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Federal Communications Commission
Washington, D.C. 20554
) File No. EB-08-SE-1076
Order Adopting Protective Order
Adopted: November 12, 2008 Released: November 13, 2008
By the Chief, Enforcement Bureau:
1. On October 30, 2008, the Enforcement Bureau ("Bureau") sent a Letter
of Inquiry ("LOI") to RCN Corporation ("RCN" or "Company") seeking
information concerning potential violations of various requirements of
the Communications Act of 1934, as amended ("Act") and the
Commission's rules ("Rules"), including, but not limited to, 47 U.S.C.
S:543 and 47 C.F.R. S:S:76.630, 76.980, and 76.1603. The LOI sought
information from Company concerning whether Company may have moved
certain analog basic or expanded basic channels to a digital tier
(herein referred to as an "analog-to-digital channel change"), making
such channels unavailable to analog subscribers unless they obtained a
Company-supplied digital set top box and/or subscribed separately to
Company's digital programming tier.
2. Question 8.b. of the LOI seeks information that may contain
proprietary or confidential information, and that, therefore, should
be made available pursuant to a Protective Order. Specifically,
Question 8.b. requires that Company provide for each channel affected
by an analog-to-digital channel change, "the per-subscriber fees
related to that channel paid by Company to the video programming
distributor responsible for that channel." The Bureau is aware that
the information requested by this inquiry may contain highly sensitive
business data and has consistently recognized that disclosure of
information related to programming contracts in some instances can
result in substantial competitive harm to the information provider.
Consequently, the Bureau hereby adopts this Protective Order to ensure
that any confidential or proprietary information submitted by Company
in response to Question 8.b. of the LOI is afforded adequate
3. In general, the Commission will grant more limited access to those
materials which, if released to competitors, would allow those
competitors to gain a significant advantage in the marketplace.
Accordingly, we will permit persons submitting documents and
information in response to Question 8.b. to designate those materials
as Highly Confidential and, as provided below, we will limit access to
such materials. It is our intent that such materials, so long as they
fall within the Categories of Highly Confidential Information Covered
by This Protective Order as set forth in paragraph 5 below, shall be
protected from disclosure under FOIA. We find that such materials are
necessary to develop a more complete record on which to base the
Commission's decision in this investigation and therefore require
their production. This Protective Order covers only those portions of
documents or data that contain Highly Confidential Information as
defined in Paragraph 4 below and are responsive to Question 8.b. of
4. Definitions. As used herein, the following terms shall mean:
"Stamped Highly Confidential Document" means any document, or any part
thereof, that bears the legend (or which otherwise shall have had the
legend recorded upon it in a way that brings its attention to a reasonable
examiner) "HIGHLY CONFIDENTIAL INFORMATION - SUBJECT TO PROTECTIVE ORDER
IN FILE NO. EB-08-SE-1076 before the Enforcement Bureau, Federal
Communications Commission," unless the Commission determines, sua sponte
or by request pursuant to Sections 0.459 or 0.461 of its Rules, that any
such document is not entitled to such confidential treatment. The term
"Document" means any written, recorded, electronically stored, or graphic
material, whether produced or created by Company or another person. By
designating a document a "Stamped Highly Confidential Document," Company
signifies and represents that it contains information that Company
believes should be subject to protection under FOIA, the Commission's
implementing Rules and this Protective Order.
"Highly Confidential Information" means information contained in Stamped
Highly Confidential Documents or derived therefrom that is not otherwise
available from publicly available sources and that Company has kept
5. Categories of Highly Confidential Information Covered by This
Protective Order. A document or a portion of a document may be
submitted under this Protective Order only if it is responsive to
Question 8.b. of the LOI as covered by this Order and it contains
Highly Confidential Information as defined above. With regard to
Company's submission of Highly Confidential Information, this
Protective Order covers the following documents and information: for
each channel affected by an analog-to-digital channel change, the
per-subscriber fees related to that channel paid by Company to the
video programming distributor responsible for that channel.
6. Submission of Stamped Highly Confidential Documents. Two copies of
each Stamped Highly Confidential Document must be delivered in person
to William Davenport, Assistant Chief, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Room 3-C222,
Washington, D.C. 20554, or JoAnn Lucanik, Deputy Chief, Spectrum
Enforcement Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, S.W., Room 3-A362, Washington, D.C.
20554. The document shall be accompanied by a cover letter stating
"CONFIDENTIAL INFORMATION - SUBJECT TO PROTECTIVE ORDER IN File No.
EB-08-SE-1076 before the Enforcement Bureau, Federal Communications
Commission." Each page of the Highly Confidential Filing shall be
stamped with this legend as well.
7. Requests for Additional Disclosure. If any person requests disclosure
of Highly Confidential Information outside the terms of this
Protective Order, such a request will be treated in accordance with
Sections 0.442 and 0.461 of the Commission's Rules.
8. No Waiver of Confidentiality. Disclosure of Highly Confidential
Information as provided herein by any person shall not be deemed a
waiver by Company of any privilege or entitlement to confidential
treatment of such Highly Confidential Information.
9. Subpoena by Courts, Departments or Agencies. If a court, or a federal
or state department or agency issues a subpoena or orders production
of Stamped Highly Confidential Documents or Highly Confidential
Information obtained under terms of this Protective Order, the Bureau
shall promptly notify each Company of the pendency of such subpoena or
order. Consistent with the independent authority of any court,
department or agency, such notification must be accomplished such that
Company has a full opportunity to oppose such production prior to the
production or disclosure of any Stamped Highly Confidential Document
or Highly Confidential Information.
10. Termination of Proceeding. The provisions of this Protective Order
shall not terminate at the conclusion of any potential future formal
proceedings that may result from this investigation.
11. Authority. This Order is issued pursuant to Sections 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), Section
4 of the Freedom of Information Act, 5 U.S.C. S: 552(b)(4), and
Section 0.457(d)(2) of the Commission's Rules, 47 C.F.R. S:
0.457(d)(2), and is effective upon its adoption.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See, e.g., Adelphia Communications Corp., Time Warner Cable Inc. and
Comcast Corp., Applications for Consent to the Assignment and/or Transfer
of Control, MB Docket No. 05-192, Order, DA 05-3226 (rel. Dec. 21, 2005)
(adopting a second protective order); News Corporation, General Motors
Corporation, and Hughes Electronic Corporation, MB Docket No. 03-124,
Order, DA 03-2376 (rel. July 22, 2003) (adopting a second protective
See, e.g., 47 C.F.R. S: 0.457(d)(iv)(covering programming contracts
between programmers and multichannel video programming distributors).
Federal Communications Commission DA 08-2496
Federal Communications Commission DA 08-2496