Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[GC Docket No. 96-55; FCC 98-184]

Examination of Current Policy Concerning the Treatment of

Confidential Information Submitted to the Commission

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its rules to set out more clearly what

should be contained in a request that information not be routinely

available for public disclosure, provide that audit information and

programming contracts will be presumed to be exempt from routine public

disclosure, codify its practice of sometimes deferring action on a

request for confidentiality until a request for inspection is made, and

otherwise clarify its rules, delete obsolete references, and renumber

the rules. The Commission also adopts a Model Protective Order (MPO)

for general use.

DATES: These rules are effective November 20, 1998. Public comments on

the information collection requirements are due on or before October

20, 1998.

ADDRESSES: Send comments on information collections contained herein to

Judy Boley, Federal Communications Commission, Room 234, 1919 M Street,

N.W., Washington, D.C. 20554 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of

General Counsel, (202) 418-1720. For additional information concerning

information collections contained herein, contact Judy Boley at (202)

418-0214.

SUPPLEMENTARY INFORMATION:

1. The handling of confidential information requires the Commission

to balance the concerns of the parties submitting information and the

interest of the public in accessing that information. The manner in

which the Commission performs this task affects both the competitive

nature of the telecommunications industry and the performance of the

Commission's public responsibilities. As the telecommunications

industry becomes increasingly competitive, participants increasingly

assert that the information they provide to the Commission is

competitively sensitive. Likewise, there are an increasing number of

disputes among competitors concerning requests for confidential

treatment.

A. Substantiating Confidentiality Claims

2. When a person submitting information to the Commission requests

that it not be made available routinely to the public, 47 CFR 0.459(b)

requires that each such request contain a statement of the reasons for

withholding the materials from inspection and the factual basis for the

request. We believe that specifically identifying types of information

we need to evaluate requests for confidentiality will reduce the number

of unsubstantiated requests that we receive and conserve the resources

of the submitters by providing them with guidance as to what kind of

information we require to decide a confidentiality request.

3. Accordingly, we will amend 47 CFR 0.459(b) to list the types of

information that should be included in a request. Where relevant, the

following should be submitted:

(i) identification of the specific information for which

confidential treatment is sought;

(ii) identification of the Commission proceeding in which the

information was submitted or a description of the circumstances giving

rise to the submission;

(iii) explanation of the degree to which the information is

commercial or financial, or contains a trade secret or is privileged;

(iv) explanation of the degree to which the information concerns a

service that is subject to competition;

(v) explanation of how disclosure of the information could result

in substantial competitive harm;

(vi) identification of any measures taken by the submitting party

to prevent unauthorized disclosure;

(vii) identification of whether the information is available to the

public and the extent of any previous disclosure of the information to

third parties;

(viii) justification of the period during which the submitting

party asserts that material should not be available for public

disclosure; and

(ix) any other information that the party seeking confidential

treatment believes may be useful in assessing whether its request for

confidentiality should be granted.

4. We do not agree that substantiation of a confidentiality request

at the time the request is made is arbitrary and unduly burdensome. To

the extent there are changes in, for example, the measures taken by the

submitter to prevent disclosure, the extent to which the information

has already been disclosed, and the degree of competition facing the

service in question, between the time the request for confidential

treatment is made and the time a request for disclosure is received, we

note that submitters are permitted to update their confidentiality

request before any records are released.

B. ``Persuasive Showing'' That Confidential Materials Should Be

Released

5. To obtain access to records listed in 47 CFR 0.457(d) or records

withheld from inspection under 47 CFR 0.459(a), our current rules

provide that the requesting party must make ``[a] persuasive showing as

to the reasons for inspection'' in a filing which must ``contain a

statement of the reasons for inspection and the facts in support

thereof.'' We believe that the determinations of whether the showing

standard has been met should continue to be made on a case-by-case

basis. A case-by-case determination is appropriate because it requires

a balancing of, inter alia, the type of proceeding, the relevance of

the information, and the nature of the information. The Commission's

current rules contemplate that the Commission will engage in a

balancing of the public and private interests when determining whether

the ``persuasive showing'' standard has been met. That balancing may

well take into account the type of proceeding involved, whether the

requestor is a party to the proceeding, and may also be affected by

other factors, such as whether it is feasible to use a protective

order. Because we believe that a case-by-case determination is most

appropriate, we decline to adopt a blanket rule requiring the requester

to demonstrate that access is ``vital'' to the conduct of a proceeding,

necessary to the ``fundamental integrity'' of the Commission process at

issue, or that the

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information have a direct impact on the requestor. We also decline to

impose a requirement that the requester prove that the information or a

substitute cannot be obtained by other means.

6. Commenters also point out that, where materials are voluntarily

submitted, our rules allow a party to request that the information be

returned if confidentiality is not granted. These commenters express a

concern that the distinction between voluntarily submitted and required

information may put more heavily regulated entities at a competitive

disadvantage vis-a-vis new entrants. We recognize that a more heavily

regulated entity may in some instances be subject to mandatory

submissions that do not apply to a new entrant. As part of the biennial

review process pursuant to section 11 of the Communications Act and

otherwise, the Commission is striving to minimize any such burdens. We

also note that whether or not materials are submitted voluntarily, the

Commission may not return them to the submitter once it has received a

FOIA request for the documents. Therefore, as a practical matter, once

a request for documents is received, no submitter, whether regulated or

not, may have its documents returned.

