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Obtaining Confidential Information From 2014 Access Charge Tariffs

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Released: May 22, 2014
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PUBLIC NOTICE

Federal Communications Commission

445 12th St., SW

Washington, DC 20554

News Media Information 202 / 418-0500

Internet: https://www.fcc.gov

TTY: 1-888-835-5322

DA 14-695

Released: May 22, 2014

PROCEDURES FOR OBTAINING CONFIDENTIAL

INFORMATION FROM 2014 ANNUAL ACCESS CHARGE TARIFF FILINGS

WC Docket No. 14-48

This Public Notice describes the process necessary for carriers to obtain access to confidential

information provided with the 2014 annual access charge tariff filing in support of a carrier’s tariff review

plan (TRP).

We expect that carriers will be requesting confidential treatment for certain data filed with the

2014 annual access charge tariff filing.1 Because we recognize that there may be a heightened interest in

reviewing the confidential data of other carriers, we note the procedure that should be followed in

requesting access to confidential information filed with a streamlined tariff.

In the Tariff Streamlining Order,2 the Commission adopted a standard protective order for

purposes of tariff review for tariffs filed pursuant to section 204(a)(3) of the Communications Act of 1934,

as amended.3

Carriers should use the protective order contained in the Tariff Streamlining Order for the

purposes of obtaining access to confidential information filed in this year’s annual access charge tariff

filing.4 Because there will be limited time for review, we suggest that carriers complete the necessary

declaration ahead of time to expedite obtaining and reviewing confidential information. We provide the

protective order and declaration as an Attachment to this Public Notice.

- FCC -

1 See generally Material to be Filed in Support of 2014 Annual Access Tariff Filings, WC Docket No. 14-48, Order,

29 FCC Rcd 3794 (Wireline Comp. Bur. 2014).

2 Implementation of Section 402(b)(1)(A) of the Telecommunications Act of 1996, CC Docket No. 96-187, Report

and Order, 12 FCC Rcd 2170 (1997) (Tariff Streamlining Order).

3 Id. at 2210-16, paras. 87-95.

4 Id. at 2239-45, App. B.

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Federal Communications Commission

ATTACHMENT

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Material to be Filed in Support of

)

WC Docket No. 14-48

2014 Annual Access Tariff Filings

)

PROTECTIVE ORDER

This Protective Order is intended to facilitate and expedite the review of documents containing

trade secrets and commercial or financial information obtained from a person and privileged or

confidential. It reflects the manner in which “Confidential Information,” as that term is defined herein, is

to be treated. The Order is not intended to constitute a resolution of the merits concerning whether any

Confidential Information would be released publicly by the Commission upon a proper request under the

Freedom of Information Act or other applicable law or regulation, including 47 C.F.R. § 0.442.

1.

Definitions.

a.

Authorized Representative. “Authorized Representative” shall have the meaning set forth in

Paragraph seven.

b.

Commission. “Commission” means the Federal Communications Commission or any arm of

the Commission acting pursuant to delegated authority.

c.

Confidential Information. “Confidential Information” means (i) information submitted to the

Commission by the Submitting Party that has been so designated by the Submitting Party and

which the Submitting Party has determined in good faith constitutes trade secrets and

commercial or financial information which is privileged or confidential within the meaning of

Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4) and (ii) information

submitted to the Commission by the Submitting Party that has been so designated by the

Submitting Party and which the Submitting Party has determined in good faith falls within

the terms of Commission orders designating the items for treatment as Confidential

Information. Confidential Information includes additional copies of, notes, and information

derived from Confidential Information.

d.

Declaration. “Declaration” means Attachment A to this Protective Order.

e.

Reviewing Party. “Reviewing Party” means a person or entity participating in this proceeding

or considering in good faith filing a document in this proceeding.

f.

Submitting Party. “Submitting Party” means a person or entity that seeks confidential

treatment of Confidential Information pursuant to this Protective Order.

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Federal Communications Commission

2.

Claim of Confidentiality. The Submitting Party may designate information as “Confidential

Information” consistent with the definition of that term in Paragraph 1 of this Protective Order.

The Commission may, sua sponte or upon petition, pursuant to 47 C.F.R. §§ 0.459 & 0.461,

determine that all or part of the information claimed as “Confidential Information” is not entitled

to such treatment.

3.

Procedures for Claiming Information is Confidential. Confidential Information submitted to the

Commission shall be filed under seal and shall bear on the front page in bold print, “CONTAINS

PRIVILEGED AND CONFIDENTIAL INFORMATION - DO NOT RELEASE.” Confidential

Information shall be segregated by the Submitting Party from all non-confidential information

submitted to the Commission. To the extent a document contains both Confidential Information

and non-confidential information, the Submitting Party shall designate the specific portions of the

document claimed to contain Confidential Information and shall, where feasible, also submit a

redacted version not containing Confidential Information.

4.

Storage of Confidential Information at the Commission. The Secretary of the Commission or

other Commission staff to whom Confidential Information is submitted shall place the

Confidential Information in a non-public file. Confidential Information shall be segregated in the

files of the Commission, and shall be withheld from inspection by any person not bound by the

terms of this Protective Order, unless such Confidential Information is released from the

restrictions of this Order either through agreement of the parties, or pursuant to the order of the

Commission or a court having jurisdiction.

5.

Access to Confidential Information. Confidential Information shall only be made available to

Commission staff, Commission consultants and to counsel to the Reviewing Parties, or if a

Reviewing Party has no counsel, to a person designated by the Reviewing Party. Before counsel

to a Reviewing Party or such other designated person designated by the Reviewing Party may

obtain access to Confidential Information, counsel, or such other designated person must execute

the attached Declaration. Consultants under contract to the Commission may obtain access to

Confidential Information only if they have signed, as part of their employment contract, a non-

disclosure agreement or if they execute the attached Declaration.

6.

Counsel to a Reviewing Party or such other person designated pursuant to Paragraph 5 may

disclose Confidential Information to other Authorized Representatives to whom disclosure is

permitted under the terms of paragraph 7 of this Protective Order only after advising such

Authorized Representatives of the terms and obligations of the Order. In addition, before

Authorized Representatives may obtain access to Confidential Information, each Authorized

Representative must execute the attached Declaration.

7.

Authorized Representatives shall be limited to:

a.

Counsel for the Reviewing Parties to this proceeding including in-house counsel actively

engaged in the conduct of this proceeding and their associated attorneys, paralegals, clerical

staff and other employees, to the extent reasonably necessary to render professional services

in this proceeding;

b.

Specified persons, including employees of the Reviewing Parties, requested by counsel to

furnish technical or other expert advice or service, or otherwise engaged to prepare material

for the express purpose of formulating filings in this proceeding, except that disclosure to

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Federal Communications Commission

persons in a position to use this information for competitive commercial or business purposes

shall be prohibited;

c.

Any person designated by the Commission in the public interest, upon such terms as the

Commission may deem proper.

8.

Inspection of Confidential Information. Confidential Information shall be maintained by a

Submitting Party for inspection at two or more locations, at least one of which shall be in

Washington, D.C. Inspection shall be carried out by Authorized Representatives upon reasonable

notice not to exceed one business day during normal business hours.

9.

Copies of Confidential Information. The Submitting Party shall provide a copy of the

Confidential Material to Authorized Representatives upon request and may charge a reasonable

copying fee not to exceed twenty five cents per page. Authorized Representatives may make

additional copies of Confidential Information but only to the extent required and solely for the

preparation and use in this proceeding, Authorized Representatives must maintain a written

record of any additional copies made and provide this record to the Submitting Party upon

reasonable request. The original copy and all other copies of the Confidential Information shall

remain in the care and control of Authorized Representatives at all times. Authorized

Representatives having custody of any Confidential Information shall keep the documents

properly secured at all times.

10. Filing of Declaration. Counsel for Reviewing Parties shall provide to the Submitting Party and

the Commission a copy of the attached Declaration for each Authorized Representative within

five (5) business days after the attached Declaration is executed, or by any other deadline that

may be prescribed by the Commission.

11. Use of Confidential Information. Confidential Information shall not be used by any person

granted access under this Protective Order for any purpose other than for use in this proceeding

(including any subsequent administrative or judicial review), shall not be used for competitive

business purposes, and shall not be used or disclosed except in accordance with this Order. This

shall not preclude the use of any material or information that is in the public domain or has been

developed independently by any other person who has not had access to the Confidential

Information nor otherwise learned of its contents.

12. Pleadings Using Confidential Information. Submitting Parties and Reviewing Parties may, in any

pleadings that they file in this proceeding, reference the Confidential Information, but only if they

comply with the following procedures:

a.

Any portions of the pleadings that contain or disclose Confidential Information must be

physically segregated from the remainder of the pleadings and filed under seal;

b.

The portions containing or disclosing Confidential Information must be covered by a separate

letter referencing this Protective Order;

c.

