Opinion

MCI Communications Services, Inc. v. Skanska-Traylor-Shea

Court: District Court, C.D. California
Filed: Jan 24, 2020
Cited by: 0 cases
Authority: More cited than 17.9%

recognizing third, program impairment prong of Exemption 4

How later courts described this case

recognizing third, program impairment prong of Exemption 4

Written by the judges who cited it.

The opinion

1 R Ro acb he art e lD K. S elh leo ye c [r Ca aft l i[ fC ora nli if ao Brn ai ra NB oa .r 2N 9o 2. 7 9 16 82 17] P18at1r2ic7k4 ]J . Mendes [California Bar No.

2 rshoecraft@sbcivillaw.com David P. Ramirez. [California Bar No.

137994]

rkelley@sbcivillaw.com

3 Chandra A. Roam [Bar No. 323379]

SHOECRAFT BURTON, LLP TYSON & MENDES LLP

4 750 B. Street, Suite 2610 5661 La Jolla Blvd.

San Diego, CA 92101 La Jolla, CA 92037

5 Telephone (619) 794-2280 Phone: (858) 459-4400

Facsimile (619) 794-2278 Fax: (858) 459-3864

ATTORNEYS FOR PLAINTIFFS ATTORNEYS FOR DEFENDANTS

UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

11 MCI COMMUNICATIONS SERVICES,

INC. and MCIMETRO ACCESS

TRANSMISSION SERVICES CORP., Case No. 5:19-cv-01294-DSF-KK

Plaintiffs,

vs.

16 SKANSKA-TAYLOR-SHEA, a joint [PROPOSED] STIPULATED

venture; SKANSKA USA CIVIL WEST PROTECTIVE ORDER

CALIFORNIA DISTRICT, INC.; J.F.

18 SHEA CONSTRUCTION, INC.; and

TRAYLOR BROS, INC.,

Defendants.

1. A. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,

proprietary, or private information for which special protection from public

disclosure and from use for any purpose other than prosecuting this litigation may

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

enter the following Stipulated Protective Order. The parties acknowledge that this

1 Order does not confer blanket protections on all disclosures or responses to

2 discovery and that the protection it affords from public disclosure and use extends

3 only to the limited information or items that are entitled to confidential treatment

4 under the applicable legal principles. The parties further acknowledge, as set forth

5 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

6 file confidential information under seal; Civil Local Rule 79-5 sets forth the

7 procedures that must be followed and the standards that will be applied when a

8 party seeks permission from the court to file material under seal.

10 B. GOOD CAUSE STATEMENT

11 Plaintiffs MCI Communications Services, Inc. and MCImetro Access

12 Transmission Services Corp. (collectively “MCI”) possess certain confidential and

13 proprietary information and/or documents relating to the subject matter of this

14 action which, in the course of discovery, MCI may need to disclose or produce to

15 Defendants.

16 This information and/or the documents containing this information concern

17 the direct and root causes of the damage to MCI’s underground telecommunications

18 cable and/or networks that gives rise to this action, the duration of the disruption to

19 MCI’s networks, the range and types of services affected, the scope and gravity of

20 the impact across all platforms and geographic areas, specific equipment failures,

21 the specific network elements impacted, remedial measures and/or best practices

22 applied, and/or an appraisal of the effectiveness of those best practices.

23 The Federal Communications Commission (the “FCC”) and the Department

24 of Homeland Security (the “DHS”) have concluded that such information could be

25 used by hostile parties to attack MCI’s telecommunications network that is a vital

26 part of the Nation’s critical information infrastructure and that the disclosure of

27 such information to the public could present an unacceptable risk of more effective

1 terrorist activity. See In the Matter of New Part 4 of the Commission’s Rules

2 Concerning Disruptions to Communications, FCC 04-188, ET Docket No. 04-35,

3 Report and Order and Further Notice of Proposed Rule Making (Released Aug. 19,

4 2004) at ¶¶ 3,10-12, 40 (hereinafter the “FCC Order”) (relevant portions attached as

5 Exhibit 1).

6 In the course of discovery it may be also be necessary for MCI to disclose or

7 produce to Defendants certain confidential or proprietary information, and/or

8 documents containing confidential or proprietary information, regarding the

9 identities of specific customers affected by the damage to the cable and the types of,

10 amounts of, and durations, those customers’ services were impacted.

11 The FCC has concluded that, given the highly competitive nature of the

12 telecommunications industry and the use MCI’s competitors could make of such

13 information, the disclosure of such information creates a presumptive likelihood of

14 substantial competitive harm. See FCC Order (Exhibit 1) at ¶¶ 42-45.

15 In light of these circumstances, MCI believes good cause exists for the entry

16 of the Protective Order to ensure that such information or documents are not

17 disclosed to third parties or used for any purpose other than this litigation.

19 2. DEFINITIONS

20 2.1 Action: this pending federal law suit.

2.2 Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

2.3 “CONFIDENTIAL” Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

the Good Cause Statement.

1 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as

2 their support staff).

3 2.5 Designating Party: a Party or Non-Party that designates information or

4 items that it produces in disclosures or in responses to discovery as

“CONFIDENTIAL.”

2.6 Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,

among other things, testimony, transcripts, and tangible things), that are produced

or generated in disclosures or responses to discovery in this matter.

2.7 Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as

an expert witness or as a consultant in this Action.

14 2.8 House Counsel: attorneys who are employees of a party to this Action.

15 House Counsel does not include Outside Counsel of Record or any other outside

16 counsel.

17 2.9 Non-Party: any natural person, partnership, corporation, association, or

18 other legal entity not named as a Party to this action.

19 2.10 Outside Counsel of Record: attorneys who are not employees of a

party to this Action but are retained to represent or advise a party to this Action and

have appeared in this Action on behalf of that party or are affiliated with a law firm

which has appeared on behalf of that party, and includes support staff.