C. Burden of Proof

7. Our rules provide that the party initially claiming

confidentiality pursuant to 47 CFR 0.459(a) bears the burden of proving

by a preponderance of the evidence that such treatment is appropriate.

We reject the suggestion that where a party initially claims

confidentiality, the Commission staff should bear the burden of showing

that the information should not be accorded confidential treatment.

Consistent with FOIA's presumption in favor of disclosure, the

Commission's rules appropriately place the burden of showing that a

record should not be routinely available for public inspection on the

proponent of that claim. If a party's request has been granted, it has,

by definition, met that burden of proof, sufficient to demonstrate that

the information falls within FOIA Exemption 4. The types of materials

listed in 47 CFR 0.457(d) are accepted by the Commission as

confidential because, on a generic basis, they have been found to

contain confidential information and are exempt from disclosure under

FOIA Exemption 4. Similarly, the Commission may find, on its own

motion, that specific materials should not be routinely made available

because they contain trade secrets or confidential information.

Thereafter, when a request is made for disclosure of materials deemed

confidential under any of these circumstances, we agree with the

parties commenting that the requester of such information should

continue to bear the burden of making a persuasive showing as to the

reasons for inspection when access to confidential information is

sought.

8. This burden of making a persuasive showing as to the reasons for

inspection is consistent with FOIA's presumption in favor of disclosure

because the burden only applies to information already determined to

fall within Exemption 4. As discussed below, the Commission sometimes

defers action on requests for confidentiality if a request for

inspection has not been made. In those circumstances, if a request for

inspection is made, we first consider whether the party submitting the

information has met its burden of proving by a preponderance of the

evidence that confidential treatment is appropriate, and then apply the

persuasive showing test.

D. Model Protective Order

9. In recent years, the Commission has tried to balance the

interests in disclosure and the interests in preserving the

confidentiality of competitively sensitive materials by making more use

of special remedies such as protective orders. Protective orders can

provide the benefit of protecting competitively valuable information

while permitting limited disclosure for a specific public purpose.

Nonetheless, the Commission is mindful that extensive reliance on

protective orders may also impose burdens on the public and the

Commission.

10. On the whole, however, we conclude that the benefits of

adopting an MPO for general use in Commission proceedings will be

substantial. It will reduce the need for lengthy negotiations or

litigation over the terms of such orders and help prevent delays in

proceedings. It is not our intention, however, to suggest that

protective agreements can be used for information falling outside of

the nine categories of material exempt from disclosure under the FOIA.

11. While we believe the MPO will prove appropriate in most

instances where protective orders are appropriate, the Bureaus will

retain the authority to use a different or modified protective order

where they determine it is warranted. The MPO may also be used to

provide limited access to information on a timely basis where the

submitter has made a good faith request for confidential treatment of

information pursuant to 47 CFR 0.459(a) and the Commission has not yet

ruled on that request. The latter use is consistent with existing

Commission practice. We note, however, that where a request for

confidential treatment is pending, release of information, even under a

protective order, will be delayed pursuant to 47 CFR 0.459(g) to permit

the submitting party to file an application for review with the

Commission and then a judicial stay.

12. Off-Site Inspection. In some circumstances, where the quantity

of material subject to inspection is very large, a submitting party may

also file a request with the Commission that the entirety of the

material not be filed with the Commission. If the Commission grants

this request, Commission staff or any party examining the material

under the terms of a protective order at an off-site location may

designate portions of the material for inclusion in the record. The

submitting party shall promptly file such designated material under

seal in the record. This procedure will minimize the need for the

Commission to store in a secure fashion large quantities of potentially

irrelevant material while ensuring that relevant material is placed in

the record.

13. Restrictions on persons with authorized access to materials

under the MPO. We decline to adopt the suggestion that parties

examining information under a protective order should be limited to

allowing review by a set number of persons with various sublimits. We

believe such limitations may unreasonably preclude a party from

utilizing individuals, consistent with its needs and resources, who can

provide the requisite expertise to examine the documents. The serious

consequences of violating a Commission protective order make this

limitation unnecessary. We will, however, in rare instances such as

when specific future business plans are involved, consider limiting

access to documents to outside counsel and experts so as to minimize

the potential for inadvertent misuse of such information. A party

seeking this additional degree of protection must justify its request

when filing a request for confidential treatment. In making such a

request, a party should specify the modifications to the model

protective order that it believes to be necessary. The Commission, as

necessary, may seek comment from the other parties to a proceeding on

whether such modified protective procedures are appropriate in the

particular case at hand.

14. Copying of confidential information under the MPO. We agree

that a ban on copying materials subject to a protective order imposes

an unnecessary burden on the review of

[[Page 44163]]

such information. Moreover, we believe a prohibition on copying might

lead to a less thorough review of the confidential documents and

accordingly to less useful public comment. We will modify the MPO to

require a reviewing party to keep a written record of all copies made

and to provide this record to the Submitting Party on reasonable

request.

15. Copying charges. We reject the proposal to delete the 25 cents

maximum per page copying charge in the MPO and replace it with a

reasonable cost-based maximum because we believe it is prudent to avoid

disputes over what copying charges are reasonable by setting a maximum

charge for copying. At the time individual protective orders are

issued, however, the issuing Bureau may modify the maximum charge per

page for copies as circumstances warrant.

