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                              Before the
                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 
24, 2003

By the Commission:

                      I.  INTRODUCTION

     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.    

                         II.  BACKGROUND                    

     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.   


                         III.  DISCUSSION


     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 
hereby DENIED.

     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
                         Secretary
_________________________

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) 
(``Bureau Order'').  

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 
(``Confidentiality Request'').

8 See Confidentiality Request.  

9 Entercom Portland License, LLC, 18 FCC Rcd 16387-88 at    
4-8.

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.

14 Id.  

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 
journals. 

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 
(2002)(forfeiture paid).

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 
(2002).     

26 Confidential Treatment Order, 13 FCC Rcd at 24854-55  
66-67.   

27 Id.