******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. In re Applications of ) ) TCI Satellite Entertainment, Inc. ) ) and ) File No. 91-SAT- TC-97 ) PRIMESTAR, Inc. ) ) For Consent to Transfer of Control ) of TEMPO Satellite, Inc. ) ) and ) ) MCI Telecommunications Corporation ) ) and ) File No. 106-SAT- AL-97 ) PRIMESTAR LHC, Inc. ) ) For Consent to Assignment of Direct ) Broadcast Satellite Authorizations ) ORDER ADOPTING PROTECTIVE ORDER Adopted: April 9, 1998 Released: April 10, 1998 By the Chief, International Bureau 1. On March 2, 1998, the International Bureau (the "Bureau") directed PRIMESTAR and certain of its owners (individually or collectively, the "Submitting Party") to submit further information to the Commission for consideration in connection with the above-captioned applications. The Commission specifically requested, inter alia, "all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) (or individuals exercising similar functions) for the purpose of evaluating or analyzing the proposed acquisitions with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets." This request for information represents the documents requested by the Department of Justice pursuant to question 4(c) of its request for information pursuant to its authority under the Hart-Scott-Rodino Antitrust Improvements Act ("HSR"). 2. Claiming that the documents requested by the Commission contained confidential and proprietary information, the Submitting Party filed a proposed protective order with the Bureau on March 20, 1998. On the same date, the Bureau issued a public notice requesting comments on the proposed protective order by March 27, 1998, and reply comments by March 31, 1998. Upon reviewing the filings received during this comment period, the Bureau hereby enters the attached Protective Order (Appendix A) to insure that the documents the Submitting Party asserts to be confidential and proprietary are afforded adequate protection. 3. According to the Submitting Party, the requested documents are exempt from mandatory disclosure under the Freedom of Information Act ("FOIA") and our implementing rules because they involve the "business plans, strategies and tactical decisions of PRIMESTAR and its owners." The public disclosure of this information, they assert, would impose "irreparable harm" to PRIMESTAR. Additionally, the Submitting Party stated that many of these documents were also filed with the Department of Justice pursuant to the pre-merger review process under the HSR statute and should be afforded confidentiality protection under that statute. 4. Two parties to the proceeding, Ameritech New Media, Inc. ("Ameritech") and EchoStar Communications Corp. ("Echostar"), filed comments regarding the protective order proposed by PRIMESTAR. Commenters primarily asserted that the provision limiting access to the documents subject to the protective order to the parties' outside counsel would be burdensome to the parties both strategically and financially. We believe that limiting access to outside counsel is appropriate in this proceeding to balance the potential competitive harms that the Submitting Party alleges could ensue if sensitive information regarding its future business plans were disclosed to its competitors, and the need for parties to have access to the information provided to the Bureau in this proceeding. Contrary to the assertion of Ameritech, the protective order does not bar examinations of confidential documents by consultants or experts who are not affiliated with competitors of the Submitting Party. We clarified paragraph 3 of the protective order to provide that outside consultants or experts who are not involved in the analysis underlying the business decisions or who do not participate directly in the business decisions of any competitors of the Submitting Party may have access to the documents subject to the terms of the protective order. 5. Additionally, to insure that this protective order is as narrowly tailored as possible we decline to grant EchoStar's request to expand the definition of "Submitting Party" to any party to the proceeding but will review any additional requests for confidentiality by any party to this proceeding on a case by case basis. 6. EchoStar also requests that the protective order not prohibit the use of independently developed information that may overlap information subject to the protective order. We do not intend the protective order to impose such a limitation. However, contrary to EchoStar's request, the Bureau believes that it is reasonable that any confidential information that is disclosed accidentally should not generally be deemed a waiver of its confidential treatment. We note, however, that an accidental disclosure that the Submitting Party does not promptly act to remedy may constitute a waiver. 7. The commenters also expressed concern that the Submitting Party will have the "unfettered right to determine what information is and is not confidential." The Submitting Party raised specific objections to questions 12, 13, and 14 directed to TSAT & PRIMESTAR , and questions 1 and 2 directed to PRIMESTAR and its owners, and a generalized objection to all questions propounded in the letter. The generalized objection is insufficient under 0.459(c) of our rules. Information in response to the questions specifically objected to will be subject to the protective order. Further, although we are relying on the Submitting Party's good faith determination that the requested documents qualify for and require confidential treatment, we have modified the proposed protective order to clarify that the Commission reserves its authority pursuant to sections 0.459 and 0.461 of its rules to determine that a document for which confidential treatment is sought is not entitled to such treatment. 8. We have made, inter alia, the following substantive changes to the protective order proposed by PRIMESTAR. We have added paragraph 6 of the protective order, which makes clear that the protective order cannot and does not supersede applicable provisions of FOIA, by stating: "If any person requests disclosure of stamped confidential documents outside the terms of this protective order, such requests will be treated in accordance with sections 0.442 and 0.461 of the Commission's rules." We have deleted a proposal to prevent parties using confidential materials in this proceedings to seek disclosure of these documents in another proceeding. We, however, caution that any such request must comply with the terms of paragraph 7 of the protective order (regarding filing pleadings with confidential information). Additionally, we expect that any such requests will be granted only very rarely. We also have clarified paragraph 9 of the protective order to provide that the duty to provide the Submitting Party the opportunity to object to the order of a court or another agency to produce the confidential documents shall be subject to the independent authority of that entity to order otherwise. 