2.11 Party: any party to this Action, including all of its officers, directors,

employees, consultants, retained experts, and Outside Counsel of Record (and their

support staffs).

2.12 Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this Action.

1 2.13 Professional Vendors: persons or entities that provide litigation

2 support services (e.g., photocopying, videotaping, translating, preparing exhibits or

3 demonstrations, and organizing, storing, or retrieving data in any form or medium)

4 and their employees and subcontractors.

2.14 Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”

2.15 Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.

3. SCOPE

The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or

14 extracted from Protected Material; (2) all copies, excerpts, summaries, or

15 compilations of Protected Material; and (3) any testimony, conversations, or

16 presentations by Parties or their Counsel that might reveal Protected Material.

17 Any use of Protected Material at trial shall be governed by the orders of the

18 trial judge. This Order does not govern the use of Protected Material at trial.

4. DURATION

Even after final disposition of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees

otherwise in writing or a court order otherwise directs. Final disposition shall be

deemed to be the later of (1) dismissal of all claims and defenses in this Action,

with or without prejudice; and (2) final judgment herein after the completion and

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

1 including the time limits for filing any motions or applications for extension of time

2 pursuant to applicable law.

4 5. DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under

this Order must take care to limit any such designation to specific material that

qualifies under the appropriate standards. The Designating Party must designate for

protection only those parts of material, documents, items, or communications that

qualify – so that other portions of the material documents, items, or

communications for which protection is not warranted are not swept unjustifiably

within the ambit of this Order.

14 Mass, indiscriminate, or routinized designations are prohibited. Designations

15 that are shown to be clearly unjustified or that have been made for an improper

16 purpose (e.g., to unnecessarily encumber the case development process or to

17 impose unnecessary expenses and burdens on other parties) may expose the

18 Designating Party to sanctions.

19 If it comes to a Designating Party’s attention that information or items that it

designated for protection do not qualify for protection, that Designating Party must

promptly notify all other Parties that it is withdrawing the inapplicable designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

under this Order must be clearly so designated before the material is disclosed or

produced.

1 Designation in conformity with this Order requires:

2 (a) for information in documentary form (e.g., paper or electronic

3 documents, but excluding transcripts of depositions or other pretrial or trial

4 proceedings), that the Producing Party affix at a minimum, the legend

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

contains protected material. If only a portion or portions of the material on a page

qualifies for protection, the Producing Party also must clearly identify the protected

portion(s) (e.g., by making appropriate markings in the margins).

A Party or Non-Party that makes original documents available for inspection

need not designate them for protection until after the inspecting Party has indicated

which documents it would like copied and produced. During the inspection and

before the designation, all of the material made available for inspection shall be

14 deemed “CONFIDENTIAL.” After the inspecting Party has identified the

15 documents it wants copied and produced, the Producing Party must determine

16 which documents, or portions thereof, qualify for protection under this Order. Then,

17 before producing the specified documents, the Producing Party must affix the

18 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a

19 portion or portions of the material on a page qualifies for protection, the Producing

Party also must clearly identify the protected portion(s) (e.g., by making

appropriate markings in the margins).

(b) for testimony given in depositions that the Designating Party identify

the Disclosure or Discovery Material on the record, before the close of the

deposition all protected testimony.

for any other tangible items, that the Producing Party affix in a prominent place on

the exterior of the container or containers in which the information is stored the

1 legend “CONFIDENTIAL.” If only a portion or portions of the information

2 warrants protection, the Producing Party, to the extent practicable, shall identify the

3 protected portion(s).

4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive

the Designating Party’s right to secure protection under this Order for such

material. Upon timely correction of a designation, the Receiving Party must make

reasonable efforts to assure that the material is treated in accordance with the

provisions of this Order.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party or Non-Party may challenge a

14 designation of confidentiality at any time that is consistent with the Court’s

15 Scheduling Order.

16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

17 resolution process under Local Rule 37.1 et seq.

18 6.3 The burden of persuasion in any such challenge proceeding shall be on

19 the Designating Party. Frivolous challenges, and those made for an improper

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

parties) may expose the Challenging Party to sanctions. Unless the Designating

Party has waived or withdrawn the confidentiality designation, all parties shall

continue to afford the material in question the level of protection to which it is

entitled under the Producing Party’s designation until the Court rules on the

challenge.

1 7. ACCESS TO AND USE OF PROTECTED MATERIAL

2 7.1 Basic Principles. A Receiving Party may use Protected Material that is

3 disclosed or produced by another Party or by a Non-Party in connection with this

4 Action only for prosecuting, defending, or attempting to settle this Action. Such

Protected Material may be disclosed only to the categories of persons and under the

conditions described in this Order. When the Action has been terminated, a

Receiving Party must comply with the provisions of section 13 below (FINAL

DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a

location and in a secure manner that ensures that access is limited to the persons

authorized under this Order.

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

14 otherwise ordered by the court or permitted in writing by the Designating Party, a

15 Receiving Party may disclose any information or item designated

16 “CONFIDENTIAL” only to:

17 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

18 well as employees of said Outside Counsel of Record to whom it is reasonably

19 necessary to disclose the information for this Action;

(b) the officers, directors, and employees (including House Counsel) of

the Receiving Party to whom disclosure is reasonably necessary for this Action;

disclosure is reasonably necessary for this Action and who have signed the

“Acknowledgment and Agreement to Be Bound” (Exhibit 2);

(d) the court and its personnel;

(e) court reporters and their staff;

1 (f) professional jury or trial consultants, mock jurors, and Professional

2 Vendors to whom disclosure is reasonably necessary for this Action and who have

3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 2);

4 (g) the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;

(h) during their depositions, witnesses, and attorneys for witnesses, in

the Action to whom disclosure is reasonably necessary provided: (1) the deposing

party requests that the witness sign the form attached as Exhibit 2 hereto; and (2)

they will not be permitted to keep any confidential information unless they sign the

“Acknowledgment and Agreement to Be Bound” (Exhibit 2), unless otherwise

agreed by the Designating Party or ordered by the court. Pages of transcribed

deposition testimony or exhibits to depositions that reveal Protected Material may

14 be separately bound by the court reporter and may not be disclosed to anyone

15 except as permitted under this Stipulated Protective Order; and

16 (i) any mediator or settlement officer, and their supporting personnel,

17 mutually agreed upon by any of the parties engaged in settlement discussions.

