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 Federal  Communications  Commission  FCC  00-305 
 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  Quads  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  Commissions 
 rules,  47  C.  F.  R.    0.459.  Quads  petition  was  denied,  and  Quad  sought  reconsideration  of  the 

 1  Gelico  is  a  wholly  owned  subsidiary  of  Geotek  Communications,  Inc.,  Debtor  in  Possession  (Geotek). 
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 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  Quads  petition.  2 

 3.  In  ruling  on  the  FOIA  request  and  Gelicos  request  for  confidential  treatment,  3  the 
 Bureau  identified  three  sets  of  documents  that  Gelico  claimed  were  confidential  and  that  were  the 
 subject  of  Quads  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  Quads  petition.  6  In  light  of 
 Quads  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  Gelicos  sites,  how  long  the  leases  have  been 
 operative,  and  the  parameters  of  the  stations  operation.  7 

 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  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  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)  at 
 3,  citing  Liberty  Cable  Company,  Inc.,  11  FCC  Rcd  2475,  2476-  77  (1996),  affd  sub  nom.  Bartholdi  Cable  Co.  v. 
 FCC,  114  F.  2d  274  (D.  C.  Cir.  1997). 

 6  Id. 

 7  Id.  Specifically,  the  Bureau  authorized  release  of  parts  of  the  engineering  statement  pertaining  to  the  sites 
 at  issue  in  Quads  petition;  the  site  lease  agreement;  and  a  redacted  chart  showing  the  dates  checks  were  written  to 
 pay  for  the  lease.  Id.  at  3-  4. 
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 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  Bureaus 
 Reconsideration  Decision,  11  and  Quad  replied.  12  We  have  reviewed  the  record  and  documents  in 
 this  proceeding  and  deny  Gelicos  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  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.  14  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 
 Bureaus  determination,  and  Quads  replies,  which  focus  on  the  second  step  of  our  analysis. 
 Consequently,  we  need  not  address  Gelicos  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- 

 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)  (Quads  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).  On  the  same  day  the  Bureau  denied  reconsideration,  Gelico  filed  a  reply  to  Quads  First  Reply.  Letter 
 from  Russell  H.  Fox,  Esq.  and  Russ  Taylor,  Esq.,  to  Christopher  J.  Wright,  General  Counsel  (Dec.  15,  1999) 
 (Reply  to  Quads  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)  (Quads  Second  Reply). 
 13  First  App.  for  Rev.  at  2;  Quads  First  Reply  at  2. 

 14  First  App.  for  Rev.  at  2. 
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 disclosure.  15  In  the  circumstances  of  this  proceeding,  as  we  now  discuss,  we  agree  with  the 
 Bureau  that  the  public  interest  in  disclosure  outweighs  Gelicos  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.  Quads  FOIA  request  arises  in  the  context  of  Quads  Petition  to  Purge 
 Authorization  of  Gelicos  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  Quads  petition,  including  the  materials  at  issue  here, 
 and  based  on  that  reply,  the  Bureau  denied  Quads  petition.  16  Quad  has  sought  reconsideration 
 of  the  Bureaus  decision.  As  noted  above,  it  also  filed  the  FOIA  request  to  enable  it  to  review  the 
 materials  that  formed  the  basis  for  the  Bureaus  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  Quads 
 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 

 15  See  Examination  of  Current  Policy  Concerning  Treatment  of  Confidential  Information  Submitted  to  the 
 Commission,  13  FCC  Rcd  24816,  24818,  24822-  24  (1998);  see  also  Bartholdi,  114  F.  3d  at  281,  citing  Chrysler 
 Corp.  v.  Brown,  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). 
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 concerning  use  of  this  spectrum,  the  Bureau  correctly  concluded  that  Quad  is  entitled  to  access  to 
 the  materials  submitted  by  Gelico. 

 11.  Contrary  to  Gelicos  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  Gelicos  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  Gelicos  sites, 
 how  long  the  leases  have  been  operative,  and  the  parameters  of  the  stations  operations.  Bureau 
 Decision  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  Gelicos  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  Commissions  Rules,  14  FCC  Rcd  1851,  1860  (1998),  cited  by  Gelico,  21  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  Southerns  competitive  disadvantage,  and  because  the  data  would  not  customarily  be  released 
 to  the  public,  it  granted  Southerns  request  for  confidentiality.  Id.  As  the  Southern  Company 
 proceeding  did  not  arise  in  the  FOIA  context,  and  apparently  none  of  the  parties  commenting  on 
 Southerns  waiver  request  sought  access  to  the  materials,  there  was  no  need  to  determine  if  a 
 public  interest  existed  that  outweighed  Southerns  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. 

 17  Quad  does  not  seek  the  entire  portion  of  the  site  lease.  See  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  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  Quads  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  Quads  investigation  of  whether  Gelico  was 
 operating  at  various  sites  was  done  improperly.  See  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 
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 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 
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