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                                             DA 03-2721

Mark J. Tauber, Esquire
Paul W. Jamieson, Esquire
Piper Rudnick
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 
Star's Request.5

     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 
upon the 



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 
rules.17




     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 
confidential treatment.  

                                   Sincerely,




                                   Maureen F. Del Duca, Chief
                                   Investigations and Hearings 
Division
                                   Enforcement Bureau
_________________________

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 
``LOI'').

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).

10 Id.

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 
(2000).

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.