**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) FCC File Nos. D104462, D103740, D109903,

MOBILE RELAY ASSOCIATES ) D109902, D103364, D103265, D103264

) D103263, D103261, D103262, and D103635

Requests for Confidential Treatment )

of Materials Submitted in Conjunction )

with Pending Applications )

**ORDER**

**Adopted: October 27, 1999 Released: October 27, 1999**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

**I. INTRODUCTION**

1\. In two separate filings, Mobile Relay Associates (MRA) requested
confidential treatment of certain materials it submitted to the Federal
Communications Commission (FCC or Commission).[^1] For the reasons
stated below, we grant MRA's requests, and will withhold those materials
from routine public inspection pursuant to the Commission's rules.

**II. BACKGROUND**

2\. MRA asks for confidential treatment of materials it submitted, at
the request of Commission staff, concerning MRA's above-captioned
license applications for land mobile systems in the 450-470 MHz band.
Specifically, in application return notices issued at various dates in
October, 1998, Commission staff asked MRA to "\[p\]rovide a list of
customers which will be migrated from the 800 MHz system to these
450-470 MHz systems...." In two separate filings, each dated November
19, 1998, and each received by the FCC on November 30, 1998, MRA
submitted lists of customer names and customer numbers in response to
the return notices, and simultaneously requested that those materials be
afforded confidential treatment under the Commission's rules. Aside from
referencing different file numbers and return dates for the pending
applications, MRA's two requests for confidential treatment are
identical in all respects. MRA requests that its materials "be withheld
from public inspection and treated confidentially by the Commission, as
required by Sections 0.457, 0.459, and 0.461 of the Commission's
Rules."[^2] In addition, MRA contends that its submission falls within
the definition of materials routinely withheld from public inspection
under Section 0.457 of the Commission's Rules, and is therefore
automatically treated as confidential by operation of our Rules.[^3]

3\. On November 27, 1998, we received a letter from Bruce Wold, manager
of ComSerCo, Inc., in opposition to MRA's request for confidential
treatment of its filings.[^4] Specifically, ComSerCo challenges the
basis on which MRA asserts its submission should be afforded
confidential treatment, claiming that MRA's submission is not an
accurate reflection of its customer base and that it therefore cannot
meet the test for nondisclosure under the Commission's rules.[^5]

**III. DISCUSSION**

4\. Section 0.457 of the Commission's Rules specifically describes
materials that the Commission does not routinely make available for
public inspection.[^6] For materials not specifically listed in Section
0.457, Section 0.459 provides a mechanism by which any party submitting
information to the Commission may request that the information be kept
confidential.[^7] A party seeking confidential treatment under this rule
is required to submit a statement of the reasons for withholding the
materials from inspection and of the facts upon which those reasons are
based.[^8] Mere conclusory or generalized allegations cannot support a
request for nondisclosure.[^9] Rather, Section 0.459(d) of the
Commission\'s Rules[^10] provides that a request for confidentiality
will be granted if it presents by a preponderance of the evidence a case
for nondisclosure consistent with the provisions of the Freedom of
Information Act (FOIA).[^11] The rule sets forth nine categories of
information that a submitter may provide to substantiate requests for
confidentiality, in order to "reduce the number of unsubstantiated
requests that we receive and conserve the resources of submitters by
providing them with guidance as to what kind of information we require
to decide a confidentiality request."[^12]

5\. [*Section 0.457 Analysis*.]{.underline} Under MRA's first theory,
its materials must be treated as confidential because they fall within
the definition of materials routinely withheld from public inspection
under Section 0.457(d) of the Commission's Rules. We disagree. Section
0.457(d) of the Commission's rules specifically lists those materials
that the Commission accepts on a confidential basis and which are not
routinely available for public inspection, and customer lists are not
included. Moreover, Section 0.457(d)(2) states that "\[u\]nless the
materials to be submitted are listed in paragraph (d)(1) of this section
and the protection thereby afforded is adequate, it is important for any
person who submits materials which he wishes withheld from public
inspection under 5 U.S.C. 522(b)(4) to submit therewith a request for
non-disclosure pursuant to §0.459."[^13] A 1996 Commission decision
denying an application for review of an order that denied a request for
confidential treatment is illustrative of the rule's operation. In its
decision, the Commission rejected the petitioner's argument that because
the material in question -- namely, FCC Form 393 -- was similar to
information routinely withheld by the Commission but was not
specifically listed in Section 0.457, the submission should
automatically be afforded confidential treatment.[^14] Similarly, in the
present situation, because customer lists are not specifically listed in
Section 0.459, they do not automatically receive confidential treatment.

