**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**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 Comcast Corporation ("Comcast" 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. §543 and 47 C.F.R. §§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 protection.

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.[^1]
    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.[^2] 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 the LOI.

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-1071 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
strictly confidential.

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 12^th^ Street, S.W., Room
    3-C222, Washington, D.C. 20554, or JoAnn Lucanik, Deputy Chief,
    Spectrum Enforcement Division, Enforcement Bureau, Federal
    Communications Commission, 445 12^th^ 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-1071 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. §§ 154(i), Section
    4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4), and
    Section 0.457(d)(2) of the Commission's Rules, 47 C.F.R. §
    0.457(d)(2), and is effective upon its adoption.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Kris Anne Monteith
>
> Chief, Enforcement Bureau

[^1]: *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 order).

[^2]: *See, e.g.,* 47 C.F.R. § 0.457(d)(iv)(covering programming
    contracts between programmers and multichannel video programming
    distributors).