16. Sanctions for violations of the MPO. Current laws and

regulations already provide the Commission and the courts with a broad

range of sanctions for violations of Commission orders. Nonetheless, we

modify the MPO to include more examples of the available sanctions for

addressing violations of our protective orders to (i) specify that

possible sanctions for violation of a protective order include

disbarment from Commission proceedings, forfeitures, cease and desist

orders, and a denial of access to confidential information in that and

other Commission proceedings; (ii) clarify that the MPO is also an

agreement between the reviewing parties and the submitting party; (iii)

clarify that the submitting party retains all rights and remedies

available at law or equity against any party using confidential

information in a manner not authorized by the protective order; and

(iv) require violating parties to notify immediately the Commission and

the submitting party of the identity of anyone who improperly obtains

or uses the confidential information.

17. Duration of confidentiality protection. While we recognize that

many types of confidential information become less sensitive as time

passes, we do not believe that there is a sufficient basis in the

record to limit treatment under a protective order to any set period.

Accordingly, we will address claims of staleness on a case-by-case

basis. The prohibition on the unauthorized disclosure or use of the

confidential information remains binding indefinitely unless the

submitting party otherwise agrees or the Commission or a court

determines that particular information should be released from

restrictions contained in the protective order. We also modify the MPO

to allow a reviewing party to retain attorney work product containing

confidential information, so long as that information remains subject

to the MPO.

18. Use of confidential materials subject to the MPO in other

proceedings. We believe that routinely allowing confidential

information from one proceeding to be used in other proceedings will

increase the burdens, risks, and disputes associated with protective

orders. Therefore, as a general matter, we will allow information

subject to a protective order to be used only in the proceeding in

which it was obtained. However, we reserve the right to permit the use

of protected material in more than one Commission proceeding in the

exceptional case where the Commission finds that such use would be in

the public interest. A party seeking to use protected information

obtained in one proceeding in another proceeding may file a petition

with the Commission explaining why such use of the protected

information is appropriate. Any such petition shall ensure that any

protected information contained in or accompanying the petition is

protected from public disclosure.

19. Other MPO issues. The MPO, as originally proposed, already

contains the requirement that all authorized representatives be

required to execute non-disclosure agreements agreeing to be bound by

the terms of the protective order. We will not adopt for general usage

the suggestion that confidential information be made available only to

an independent auditor. While appropriate in very unusual cases, this

procedure would be impractical for conventional Commission proceedings.

Finally, we reject the suggestion that we adopt a protective order that

divides confidential information into two classes to be treated

differently. A standard protective order that further subdivides the

categories of confidential information, treats them differently, and

denies parties the ability to copy any information from certain

categories, would impose undue burdens on parties reviewing information

and the Commission.

E. Issues That Arise With Respect to Specific Types of FCC

Proceedings.

20. Title III Licensing Proceedings. Although our rules specify

that broadcast and other Title III license applications are routinely

available for public inspection, applicants sometimes request

confidential treatment pursuant to 47 CFR 0.459. We agree that a party

should not be required to forego trade secrets as a condition of

obtaining a Commission license, but note that, with the exception of

experimental licenses, most information submitted in Title III

licensing proceedings should be made publicly available. We will

continue the practice of making broadcast and other Title III license

applications routinely available for public inspection. We expect that

requests for confidentiality or protective orders in licensing

proceedings will and should remain relatively rare. Nevertheless, the

Commission will consider requests pursuant to 47 CFR 0.459 of our rules

to limit disclosure of confidential information to individuals and

entities who file a petition to deny and who execute a protective

order. Where appropriate, the Commission will issue protective orders

consistent with the MPO discussed previously. We agree that if the

Commission decides to permit disclosure of certain information only

pursuant to a protective order, the petitioner should be given an

opportunity to file or supplement its petition to deny the license

after it has had an opportunity to review the protected material. If

the Commission decides to issue a protective order, interested parties

generally will be given at least 30 days from the date the protected

material becomes available to file or supplement a petition to deny.

21. Tariff Proceedings. Recently we have adopted new procedures to

handle confidentiality requests in tariff review cases. First, in In

the Matter of Implementation of Section 402(b)(1)(A) of the

Telecommunications Act of 1996, Report and Order, 62 FR 5757 (February

7, 1997) (Tariff Streamlining), petitions for reconsideration pending,

we concluded that pre-effectiveness tariff review was required to

implement Section 204(a)(3) of the Communications Act. Tariff

Streamlining concluded that requests for confidentiality could not be

resolved in the 7 or 15-day pre-effective review period. We therefore

adopted a procedure for handling confidentiality requests in this

context. A protective order will be issued where the submitting party

includes with the tariff filing a showing by a preponderance of the

evidence that the data should be accorded confidential treatment

consistent with the provisions of the FOIA or makes a sufficient

showing that the information should be subject to a protective order.

To do this, a submitting party must comply with 47 CFR 0.459(b) and (c)

of our rules to demonstrate that its supporting data should be afforded

confidential treatment. If it does so, a standard

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protective order will be issued. No written determination by the Bureau

will be made because of the short time frames involved. If an

investigation occurs, the Bureau can make a further determination

concerning the carrier's entitlement to confidentiality. Subsequent to

Tariff Streamlining, the Common Carrier Bureau decided to apply the

protective order adopted for streamlined tariffs in non-streamlined

tariff filings where the submitting party demonstrates that cost

support data should be afforded confidential treatment. Southwestern

Bell Telephone Co., 12 FCC Rcd 10271 (Common Carrier Bureau 1997),

application for review denied, 13 FCC Rcd 3602 (1997).

