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Mark J. Tauber, Esquire
Paul W. Jamieson, Esquire
1200 19th Street, NW
Washington, D.C. 20036-2412
Re: Request for Confidentiality Pursuant
to 47 C.F.R. § 0.459
Dear Messrs. Tauber and Jamieson:
Star Wireless LLC (``Star'') has requested1 that the
Commission grant confidential treatment, pursuant to Section
0.459 of the Commission's rules,2 to the contents and existence
of certain documents that it has provided in its response to a
Commission letter of inquiry.3 Specifically, Star requests that
the information that it provided in a letter to the Commission
dated July 16, 2003, as supplemented on July 22, 2003, be treated
as confidential.4 For the reasons discussed below, we deny
Section 0.459, the confidentiality rule, creates a procedure
by which parties may request that information or materials that
they have submitted to the Commission not be made routinely
available for public inspection. The confidentiality rule
requires that a party seeking confidentiality provide a
statement of the reasons for withholding the materials in
question from public inspection and set forth the specific
categories of materials for which such treatment is appropriate.6
Star has failed to make this required showing. For instance,
Star does not claim that the information that it submitted to the
Commission is ``commercial or financial, contains a trade secret
or is privileged.''7 Instead, it speculates that disclosure of
the information contained in its Response ``would almost
certainly result in competitive harm to Star Wireless and/or its
affiliates and abuse of the Commission's pleading process.''8
Specifically, Star maintains that the public disclosure of its
Response may result in abuse of the Commission's processes by a
third party that has filed pleadings in opposition to an
application of a Star affiliate.9 Star argues that this
petitioner and other parties that are ``competitors'' may somehow
``seize upon'' the information that Star has provided, to its
detriment and that of its affiliates.10
Star's Request appears to be premised on the assumption that
the Commission's procedures are insufficient to deter abuse of
our processes and that the Commission may fail to impose
appropriate sanctions for such abuse. We strongly disagree.
The Commission has repeatedly indicated that it is prepared to
impose sanctions for abuse of administrative process.11 To the
extent that Star is concerned that third parties, acting in good
faith, may file pleadings against it and/or its affiliates based
information contained in its Response, our confidentiality rules
may not be used as a shield against claims that may arise through
the discovery of non-confidential information.
Star also maintains that the Commission auction bidding
information that it submitted in its Response is ``competitively
sensitive'' in that it could alert others to its or its
affiliates' bidding strategy in future auctions. The bidding
chart that Star has submitted consists of a chronological listing
of its bids in a long-since completed auction, data that is, in
fact, publicly available. For that reason alone, Star cannot
claim confidentiality for such material.12 The only information
that Star provided that is not so available is its stated reason
for having placed each bid in the auction, which is identical for
each bid. The rationale that Star has provided for its having
placed each bid is so generic as to be meaningless, providing no
relevant insight into its bidding strategy other than that Star
bid for the licenses in which it was interested. Star has not
demonstrated, nor can we discern, how making such information
public could cause Star any competitive harm.
Star also maintains that the Commission should keep the
information contained in its Response confidential in order to
provide an incentive to it and others ``to provide complete
responses to Commission inquiries without fear that the
information provided will be used in an anti-competitive manner
by other parties.''13 All Commission licensees and applicants
are required to respond truthfully and candidly to Commission
inquiries.14 ``The requirement for absolute truth and candor
from those appearing before the Commission is fundamental because
the Commission must rely on the completeness of the submissions
made to it by applicants.''15 As an applicant before the
Commission, Star had (and has) an affirmative obligation to
respond fully to the LOI, regardless of the possible disposition
of that information by the Commission. Its suggestion that the
Commission agree to withhold its Response from the public to
somehow induce it to comply with this requirement of the rules is
wholly inappropriate and we reject it.16
Accordingly, for the reasons discussed above, we DENY Star's
Request for confidential treatment. This action is taken under
delegated authority pursuant to Section 0.311 of the Commission's
Pursuant to section 0.459(g) of the Commission's rules, 18
Star may, within five (5) working days, file an application for
review by the Commission. If the application for review is
denied, Star will be afforded five (5) working days within which
to seek a judicial stay of the ruling. If these periods expire
without action by Star, its Response will be placed in a public
file. Star's Response, however, will be accorded confidential
treatment, as provided for in sections 0.459(g) and 0.461,19
until the Commission acts on any timely applications for review
of an order denying a request for confidentiality, and until a
court acts on any timely motion for stay of such an order denying
Maureen F. Del Duca, Chief
Investigations and Hearings
1 Letter from Mark J. Tauber and Paul W. Jamieson, counsel for
Star, to Judy Lancaster, Esquire, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission,
dated July 16, 2003 (the ``July 16 Letter''); Letter from Mark J.