19 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION

If a Party is served with a subpoena or a court order issued in other litigation

that compels disclosure of any information or items designated in this Action as

“CONFIDENTIAL,” that Party must:

(a) promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or order

to issue in the other litigation that some or all of the material covered by the

1 subpoena or order is subject to this Protective Order. Such notification shall include

2 a copy of this Stipulated Protective Order; and

3 (c) cooperate with respect to all reasonable procedures sought to be

4 pursued by the Designating Party whose Protected Material may be affected.

If the Designating Party timely seeks a protective order, the Party served with

the subpoena or court order shall not produce any information designated in this

action as “CONFIDENTIAL” before a determination by the court from which the

subpoena or order issued, unless the Party has obtained the Designating Party’s

permission. The Designating Party shall bear the burden and expense of seeking

protection in that court of its confidential material and nothing in these provisions

should be construed as authorizing or encouraging a Receiving Party in this Action

to disobey a lawful directive from another court.

15 9. NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

16 PRODUCED IN THIS LITIGATION

17 (a) The terms of this Order are applicable to information produced by a

18 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

19 produced by Non-Parties in connection with this litigation is protected by the

remedies and relief provided by this Order. Nothing in these provisions should be

construed as prohibiting a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

subject to an agreement with the Non-Party not to produce the Non-Party’s

confidential information, then the Party shall:

1 (1) promptly notify in writing the Requesting Party and the Non-

2 Party that some or all of the information requested is subject to a confidentiality

3 agreement with a Non-Party;

4 (2) promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this Action, the relevant discovery request(s), and a reasonably

specific description of the information requested; and

(3) make the information requested available for inspection by the

Non-Party, if requested.

14 days of receiving the notice and accompanying information, the Receiving Party

may produce the Non-Party’s confidential information responsive to the discovery

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

14 not produce any information in its possession or control that is subject to the

15 confidentiality agreement with the Non-Party before a determination by the court.

16 Absent a court order to the contrary, the Non-Party shall bear the burden and

17 expense of seeking protection in this court of its Protected Material.

19 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

writing the Designating Party of the unauthorized disclosures, (b) use its best

efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

person or persons to whom unauthorized disclosures were made of all the terms of

this Order, and (d) request such person or persons to execute the “Acknowledgment

and Agreement to Be Bound” that is attached hereto as Exhibit 2.

1 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

2 PROTECTED MATERIAL

3 When a Producing Party gives notice to Receiving Parties that certain

4 inadvertently produced material is subject to a claim of privilege or other

protection, the obligations of the Receiving Parties are those set forth in Federal

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

whatever procedure may be established in an e-discovery order that provides for

production without prior privilege review. Pursuant to Federal Rule of Evidence

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

of a communication or information covered by the attorney-client privilege or work

product protection, the parties may incorporate their agreement in the stipulated

protective order submitted to the court.

15 12. MISCELLANEOUS

16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any

17 person to seek its modification by the Court in the future.

18 12.2 Right to Assert Other Objections. By stipulating to the entry of this

19 Protective Order no Party waives any right it otherwise would have to object to

disclosing or producing any information or item on any ground not addressed in

this Stipulated Protective Order. Similarly, no Party waives any right to object on

any ground to use in evidence of any of the material covered by this Protective

Order.

12.3 Filing Protected Material. A Party that seeks to file under seal any

Protected Material must comply with Civil Local Rule 79-5. Protected Material

may only be filed under seal pursuant to a court order authorizing the sealing of the

specific Protected Material at issue. If a Party's request to file Protected Material

1 under seal is denied by the court, then the Receiving Party may file the information

2 in the public record unless otherwise instructed by the court.’

4 13. FINAL DISPOSITION

After the final disposition of this Action, as defined in paragraph 4, within 60

days of a written request by the Designating Party, each Receiving Party must

return all Protected Material to the Producing Party or destroy such material. As

used in this subdivision, “all Protected Material” includes all copies, abstracts,

compilations, summaries, and any other format reproducing or capturing any of the

Protected Material. Whether the Protected Material is returned or destroyed, the

Receiving Party must submit a written certification to the Producing Party (and, if

not the same person or entity, to the Designating Party) by the 60 day deadline that

14 (1) identifies (by category, where appropriate) all the Protected Material that was

15 returned or destroyed and (2)affirms that the Receiving Party has not retained any

16 copies, abstracts, compilations, summaries or any other format reproducing or

17 capturing any of the Protected Material. Notwithstanding this provision, Counsel

18 are entitled to retain an archival copy of all pleadings, motion papers, trial,

19 deposition, and hearing transcripts, legal memoranda, correspondence, deposition

and trial exhibits, expert reports, attorney work product, and consultant and expert

work product, even if such materials contain Protected Material. Any such archival

copies that contain or constitute Protected Material remain subject to this Protective

Order as set forth in Section 4 (DURATION).

14. Any violation of this Order may be punished by any and all

appropriate measures including, without limitation, contempt proceedings and/or

monetary sanctions.

1 ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.

