Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CS Docket No. 01-348         |
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| EchoStar Communications          | ) |                              |
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| General Motors Corporation, and  |   |                              |
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| Hughes Electronics Corporation   | * |                              |
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| Order Adopting Second Protective | * |                              |
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ORDER

**Adopted: April 24, 2002** **Released: April 25, 2002**

By the Chief, Media Bureau:

1.  On January 9, 2002, the Cable Services Bureau, now known as the
    Media Bureau (the "Bureau") entered a Protective Order (the "Initial
    Protective Order") regarding confidential or proprietary documents
    submitted by EchoStar Communications Corporation ("EchoStar"),
    General Motors Corporation ("General Motors") and its wholly-owned
    subsidiary, Hughes Electronics Corporation ("Hughes" and, together
    with EchoStar and General Motors, each an "Applicant", and together,
    the "Applicants") and others that have or may become parties to this
    proceeding.[^1] For the reasons set forth below, we hereby adopt a
    further Protective Order (the "Second Protective Order") attached
    hereto as Appendix A to ensure that certain highly confidential and
    competitively sensitive documents and information that may be
    submitted by the Applicants are afforded adequate protection.

2.  On February 4, 2002, the Bureau issued an initial request for
    information to the Applicants.[^2] Over time, the Applicants have
    responded to the Bureau's request by filing certain documents for
    which no confidentiality is claimed and others for which the
    Applicants claimed the protection of the Initial Protective Order.
    The Applicants have advised the Bureau that there remain a further
    set of documents, limited in scope, for which a very high degree of
    confidentiality is claimed. In their letter to the Commission, dated
    April 22, 2002, the Applicants set forth their reasons why an even
    greater level of protection needs to be afforded to this limited
    class of documents.[^3]

3.  As provided in the Second Protective Order, we will limit access to
    documents and information designated as Highly Confidential to
    outside counsel of record, their employees, and outside consultants
    and experts who they retain to assist them in this proceeding. The
    documents covered by the Second Protective Order include documents
    and data detailing subscriber count and subscriber churn-rate data
    broken down by ZIP code and Designated Market Area. We also include
    documents in the Second Protective Order that are of a similarly
    competitively sensitive nature such as future business and marketing
    plans. We find that without this additional level of protection the
    Applicants (and other parties) might be unwilling to submit such
    sensitive materials to the Bureau. Such materials are necessary to
    develop a more complete record on which to base the Commission's
    decision in this proceeding. We must also, however, protect the
    right of the public to participate in this proceeding in a
    meaningful way. We believe that the protections adopted in the
    Second Protective Order will give appropriate access to the public
    while protecting the Applicants' competitively sensitive
    information, and will thereby serve the public interest.

4.  Under the Second Protective Order, one copy of each document that an
    Applicant claims is confidential or proprietary must be delivered in
    person to each of Marcia Glauberman and Linda Senecal, Policy and
    Rules Division, Media Bureau, Federal Communications Commission, 445
    12^th^ Street, S.W., Washington, D.C. 20554 (the "Confidential
    Filing"). The documents should be accompanied by a cover letter
    stating "HIGHLY CONFIDENTIAL INFORMATION -- SUBJECT TO SECOND
    PROTECTIVE ORDER IN CS DOCKET NO. 01‑348." Each page of the
    confidential or proprietary document should be stamped "HIGHLY
    CONFIDENTIAL INFORMATION -- SUBJECT TO SECOND PROTECTIVE ORDER IN CS
    DOCKET NO. 01‑348 before the Federal Communications Commission." In
    addition an Applicant must file with the Secretary's Office one copy
    of the Confidential Filing and two copies of the Confidential Filing
    in redacted form (the "Redacted Confidential Filing"). The two
    copies of the Redacted Confidential Filing and their accompanying
    cover letters should be stamped "REDACTED -- FOR PUBLIC INSPECTION."
    The cover letter accompanying the Redacted Confidential Filing
    should state that the Applicant is filing redacted version of such
    documents.

5.  The Applicant shall make the confidential or proprietary documents
    available for review at the offices of the Applicants' outside
    counsel. Parties reviewing these documents will be provided the
    following alternatives: (1) parties will be provided adequate
    opportunity to inspect the documents on site and, if permitted by
    the terms of the Second Protective Order, make copies of such
    documents; (2) parties may inspect the documents on site with the
    ability to request one copy, at cost, of (a) the Subscriber Data (as
    such term is defined in the Second Protective Order attached hereto
    as Appendix A), and (b) any other data or documents contained,
    recorded or electronically stored on floppy disk, CD-ROM or similar
    electronic storage device that the Applicants may make available.
    All copies of documents that are removed from the Applicants'
    counsel's office will be stamped or marked as described above in
    paragraph 4 and must be returned in accordance with the terms of the
    Second Protective Order.

6.  Any party seeking access to confidential documents subject to the
    Second Protective Order shall request access pursuant to the terms
    of the Second Protective Order.

7.  *Authority*. 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 0.331 of
    the Commission's rules, 47 C.F.R. § 0.331, and is effective upon its
    adoption.

> FEDERAL COMMUNICATIONS COMMISSION
>
> W. Kenneth Ferree
>
> Chief, Media Bureau

**APPENDIX A**

**[Second Protective Order]{.underline}**

**CS Docket No. 01-348**

1\. *Introduction*. On January 9, 2002, the Cable Services Bureau, now
known as the Media Bureau (the "Bureau") entered a Protective Order (the
"Initial Protective Order") regarding confidential or proprietary
documents submitted by EchoStar Communications Corporation ("EchoStar"),
General Motors Corporation ("General Motors") and its wholly-owned
subsidiary, Hughes Electronics Corporation ("Hughes" and, together with
EchoStar and General Motors, each an "Applicant", and together, the
"Applicants") and others that have or may become parties to this
proceeding. For the reasons set forth in the Order to which this
Appendix A forms part, the Bureau has adopted this Second Protective
Order to ensure that certain highly confidential and competitively
sensitive documents that may be submitted by the Applicants are afforded
adequate protection. This Second Protective 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 ("FOIA") or otherwise.

2\. *Definitions.* As used herein, capitalized terms, not otherwise
defined herein, shall have the following meanings:

"Highly Confidential Information" means the Subscriber Data and
information contained in Stamped Highly Confidential Documents or
derived therefrom that is not otherwise available from publicly
available sources;

"Outside Counsel of Record" means the firm(s) of attorneys, or sole
practitioner(s), as the case may be, representing a party in these
proceedings; and

"Subscriber Data" means information concerning the Applicants'
subscribers on a zip code and designated market area basis, stored or
recorded in electronic format.

3\. *Use of Highly Confidential Information*. Persons obtaining access
to Highly Confidential Information (including Stamped Highly
Confidential Documents (as hereinafter defined)) under this Second
Protective Order shall use the information solely for preparation and
the conduct of this proceeding as delimited in this paragraph and
paragraphs 5, 10, and 11, and any subsequent judicial proceeding arising
directly from this proceeding and, except as provided herein, shall not
use such documents or information for any other purpose, including
without limitation business, governmental, or commercial purposes, or in
other administrative, regulatory or judicial proceedings. Should the
Commission rely upon or otherwise make reference to the contents of any
of the Stamped Highly Confidential Documents or Highly Confidential
Information in its decision in this proceeding, it will do so in the
same manner in which it maintained the confidentiality of similar
protected information in the *Bell Atlantic/NYNEX Order*, 12 FCC Rcd
19985 (1997).

4\. *Non-Disclosure of Stamped Highly Confidential Documents*. Except
with the prior written consent of the relevant Applicant, or as
hereinafter provided under this Second Protective Order, neither a
Stamped Highly Confidential Document nor any Highly Confidential
Information may be disclosed by a reviewing party to any person other
than the Commission and its staff. A "Stamped Highly Confidential
Document" shall mean any document, or 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 SECOND PROTECTIVE ORDER IN CS
Docket No. 01-348 before the Federal Communications Commission" to
signify that it contains information that the Applicants believes should
be subject to protection under FOIA and the Commission's implementing
rules, 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 confidential treatment. For purposes of this Second
Protective Order, the term "document" means all written, recorded,
electronically stored, or graphic material, whether produced or created
by the Applicants or another person.

