Federal Communications Commission DA 12402 Before The Federal Communications

federal communications commission da 12-402 before the federal communications commission washington, d.c. 20554 in the matt

Federal Communications Commission DA 12-402

Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Structure and Practices of the Video Relay Service Program
Telecommunications Relay Services and Speech-to-Speech Services for
Individuals with Hearing and Speech Disabilities
)
)
) CG Docket No. 10-51
)
)
)
) CG Docket No. 03-123
)
PROTECTIVE ORDER
Adopted: March 13, 2012 Released: March 14, 2012
By the Acting Chief, Consumer and Governmental Affairs Bureau:
1.
In this Protective Order, we adopt procedures to limit access to
proprietary or confidential information that may be filed in this
proceeding. We anticipate that such materials will be necessary to
develop a more complete record on which to base the Commission’s
decision. While we are mindful of their sensitive nature, we are
also mindful of the right of the public to participate in this
proceeding in a meaningful way. We therefore will make such
information available to participants in this proceeding, but only
pursuant to a protective order. We conclude that the procedures we
adopt in this Protective Order give appropriate access to the
public while protecting proprietary and confidential information
from improper disclosure, and that the procedures thereby serve
the public interest.
2.
Definitions. As used herein, capitalized terms not otherwise
defined in this Protective Order shall have the following
meanings:
“Acknowledgement” means the Acknowledgement of Confidentiality
attached as Appendix A hereto.
“Competitive Decision-Making” means that a person’s activities,
association, or relationship with any of its clients involve advice
about or participation in the relevant business decisions or the
analysis underlying the relevant business decisions of the client in
competition with or a business relationship with the Submitting Party.
“Confidential Information” means information that is not otherwise
available from publicly available sources and that is subject to
protection under FOIA and the Commission’s implementing rules.
“Counsel” means In-House Counsel and Outside Counsel of Record.
“In-House Counsel” means an attorney employed by a party to this
proceeding or employed by an affiliated entity and who is actively
engaged in the conduct of this proceeding, provided that such attorney
is not involved in Competitive Decision-Making.
“Outside Counsel of Record” or “Outside Counsel” means the
attorney(s), firm(s) of attorneys, or sole practitioner(s), as the
case may be, representing a party in this proceeding, provided that
such attorneys are not involved in Competitive Decision-Making. The
term “Outside Counsel of Record” includes any attorney representing a
non-commercial party in this proceeding, provided that such attorney
is not involved in Competitive Decision-Making.
“Outside Consultant” means a consultant or expert retained for the
purpose of assisting Counsel or a party in this proceeding, provided
that such consultant or expert is not involved in Competitive
Decision-Making. The term “Outside Consultant” includes any consultant
or expert employed by a non-commercial party in this proceeding,
provided that such consultant or expert is not involved in Competitive
Decision-Making.
“Redacted Confidential Document” means a copy of a Stamped
Confidential Document where the Confidential Information has been
redacted.
“Reviewing Party” means a person who has obtained access to
Confidential Information (including Stamped Confidential Documents)
pursuant to paragraphs 5 or 8 of this Protective Order.
“Stamped Confidential Document” means any document, or any part
thereof, that contains Confidential Information and that bears the
legend (or which otherwise shall have had the legend recorded upon it
in a way that brings its attention to a reasonable examiner)
“CONFIDENTIAL INFORMATION – SUBJECT TO PROTECTIVE ORDER IN CG DOCKET
NOS. 03-123 AND 10-51 BEFORE THE FEDERAL COMMUNICATIONS COMMISSION,”
unless the Commission determines, sua sponte or by request pursuant to
sections 0.459 or 0.461 of its rules, that any such document is not
entitled to confidential treatment. The term “document” means any
written, recorded, electronically stored, or graphic material, whether
produced or created by the Submitting Party or another person. By
designating a document a “Stamped Confidential Document,” a Submitting
Party signifies and represents that it contains Confidential
Information.
“Submitting Party” means a person who submits a Stamped Confidential
Document.
3.
Effect of Designation of Information as Confidential. By
designating documents and information as Confidential under this
Protective Order, a Submitting Party will be deemed to have
submitted a request that the material not be made routinely
available for public inspection under the Commission’s rules.1 Any
person wishing to challenge the designation of a document or
portion of a document as Confidential must file such a challenge
at the Commission and serve it on the Submitting Party. The
Submitting Party must file any reply within five business days,
and include a justification for treating the information as
confidential.2 The documents and information challenged will
continue to be accorded confidential treatment until the
Commission acts on the request and all subsequent appeal and stay
proceedings have been exhausted.3 Any decision on whether the
materials should be accorded confidential treatment does not
constitute a resolution of the merits concerning whether such
information would be released publicly by the Commission upon a
proper request under our rules implementing the Freedom of
Information Act (FOIA).4
4.