3 | DATED LC (1/9

6 || Robert D. Shoecréf#Y California Bar No. 96217]

Rachael Kelley [California Bar No. 292718

7 rshoecraft@sbcivillaw.com

g | rkelley@sbcivillaw.com

SHOECRAFT BURTON, LLP

| 750 B. Street, Suite 2610

10 | San Diego, CA 92101

Telephone (619) 794-2280

"| Facsimile (619) 794-2278

3 Attorneys for Plaintiffs

IS} paren: /¢//L Ay

1g | David ¥. Ramirez [California B -137994]

T IN & MENDES

19 | 5661 La Jolla Blvd.

29 || San Diego, CA 92037

Telephone: (858) 459-4400

21 | Facsimile: (858) 459-3864

Attorneys for Defendants

-15-

1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

3 DATED:___Ja_n_u_a_r_y_ 2_4_,_ 2_0_2_0_________

_____________________________________

HON. KENLY KIYA KATO

6 UNITED STATES MAGISTRATE JUDGE

Exhibit 1

(FCC Order)

Applicable Portions of

FCC 04-188, ET Docket No. 04-35

Report and Order and Further Notice of Proposed Rule Making

(Released Aug. 19, 2004)

Federal Communications Commission FCC 04-188

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of )

)

New Part 4 of the Commission’s Rules )

Concerning Disruptions to Communications ) ET Docket No. 04-35

)

REPORT AND ORDER and FURTHER NOTICE OF PROPOSED RULE MAKING

Adopted: August 4, 2004 Released: August 19, 2004

COMMENT DATE: [60 days after publication in the Federal Register]

REPLY COMMENT DATE: [90 days after publication in the Federal Register]

By the Commission: Chairman Powell, Commissioners Abernathy, Copps, Martin and Adelstein

issuing separate statements.

Table of Contents

Paragraph No.

I. Introduction and Executive Summary

Executive Summary

IL. Extension of Mandatory Reporting Requirements for Communications Providers 10

Background 10

Proposal 19

Comments 20

Discussion 32

If. Consistent Reporting 48

A. Common Metric 48

Proposal 48

Comments $3

Discussion 55

B. Simplified Reporting for Special Offices and Facilities

and 911 Services 57

Proposal 57

Comments 60

Discussion 64

C. Further Notice of Proposed Rule Making (Airports) 67

Federal Communications Commission FCC 04-188

provide voice and/or paging communications. As proposed, we adopt a common metric that will apply

across all communications platforms in determining the general outage-reporting threshold criteria,” we

will require electronic filing of all outage information through a “fill in the blank” template, and we will

move the outage-reporting rule from existing section 63.100 to new Part 4 of our rules. We have applied

the common metric as a basis for determining specific outage-reporting threshold criteria that account for

the unique technical aspects of each communications platform.

3. The overwhelming majority of the commenting parties, including the Department of

Homeland Security (“DHS”), have demonstrated that the outage reports will contain sensitive data, which

requires confidential treatment under the Freedom of Information Act (“FOIA”). This data, though useful

for the analysis of past and current outages in order to increase the reliability and security of

telecommunications networks in the future, could be used by hostile parties to attack those networks,

which are part of our Nation’s critical information infrastructure. The disclosure of outage reporting

information to the public could present an unacceptable risk of more effective terrorist activity. We

therefore will treat the information that will be provided as confidential. This information will be

withheld from disclosure to the public in accordance with the Freedom of Information Act. This action is

the most significant revision to our original proposal that we have adopted in this Report and Order.

4, We have also adopted simplified criteria for reporting outages that potentially affect

911/E911 and other special offices and facilities. Currently, only major airports are included within the

special office and facility outage-reporting criteria) We have expanded the coverage of the reporting

requirement to include more airports, specifically those that are listed as primary (PR), commercial

service (CM), and reliever (RL) airports in the FAA’s National Plan of Integrated Airport Systems

(NPIAS) (as issued at least one calendar year prior to the outage). To better address unique

communications needs of airports, we have adopted a Further Notice of Proposed Rule Making. The

Further Notice requests comment on additional types of airport communications that should be subject to

service disruption reports and on whether reporting requirements should be extended to cover general

aviation airports. In response to concerns raised by commenting parties about possible ambiguity in our

proposed 911/E911 outage-reporting threshold criteria, we have adopted the following revised criteria:

(1) There is a loss of communications to PSAP(s) potentially affecting at least 900,000 user-minutes

and: (a) the failure is neither at the PSAP(s) nor on the premises of the PSAP(s); (b) no reroute

for all end users is available; and (c) the outage lasts 30 minutes or more; or

(2) There is a loss of 911 call processing capabilities in one or more E911 tandems/selective routers

for at least 30 minutes duration; or

(3) One or more end-office or MSC switches or host/remote clusters is isolated from 911 service for

at least 30 minutes and potentially affects at least 900,000 user-minutes; or

(4) There is a loss of ANI/ALI and/or a failure of location determination equipment, including Phase

Il equipment, for at least 30 minutes and potentially affecting at least 900,000 user-minutes

(provided that the ANI/ALI or the necessary location determination equipment was then currently

5 The common metric is the number of “user-minutes” potentially affected by an outage and is defined as the

mathematical result of multiplying the outage’s duration expressed in minutes and the number of users potentially

affected by the outage. For example, a 30-minute outage that potentially affects 30,000 end users also potentially

affects 900,000 user-minutes (30 minutes X 30,000 users = 900,000 user-minutes). The general threshold criteria

are that an outage must be reported to the Commission if (a) its duration is at least 30 minutes; and (b) it potentially

affects at least 900,000 user-minutes.

Federal Communications Commission FCC 04-188

8. Regarding major infrastructure failures, we have adopted our original proposal to require

the reporting of all outages of at least 30 minutes duration that potentially affect at least 1,350 DS3

minutes. We observe that a DS3 is a communications highway that has been put in place to carry traffic

in a digital format. That traffic can range, for example, from simple alarm and control circuits, to voice

circuits, to radio and television programs, to circuits carrying ATM or credit card transactions, to FAA

flight control circuits, to Department of Defense circuits, to circuits transferring billions of dollars from

one Federal Reserve Bank to another, and to circuits critical to the operation of the stock and bond

markets. Our concern is with the unavailability of significant portions of the communication highway

regardless of how lightly or heavily those portions may be loaded at any particular time.® In addition, we

have adopted our proposal to require SS7 providers to report significant outages because of the central

importance of SS7 in much of the Nation’s critical telecommunications infrastructure.

9. Finally, we have modified our illustrative electronic filing process. We will provide a

method for date and time stamping all report submissions, which also will be assigned a unique identifier

or control number, and will provide other user-friendly features. We are currently investigating the

proper level of security for the electronic system, which may include use of digital signatures and

encryption.

Il. Extension of Mandatory Reporting Requirements for Communications Providers

10. Background. The terrorist acts of September 11, 2001 starkly illustrate the need for

reliable communications during times of crisis. First responders and medical personnel were notified by

pagers, cellular telephones, wireline telephones, and the Internet of the tragic events that had occurred,

and were occurring, and the immediate need for their services. When these services failed or were

overwhelmed, first responders sometimes found themselves falling back on old fashioned “messenger”

tactics. Long distance communications, including satellite communications, were used to initiate the

movement of equipment and personnel into the affected areas for restoration purposes and to coordinate

their work. All levels of government (municipal, county, state, and Federal) coordinated their restoration

and Homeland Defense efforts through wireless and wireline phones, public data networks (including

dial-up telephone, wireless, and cable modem access to the Internet),” and pagers. In this context, the

need for immediate, secure, and reliable communications services is obvious.

11. Somewhat less obvious is the extent to which our Nation has become completely

dependent on communications services that are now essential to the operation of virtually all government,

business, and critical infrastructures throughout the United States as well as to our Nation's economy.”

One illustration should suffice, although many are available. Consider, for example, our financial

infrastructure which, in large measure, consists of computers, databases, and communications links. If

8 We are not asking carriers to determine the actual or potential impact of the outage on end users or on specific

services that the DS3 may serve.

° We are using the phrase “public data network” to refer to a network that provides data communications for a fee to

one or more unaffiliated entities. We are not adopting reporting requirements for public data networks at this time.

We will, however, take this matter under advisement in light of the requests that were made by DHS, the City of

New York, the National League of Cities, the National Association of Telecommunications Officers and Advisors

and others. See DHS Comments at n.15; City of New York, the National League of Cities, and the National

Association of Telecommunications Officers and Advisors (“City of New York et al.”) Joint Comments at ii-iii, 10-

11.

eight contiguous Commonwealths and States, American Samoa, the Commonwealth of the Northern Mariana

Islands, the Commonwealth of Puerto Rico, Guam, Howland Island, and the U.S. Virgin Islands. See 47 U.S.C. §

153(51).

Federal Communications Commission FCC 04-188

the communications links were severed, or severely degraded, ATM machines would not be able to

supply cash, credit card transactions would not "go through," banks would not be able to process financial

transactions (including checks), and the financial markets would become dysfunctional.'’ In a short time,

economic activity would grind to a halt and consumers’ ability to purchase food, fuel or clothing would

be severely limited if not destroyed. This single example leads, ineluctably, to the conclusion that the

people of the United States must have secure communications that they can rely upon for their daily

needs, as well as during terrorist attacks, fires, natural disasters (such as hurricanes, earthquakes, and

tornadoes) and war.'? Ensuring that the United States has reliable communications requires us to obtain

information about communications disruptions and their causes to prevent future disruptions that could

otherwise occur from similar causes, as well as to facilitate the use of alternative communications

facilities while the disrupted facilities are being restored.

12. The responsibilities of the Commission are stated in the Communications Act.”? That Act

states that the Commission was created for the “purpose of regulating interstate and foreign commerce in

communication by wire and radio so as to make available, so far as possible, to all the people of the

United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service

with adequate facilities ... for the purpose of the national defense, [and] for the purpose of promoting

safety of life and property through the use of wire and radio communication.”'* Section 4(0) of the Act

also states “[flor the purpose of obtaining maximum effectiveness from the use of radio and wire

communications in connection with safety of life and property," the Commission "shall investigate and

study all phases of the problem and the best methods of obtaining the cooperation and coordination of

these systems.”'* And, to assist the Congress in performing its normal oversight responsibilities, the Act

requires the “Commission [to] make an annual report to Congress . . . . [which] shall contain: (1) such

information and data collected by the Commission as may be considered of value in the determination of

questions connected with the regulation of interstate and foreign wire and radio communication and radio

transmission of energy; ... and (4) specific recommendations to Congress as to additional legislation

which the Commission deems necessary or desirable. . . .”'° Thus, the Communications Act authorizes

the Commission to collect information it needs to perform its duties, and wireline service disruption

reporting has assisted us in that effort. In the case of wireline carriers, outage reports have triggered

investigations and, where sufficient cause for concern existed, we initiated corrective actions with those

carriers. Service disruption reports have also been used, on a continuing basis, to analyze wireline

vulnerabilities. This, in turn, has assisted the Network Reliability and Interoperability Council in

developing industry best practices and in making recommendations to the Chairman with regard to

For a very localized example of this, see "The Economic Effects of September 11," Economic Policy Review,

Federal Reserve Bank of New York, Vol. 18, No.2 (Nov. 2002), at 46 (On September 12, 2001, Government

Securities Corporation settlement fails were $440,000,000,000.00.).

"2 See, e.g., DHS Comments at 6-7.

'3 Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 ef seg. (hereinafter, “the Act” or "the

Communications Act").

