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                              Before the
                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               )


                            ORDER

   Adopted:  August 8, 2003             Released:     August 
11, 2003

By the Chief, Enforcement Bureau:

                      I.  INTRODUCTION

     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 
Enforcement Bureau.2  

                         II.  BACKGROUND                    

     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     


                         III.  DISCUSSION


     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 
DENIED.

     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 
(``Confidentiality Request'').   

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. 
1988).

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).