Submission of Stamped Confidential Documents. A Submitting Party
shall submit to the Secretary’s Office one copy of each Stamped
Confidential Document it wishes to file, two copies of the Stamped
Confidential Document in redacted form and an accompanying cover
letter. Each page of the Stamped Confidential Document shall be
stamped “CONFIDENTIAL INFORMATION – SUBJECT TO PROTECTIVE ORDER IN
CG DOCKET NOS. 03-123 AND 10-51 BEFORE THE FEDERAL COMMUNICATIONS
COMMISSION.” The cover letter also shall contain this legend. Each
Redacted Confidential Document shall have the same pagination as
the Stamped Confidential Document from which it is derived. The
two copies of the Redacted Confidential Document and the
accompanying cover letter shall be stamped “REDACTED – FOR PUBLIC
INSPECTION.” To the extent that any page of the filing contains
both Confidential Information and non-confidential information,
only the Confidential Information may be redacted and the page of
the unredacted filing shall clearly distinguish the Confidential
Information from the non-confidential information. In addition,
two copies of each Stamped Confidential Document and the
accompanying cover letter must be delivered as directed by
Commission staff, to Gregory Hlibok, Consumer and Governmental
Affairs Bureau, Federal Communications Commission, 445 12th
Street, S.W., Room 3-B431, Washington, D.C. 20554.
5.
Procedure for Obtaining Access to Confidential Information. Any
person seeking access to Stamped Confidential Documents and
Confidential Information subject to this Protective Order shall
sign and date the Acknowledgment agreeing to be bound by the terms
and conditions of the Protective Order; and file the
Acknowledgment with the Bureau, on behalf of the Commission. Such
person shall also serve a copy of the Acknowledgment upon the
relevant Submitting Party through its Counsel of Record so that it
is received at least five business days prior to such person’s
reviewing or having access to the Submitting Party’s Stamped
Confidential Documents or Confidential Information, except that,
where the person seeking access is one described in either clause
1 or 2 of paragraph 8, the Acknowledgment shall be delivered
promptly prior to the person’s obtaining access. Each Submitting
Party shall have an opportunity to object to the disclosure of its
Stamped Confidential Documents or Confidential Information to any
such person. A Submitting Party must file any such objection at
the Commission and serve it on Counsel representing, retaining or
employing such person within three business days after receiving a
copy of that person’s Acknowledgment (or where the person seeking
access is one described in clause 1 or 2 of paragraph 8, filed and
serve such objection as promptly as practicable after receipt of
the Acknowledgment). Further, if a Submitting Party files
additional Confidential Documents, it must file any objection to
the disclosure of those additional Confidential Documents to any
Reviewing Party before or contemporaneous with filing those
documents. Until any objection is resolved by the Commission and,
if appropriate, by any court of competent jurisdiction, and unless
such objection is resolved in favor of the person seeking access,
a person subject to an objection from a Submitting Party shall not
have access to the relevant Stamped Confidential Documents or
Confidential Information.
6.
Review of Stamped Confidential Documents. A Submitting Party shall
make available for review the Stamped Confidential Documents of
such party at the offices of the party’s Outside Counsel of Record
or, if the Submitting Party does not have Outside Counsel of
Record, at the offices of such party’s In-House Counsel. A
Reviewing Party shall be provided the following alternatives: (1)
a Reviewing Party shall be provided adequate opportunity to
inspect the documents on site; (2) a Reviewing Party may inspect
the documents on site with the ability to request copies, at cost,
of some or all of the documents; or (3) a Reviewing Party may
request a complete set of the documents at cost, allowing two
business days after the request is made for receipt of the copies.
If a Reviewing Party plans on requesting a complete set of
documents, it is encouraged to make such a request at the time it
submits the Acknowledgment to allow it the opportunity to begin
reviewing the documents at the end of the five-day period referred
to in paragraph 5. All copies of documents that are removed from
the Submitting Party’s office must be returned or destroyed in
accordance with the terms of paragraph 17.
7.
