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

In the Matter of                        )    
                                   )
MOBILE RELAY ASSOCIATES            )    FOIA Control No. 99-8    
                                        )    
On Request for Fee Waiver                    )         


                   MEMORANDUM OPINION AND ORDER

                  Adopted:  July 13, 1999;  Released:  July 16, 1999

By the Commission:

     1.   The Commission has under consideration an application for review filed by Mobile
Relay Associates (MRA) seeking review of the decision of the Associate General Counsel denying
MRA's request for a waiver of the fees assessed for the records produced in response to its
Freedom of Information Act (FOIA) request.  For the reasons stated below, the application for
review is denied.

     2.   MRA's FOIA request sought various records concerning protests filed by Ted S.
Henry on behalf of Henry Radio, Inc., or NSTN.  The Wireless Telecommunications Bureau
(WTB) located five records responsive to the FOIA request, which it provided to MRA.  WTB
informed MRA that it would be billed $89.38 for the cost of processing its  FOIA request.  MRA
sought reconsideration of the FOIA decision and the fees.  WTB referred the fee question to the
Office of General Counsel (OGC) pursuant to 47 C.F.R. 
 0.470(e).  The Associate General Counsel construed MRA's request for reconsideration of the
fees assessed as a request for a waiver of FOIA fees, and denied the request for a waiver because
the request was untimely, and, even if it had been timely, failed to meet the requirements of the
FOIA fee waiver statute, 5 U.S.C.  552(a)(4)(A)(iii).  The Associate General Counsel also
rejected MRA's claim that the documents released by WTB were prohibited ex parte presentations
that should have been provided to MRA without charge, noting that the records were from 1992
and 1993, when the ex parte rules then in effect did not require service of these records on MRA.

     3.   In its application for review, MRA seeks a refund of the fee, which it has paid. 
MRA does not challenge the ruling that its request for a fee waiver was untimely or the ruling that
it failed to meet the statutory standard for a fee waiver.  MRA asserts only that the Associate
General Counsel erred in her conclusion that the records were not required to be provided to
MRA under the ex parte rules or the Administrative Procedure Act (APA).  We have reviewed
the decision in this regard and find it was fully supported by law.  The documents at issue were all
dated in 1992 and 1993, and, under the ex parte rules then in effect, informal oppositions were
not required to be served on MRA.  Moreover, the ex parte requirements of the APA are not
applicable to the proceedings in question.  See 5 U.S.C.  557(d)(1)(E).  MRA claims the
Associate General Counsel's decision is inconsistent with another decision of OGC.  That
decision, however, involved documents dated in 1998, to which the current ex parte rules apply. 
The two decisions are thus not inconsistent.  We therefore deny the application for review.

     4.   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).

     5.   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