5\. *Permissible Disclosure*. Subject to the requirements of
paragraph 8, Stamped Highly Confidential Documents may be reviewed by
Outside Counsel of Record. Subject to the requirements of paragraph 8,
Outside Counsel of Record may disclose Stamped Highly Confidential
Documents and other Highly Confidential Information to: (1) outside
consultants or experts retained for the purpose of assisting Outside
Counsel of Record in this proceeding, *provided, that,* the outside
consultants or experts are not involved in the analysis underlying the
business decisions of any competitor of the Applicants nor do they
participate directly in those business decisions; (2) paralegals or
other employees of such Outside Counsel of Record not described in
clause 3 of this paragraph 5 assisting Outside Counsel of Record in this
proceeding; and (3) employees of such Outside Counsel of Record involved
solely in one or more aspects of organizing, filing, coding, converting,
storing, or retrieving documents or data or designing programs for
handling data connected with this proceeding, or performing other
clerical or ministerial functions with regard to documents connected
with this proceeding. Individuals who have obtained access to Stamped
Highly Confidential Documents and Highly Confidential Information in
accordance with the provisions of this paragraph 5 and paragraph 8 may
discuss and share the contents of the Stamped Highly Confidential
Documents and Highly Confidential Information with any other person who
has also obtained access in accordance with the provisions of this
paragraph 5 and paragraph 8, and with the Commission and its staff.

6\. *Protection of Stamped Highly Confidential Documents and Highly
Confidential Information.* Persons described in paragraph 5 shall have
the obligation to ensure that access to Stamped Highly Confidential
Documents and Highly Confidential Information is strictly limited as
prescribed in this Second Protective Order. Such persons shall further
have the obligation to ensure that: (1) Stamped Highly Confidential
Documents and Highly Confidential Information are used only as provided
in this Second Protective Order; and (2) Stamped Highly Confidential
Documents are not duplicated except as necessary for filing at the
Commission under seal as provided in paragraph 10 below and, with
respect solely to the Subscriber Data, as provided for in Appendix C
hereto.

7\. *Prohibited Copying*. If, in the judgment of an Applicant, a
document (but not including the Subscriber Data) contains information so
sensitive that it should not be copied by anyone, it shall bear the
additional legend "Copying Prohibited," and no copies of such document,
in any form, shall be made. Application for relief from this restriction
against copying may be made to the Commission, with notice to Outside
Counsel of Record for the Applicants. The Subscriber Data shall be
subject to the restrictions set forth in Appendix C hereto.

8\. *Procedures for Obtaining Access to Highly Confidential Documents*.
In all cases where access to Stamped Highly Confidential Documents and
Highly Confidential Information is permitted pursuant to paragraph 5,
before reviewing or having access to any Stamped Highly Confidential
Documents or Highly Confidential Information, each person seeking such
access shall execute the Acknowledgment of Confidentiality
("Acknowledgment") (*see* Appendix B) and file it with the Bureau, on
behalf of the Commission, and serve it upon each of the Applicants
through their Outside Counsel of Record so that the Acknowledgment is
received by the Applicants at least five business days prior to such
person's reviewing or having access to such Applicants' Stamped Highly
Confidential Documents or Highly Confidential Information. Where the
person seeking access is one described in clause 3 of paragraph 5, the
Acknowledgment shall be delivered promptly prior to the person's
obtaining access. Each Applicant shall have an opportunity to object to
the disclosure of Stamped Highly Confidential Documents to any such
persons. Any objection must be filed at the Commission and served on
Outside Counsel of Record representing, retaining or employing such
person within three business days after receiving a copy of that
person's Acknowledgment (or where the person seeking access is one
described in clause 3 of paragraph 5, such objection shall be filed and
served as promptly as practicable after receipt of the relevant
Acknowledgment). Until any such objection is resolved by the Commission
and, if appropriate, any court of competent jurisdiction prior to any
disclosure, and unless such objection is resolved in favor of the person
seeking access, persons subject to an objection from an Applicant shall
not have access to Stamped Highly Confidential Documents or Highly
Confidential Information. An Applicant shall make available for review
the Stamped Highly Confidential Documents of such party at the offices
of such party's Outside Counsel of Record and, if so requested, shall
provide to each party's Outside Counsel of Record, at cost, with a copy
of the Subscriber Data in electronic format.