6\. Further, we find MRA's reliance on *Ward & Mendelson, P.C.*[^15] as
a basis for automatically withholding the customer lists from routine
public inspection to be misplaced. In the *Ward* decision, Western Union
made a formal request for confidential treatment of certain materials
under both Section 0.457(d) and Section 0.459 of the Commission's Rules.
In its analysis of whether confidential treatment of the subject
materials were warranted under Section 0.459 of our Rules, the
Commission determined that an exemption to the FOIA that allows the
withholding of certain documents encompassed Western Union's materials,
and that Western Union made the necessary showing for non-disclosure.
The Commission then ordered that the documents submitted by Western
Union be "accorded confidential treatment as provided in Section 0.457
of the Rules."[^16] Accordingly, the *Ward* decision bears on our
analysis of MRA's claims under Section 0.459 of our Rules.[^17]

7\. [*Section 0.459 Analysis*.]{.underline} Even when materials are not
automatically afforded confidential treatment, we will consider specific
requests to withhold materials from routine public inspection. We now
turn to MRA's claim that its materials should be withheld from routine
public inspection under what is commonly referred to as \"Exemption 4\"
to the FOIA.[^18] That provision allows for the withholding of \"trade
secrets and commercial or financial information obtained from a person
and privileged or confidential.\"[^19]

8\. The prong of Exemption 4 that is applicable here pertains to
documents that contain confidential commercial materials obtained from a
person.[^20] In this context, \"commercial\" is to be given its ordinary
meaning.[^21] We conclude that MRA's submission satisfies this portion
of the test because customer records are among the most basic business
records that a company uses in furtherance of its commercial
activities.[^22] In *National Parks I*,[^23] the D.C. Circuit Court held
that information is \"confidential\" if either disclosure of the
information sought is likely to impair the government\'s ability to
obtain necessary information in the future or disclosure is likely to
cause substantial harm to the competitive position of the person from
whom the information was obtained.[^24] We find MRA's February 12, 1999,
submission -- in particular, its responses to items three, six, and
seven -- particularly useful for this analysis. MRA states that "\[n\]o
for-profit business \[would\] ever voluntarily provide its competitors
with a list of its customers, because such a list acts as a road map for
competitors to steal customers."[^25] In addition, MRA describes the
care it takes to protect this information, including policies that
prohibit the information from normally leaving its business premises or
being made available to third parties.[^26] We also agree with MRA that
previous Commission interpretations of Exemption 4 -- for example, the
*Ward* decision -- support a finding that MRA's customer list
constitutes the type of business information that may be properly
withheld under FOIA. Because we find that MRA has demonstrated
sufficiently that non-disclosure of the customer lists is consistent
with the provisions of the FOIA, we conclude that its materials should
be afforded confidential treatment under the provisions in Section
0.459.

9\. We do not believe that ComSerCo's objection affects our analysis. In
brief, ComSerCo contends that MRA's customer list is no longer an
accurate reflection of its customer base and, as such, cannot be
"confidential and privileged."[^27] Assuming ComSerCo's assertions are
true, the MRA materials would represent, at a minimum, a list of former,
current, and/or prospective customers. Because these names are valuable
in that they could be used to further MRA's business, we conclude that
they would be "commercial" for purposes of our analysis. Similarly,
public disclosure of a list of names a business holds out as its
customers is likely to cause substantial harm to the competitive
position of that business. Even if some of the names represent potential
or former customers, we believe that this information would be of
interest and benefit to the business's competitors, who could use the
list to contact these persons as potential customers. Accordingly, we
are not persuaded by ComSerCo's objection. To the extent that MRA's
submission is not what MRA represents it to be or is unresponsive to the
Commission staff's request, these factors will be considered in
connection with our evaluation of MRA's associated license applications
rather than here.

