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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re ) ) GULF COAST SERVICES, INC. ) Application File No. 0000000097 ) Request for Confidential Treatment of ) Certain Financial Information Submitted ) in Connection with an Application For ) Authority to Construct and Operate Local ) Multipoint Distribution Service in Multiple ) Basic Trading Areas ) ORDER Adopted: April 21, 1999 Released: April 22, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On August 17, 1998, Gulf Coast Services, Inc. (Gulf Coast) filed a request seeking non- disclosure of certain financial information submitted in support of its Local Multipoint Distribution Service (LMDS) long-form license application (FCC Form 601). For the reasons described below, Gulf Coast's request for confidentiality is denied. II. BACKGROUND 2. On March 25, 1998, the Commission completed its auction of 986 LMDS licenses in the 28 GHz and 31 GHz frequency bands. On April 9, 1998, Gulf Coast submitted a long-form application for the LMDS license for which it was the winning high bidder, as required by the auction rules. The Commission accepted Gulf Coast's long-form application on April 16, 1998. Exhibit E to Gulf Coast's long-form application requested confidential treatment of the disaggregated gross revenues of its principal shareholder. By letter dated August 6, 1998, the Public Safety and Private Wireless Division (Division) of the Wireless Telecommunications Bureau (Bureau) denied Gulf Coast's request for confidential treatment. The Division concluded that Gulf Coast had failed to demonstrate that disclosure of the disaggregated gross revenues of its principal shareholder would result in substantial competitive harm to the applicant. Furthermore, the Division found that competing bidders and the public in general had a compelling interest to have access to the information that was the subject of the confidentiality request because such information bears on Gulf Coast's eligibility for bidding credits. 3. On August 10, 1998, the Commission granted Gulf Coast's license application. Subsequent to the Commission's grant, Gulf Coast filed a second request seeking confidential treatment of the disaggregated gross revenues of its principal shareholder. Gulf Coast argues that since the Commission already granted its application, "Gulf has satisfied the compelling interest of competing bidders in the LMDS auction and the public in assessing Gulf's qualifications by demonstrating, in the aggregate, that Gulf is an entrepreneur and is, therefore, eligible for a 25 percent bidding credit." Gulf Coast also states that prior to the grant of its application, no member of the public was denied the opportunity to review Gulf Coast's aggregated financial data. Therefore, Gulf Coast concludes that public disclosure of its disaggregated financial data "no longer serves any regulatory or public policy." Gulf Coast also expresses concern that disclosure of this financial information could jeopardize the shareholder's personal safety and security. III. DISCUSSION 4. Section 0.459 of the Commission's rules provides that any party submitting information to the Commission may request that the information be kept confidential. A party seeking confidential treatment is required to submit a statement of the reasons for withholding the materials from inspection and of the facts upon which those reasons are based. Mere conclusory or generalized allegations cannot support a request for nondisclosure. Rather, Section 0.459(d) of the Commission's rules provides that a request for confidentiality will be granted if it presents, by a preponderance of the evidence, a case for nondisclosure consistent with the provisions of the Freedom of Information Act, 5 U.S.C.  552. 5. Gulf Coast's main argument is that public disclosure of the disaggregated financial data serves no regulatory or public policy purpose because the Commission has already approved its application. We find this argument unpersuasive. The Commission's Rules permit disclosure of materials for which confidential treatment is sought to the extent that policy considerations favoring disclosure outweigh those supporting non-disclosure. As the Division determined in its decision, competing bidders and the public in general have a compelling interest to have access to the information which is the subject of the confidentiality request because it bears directly on Gulf Coast's eligibility for bidding credits. In this instance, we find that competing bidders and the public have a continuing public interest in having access to this information because it is highly relevant to the Commission's ultimate decision to grant Gulf Coast's application. Furthermore, we believe that public interest considerations favoring openness in our licensing proceedings outweigh any potential difficulty that Gulf Coast might experience by disclosure of this information. 6. A fundamental necessity in the conduct of spectrum auctions is that the eligibility of applicants for any bidding credits and their suitability as licensees be fully scrutinized. We do not believe that the fact that the Commission granted Gulf Coast's application constitutes sufficient justification for withholding from public inspection the materials the Division relied upon to grant Gulf Coast's license with a bidding credit. To the contrary, we believe that fairness to other participants in this auction and potential future auction participants requires that this financial information be accessible to the public. Furthermore, the Commission issued a Public Notice on January 27, 1998, in which it indicated that requests filed by LMDS applicants seeking confidential treatment of gross revenues data that is required by the Commission's Rules would not be granted. Specifically, the Public Notice stated that "applicants will be required to make this information publicly available if they wish to become qualified bidders." We find that Gulf Coast has failed to present by a preponderance of the evidence a case for nondisclosure. 7. Gulf Coast also states in its request for confidentiality that "prior to the grant of the application, the public was not denied the opportunity to review the private confidential information for which Gulf now seeks confidential treatment." This assertion is misleading. The Commission has held that information submitted under a request for confidentiality will be treated as confidential until the relevant Bureau rules on the request, and in the event the request is denied, until the Bureau gives the submitting party a period to seek review by the full Commission and the courts. Thus, the information subject to Gulf Coast's request for confidentiality has remained confidential and the public will not have an opportunity to review the information in question until there is a final disposition of this matter. Furthermore, even if Gulf Coast's assertion were true, it has failed to explain why disclosure of this financial information is appropriate before the grant of its application but not after such action has been taken. IV. ORDERING CLAUSE 8. Accordingly, IT IS ORDERED that, Gulf Coast's request filed with the Commission on August 17, 1998, seeking confidential treatment of the disaggregated gross revenues of its principal shareholder is hereby DENIED. This action is taken under delegated authority pursuant to 47 U.S.C.  155(c) and Section 0.331 of the Commission's rules, 47 C.F.R.  0.331. FEDERAL COMMUNICATIONS COMMISSION Kathleen O'Brien Ham Deputy Chief Wireless Telecommunications Bureau