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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 the Matter of Application of ) ) Pine Belt Communications, Inc. ) Application File No. 0000000044 ) For Authority to Construct and Operate ) Local Multipoint Distribution Services In ) Multiple Basic Trading Areas ) ORDER Adopted: October 13, 1999 Released: October 13, 1999 By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On August 17, 1998, Pine Belt Communications, Inc. (Pine Belt) 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, Pine Belt'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 7, 1998, Pine Belt submitted a long-form application for the LMDS licenses for which it was the winning high bidder, as required by the auction rules. The Commission accepted Pine Belt's long-form application on April 16, 1998. Exhibit E to Pine Belt's long- form application requested confidential treatment of the disaggregated gross revenues of its principal shareholder, Rose Mary S. Nettles. By letter dated August 7, 1998, the Public Safety and Private Wireless Division (Division) denied Pine Belt's request for confidential treatment. The Division concluded that Pine Belt 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 Pine Belt's eligibility for bidding credits. 3. On August 10, 1998, the Commission granted Pine Belt's license application. Subsequent to the Commission's grant, Pine Belt filed a second request seeking confidential treatment of the disaggregated gross revenues of its principal shareholder. Pine Belt argues that since the Commission already granted its application, "Pine Belt has satisfied the compelling interest of competing bidders in the LMDS auction and the public in assessing Pine Belt's qualifications by demonstrating, in the aggregate, that Pine Belt is a 'very small business' and is, therefore, eligible for a 45 percent bidding credit." Pine Belt also states that prior to the grant of its application, no member of the public was denied the opportunity to review Pine Belt's aggregated financial data. Therefore, Pine Belt concludes that public disclosure of its disaggregated financial data "no longer serves any regulatory or public policy." Pine Belt 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. Pine Belt's main argument is that public disclosure of the disaggregated financial data serves no regulatory purpose or public policy 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 ruled on August 7, 1998, 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 Pine Belt's eligibility for bidding credits. We note that the Commission's Rules do not distinguish between pre- and post-grant confidentiality requests, nor do they give rise to any presumption that public interest in the information disappears when the application is no longer pending. As Pine Belt has not shown how this case differs in this regard, we conclude that public interest considerations favoring openness in our licensing proceedings outweigh any potential difficulty that Pine Belt might experience by disclosure of this information. We further note that earlier this year, the Wireless Telecommunications Bureau considered and rejected a confidentiality request filed by Gulf Coast Services, Inc., that presented a similar argument and that was based on nearly identical factual circumstances. 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. The fact that the Commission granted Pine Belt's application does not justify withholding from public inspection the materials the Commission relied upon to grant Pine Belt's license at a forty-five percent discount. To the contrary, fairness to the other participants in this auction 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 Pine Belt has failed to present by a preponderance of the evidence a case for nondisclosure. 7. Finally, Pine Belt's assertion that "prior to the grant [of the application], no member of the public was denied the opportunity to review Pine Belt's aggregated financial data" is misleading. Information submitted under a request for confidentiality is treated as confidential until the relevant Bureau rules on the request. Thus, in the event the request is denied, the information is not disclosed until the relevant Bureau gives the submitting party a period to seek review by the full Commission and the courts. Thus, the information subject to Pine Belt's requests for confidentiality (both its initial request filed in conjunction with its Form 601, and the August 17, 1998, letter request now under consideration) has remained confidential. The public will not have an opportunity to review the information in question until there is a final disposition in this matter. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), and Section 0.459 of the Commission's Rules, 47 C.F.R.  0.459, that Pine Belt's request filed with the Commission on August 17, 1998, seeking confidential treatment of the disaggregated gross revenues of its principal shareholder is DENIED. 9. This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the Commission's Rules, 47 C.F.R.  0.131 and 0.331. FEDERAL COMMUNICATIONS COMMISSION D'wana R. Terry Chief, Public Safety and Private Wireless Division Wireless Telecommunications Bureau