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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Examination of Current Policy ) Concerning the Treatment of ) GC Docket No. 96-55 Confidential Information ) Submitted to the Commission ) REPORT AND ORDER Adopted: July 29, 1998 Released: August 4, 1998 By the Commission: TABLE OF CONTENTS  I. Introduction . . . . . . . . . . . . . . . . . . . . . . 1 II. Background A. Authority to Disclose and Withhold Competitively Sensitive Information 1. Freedom of Information Act . . . . . . . . . . 2 2. The Trade Secrets Act and Commission Authority to Disclose Exemption 4 Records . . . . . . . 5 B. Review of Commission's Rules and Policies Governing Disclosure . . . . . . . . . . . . . . . . . . . . 6 III. Discussion A. General Issues . . . . . . . . . . . . . . . . . 10 B. Model Protective Order . . . . . . . . . . . . . 21 C. Issues that Arise with Respect to Specific Types of FCC Proceedings 1. Title III Licensing Proceedings . . . . . . 33 2. Tariff Proceedings . . . . . . . . . . . . . 35 3. Rulemaking Proceedings . . . . . . . . . . . 43 4. Requests for Special Relief and Waivers . . 47 5. Formal Complaints . . . . . . . . . . . . . 49 6. Audits . . . . . . . . . . . . . . . . . . . 52 7. Surveys and Studies . . . . . . . . . . . . 57 8. Other Proceedings . . . . . . . . . . . . . . 58 D. Scope of Materials Not Routinely Available for Public Inspection 1. Categories of materials that are not routinely available for public inspection . . . . . . 59 2. Use of confidential information in decisions 63 E. Clarifications to Commission Rules . . . . . . . 66 F. Other Issues . . . . . . . . . . . . . . . . . . 68 IV. Final Regulatory Flexibility Act Certification . . . . 76 V. Paperwork Reduction Act . . . . . . . . . . . . . . . 77 VII. Ordering Clauses . . . . . . . . . . . . . . . . . . . 78 I. INTRODUCTION 1. We began this proceeding to evaluate our rules and policies concerning the treatment of competitively sensitive information that has been provided to the Commission. In this Report and Order, we address our general policies governing the handling of confidential information as well as specific issues of confidentiality involving various types of FCC proceedings. In addition, we amend our rules to (i) set out more clearly what should be contained in a request that information not be routinely available for public disclosure; (ii) provide that audit information and programming contracts will be presumed to be exempt from routine public disclosure; and (iii) codify our practice of sometimes deferring action on a request for confidentiality until a request for inspection is made. Finally, we adopt a revised version of the Model Protective Order proposed in the Notice. II. BACKGROUND A. Authority to Disclose and Withhold Competitively Sensitive Information 1. Freedom of Information Act 2. As we discussed in more detail in the Notice, the Freedom of Information Act (FOIA), requires the Commission to disclose reasonably described agency records requested by any person, unless the records contain information that fits within one or more of the nine exemptions from disclosure in the Act. Even when particular information falls within the scope of a FOIA exemption, federal agencies generally are afforded the discretion to release the information on public interest grounds. 3. For the purposes of this proceeding, the most important of the FOIA exemptions is Exemption 4, which states that the government need not disclose "trade secrets and commercial or financial information obtained from a person and privileged or confidential." In the context of the FOIA, a trade secret is defined as "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." The terms "commercial or financial information" are given their ordinary meaning for purposes of the FOIA. 4. For many years the applicable standard for whether commercial or financial information was "confidential" under Exemption 4 of FOIA was set forth in National Parks and Conservation Ass'n v. Morton: a "[c]ommercial or financial matter is 'confidential' . . . if disclosure of the information is likely . . . either . . . (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." The National Parks decision left open the possibility of a third confidentiality category that would protect other governmental interests such as compliance and program effectiveness. Subsequently, in Critical Mass, the court held that the National Parks two-pronged test for "confidential" information applied only to situations where a party must submit information to a federal agency. Under Critical Mass, submissions that are required to "realize the benefits of a voluntary program" generally are considered mandatory. Critical Mass sets a different standard for assessing the confidentiality of information that is submitted voluntarily: "financial or commercial information provided to the Government on a voluntary basis is 'confidential' under Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained." Information may also be withheld under Exemption 4 if it is "privileged" as well as if it is confidential. 2. The Trade Secrets Act and Commission Authority to Disclose Exemption 4 Records 5. While FOIA Exemption 4 allows an agency to withhold business competitive information from public disclosure, the Trade Secrets Act acts as an affirmative restraint on an agency's ability to release such information. The Trade Secrets Act provides criminal and employment penalties for federal officers or employees who disclose trade secrets, except as "authorized by law." As we discussed at greater length in the Notice, Sections 0.457(d)(1) and 0.457(d)(2)(i) of the Commission's rules constitute the requisite legal authorization for disclosure of competitively sensitive information under the Trade Secrets Act. These rules permit disclosure of trade secrets and commercial or financial information upon a "persuasive showing" of the reasons in favor of releasing the information. Other provisions of the Communications Act may also authorize the release of materials governed by the Trade Secrets Act in particular circumstances. For example, Section 220(f) of the Communications Act authorizes FCC employees, upon direction of the Commission or a court, to disclose information gathered by the Commission while examining a carrier's books or accounts. B. Review of Commission's Rules and Policies Governing Disclosure 6. The Commission's rules governing disclosure of information distinguish between records that are "routinely available" for public inspection and those that are not. Section 0.457(d) of the Commission's rules, which implements FOIA Exemption 4, provides that certain categories of materials listed therein are "not routinely available for public inspection" because they generally fall within the scope of Exemption 4. These materials may not be disclosed by Commission employees unless an appropriate request for inspection is made, and after weighing the considerations favoring disclosure and non-disclosure, the Commission determines that a "persuasive showing" has been made to warrant disclosure. 