22. The procedures adopted in Tariff Streamlining, with the

following modifications, will continue to govern confidentiality

requests in both streamlined and non-streamlined tariff review

proceedings. First, if a carrier seeks confidential treatment for

tariff support information, it must either state that it will make its

cost support information available to those signing a nondisclosure

agreement, or file a request that the cost support information be kept

entirely confidential. The request that information be released only

pursuant to a protective order or that it be kept entirely confidential

must include the supporting information required by 47 CFR 0.459(b) of

our rules. We note that in the latter case, streamlined filings are

likely to be suspended if the Commission is unable to determine the

lawfulness of the tariff within the appropriate time frame without

public participation. This would allow us to rule on the request for

complete confidentiality, which we believe would be granted only in the

rarest of instances. In addition, the protective order to be used in

tariff review proceedings will be the one adopted in this proceeding,

in place of the one adopted in Tariff Streamlining. We note that the

MPO we adopt here does not differ substantially from that previously

adopted, and that we specifically noted in Tariff Streamlining that

this proceeding might modify the protective order adopted there.

23. We have decided not to establish different procedures for the

tariff review and the tariff investigation stage because, although the

decisions to allow tariffs to go into effect are non-final, non-

judicially reviewable orders, we believe public comment is important in

determining the lawfulness of rates at this stage, especially given the

short time frames in streamlined proceedings. We have also decided not

to require filing of confidential information in advance of a tariff

filing because that would cause delays in the tariff filing process

Congress may not have intended.

24. Rulemaking Proceedings. The Commission generally has not

afforded confidential treatment to material submitted in rulemakings,

although on rare occasions protective agreements have been used in the

context of rulemakings. Material submitted in rulemakings will continue

to be routinely available for public inspection because, as the

commenters who addressed rulemakings acknowledge, rulemakings have a

broad impact on the public, and wide public participation, with a full

opportunity to comment, is contemplated by the Administrative Procedure

Act.

25. To the extent that submissions made in rulemakings involve

sensitive commercial information, one option is to utilize protective

orders, as has been our policy in other procedural settings. Protective

orders generally are not practical solutions in rulemakings, however,

because rulemakings frequently involve numerous parties. Use of

protective orders could also inhibit full public participation in

proceedings that are of broad public interest. Nonetheless, a blanket

refusal to apply protective orders in the context of rulemakings, or

refusal to consider information accompanied by a request for

confidentiality, could ultimately result in the Commission not having

access to information that is highly relevant to our ultimate

decisions. Accordingly, although we expect to act favorably upon them

only in extremely rare instances, we will consider requests for

confidential treatment that propose to limit the availability of

confidential information in rulemaking proceedings to those who have

executed a protective order. Parties seeking confidential treatment

should request the Commission to return the materials without

considering them, pursuant to 47 CFR 0.459(e) of our rules, if the

request for confidentiality is denied, as we expect it would be in most

cases. We note, however, that the Commission cannot return information

if a FOIA request has been filed. Parties should also consider the

option of presenting information in a manner that reduces or eliminates

its commercial sensitivity, since, if such options are available, or if

public disclosure of the information does not present a serious

potential for competitive harm, we would not be inclined to authorize

protective orders.

26. Requests for Special Relief and Waivers. The comments reveal no

need to modify our existing confidentiality rules for use in Commission

proceedings dealing with requests for relief or special waivers. Thus,

we will continue to consider requests for confidentiality on a case-by-

case basis. Where appropriate, we may make information available only

subject to a protective order.

27. Formal Complaints. The parties generally suggested little

change to our current treatment of confidential information submitted

to the Commission during formal complaints, and we agree that our

current procedures are generally workable. We note, however, that the

MPO adopted herein may be used by the parties to formal complaints and

may be imposed by the Commission where parties cannot resolve discovery

disputes between themselves. The suggestion that we eliminate discovery

in formal complaint proceedings is beyond the scope of this proceeding.

28. Audits. The Commission has a longstanding policy of treating

information obtained from carriers during audits as confidential. Since

we are able to make a finding that audit materials received from

carriers generally fall within FOIA Exemption 4, and as an indication

of the importance we place on upholding the confidentiality of these

materials, we will amend 47 CFR 0.457 of our rules to indicate that

information submitted in connection with audits, investigations and

examination of records will not routinely be made available for public

inspection. In the context of an FOIA request, the Commission would

still need to make a particularized determination that the information

is exempt from disclosure.

29. As previously discussed, we have only rarely departed from the

general policy of withholding audit information from public disclosure.

Parties should note, however, that, we may publicly disclose audit

information in rare cases where the underlying concerns that normally

lead us to withhold audit information from public disclosure are

diminished by the minimal risk posed by the release of aggregate data

or, where the data is otherwise not highly commercially sensitive and

disclosure is justified by significant public interest factors. We do

not believe that carriers need be given an opportunity to object to the

proposed disclosure of audit data in aggregate form, where the data

does not reveal the confidences of any individual company.

