Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CS Docket No. 00-30          |
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| Applications of America Online,  | ) |                              |
| Inc.                             | * |                              |
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| and Time Warner, Inc. for        |   |                              |
| Transfers of Control             | * |                              |
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|                                  | ) |                              |
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|                                  | ) |                              |
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ORDER

Adopted: October 27, 2000 Released: October 27, 2000

By the Deputy Chief, Cable Services Bureau:

1.  On April 7, 2000, the Bureau entered a Protective Order regarding
    confidential or proprietary documents submitted by America Online,
    Inc. (AOL) and Time Warner, Inc. (Time Warner).[^1] For the reasons
    set forth below, we are modifying the Protective Order to provide
    that in-house counsel will not be permitted access to Stamped
    Confidential Documents[^2] that are made available on or after the
    date of this Order nor to Confidential Information derived from
    those documents. We are also requiring that before being allowed
    further access to Stamped Confidential Documents, persons seeking
    such access must certify that their firm or company has in place
    procedures to protect against the improper disclosure of
    confidential information.

2.  In adopting the Protective Order, we stated that the Commission, AOL
    and Time Warner anticipated that AOL and Time Warner would submit
    information to the Commission that might contain proprietary or
    confidential information.[^3] We adopted the Protective Order to
    ensure that any such information was afforded adequate
    protection.[^4] We noted that the Protective Order was identical in
    all material respects to protective orders adopted in other merger
    proceedings subject to Commission review.[^5]

3.  The Protective Order generally permits that Stamped Confidential
    Documents may be reviewed by outside counsel of record and in-house
    counsel who are actively engaged in the conduct of this proceeding,
    provided that those in-house counsel seeking access are not involved
    in competitive decision-making.[^6] As we have previously recounted,
    a breach of the Protective Order has occurred in this case.[^7]
    Specifically, we have been informed that information covered by the
    Protective Order has been inadvertently received and reviewed by
    in-house counsel who had not executed the required acknowledgments
    of confidentiality as well as by other personnel who were not
    entitled to receive that information.[^8]

4.  Because of the violation of the Protective Order, we have considered
    whether protections in addition to those provided in our general
    protective order are prudent or warranted in this proceeding at this
    time. Because the end of the proceeding is approaching, we believe
    that we need to resolve this issue quickly. We have discussed our
    concerns and potential remedies with AOL, Time Warner and the
    current signatories to the Protective Order. After considering the
    views of the parties, we conclude that under the unusual
    circumstances presented in this case, we should adopt the following
    further protections at this time. We are restricting access to
    Stamped Confidential Documents that are made available after the
    date of this Order and to Confidential Information derived from
    those documents to outside counsel only. We are also requiring that
    before being allowed further access to Stamped Confidential
    Documents, persons seeking such access must certify that their firm
    or company has in place procedures to protect against the improper
    disclosure of confidential information. We stress the narrow scope
    of the action we are taking. Because of the point we are at in the
    proceeding and the fact that AOL and Time Warner have already
    submitted substantial amounts of information, there are a limited
    number of documents to which the additional protections will
    apply.[^9]

5.  Accordingly, IT IS ORDERED that Paragraph 3 of the Protective Order,
    *Permissible Disclosure*, is amended to read as follows:

> *Permissible Disclosure*. Subject to the requirements of paragraph 5,
> Stamped Confidential Documents submitted before October 27, 2000, may
> be reviewed by outside counsel of record and in-house counsel who are
> actively engaged in the conduct of this proceeding, provided that
> those in-house counsel seeking access are not involved in competitive
> decision-making. Subject to the requirements of paragraph 5, Stamped
> Confidential Documents submitted on or after October 27, 2000, may be
> reviewed by outside counsel of record. . . . .

6.  IT IS FURTHER ORDERED that each person seeking access to any Stamped
    Confidential Documents after October 26, 2000, shall execute the
    amended Acknowledgment of Confidentiality before reviewing or having
    access to such documents, and shall file the amended Acknowledgment
    of Confidentiality with the Commission and serve it upon each
    Submitting Party.

7.  This Order is issued pursuant to sections 4(i) and (j) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and (j),
    and authority delegated under section 0.321 of the Commission's
    rules, 47 C.F.R. § 0.321.

FEDERAL COMMUNICATIONS COMMISSION

Sherille Ismail

Deputy Chief

Cable Services Bureau

APPENDIX A

ACKNOWLEDGMENT OF CONFIDENTIALITY

I hereby acknowledge that I have received and read a copy of the amended
Protective Order in the above-captioned proceeding and I understand it.
I agree that I am bound by this Order and that I shall not disclose or
use any Stamped Confidential Documents or any information gained
therefrom except as allowed by the Order. By signing this
Acknowledgement, I certify that my firm or company has in place
procedures to protect against the improper disclosure of Stamped
Confidential Documents or any information gained therefrom. 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 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.

I hereby certify that I am not involved in competitive decision-making
as that term is used in paragraph 3 of the Protective Order.

Executed at this day of , 2000.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Signature

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Title

[^1]: Applications of America Online, Inc. and Time Warner, Inc. for
    Transfers of Control, *Order Adopting Protective Order*, 15 FCC Rcd
    6117 (2000).

[^2]: The term "Stamped Confidential Document" is defined in the
    Protective Order. *Id*. at 6119 ¶ 2.

[^3]: *Id*. at 6117 ¶ 1.

[^4]: *Id*. at 6117 ¶ 2.

[^5]: *Id*.

[^6]: *Id*. at 6120 ¶ 3. We generally allow in-house counsel to review
    confidential information (provided that they are not involved in
    competitive decision-making) because parties maintain that such
    access is important to their ability to participate fully in the
    proceeding and provide meaningful comments. Parties claim that
    in-house counsel typically have greater expertise than outside
    counsel and are able to better interpret the documents they review,
    especially in areas involving technical information. Applicants, on
    the other hand, are generally concerned that the risks of damaging
    disclosure are increased by allowing in-house counsel access to
    confidential documents and information. Our protective orders
    represent our resolution of the parties' competing concerns.

[^7]: *See* In the Matter of Applications of America Online, Inc. and
    Time Warner, Inc. for Transfers of Control, CC Docket No. 00-30,
    *Order*, DA 00-2304 (Oct. 10, 2000).

[^8]: *Id*. at ¶¶ 2-3. The violation of the Protective Order is still
    under investigation and this Order does not resolve any of the
    issues raised thereby, including the appropriate remedy for the
    violation.

[^9]: We believe that, under the particular circumstances
    here\--including the late stage of the proceeding, the number and
    nature of documents still being sought from the applicants, the
    parties who have previously sought access under the Protective
    Order, and the limited time to create a more tailored response to
    the concerns raised by the violation\--this limited and temporary
    departure from our general approach to the treatment of inside
    counsel will provide reassurance that confidential information will
    remain protected without seriously compromising the values served by
    our general approach.