# **BEFORE THE**

**FEDERAL COMMUNICATIONS COMMISSION**

**WASHINGTON, D.C.**

In the Matter of )

)

Applications of WorldCom, Inc. and MCI )

Communications Corporation for Transfer ) CC Docket No. 97-211

of Control of MCI Communications )

Corporation to WorldCom, Inc. )

## [BELLSOUTH CORPORATION'S OPPOSITION TO]{.underline}

## [PROPOSED PROTECTIVE ORDER]{.underline}

# To: The Commission

BellSouth opposes entry of the protective order drafted by WorldCom,
Inc. and MCI Communications Corporation. Their proposal is entirely too
restrictive and seems designed more to hinder the ability of the parties
to this proceeding to provide informed comments than to protect
genuinely confidential information. The Commission should follow
directly relevant precedent and enter a standard protective order that
protects the rights and interests of all parties to this proceeding. The
protective orders adopted by the Commission in its section 271
proceedings provides the right model. In fact, the section 271 model
draws substantially on the order used in the Commission's AT&T-McCaw
proceeding, which, like this proceeding, involved review of
Hart-Scott-Rodino Act documents. *Comment Sought on Standard Protective
Order to be Used in Connection with Section 271 Applications*, 11 FCC
Rcd 13904 (October 23, 1996) at 1. WorldCom and MCI have not addressed
why this model would be anything less than completely adequate to
protect confidential information in this proceeding.

BellSouth sets out particular objections to overly restrictive portions
of the proposed protective order and points out appropriate language
from the Commission's section 271 and AT&T-McCaw protective orders in
the following paragraphs.

1\. [Restriction To Outside Counsel and Personnel.]{.underline} The
proposed protective order seeks to restrict access to confidential
material to "outside counsel of record\...who are actively engaged in
the conduct of this proceeding." Proposed Order at ¶ 2. WorldCom/MCI
offer no specific reason for this extremely restrictive provision.
BellSouth, like many other parties to this proceeding, is not
represented by outside counsel. Thus, the effect of adopting this
provision would be to make providing informed comment more difficult and
more costly. The Commission's section 271 protective orders explicitly
allow in-house counsel access to confidential materials, providing for
access by "counsel of record ... including in-house counsel who are
actively engaged in the conduct of this proceeding." Protective Order,
*In the Matter of Application of BellSouth Corporation et al. for
Provision of In-Region, InterLATA Services in South Carolina*, CC Dkt.
No. 97-208, released Sept. 30, 1997, at ¶ 3 ("*South Carolina Protective
Order*"). The protective order entered in the AT&T-McCaw acquisition
similarly provides in-house counsel access to Hart-Scott-Rodino
confidential information. Protective Order, *In the Matter of American
Telephone and Telegraph Company and Craig O. McCaw Applications for
Consent to Transfer of Control of Radio Licenses*, File No. ENF-93-44,
adopted May 13, 1994 ("*AT&T-McCaw Protective Order*") at ¶ 3. WorldCom
and MCI offer no reason to deviate from this practice and exclude
in-house counsel access.

The section 271 protective orders also allow "in-house economists and
regulatory analysts, provided they are under the supervision of the
counsel of record" to have access to confidential information. *South
Carolina Protective Order* at ¶ 3. WorldCom/MCI's proposed order appears
to prohibit such access. Again, WorldCom/MCI give no specific
explanation of why this more restrictive approach is necessary.

Any protective order entered in this proceeding should allow in-house
counsel, economists and regulatory analysts access to confidential
information using the language the Commission has included in the
section 271 protective orders.

### 2. Client Consultation. Paragraph 10 of the proposed order would allow a lawyer to advise clients relating to the conduct of this proceeding as long as the lawyer does "not disclose " confidential information. Both the section 271 and AT&T-McCaw protective orders use a more workable standard, prohibiting lawyers from "making specific disclosure" of confidential information. *South Carolina Protective Order* at ¶ 9. *AT&T-McCaw Protective Order* at ¶ 9. WorldCom/MCI offer no specific reason for their less workable approach. The Commission should adopt the standard from its earlier protective orders prohibiting "specific disclosure."