7. If information or materials submitted to the Commission do not fall within one of the categories of materials not routinely available for public inspection, the person submitting them may request on an ad hoc basis that such information not be routinely available for public inspection. Such a request will be granted if it presents by a preponderance of the evidence a case for non-disclosure consistent with the provisions of FOIA. Information submitted under a request for confidentiality will be treated as confidential until the relevant Bureau rules on the request, and in the event the request is denied, until the Bureau gives the submitting party a period to seek review by the full Commission and the courts. If the request for confidential treatment is granted, any person wishing to inspect the information or materials must submit a request for inspection (i.e., a FOIA request) under Section 0.461, and make a "persuasive showing" as to the reasons for inspection. A request for confidentiality may be granted either conditionally or unconditionally. 8. As discussed, the Commission's rules provide for the disclosure of Exemption 4 material if a "persuasive showing" is made. Consistent with the Supreme Court's decision in FCC v. Schreiber, the rules also contemplate that the Commission will engage in a balancing of the interests favoring disclosure and non-disclosure. In balancing these interests, the Commission has been sensitive to ensuring that the fulfillment of its regulatory responsibilities does not result in the unnecessary disclosure of information that might put its regulatees at a competitive disadvantage. Accordingly, the Commission generally has exercised its discretion to release publicly information falling within FOIA Exemption 4 only in very limited circumstances, such as where a party placed its financial condition at issue in a Commission proceeding, or where the Commission has identified a compelling public interest in disclosure. Even in such circumstances, the Commission does not automatically authorize public release of such information. Rather, the Commission has adhered to a policy of not authorizing the disclosure of confidential financial information "on the mere chance that it might be helpful, but insists upon a showing that the information is a necessary link in a chain of evidence" that will resolve an issue before the Commission. 9. In recent years, the Commission also has increasingly relied on special remedies such as redaction, aggregated data or summaries, and protective orders to balance the interests in disclosure and the interests in preserving the confidentiality of competitively sensitive materials. Consistent with its authority to grant requests for confidential treatment either conditionally or unconditionally, the Commission, in particular, has relied on protective orders or agreements. Protective orders or agreements require parties to whom confidential information is made available to limit the persons who will have access to the information and the purposes for which the information will be used. As two recent Bureau orders have recently noted with respect to competitively sensitive information: "even when information is critical to resolution of a public interest issue, the competitive threat posed by widespread disclosure under the FOIA may outweigh the public benefit in disclosure." In such instances, disclosure under a protective order or agreement may serve the dual purpose of protecting competitively valuable information while still permitting limited disclosure for a specific public purpose. III. DISCUSSION A. General Issues 10. As we observed in the Notice, 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. Given these developments, we sought comments on whether the Commission should retain or modify the standard requiring parties seeking disclosure of trade secrets and confidential commercial or financial information to make a "persuasive showing" of the reasons in favor of the information's release. We sought recommendations on whether the same standards should be applied in particular types of Commission proceedings, and encouraged commenters who favored different standards to propose them. We also sought comment on the advisability of adopting a model protective order to more efficiently process confidentiality requests. We inquired whether it is appropriate for the Commission to draft a decision that relies on confidential data (or data disclosed pursuant to protective order) without publicly revealing that data. And, we invited commenters to address any other issues relating to the Commission's policies and rules on confidential information. 11. Substantiating Confidentiality Claims. When a person submitting information to the Commission requests that it not be made available routinely to the public, Section 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. Because the Commission sometimes receives insufficiently substantiated requests for confidentiality, we sought comment on whether the Commission should more precisely identify the information that is necessary to comply with Section 0.459(b). We suggested six categories of information the submitter could provide to substantiate requests for confidentiality. 12. We believe, as do several of the parties, 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. Therefore, we have decided to amend our rules accordingly. Several of the factors we adopt are relevant to a National Parks or Critical Mass analysis. We also agree with GTE that the submitting party ought to explain how disclosure of the information could result in significant competitive harm, since that may be a significant factor in weighing the interests for and against disclosure. We also agree with TH&F that all requests for confidentiality should identify the Commission proceeding in which the information was submitted or describe the circumstances giving rise to the submission. We do not think, however, that the submission of an affidavit concerning the confidentiality of the specified information should automatically result in designating the information as confidential. We also decline to require the submitting party to identify categories of persons who should be denied access, though we note that submitters may do so in the context of explaining why the submission should receive confidential treatment. 