Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | FOIA Control No. 21-132      |
|                                  | *) |                              |
| PAUL D. COLFORD,                 | ** |                              |
|                                  |    |                              |
| THE DAILY NEWS                   | *  |                              |
|                                  | *) |                              |
| On Request for Inspection of     | ** |                              |
| Records                          |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 28, 2002 Released: January 30, 2002**

By the Commission:

1.  The Commission has before it an application for review filed by
    Paul D. Colford of *The Daily News* seeking review of the decision
    of the Mass Media Bureau (the Bureau) granting in part and denying
    in part his Freedom of Information Act (FOIA) request for documents
    filed in connection with the proceeding in which Fox Television
    Stations (FTS) sought to acquire ten television broadcast station
    licenses held by Chris-Craft Industries.[^1] For the reasons stated
    below, we deny the application for review.

    **[Background]{.underline}**

2.  FTS sought to acquire ten television broadcast station licenses,
    including the license for station WWOR-TV, Secaucus, New Jersey. The
    acquisition of WWOR-TV implicated the Commission's
    television/newspaper cross-ownership rule because FTS's parent, News
    Corporation Limited (News Corp.), also owns collocated station
    WNYW-TV and *The New York Post* newspaper in New York City. News
    Corp. submitted certain financial data regarding *The New York Post*
    along with a request for confidential treatment pursuant to section
    0.459 of our rules, 47 C.F.R. § 0.459, and a declaration from *The
    New York Post* that the financial data was not publicly available.
    The Bureau adopted a Protective Order to allow parties to the
    FTS/Chris-Craft proceeding to have access to the financial materials
    for purposes of that proceeding.[^2]

3.  Subsequently, the Bureau's Video Services Division sought additional
    information from FTS concerning the financial condition of *The New
    York Post*. In response, News Corp. provided a declaration of two of
    its senior executives and additional financial statements of *The
    New York Post*.[^3] New Corp. requested that these additional
    filings be made subject to the Protective Order. The Bureau did
    so.[^4]

4.  *The Daily News* filed a FOIA request for the two submissions made
    by News Corp. described above.[^5] Pursuant to section 0.461(d)(3)
    of our rules, 47 C.F.R. § 0.461(d)(3), News Corp. was provided with
    a copy of the FOIA request, and filed a response in opposition to
    the request.[^6] News Corp. opposed release of the documents because
    they contained "highly confidential and competitively sensitive"
    information that should not be released to *The Daily News*, a
    "direct competitor" of *The New York Post*. *The Daily News*
    replied, asserting that because News Corp. had raised *The New York
    Post*'s financial condition in the FTS/Chris-Craft proceeding, its
    financial information should be disclosed.[^7]

5.  The Bureau granted in part and denied in part *The Daily News*' FOIA
    request pursuant to FOIA Exemption 4, 5 U.S.C. § 552(b)(4).[^8] The
    Bureau noted that the documents sought by *The Daily News* "could
    conceivably assist a competitor in ascertaining *The New York
    Post*'s financial position and its past and planned capital
    expenditures, and might be used against *The New York Post* in the
    market."[^9] It also observed, "The fact that FTS and News Corp. may
    have placed *The New York Post*'s financial condition in issue \[in
    the FTS/Chris-Craft proceeding\] is not dispositive of whether
    disclosure of the financial information is appropriate."[^10] The
    Bureau determined that it would release to *The Daily News* portions
    of the submissions that were not subject to a confidentiality claim
    by FTS and News Corp., and the segregable factual portions of the
    records.[^11]

6.  *The Daily News* then sought review of the [Bureau
    Decision]{.underline}.[^12] The newspaper again asserted that
    because *The New York Post*'s financial condition was placed in
    issue in the FTS/Chris-Craft proceeding, the financial data should
    be made generally available to the public.[^13] It also challenged
    FTS's claim of the competitive harm that would result from
    disclosure of *The New York Post*'s financial information.[^14] News
    Corp. also filed an application for review of the Bureau's decision
    to release the segregable factual information,[^15] but, upon its
    review of the proposed partial release of information to *The Daily
    News*, withdrew its application for review.[^16]

    **[Discussion]{.underline}**

7.  Upon review, we affirm the decision of the Bureau to withhold
    portions of the records sought by *The Daily News*. Exemption 4
    permits us to withhold competitively sensitive commercial or
    financial information where release would cause substantial harm to
    the competitive position of the submitter of the information.[^17]
    We do not agree with *The Daily News* that News Corp. has not met
    its burden of showing why the information should be kept
    confidential.[^18] News Corp. explained that competition in the New
    York market is "increasingly fierce" and release of financial
    information about *The New York Post* would harm that newspaper
    competitively by giving the public access to information not
    customarily made available to the public.[^19]

