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                            Before the
               FEDERAL COMMUNICATIONS COMMISSION
                    Washington, D.C.  20554


In the Matter of                        )
                              )
JIM PENG, RANGER ELECTRONIC   )    
COMMUNICATIONS, INC. and      )
RANGER COMMUNICATIONS, INC.   )    FOIA Control No. 98-101
                              )
Application for Review of Denial of     )
Request for Inspection of Records       )    


                   MEMORANDUM OPINION AND ORDER

          Adopted:  September 28, 1998; Released:  October 6, 1998

By the Commission:


     
A    The Commission has under consideration an application for review dated July 16,
1998, by Michael C. Olson on behalf of Jim Peng, Ranger Electronic Communications, Inc.
(Ranger Electronic), and Ranger Communications, Inc. (Ranger Communications)
(collectively referred to as "the requesters").  The requesters seek review of the decision of the
Chief, Compliance and Information Bureau (the Bureau or CIB) dated June 19, 1998, denying
the requesters' request for documents under the Freedom of Information Act (FOIA).  For the
reasons discussed below, the application for review is granted in part and denied in part.

     Background

     1.   Pursuant to 47 U.S.C.  302(a), the Commission is authorized to make
regulations governing the interference potential of devices that are capable of emitting radio
frequency energy in sufficient degree to cause harmful interference to radio communications. 
It is unlawful for any person to manufacture, import, sell, offer for sale, ship or use devices
which fail to comply with the regulations.  47 U.S.C.  302(b).  The Commission has
implemented section 302 by establishing technical regulations for radio transmitters and certain
electronic equipment to control radio frequency interference and by requiring such devices to
be authorized to ensure that the equipment meets the technical requirements.  See 47 C.F.R.
Parts 2 and 15.  

     2.   Mr. Peng personally owns approximately 52 percent of Ranger Electronic and is
the sole owner of Ranger Communications.  These companies and others in Mr. Peng's control
manufacture, import, and distribute electronic equipment.  In a criminal action brought in
United States District Court, Mr. Peng, Ranger Electronic, and Ranger Communications were
charged, inter alia, with importing and conspiring to import, without Commission approval,
into the United States illegal transceiver radios that operated on citizen band frequencies,
money laundering, and international money laundering.  After the trial had commenced,
Ranger Electronic reached an agreement with the United States whereby Ranger
Communications pled guilty to international money laundering and forfeiture, and another
company controlled by Mr. Peng pled no contest to an Information charging it with importing
illegal transceivers into the United States.  Criminal charges were dismissed against Ranger
Electronic and Mr. Peng.  Ranger Communications forfeited $990,000 to the United States
Customs Service (Customs Service), and Mr. Peng agreed to be personally responsible for
assuring payment of those funds.

     3.   The requesters seek records relating to claims that amateur radios manufactured
or sold by other companies "are easily modifiable to transmit on frequencies other than those
assigned for use by Amateur operators."  The Bureau released 204 pages of records to the
requesters, but withheld two documents.  The first document, a six-page memorandum dated
April 8, 1998, from Gary Hendrickson, Office of Engineering and Technology (OET) to Art
Wall, OET, entitled "'Illegal CB Radios' or '10-meter Amateur Radios which can be altered
for operation on CB'" and marked "draft" (the Hendrickson Draft Memo) was withheld by the
Bureau pursuant to FOIA Exemption 5, 5 U.S.C.  552(b)(5), because it "constitut[ed]
internal and predecisional opinion and advice material."  The second document consisted of
two electronic mail (e-mail) messages on one page.  The top message on the page was from
Lawrence Brock of CIB's Dallas Office, to Art Wall, OET, with a subject heading "ProStar
240," was dated April 20, 1998, 5:22 p.m. (the Brock e-mail).  The second message on the
page was from Paul Harris to Lawrence Brock (both of CIB), dated April 20, 1998, 10:25
a.m. (the Harris e-mail), and had no subject heading.  The Bureau withheld the two messages
in their entirety because they "relate[] to an ongoing enforcement proceeding and concern[] the
release of information which could reasonably be expected to interfere with that enforcement
proceeding."  In addition, the Bureau noted that a portion of the first e-mail "reflects
predecisional opinion and advice material that is also being withheld pursuant to Exemption 5 .
. . ."  The requesters seek review of the Bureau's decision.  

     Discussion

     4.   The Hendrickson Draft Memo.  The requesters urge that the Hendrickson Draft
Memo cannot be withheld pursuant to FOIA Exemption 5 because it was written two years
after a public notice concerning modifiable amateur radios, and thus is not "predecisional." 
Further, the requesters maintain that the draft memo is not "so 'personal in nature' as to stifle
honest communication."  