'4 Section 1 of the Act, 47 U.S.C. § 151 (emphasis supplied). All subsequent sections of the Act are to be read, and

construed, in light of the statements of purpose that are contained in Section | of the Act. U.S. v. Southwestern

Cable Co., 392 U.S. 157, 167-168, 172-173 (1968); see also Building Owners and Managers Assoc. Int’l. v. FCC,

254 F.3d 89, 94 (D.C. Cir. 2001) and Sections 4(i)-(j) and 403 of the Act, 47 U.S.C. §§ 154(i)-(j), 403 (additional

authority to acquire information needed to perform the Commission's responsibilities).

'S Section 4(0) of the Act, 47 U.S.C. § 154(0) (emphasis supplied).

Section 4(k) of the Act, 47 U.S.C. § 154(k). More generally, Section 4(i) of the Act, 47 U.S.C. § 154(i), provides

that the “Commission may perform any and all acts . . . and issue such orders, not inconsistent with this Act, as may

be necessary in the execution of its functions.”

Federal Communications Commission FCC 04-188

proposed mandatory reporting requirements.’”! There simply is no persuasive evidence in the record that,

as this Commission and DHS require, a// covered communications providers would voluntarily file

accurate and complete outage reports for the foreseeable future or that mandatory reporting is not

essential to the development, refinement, and validation of best practices. |”

40. Finally, we agree with DHS and the overwhelming majority of commenting parties that

the outage reporting data we seek to collect will contain data that, though useful for the analysis of past

and current outages in order to increase the reliability and security of telecommunications networks in the

'21 We note that many of the assertions by ILORI’s proponents are factually incorrect. The Commission has never

been invited to participate in ILORI (in fact, a Commission staff member who recently sought to attend an ILORI

meeting was asked to leave that meeting). The Commission has no access to information filed through ILORI. In

addition, as stated above, the record is unclear as to how many service providers fully participate in ILORI and, of

those, how many have been filing outage information that is accurate and complete. See supra {J 34-35 & nn. 75,

110, 113. Finally, we have observed that, as of August 3, 2004, the ATIS/ NRSC website made no reference to

ILORI, and the minutes of the March 10 and June 10, 2004 meetings of the NRSC make no reference to ILORI.

22 4 number of commenting parties state that we overestimated the importance of mandatory outage reporting in

facilitating the collaborative industry self-improvement efforts in the area of network reliability. Some of these

parties assert that only 5% of the existing best practices can be attributed to information obtained as a result of the

Commission’s outage reporting regime. The basis for this 5% assertion is not explained by any of these parties, nor

is the method of its calculation explained. It is, at best, a misleading figure that seriously underestimates the value

of our mandatorily required outage reports in the development, and subsequent validation, of best practices. Of the

777 Best Practices, only 261 Best Practices address network reliability, which is the primary focus of outage data

collection. The original 175 Best Practices from the first Network Reliability Council were based on industry

outage/failure data including FCC required outage data (see Network Reliability: A Report to the Nations, Signaling

Network Systems Technical Paper, at 20NRC, June 1993).

Subsequent analyses of mandatory outage data showed an alarming increase in the number of outages in several

areas. As a consequence, teams of telecommunications industry experts were formed to address those trends. One

team addressed facility cable cuts/failures, with the result that 29 new Best Practices were added to the then-existing

26 Best Practices aimed at reducing the number of facility cable cuts/failures. A second team was formed to address

the marked increase in FCC outages with a procedural cause, and after analyzing FCC outage data, the team

developed 26 new Best Practices. A third team used FCC outage report data to study outages caused by timing

problems. In this respect, thirty three percent of SS7 outages were then due to timing problems. This team

developed three new Best Practices along with many other recommendations.

By contrast, the efforts and results that have resulted from the voluntary outage reporting initiatives have been

underwhelming. The City of New York ez. al. and this Commission are not aware of a single new or modified Best

Practice that has resulted from voluntary outage report trials for wireless communications conducted pursuant to

NRIC V or NRIC VI. Contrary to the claim by Cingular and Verizon Wireless that many best practices are only

applicable to wireless carriers, there are no best practices applicable exclusively to wireless carriers. Of the 729 best

practices applicable to wireless, 723 of them were developed originally for, and currently are applicable to, wireline

communications, and all six of the remaining Best Practices are also applicable to satellite and to cable. On the

other hand, mandatory outage reports have been useful over the years in helping to identify which Best Practices are

the most important for preventing future outages from similar causes. Each quarterly report of the Network

Reliability Steering Committee (NRSC) reiterates that one of NRSC’s missions is to analyze network outage data in

order to “make recommendations aimed at improving network reliability.” See, e.g., Network Reliability Steering

Committee, 1st Quarter Report 2004, at 2. Notably, the first paragraph of the Executive Summary for this report

states, “The Network Reliability Steering Committee (NRSC), under the auspices of the Alliance for

Telecommunications Industry Solutions, was formed to monitor network reliability utilizing major outage reports

filed with the Federal Communications Commission (FCC) per Docket 91-273. The Committee’s mission is to

analyze network outage data reported by companies, identify trends, make recommendations aimed at improving

network reliability....” In summary, we find, despite the contrary assertions of several commenting parties, that

substantially more than 5% of the existing Best Practices were developed or improved based, at least in part, on data

acquired through our existing mandatory outage reporting regime.

