**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | FOIA Control No. 2006-037    |
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| RUSSELL D. LUKAS                 | ** |                              |
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| On Request for Inspection of     | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** May 24, 2006 **Released:** May 26, 2006

By the Commission:

1.  The Commission has before it an application for review (AFR)[^1]
    filed by Russell D. Lukas and David L. Nace, purportedly on behalf
    of Gulf Coast Wireless Partnership (GCW), of the decision of the
    Managing Director granting in part and denying in part a Freedom of
    Information Act (FOIA) request filed by Lukas seeking "to inspect
    the documents and records pertaining to the refunds that were due
    Meretel . . . under the Commission's amnesty option."[^2] GCW states
    it was "formerly named Meretel Communications Limited Partnership
    (Meretel)."[^3] For the reasons stated below, we determine that
    Lukas is the only proper applicant for review, and we grant in part
    and deny in part Lukas's application for review.

2.  Under the Commission's C Block Restructuring Orders, carriers could
    seek refunds of all or part of their installment payment financing
    for loans under an "amnesty option."[^4] Meretel elected the amnesty
    option in 1998.[^5] Lukas's FOIA Request sought records concerning
    the refunds for five Meretel licenses.[^6] The Office of the
    Managing Director (OMD) located "approximately 104 pages of records"
    that it offered to make available to Lukas, or, alternatively, to
    copy and mail to him.[^7] It also located 103 pages of additional
    materials responsive to Lukas's request that it withheld pursuant to
    FOIA Exemption 5, 5 U.S.C. § 552(b)(5).[^8] Finally, Lukas was
    informed that OMD had located approximately 44 boxes and four filing
    cabinets containing unindexed materials that it believed "may have
    materials that relate generally to the amnesty option."[^9] It
    estimated that to search and review these records would cost \$1300,
    exceeding the \$700 maximum search fee Lukas agreed to pay in his
    FOIA Request. Therefore, the Managing Director requested that Lukas
    provide guidance on how he wished to proceed.[^10] Lukas did not
    respond to that request but instead filed an application for review
    of the Managing Director's decision, purportedly on behalf of
    GCW.[^11] The AFR argues in the main that "OMD produced no record
    whatsoever to show whether or not monies had been refunded to
    Meretel."[^12] Lukas also contends that the initial FOIA
    determination failed to justify withholding records under FOIA
    Exemption 5 and did not segregate and release the factual portions
    of the records withheld.[^13]

    **Discussion**

3.  [Identity of Applicant for Review.]{.underline} This FOIA request
    was filed by Lukas personally, not on behalf of GCW.[^14] Only
    Lukas's name appears on the FOIA request; nowhere in the FOIA
    request does Lukas indicate that the request was filed on behalf of
    GCW.[^15] The AFR, in contrast, was purportedly filed on behalf of
    GCW "by its attorneys," Lukas and Nace.[^16] Under our rules, with
    an exception not relevant here, an application for review may be
    "filed only by the person who made the \[initial FOIA\]
    request."[^17] This is consistent with the FOIA itself, which
    provides that an initial FOIA decision must "notify the person
    making such request . . . of the *right of such person to appeal* to
    the head of the agency any adverse determination."[^18] As Lukas was
    the only person who made the initial FOIA request in this matter, he
    is the only person who may file an application for review.[^19] GCW
    accordingly is not a proper party to the application for review.
    Nace, whose name appears with Lukas in the signatory block to the
    AFR, is also not a proper party to the application for review, as he
    was not a requesting party in the initial FOIA and claims only to
    represent GCW. We therefore consider the AFR to have been filed by
    Lukas in his personal capacity.

4.  [Records That Should Have Been Released]{.underline}. We have
    reviewed the records withheld by the Managing Director. Among the
    103 pages of records withheld we located 16 pages of records that
    were identical to those released to Lukas by the Managing Director
    and therefore should not have been counted among the withheld
    records. We also discovered 13 pages of records concerning Meretel
    derived from the Universal Licensing System (ULS) that are publicly
    available on the ULS. Lukas should have been informed of the
    availability of this material on ULS, [^20] and the pages should not
    have been counted among the records withheld. Furthermore, we have
    determined that two pages among the records withheld are not
    responsive to Lukas' FOIA request.