13. Accordingly, we will amend Section 0.459(b) to list the types of information that should be included in a request. Where relevant, the following should be submitted: (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; (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. 14. We do not agree with the Joint Parties that substantiation of a confidentiality request at the time the request is made is arbitrary and unduly burdensome. To the contrary, this substantiation facilitates the National Parks and Critical Mass analysis and serves to facilitate public access to material not within FOIA Exemption 4. 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. 15. "Persuasive Showing" That Confidential Materials Should Be Released. To obtain access to records listed in Section 0.457(d) or records withheld from inspection under Section 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 sought comment on whether the persuasive showing standard continues to be appropriate. 16. In response, several parties filing comments seek clarification of the "persuasive showing" standard. Some commenters complain that the "persuasive showing" standard is too subjective and does not allow the submitter to know with certainty whether confidential treatment will be accorded until a request for inspection is made. We believe, however, 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. Frequently, the basis for requiring submitters to disclose information is to ensure fairness to the other parties in the proceeding. We find that the approaches suggested by the parties would offer little improvement over the Commission's current practices and accordingly decline to replace the "persuasive showing" standard with different standards based on the type of proceeding. Our general policies concerning the submission of confidential information in specific types of proceedings are, however, discussed in more detail in Section III.C., infra. 17. We thus agree with the majority of commenters that the Commission should retain the persuasive showing standard. 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 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. We believe that to do so would impose an unreasonable burden on the requestor and might deny the Commission the benefit of comment from commenters with limited resources. Moreover, the fact that the information could be obtained by other means, albeit at greater difficulty, may in some cases suggest that the information is not really confidential for purposes of FOIA Exemption 4. 18. 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. 19. Burden of Proof. Several parties commented on the burden of proof associated with confidentiality determinations. Our rules provide that the party initially claiming confidentiality pursuant to Section 0.459(a) bears the burden of proving by a preponderance of the evidence that such treatment is appropriate. 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 Section 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. 20. 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 in Section III.E., 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. B. Model Protective Order 21. 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. Thus, we sought comment on whether it would be helpful for the Commission to develop a standard protective order that could be modified as appropriate to fit the circumstances of particular cases. We supplied a draft Model Protective Order (MPO), and encouraged commenters to identify any modifications that may be necessary to make it suitable for various types of Commission proceedings. We also sought recommendations on the procedures the Commission should use to resolve disputes regarding the issuance and content of protective orders, and how to ensure compliance with them. 22. Adoption of the MPO (Appendix C). The commenting parties were divided in opinion as to whether we should adopt the MPO, or some form thereof. 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. Under the FOIA, such non-exempt information must be publicly disclosed. The MPO will be used only when it is appropriate to grant limited access to information that the Commission determines should not be routinely available for public inspection pursuant to Sections 0.457(d) or 0.459(a). 23. 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 Section 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 Section 0.459(g) to permit the submitting party to file an application for review with the Commission and then a judicial stay. 24. The MPO we adopt here is substantially similar to the MPO proposed in the Notice and the MPO adopted in Tariff Streamlining proceeding, modified, as we now discuss, in light of the comments received. 25. 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. 26. 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. For example, the Joint Parties' proposal to limit the number of attorneys per party who could examine documents subject to a protective order would preclude a partner in a law firm from obtaining the counsel of associates. 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. 27. Copying of confidential information under the MPO. A variety of comments were received concerning the copying of confidential information made available under the MPO. The Joint Parties suggest prohibiting copying of information provided under a protective order. However, ALTS believes that this prohibition would present a tremendous problem for companies or associations who have few or no employees working in the Washington D.C. area. We agree that a ban on copying materials subject to a protective order imposes an unnecessary burden on the review of 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. For these reasons, we decline to adopt the Joint Parties's suggestion. We will, however, 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. 28. MCI suggests deleting the 25 cents maximum per page copying charge in the MPO and replacing it with a reasonable cost-based maximum. We reject this proposal, believing it 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. 29. Sanctions for violations of the MPO. Several commenters urge us to add language to the MPO to spell out the consequences of violating the order. 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. 30. Duration of confidentiality protection. The MPO proposed in the Notice did not specify how long the MPO would be binding on the parties. GTE recommends that the MPO state that counsel who retain copies of pleadings containing confidential information after final resolution of the matter must continue to protect the information in accordance with the requirements of the MPO. MCI recommends that confidential information be protected for only three years. 