******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) NORCOM COMMUNICATIONS CORP. ) FOIA Control No. 98-311 ) On Request for Inspection ) of Records ) MEMORANDUM OPINION AND ORDER Adopted: April 21, 1999; Released: April 28, 1999 By the Commission: 1. The Commission has under consideration an application for review filed by Norcom Communications Corp. (Norcom) seeking review of a Freedom of Information Act (FOIA) decision of the Wireless Telecommunications Bureau (Bureau), granting in part and denying in part Norcom's FOIA request. For the reasons stated below, we deny the application for review. 2. In Norcom Communications Corporation: Order to Show Cause, Hearing Designation Order and Notice of Opportunity for Hearing for Forfeiture, WTB Docket No. 98- 181, FCC 98-252 (rel. Oct. 14, 1998) (Norcom HDO), the Commission designated for hearing applications and licenses of Norcom and several other entities because of questions concerning the relationship between Norcom and those other entities. Norcom filed a request under the Freedom of Information Act (FOIA) seeking inspection and investigative records, statements of non- Commission witnesses, staff communications concerning Norcom and the other entities, records concerning several license applications granted in 1992, records received by the Commission from third parties concerning Norcom and the other entities, draft copies of the Norcom HDO, documents concerning the licensing of Part 90 multiple licensed land mobile radio systems (FB4) and cost-shared not for profit land mobile systems (FB7), and "any documents in which the FCC's licensing staff is instructed not to process applications for FB7 systems." The Bureau granted in part and denied in part Norcom's FOIA request. It provided Norcom with statements of non- Commission witnesses and correspondence from third parties to the Commission concerning Norcom and the other entities. The Bureau was unable to locate any documents concerning the 1992 licenses. The Bureau withheld all other documents responsive to Norcom's request pursuant to FOIA Exemptions 5 (deliberative process) and 7(A) (interference with an on-going investigation), 5 U.S.C.  552(b)(5) and 552(b)(7)(A). 3. Norcom raises three issues in its application for review. It asserts that the Bureau should have, in its discretion, released materials that were "exculpatory" or would benefit Norcom in the Norcom HDO proceeding. Norcom also claims that Commission staff has been instructed not to process FB7 applications and that such instructions must be released pursuant to 5 U.S.C.  552(a)(2)(C) (agencies must make available for public inspection "instructions to staff that affect a member of the public"). Finally, Norcom asks that the draft of the Norcom HDO be released because, it asserts, the Commission previously released a draft HDO decision in another proceeding. 4. We shall deny the application for review. While Norcom is correct that the Commission may, in its discretion, release materials that could be withheld pursuant to the FOIA exemptions, Norcom's FOIA request offered no reason for the Bureau to exercise its discretion in this proceeding, nor did Norcom even request that the Bureau disclose exempt materials. To the contrary, it stated that if the requested documents are covered by a FOIA exemption, the agency should "segregate or edit those documents, if possible, so that they may be released to Norcom." On appeal, Norcom now complains that "the Bureau did not consider any of the benefits associated with releasing exempt information to Norcom," and states that "it expects that some of the materials uncovered in response to the Request are exculpatory, or would benefit Norcom." Norcom does not explain what it means by "exculpatory" documents in the context of the revocation proceeding, and failed to present this argument to the Bureau in the first instance. See 47 U.S.C.  155(c)(5); 47 C.F.R.  1.115(c). We therefore decline to consider it on review. Norcom, however, is free to re-file its FOIA request with the Bureau and seek discretionary disclosure, assuming it can demonstrate why any such exculpatory material (if it indeed exists), should be deemed to outweigh the public interest considerations underlying FOIA Exemptions 5 and 7. 5. Norcom also seeks documents instructing the staff to "freeze" processing FB7 applications. Its request must be denied because there are no documents instructing staff not to process such applications. Indeed, there is no "freeze." Many FB7 applications were granted in 1998 and 1999. 6. Finally, we will not release the draft Norcom HDO. It is well established that draft decisions are properly withheld under FOIA Exemption 5. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The privilege prevents public confusion that might be caused by disclosure of reasons and rationales that were not ultimately the grounds for the agency's action. Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Jordan v. Department of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978) (en banc). It is our practice not to release draft decisions. See, e.g., Arthur Firstenberg, __ FCC Rcd _____ (FCC 98-287) (rel. Nov. 4, 1998). Indeed, it is unclear whether the draft in the other proceeding was released as a matter of discretion or whether the disclosure was inadvertent. See Marc Sobel, 12 FCC Rcd 22879, 22884 (ALJ 1997). In any event, the fact that a draft decision was released in response to a FOIA request in one proceeding does not require us to release the draft Norcom HDO here. See Mobil Oil Corp. v. EPA, 879 F.2d 698, 700-01 (9th Cir. 1989); Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982); Stein v. Department of Justice, 662 F.2d 1245, 1259 (7th Cir. 1981); Dow, Lohnes & Albertson v. Presidential Comm'n on Broadcasting to Cuba, 624 F. Supp. 572, 578 (D.D.C. 1984) (all holding that disclosure in one case does not require disclosure in every case). 7. Accordingly, IT IS ORDERED, that the Application for Review IS DENIED. Judicial review of this action may be sought pursuant to 5 U.S.C.  552(a)(4)(B). 8. 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