5.  This leaves 72 pages of withheld records. Based on our review, we
    determine that 18 pages should be released. Of these records, 16
    pages are of a similar type to records already released to Lukas and
    should have been provided to him. Ten of these 16 pages are forms
    entitled "Amnesty" indicating refund amounts. Five pages are
    database screens reflecting information in the "Amnesty" forms.
    Finally, one page is a summary of the costs for UCC filings for
    Meretel loans. These 16 pages will now be provided to Lukas. We will
    also release two pages of OMD forms entitled "Bureau/Fee Section
    Two-Way Correspondence Form" that are used as cover sheets for
    documents supporting the decisionmaking process underlying the
    processing of refund requests. These two pages contain purely
    factual information about the amount claimed for the named licenses
    under the amnesty program (*see* paragraph 2, *supra*) and the UCC
    filing fees.

6.  [Records Properly Withheld.]{.underline} Of the remaining 54 pages
    of records, we agree with the Managing Director that six pages are
    deliberative process information properly withheld under FOIA
    Exemption 5. We further conclude that the other 48 pages are
    confidential commercial information properly withheld under FOIA
    Exemption 4, 5 U.S.C. § 552(b)(4).

7.  Deliberative process material consists of documents reflecting
    advisory opinions, recommendations, and deliberations comprising
    part of the process by which governmental decisions and policies are
    formulated.[^21] Such material may be withheld under Exemption 5
    because its disclosure would tend to inhibit the frank discussion of
    legal and policy matters and government decision making would be
    poorer as a result.[^22] The six pages withheld here under Exemption
    5 consist of staff analyses of GCW's correspondence with the
    Managing Director regarding refunds claims of Meretel.[^23] These
    pages fall squarely within the scope of Exemption 5.

8.  Lukas claims that OMD failed to release segregated factual portions
    of the materials withheld under FOIA Exemption 5.[^24] The Bureau or
    Office handling the initial FOIA request routinely reviews all
    records to determine whether there are any segregable portions, as
    required by the FOIA, 5 U.S.C. § 552(b) (sentence immediately
    following exemptions).[^25] The FOIA only requires "reasonable"
    segregation and the release of nonexempt materials. Thus, agencies
    are permitted to withhold the entire record where nonexempt material
    is so "inextricably intertwined" that disclosure would "leave only
    essentially meaningless words and phrases."[^26] We have again
    reviewed the six pages of records withheld from Lukas under
    Exemption 5. Based on our review of the records, with the exception
    of one e-mail transmitting the Crochet Letter[^27] that is part of
    an e-mail chain and will be segregated and released, we conclude
    that there is no reasonably segregable factual material subject to
    release. Disclosure of even portions of these documents would result
    in an unwarranted intrusion into the Commission's deliberative
    process.[^28]

9.  The additional 48 pages of records withheld by OMD consist of two
    groups of records, both of which are withheld from disclosure
    pursuant to FOIA Exemption 4.[^29] The first group of six pages
    consists of four pages of FCC Remittance Advice forms (FCC Form 159)
    and two pages of facsimile cover sheets naming Meretel as the
    applicant and identifying the payor and the payment history of the
    debt on the identified licenses. The second group of 42 pages
    consists of printouts of screens from the FCC's collections
    databases that reflect both payor identification and payment history
    for the licenses that were the subject of Lukas's FOIA. Payor
    identification information and payment history is confidential
    commercial information properly withheld from public release
    pursuant to FOIA Exemption 4.[^30] Information concerning the
    identity of who makes payments on debt, and the timing of those
    payments, is the type of information private companies do not
    normally divulge publicly. For example, the fact that an entity
    other than the licensee is paying the debt, or the timing of the
    payment of the debt, could reflect confidential information
    regarding the licensee's business relationships and financial
    status. While Meretel itself or its authorized representative is
    entitled to receive its own confidential commercial records in our
    possession, Lukas, the individual who filed the FOIA request and the
    applicant for review here, is not entitled to receive this
    confidential commercial information. We also note that even if GCW
    were the FOIA requester in this proceeding, GCW's status as
    successor in interest to Meretel is in dispute in connection with
    claims concerning refunds under the C Block amnesty program.[^31] We
    are therefore withholding these 48 pages pursuant to FOIA
    Exemption 4. In addition, we have reviewed the Exemption 4 materials
    to determine if any parts may be released and determined that
    redaction of payor name and payment history information would leave
    essentially useless information. However, we will provide Lukas with
    a copy of a blank FCC Form 159 that was in effect in 1998.