30. Some parties expressed concern about the indication in footnote

109 of the Notice that the Bureaus and Offices have the authority to

disclose audit records where the information is required to be

disclosed under the

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provision of the FOIA. We note that the Commission has previously

delegated authority to the Common Carrier Bureau to (1) approve the

release to state public utility commissions of information that the

Bureau may obtain during the course of audit activities and that falls

within the common interest and jurisdiction of the Commission and the

states, and (2) act on requests for audit information that are filed

pursuant to the FOIA, including the authority to furnish copies of

documents and other records. We continue to believe this delegation is

fully consistent with section 220(f) of the Communications Act.

31. Surveys and Studies. We believe the best way to protect the

confidentiality of these items is to allow survey and study respondents

to request confidential treatment pursuant to 47 CFR 0.459 to the

extent they can show by a preponderance of the evidence a case for non-

disclosure consistent with the FOIA. Assessments of the confidentiality

of this information will be made on a case-by-case basis, as the nature

of the information obtained in surveys and studies vary greatly.

32. Other Proceedings. While we have discussed in some detail how

confidential information will be treated in seven specific types of

proceedings, we expect that the principles set forth in this Report and

Order will also apply in other types of proceedings not specifically

discussed above. Thus, for example, United States international

carriers classified as dominant due to a foreign affiliation could seek

confidential treatment of some quarterly reports regarding provisioning

and maintenance and circuit status. We would expect to use the model

protective order or a modified version thereof to protect confidential

information if a sufficient case were made for confidential treatment

of such reports. We also would expect to use the standard protective

order where contributors to universal service support mechanisms

justify non-disclosure of company-specific data pursuant to 47 CFR

54.711(b) of the rules as well as in proceedings under section 271 of

the Communications Act regarding Bell Operating Company entry into

interLATA services. We expect that the off-site inspection procedures

described above may prove useful in certain merger proceedings

involving voluminous materials that are subject to claims of

confidentiality.

F. Scope of Materials Not Routinely Available for Public Inspection

33. We believe that the suggestion that 47 CFR 0.457(d) be replaced

with provisions that automatically accord confidential treatment to any

non-public information that can offer a competitor an advantage over

the submitting party is overly broad. We also reject the suggestion

that we categorically include ``information provided voluntarily to the

Commission subject to a certification by the provider that such

information is not customarily disclosed.'' Since judicial standards on

the issue of ``voluntary'' submission are highly fact-specific and

continue to evolve, we believe it is better to look at such requests on

a case-by-case basis under our current rules. Nevertheless, we do not

agree that we should reject all proposals classifying specific

categories of information as confidential. It is certainly possible to

identify categories of information that are likely to fall within FOIA

Exemption 4. Identifying such categories reduces administrative burdens

on submitters and the Commission. We conclude that certain programming

contracts fall squarely within Exemption 4. The Commission has

consistently recognized that disclosure of programming contracts

between multichannel video program distributors and programmers can

result in substantial competitive harm to the information provider and

has afforded confidential treatment to such contracts in a variety of

contexts. We believe that protecting such confidential information is

compatible with the public interest, and the requirements of FOIA

Exemption 4.

34. Therefore, we amend 47 CFR 0.457 of our rules to state that

programming contracts between programmers and multichannel video

programming distributors will not be routinely available for public

inspection. We note, however, that, consistent with our current rules,

such contracts may be made available subject to the MPO in situations

where they are relevant to the dispute at hand, e.g., program access

complaints.

35. Parties urge expanding the list of information not routinely

available for public disclosure to include ``[i]nformation submitted in

connection with audits, investigations and examination of records.'' We

addressed the recommendation in the previous discussion on audit

material, where we expanded the list of information not routinely

available for public inspection to include that type of data.

36. The submission of confidential materials to the Commission can

pose problems in the drafting of agency decisions. In most instances,

we expect it will be possible to write an order without publicly

revealing the confidential information. In some instances, this may

involve stating a conclusion that does not reveal confidential

information, backed up by a citation to confidential information in the

record that generally will have been available to parties signing a

protective order. In other instances, orders may refer to industry-wide

data that is aggregated in a manner that does not reveal confidential

information. Some commenters suggest that submitters should be notified

and given the opportunity to object, even when the data is aggregated,

prior to the release of the data. As discussed above, we disagree.

Aggregation of data ensures that confidential materials are released in

a form that removes confidentiality issues. Similarly, releasing an

order that cites to but does not reveal confidential information

remedies confidentiality concerns. We therefore decline to adopt the

commenters' suggestion as a matter of routine policy.

37. One court has suggested that an order relying on confidential

materials might be released all or in part under seal. We have only

rarely engaged in this practice, and are not aware of its widespread

use by other administrative agencies, although we note that the courts

do utilize this approach. We consider this option to be a last resort

when reference to confidential materials is necessary to support our

decisions. In such cases, we note, the sealed decision and the

confidential part of the record can be transmitted to the court under

seal if judicial review is sought.

G. Clarifications to Commission Rules

38. Deferral of rulings on confidentiality requests. We will amend

47 CFR 0.459 to indicate that, based on considerations of

administrative efficiencies, rulings on requests for confidentiality

may in some instances be deferred until a request for inspection has

been made. As long as the request for confidential treatment remains

pending before the Commission, the information will be treated

confidentially. In other instances, including, for example, where the

information is gathered specifically so that it may be published in

Commission reports, rulings on requests for confidentiality would

likely be made even in the absence of requests for inspection. We will

provide in our rules that the submitter will be notified of a request

for inspection. At the time a request for inspection is made, the

submitter may supplement its request for confidentiality, or revise it.