Federal Communications Commission FCC 04-188

future, could be used by hostile parties to attack those networks, which are part of our Nation’s critical

information infrastructure. DHS states that the following information should be protected: “direct and

root cause(s); duration of the disruption; the range and types of services affected; the scope and gravity of

the impact across all platforms and geographic area; specific equipment failures; the specific network

element(s) impacted; remedial measures and/or best practices applied; and an appraisal of the

effectiveness of best practices.”!”*

41. Although some commenting parties have suggested that information in outage reports can

only be protected from public disclosure if it is “voluntarily” submitted to DHS directly, pursuant to

statutory provisions concerning the “protection of voluntarily shared critical infrastructure

information,” this assertion is not correct. The Critical Infrastructure Information Act of 2002 on which

those commenting parties rely, states specifically that “[nJothing in this section shall be construed to limit

or otherwise affect the ability of a State, local, or Federal Government entity, agency, or authority, or any

third party, under applicable law to obtain critical infrastructure information in a manner not covered by

[the ‘voluntary submission’ subsection] of this section. . .”'”° In addition, before voluntarily submitted

information is entitled to protection, the DHS must first review it and make an affirmative determination

as to whether that information does, or does not, qualify as Critical Infrastructure Information (“CIII”). □□□

It is quite possible that some outage information that may not be found to qualify as CII by the DHS will _

nevertheless be needed by the Commission to fulfill its responsibilities under the Communications Act.

Finally, Homeland Security Presidential Directive 7 (“HSPD 7”), upon which the commenting parties

also rely, states that federal agencies will appropriately protect sensitive information, “including handling

voluntarily provided information and information that would facilitate terrorist targeting of critical

infrastructure and key resources. ...'”’ In this regard, we stress that while HSPD-7 includes voluntarily

submitted information, it does not exclude mandatorily submitted information from protection.

42. Likewise, the provisions of the Critical Infrastructure Act do not affect the applicability of

exemptions from the requirement of public disclosure in the Freedom of Information Act (FOIA),

including FOIA Exemption nor the provisions of the Trade Secrets Act!’ that protect commercial

information submitted to the Commission. We recognize that the competitive landscape of the

communications industry has changed dramatically since we first began requiring these reports from

wireline carriers nearly 15 years ago. In addition, our decision here to require reports from wireless and

123 DHS Comments at 14. See also Letter for Eric T. Werner, Esq., Office of General Counsel, U.S. Department of

Homeland Security, to Jeffery M. Goldthorp, Chief, Network Technology Division, Federal Communications

Commission (Aug. 3, 2004)(identifying additional types of harm that could result from disclosure of these types of

information).

124 See 6 U.S.C. § 133(a).

"5 6 U.S.C. § 133(c)(“independently obtained information”). See also 6 U.S.C. § 133(d)(“Treatment of voluntary

submittal of information”) which states:: “[t]he voluntary submittal to the government of information or records that

are protected from disclosure by this subtitle shall not be construed to constitute compliance with any requirement to

submit such information to a Federal agency under any other provision of law.”)

Procedures for Handling Critical Infrastructure Information; Interim Rule,. 69 Fed. Reg. 8074, published Feb.

20, 2004 (DHS), adopting interim rules to be codified at 6 C.F.R. §§ 29.1-29.9 (2004). See also AT&T Comments

at n.30; DHS Reply at 5 (DHS has authority to protect voluntarily submitted information under certain

circumstances).

'27 FISPD 7, Part 10 (emphasis supplied).

U.S.C. § 552(b)(4)(agencies may withhold “trade secrets and commercial or financial information obtained

from a person [that is] privileged or confidential”).

129 18 U.S.C. § 1905.

Federal Communications Commission FCC 04-188

satellite carriers, as well as to require more extensive information in the reports, demands that we reassess

the potential competitive sensitivity of this information. The Commission also has an independent

obligation to consider whether disclosure of such commercially sensitive information is authorized under

provisions of our rules that permit disclosure only for persuasive reasons.'*°

43.In circumstances in which commercial information is required to be submitted to the

government, FOIA exemption 4 permits us to withhold such records where release would likely cause

substantial harm to the competitive position of the submitting party.'*' As a general matter, the harm

must flow from affirmative use of the information by competitors and not consist solely of injuries that

flow from customer disgruntlement or public embarrassment.'*? Reviewing courts have not yet addressed

whether more direct types of harm, such as threats to the security of communications facilities, fall within

the exemption, but a terrorist attack on a submitter’s facilities clearly would result in direct commercial

and financial harm to the submitter’s business operations.

44. In any event, commenters in this proceeding point specifically to the likelihood of substantial

competitive harm from the disclosure of outage reports to competitors. Wireline carriers, for example,

state that information contained in the outage reports that they have filed already has been used by

competitors to wage marketing campaigns,’ and the likelihood of competitive harm is implicit in the

comments of many others. We note that there is emerging intramodal and intermodal competition from

cable broadband service providers and other carriers. Moreover, future reports will likely contain more

detailed information about outages associated with specific switch manufacturers and operators that, if

available to other switch manufacturers, could be used to gain competitive advantage in the highly

competitive market for switching equipment.'” Representatives of the satellite industry likewise point to

the competitive sensitivity of the information that will be submitted for fixed satellite and mobile satellite

operators.'*° Similarly, representatives of the wireless industry emphasize the highly competitive nature

of the wireless industry and the importance of service outages on customer satisfaction.'*° Competitors

presumably would have ample incentives to utilize outage information to compete for wireless customers.

Indeed, even the joint comments of the City of New York, the National League of Cities, and NATOA

emphasize that the incentives for the voluntary submission of this data are greatly affected by the

“possible adverse marketplace reaction, stemming from making known to the public the true scope and

frequency of its own service disruptions.”!*”

130 Soe Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the

Commission, 13 FCC Red 24816, 24827-28 (1998), recon. den., 14 FCC Red 20128 (1999).

131 See Critical Mass Energy Project v. NRC, 975 F.2d 871, 880 (D.C. Cir. 1992) (en banc); National Parks & Cons.

Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

132 See e.g, CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152, 1154 & n.158 (D.C. Cir. 1987); Public Citizen

Health Research Group v. FDA, 704 F.2d 1280, 1291 n.30 (D.C. Cir. 1983); Gen. Elec. Co. v. NRC, 750 F.2d 1394,

1402 (7th Cir. 1984); Center to Prevent Handgun Violence v. United States Dep't of the Treasury, 981 F. Supp. 20,

23 (D.D.C. 1997).