9. The Submitting Party shall make available for review the documents subject to this protective order at the offices of its outside counsel, Willkie Farr & Gallagher, Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20036. Parties reviewing these documents will be provided the following alternatives: 1) parties will be provided adequate opportunity to inspect the documents on site; 2) parties may inspect the documents on site with the ability to request copies, at cost, of all or some of the documents; or 3) parties may request a complete set of the documents at cost, allowing two days after the request is made for receipt of the copies. If a complete set of documents will be requested, parties are encouraged to make such request at the time they submit the Acknowledgement of Confidentiality. This will allow parties the opportunity to begin reviewing the documents at the end of the five day period referenced in paragraph 5 of the protective order. All documents that are removed from the Willkie, Farr & Gallagher offices will bear an original confidential stamp and must be returned in accordance with the terms of the protective order. 10. This order also establishes the following pleading cycle for those parties who would like the opportunity to comment on the information contained in the documents subject to this protective order. Any party seeking access to the protected material must designate to the Submitting Party the persons who it desires to have access to the documents by April 16, 1998. Any additional persons wishing to have access to the documents after this date shall request access to the documents pursuant to paragraph 5 of the protective order. The Submitting Party shall have until April 21, 1998, to object to any persons designated to review the confidential documents by April 16, 1998. The parties signing the confidentiality agreement shall be provided access to the documents on April 23, 1998. The reviewing parties must file any comments with the Bureau by May 7, 1998. Reply comments must be submitted to the Bureau by May 14, 1998. If an objection is made to any person designated to review the documents and that objection cannot be resolved prior to the date the parties are scheduled to begin reviewing the documents, subsequent dates for comments and reply comments may be adjusted accordingly. In that case, the Bureau will issue a public notice indicating the changes in the relevant dates. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, International Bureau APPENDIX A PROTECTIVE ORDER 1. On March 2, 1998, the International Bureau directed PRIMESTAR and certain of its owners (individually or collectively, the "Submitting Party") to submit certain information to the Commission for consideration in connection with the above-captioned applications. The Commission specifically requested, inter alia, "all studies, surveys, analyses and reports which were prepared by or for any officer(s) or director(s) (or individuals exercising similar functions) for the purpose of evaluating or analyzing the proposed acquisitions with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets." Many of the documents requested were filed with the Department of Justice pursuant to the pre-merger review process under the Hart-Scott-Rodino Antitrust Improvements Act ("HSR"). This protective order is entered for the purpose of facilitating and expediting the review of documents containing trade secrets and commercial or financial information obtained from a person that is privileged or confidential. It sets forth the manner in which confidential information, as that term is defined herein, is to be treated by the parties to this proceeding. The order does not 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 otherwise. 2. Except with the prior written consent of the Submitting Party, or as hereinafter provided under this order, neither a stamped confidential document nor the contents thereof may be disclosed to any person. A "stamped confidential document" shall mean any document submitted in response to the March 2, 1998 request that bears the legend (or that otherwise shall have had the legend recorded upon it in a way that brings its attention to a reasonable examiner) "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER IN File Nos. 91-SAT-TC-97 and 106-SAT-AL-97 before the Federal Communications Commission" to signify that it contains information that the Submitting Party claims is entitled to protection under the Freedom of Information Act and the Commission's implementing rules unless the Commission determines pursuant to sections 0.459 or 0.461 of its rules that any such document is not entitled to confidential treatment. For purposes of this order, the term "document" means all written, recorded, or graphic material, whether produced or created by a party or another person. 3. Subject to the requirements of paragraph 5, stamped confidential documents may be reviewed by outside counsel of record for the parties in this proceeding. Subject to the requirements of paragraph 5 and subject to the obligation to secure the confidentiality of stamped confidential documents in accordance with the terms of this order, such outside counsel may disclose stamped confidential documents to: (i) the partners, associates, secretaries, paralegal assistants, and employees of such outside counsel to the extent reasonably necessary to render professional services in this proceeding; (ii) to Commission officials involved in this proceeding; (iii) to outside consultants or experts retained for the purpose of assisting counsel in these proceedings and who are not involved in the analysis underlying the business decisions or who do not participate directly in the business decisions of any competitor of the Submitting Party; (iv) employees of outside counsel involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving data or designing programs for handling data connected with this proceeding; and (v) employees of third-party contractors performing one or more of these functions. 4. Outside counsel shall have the obligation to ensure that access to stamped confidential documents is strictly limited as prescribed in this order. Outside counsel shall further have the obligation to ensure (i) that stamped confidential documents are used only as provided in this order; and (ii) that stamped confidential documents are not duplicated except as necessary for filing at the Commission under seal as provided in paragraph 7. 