39. Changing the title of Section 0.457(d) and deleting the

introductory paragraph. The Commission also proposed to amend the title

of 47 CFR

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0.457(d) of its rules to describe better the Section's contents as

follows: ``Certain trade secrets and commercial or financial

information obtained from any person and privileged or confidential--

categories of materials not routinely available for public

inspection.'' One party suggests leaving out the word ``certain,'' as

it may lead to confusion. We will adopt this proposal along with the

suggested amendment. We will also delete as unnecessary the

introductory paragraph of 47 CFR 0.457(d), which is derived from the

June 1967 Attorney General's Memorandum on the Public Information

Section of the Administrative Procedure Act, and does not necessarily

reflect the current state of the law concerning Exemption 4.

40. Defining ``Required'' versus ``Voluntary''. Some parties seek

clarification of the required submission vs. voluntary submission

distinction as applied to our confidentiality rules. As a more general

matter, we decline to make these clarifications, preferring that the

distinction between ``required'' and ``voluntary'' for Exemption 4

purposes be examined on a case-by-case basis, in light of the evolving

case law. The provision in 47 CFR 0.459(e) of the rules governing the

return of materials that are submitted voluntarily was adopted prior to

Critical Mass Energy Project versus Nuclear Regulatory Commission, 975

F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 (1993).

For purposes of this rule, our use of the term ``voluntary'' was not

intended to be co-extensive with the legal distinctions articulated in

the Critical Mass decision. We shall also modify 47 CFR 0.459(e) to

clarify that, if the information is subject to a request for

inspection, it will not be returned. When requesting that information

be afforded confidential treatment, a submitter will be required to

indicate whether information provided is customarily disclosed to the

public and the extent of any prior disclosure. We will assess this

submission in making our confidentiality determination.

41. Opportunity to comment. We agree that if the information

belongs to third parties, they should be afforded the opportunity to

participate in the Commission proceeding resolving the confidentiality

issue. 47 CFR 0.459 will be amended accordingly.

42. Clarification of review procedures. We find no need to clarify

the procedures for review of denials of confidentiality requests as

these matters are already addressed by the Commission's current rules.

Specifically 47 CFR 0.459(g) provides that, if a request for

confidentiality is denied, the requester may, within five working days,

file an application for review by the Commission. If the application

for review is denied, the requesting party will be afforded 5 working

days in which to seek a judicial stay of the ruling. In such

circumstances, the material is not released until the court denies a

stay request. Similar provisions govern situations in which the records

are the subject of a FOIA request. We believe that these procedures

provide parties with sufficient opportunity to obtain timely and

independent review of Bureau and Commission decisions denying

confidentiality.

43. Deletion of obsolete references and renumbering of rules. We

will take this opportunity to update 47 CFR 0.457(d)(1) of our Rules.

Under 47 CFR 0.457(d)(1)(i), financial reports filed under former 47

CFR 1.611 are not routinely made available for public inspection. 47

CFR 1.611 of our Rules was deleted when we eliminated the regular

filing of financial reports by broadcast stations. We also no longer

require radio or television networks to file financial reports.

However, these reports are permanent records and therefore still exist.

We will therefore amend 47 CFR 0.457(d)(1)(i) to indicate that

financial reports submitted pursuant to former 47 CFR 1.611 remain not

routinely available for public inspection. The parenthetical to 47 CFR

0.457(d)(1)(i) states that ``fees paid on consummation of the

assignment or transfer of a broadcast station licenses, pursuant to

Sec. 1.1111 of this chapter, are computed from information contained in

financial reports submitted pursuant to Sec. 1.611. Information and

correspondence concerning such computations are not routinely available

for public inspection.'' Fees for the assignment or transfer of

broadcast stations are now set by statute as reflected in 47 CFR 1.1104

of our rules. Therefore, we will eliminate the parenthetical portion of

47 CFR 0.457(d)(1).

44. Section 0.457(d)(1)(iii) of our rules provides that ``Schedules

2, 3, and 4 of financial reports submitted for cable television systems

pursuant to Sec. 76.403 of this chapter'' are not routinely available

for public inspection. Section 76.403 was deleted in 1983 and cable

television financial reports were eliminated at that time. While the

Commission indicated that reports previously filed under 47 CFR 76.403

would continue to be afforded confidentiality under 47 CFR 0.457(d),

these reports have been destroyed pursuant to our records retention

schedules. In addition, 47 CFR 0.457(d)(1)(iv) of our rules indicate

that the ``annual fee computation forms submitted for cable television

systems pursuant to 76.406 of this chapter'' are not routinely

available for public inspection. These forms are no longer used.

Section 76.406 was deleted from our rules in 1982. Under our record

retention schedules, any such forms previously filed should have been

long since been destroyed. We will therefore eliminate 47 CFR

0.467(d)(1)(iii) and 0.467(d)(1)(iv) from our rules as unnecessary. If

the reports have inadvertently not been destroyed, however, we intend

that they remain not routinely available.