9\. *Requests for Additional Disclosure*. If any person requests
disclosure of Highly Confidential Information outside the terms of this
Second Protective Order, requests will be treated in accordance with
Sections 0.442 and 0.461 of the Commission's rules.

10\. *Filings with the Commission*. Persons described in paragraph 5
may, in any documents that they file in this proceeding, reference
Highly Confidential Information, but only if they comply with the
following procedure:

a\. Any portions of the pleadings that contain or disclose Highly
Confidential Information must be physically segregated from the
remainder of the pleadings;

b\. The portions of pleadings containing or disclosing Highly
Confidential Information must be covered by a separate letter to the
Secretary of the Commission referencing this Second Protective Order;

c\. Each page of any party's filing that contains or discloses Highly
Confidential Information subject to this order must be clearly marked:
"Highly Confidential Information included pursuant to Second Protective
Order, CS Docket No. 01-348;" and

d\. The confidential portion(s) of the pleading shall be served on the
Secretary of the Commission, the Bureau, and the Applicants. 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 Highly Confidential Information shall also file redacted
copies of the pleading containing no Highly Confidential Information,
which copies shall be placed in the Commission's public files. Parties
should not provide courtesy copies of pleadings containing Highly
Confidential Information to Commission staff unless the Bureau so
requests. Any courtesy copies shall be submitted under seal.

11\. *Client Consultation*. Nothing in this order shall prevent or
otherwise restrict Outside Counsel of Record from rendering advice to
their clients relating to the conduct of this proceeding and any
subsequent judicial proceeding arising therefrom and, in the course
thereof, relying generally on examination of Stamped Highly Confidential
Documents or Highly Confidential Information; *provided, however*, that
in rendering such advice and otherwise communicating with such client,
Outside Counsel of Record shall not disclose Stamped Highly Confidential
Documents or Highly Confidential Information.

12\. *No Waiver of Confidentiality*. Disclosure of Highly Confidential
Information as provided herein by any person shall not be deemed a
waiver by an Applicant of any privilege or entitlement to confidential
treatment of such Highly Confidential Information. Reviewing parties, by
viewing this material agree: (1) not to assert any such waiver; (2) not
to use Highly Confidential Information to seek disclosure in any other
proceeding; and (3) that accidental disclosure of Highly Confidential
Information by an Applicant shall not be deemed a waiver of any
privilege or entitlement as long as the Applicant takes prompt remedial
action.

13\. *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 that a party has obtained under terms of this
Second Protective Order, such party shall promptly notify each Applicant
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 the Applicant has a full
opportunity to oppose such production prior to the production or
disclosure of any Stamped Highly Confidential Document or Highly
Confidential Information.

14\. *Violations of Second Protective Order.* Should a person that has
properly obtained access to Highly Confidential Information under this
Second Protective Order violate any of its terms, that person shall
immediately convey that fact to the Commission and to the relevant
Applicant. Further, should such violation consist of improper disclosure
of Highly Confidential Information, the violating person shall take all
necessary steps to remedy the improper disclosure. The Commission
retains its full authority to fashion appropriate sanctions for
violations of this Second Protective Order, including but not limited to
suspension or disbarment of Outside Counsel of Record from practice
before the Commission, forfeitures, cease and desist orders, and denial
of further access to Highly Confidential Information in this or any
other Commission proceeding. Nothing in this Second Protective Order
shall limit any other rights and remedies available to an Applicant at
law or in equity against any person using Highly Confidential
Information in a manner not authorized by this Second Protective Order.

15\. *Termination of Proceeding*. The provisions of this Second
Protective Order shall not terminate at the conclusion of this
proceeding. Within two weeks after conclusion of this proceeding and any
administrative or judicial review, persons described by paragraph 5
shall destroy or return to the Applicants Stamped Highly Confidential
Documents and all copies of the same. No material whatsoever derived
from Stamped Highly Confidential Documents may be retained by any person
having access thereto, except Outside Counsel of Record (as described in
paragraph 5) may retain, under the continuing strictures of this Second
Protective Order, two copies of pleadings (one of which may be in
electronic format) containing Highly Confidential Information prepared
on behalf of that party. All Outside Counsel of Record shall make
certification of compliance herewith and shall deliver the same to
Outside Counsel of Record for the Applicants not more than three weeks
after conclusion of this proceeding. The provisions of this paragraph 15
regarding retention of Stamped Highly Confidential Documents and copies
of same shall not be construed to apply to the Commission or its staff.

