BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In Re Application of U S WEST, Inc. And QWEST COMMUNICATIONS INTERNATIONAL, INC. For An Order Disclaiming Jurisdiction, or in the Alternative, Approving the U S WEST, INC.--QWEST COMMUNICATIONS INTERNATIONAL, INC. Merger ............................................................... ))))))))) )) DOCKET NO. UT-991358 SIXTH SUPPLEMENTAL ORDER AMENDING PROTECTIVE ORDER PROCEEDINGS: On August 31, 1999, U S WEST, Inc. and Qwest Communications International, Inc. jointly filed an application requesting that the Commission issue an order disclaiming jurisdiction over their proposed merger transaction, or in the alternative, approving the merger. The Commission, on due and proper notice, conducted a prehearing conference on September 23, 1999, before Chairwoman Marilyn Showalter, Commissioner William R. Gillis, and Administrative Law Judge Dennis J. Moss. Among other things, the Commission established a procedural schedule, invoked the discovery rule (WAC 480-09-480), and entered a Protective Order (First Supplemental Order, October 5, 1999). MOTIONS CONFERENCE: The Commission convened a prehearing conference in this matter in Olympia, Washington, on November 23, 1999, before Administrative Law Judge Dennis J. Moss. Among other business, the Commission considered and granted Applicants’ Motion To Amend Protective Order. PARTIES: Lisa A. Anderl, Senior Attorney, U S WEST, Inc. Seattle, Washington, and James M. Van Nostrand, Perkins Coie LLP, Bellevue, Washington, represent U S WEST, Inc. Gina Spade and Ronald Wiltsie, Hogan & Hartson L.L.P., Washington, D.C., represents Qwest Communications International, Inc. Dan Waggoner, Davis Wright Tremaine, Seattle, Washington, represents AT&T Communications of the Pacific Northwest, Inc. Andrew O. Isar, Director--State Affairs, Telecommunications Resellers Association, represents that industry organization. Angela Wu, Ater Wynne LLP, Seattle, Washington, represents Rhythms Links, Inc. Gregory J. Kopta, Davis Wright Tremaine, Seattle, Washington, represents Advanced Telecom Group, Inc., Nextlink Washington, Inc., and Northpoint Communications, Inc. Richard A. Finnigan, Attorney, Olympia, Washington, represents the Washington Independent Telephone Association. Mark P. Trinchero, Davis Wright Tremaine, Portland, Oregon, represents McLeodUSA Telecommunications Services, Inc. Brooks E. Harlow, Miller, Nash, Wiener, Hager & Carlson LLP, Seattle, Washington, represents Covad Communications Company, Northwest Payphone Association, and Metronet Services Corporation. Robert Nichols, Nichols and Associates, Boulder, Colorado, represents Level 3 Communications, Inc. Arthur A. Butler, Ater Wynne LLP, Seattle, Washington, represents SBC National, Inc. Simon ffitch, Assistant Attorney General, Seattle, Washington, represents the Public Counsel Section, Office of Attorney General. Sally G. Johnston, Assistant Attorney General, Olympia, Washington, represents the Commission’s regulatory staff (Staff). MOTION TO AMEND PROTECTIVE ORDER: On November 5, 1999, the Commission accepted for filing the Motion of Joint Applicants To Amend Protective Order. AT&T Communications of the Pacific Northwest, Inc., NEXTLINK Washington, Inc., and Advanced TelCom Group, Inc. responded in opposition on November 22, 1999. The Commission, through its Presiding ALJ, heard argument on November 23, 1999. The Commission grants the Motion and amends its First Supplemental Order/Protective Order, entered in this proceeding on October 5, 1999, by adding the following Section 6 to Part B - Disclosure of Confidential Information: 6. Intervenors and Joint Applicants in this proceeding are competitors, or potential competitors. Any of these parties may receive discovery requests that call for the disclosure of highly confidential documents or information, the disclosure of which imposes a significant risk of competitive harm to the disclosing party. Parties may designate documents or information they consider to be of that nature as “Highly Confidential” and such documents or information will be disclosed only in accordance with the provisions of this Section. Parties must scrutinize carefully responsive documents and information and limit the amount they designate as highly confidential information to only information that truly might impose a serious business risk if disseminated without the heightened protections provided in this Section. The first page and individual pages of a document determined in good faith to include highly confidential information must be marked by a stamp that reads: "Highly Confiden-tial Per Protective Order in WUTC Docket No. UT-991358.” Placing a “Highly Confidential” stamp on the first page of a document indicates only that one or more pages contains highly confidential information and will not serve to protect the entire contents of a multipage document. Each page that contains highly confidential information must be marked separately to indicate where highly confidential information is redacted. The unredacted versions of each page containing highly confidential information, and provided under seal, also must be marked with the “Highly Confidential . . .” stamp and should be submitted on paper distinct in color from non-confidential information and “Confidential Information” as described in Part A.1. of this Protective Order. Parties other than Public Counsel and Staff who seek disclosure of highly confidential documents or information must designate one outside counsel and no more than one outside consultant, legal or otherwise, to receive and review materials marked “Highly Confidential . . ..” In addition to executing the appropriate Agreement required by this Protective Order for “Confidential Information” each person designated as outside counsel or consultant for review of “Highly Confidential” documents or information must execute an affidavit, under oath, certifying that: a. They do not now, and will not for a period of five years, involve themselves in competitive decision making by any company or business organization that competes, or potentially competes, with the company or business organization from whom they seek disclosure of highly confidential information. b. They have read and understand, and agree to be bound by, the terms of the Protective Order in this proceeding and by this Amendment to the Protective Order. Any party may object in writing to the designation of any individual counsel or consultant as a person who may review highly confidential documents or information. Any such objection must demonstrate good cause, supported by affidavit, to exclude the challenged counsel or consultant from the review of highly confidential documents or information. Written response to any objection must be filed within three days after service of the objection. Designated outside counsel will maintain the highly confidential documents and information and any notes reflecting their contents in a secure location to which only designated counsel has access. No additional copies will be made. If another person is designated for review, that individual must not remove the highly confidential documents or information, or any notes reflecting their contents, from the secure location. Any testimony or exhibits prepared that reflect highly confidential information must be maintained in the secure location until removed to the hearing room for production under seal and under circumstances that will ensure continued protection from disclosure to persons not entitled to review highly confidential documents or information. Counsel will provide prior notice (at least one business day) of any intention to introduce such material at hearing, or refer to such materials in cross-examination of a witness. Appropriate procedures for including such documents or information will be determined by the presiding Administrative Law Judge following consultation with the parties. The designation of any document or information as “Highly Confidential . . .” may be challenged by motion and the classification of the document or information as “Highly Confidential” will be considered in chambers by the Presiding Administrative Law Judge, or by the Commission. At the conclusion of this proceeding, and the exhaustion of any rights to appeal, designated outside counsel must return all highly confidential documents and information provided during the course of the proceeding, and must certify in writing that all notes taken and any records made regarding highly confidential documents and information have been destroyed by shredding or incineration. Highly confidential documents and information will be provided to Staff and Public Counsel under the same terms and conditions of this Protective Order as govern the treatment of “Confidential Information” provided to Staff and Public Counsel and as otherwise provided by the terms of the Protective Order other than this Section 6. DATED at Olympia, Washington, and effective this ____ day of November, 1999. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION MARILYN SHOWALTER, Chairwoman WILLIAM R. GILLIS, Commissioner