45. Section 0.457(d)(2) lists various materials submitted

confidentially to the Commission prior to March 25, 1974. We will

renumber this subsection as part of 47 CFR 0.457(d)(1). We will also

renumber current 47 CFR 0.457(d)(2)(i) as a new 47 CFR 0.457(d)(2).

H. Final Regulatory Flexibility Act Certification

46. Our document incorporated an initial regulatory flexibility

analysis of the proposed rules. No comments were received. Section 604

of the Regulatory Flexibility Act, as amended, requires a final

regulatory flexibility analysis in a notice and comment rulemaking

proceeding unless we certify that ``the rule will not, if promulgated,

have a significant economic impact on a significant number of small

entities.'' The rule modifications adopted herein largely codify the

Commission's existing practices regarding confidential information, and

therefore will not have a substantial economic effect on small

entities. We therefore certify, pursuant to Section 605(b) of the

Regulatory Flexibility Act, that the rules will not have a significant

economic impact on a substantial number of small entities. The Office

of Public Affairs, Reference Operations Division, shall send a copy of

this Report and Order, including this certification and statement, to

the Chief Counsel for Advocacy of the Small Business Administration.

I. Paperwork Reduction Act

47. This Report and Order contains new and modified information

collections. As part of the Commission's continuing effort to reduce

paperwork burdens, we invite the general public and the Office of

Management and Budget (OMB) to comment on the information collections

contained in this Order, as required by the Paperwork Reduction Act of

1995, Public Law 104-13. Public and agency comments are due October 20,

1998. Comments may address the following: (a) whether the

[[Page 44167]]

proposed collection of information is necessary for the proper

performance of the functions of the Commission, including whether the

information shall have practical utility; (b) the accuracy of the

Commission's burden estimates; (c) ways to enhance the quality,

utility, and clarity of the information collected; and (d) ways to

minimize the burden of the collection of information on the

respondents, including the use of automated collection techniques or

other forms of information technology. Written comments on the proposed

information collections must be submitted on or before October 20,

1998. In addition to filing comments with the Secretary, a copy of any

comments on the information collections contained herein should be

submitted to Judy Boley, Federal Communications Commission, Room 234,

1919 M Street, N.W., Washington, DC 20554, or via the Internet to

[email protected]>. For additional information concerning the information

collections contained in the Report and Order contact Judy Boley at

202-418-0214.

J. Ordering Clauses

48. It is ordered that, pursuant to Sections 4(i), 4(j), 303(r) and

403 of the Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 303(r)

and 403, this Report and Order is hereby adopted and Part 0 of the

Commission's rules are amended.

List of Subjects in 47 CFR Part 0

Freedom of information.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 0 of Title 47 of the Code of Federal Regulations is amended as

follows:

PART 0--COMMISSION ORGANIZATION

1. The authority citation for part 0 continues to read as follows:

Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,

225, unless otherwise noted.

2. Section 0.457 is amended by revising paragraph (d) to read as

follows:

Sec. 0.457 Records not routinely available for public inspection.

* * * * *

(d) Trade secrets and commercial or financial information obtained

from any person and privileged or confidential--categories of materials

not routinely available for public inspection, 5 U.S.C. 552(b)(4) and

18 U.S.C. 1905.

(1) The materials listed in this subparagraph have been accepted,

or are being accepted, by the Commission on a confidential basis

pursuant to 5 U.S.C. 552(b)(4). To the extent indicated in each case,

the materials are not routinely available for public inspection. If the

protection afforded is sufficient, it is unnecessary for persons

submitting such materials to submit therewith a request for non-

disclosure pursuant to Sec. 0.459. A persuasive showing as to the

reasons for inspection will be required in requests for inspection of

such materials submitted under Sec. 0.461.

(i) Financial reports submitted by licensees of broadcast stations

pursuant to former Sec. 1.611 or by radio or television networks are

not routinely available for inspection.

(ii) Applications for equipment authorizations (type acceptance,

type approval, certification, or advance approval of subscription

television systems), and materials relating to such applications, are

not routinely available for public inspection prior to the effective

date of the authorization. The effective date of the authorization

will, upon request, be deferred to a date no earlier than that

specified by the applicant. Following the effective date of the

authorization, the application and related materials (including

technical specifications and test measurements) will be made available

for inspection upon request (see Sec. 0.460).

(iii) Information submitted in connection with audits,

investigations and examination of records pursuant to 47 U.S.C. 220.

(iv) Programming contracts between programmers and multichannel

video programming distributors.

(v) Prior to July 4, 1967, the rules and regulations provided that

certain materials submitted to the Commission would not be made

available for public inspection or provided assurance, in varying

degrees, that requests for nondisclosure of certain materials would be

honored. See, e.g., 47 CFR chapter I revised as of October 1, 1966,

Secs. 0.417, 2.557, 5.204, 5.255, 15.70, 21.406, 80.33, 87.153, 89.215,

91.208, 91.605 and 93.208. Materials submitted under these provisions

are not routinely available for public inspection. To the extent that

such materials were accepted on a confidential basis under the then

existing rules, they are not routinely available for public inspection.

The rules cited in this paragraph (d)(1)(v) were superseded by the

provisions of this paragraph (d), effective July 4, 1967. Equipment

authorization information accepted on a confidential basis between July

4, 1967 and March 25, 1974, will not be routinely available for

inspection and a persuasive showing as to the reasons for inspection of

such information will be required in requests for inspection of such

materials submitted under Sec. 0.461.