3\. [Outside Experts.]{.underline} Paragraph 3 of the proposed
protective order would add an additional, unnecessary, restriction on
consultation with outside experts, requiring outside experts to be "not
... affiliated in any way with any competitor" of WorldCom or MCI.
WorldCom/MCI provide no comment on how "affiliated in any way" is to be
defined or why this language is needed. Neither the section 271
protective orders nor the AT&T-McCaw protective order incorporate this
additional language. Those orders allow consultation with "outside
consultants or experts retained to render professional services in this
proceeding." *South Carolina Protective Order* at ¶ 3; *AT&T-McCaw
Protective Order* at ¶ 3. The Commission should reject WorldCom/MCI's
proposal here, and use its standard language.

4\. [Permissible Disclosure.]{.underline} WorldCom/MCI also seek an
unjustified power to effectively veto disclosure in paragraph 5.
Proposed paragraph 5 requires persons seeking access to confidential
information to notify WorldCom/MCI five days in advance. If WorldCom/MCI
object, proposed paragraph 5 would allow them to withhold access even if
the Commission orders it, until the objection is resolved by the courts.
The section 271 orders and the AT&T-McCaw order require disclosure if
the Commission so rules. *South Carolina Protective Order* at ¶ 3;
*AT&T-McCaw Protective Order* at ¶ 3(c). The Commission should reject
WorldCom/MCI's proposed language here.

5\. [Waiver.]{.underline} WorldCom/MCI attempt to insert a wholly
unjustified anti-waiver provision in paragraph 8 of the proposed order.
There are no similar provisions in the section 271 protective orders or
the AT&T-McCaw protective order. WorldCom/MCI offer no justification for
this provision, and there is no reason for the Commission to adopt it.
The Commission should strike this paragraph.

6\. [Acknowledgement of Confidentiality.]{.underline} The proposed
protective order contains an "Acknowledgement of Confidentiality" form
that adds unnecessary restrictions to the Commission's standards. For
example, the proposed acknowledgement limits access to outside counsel.
The acknowledgment used in the section 271 proceedings is more accurate
and more concise. The Commission should simply substitute the section
271 acknowledgement for the one proposed by WorldCom/MCI.

#### CONCLUSION

The WorldCom/MCI proposed protective order would unnecessarily handicap
the ability of the other parties to this proceeding to provide the
Commission informed comments. The Commission's standard orders provide
sufficient protection to confidential information. WorldCom/MCI's
absolute failure to provide any support for the additional restrictions
they propose suggest that their real motive is not legitimate protection
of any confidential information they may submit. The Commission should
substitute a standard confidentiality order for the one proposed by
WorldCom/MCI as described in the comments above.

Respectfully submitted,

BELLSOUTH CORPORATION

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

William B. Barfield

Jonathan B. Banks

Its Attorneys

Suite 1800

1855 Peachtree Street, N.E.

Atlanta, Georgia 30309-3910

\(404\) 249-2207

\(404\) 249-5901 (facsimile)

# Dated: May 7, 1998 

**CERTIFICATE OF SERVICE**

I hereby certify that I have this 7th day of May, 1998 served the
following parties to this action with a copy of the foregoing
**BELLSOUTH CORPORATION'S OPPOSITION TO PROPOSED PROTECTIVE ORDER** by
placing a true and correct copy of the same in the United States Mail,
postage prepaid, addressed to the parties at the addresses listed below:

Magalie Roman Salas (12 copies)

Secretary

Federal Communications Commission

1919 M Street, NW, Room 222

Washington, DC 20554

International Transcription Services, Inc.

1231 20th Street, NW

Washington, DC 20036

Anthony C. Epstein

John B. Morris

Ian H. Gershengorn

Jenner & Block

601 Thirteenth Street, NW

Washington, DC 20005

Catherine R. Sloan

Robert S. Koppel

WorldCom, Inc.