8.  *The Daily News* also argues that the Bureau erred in not releasing
    information submitted to the Commission by News Corp. in support of
    its FTS/Chris-Craft application.[^20] In addressing our general
    policies concerning confidential information submitted to the
    Commission, [see]{.underline} [Confidential
    Information]{.underline}, 13 FCC Rcd 24816, 24838-39 (1998), we
    explored the parameters of our general policy that information
    submitted in broadcast licensing proceedings should be made
    available for public inspection. We explained that while such
    applications are routinely available to the public,[^21] we would
    entertain requests for confidentiality because "a party should not
    necessarily be required to forego confidential information as a
    condition of obtaining a license."[^22] We also noted that in order
    to give access to such information "to individuals and entities who
    file a petition for deny," we would utilize protective orders to
    ensure limited use of the confidential materials. This is precisely
    the course taken in the FTS/Chris-Craft proceeding.[^23] *The Daily
    News* was not a party to the FTS/Chris-Craft proceeding, and thus
    not entitled to the same access as parties and petitioners to deny.
    The [Confidential Information]{.underline} order did not envision
    that any time confidential information was submitted in a broadcast
    or other Title III licensing proceeding, it would automatically be
    made available to the public at large. Rather, the Commission sought
    to balance the needs of applicants and petitioners to deny through
    the appropriate use of protective orders. As we observed in
    [Confidential Information]{.underline}, 13 FCC Rcd at 24823-24
    (footnotes omitted), "In recent years the Commission has
    increasingly relied on special remedies such as . . . protective
    orders to balance the interests in disclosure and the interests in
    preserving the confidentiality of competitively sensitive
    materials."

9.  The requestor also argues that the Bureau wrongly relied on our
    decisions in [Knoxville]{.underline} and
    [Leesburg]{.underline}.[^24] In [Knoxville]{.underline}, released in
    1981, the Commission departed from its previous policy of
    authorizing public inspection of annual financial reports when
    licensees alluded to their financial condition in pleadings.[^25]
    [Leesburg]{.underline}, issued in 1982, followed the policy adopted
    in [Knoxville]{.underline} and denied access to financial
    information submitted in a licensing proceeding.[^26] More
    importantly and more relevant to the decision here, our recent
    statements in this regard in [Confidential Information]{.underline},
    discussed above, reflect our current policy of allowing limited
    access to petitioners to deny through the use of protective orders.
    Furthermore, in these circumstances, we do not agree with *The Daily
    News* that the public interest outweighs any competitive harm to
    News Corp., and therefore the Bureau did not err in refusing to
    authorize discretionary disclosure of the information.[^27] We
    therefore conclude that the Bureau properly applied Exemption 4 in
    denying in part *The Daily News*'s FOIA request for financial
    information submitted by News Corp. [^28]

10. IT IS ORDERED that *The Daily News*'s application for review is
    DENIED. *The Daily News* may seek judicial review of the denial in
    part of his FOIA request pursuant to 5 U.S.C. § 552(a)(4)(B).[^29]

11. The officials responsible for this action are the following
    Commissioners: Chairman Powell, Commissioners Abernathy, Copps, and
    Martin.

    FEDERAL COMMUNICATIONS COMMISSION

    William F. Caton Acting Secretary

[^1]: [See]{.underline} [Applications of UTV of San Francisco, Inc.,
    KCOP Television, Inc., UTV of San Antonio, Inc., Oregon Television,
    Inc., UTV of Baltimore, Inc., WWOR-TV, Inc., and UTV of Orlando,
    Inc. and United Television, Inc. (Assignors) and Fox Television
    Stations, Inc. (Assignee) For Consent to the Assignment of Licenses
    for Stations KBHK-TV, San Francisco, CA; KCOP-TV, Los Angeles, CA,
    KMOL-TV, San Antonio, TX; KPTV-TV, Portland, OR; WUTB-TV, Baltimore,
    MD; WWOR-TV, Secaucus, NJ; WRBW-TV, Orlando, FL; KMSP-TV,
    Minneapolis, MN; KTVX-TV, Salt Lake City, UT; KTUP-TV, Phoenix,
    AZ]{.underline}, 16 FCC Rcd 14975 (2001)
    ([FTS/Chris-Craft]{.underline}).