FEDERAL COMMUNICATIONS COMMISSION

W. Kenneth Ferree

Chief, Media Bureau

**APPENDIX B**

**Acknowledgment of Confidentiality**

I hereby acknowledge that I have received and read a copy of the
foregoing Second Protective Order in the above-captioned proceeding, and
I understand it. I agree that I am bound by the Second Protective Order
and that I shall not disclose or use Stamped Highly Confidential
Documents or Highly Confidential Information except as allowed by the
Second Protective Order. I acknowledge that a violation of the Second
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 of Record or consultant to a
party or other person described in paragraph 5 of the foregoing Second
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 Second Protective Order.

I acknowledge that it is my obligation to ensure that: (1) Stamped
Highly Confidential Documents and Highly Confidential Information are
used only as provided in the Second Protective Order; and (2) Stamped
Highly Confidential Documents are not duplicated except as specifically
permitted by the terms of the Second Protective Order, and I certify
that I have verified that there are in place procedures, at my firm or
office, to prevent unauthorized disclosure of Stamped Highly
Confidential Documents or Highly Confidential Information.

Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Second Protective Order.

Executed at \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ this \_\_\_
day of \_\_\_\_\_\_\_\_\_\_\_\_\_, \_\_\_\_.

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

\[Name\]

\[Position\]

\[Address\]

\[Telephone\]

**APPENDIX C**

**Restrictions for Review of the Subscriber Data and any other Highly
Confidential Information Submitted Electronically**

1.  A party in receipt of a disk containing the Subscriber Data may load
    the Subscriber Data onto a computer solely for the purpose of
    analysis in connection with this proceeding and for no other
    purpose. The original disk containing the Subscriber Data shall be
    stored in a secure location and a record kept of any persons given
    access to the disk. No person, other than one who has signed the
    Acknowledgement to the Second Protective Order, shall be given
    access to the Subscriber Data.

2.  Once loaded onto a computer, the files containing the Subscriber
    Data shall be password protected immediately. Such password shall
    only be given to persons who have signed the Acknowledgement to the
    Second Protective Order. A record shall be kept of persons given
    access to the password.

3.  The Subscriber Data may not be stored on a computer after being
    analyzed. Once analysis is complete, the results of such analysis
    may be stored by saving the results (but not the Subscriber Data) to
    a removable data medium (CD, computer diskette, Zip or Jaz disc,
    etc.). All files containing the Subscriber Data shall be deleted
    forthwith from the computer.

4.  The disk containing the Subscriber Data may be physically sent to
    Outside Counsel of Record or experts retained by them only if such
    Outside Counsel of Record or experts retained by them have signed
    the Acknowledgement to the Second Protective Order. The Subscriber
    Data may not be transmitted electronically.

[^1]: *Applications of EchoStar Communications Corporation, General
    Motors Corporation, and Hughes Electronics Corporation, Order
    Adopting Protective Order*, CS Docket No. 01-348, Order, DA 02-27
    (rel. Jan. 9, 2002).

[^2]: Letter to Pantelis Michalopoulos, Steptoe & Johnson LLP, Counsel
    to EchoStar Communications Corporation, and Gary M. Epstein, Latham
    & Watkins, Counsel for General Motors Corporation and Hughes
    Electronics Corporation, from W. Kenneth Ferree, Chief, Cable
    Services Bureau, Feb. 4, 2002.

[^3]: Ex Parte Notice, Consolidated Application of EchoStar
    Communications Corporation, General Motors Corporation and Hughes
    Electronics Corporation for Authority to Transfer Control, CS Docket
    No. 01-348, to Marlene H. Dortch, Secretary, FCC, filed by Gary M.
    Epstein, Latham & Watkins, Counsel for Hughes Electronics
    Corporation and General Motors Corporation, and Pantelis
    Michalopoulos and Carlos M. Nalda, Steptoe & Johnson LLP, Counsel
    for EchoStar Communications Corporation, April 22, 2002.