10. Lukas also argues that "OMD produced no records whatsoever to show
    whether or not monies had been refunded to Meretel." [^32] Lukas
    asserts that "it is highly unlikely" that the only records of
    attempts to wire funds to Meretel existed in the intra-Commission
    documents withheld by the Managing Director. As noted above, there
    remain a large volume of records not yet searched pending Lukas's
    agreement to pay the search and review fees[^33] that may contain
    records pertaining to any attempts to wire refunds to Meretel. [^34]
    In addition, our review of the records withheld under FOIA Exemption
    5 indicates that these records address the Meretel request for
    refunds (*see* footnote 23, *supra*). The records we withhold under
    FOIA Exemption 4 involve payments on behalf of Meretel, and
    therefore do not include records of attempts to wire refund monies
    to Meretel.

11. IT IS ORDERED that the application for review by Russell D. Lukas IS
    GRANTED IN PART AND DENIED IN PART. Russell D. Lukas may seek
    judicial review of this action pursuant to 5 U.S.C. § 552(a)(4)(b).

12. The officials responsible for this action are the following
    Commissioners: Chairman Martin, Commissioners Copps, Adelstein and
    Tate.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: Application for Review of Freedom of Information Action, FOIA
    Control No. 2006-037 (Jan. 27, 2006) (AFR).

[^2]: Letter from Russell D. Lukas, Esq., Lukas, Nace, Gutierrez &
    Sachs, Chtd. to Managing Director (Oct. 27, 2005) (FOIA Request).

[^3]: AFR at 1. *But see* letter from Mark Reger, Chief Financial
    Officer, FCC to David L. Nace, Esq., Lukas, Nace, Gutierrez & Sachs,
    Chtd. (Oct. 12, 2005)(CFO Letter) at 6-7, regarding License Nos.
    PBB032C, PBB034C, PBB180C, PBB236C, and PBB265C Request for Refunds
    (concluding GCW had not provided adequate proof that it is the legal
    successor in interest to Meretel), *petition for reconsideration
    pending*.

[^4]: *See Amendment of the Commission's Rules Regarding Installment
    Payment Financing for PCS Licensees*, 12 FCC Rcd 16436, 16462-64
    (1997) and *Implementation Procedures for the Order on
    Reconsideration of the Second Report and Order Concerning the
    Broadband Personal Communications Services (PCS) C and F Block
    Installment Payment Plans*, Public Notice, 13 FCC Rcd 13211 (WTB
    1998).

[^5]: *WTB Announces Broadband PSC C Block Unconditional Elections*, 13
    FCC Rcd 17434 (WTB 1998).

[^6]: License Nos. PBB034C, PBB265C, PBB032C, PBB180C, PBB236C. *See*
    FOIA Request at 1.

[^7]: Letter from Andrew Fishel, Managing Director, to Russell D. Lukas,
    Esq. (Dec. 28, 2005) (FOIA Decision) at 1. On January 4, 2006, Lukas
    asked that the releasable materials be mailed to him. The Managing
    Director sent Lukas approximately 104 pages of records. Lukas
    indicates these materials were received on January 27, 2006. *See*
    AFR at 3 and Attachments F-J.

[^8]: FOIA Decision at 1-2 (*citing* *NLRB v. Sears, Roebuck & Co.*, 421
    U.S. 132, 151 (1975) and *Coastal States Gas Corp. v. Dep't of
    Energy*, 617 F.2d 854, 866 (D.C. Cir. 1980)).

[^9]: FOIA Decision at 2.

[^10]: *Id.* Under our FOIA rules, a requester must state the amount of
    FOIA fees it is willing to pay. 47 C.F.R. § 0.461(b)(2). If the
    estimated amount of the FOIA fees exceeds the amount stated by a
    requester, the requester is provided the opportunity to agree to pay
    the amount, or to clarify or limit its FOIA request. 47 C.F.R. §
    0.467(e).

[^11]: AFR at 1.