13 BellSouth Comments at 27; SBC Comments at 22; SBC Reply Comments at 6.

ucent Comments at 3.

135 Dan AmSat and /SES Americom Joint Comments at 7; GlobalStar Comments at 7; Inmarsat Reply Comments at

'36 Cingular Comments at 11-12; Dobson Communication Corporation Reply Comments at 7; Verizon Wireless

Reply Comments at 4.

'37 City of New York et al, Joint Comments at 11.

Federal Communications Commission FCC 04-188

45. Given the competitive nature of many segments of the communications industry and the

importance that outage information may have on the selection of a service provider or manufacturer, we

conclude that there is a presumptive likelihood of substantial competitive harm from disclosure of

information in outage reports. In addition, under FOIA Exemption 4 we are also obliged to consider any

adverse impact that disclosure might have on government programs, including the impact on the

Commission’s ability to implement its statutory responsibility under section 1 of the Act" to ensure that

communications services are adequate to protect “the national defense” and promote “safety of life and

property.”"? The record in this proceeding, including the comments of the Department of Homeland

Security, demonstrate that the national defense and public safety goals that we seek to achieve by

requiring these outage reports would be seriously undermined if we were to permit these reports to fall

into the hands of terrorists who seek to cripple the nation’s communications infrastructure. In addition,

release of this information could also make regulated entities less forthright in the information submitted

to the Commission at a time when it is especially critical that we obtain full and accurate information in

order to prevent harm to the communications infrastructure. Accordingly, the potential consumer benefits

that we pointed to over a decade ago as a public interest factor weighing against routine treatment of

outage reports as confidential information, are now substantially outweighed by the potential harm to the

public and national defense that might result from disclosure."“° Accordingly, and although decisions

with respect to specific records and the specific basis for withholding them must be made in the context of

considering the facts underlying any individual Freedom of Information Act requests, including

consideration of the specific types of competitive injury that submitters point to in those cases, we will

amend our rules to provide that outage reports are presumptively protected from public disclosure under

the FOIA.

46. In sum, based on the record before us, we find no persuasive evidence that a voluntary

program would be workable. We therefore adopt our proposal to extend mandatory outage reporting to

non-wireline communications providers, and we will treat information in all outage reports as confidential

information that is exempt from routine public disclosure under FOIA.'' We note, however, that the

analytical substance of these reports is essential to the development and validation of best practices. Asa

consequence, we will also use information from those reports in analyses that will enable us to provide

guidance to the Network Reliability and Interoperability Council, the Network Reliability Steering

Committee and other organizations. We will do so, however, in a way that does not provide sensitive

information to those who might use it for hostile, or competitive, purposes. M2

47 US.C. § 151.

See, e.g. Critical Mass, 975 F.2d at 879 (recognizing third, program impairment prong of Exemption 4); 9 to 5

Org. for Women Workers v. Bd. Of Governors of the Fed. Reserve Sys., 721 F.2d 1, 10 (1st Cir. 1983); Pub. Citizen

Health Research Group v. NIH, 209 F. Supp. 2d 37, 42-43 (D.D.C. 2002) (alternative holding); Allnet Comm. Srvs.

V. FCC, 800 F. Supp. 984, 990 (D.D.C. 1992).

149 4 mendment Of Part 63 Of The Commission's Rules To Provide For Notification By Common Carriers Of

Service Disruptions, CC Docket No. 91-273, supra note 3, 7 FCC Red 2010 at {ff 31-32 (1992). It is no longer the

case that “[c]Joncerns of . . . aiding saboteurs resulting from disclosure are not supported.” /d. at 31.

41 See Sections 0.457, 0.459 of the Commission’s Rules, 47 C.F.R. §§ 0.457, 0.459. DHS’s perception in this

regard is co-incident with our own. See DHS Comments at 14 (“While this information is critical to identify and

mitigate vulnerabilities in the system, it can equally be employed by hostile actors to identify vulnerabilities for the

purpose of exploiting them.”).

12 This may take the form, for example, of providing direct assistance to developers of Best Practices who address

sources of outage problems. This would be consistent with previous efforts by our staff who, by analyzing outage

reports, were able to provide detailed guidance to the Network Reliability Steering Committee and Network

Reliability and Interoperability Councils.

1 EXHIBIT 2

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, _____________________________ [print or type full name], of

4 _________________ [print or type full address], declare under penalty of perjury

that I have read in its entirety and understand the Stipulated Protective Order that

was issued by the United States District Court for the Central District of California

on [date] in the case of MCI COMMUNICATIONS SERVICES, INC., et al. v.

SKANSKA-TRAYLOR-SHEA A JOINT VENTURE, et al., Case No. 5:19-cv-

01294. I agree to comply with and to be bound by all the terms of this Stipulated

Protective Order and I understand and acknowledge that failure to so comply could

expose me to sanctions and punishment in the nature of contempt. I solemnly

promise that I will not disclose in any manner any information or item that is

14 subject to this Stipulated Protective Order to any person or entity except in strict

15 compliance with the provisions of this Order.

16 I further agree to submit to the jurisdiction of the United States District Court

17 for the Central District of California for the purpose of enforcing the terms of this

18 Stipulated Protective Order, even if such enforcement proceedings occur after

19 termination of this action. I hereby appoint __________________________ [print

or type full name] of _______________________________________ [print or type

full address and telephone number] as my California agent for service of process in

connection with this action or any proceedings related to enforcement of this

Stipulated Protective Order.

Date: ______________________________________

City and State where sworn and signed: _________________________________

Printed name: _______________________________

Signature: __________________________________

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.