**IV. CONCLUSION**

10\. Although MRA's materials are not entitled to be automatically
withheld from public inspection under Section 0.457 of the Commission's
Rules, we find that MRA has shown how its customer list qualifies for
confidential treatment under "Exemption 4" of the FOIA. Accordingly, we
will treat MRA's customer list as "confidential" in accordance with
Section 0.459 of our Rules, and will not make MRA's materials routinely
available for public inspection.

**V. ORDERING CLAUSES**

11\. Accordingly, IT IS ORDERED pursuant to Section 4(i) of the
Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and Section
0.459 of the Commission\'s Rules, 47 C.F.R. §

0.459, that the request of Mobile Relay Associates that the Commission
afford confidential treatment to its customer list submissions received
on November 30, 1998, is GRANTED.

12\. IT IS FURTHER ORDERED that the Public Safety and Private Wireless
Division of the Wireless Telecommunications Bureau WILL TRANSMIT a copy
of this ruling to the Commission's Office of General Counsel and WILL
WITHHOLD MRA's materials from routine public inspection pursuant to
Section 0.459 of the Commission's Rules, 47 C.F.R. § 0.459.

13\. This action is taken under delegated authority pursuant to Sections
0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131 and
0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: ^?^Two letters from Mobile Relay Associates to Federal
    Communications Commission, Public Safety and Private Wireless
    Division, Gettysburg, PA (rec'd Nov. 30, 1998) (Confidentiality
    Request). On December 7, 1998, MRA updated its request to reference
    a *Memorandum Opinion and Order* released by the Wireless
    Telecommunications Bureau that it finds supportive of its request.
    Letter from Mobile Relay Associates to Herb Zeiler, Deputy Chief,
    Public Safety and Private Wireless Division, Federal Communications
    Commission (rec'd Dec. 7, 1998). On February 12, 1999, MRA again
    supplemented its pending confidentiality request. Letter from Mobile
    Relay Associates to D'wana R. Terry, Chief, Public Safety and
    Private Wireless Division, Federal Communications Commission (rec'd
    Feb. 12, 1999) (MRA Second Supplemental Filing). This filing was
    undertaken at the request of Commission staff to specifically
    discuss nine points that parties requesting confidential treatment
    of documents are required to address under a then-recent revision to
    the Commission's confidentiality rules. *See* 47 C.F.R. § 0.459(b)
    (reflecting changes adopted In the Matter of Examination of Current
    Policy Concerning the Treatment of Confidential Information
    Submitted to the Commission, *Report and Order*, 13 FCC Rcd 24816
    (1998)).

[^2]: ^?^Confidentiality Request at 1.

[^3]: ^?^*Id.*

[^4]: ^?^Letter from Bruce Wold, Manager, ComSerCo, Inc., to Herb Zeiler
    and Richard Henderson, FCC (rec'd Nov. 27, 1998) (ComSerCo Letter)

[^5]: ^?^*Id.*

[^6]: ^?^47 C.F.R. § 0.457.

[^7]:    ^?^47 C.F.R. § 0.459.

[^8]:     ^?^47 C.F.R. § 0.459(b).

[^9]:     ^?^*See* National Exchange Carrier Ass\'n, Inc., *Memorandum
    Opinion and Order*, 5 FCC Rcd 7184, 7184 ¶ 3 (1990) (quoting
    *National Parks and Conservation Ass\'n v. Kleppe*, 547 F.2d 673,
    680 (D.C. Cir. 1976)).

[^10]:     ^?^47 C.F.R. § 0.459(d).

[^11]:     ^?^5 U.S.C. § 552.