(2) Unless the materials to be submitted are listed in paragraph

(d)(1) of this section and the protection thereby afforded is adequate,

it is important for any person who submits materials which he wishes

withheld from public inspection under 5 U.S.C. 552(b)(4) to submit

therewith a request for non-disclosure pursuant to Sec. 0.459. If it is

shown in the request that the materials contain trade secrets or

commercial, financial or technical data which would customarily be

guarded from competitors, the materials will not be made routinely

available for inspection; and a persuasive showing as to the reasons

for inspection will be required in requests for inspection submitted

under Sec. 0.461. In the absence of a request for non-disclosure, the

Commission may, in the unusual instance, determine on its own motion

that the materials should not be routinely available for public

inspection. Ordinarily, however, in the absence of such a request,

materials which are submitted will be made available for inspection

upon request pursuant to Sec. 0.461, even though some question may be

present as to whether they contain trade secrets or like matter.

* * * * *

3. Section 0.459 is amended by revising paragraphs (b), (d), and

(e) to read as follows:

Sec. 0.459 Requests that materials or information submitted to the

Commission be withheld from public inspection.

* * * * *

(b) Each such request shall contain a statement of the reasons for

withholding the materials from inspection (see Sec. 0.457) and of the

facts upon which those records are based, including:

(1) Identification of the specific information for which

confidential treatment is sought;

(2) Identification of the Commission proceeding in which the

information was submitted or a description of the circumstances giving

rise to the submission;

(3) Explanation of the degree to which the information is

commercial or financial, or contains a trade secret or is privileged;

(4) Explanation of the degree to which the information concerns a

service that is subject to competition;

[[Page 44168]]

(5) Explanation of how disclosure of the information could result

in substantial competitive harm;

(6) Identification of any measures taken by the submitting party to

prevent unauthorized disclosure;

(7) Identification of whether the information is available to the

public and the extent of any previous disclosure of the information to

third parties;

(8) Justification of the period during which the submitting party

asserts that material should not be available for public disclosure;

and

(9) Any other information that the party seeking confidential

treatment believes may be useful in assessing whether its request for

confidentiality should be granted.

* * * * *

(d)(1) The Commission may defer acting on requests that materials

or information submitted to the Commission be withheld from public

inspection until a request for inspection has been made pursuant to

Sec. 0.460 or Sec. 0.461. The information will be accorded confidential

treatment, as provided for in Sec. 0.459(g) and Sec. 0.461, until the

Commission acts on the confidentiality request and all subsequent

appeal and stay proceedings have been exhausted.

(2) Requests which comply with the requirements of paragraphs (a)

and (b) of this section will be acted upon by the appropriate Bureau or

Office Chief, who is directed to grant the request if it presents by a

preponderance of the evidence a case for non-disclosure consistent with

the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the

request is granted, the ruling will be placed in the public file in

lieu of the materials withheld from public inspection. A copy of the

ruling shall be forwarded to the General Counsel.

(e) If the materials are submitted voluntarily (i.e., absent any

direction by the Commission), the person submitting them may request

the Commission to return the materials without consideration if the

request for confidentiality should be denied. In that event, the

materials will ordinarily be returned (e.g., an application will be

returned if it cannot be considered on a confidential basis). Only in

the unusual instance where the public interest so requires will the

materials be made available for public inspection. However, no

materials submitted with a request for confidentiality will be returned

if a request for inspection is filed under Sec. 0.461. If submission of

the materials is required by the Commission and the request for

confidentiality is denied, the materials will be made available for

public inspection.

* * * * *

4. Section 0.461 is amended by revising paragraph (d)(3) to read as

follows:

Sec. 0.461 Requests for inspection of materials not routinely

available for public inspection.

* * * * *

(d) * * *

(3) An original and two copies of the request shall be submitted.

If the request is for materials not open to routine public inspection

under Sec. 0.457(d) or Sec. 0.459, or if a request for confidentiality

is pending pursuant to Sec. 0.459, one copy of the request will be

mailed by the custodian of the records to the person who originally

submitted the materials to the Commission.

* * * * *

Appendix--Standard Protective Order and Declaration

Note: This appendix will not appear in the Code of Federal

Regulations.

Before the Federal Communications Commission

Washington, D.C. 20554

In the Matter of [Name of Proceeding] Docket No.

____________________.

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 which is 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 CFR 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 or 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); (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; and

(iii) information that the Commission has allowed to be examined

off-site and that otherwise complies with the requirements of this

paragraph. Confidential Information includes additional copies of

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.

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 CFR

0.459 and 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

[[Page 44169]]

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; or

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 (generally 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 with 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) unless

otherwise ordered by the Commission or a court of competent

jurisdiction, 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, [cite proceeding];'' and

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. They 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. Unless otherwise ordered by the

Commission or a court of competent jurisdiction, 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. Authorized representatives 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 and other attorney work

product. 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 any 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

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 CFR 0.457(d).

[[Page 44170]]

Attachment A to Standard Protective Order

Declaration

In the Matter of [Name of Proceeding] Docket No. ____________

I, ____________________, hereby declare under penalty of perjury

that I have read the Protective Order 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)-----------------------------------------------------------------

[FR Doc. 98-22001 Filed 8-17-98; 8:45 am]

BILLING CODE 6712-01-P