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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) EB-03-IH-0053
ENTERCOM PORTLAND LICENSE, LLC )
Licensee of Station KNRK(FM), ) Facility ID # 51213
Camas, Washington )
Adopted: August 8, 2003 Released: August
By the Chief, Enforcement Bureau:
1. In this Order, issued pursuant to sections 0.111,
0.311 and 0.459(c) and (d)(2) of the Commission's rules,1 we
deny the July 11, 2003, request of Entercom Portland
License, LLC (``Entercom''), licensee of Station KNRK(FM),
Camas, Washington, for confidential treatment of material
that it submitted in response to an inquiry by the
2. The Enforcement Bureau received a complaint that
alleged that Entercom had broadcast material over Station
KNRK(FM) on February 6, 2003, at approximately 3:30 p.m., in
violation of the Commission's rules restricting indecency.3
Upon review of the complaint, the Bureau staff determined
that the complainant provided sufficient information to
warrant an investigation. In order to investigate the
matter, on May 28, 2003, we sent Entercom a letter directing
it to provide information concerning the broadcast,
including recordings of the material identified in the
complaint or otherwise broadcast over Station KNRK(FM)
between 3:00 and 4:00 p.m. on February 6, 2003.4
3. Entercom timely filed a response to our letter
that included a compact disc recording of the material that
the station had so broadcast.5 The response also included
the Confidentiality Request at issue here, which asks that
the compact disc be ``held confidential and not made
available for public inspection'' pursuant to section 0.459
of the Commission's rules.6 In support of its request,
Entercom objects to the scope of our inquiry7 and states
that ``[t]he programming included on the compact disc has
not been available to the public since February 6, 2003 and
has not since been disclosed to any third parties, except
those parties that are working on behalf of KNRK, Entercom
or its affiliated stations.''8
4. The Freedom of Information Act (``FOIA'')9
requires the Commission to disclose agency records that are
reasonably described and requested by the public unless the
records contain information that fits within one or more of
the specifically listed categories of material that are not
routinely available for public inspection under one of the
relevant FOIA exemptions.10 If information or materials
submitted to the Commission do not fit within any of those
categories, the entity submitting them may request, on an ad
hoc basis, that the information be kept confidential and not
made routinely available for public inspection pursuant to
section 0.459 of the Commission's rules.11
5. The appropriate bureau chief will act on and grant
a confidentiality request upon a finding that the request
demonstrates by a preponderance of the evidence a case for
non-disclosure consistent with the provisions of the FOIA.12
In this regard, the request must demonstrate that, although
the information does not fall within one of the specific
categories listed in the FOIA, it nonetheless qualifies for
non-disclosure under one of the general FOIA exemptions.
6. In its Confidentiality Request, Entercom does not
specify the FOIA exemption under which it seeks confidential
treatment.13 Instead, it claims that the Bureau's directive
that it submit the recording of the hour of its station's
programming that contained the material that is the subject
of the complaint exceeds our authority because the Bureau
sought a recording of more programming than that complained
of in the complaint. Setting aside the merits of this
argument,14 Entercom cites no authority to support its bare
contention that its taking issue with the propriety of the
scope of the Bureau's request justifies confidential
treatment of the recording.
7. Entercom's claim that the programming contained on
the CD has not been available to the public since February 6
and has not since been disclosed to any third parties is
also insufficient to justify its request for confidential
treatment of the recording. Entercom does not dispute that,
on February 6, 2003, it broadcast to the public the material
that is the subject of its Confidentiality Request. 15
Thus, Entercom itself placed the material in question in the
public domain, and the Bureau's inquiry does not alter this
fact. Indeed, the courts and the Commission have
consistently held that no claim of confidentiality may be
made if material is already in the public domain.16
8. In view of the foregoing, we conclude that
Entercom has failed to demonstrate by a preponderance of the
evidence a case for non-disclosure of the recording of its
prior broadcast over Station KNRK(FM), as required by
section 0.459 of the Commission's rules. We therefore deny
Entercom's July 11, 2003, Confidentiality Request.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to sections
0.111, 0.311, and 0.459(c) and 0.459(d)(2) of the
Commission's rules, 47 C.F.R. §§ 0.111, 0.311, and 0.459(c)
and (d)(2), that the Confidentiality Request filed on July
11, 2003, by Entercom Portland License, LLC is hereby
10. IT IS FURTHER ORDERED, pursuant to section
0.459(g) of the Commission's rules, 47 C.F.R. § 0.459(g),
that Entercom Portland License, LLC, may file an application
for review of this denial with the Commission within five
(5) working days from the date of this Order.
11. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by facsimile and by Certified Mail Return
Receipt Requested to counsel for Entercom Portland License,
Brian M. Madden, Esquire, Leventhal Senter & Lerman PLLC,
2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1809 and by Certified Mail Return
Receipt Requested to Entercom Portland License, LLC, 410
City Avenue, Suite 409, Bala Cynwyd, Pennsylvania 19004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 0.111, 0.311, 0.459(c) and (d)(2).
2 See Memorandum from Brian M. Madden, Esq., Leventhal
Senter & Lerman PLLC, to Investigations and Hearings
Division, Enforcement Bureau, dated July 11, 2003
3 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.
4 Letter from Maureen F. Del Duca, Investigations and
Hearings Division, Enforcement Bureau, to Entercom Portland
License, LLC (DE), dated May 28, 2003, (``letter'') at 4.
5 See Letter from Brian M. Madden, Esq., Dennis P. Corbett,
Esq. and Jean W. Benz, Esq., Leventhal Senter & Lerman PLLC,
to Investigations and Hearings Division, Enforcement Bureau,
dated July 11, 2003.
6 See Confidentiality Request.
7 Id. at 1.
8 Id. at 2.
9 5 U.S.C. § 552.
10 See 47 C.F.R. 0.457; Examination of Current Policy
Concerning the Treatment of Confidential Information
Submitted to the Commission, Report and Order in GC Docket
No. 96-55, 13 FCC Rcd 24816 (1998), recon. denied, 14 FCC
Rcd 20128 (1999)(``Confidential Treatment Order'').
11 47 C.F.R. § 0.459(a). See Confidential Treatment Order,
13 FCC Rcd at 24821.
12 47 C.F.R. § 0.459(d). See Confidential Treatment Order,
13 FCC Rcd at 24822, citing Sandab Communications Ltd.
Partnership II, 11 FCC Rcd 11790, 11791 (1996); TR Cable of
Ramapo, 11 FCC Rcd 3538 (1996); GE American Communications,
Inc., 11 FCC Rcd 11497, 11498 n.3 (Internat'l Bur. 1996)..
13 See 47 C.F.R. § 0.459(b).
14 The Bureau requested a recording that contained not only
the complained-of material, but also 30 minutes broadcast
before and after the allegedly indecent material was aired,
to allow it to determine the context within which the
material had been broadcast. Consideration of this context
is a significant factor in the Commission's analysis to
determine whether particular broadcast material is indecent.
Industry Guidance on the Commission's Case Law Interpreting
18 U.S.C.. § 1464 and Enforcement Policies Regarding
Broadcast Indecency, 16 FCC Rcd 7999, 8002 ¶ 9 (2001)(``In
determining whether material is patently offensive, the full
context in which the material appeared is critically
important. It is not sufficient to know, for example, that
explicit sexual terms or descriptions were used, just as it
is not sufficient to know only that no such terms or
descriptions were used.'')(emphasis in original).
15 The Communications Act of 1934, as amended, defines
``broadcasting'' as ``the dissemination of radio signals
intended to be received by the public or by the intermediary
of relay stations.'' 47 U.S.C. § 153(6). See National
Association for Better Broadcasting v. Federal
Communications Commission, 849 F.2d 665, 671 (D.C. Cir.
16 See Niagra Mohawk Power Corp. v. United States Dep't of
Energy, 169 F.3d 16, 19 (D.C. Cir. 1998)(Exemption 4 cannot
be used to protect information already in the public
domain); Anderson v. HHS, 907 F.2d 936, 952 (10th Cir.
1990); Accounting Safeguards Under the Telecommunications
Act of 1996: Section 272(d) Biennial Audit Procedures, 17
FCC Rcd 17012, 17012, n.81 (2002).