Each page of any Party's filing that contains or discloses Confidential Information subject to

this Order must be clearly marked: “Confidential Information included pursuant to Protective

Order, WC Docket No. 14-48;” and

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Federal Communications Commission

d.

The confidential portion(s) of the pleading, to the extent they are required to be served, shall

be served upon the Secretary of the Commission, the Submitting Party, and those Reviewing

Parties that have signed the attached Declaration. Such confidential portions shall be served

under seal, and shall not be placed in the Commission's Public File unless the Commission

directs otherwise (with notice to the Submitting Party and an opportunity to comment on such

proposed disclosure). A Submitting Party or a Reviewing Party filing a pleading containing

Confidential Information shall also file a redacted copy of the pleading containing no

Confidential Information, which copy shall be placed in the Commission's public files. A

Submitting Party or a Reviewing Party may provide courtesy copies of pleadings containing

Confidential Information to Commission staff so long as the notation required by subsection

c. of this paragraph is not removed.

13. Violations of Protective Order. Should a Reviewing Party that has properly obtained access to

Confidential Information under this Protective Order violate any of its terms, it shall immediately

convey that fact to the Commission and to the Submitting Party. Further, should such violation

consist of improper disclosure or use of Confidential Information, the violating party shall take all

necessary steps to remedy the improper disclosure or use. The Violating Party shall also

immediately notify the Commission and the Submitting Party, in writing, of the identity of each

party known or reasonably suspected to have obtained the Confidential Information through any

such 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

attorneys 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 equity against any party using Confidential Information in a manner not authorized by

this Protective Order.

14. Termination of Proceeding. Within two weeks after final resolution of this proceeding (which

includes any administrative or judicial appeals), Authorized Representatives of Reviewing Parties

shall destroy or return to the Submitting Party all Confidential Information as well as all copies

and derivative materials made, and shall certify in a writing served on the Commission and the

Submitting Party that no material whatsoever derived from such Confidential Information has

been retained by any person having access thereto, except that counsel to a Reviewing Party may

retain two copies of pleadings submitted on behalf of the Reviewing Party. Any confidential

information contained in any copies of pleadings retained by counsel to a Reviewing Party or in

materials that have been destroyed pursuant to this paragraph shall be protected from disclosure

or use indefinitely in accordance with paragraphs 9 and 11 of this Protective Order unless such

Confidential Information is released from the restrictions of this Order either through agreement

of the parties, or pursuant to the order of the Commission or a court having jurisdiction.

15. No Waiver of Confidentiality. Disclosure of Confidential Information as provided herein shall

not be deemed a waiver by the Submitting Party of any privilege or entitlement to confidential

treatment of such Confidential Information. Reviewing Parties, by viewing these materials: (a)

agree not to assert any such waiver; (b) agree not to use information derived from any

confidential materials to seek disclosure in any other proceeding; and (c) agree that accidental

disclosure of Confidential Information shall not be deemed a waiver of the privilege.

16. Additional Rights Preserved. The entry of this Protective Order is without prejudice to the rights

of the Submitting Party to apply for additional or different protection where it is deemed

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Federal Communications Commission

necessary or to the rights of Reviewing Parties to request further or renewed disclosure of

Confidential Information.

17. Effect of Protective Order. This Protective Order constitutes an Order of the Commission and an

agreement between the Reviewing Party, executing the attached Declaration, and the Submitting

Party.

18. Authority. This Protective Order is issued pursuant to Sections 4(i) and 4(j) of the

Communications Act as amended, 47 U.S.C. §§154(i), (j), and 47 C.F.R. §0.457(d).

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Federal Communications Commission

APPENDIX TO PROTECTIVE ORDER

DECLARATION

In the Matter of

)

)

Material to be Filed in Support of

)

WCB/Pricing File No. 14-48

2014 Annual Access Tariff Filings

)

I, ____________________, hereby declare under penalty of perjury that I have read the Protective Order

that has been entered by the Commission in this proceeding, and that I agree to be bound by its terms

pertaining to the treatment of Confidential Information submitted by parties to this proceeding. I

understand that the Confidential Information shall not be disclosed to anyone except in accordance with

the terms of the Protective Order and shall be used only for purposes of the proceedings in this matter. I

acknowledge that a violation of the Protective Order is a violation of an order of the Federal

Communications Commission. I acknowledge that this Protective Order is also a binding agreement with

the Submitting Party.

(signed) ____________________

(printed name) ____________________

(representing) ____________________

(title) ____________________

(employer) ____________________

(address) ____________________

(phone) ____________________

(date) ____________________

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