Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Antenna Systems & Supplies, Inc. ) File No. EB-05-SE-
109
Schaumburg, Illinois )
ORDER
Adopted: November 28, 2005 Released: November
30, 2005
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Order, we grant in part and deny in part a
request for confidential treatment of material submitted
by Antenna Systems & Supplies, Inc. (``AS&S'') in
response to a letter of inquiry (``LOI'').
II. BACKGROUND
2. On March 7, 2005, the Spectrum Enforcement Division
(``Division'') of the Enforcement Bureau sent Sandown
Wireless, a distributor of AS&S's products, an LOI
seeking information and documents concerning its
marketing of cell phone jammers and multi-purpose jammers
to state and local law enforcement agencies in the United
States in apparent violation of Section 302(b) of the
Communications Act of 1934, as amended (``Act''), and
Section 2.803 of the Commission's Rules (``Rules'').1 On
behalf of Sandown, AS&S submitted a response to this LOI
on March 25, 2005.2 AS&S included with its response a
confidentiality request, in which AS&S asked that ``all
documents found within a directory (CD-ROM) and an
appendix (printed) named CONFIDENTIAL or marked
CONFIDENTIAL be held in confidence and not be made
available for public inspection.'' AS&S stated that
``[t]he specific information for which confidential
treatment is sought is a) customer names and addresses,
b) product serial numbers and specifications, c) prices,
and d) sales presentation materials.'' AS&S also marked
as ``confidential'' certain other information and
documents that do not fall within any of these four
categories. Specifically, AS&S marked as
``confidential'' its responses to questions concerning
when AS&S began manufacturing and marketing the cell
phone jammers, how many of the devices have been
manufactured and distributed in the United States, where
AS&S manufactured the devices, and whether or not it
continues to manufacture these devices. Additionally,
AS&S marked as ``confidential'' several sales invoices
for its cell jammers, a letter to AS&S from a customer
concerning one of its cell jammers, and a copy of a draft
SAFETY Act Application3 for AS&S's cell jammers, dated
March 21, 2005.
3. In support of its request for confidentiality in its
March 25, 2005 response, AS&S asserted that ``[t]he
information comprises commercial and financial
information as well as trade secret information.''4 In
addition, AS&S stated that ``the information concerns a
product and technology that are subject to competition''5
and that ``[d]isclosure of this information could harm
[AS&S] by making known the names of its customers, its
prices and its product information to its competitors.''6
AS&S also noted that it maintains physical control of its
confidential information in its office, which has
security safeguards designed to prevent unauthorized
entry.7 AS&S further stated that its sales invoices are
not made available to the public and that its sales
presentations are restricted to potential customers who
are law enforcement agencies or who are authorized
distributors.8 Finally, AS&S asserted that ``because of
national security issues that are involved,'' this
material should never be available for public
inspection.9
III. DISCUSSION
4. Section 0.459 of the Rules establishes a procedure by
which parties may request that information or materials
that they have submitted to the Commission not be
routinely available for public inspection.10 This 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.11 The standards of this section are
governed by the Freedom of Information Act (``FOIA''),
and the requesting party must show ``by a preponderance
of the evidence'' that non-disclosure is consistent with
the pertinent provision of FOIA.12
5. Exemption 4 of the FOIA permits the Commission, in
its discretion, to withhold from disclosure any
documents containing either (1) trade secrets or (2)
information which is (a) commercial or financial, and (b)
obtained from a person, and (c) privileged or
confidential.13 Further, commercial or financial
information is privileged or confidential if either (1)
disclosure of the information is likely to impair the
government's ability to obtain necessary information in
the future or (2) disclosure is likely to cause
substantial harm to the competitive position of the
person from whom the information was obtained.14 The
Commission has found that ``the entity or person seeking
confidentiality must show that substantial competitive
injury is likely to result from disclosure. While an
elaborate economic analysis need not be made to establish
the likelihood of substantial competitive injury,
`conclusory and generalized allegations' cannot support
nondisclosure.''15
6. We find that AS&S has demonstrated in accordance
with our rules that certain of the information provided
in response to the LOI contains trade secrets, commercial
or financial or privileged information, the disclosure of
which could result in substantial competitive harm.16
Specifically, we find that AS&S has demonstrated that its
customer names and addresses are commercial information
and should be accorded confidential treatment. Indeed,
the Commission has acknowledged that ``customer records
are among the most basic business records that a company
uses in furtherance of its commercial activities.''17
Disclosure of AS&S's customer records could result in
substantial competitive harm because its competitors
could use this information to solicit its customers.
Likewise, we find that disclosure of AS&S's price lists,
sales invoices and sales presentation materials could
result in substantial competitive harm and should be
treated confidentially. AS&S explained that this
information is not made available to the public and
described the security measures it takes to maintain
control over this information. We also grant
confidential treatment to the number of devices that AS&S
has manufactured and distributed in the United States.
