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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) CHADMOORE COMMUNICATIONS, INC. ) FOIA Control No. 97-308 ) on Request for Inspection ) of Records ) ) In the Matter of ) ) MOBEX COMMUNICATIONS, INC. ) FOIA Control No. 98-139 ) on Request for Inspection ) of Records ) MEMORANDUM OPINION AND ORDER Adopted: November 13, 1998; Released: November l6, l998 By the Commission: 1. The Commission has under its consideration two applications for review involving Freedom of Information Act (FOIA) requests for related agency records. Chadmoore Communications, Inc. (Chadmoore), seeks review of the denial of its FOIA request (as subsequently amended) for the list of licensees similarly situated to the licensees who were granted relief in the Commission's Goodman/Chan I decision. Mobex Communications, Inc. (Mobex), seeks review of the denial of its FOIA request for the Goodman/ChanI list of licensees. On our own motion, we consolidate the two applications for review. For the reasons discussed below, Chadmoore's application for review is dismissed as moot, and Mobex's application for review is granted. Background 2. These FOIA requests arise from the Goodman/Chan proceeding. The Federal Trade Commission (FTC) brought a complaint in Federal district court alleging that four companies (hereinafter, the "Receivership Companies") defrauded approximately 4,000 individuals seeking licenses for 800 MHz conventional SMR licenses on General Category channels and misled those individuals as to the Commission's rules. The court froze the assets of the four companies and appointed a receiver. 3. Daniel R. Goodman (Goodman), court-appointed receiver of the Receivership Companies, and Dr. Robert Chan (Chan), a licensee of five stations obtained through the Receivership Companies, each then sought a waiver of the Commission's rules to permit SMR licensees who had received licenses with the help of the Receivership Companies additional time to construct their stations. Goodman provided, and then amended, a list of the licensees (the Affected Licensees) on whose behalf a waiver was sought. