**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | WC Docket No. 04-372         |
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| July 1, 2004                     | ** |                              |
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| Annual Access Charge Tariff      | *  |                              |
| Filings                          | *) |                              |
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|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
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+----------------------------------+----+------------------------------+

**PROTECTIVE ORDER**

**Adopted: October 14, 2004** **Released:** **October 14, 2004**

By the Chief, Pricing Policy Division:

1.  The National Exchange Carrier Association, Inc., (NECA) on October
    12, 2004 filed its direct case in response to an order by the
    Wireline Competition Bureau (Bureau) that designated issues for
    investigation related to NECA's 2004 annual access tariff
    filings.[^1] NECA requested confidential treatment for certain
    information that it filed in its direct case. In response, the
    Bureau issues the following Protective Order.

2.  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.
    This Protective 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.[^2]

3.  Subject to compliance with this Protective Order, Authorized
    Representatives may inspect the data specified above for which NECA
    has requested confidential treatment in this proceeding by
    contacting the following NECA representative:

Richard A. Askoff

> 80 South Jefferson Road
>
> Whippany, NJ 07981
>
> 973 884-8350
>
> <raskoff@neca.org>

4.  *Definitions.*

a\. *Authorized Representative.* \"Authorized Representative\" shall
have the meaning set forth in paragraph ten**.**

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.

5.  *Claim of Confidentiality.* The Submitting Party may designate
    information as \"Confidential Information\" consistent with the
    definition of that term in paragraph four of this Protective Order.
    The Commission may, *sua sponte* or upon petition, pursuant to 47
    C.F.R §§ 0.459 and 0.461, determine that all or part of the
    information claimed as \"Confidential Information\" is not entitled
    to such treatment.

6.  *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,\" or
    similar wording. 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.

7.  *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
    Protective Order either through agreement of the parties, or
    pursuant to the order of the Commission or a court having
    jurisdiction.

8.  *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
    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.

9.  Counsel to a Reviewing Party or such other person designated
    pursuant to paragraph eight may disclose Confidential Information to
    other Authorized Representatives to whom disclosure is permitted
    under the terms of paragraph ten of this Protective Order only after
    advising such Authorized Representatives of the terms and
    obligations of the Protective Order. In addition, before Authorized
    Representatives may obtain access to Confidential Information, each
    Authorized Representative must execute the attached Declaration.

10. 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.

11. *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.

12. *Copies of Confidential Information.* The Submitting Party shall
    provide a copy of the Confidential Information to Authorized
    Representatives upon request and may charge a reasonable copying fee
    not to exceed 25 cents per page. Authorized Representatives may make
    additional copies of Confidential Information but only to the extent
    required and solely for 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.

13. *Filing of Declaration.* Counsel for Reviewing Parties shall provide
    to the Submitting Party and the Commission 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.

14. *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 Protective
    Order. This provision 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 or otherwise learned of its contents.

15. *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\. Any 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 Protective Order must be
clearly marked: "Confidential Information included pursuant to
Protective Order in the proceeding captioned as *July 1, 2004 Annual
Access Charge Tariff Filings*, WC Docket No. 04-372," or similar
wording.

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 shall be
placed in the Commission\'s Public File. 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.

16. *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.

17. *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 or
    Reviewing Parties shall destroy or return to the Submitting Party
    all Confidential Information as well as all copies and derivative
    materials that were 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
    this Protective Order unless such Confidential Information is
    released from the restrictions of this Protective Order either
    through agreement of the parties, or pursuant to the order of the
    Commission or a court of competent jurisdiction.

18. *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 material derived from any Confidential
    Information 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.

19. *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.

20. *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.

21. *Authority*. This Protective Order is issued pursuant to sections
    4(i) and 4(j) of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 154(i) and (j), section 0.457(d) of the Commission's
    rules, 47 C.F.R. § 0.457(d), and through the authority delegated
    pursuant to sections 0.91 and 0.291 of the Commission's rules, 47
    C.F.R. §§ 0.91 and 0.291.

    FEDERAL COMMUNICATIONS COMMISSION

    Tamara L. Preiss

    Chief, Pricing Policy Division

    Wireline Competition Bureau

**Attachment A**

DECLARATION

+----------------------------------+---+-------------------------------+
| In the Matter of                 | ) | WC Docket No. 04-372          |
|                                  |   |                               |
| July 1, 2004                     | ) |                               |
|                                  |   |                               |
| Annual Access Charge Tariff      | ) |                               |
| Filings                          |   |                               |
|                                  | ) |                               |
|                                  |   |                               |
|                                  | ) |                               |
+----------------------------------+---+-------------------------------+

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
this proceeding. I acknowledge that a violation of the Protective Order
is a violation of an order of the Federal Communications Commission.
I acknowledge that the Protective Order is also a binding agreement with
the Submitting Party.

(signed)

(name)

(representing)

(title)

(employer)

(address)

(phone)

(date)

[^1]: *July 1, 2004 Annual Access Charge Tariff Filings*, WC Docket No.
    04-372, Order Designating Issues for Investigation, DA No. 04-3020
    (WCB/Pricing Sept. 20, 2004).

[^2]: This Protective Order applies to the material designated as
    confidential in the above-captioned proceeding and material
    designated as confidential in any subsequent filings in this matter.