**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

LARRY D. HENDERSON AND )

ROBERT S. BENZ d/b/a QUAD ) FOIA Control No. 99-214

COMMUNICATIONS ) )

on Request for Inspection )

of Records )

)

In the Matter of )

)

GELICO, INC., DEBTOR IN )

POSSESSION )

)

on Request for Confidential Treatment )

of Documents )

**MEMORANDUM OPINION AND ORDER**

Adopted: August 16, 2000; Released: August 18, 2000

By the Commission:

1.  The Commission has before it applications for review filed by
    Gelico, Inc., Debtor in Possession (Gelico)[^1] of the decisions of
    the Wireless Telecommunications Bureau (WTB or Bureau) granting in
    part and denying in part the Freedom of Information Act (FOIA)
    request by Larry D. Henderson and Robert A. Benz d/b/a Quad
    Communications (Quad) for inspection of records submitted by Gelico
    with a request for confidential treatment. For the reasons stated
    below, we deny the applications for review.

2.  The genesis of the matter may be traced to Quad's "Petition to Purge
    Authorization" of a 900 MHz Specialized Mobile Radio service license
    held by Gelico. In response to that petition, Gelico submitted
    certain documents for *in camera* inspection by the Commission, and
    sought confidential treatment pursuant to section 0.459 of the
    Commission's rules, 47 C.F.R. § 0.459. Quad's petition was denied,
    and Quad sought reconsideration of the denial of its petition. It
    also filed a FOIA request "to inspect all documents provided to the
    Commission by Gelico . . . and all documents on which the Commission
    relied" in rendering its decision denying Quad's petition.[^2]

3.  In ruling on the FOIA request and Gelico's request for confidential
    treatment,[^3] the Bureau identified three sets of documents that
    Gelico claimed were confidential and that were the subject of Quad's
    FOIA request: an engineering study with attachments; a site lease
    agreement with an attachment; and a listing of lease payments with
    copies of checks.[^4] It determined that even if these documents
    were entitled to confidential treatment pursuant to FOIA Exemption
    4, 5 U.S.C. § 552(b)(4), as Gelico claimed, public interest
    considerations favoring openness in Commission licensing proceedings
    compelled disclosure of at least portions of the documents.[^5] The
    Bureau explained that Quad would be "at a disadvantage if it does
    not have access to the same materials the Commission staff had and
    will have in deciding" Quad's petition.[^6] In light of Quad's
    representation that for its participation in the underlying
    proceeding it did not require access to all of the three sets of
    documents listed above, the Bureau only permitted "release of
    information that pertains to the locations of Gelico's sites, how
    long the leases have been operative, and the parameters of the
    stations' operation."[^7]

4.  Gelico sought Commission review of the Bureau decision, but in the
    same pleading it also sought Bureau reconsideration of its
    decision.[^8] Quad replied.[^9] The Bureau denied
    reconsideration.[^10] Gelico then filed a second application for
    review of the Bureau's [Reconsideration Decision]{.underline},[^11]
    and Quad replied.[^12] We have reviewed the record and documents in
    this proceeding and deny Gelico's applications for review.

5.  A two-part analysis is required by this proceeding: whether Gelico
    has met its burden of proving that the documents are confidential
    within the meaning of FOIA Exemption 4, and, if so, whether Quad has
    made a persuasive showing that the public interest nevertheless
    supports disclosure of the materials.[^13] [See]{.underline} [Bureau
    Decision]{.underline} at 3; 47 C.F.R. § 0.457(d)(2). Gelico
    complains that the Bureau did not adequately analyze whether its
    materials are within FOIA Exemption 4.[^14] However, the Bureau
    necessarily assumed that Gelico met its burden under the first part
    of the analysis. [See]{.underline} [Bureau Decision]{.underline}
    at 3. Otherwise, the Bureau would not have proceeded to determine
    whether the public interest required disclosure. We agree with the
    Bureau's determination, and Quad's replies, which focus on the
    second step of our analysis. Consequently, we need not address
    Gelico's arguments that the Bureau inadequately assessed the
    confidentiality of its materials.

6.  Gelico next maintains that there is no basis for disclosing
    materials entitled to confidential treatment. It is well established
    under our rules and precedent that we may disclose such materials
    when policy considerations in favor of disclosure outweigh those
    favoring non-disclosure.[^15] In the circumstances of this
    proceeding, as we now discuss, we agree with the Bureau that the
    public interest in disclosure outweighs Gelico's interest in
    non-disclosure of the materials.

7.  Quad is the geographic area licensee in a area where Gelico is an
    incumbent site-based licensee. Quad's FOIA request arises in the
    context of Quad's "Petition to Purge Authorization" of Gelico's
    station WNMO982, asserting that Gelico did not construct or operate
    the station as required by Commission rules. In the event that
    Gelico did not comply with those rules, its license would be
    cancelled and Quad would be able to construct and operate base
    stations using the frequency. 47 C.F.R. § 90.663(b).