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, as CBT suggests. 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. 31. Use of confidential materials subject to the MPO in other proceedings. Time Warner suggests that the MPO should state that information received under a protective order may be used in more than one proceeding, if the Commission finds that such use would be in the public interest. The Joint Parties assert, however, that any marginal benefit from such use would be greatly outweighed by the prejudice to the LECs involved in the 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. 32. Other MPO issues. We note that the MPO, as originally proposed, already contains the requirement proposed by Joint Parties 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 CBT's suggestion that confidential information be made available only to an independent auditor, as the Commission did to prevent disclosure of the SCIS computer model. While appropriate in very unusual cases, this procedure would be impractical for conventional Commission proceedings. Finally, we reject SBC's 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. We believe this procedure is unnecessary given the above-described requirements to keep a log of any copies made and the substantial sanctions for the violation of a protective order. C. Issues That Arise With Respect to Specific Types of FCC Proceedings 1. Title III Licensing Proceedings 33. Section 309 of the Communications Act provides that the Commission must allow at least 30 days following issuance of a public notice of certain radio license applications for interested parties to file petitions to deny an application. In addition, relevant case law indicates that petitioners to deny generally must be afforded access to all information submitted by licensees that bear upon their applications. 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 Section 0.459. We therefore sought comment on whether our general policy should be to discourage submission of confidential information, but still leave the Commission some discretion to use protective orders in appropriate cases, or adopt a general policy permitting disclosure of confidential information only pursuant to protective orders. If we were to adopt a policy favoring the use of protective orders in licensing proceedings, we questioned whether petitioners should be given an opportunity to supplement their petitions to deny after reviewing the protected material. We also invited comment on whether members of the public should have access to such material pursuant to protective orders, to enable them to determine whether they wish to file petitions to deny, and whether such a policy would tend to unduly delay Commission action on license applications. 34. Although the Joint Parties indicate that a party should not be required to forego trade secrets as a condition of obtaining a Commission license, the Joint Parties nonetheless, note that, with the exception of experimental licenses, most information submitted in Title III licensing proceedings should be made publicly available. We agree. 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, we agree with the Joint Parties that a party should not necessarily be required to forego confidential information as a condition of obtaining a license. Accordingly, the Commission will consider requests pursuant to Section 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 with MCI 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. 2. Tariff Proceedings 35. The Communications Act generally requires common carriers to file and maintain tariffs with the Commission, and gives the Commission authority to review them for lawfulness. The Commission's rules specify that certain dominant carriers filing a letter of transmittal to change their rates, offer a new service, or change the terms and conditions under which existing service is offered must include certain cost support data. Similarly, carriers subject to price cap regulation must also provide support information. Under Section 0.455(b)(11) of our rules, cost support data is routinely available for public inspection. Historically, we have withheld such information from public inspection only in limited circumstances, such as when it has been necessary to protect third-party vendor data. 36. Two changes prompted us to seek comment in the Notice on the handling of requests for confidentiality in the context of the tariff review process. First, carriers began filing more requests for confidential treatment of their cost support data. Second, the statutory period to review certain tariff filings has changed. Prior to the Telecommunications Act of 1996, the Commission could require a notice period of up to 120 days between the filing of a tariff and its effective date. The tariff went into effect at that point unless the Commission issued an order rejecting or suspending and investigating the tariff. While that time line still applies to some tariff filings, as of February 8, 1997, pursuant to Section 204(a)(3) of the Communications Act, local exchange carriers may file charges, classifications, regulations or practices on a streamlined basis. Streamlined filings are effective unless the Commission acts in seven days (for rate reductions) or 15 days (for rate increases). 37. Since the issuance of the Notice, we have adopted new procedures to handle confidentiality requests in tariff review cases. First, in Tariff Streamlining, we concluded that pre-effectiveness tariff review was required to implement Section 204(a)(3) of the Communications Act. Consistent with our observation in the Notice, 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 Sections 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 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. 38. 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. That decision was affirmed by the Commission. 39. Although we specifically noted that the confidentiality procedures adopted in Tariff Streamlining were not binding on this proceeding, we conclude that with certain modifications described below, the procedures adopted there should apply to both streamlined and non-streamlined tariff proceedings. By allowing release of confidential information under a protective order upon a showing by a preponderance of the evidence that confidential treatment is warranted, interested parties are afforded the opportunity to participate effectively in tariff proceedings, thus allaying the fears expressed by some commenters. We believe that the protective order approach appropriately balances the competing interests in such situations. We also disagree with those who suggest that the public interest concerns that underlie the history of open tariff proceedings are now outweighed by the submitter's need to protect competitively sensitive information. Finally, although the commenters are split concerning the propriety of the pre-filing procedures, we have thus far had a satisfactory experience with the procedures adopted in Tariff Streamlining, and see no reason to change them at this time. A number of parties suggested elimination entirely of our tariff support requirement, but this recommendation is beyond the scope of this proceeding. 