Such information could be used by its competitors to
approximate its market share. Finally, we will accord
confidential treatment to AS&S's draft SAFETY Act
application.
7. Thus, we find that AS&S has demonstrated that the
following portions of documents submitted in response to
the LOI should be accorded confidential treatment:
· Response to LOI, Page 1/3 of ``Confidential
Answers,'' Responses (b) and (c);
· Response to LOI, Page 2/3 of ``Confidential
Answers,'' Response (c); and
· Response to LOI, Page 3/3 of ``Confidential
Answers,'' all of the attached documents listed in
items 1-3, Invoice No. 106125 listed in item 4,
and all of the attached documents listed in items
5-9.
8. We find, however, that AS&S's request for
confidentiality of the other information marked as
``confidential'' in its LOI response is overbroad and
fails to comply with the standards set forth in Section
0.459 of the Rules. The Commission's rules make clear
that casual requests for confidentiality that do not
comply with the requirements of Section 0.459 will not be
considered.18 Further, the LOI explicitly warned that
requests for confidential treatment must comply with the
requirements of Section 0.459, including the standards of
specificity mandated by Section 0.459(b), and that the
Bureau will not consider confidentiality requests that do
not comply.19 Although AS&S seeks confidentiality for
its product serial numbers and specifications, this
information is publicly available on its website and was
also previously available on the website of its
distributor, Sandown. Similarly, while AS&S requested
confidential treatment of a letter from a customer
concerning one of its cell phone jammers, the Division
staff observed that this letter was previously posted on
the website of AS&S's distributor, Sandown. AS&S also
requested confidentiality of its responses to questions
concerning when it began manufacturing and marketing the
cell phone jammers, where AS&S manufactured the devices,
and whether or not it continues to manufacture these
devices. Because AS&S did not explain the degree to
which this information is commercial or financial or
contains a trade secret as required by Section
0.459(b)(3), or explain how disclosure of such
information could result in substantial competitive harm
as required by Section 0.459(b)(5), we deny its request
for confidentiality of this information.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to Sections 0.111,
0.311, 0.459(c) and 0.459(d)(2) of the Rules,20 that the
Confidentiality Request filed on March 25, 2005 by
Antenna System and Supplies, Inc. IS GRANTED IN PART AND
DENIED IN PART as described herein.
10. IT IS FURTHER ORDERED, pursuant to Section 0.459(g) of
the Rules, that Antenna System and Supplies, Inc. may
file an application for review of this denial with the
Commission within five (5) working days of this Order.
11. IT IS FURTHER ORDERED that a copy of this Order shall
be sent via facsimile, first class mail and certified
mail, return receipt requested, to Sheldon L. Epstein,
Esq., counsel for Antenna System and Supplies, Inc., P.O.
Box 400, Wilmette, Illinois 60091-0400.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
1Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Keith Clark, President,
Sandown Wireless (March 15, 2005) (``LOI'').
2Response from Sheldon L. Epstein, counsel for AS&S, to
Katherine Power, Spectrum Enforcement Division, Enforcement
Bureau (March 25, 2005) (``Response to LOI'').
3As part of the Homeland Security Act of 2002, Public Law
107-296, Congress enacted the SAFETY Act to provide ``risk
management'' and ``litigation management'' protections for
sellers of qualified anti-terrorism technologies and others
in the supply and distribution chain. Specifically, the
SAFETY Act creates certain liability limitations for
``claims arising out of, relating to, or resulting from an
act of terrorism'' where qualified anti-terrorism
technologies have been deployed. Sellers that wish to be
awarded SAFETY Act protections for such technologies must
submit an application to the Department of Homeland
Security.
4Response to LOI at 1.
5Id.
6Id. at 2.
7Id.
8Id.
9Id.
1047 C.F.R. § 0.459.
1147 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).
1247 C.F.R. § 0.459(d). See also 5 U.S.C. § 552, et seq.
135 U.S.C. § 552(b)(4).
14See Critical Mass Energy Project v. NRC, 975 F.2d 871
(D.C. Cir. 1992). In cases involving financial or
commercial information that was supplied voluntarily to the
government, Exemption 4 applies if the provider would not
customarily release the information to the public. Id. at
879-880. See also, TKR Cable Company of Ramapo, 11 FCC Rcd
3538 at 3538 (1996).
15National Exchange Carrier Ass'n, Inc., 5 FCC Rcd 7184
(1990) (quoting Nat'l Parks and Conservation Ass'n v.
Kleppe, 547 F.2d 673, 680-81 (D.C. Cir. 1976)).
1647 C.F.R. § 0.459(b)(3).
17Mobile Relay Associates, 14 FCC Rcd 18919, 18922 (WTB,
1999).
18 See 47 C.F.R. § 0.459(c).
19LOI at 3.
2047 C.F.R. §§ 0.111, 0.311, 0.459(c) and 0.459(d)(2).