Use of Confidential Information. Persons obtaining access to
Confidential Information (including Stamped Confidential
Documents) under this Protective Order shall use the information
solely for the preparation and conduct of this proceeding before
the Commission and any subsequent judicial proceeding arising
directly from this proceeding and, except as provided herein,
shall not use such documents or information for any other purpose,
including without limitation business, governmental, or commercial
purposes, or in other administrative, regulatory or judicial
proceedings. Should the Commission rely upon or otherwise make
reference to the contents of any of the Stamped Confidential
Documents or Confidential Information in its decision in this
proceeding, it will do so by redacting any Confidential
Information from the public version of the decision and by making
the unredacted version of the decision available only to a court
and to those persons entitled to access to Confidential
Information under this Protective Order.
8.
Permissible Disclosure. A Reviewing Party may discuss and share
the contents of the Stamped Confidential Documents and
Confidential Information with another Reviewing Party and with the
Commission and its staff. A Submitting Party’s Stamped
Confidential Documents and Confidential Information may also be
disclosed to employees and Counsel of the Submitting Party.
Subject to the requirements of paragraph 5, a Reviewing Party may
disclose Stamped Confidential Documents and Confidential
Information to: (1) paralegals or other employees of such
Reviewing Party assisting them in this proceeding; and (2)
employees of third-party contractors involved solely in one or
more aspects of organizing, filing, coding, converting, storing,
or retrieving documents or data or designing programs for handling
data connected with this proceeding, or performing other clerical
or ministerial functions with regard to documents connected with
this proceeding.
9.
Filings with the Commission. A Reviewing Party or a Submitting
Party may in any document that it files in this proceeding
disclose Confidential Information only if it complies with the
following procedure. The party shall submit to the Secretary’s
Office one copy of the filing containing Confidential Information
(the “Confidential Filing”), two copies of the filing in redacted
form, i.e., containing no Confidential Information (the “Redacted
Confidential Filing”), and an accompanying cover letter. The cover
or first page of the Confidential Filing and each page of the
Confidential Filing that contains or discloses Confidential
Information must be clearly marked “Confidential Information –
subject to Protective Order in CG DOCKET NOS. 03-123 AND 10-51
BEFORE THE FEDERAL COMMUNICATIONS COMMISSION.” The cover letter
shall also contain this legend. The Confidential Filing shall be
made under seal, and will not be placed in the Commission’s public
file. The two copies of the Redacted Confidential Document and the
accompanying cover letter shall be stamped “REDACTED – FOR PUBLIC
INSPECTION.” The cover letter accompanying the Redacted
Confidential Filing shall state that the Submitting Party is
filing a redacted version of the filing. Each Redacted
Confidential Filing shall have the same pagination as the
Confidential Filing from which it is derived. To the extent that
any page of the Confidential Filing contains both Confidential
Information and non-confidential information, only the
Confidential Information may be redacted and the page of the
unredacted Confidential Filing shall clearly distinguish the
Confidential Information from the non-confidential information.
Two copies of each Confidential Filing and the accompanying cover
letter must be delivered as directed by Commission staff, to
Gregory Hlibok, Consumer and Governmental Affairs Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room
3-B431,Washington, D.C. 20554, and one copy must be served on the
relevant Submitting Party. Parties should not provide courtesy
copies of pleadings containing Confidential Information to
Commission staff unless the Bureau so requests, and any such
courtesy copies shall be submitted under seal.
10.
Non-Disclosure of Stamped Confidential Documents. Except with the
prior written consent of the Submitting Party, or as provided
under this Protective Order, neither a Stamped Confidential
Document nor any Confidential Information may be disclosed
further.
11.
Protection of Stamped Confidential Documents and Confidential
Information. A Reviewing party shall have the obligation to ensure
that access to Stamped Confidential Documents and Confidential
Information is strictly limited as prescribed in this Protective
Order. A Reviewing Party shall further have the obligation to
ensure that Stamped Confidential Documents and Confidential
Information are used only as provided in this Protective Order.
12.
Requests for Additional Disclosure. If any person requests
disclosure of Confidential Information outside the terms of this
Protective Order, such a request will be treated in accordance
with sections 0.442 and 0.461 of the Commission’s rules.
13.
Client Consultation. Nothing in this Protective Order shall
prevent or otherwise restrict Counsel from rendering advice to
their clients relating to the conduct of this proceeding and any
subsequent judicial proceeding arising therefrom and, in the
course thereof, relying generally on examination of Stamped
Confidential Documents or Confidential Information; provided,
however, that in rendering such advice and otherwise communicating
with such client, Counsel shall not disclose Stamped Confidential
Documents or Confidential Information.
14.