Tauber, Esquire, to Judy Lancaster, Esquire, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission, dated July 22, 2003 (the ``July 22 Letter'')
(collectively, the ``Request'').
2 47 C.F.R. § 0.459.
3 Letter from Maureen F. Del Duca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal Communications
Commission to David. G. Behenna, dated July 2, 2003 (the
4 See Letter from David G. Behenna to Judy Lancaster, Esquire,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated July 16, 2003. By the July 22
Letter, counsel for Star provided an attachment referred to in,
but omitted from, Mr. Behenna's letter, and incorporated by
reference its confidentiality request detailed in the July 16
Letter. (Mr. Behenna's letter and the July 22 Letter are
referred to herein as the ``Response.'') Counsel for Star agreed
to narrow the scope of its confidentiality Request in a telephone
conversation with Commission staff on August 26, 2003. This
order addresses the Request as so narrowed.
5 By Letter to E. Ashton Johnson, Esquire and Paul W. Jamison,
Esquire, from Margaret W. Wiener, Chief, Auctions and Industry
Analysis Division, Wireless Telecommunications Bureau, Federal
Communications Commission (DA 03-2681, rel. Aug. 15, 2002), the
Wireless Telecommunications Bureau denied a similar request by
Star with regard to other materials that it submitted to the
Commission regarding this matter.
6 47 C.F.R. § 0.459(b). Section 0.457 sets forth the categories
of records that are not routinely available for public
inspection, i.e., accorded confidential treatment, and Section
0.459 sets forth the procedures for submitting requests that
material or information be withheld from public inspection. For
instance, Section 0.459(b)(3) provides that a request for
confidentiality shall, among other things, include an
``explanation of the degree to which the information is
commercial or financial, or contains a trade secret or is
privileged.'' 47 C.F.R. § 0.459(b)(3).
7 47 C.F.R. § 0.459(b)(3).
8 Request at 2.
9 The term ``abuse of process'' has been defined as ``the use of
a Commission process, procedure or rule to achieve a result which
that process, procedure or rule was not designed or intended to
achieve or, alternatively, use of such process, procedure, or
rule in a manner which subverts the underlying intended purpose
of that process, procedure, or rule.'' Formulation of Policies
and Rules Relating to Broadcast Renewal Applicants, Competing
Applicants, and Other Participants to the Comparative Renewal
Process and to the Prevention of Abuse of the Renewal Process,
First Report and Order, 4 FCC Rcd 4780, 4793 n.3 (1989); see
Silver Star Communications-Albany, Inc., Memorandum Opinion and
Order, 3 FCC Rcd 6342, 6352 ¶ 41 (1988); Amendment of Sections
1.420 and 73.3584 of the Commission's Rules Concerning Abuses of
the Commission's Process, Notice of Proposed Rulemaking, 2 FCC
Rcd 5563, 5563 ¶ 2 (1987); see also Policy Regarding Character
Qualifications In Broadcast Licensing, Report, Order and Policy
Statement, 102 FCC 2d 1179 (1986), recon. granted in part and
denied in part, 1 FCC Rcd 421 (1986), appeal dismissed mem. sub
nom National Assoc. for Better Broadcasting v. FCC, No. 86-1179
(D.C. Cir. June 11, 1987) (strike pleadings, harassment of
opposing parties, and violation of ex parte rules constitute
abuse of process).
11 See Commission Taking Tough Measures against Frivolous
Pleadings, Public Notice, 11 FCC Rcd 3030 (1996) (``the Federal
Communications Commission reminds parties to our proceedings and
their attorneys that our rules prohibit the filing of frivolous
pleadings or pleadings filed for the purpose of delay in
proceedings before the Commission or its staff.'').
12 See In re Mercury PCS II, LLC, 2000, 15 FCC Rcd 14559, 14563
13 Response at 4.
14 See 47 C.F.R. § 1.17.
15 Liberty Cable Co., Inc., 15 FCC Rcd 25050, 25071 (2000),
recon. denied, 16 FCC Rcd 16105 (2001), citing Swan Creek
Communications v. FCC, 39 F.3d 1217, 1222 (D.C. Cir. 1994); Sea
Island Broadcasting Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir.
1980), cert. denied, 449 U.S. 834 (1980). See also Contemporary
Media, Inc., et al. v. FCC, 214 F3d 187 (D.C. Cir. 2000).
16 See In the Matter of Accounting Safeguards Under the
Telecommunications Act of 1996: Section 272(D) Biennial Audit
Procedures, 17 FCC Rcd 17012, 17016-17 (2002).
17 47 C.F.R. § 0.311.
18 47 C.F.R. § 0.459(g).
19 47 C.F.R. §§ 0.459(g), 0.461.