[^12]: *Id.* at 3.

[^13]: *Id.* at 4.

[^14]: *See* FOIA Request at 2.

[^15]: *See generally* 47 C.F.R. § 1.23(a) (permitting parties to be
    represented by counsel before the Commission) and 47 C.F.R. §
    1.23(b) ("Further proof of authority to act in a representative
    capacity may be required.").

[^16]: *See* AFR at 1, 4.

[^17]: 47 C.F.R. § 0.461(j). *See also* 47 C.F.R. §§ 0.461(a)(1),
    (a)(2), (b)(1) (all referring to "the person requesting" the
    records).

[^18]: 5 U.S.C. § 552(a)(6)(A)(ii) (emphasis supplied).

[^19]: *See McDonnell v. United States*, 4 F.3d 1227, 1237-38 (3d Cir.
    1993) (holding that person whose name does not appear on the FOIA
    request does not have standing to seek review); *Archibald v.
    Roche*, No. 01-1492, slip op. at 1-2 (D.D.C. Mar. 29, 2002)
    (concluding that the FOIA request \"appears to \[have been\] filed
    on behalf of the attorney\" who signed the request, rather than on
    behalf of the client, because \"nowhere in \[the request\] does
    \[the attorney\] ever state that he \[was\] filing this request on
    behalf of\" the client).

[^20]: *See*
    \<http://wireless.fcc.gov/auctions/default.htm?job=auctions_home\>
    to search publicly available Form 175 data for Meretel.

[^21]: *See NLRB v. Sears, Roebuck & Co*., 421 U.S. at 150.

[^22]: *Id*.

[^23]: *See* letter from Diane L. Crochet, Esq., Kantrow, Spaht, Weaver
    & Blitzer to Andrew Fishel (Mar. 17, 2005) (Crochet Letter)
    (concerning claims for refunds) and letter from David L. Nace to
    Rita Cookmeyer, FCC (Aug. 24, 2005) (notifying the Commission of
    change of counsel representing GCW).

[^24]: AFR at 4.

[^25]: *See* 47 C.F.R. § 0.461(f)(5) ("If there is a statutory basis for
    withholding part of a document only from inspection, that part will
    be deleted and the remainder will be made available for
    inspection.").

[^26]: *See Lakin Law Firm, P.C*., 19 FCC Rcd 12727, 12731 (2004),
    *citing Neufeld v. IRS*, 646 F.2d 661, 663 (D.C. Cir. 1981).

[^27]: *See* footnote 23, *supra*.

[^28]: *See Mapother v. Dep't of Justice*, 3 F.3d 1533, 1538 (D.C. Cir.
    1993); *Montrose Chemical Corp. v. Train*, 491 F.2d 63, 68-71 (D.C.
    Cir. 1974).

[^29]: The Managing Director did not rely on Exemption 4 in his FOIA
    Decision. However, we may rely on a different FOIA exemption when we
    review initial FOIA decisions. *See generally* *Oglesby v. United
    States Dep't of the Army*, 920 F.2d 57, 61 (D.C. Cir. 1990) ("The
    exhaustion requirement also allows the top managers of an agency to
    correct mistakes made at lower levels and thereby obviates
    unnecessary judicial review."), *citing* *McKart v. United States*,
    395 U.S. 185, 194 (1969).

[^30]: *See generally Qwest Commun. Internat'l, Inc. v. FCC*, 229 F.3d
    1172, 1881 (D.C. Cir. 2000) (Commission has ordered the release of
    confidential financial information only in a proceeding in which a
    party has placed its financial condition at issue). *Cf.* *National
    Parks and Conservation Ass'n v. Kleppe*, 547 F.2d 673, 684 (D.C.
    Cir. 1976) and *Timken Co. v. United States Customs Serv.*, 491 F.
    Supp. 557, 559-60 (D.D.C. 1980) (both indicating that business
    strategies and marketing plans exempt from disclosure under FOIA
    Exemption 4).

[^31]: *See* CFO Letter, *supra* n. 3.

[^32]: AFR at 3.

[^33]: *See* letter from Russell D. Lukas, Esq. to Marvin Washington,
    OMD (Jan. 4, 2006) and footnote 12, *supra*.

[^34]: AFR at 3.