40. Accordingly, the procedures adopted in Tariff Streamlining, with the following modifications, will continue to govern confidentiality requests in 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 Section 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. 41. 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 believe the procedures adopted in Tariff Streamlining and reaffirmed here best accommodate the desirability of public comment within the short time frames available. 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. 42. Clarification of Section 0.455(b)(11). We do not agree with the Joint Parties that Section 0.455(b)(11) of the rules does not require public disclosure of tariff support material. Such information is placed in the FCC Reference Center. We have considered requests that the information not be routinely disclosed as requests for waiver of Section 0.455(b)(11), and recently have imposed the protective order used in the Tariff Streamlining proceeding where granting such a waiver was appropriate. 3. Rulemaking Proceedings 43. Section 553(b) of the Administrative Procedure Act (APA) generally requires notice and an opportunity to comment before promulgation of a final agency rule. Specifically, the APA requires that a rulemaking notice include, among other things, "either the terms or substance of the proposed rule or a description of the subjects and issues involved." Further, after the required rulemaking notice has been provided, the agency "shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments" and "after consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." 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. 44. 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 APA. An agency's decision to withhold information in the context of a rulemaking can have a significant impact on whether commenters have had meaningful notice and opportunity to comment on the bases of an agency's decision. One purpose of the requirement that agencies disclose the documents it deems relevant to a proceeding, therefore, is to ensure that interested parties have a full opportunity to participate in the proceeding by providing a different perspective on materials that may be relied upon by the agency. A party filing comments in a rulemaking proceeding who thinks it has information that will significantly affect the decision on a proposed rule is free to submit it, of course. Nevertheless, other interested parties may not be deprived of the opportunity to challenge it. 45. 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 Section 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. 46. 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. 4. Requests for Special Relief and Waivers 47. Parties affected by our rules have the right to seek special relief from the application of them. Sometimes they base their request for relief upon or otherwise put into issue information that is confidential. This may include financial information explaining cash flow, profitability, bankruptcy, corporate or partnership structure, or engineering standards. Thus, we sought comment on whether, and under what circumstances, it is appropriate to protect from public disclosure information filed in such proceedings. 48. 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. 5. Formal Complaints 49. Section 208 of the Communications Act permits any party to bring before the Commission a complaint against a common carrier for acts or omissions in violation of either the Act or a Commission rule or order. Our rules, in turn, establish both informal and formal procedures for handling such complaints. Confidentiality issues frequently arise in formal complaint proceedings, especially in connection with discovery. Parties often use protective agreements to ensure the confidentiality of materials exchanged, and our formal complaint regulations include limitations on the manner in which an opposing party may use, duplicate, and disseminate proprietary materials obtained through discovery. 50. Although the materials that a party obtains through discovery are not routinely filed with the Commission, parties may be directed to submit particular documents that the staff determines to be decisionally significant. In addition, parties may describe or include excerpts of materials that are subject to protective agreements in briefs or other pleadings filed in formal complaint cases. Thus, the Commission must sometimes resolve disputes in which significant portions of a lengthy and complicated record are subject to a protective agreement and a request for confidential treatment under Section 0.459. Consequently, we asked commenters to consider the most effective means of balancing our sometimes conflicting obligations to ensure protection of proprietary business data, to prevent undue delay in resolving formal complaints, and to produce decisions that adequately explain, by reference to a specific record, the basis for our disposition of a complaint. 51. 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. SBC's suggestion that we eliminate discovery in formal complaint proceedings is beyond the scope of this proceeding. We address below the issue of whether portions of orders concerning confidential information should be issued under seal. 6. Audits 52. The Commission has a statutory right of access to all accounts, records and memoranda, including all documents, papers, and correspondence kept or required to be kept by common carriers. Often times, the detailed financial and commercial information inspected during an audit is commercially sensitive in nature. Indeed, Section 220(f) of the Communications Act expressly prohibits the release of information gathered during an audit absent direction by the Commission or a court. 53. The Commission has publicly released aggregate data from audit reports only where (i) the summary nature of the data therein is not likely to cause the submitter substantial competitive injury; (ii) the release of the summary data and information is not likely to impair our ability to obtain information in future audits; and (iii) overriding public interest concerns favor release of the report. We sought comment on whether we should continue to follow this policy, and identification of the circumstances under which we should release audit information pursuant to a protective order. 