No Waiver of Confidentiality. Disclosure of Confidential
Information as provided herein by any person shall not be deemed a
waiver by any Submitting Party of any privilege or entitlement to
confidential treatment of such Confidential Information. Reviewing
Parties, by viewing this material, agree: (1) not to assert any
such waiver; (2) not to use Confidential Information to seek
disclosure in any other proceeding; and (3) that accidental
disclosure of Confidential Information by a Submitting Party shall
not be deemed a waiver of any privilege or entitlement as long as
the Submitting Party takes prompt remedial action.
15.
Subpoena by Courts, Departments, or Agencies. If a court, or a
federal or state department or agency issues a subpoena for or
orders the production of Stamped Confidential Documents or
Confidential Information that a party has obtained under terms of
this Protective Order, such party shall promptly notify each
Submitting Party of the pendency of such subpoena or order.
Consistent with the independent authority of any court, department
or agency, such notification must be accomplished such that the
Submitting Party has a full opportunity to oppose such production
prior to the production or disclosure of any Stamped Confidential
Document or Confidential Information.
16.
Violations of Protective Order. Should a Reviewing Party violate
any of the terms of this Protective Order, such Reviewing Party
shall immediately convey that fact to the Commission and to the
Submitting Party. Further, should such violation consist of
improper disclosure of Confidential Information, the violating
person shall take all necessary steps to remedy the improper
disclosure. The Commission retains its full authority to fashion
appropriate sanctions for violations of this Protective Order,
including but not limited to suspension or disbarment of Counsel
from practice before the Commission, forfeitures, cease and desist
orders, and denial of further access to Confidential Information
in this or any other Commission proceeding. Nothing in this
Protective Order shall limit any other rights and remedies
available to the Submitting Party at law or in equity against any
person using Confidential Information in a manner not authorized
by this Protective Order.
17.
Termination of Proceeding. The provisions of this Protective Order
shall not terminate at the conclusion of this proceeding. Within
two weeks after conclusion of this proceeding and any
administrative or judicial review, Reviewing Parties shall destroy
or return to the Submitting Party Stamped Confidential Documents
and all copies of the same. No material whatsoever derived from
Stamped Confidential Documents may be retained by any person
having access thereto, except Counsel may retain, under the
continuing strictures of this Protective Order, two copies of
pleadings (one of which may be in electronic format) prepared in
whole or in part by that party that contain Confidential
Information, and one copy of orders issued by the Commission or
Bureau that contain Confidential Information. All Counsel shall
certify compliance with these terms and shall deliver such
certification to Counsel for the Submitting Party not more than
three weeks after conclusion of this proceeding. The provisions of
this paragraph regarding retention of Stamped Confidential
Documents and copies of the same and Confidential Information
shall not be construed to apply to the Commission or its staff.
18.
Authority. This Order is issued pursuant to section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i),
Section 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4),
and authority delegated under sections 0.141 and 0.361 of the
Commission’s Rules, 47 C.F.R. §§ 0.141, 0.361, and is effective
upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Acting Chief, Consumer and Governmental Affairs Bureau
APPENDIX A
Acknowledgment of Confidentiality
CG Docket Nos. 03-123 and 10-51
I hereby acknowledge that I have received and read a copy of the
foregoing Protective Order in the above-captioned proceeding, and I
understand it.
I agree that I am bound by the Protective Order and that I shall not
disclose or use Stamped Confidential Documents or Confidential
Information except as allowed by the Protective Order.
I acknowledge that a violation of the Protective Order is a violation
of an order of the Federal Communications Commission.
I certify that I am not involved in Competitive Decision-Making.
Without limiting the foregoing, to the extent that I have any
employment, affiliation, or role with any person or entity other than
a conventional private law firm (such as, but not limited to, a
lobbying or advocacy organization), I acknowledge specifically that my
access to any information obtained as a result of the Protective Order
is due solely to my capacity as Counsel or Outside Consultant to a
party or as a person described in paragraph 8 of the foregoing
Protective Order and agree that I will not use such information in any
other capacity.
I acknowledge that it is my obligation to ensure that Stamped
Confidential Documents are not duplicated except as specifically
permitted by the terms of the Protective Order.
I certify that I have verified that there are in place procedures at
my firm or office to prevent unauthorized disclosure of Stamped
Confidential Documents and Confidential Information.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Protective Order.
Executed this __ day of _____________, 2012.
_________________________________
[Name]
[Position]
[Firm]
[Telephone]
1 See 47 C.F.R. §§ 0.459(a), 0.459(a)(3).
2 See 47 C.F.R. § 0.459(b).
3 See 47 C.F.R. § 0.459(g).
4 See 47 C.F.R. §§ 0.459(h), 0.461.
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