5. In all cases where access to stamped confidential documents is permitted pursuant to paragraph 3, and before reviewing or having access to stamped confidential documents, each person seeking such access shall execute the Declaration attached to this Protective Order and provide a copy of the executed Declaration to the Commission and to each Submitting Party so that it is received by each Submitting Party five business days prior to reviewing or having access to such stamped confidential documents. Each Submitting Party shall have an opportunity to object to the disclosure of stamped confidential documents to any such persons, which objection must be filed at the Commission and served on outside counsel responsible for such person within three business days after receiving a copy of that person's declaration. Until any such objection is resolved by the Commission, and unless that objection is resolved in favor of the person seeking access, persons subject to an objection from a Submitting Party shall not have access to stamped confidential documents. 6. If any person requests disclosure of stamped confidential documents outside the terms of this protective order, such requests will be treated in accordance with sections 0.442 and 0.461 of the Commission's rules. 7. Outside counsel may, in any pleadings that they file in this proceeding, reference information found in stamped confidential documents or derived therefrom (hereinafter "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; b. The portions of pleadings containing or disclosing Confidential Information must be covered by a separate letter to the Secretary of the Commission 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, File Nos. 91-SAT-TC-97 and 106-SAT-AL-97:" and d. The confidential portion(s) of the pleading shall be served upon the Secretary of the Commission and the Submitting Party. Such confidential portions shall be served under seal, and shall not be placed in the Commission's Public File. A 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. Parties may provide courtesy copies of pleadings containing Confidential Information to Commission staff under seal. 8. Disclosure of Confidential Information as provided herein by any person 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 and (b) agree that accidental disclosure of Confidential Information by a Submitting Party shall not be deemed a waiver of any privilege or entitlement as long as the Submitting Party takes prompt remedial action. . 9. If a court or another administrative agency subpoenas or orders production of stamped confidential documents that a party has obtained under terms of this order, such party shall promptly notify each Submitting Party of the pendency of such subpoena or order. Consistent with the independent authority of any court or administrative agency, the party shall make every effort to assure that the Submitting Party has a full opportunity to oppose such production prior to the production or disclosure of any stamped confidential document or Confidential Information. 10. Persons obtaining access to stamped confidential documents under this order shall use the information only for preparation and the conduct of this proceeding as delimited in paragraphs 4 and 7, and any subsequent judicial proceeding arising directly from this proceeding, and shall not use such information for any other purpose, including business, governmental, commercial, or other administrative or judicial proceedings. Should a party that has properly obtained access to Confidential Information under this Protective Order violate any of its terms, that party shall immediately convey that fact to the Commission and to the Submitting Party. Further, should such violation consist of improper disclosure of Confidential Information, the violating party shall take all necessary steps to remedy the improper disclosure. The Commission retains its full authority to fashion appropriate sanctions for violations of this Protective Order. 11. The provisions of this order shall not terminate at the conclusion of this proceeding. Within two weeks after conclusion of this proceeding, including judicial review (if any), stamped confidential documents and all copies of same shall be returned to the Submitting Party. No material whatsoever derived from stamped confidential documents may be retained by any person having access thereto, except outside counsel to a party to this proceeding may retain, under the continuing strictures of this order, two copies of pleadings containing confidential information prepared on behalf of the party. All counsel of record shall make certification of compliance herewith and shall deliver the same to counsel for the Submitting Party not more than three weeks after conclusion of this proceeding. 12. This Order is issued pursuant to Sections 4(i) and 310(d) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i) and 310(d), Section 4 of the Freedom of Information Act, 5 U.S.C.  552(b)(4), and authority delegated under Section 0.261 of the Commission's Rules, 47 C.F.R.  0.261, and is effective upon its adoption. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, International Bureau APPENDIX B ACKNOWLEDGEMENT OF CONFIDENTIALITY I hereby acknowledge that I have received and read a copy of the foregoing Protective Order in the above-captioned proceeding. I agree that I am bound by this Order and that I shall not disclose or use documents or information designated as "CONFIDENTIAL INFORMATION" or any information gained therefrom except as allowed by the Order. I acknowledge that a violation of the Protective Order is a violation of an order of the Federal Communications Commission. Without limiting the foregoing, to the extent that I have any employment, affiliation or role with any person or entity other than a conventional private law firm (such as, but not limited to, a lobbying or public interest organization), I acknowledge specifically that my access to any information obtained as a result of the order is due solely to my capacity as outside counsel to a party or other person described in paragraph 3 of the foregoing Protective Order and that I will not use such information in any other capacity nor will I disclose such information except as specifically provided in the order. Executed at ______________________ this _____ day of 1998 . ________________________ Signature _________________________ Title