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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
ENTERCOM PORTLAND LICENSE, LLC ) EB-03-IH-0053
Licensee of Station KNRK(FM), ) Facility ID # 51213
Camas, Washington )
MEMORANDUM OPINION AND ORDER
Adopted: November 20, 2003 Released: November
By the Commission:
1. In this Order, issued pursuant to sections
0.459(g) and 1.115 of the Commission's rules,1 we deny the
August 18, 2003, Application for Review filed by Entercom
Portland License, LLC (``Entercom''),2 licensee of Station
KNRK(FM), Camas, Washington, which seeks Commission review
of the Enforcement Bureau's August 11, 2003, Order3 denying
its request for confidential treatment of material broadcast
over the station.
2. The Enforcement Bureau (``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.4 Upon review of the complaint, the
Bureau staff determined that the complainant provided
sufficient information to warrant an investigation. On May
28, 2003, the Bureau issued a letter of inquiry to Entercom,
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, 2003.5
3. Entercom timely filed a response to the Bureau's
letter that included a compact disc recording of the
material that the station had so broadcast.6 The response
also included a Confidentiality Request,7 which asked that
the compact disc be ``held confidential and not made
available for public inspection'' pursuant to section 0.459
of the Commission's rules.8
4. The Bureau subsequently issued an Order denying
Entercom's Confidentiality Request, finding that Entercom
had 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),9 as required by section
0.459 of the Commission's rules.10 Entercom timely filed
its Application for Review of the Bureau's Order as required
by section 0.459(g) of the Commission's rules.11 Entercom
argues that denial of its Confidentiality Request is
defective both procedurally and as a matter of substantive
law.12 Specifically, Entercom contends that the Bureau
exceeded its authority by requiring it to produce a
recording of more programming than was referenced in the
complaint.13 Thus, Entercom argues that its Confidentiality
Request was necessary to prevent public disclosure of
program material that had aired on KNRK(FM) while at the
same time complying with the Bureau's directive.14 For the
reasons set forth below, we reject Entercom's assertion that
the Bureau erred by denying its Confidentiality Request, and
therefore we deny its Application for Review.
5. The Commission's confidentiality rules are
designed to protect against the disclosure of competitively
sensitive material such as financial records, trade secrets
and personnel records.15 Section 0.459 creates a procedure
through which parties may request that information or
materials that they have submitted to the Commission not be
made routinely available for public inspection. The 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.16 Entercom requested confidential treatment
for recorded material broadcast over Station KNRK(FM) that
was the subject of a complaint. However, Entercom failed to
make the required showing under section 0.459. Under that
rule, a party requesting confidentiality must demonstrate by
a preponderance of the evidence that the material for which
confidentiality is requested falls within one of the Freedom
of Information Act (``FOIA'') exemptions.17 Entercom did
not claim that the recorded material is ``commercial or
financial, or contains a trade secret or is privileged''18
or falls within any other FOIA exemption, nor could it. The
courts and the Commission have consistently held that no
claim of confidentiality may be made if material has already
been made public.19 A recording of material broadcast over
the air does not qualify for confidential treatment under
the Commission's rules because it has already been openly
disseminated to the public.20 Although subsection
0.459(b)(9) of the rules does, as Entercom argues, permit
the submission of ``other information that the party
seeking confidential treatment believes may be useful in
assessing whether confidentiality should be granted,'' that
subsection does not obviate the need to satisfy the other
provisions of Section 0.459(b) and show that the material
falls within one of the FOIA exemptions.''
6. Moreover, Entercom cannot justify a request for
confidentiality by arguing that the Bureau exceeded its
authority by directing Entercom to produce a recording of
more material than was cited in the complaint.21 The scope
of the Bureau's authority to request the material has no
bearing on whether the material in question is of a kind
that is entitled to confidential treatment under the FOIA
and the Commission's implementing regulations. If Entercom
objected to the scope of the Bureau's directive, the
appropriate legal recourse would have been to request a
stay, 22 but Entercom did not do so.
7. We also reject Entercom's argument that the
Bureau's Order ruling on its Confidentiality Request was
contrary to Commission precedent and unnecessary in the
absence of any request for disclosure of the recorded
material broadcast over Station KNRK(FM).23 First,
Entercom's argument that the Bureau failed to strike the
appropriate balance between ``the concerns of the parties
submitting information and the interest of the public in
accessing information,''24 omits the fact that this
balancing test applies only when the material at issue meets
the criteria for confidential treatment.25 In this case, it
does not. Moreover, although section 0.459 provides that a
ruling upon a request for confidentiality may be deferred
until a request for inspection has been made, the Bureau had
full authority, within its discretion, to rule in the
absence of such a request. The practice of deferring
consideration of confidentiality requests is based upon
considerations of administrative efficiency,26 but the rule
also contemplates that a ruling may be made even in the
absence of a request for inspection.27 Here, given the
nature of Entercom's request, we believe that it was
appropriate for the Bureau to issue a ruling in order to
establish precedent that will deter the filing of similar
baseless requests in the future.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to sections
0.459(g) and 1.115 of the Commission's rules, 47 C.F.R. §§
0.459(g) and 1.115, that the Application for Review of filed
on August 18, 2003, by Entercom Portland License, LLC is
9. 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, has five (5) working
days from telephone notice of this decision to seek a
judicial stay of this decision. If Entercom seeks a
judicial stay, the compact disc recording of the material
broadcast over Station KNRK(FM) for which confidentiality is
requested will be treated as confidential until the court
acts on such a stay request.