     5.   Exemption 5 protects from mandatory disclosure "inter-agency or intra-agency
memorandums or letters which would not be available to a party other than an agency in
litigation with the agency."  5 U.S.C.  552(b)(5).  Any communication the disclosure of
which would reveal the deliberative process of an agency is exempt from mandatory
disclosure.  E.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 n.1 (1975); Maricopa
Audubon Society v. United States Forest Service, 108 F.3d 1089, 1092-93 (9th Cir. 1997). 
The purpose of the deliberative process privilege "is to prevent injury to the quality of agency
decisions" by ensuring that the "frank discussion of legal or policy matters" in writing within
the agency is not inhibited by public disclosure.  Maricopa Audubon Society, 108 F.3d at
1093, quoting Sears, Roebuck, 421 U.S. at 150-51.  Courts focus on the role of the document
in the decisionmaking process, and whether disclosure of the information at issue would
discourage candid discussions within the agency.  Dawson B. Nail, 6 FCC Rcd 7014 (1991),
citing, e.g., Sears, Roebuck, 421 U.S. at 152 n.19.  The deliberative process privilege has
been held to cover "all recommendations, draft documents, proposals, suggestions and other
subjective documents which reflect the personal opinions of the writer rather than the policy of
the agency," as well as documents which would "inaccurately reflect of prematurely disclose
the views of the agency."  National Wildlife Federation v. United States Forest Service, 861
F.2d 1114, 1118-19 (9th Cir. 1988), quoting Coastal States Gas Corp. v. Department of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

     6.   We find that the Hendrickson Draft Memo is squarely within the scope of the
deliberative process privilege embodied within Exemption 5, and therefore is exempt from
mandatory disclosure.  The draft memo contains the author's recommendations concerning, as
the title of the memorandum indicates, what actions the Commission could take concerning
"'Illegal CB Radios' or '10-meter Amateur Radios which can be altered for operation on CB'." 
The memo was "prepared in order to assist an agency decisionmaker in arriving at his
decision," Maricopa Audubon Society, 108 F.3d at 1094, but it does not reflect the final
policies of the agency.  Disclosure of the memo "would expose an agency's decisionmaking
process in such a way as to discourage candid discussion within the agency and thereby
undermine the agency's ability to perform its functions."  Id.  We agree with the requesters
that the draft memorandum is not predecisional to the public notice.  It is, however,
predecisional because it is part of the Commission's continual process of examining its policies
concerning devices that may violate Commission regulations.  See Sears, Roebuck, 421 U.S.
at 151 n.18.  In addition to being a predecisional recommendation, we note that the
memorandum is a draft memorandum containing Hendrickson's tentative opinions and
recommendations.  It is therefore properly withheld under Exemption 5 on that ground alone. 
See National Wildlife Federation, 861 F.2d at 1121; Almiria Capital Corporation, 11 FCC
Rcd 6710 (1996).   The requesters also ask that we release a redacted version of the memo and
disclose any factual, non-deliberative information.  A review of the memo, however, reveals
that any factual material contained therein is so intertwined with the advice and
recommendations as to preclude release of a redacted version of the document.  See, e.g.,
National Wildlife Federation, 861 F.2d at 1119.

     7.   The Brock and Harris E-mail Messages.  The Bureau considered the e-mails
under the FOIA request, and withheld them pursuant to FOIA Exemptions 5 and 7(A), 5
U.S.C.  552(b)(5) and (7)(A).  We believe the e-mails, with certain redactions, should be
released.  The e-mails concern an inquiry by the Customs Service about ProStar 240
transceivers seized and currently awaiting disposition.  The Customs Service has subsequently
indicated that release of these e-mails should not interfere with the disposition of the matter by
that agency.  Therefore, we direct release of the two e-mails except for portions of the Brock
e-mail that fall within FOIA Exemption 5.  These redacted portions contain opinions and
recommendations disclosure of which "would expose an agency's decisionmaking process in
such a way as to discourage candid discussion within the agency and thereby undermine the
agency's ability to perform its functions."  Maricopa Audubon Society, 108 F.3d at 1094.  


     Ordering Paragraphs

     8.  Accordingly, IT IS ORDERED That the Application for Review is GRANTED IN
PART AND DENIED IN PART.  Judicial review of this action may be sought pursuant to 5
U.S.C.  552(a)(4)(B).

     9.  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