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                                                           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) 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.
3.     In ruling on the FOIA request and Gelico's request for confidential treatment, 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.  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.
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.  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."
4.     Gelico sought Commission review of the Bureau decision, but in the same pleading it
also sought Bureau reconsideration of its decision.  Quad replied.  The Bureau denied
reconsideration.  Gelico then filed a second application for review of the Bureau's
Reconsideration Decision, and Quad replied.  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.  See Bureau Decision 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.  However, the Bureau necessarily assumed that Gelico met its burden under the
first part of the analysis.  See Bureau Decision 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.  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.    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, 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 in that
this proceeding does not implicate the statutory procedural rights of a petitioner to deny that were
at issue in Liberty Cable.  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
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 at 3-4.  Gelico claims that Quad would act improperly if Quad were granted access to
this information, but Quad maintains that it has never attempted to disrupt Gelico's relationship
with any entity.  Gelico fears that Quad would improperly use information concerning
transmitter sites, but those fears are not supported by the record.
12.    Finally, we agree with the Bureau that Southern Company Request for Waiver of
Section 90.629 of the Commission's Rules, 14 FCC Rcd 1851, 1860 (1998), cited by Gelico, is
inapposite.  See Reconsideration Decision 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.  As the Southern Company
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 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