10. 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
Marlene H. Dortch
1 47 C.F.R. §§ 0.459(g) and 1.115.
2 See Application for Review filed on behalf of Entercom
Portland License, LLC by Brian M. Madden, Esquire, Dennis P.
Corbett, Esquire, David S. Keir, Esquire, and Jean W. Benz,
Esquire, dated August 18, 2003 (``Application for Review'').
3 Entercom Portland License, LLC, 18 FCC Rcd 16386 (EB 2003)
4 See 18 U.S.C. § 1464; 47 C.F.R. § 73.3999.
5 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.
6 See Letter from Brian M. Madden, Esquire, Dennis P.
Corbett, Esquire, and Jean W. Benz, Esquire, Leventhal
Senter & Lerman PLLC, to Investigations and Hearings
Division, Enforcement Bureau, dated July 11, 2003.
7 See Memorandum from Brian M. Madden, Esquire, Leventhal,
Senter & Lerman PLLC, to Investigations and Hearings
Division, Enforcement Bureau, dated July 11, 2003
8 See Confidentiality Request.
9 Entercom Portland License, LLC, 18 FCC Rcd 16387-88 at ¶¶
10 47 C.F.R. § 0.459.
11 47 C.F.R. § 0.459(g).
12 Application for Review at 1.
13 Id. at 2-3.
15 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'').
16 47 C.F.R. § 0.459(b). These categories reflect the
exemptions from disclosure set forth in the FOIA, 5 U.S.C. §
552(b). Section 0.457 set forth 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).
17 47 C.F.R. § 0.459(d)(2).
18 47 C.F.R. § 0.459(b)(3). See, e.g., Letter to Mark J.
Tauber, Esquire and Paul W. Jamieson, Esquire, Piper
Rudnick, from Maureen F. DelDuca, Chief, Investigations and
Hearings Division, Enforcement Bureau, Federal
Communications Commission, 18 FCC Rcd 17644 (EB
2003)(denying a request for confidential treatment pursuant
to 0.459 where party seeking confidentiality failed to claim
information is commercial or financial, contains a trade
secret or is privileged).
19 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, 17020, n.81 (2002).
20 Entercom argues that the cases cited by the Bureau do not
support its premise that Entercom placed the material at
issue in the public domain because the party opposing
disclosure does not have the burden to demonstrate this
fact. Application for Review at 7-8. See Entercom Portland
License, LLC, 18 FCC Rcd at 16388, n. 16, citing Niagra
Mohawk Power Corp. v. United States Dep't of Energy, 169
F.3d 16, 19 (D.C. Cir. 1998). However, 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. 1988). Thus, once broadcast and
disseminated to the public, the material cannot be deemed
confidential, regardless of which party bears the burden of
proof. Indeed, the Commission has routinely released
transcripts of broadcasts that are the subject of a
complaint. See, e.g., Letter from Charles W. Kelley, Chief,
Investigations and Hearings Division, Enforcement Bureau, to
William McConnell, Assistant Editor, Broadcasting and Cable,
and Stephen A. Hildebrandt, Vice President, Infinity
Broadcasting Operations, Inc., dated November 20, 2002
(transcript and compact disc recording relating to an August
15, 2002, broadcast over WNEW(FM), including a pre-broadcast
version of the material, released in response to FOIA
request). Moreover, Entercom does not specifically
challenge the Bureau's citation to Anderson v. HHS, 907 F.2d
936, 952 (10th Cir. 1990), in which the court denied a claim
of confidentiality for material published in medical
21 We find that once a complainant makes a prima facie case
alleging the broadcast of indecent material, it is
appropriate for the Bureau to seek from the licensee a tape
or transcript not only of the material relevant to the
complaint, but also of a reasonable amount of preceding and
subsequent material, so that the full context of the
material can be evaluated. See, e.g., Infinity Broadcasting
Operations, Inc., Notice of Apparent Liability for
Forfeiture, FCC 03-234, n. 38 (Oct. 2, 2003); AMFM Radio
Licenses, LLC, FCC 03-233, n. 38 (Oct. 2, 2003).
22 See SBC Communications, Inc., Apparent Liability for
Forfeiture, Forfeiture Order, 17 FCC Rcd 7589, 7597 ¶ 19
23 Application for Review at 3-4.
24 Application for Review at 4.
25 Entercom cites the Confidential Treatment Order, 13 FCC
Rcd at 24824 ¶ 10 in support of its argument, but this text
makes clear that the balancing test is applied to material
that is entitled to confidential treatment. See also, Paul
D. Colford, The Daily News, 17 FCC Rcd 2073, 2075 ¶ 8
26 Confidential Treatment Order, 13 FCC Rcd at 24854-55 ¶¶