FCC Releases National Security NPRM Protective Order

On May 23, 2018, the Wireline Competition Bureau (“Bureau”) released a Protective Order (“Order”) in connection with the Commission’s Notice of Proposed Rulemaking in the Protecting Against National Security Threats proceeding (WC Docket No. 18-89). This Order sets forth procedures to 1) limit access to proprietary or confidential information that may be filed in this proceeding, and 2) more strictly limit access to certain particularly competitively sensitive information, which if released could allow competitors or other entities to gain a significant competitive advantage. Appendix B to the Order provides a template “Acknowledgment of Confidentiality” that qualified individuals seeking access to Confidential Information or Highly Confidential Information are required to submit to the FCC and the relevant Submitting Party (must be received at least five business days prior to such person’s reviewing or having access to the Information).

Specifically, the Order provides a set of definitions for the terms used throughout and outlines procedures and detailed information on the following:

  • Designation of information as highly confidential;
  • Challenges to designation;
  • Submission of stamped confidential documents and stamped highly confidential documents;
  • Copying sensitive documents;
  • Procedures for obtaining access to confidential and highly confidential information;
  • Procedures for objecting to the disclosure of confidential and highly confidential information to a potential reviewing party;
  • Review of stamped confidential and stamped highly confidential documents;
  • Review of highly confidential information in electronic format;
  • Use of confidential and highly confidential information;
  • Permissible disclosures;
  • Filings with the Commission;
  • Non-Disclosure of confidential information and highly confidential information;
  • Protection of stamped confidential documents, stamped highly confidential documents, confidential and highly confidential information;
  • Requests for additional disclosure;
  • Client consultation;
  • No waiver of confidentiality;
  • Subpoena by courts, departments, or agencies;
  • Violations of the Protective Order;
  • Termination of proceeding.

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