.
10.
Protection of Stamped Highly Confidential Documents and Highly Confidential
Information. Persons described in paragraph 12 shall have the obligation to ensure that access to Stamped
Highly Confidential Documents and Highly Confidential Information is strictly limited as prescribed in
this Second Protective Order. Such persons shall further have the obligation to ensure that Stamped
Highly Confidential Documents and Highly Confidential Information are used only as provided in this
Second Protective Order.
11.
Copying Sensitive Documents. Any Highly Confidential Documents may be marked 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, subject to the provisions
for access to information in electronic format in paragraph 13. 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.
12.
Procedures for Obtaining Access to Highly Confidential Documents. In all cases where
access to Stamped Highly Confidential Documents and Highly Confidential Information is permitted
pursuant to paragraph 9, before reviewing or having access to any Stamped Highly Confidential
Documents or Highly Confidential Information, each person seeking such access shall execute the
attached Acknowledgment of Confidentiality (“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 such Submitting Party’s Stamped Highly Confidential Documents
or Highly Confidential Information, except that, where the person seeking access is one described in
either clause 2 or 3 of paragraph 9, the Acknowledgment shall be delivered promptly prior to the person
obtaining access. Each Submitting Party shall have an opportunity to object to the disclosure of Stamped
Highly Confidential Documents 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 either clause 2 or 3 of paragraph 9, 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 prior to any disclosure, and unless such objection
is resolved in favor of the person seeking access, persons subject to an objection from a Submitting Party
shall not have access to Stamped Highly Confidential Documents or Highly Confidential Information.
The Submitting Party shall make available for review the Stamped Highly Confidential Documents of
such party at the offices of such 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; provided, however, that
the Applicants shall make available for review all of their Stamped Highly Confidential Documents at the
offices of one Applicant’s Outside Counsel of Record (the “Applicants’ Custodian 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. This will allow parties the opportunity to begin
reviewing the documents at the end of the five-day period referred to above. All copies of documents that
4

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DA 13-338

are removed from the Submitting Party’s office will be stamped as described herein and must be returned
or destroyed in accordance with the terms of this Second Protective Order.
13.
Highly Confidential Information in Electronic Format. If a party’s Outside Counsel or
Outside Consultant has been granted access to Stamped Highly Confidential Documents and Highly
Confidential Information pursuant to paragraphs 9 and 12, that Outside Counsel or Outside Consultant
may request one copy of information contained, recorded, or electronically stored on a CD-ROM, DVD,
flash drive, portable hard drive or similar electronic storage device. The disk or other medium containing
Highly Confidential Information in electronic format shall be physically sent to the Outside Counsel or
Outside Consultant; it shall not be transmitted electronically.
a.
A person in receipt of Highly Confidential Information in electronic format shall
load the information onto a computer solely for the purpose of analysis in connection with this proceeding
and for no other purpose. The original disk or other storage medium shall be stored in a secure location
and a record kept of any persons given access to the disk. Only persons who have signed the
Acknowledgement to this Second Protective Order may be given access to the disk.
b.
Once loaded onto a computer, the files containing Highly Confidential
Information shall be password protected immediately. The password shall be given only to persons who
have signed the Acknowledgement to this Order. The Highly Confidential Information may not be stored
on a computer after being analyzed. After the analysis is complete, the results of such analysis may be
stored by saving the results (but not the underlying Highly Confidential Information) to a mobile data
storage medium. All files containing Highly Confidential Information shall be deleted from the computer
as soon as practicable.
14.
Requests for Additional Disclosure. If any person requests disclosure of Highly
Confidential Information outside the terms of this Second Protective Order, such a request will be treated
in accordance with Sections 0.442 and 0.461 of the Commission’s rules.
15.
Filings with the Commission. Persons described in paragraphs 9 and 12 may, in any
documents that they file in this proceeding, reference Highly 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: “HIGHLY
CONFIDENTIAL INFORMATION – SUBJECT TO SECOND PROTECTIVE ORDER IN WC
DOCKET NO. 12-60 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 “HIGHLY CONFIDENTIAL INFORMATION – SUBJECT TO
SECOND PROTECTIVE ORDER IN WC DOCKET NO. 12-60 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 Highly Confidential Information shall
be clearly identifiable as such, so that those portions that are deemed to be Highly Confidential
Information are readily identifiable based on an examination of the filing.
d.
Two redacted copies of the filing containing neither Highly Confidential
Information nor 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
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DA 13-338