[^2]: Order Adopting Protective Order, DA 01-528, 16 FCC Rcd 4807 (MMB
    2001); Supplemental Protective Order, DA 01-579, 16 FCC Rcd 5259
    (MMB 2001).

[^3]: Declaration of Arthur M. Siskind, Senior Executive Vice President,
    News Corp., attaching a description of capital improvement costs
    statement; Declaration of David F. DeVoe, Senior Executive Vice
    President and Chief Financial Officer, News Corp., attaching
    "Unaudited Statement of Operations," *New York Post*, Fiscal Years
    ended June 30, 1999 and 2000, and forecasts for Fiscal Year ending
    June 30, 2001.

[^4]: Further Supplemental Protective Order, DA 01-976 (MMB Apr. 19,
    2001).

[^5]: Electronic mail from Paul D. Colford, *The Daily News*, to
    FOIA@FCC.GOV (Apr. 27, 2001) (FOIA Request).

[^6]: Letter from William S. Reyner, Jr., Hogan & Hartson (attorney for
    News Corp. and FTS) to James J. Brown, Deputy Chief, Video Services
    Division, MMB (May 22, 2001) (News Corp. Response).

[^7]: Letter from Paul D. Colford, *The Daily News*, to James J. Brown,
    Deputy Chief, Video Services Division, MMB (May 29, 2001) (*Daily
    News* Reply).

[^8]: Letter from Roy J. Stewart, Chief, MMB, to Paul D. Colford, *The
    Daily News* (June 38, 2001) ([Bureau Decision]{.underline}).

[^9]: [Id.]{.underline} at 3.

[^10]: [Id.]{.underline} [citing]{.underline} [Leesburg Communications
    and Answering Service, Inc.]{.underline}, 89 F.C.C.2d 119 (1982) and
    [Knoxville Broadcasting Corp.]{.underline}, 87 F.C.C.2d 1103, 1110
    (1981).

[^11]: [Id.]{.underline} at 4.

[^12]: Letter from Paul D. Colford, *The Daily News*, to \[Laurence H.\]
    Schecker, \[Office of\] General Counsel, FCC (July 5, 2001) (App.
    for Rev.).

[^13]: [Id.]{.underline} at 1-2.

[^14]: [Id.]{.underline} at 3.

[^15]: Application for Review of Freedom of Information Action (July 13,
    2001).

[^16]: Electronic mail from William S. Reyner, Jr., Hogan & Hartson, to
    Laurence Schecker, Office of General Counsel (Sept. 24, 2001).

[^17]: [E.g.]{.underline}, [National Parks and Conservation Ass'n v.
    Morton]{.underline}, 547 F.2d 673 (D.C. Cir. 1976); [Examination of
    Current Policy Concerning the Treatment of Confidential Information
    Submitted to the Commission]{.underline}, 13 FCC Rcd 24816, 24818-20
    (1998) ([Confidential Information]{.underline}).

[^18]: App. for Rev. at 2, 3.

[^19]: [See]{.underline} News Corp. Response, at 2, [citing]{.underline}
    letters from Arthur M. Siskind, Senior Executive Vice President,
    News Corp. to Magalie Roman Salas, Secretary, FCC (January 22, 2001
    and April 9, 2001).

[^20]: App. for Rev. at 2.

[^21]: [See]{.underline} 47 C.F.R. §§ 0.453(a)(2)(i)(G) (current
    reference).

[^22]: [Confidential Information]{.underline}, 13 FCC Rcd at 24838.

[^23]: [See]{.underline} nn. 2 and 4, [supra]{.underline}.

[^24]: [Id.]{.underline}

[^25]: [Knoxville Broadcasting Co.]{.underline}, 87 F.C.C.2d 1103, 1110
    (1982).

[^26]: [Leesburg Communications and Answering Service,
    Inc.]{.underline}, 89 F.C.C.2d 119, 121 (1982).

[^27]: [See]{.underline} 47 C.F.R. § 0.457(d)(1).

[^28]: The Bureau cited [Russell v. Department of the Air
    Force]{.underline}, 682 F.2d 1045, 1048 (D.C. Cir. 1982), because
    the Bureau was concerned that release of the information before the
    Commission issued its decision in [FTS/Chris-Craft]{.underline}
    could result in confusion as to the basis for that decision. We
    agree that the Bureau's reliance in [Russell]{.underline} was
    misplaced. [Russell]{.underline} applies to internal agency
    documents, not to documents submitted by parties to our proceedings.

[^29]: Because News Corp. has withdrawn its application for review, the
    redacted versions of the documents sought by *The Daily News* may be
    released upon issuance of this order.