8.  Gelico filed a response to Quad's petition, including the materials
    at issue here, and based on that reply, the Bureau denied Quad's
    petition. [^16] Quad has sought reconsideration of the Bureau's
    decision. As noted above, it also filed the FOIA request to enable
    it to review the materials that formed the basis for the Bureau's
    decision. Gelico, however, seeks to deny Quad the right to see the
    evidence that it did construct and operate the station.

9.  Gelico argues that Quad should not be allowed to see these materials
    because the matter in issue is an enforcement matter and is thus
    unlike the licensing proceeding in [Liberty Cable]{.underline},
    which the Bureau cited in support of its decision to afford Quad
    access to the materials. We agree with Gelico that there are
    distinctions between this proceeding and [Liberty Cable]{.underline}
    in that this proceeding does not implicate the statutory procedural
    rights of a petitioner to deny that were at issue in [Liberty
    Cable]{.underline}. We also agree that, depending on the
    circumstances, commenting parties in enforcement proceedings may not
    necessarily have the same entitlement to underlying procedural
    protections that are accorded petitioners to deny.

10. Nevertheless, we conclude that the Bureau properly exercised its
    discretion in determining that there were persuasive reasons in this
    case to allow Quad access to these records. The information at issue
    was used by the Bureau to determine the disposition of Quad's
    complaint against Gelico, and this is central to determining whether
    Quad or Gelico may be entitled to use these frequencies. We
    conclude, therefore, that the principles articulated in [Liberty
    Cable]{.underline} concerning procedural fairness to parties in our
    licensing proceedings should be equally applicable here. Because
    issues here implicate important rights of both affected parties
    concerning use of this spectrum, the Bureau correctly concluded that
    Quad is entitled to access to the materials submitted by Gelico.

11. Contrary to Gelico's contentions, the Bureau weighed the possibility
    of harm to Gelico against the public interest considerations
    favoring openness and fairness in our licensing proceedings. The
    Bureau did not make all of Gelico's materials available to Quad.
    Rather, because Quad indicated that it required only some of the
    materials submitted by Gelico, the Bureau granted Quad access only
    to "information that pertains to the locations of Gelico's sites,
    how long the leases have been operative, and the parameters of the
    stations' operations." [Bureau Decision]{.underline} at 3-4.[^17]
    Gelico claims that Quad would act improperly if Quad were granted
    access to this information,[^18] but Quad maintains that it has
    never attempted to disrupt Gelico's relationship with any
    entity.[^19] Gelico fears that Quad would improperly use information
    concerning transmitter sites, but those fears are not supported by
    the record.[^20]

12. Finally, we agree with the Bureau that [Southern Company Request for
    Waiver of Section 90.629 of the Commission's Rules]{.underline}, 14
    FCC Rcd 1851, 1860 (1998), cited by Gelico,[^21] is inapposite.
    [See]{.underline} [Reconsideration Decision]{.underline} at 1. In
    that proceeding, Southern Company sought a waiver to extend the
    implementation period for a wide-area Specialized Mobile Radio
    network. Southern provided construction status information, which it
    supplied with a request for confidentiality. The Bureau concluded
    that other businesses could use "this comprehensive data to
    Southern's competitive disadvantage," and because the data would not
    customarily be released to the public, it granted Southern's request
    for confidentiality. [Id.]{.underline} As the [Southern
    Company]{.underline} proceeding did not arise in the FOIA context,
    and apparently none of the parties commenting on Southern's waiver
    request sought access to the materials, there was no need to
    determine if a public interest existed that outweighed Southern's
    interest in the non-disclosure of the materials. In contrast, a
    strong public interest exists in this proceeding for Quad to have
    access to some of the materials submitted with a request for
    confidentiality by Gelico.

13. Accordingly, IT IS ORDERED that the applications for review by
    Gelico, Inc., Debtor in Possession, ARE DENIED. Gelico may seek
    judicial review of this decision pursuant to 5 U.S.C. § 552(a)(4)(B)
    within 10 working days, [see]{.underline} 47 C.F.R. § 0.461(i)(4).
    If Gelico does not seek a stay of this decision within 10 working
    days, the Bureau may disclose the portions of the documents sought
    by Quad.

14. The Officials responsible for this action are the following
    Commissioners: Chairman Kennard, Commissioners Ness,
    Furchtgott-Roth, Powell and Tristani.

#  FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: Gelico is a wholly owned subsidiary of Geotek Communications,
    Inc., Debtor in Possession (Geotek).

[^2]: Letter from George L. Lyon, Jr., Esq., to Andrew S. Fishel,
    Managing Director (Sept. 8, 1999). In response to a request from the
    Bureau, Quad and Gelico filed comments concerning the request for
    confidentiality in light of the FOIA request. [See]{.underline}
    letter from Russell H. Fox, Esq. To William Kunze, Deputy Chief,
    Commercial Wireless Division, WTB (Oct. 13, 1999); letter from
    George L. Lyon, Jr., Esq. and Pamela G. Holran, Esq., to William
    Kunze, Deputy Chief, Commercial Wireless Division, WTB (Oct. 25,
    1999).