54. The Commission has a longstanding policy of treating information obtained from carriers during audits as confidential. Nothing in the Notice was meant to suggest, as some commenters feared, any changes in our policy in the regard. Carriers have a legitimate interest in protecting confidential information, and we agree that disclosure could result in competitive injury to those who provide such information to the Commission. This policy is also designed to enhance the efficiency and integrity of our audit process by encouraging carriers to comply in good faith with Commission requests for information. Moreover, the Commission considers the audit reports to be internal agency documents that, consistent with FOIA Exemption 5, generally should not be disclosed to the extent they present staff findings and recommendations to assist the Commission in pre-decisional deliberations. 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 Section 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 a FOIA request, the Commission would still need to make a particularized determination that the information is exempt from disclosure. 55. As previously discussed, we have only rarely departed from the general policy of withholding audit information from public disclosure. Parties should note, however, that as in the past, 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. Contrary to SBC's suggestion, 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. 56. The Joint Parties express 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 provision of the FOIA. The Joint Parties suggest that audit information is confidential under the impairment prong of the National Parks test and thus is not required to be disclosed under the provisions of the FOIA. While this may generally be true, the Commission's concerns about "impairment" of its ability to obtain relevant information in audits may be reduced depending upon the circumstances, including the nature of the audit and the relative sensitivity of the audit data. Thus, it is possible that circumstances could arise in which the Commission, in the context of a FOIA matter, might determine that disclosure of audit data is required. We also 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. 7. Surveys and Studies 57. The Commission has authority to conduct studies and surveys needed to fulfill its regulatory functions. Because these surveys and studies sometimes entail the submission of competitively sensitive information, we sought comment on how to protect their confidentiality. We believe the best way to do so is to allow survey and study respondents to request confidential treatment pursuant to Section 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. Moreover, contrary to GTE's suggestion, this information is not always voluntarily submitted. Ultimately, there is a need to assess whether these submission contain materials that would be customarily disclosed or are competitively sensitive to determine if they are as a matter of law entitled to Exemption 4 treatment. Therefore, we will not adopt, as the Joint Parties request, a general rule that surveys and study replies are entitled to confidential treatment. 8. Other Proceedings 58. 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, in revising our foreign carrier entry rules pursuant to the WTO Basic Agreement, the Commission concluded that 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 section 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. D. Scope of Materials Not Routinely Available for Public Inspection 1. Categories of materials that are not routinely available for public inspection 59. As previously noted, Section 0.457(d) of our rules contains a list of categories of material that are not routinely available for public inspection, and therefore, do not require a request for confidential treatment under Section 0.459 in order to be withheld. Thus, we sought comment regarding whether the current list of materials that are not routinely available for public inspection is appropriate. 60. We believe that TH&F's suggestion that Section 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. As a practical matter, even if such a standard could be deemed to satisfy the requirements of FOIA Exemption 4, considerable uncertainty would exist concerning which particular documents might fall within this general category. Absent an individualized request for confidentiality (which our rules already provide for), submitters, therefore, could not be certain that the Commission would afford particular documents confidential treatment. We also reject the Joint Parties' suggestion that we codify the Critical Mass standard and 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, as one commenter suggested. It is certainly possible to identify categories of information that are likely to fall within FOIA Exemption 4, and our rules currently do so. Identifying such categories reduces administrative burdens on submitters and the Commission. 61. We conclude that certain programming contracts fall squarely within Exemption 4. As noted by HBO and NCTA, 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. Therefore, we amend Section 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. 62. The Joint 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. 2. Use of confidential information in decisions. 63. The submission of confidential materials to the Commission can pose problems in the drafting of agency decisions. Materials submitted under claims of confidentiality may form the basis for an agency decision, and, hence, may have precedential value. Therefore, one important factor in deciding whether parts of an order should be sealed is whether the non- public sections have significant precedential importance. In any event, such information would not be disclosed without first permitting the requesting party to seek Commission review and or a judicial stay pursuant to Section 0.459(g) of our rules. 64. 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. 