1120 Connecticut Avenue, NW

Washington, DC 20036

Michelle Carey

Common Carrier Bureau

Federal Communications Commission

1919 M Street, NW, Room 544

Washington, DC 20554

Janice Myles (with diskette)

Common Carrier Bureau

Federal Communications Commission

1919 M Street, NW, Room 544

Washington, DC 20554

Michael H. Salsbury

Mary L. Brown

Larry A. Blosser

MCI Communications Corporation

1801 Pennsylvania Avenue, NW

Washington, DC 20006-3606

Andrew D. Lipman

Jean L. Kiddoo

Helen E. Disenhaus

Swidler & Berlin, Chartered

3000 K Street, NW, Suite 300

Washington, DC 20007

Richard E. Wiley

R. Michael Senkowski

Jeffrey S. Linder

Robert J. Butler

Wiley, Rein & Fielding

1776 K Street, NW

Washington, DC 20006

Ramsey L. Woodworth

Robert M. Gurss

Rudolph J. Geist

Attorneys for United States Internet

Providers Association

Wilkes, Artis, Hedrick & Lane,

Chartered

1666 K Street, NW, Suite 1100

Washington, DC 20006

John Thorne

Sarah Deutsch

Robert H. Griffen

Attorneys for Bell Atlantic

1320 North Courthouse Road, 8th Floor

Arlington, VA 22201

John J. Sweeney

President

American Federation of Labor and

Congress of Industrial Organizations

815 16th Street, NW

Washington, DC 20006

David Honig

Special Counsel

Rainbow/PUSH Coalition

3636 16th Street, NW, B-366

Washington, DC 20010

Andrew Jay Schwartzman

Gigi B. Sohn

Joseph S. Paykel

Media Access Project

Suite 400

1707 L Street, NW

Washington, DC 20036

Alan Y. Naftalin

Gregory C. Staple

R. Edward Price

Attorneys for Telstra

Koteen & Naftalin, L.L.P.

1150 Connecticut Avenue, NW

Washington, DC 20036

George Kohl

Senior Executive Director

Debbie Goldman

Research and Development

Communications Workers of America

501 Third Street, NW

Washington, DC 20001-2797

Janice Mathis

General Counsel

Rainbow/PUSH Coalition

Thurmond, Mathis & Patrick

1127 W. Hancock Avenue

Athens, GA 30603

Matthew R. Lee, Esq.

Executive Director

Inner City Press/Community on

the Move & Inner City Public

Interest Law Project

1919 Washington Avenue

Bronx, NY 10457

Thomas A. Hart, Jr.

Amy E. Weissman

M. Tamber Christian

Attys for TMB Communications, Inc.

Ginsburg, Feldman and Bress Chartered

1250 Connecticut Avenue, NW

Washington, DC 20036

William P. Barr, Executive Vice

President and General Counsel

Ward W. Wueste, Vice President -

Deputy General Counsel

GTE Service Corporation

One Stamford Forum

Stamford, CT 06904

Sue Ashdown

Coalition of Utah Independent

Internet Service Providers

Xmission

51 East 400 S., Suite 200

Salt Lake City, UT 84111

George Kohl

Debbie Goldman

Communications Workers of America

501 Third Street, NW

Washington, DC 20001

Barbara O'Connor, Chair

Donald Vial, Policy Committee Chair

Maureen Lewis, General Counsel

The Alliance for Public Technology

901 Fifteenth Street, NW, Suite 230

Washington, DC 20005

James Love

Director

Consumer Project on Technology

P.O. Box 19367

Washington, DC 20036

Deborah A. Howard, MPH

Chair of the Board and Executive

Director

Internet Service Providers Consortium

c/o Lockridge Grindal Nauen &

Holstein P.L.L.P.

100 Washington Ave., South

Suite 2200

Minneapolis, MN 55401

Robert Gnaizda

Itzel D. Berrio

The Greenlining Institute

785 Market Street, 3rd Floor

San Francisco, CA 94103

Susan E. Brown

Latino Issues Forum

785 Market Street, 3rd Floor

San Francisco, CA 94103

David Koch, President & CEO

Laurel I. Sturm, General Counsel

Fiber Network Solutions, Inc.

6800 Lauffer Road

Columbus, OH 43231

David Holub

Vice President of Business Development

Vixie Enterprises

100 Apartment B Edgewood Avenue

San Francisco, CA 94117

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

Nelle Williams

Date: May 7, 1998