[^12]: ^?^In the Matter of Examination of Current Policy Concerning the
    Treatment of Confidential Information Submitted to the Commission,
    *Report and Order*, 13 FCC Rcd 24816, 24825 ¶ 11 (1998)*.* These
    nine provisions are contained in § 0.459(b)(1)-(9) of the
    Commission's Rules, 47 C.F.R. § 0.459(b)(1)-(9)*.*

[^13]: ^?^47 C.F.R. § 0.457(d)(2).

[^14]: ^?^In the Matter of TKR Cable Company of Ramapo, *Memorandum
    Opinion and Order*, 11 FCC Rcd 3538 (1996).

[^15]: ^?^In the Matter of Ward & Mendelsohn, P.C. on Request for
    Inspection of Records, *Memorandum Opinion and Order*, 88 FCC 2d
    1049 (1981).

[^16]: ^?^*Id.* at 1053 ¶ 11. Once the Commission found that Western
    Union had made an adequate showing under Section 0.459 of our Rules,
    the materials were afforded confidential treatment as described in
    Section 0.457. Section 0.459(h) states that once a confidentiality
    request is granted, the status of the materials is the same as that
    of materials listed in Section 0.457. *See* 47 C.F.R. § 0.459(h).

[^17]: ^?^We also disagree with MRA's suggestion that the FOIA provides
    "statutory protections" that require the Commission to withhold
    information from public disclosure. Public disclosure of documents
    is "the dominant objective of the Act," *Department of Air Force v.
    Rose*, 425 U.S. 352, 361 (1976). Moreover, the specific exemptions
    that allow agencies to withhold materials are permissive rather than
    mandatory. *Mead Data Central vs. United Stated Department of the
    Air Force*, 556 F.2d 242, 258 (D.C. Cir. 1977).

[^18]:     ^?^*See* 5 U.S.C. § 552(b)(4).

[^19]:     ^?^*Id.*

[^20]:     ^?^*See Critical Mass Energy Project v. NRC*, 830 F.2d 278,
    281 n.15 (D.C. Cir. 1987).

[^21]:     ^?^*Public Citizen Health Research Group* *v. FDA*, 704 F.2d
    1280 (D.C. Cir. 1983) (*Public Citizen*).

[^22]:     ^?^In *Public Citizen*, the Court rejected the argument that
    \"Exemption 4 should be confined to records that actually reveal
    basic commercial operations, such as sales statistics, profits and
    losses, and inventories, or relate to the income‑producing aspects
    of a business,\" and instead found that records which were produced
    during ongoing clinical studies of the safety and efficacy of
    optical devices were \"commercial\" because documentation of the
    health and safety experience of the devices would be instrumental in
    gaining marketing approval for the products. 704 F.2d*.* at 1290.
    Under such a broad interpretation of "commercial," we believe that
    MRA's information easily satisfies this prong of the Exemption.

[^23]:     ^?^*National Parks and Conservation Ass'n v. Morton*, 498
    F.2d 765 (D.C. Cir. 1974).

[^24]:     ^?^An additional analysis applies if the materials in
    question were submitted "voluntarily."     *Critical Mass Energy
    Project v. NRC*, 975 F.2d 871 (D.C. Cir. 1992) (en banc).
    Submissions have been found to be mandatory when parties are unable
    to benefit from a particular government action unless they submitted
    the materials in question. *See, e.g.*, *McDonnell Douglas Corp. v.
    NASA*, 895 F. Supp. 316, 317 (D.D.C. 1995) (finding that because
    pricing information is necessary to win government contract, that
    information is involuntarily submitted for Exemption 4 purposes even
    though the decision to bid on a contract is a voluntary act.) As
    MRA's applications were subject to dismissal had it failed to
    provide the information for which it now seeks confidential
    treatment, we will treat its customer list submission as mandatory
    for purposes of the Exemption 4 analysis.

[^25]: ^?^MRA Second Supplemental Filing at 1.

[^26]: ^?^*Id.* at 2.

[^27]: ^?^ComSerCo Letter at 1.