65. In SBC Communications, the court 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. E. Clarifications to Commission Rules 66. Deferral of rulings on confidentiality requests. In the Notice, we sought comment on codifying the existing Commission practice of sometimes deferring action on requests for confidentiality if no request for inspection has been made. Many of the commenters support amending the Commission's rules to defer ruling on a request for confidentiality until a request for inspection has been made. Codification of the deferral practice will have the salutary effect of conserving administrative resources. As AT&T notes, this process is more efficient because in many instances, no one will ask for disclosure of the information for which confidential treatment has been requested. This practice does not, as TH&F suggests, impose any hardships on the submitting party who, TH&F asserts, needs to know if its submission will be treated confidentially. As long as the request for confidential treatment remains pending before the Commission, the information will be treated confidentially. 67. We will amend Section 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. 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. Consistent with the suggestion of the Joint Parties and CBT, 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. F. Other Issues 68. Changing the title of Section 0.457(d) and deleting the introductory paragraph. The Commission also proposed to amend the title of Section 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." GTE suggests leaving out the word "certain," as it may lead to confusion. We will adopt this proposal along with GTE's suggested amendment. We will also delete as unnecessary the introductory paragraph of Section 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. 69. Defining "Required" vs. "Voluntary" Some parties seek clarification of the Critical Mass required/voluntary distinction as applied to our confidentiality rules. For example, the Joint Parties seek modification of Section 0.459(e) to state that information is "required" if provided in response to a direct Commission order, a subpoena, or other legal process. GCI more broadly suggests that all information submitted in response to any Commission request for information should be considered "required." 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. As discussed above, the provision in section 0.459(e) of the rules governing the return of materials that are submitted voluntarily was adopted prior to Critical Mass. 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 section 0.459(e) to clarify that, if the information is subject to a request for inspection, it will not be returned. 70. The Joint Parties also suggest that Commission should routinely withhold "[i]nformation provided voluntarily to the Commission subject to a certification by the provider that such information is not customarily disclosed." As we discussed above, 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. 71. Opportunity to comment. We agree with CBT that if the information belongs to third parties, they should be afforded the opportunity to participate in the Commission proceeding resolving the confidentiality issue. Section 0.459 will be amended accordingly. 72. Clarification of review procedures. While Kay, Lurya, and Aitken seek modification of the procedures for review of confidentiality rulings, we find no need to do so, as these matters are already addressed by the Commission's current rules. Specifically Section 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. 73. Deletion of obsolete references and renumbering of rules. We will take this opportunity to update Section 0.457(d)(1) of our Rules. Under Section 0.457(d)(1)(i), financial reports filed under former Section 1.611 are not routinely made available for public inspection. Section 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 Section 0.457(d)(1)(i) to indicate that financial reports submitted pursuant to former Section 1.611 remain not routinely available for public inspection. The parenthetical to Section 0.457(d)(1)(i) states that "fees paid on consummation of the assignment or transfer of a broadcast station licenses, pursuant to  1.1111 of this chapter, are computed from information contained in financial reports submitted pursuant to  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 Section 1.1104 of our rules. Therefore, we will eliminate the parenthetical portion of Section 0.457(d)(1). 74. 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  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 Section 76.403 would continue to be afforded confidentiality under Section 0.457(d), these reports have been destroyed pursuant to our records retention schedules. In addition, Section 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 Sections 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 intent that they remain not routinely available. 75. 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 Section 0.457(d)(1). We will also renumber current Section 0.457(d)(2)(i) as a new Section 0.457(d)(2). IV. FINAL REGULATORY FLEXIBILITY ACT CERTIFICATION 76. Our Notice 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. A copy of this certification will also be published in the Federal Register notice. V. PAPERWORK REDUCTION ACT 77. 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, Pub. L. No. 104-13. Public and agency comments are due 60 days from date of publication of this Order in the Federal Register. Comments may address the following: (a) whether the 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 and/or modified information collections must be submitted on or before 60 days after date of publication in the Federal Register. 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 . For additional information concerning the information collections contained in the Report and Order contact Judy Boley at 202-418-0214. VII. ORDERING CLAUSES 78. 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 as set forth in Appendix B, effective 90 days following publication in the Federal Register and after OMB approval, unless a notice is published in the Federal Register stating otherwise. 79. IT IS FURTHER ORDERED that the Office of Public Affairs, Reference Operations Division, shall send a copy of this Report and Order, including the Regulatory Flexibility Act certification, to the Chief Counsel for Advocacy of the Small Business Administration. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary APPENDIX A PARTIES FILING COMMENTS AND REPLY COMMENTS COMMENTING PARTIES: Aitken Irvin Berlin Vrooman & Cohn, LLP (Aitken) Cincinnati Bell Telephone Company (CBT) General Communications, Inc. (GCI) GTE Service Corp. (GTE) Ameritech, Bell Atlantic, Bell Communications Research, BellSouth, NYNEX, Pacific Bell, Nevada Bell and US West (Joint Parties) James A. Kay, Jr. (Kay) Law Offices of Alan M. Lurya (Lurya) MCI Telecommunications Corporation (MCI) National Cable Television Association, Inc. (NCTA) SBC Communications, Inc. (SBC) Sprint Corporation (Sprint) Thompson Hine & Flory, P.L.L. (TH&F) Time Warner Communications Holdings, Inc. (Time Warner) REPLY COMMENTS: Aitken Irvin Berlin Vrooman & Cohn, LLP (Aitken) Association for Local Telecommunications Services (ALTS) AT&T Corporation (AT&T) Cincinnati Bell Telephone Company (CBT) General Communications, Inc. (GCI) GTE Service Corp. (GTE) Home Box Office, Inc. (HBO) Ameritech, Bell Atlantic, Bell Communications Research, BellSouth, NYNEX, Pacific Bell, Nevada Bell and US West (Joint Parties) James A. Kay, Jr. (Kay) MCI Telecommunications Corporation (MCI) SBC Communications, Inc. (SBC) Time Warner Communications Holdings, Inc. (Time Warner) Thompson Hine & Flory, P.L.L. (TH&F) APPENDIX B RULES (AMENDED LANGUAGE HIGHLIGHTED) 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 changing the title for subsection (d), by deleting the introductory paragraph of subsection (d) and subsections (d)(1)(iii) and (d)(1)(iv), by amending the text of subsection (d)(1)(i), by adding new subsections (d)(1)(iii) and (d)(1)(iv), by renumbering Section 0.457(d)(2) as subsection 0.457(d)(1)(v), and by renumbering Section 0.457(d)(2)(i) as Section 0.457(d)(2) so that subsection (d) reads as follows:  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 s 0.459. A persuasive showing as to the reasons for inspection will be required in requests for inspection of such materials submitted under  0.461. (i) Financial reports submitted by licensees of broadcast stations pursuant to former  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  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 (1966 ed.) 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 subdivision were superseded by the provisions of this paragraph, 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  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  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  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  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:  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  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; (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  0.460 or  0.461. The information will be accorded confidential treatment, as provided for in  0.459(g) and  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  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:  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  0.457(d) or  0.459, or if a request for confidentiality is pending pursuant to  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 C STANDARD PROTECTIVE ORDER AND DECLARATION Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Docket No. ____________ [Name of Proceeding] ) 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 C.F.R.  0.442. 1. Definitions. a. Authorized Representative. "Authorized Representative" shall have the meaning set forth in Paragraph seven. b. Commission. "Commission" means the Federal Communications Commission or any arm of the Commission acting pursuant to delegated authority. c. Confidential Information. "Confidential Information" means (i) information submitted to the Commission by the Submitting Party that has been so designated by the Submitting Party and which the Submitting Party has determined in good faith constitutes trade secrets 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 C.F.R  0.459 & 0.461, determine that all or part of the information claimed as "Confidential Information" is not entitled to such treatment. 3. Procedures for Claiming Information is Confidential. Confidential Information submitted to the Commission shall be filed under seal and shall bear on the front page in bold print, "CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION - DO NOT RELEASE." Confidential Information shall be segregated by the Submitting Party from all non-confidential information submitted to the Commission. To the extent a document contains both Confidential Information and non-confidential information, the Submitting Party shall designate the specific portions of the document claimed to contain Confidential Information and shall, where feasible, also submit a redacted version not containing Confidential Information. 4. Storage of Confidential Information at the Commission. The Secretary of the Commission or other Commission staff to whom Confidential Information is submitted shall place the Confidential Information in a non-public file. Confidential Information shall be segregated in the files of the Commission, and shall be withheld from inspection by any person not bound by the terms of this Protective Order, unless such Confidential Information is released from the restrictions of this Order either through agreement of the parties, or pursuant to the order of the Commission or a court having jurisdiction. 5. Access to Confidential Information. Confidential Information shall only be made available to Commission staff, Commission consultants and to counsel to the Reviewing Parties, or if a Reviewing Party has no counsel, to a person designated by the Reviewing Party. Before counsel to a Reviewing Party or such other designated person designated by the Reviewing Party may obtain access to Confidential Information, counsel or such other designated person must execute the attached Declaration. Consultants under contract to the Commission may obtain access to Confidential Information only if they have signed, as part of their employment contract, a non-disclosure agreement or if they execute the attached Declaration. 6. Counsel to a Reviewing Party or such other person designated pursuant to Paragraph 5 may disclose Confidential Information to other Authorized Representatives to whom disclosure is permitted under the terms of paragraph 7 of this Protective Order only after advising such Authorized Representatives of the terms and obligations of the Order. In addition, before Authorized Representatives may obtain access to Confidential Information, each Authorized Representative must execute the attached Declaration. 7. Authorized Representatives shall be limited to: a. Counsel for the Reviewing Parties to this proceeding, including in-house counsel actively engaged in the conduct of this proceeding, and their associated attorneys, paralegals, clerical staff and other employees, to the extent reasonably necessary to render professional services in this proceeding; b. Specified persons, including employees of the Reviewing Parties, requested by counsel to furnish technical or other expert advice or service, or otherwise engaged to prepare material for the express purpose of formulating filings in this proceeding; 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 C.F.R.  0.457(d). 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) __________________________________