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 Highly Confidential Information and the
accompanying cover letter shall be delivered in person to Jennifer Prime, Competition Policy Division,
Wireline Competition Bureau, Federal Communications Commission, 445 12th Street, S.W., Room 5-
C235, Washington, D.C. 20554. In addition, a person making a filing containing Highly Confidential
Information shall serve a copy on the relevant Submitting Party.
f.
Parties should not provide courtesy copies of pleadings containing Highly
Confidential Information to Commission staff unless the Bureau so requests. Any courtesy copies shall
be submitted under seal.
16. Client Consultation. Nothing in this order shall prevent or otherwise restrict Outside
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 Highly Confidential Documents or Highly Confidential Information; provided,
however
, that in rendering such advice and otherwise communicating with such client, Counsel shall not
disclose Stamped Highly Confidential Documents or Highly Confidential Information.
17. No Waiver of Confidentiality. Disclosure of Highly 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 Highly Confidential Information. Reviewing Parties, by
viewing this material agree: (1) not to assert any such waiver; (2) not to use Highly Confidential
Information to seek disclosure in any other proceeding; and (3) that accidental disclosure of Highly
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.
18.
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 Highly Confidential Documents or Highly
Confidential Information that a party has obtained under terms of this Second 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 Highly Confidential Document or Highly Confidential Information.
19.
Violations of Protective Order. Should a person that has properly obtained access to
Highly Confidential Information under this Second 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 Highly 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 Second 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 Highly 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 Highly Confidential Information in a
manner not authorized by this Second Protective Order.
20.
Termination of Proceeding. The provisions of this Second 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 9 shall destroy or return to the
Submitting Party Stamped Highly Confidential Documents and all copies of the same. No material
whatsoever derived from Stamped Highly Confidential Documents may be retained by any person having
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DA 13-338

access thereto, except Outside Counsel (as described in paragraph 9 and12) may retain, under the
continuing strictures of this Second Protective Order, two copies of pleadings (one of which may be in
electronic format) containing Highly Confidential Information prepared on behalf of that party. All
Outside Counsel shall make certification of compliance herewith and shall deliver the same to Outside
Counsel for the Submitting Party not more than three weeks after conclusion of this proceeding and any
administrative or judicial review. The provisions of this paragraph regarding retention of Stamped Highly
Confidential Documents and copies of same shall not be construed to apply to the Commission or its
staff.
21. 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 Veach
Chief, Wireline Competition Bureau
7

Federal Communications Commission

DA 13-338

APPENDIX A

Acknowledgment of Confidentiality

WC Docket No. 12-60

I hereby acknowledge that I have received and read a copy of the foregoing Second Protective
Order in the above-captioned proceeding, and I understand it. I agree that I am bound by the Second
Protective Order and that I shall not disclose or use Stamped Highly Confidential Documents or Highly
Confidential Information except as allowed by the Second Protective Order. I acknowledge that a
violation of the Second 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
public interest organization), I acknowledge specifically that my access to any information obtained as a
result of the Second Protective Order is due solely to my capacity as Outside Counsel or Outside Counsel
of Record or Outside Consultant to a party or other person described in paragraph 9 of the foregoing
Second 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 Second Protective Order.
I acknowledge that it is my obligation to ensure that: (1) Stamped Highly Confidential
Documents and Highly Confidential Information are used only as provided in the Second Protective
Order; and (2) Stamped Highly Confidential Documents are not duplicated except as specifically
permitted by the terms of the Second Protective Order, and I certify that I have verified that there are in
place procedures at my firm or office to prevent unauthorized disclosure of Stamped Highly Confidential
Documents or Highly Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them
in the Second Protective Order.
Executed at ________________________ this ___ day of _____________, ____.
_________________________________
[Name]

[Position]
[Address]
[Telephone]
8

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