[^3]: [See]{.underline} 47 C.F.R. § 0.459(d)(1) (the Commission will not
    normally act on a request for confidential treatment until a request
    for inspection of records has been filed).

[^4]: Gelico did not seek confidential treatment of a declaration from
    an attorney employed by Geotek certifying to the accuracy of the
    records. This document was released pursuant to the FOIA request.

[^5]: Letter from William W. Kunze, Deputy Chief, Commercial Wireless
    Division, WTB, to George L. Lyon, Jr., Esq., Pamela G. Holran, Esq.,
    Russell H. Fox, Esq., and Russ Taylor, Esq. (Nov. 8, 1999) ([Bureau
    Decision]{.underline}) at 3, [citing]{.underline} [Liberty Cable
    Company, Inc.]{.underline}, 11 FCC Rcd 2475, 2476-77 (1996), [aff'd
    sub nom.]{.underline} [Bartholdi Cable Co. v. FCC]{.underline}, 114
    F.2d 274 (D.C. Cir. 1997).

[^6]: [Id.]{.underline}

[^7]: [Id.]{.underline} Specifically, the Bureau authorized release of
    parts of the engineering statement pertaining to the sites at issue
    in Quad's petition; the site lease agreement; and a redacted chart
    showing the dates checks were written to pay for the lease.
    [Id.]{.underline} at 3-4.

[^8]: Letter from Russell H. Fox, Esq., and Russ Taylor, Esq., to
    Christopher J. Wright, General Counsel (Nov. 22, 1999) (First App.
    for Rev.).

[^9]: Letter from George L. Lyon, Jr., Esq., and Pamela Gaary, Esq., to
    Christopher J. Wright, General Counsel (Dec. 3, 1999) (Quad's First
    Reply).

[^10]: Letter from William W. Kunze, Deputy Chief, Commercial Wireless
    Division, WTB, to George L. Lyon, Jr., Esq., Pamela G. Holran, Esq.,
    Russell H. Fox, Esq., and Russ Taylor, Esq. (Dec. 15, 1999)
    ([Reconsideration Decision]{.underline}). On the same day the Bureau
    denied reconsideration, Gelico filed a reply to Quad's First Reply.
    Letter from Russell H. Fox, Esq. and Russ Taylor, Esq., to
    Christopher J. Wright, General Counsel (Dec. 15, 1999) (Reply to
    Quad's First Reply).

[^11]: Letter from Russell H. Fox, Esq., and Russ Taylor, Esq., to
    Christopher J. Wright, General Counsel (Dec. 29, 1999) (Second App.
    for Rev.).

[^12]: Letter from George L. Lyon, Jr., Esq., and Pamela Gaary, Esq., to
    Christopher J. Wright, General Counsel (Jan. 11, 2000) (Quad's
    Second Reply).

[^13]: First App. for Rev. at 2; Quad's First Reply at 2.

[^14]: First App. for Rev. at 2.

[^15]: [See]{.underline} [Examination of Current Policy Concerning
    Treatment of Confidential Information Submitted to the
    Commission]{.underline}, 13 FCC Rcd 24816, 24818, 24822-24 (1998);
    see [also]{.underline} [Bartholdi]{.underline}, 114 F.3d at 281,
    [citing]{.underline} [Chrysler Corp. v. Brown]{.underline}, 441 U.S.
    281, 293 (1979); 47 C.F.R. § 0.457(d)(2).

[^16]: Letter from Terry L. Fishel, Deputy Chief, Licensing and
    Technical Analysis Branch, Commercial Wireless Division, WTB, to
    Elizabeth R. Sachs, Esq., and Russell H. Fox, Esq. (Aug. 9, 1999).

[^17]: Quad does not seek the entire portion of the site lease.
    [See]{.underline} letter from George L. Lyon, Jr., and Pamela G.
    Holran to William Kunze (Oct. 25, 1999) at 7. We clarify here that
    under the [Bureau Decision]{.underline} at 3-4 only those parts of
    the site lease revealing the location of Gelico\'s site and how long
    it has been operating will be released.

[^18]: First App. for Rev. at 4.

[^19]: Quad's First Reply at 5.

[^20]: Gelico fears that if Quad learns the actual transmitter site,
    Quad will attempt to disrupt its operations there. Quad denies that
    it would do so. There is no evidence that Quad's investigation of
    whether Gelico was operating at various sites was done improperly.
    [See]{.underline} Petition to Purge at Exhs. 9 and 10 (affidavit and
    letters submitted in support of petition indicating results of
    frequency monitoring, and mere informational inquiries).

[^21]: First App. for Rev. at 3; Second App. for Rev. at 3 n.3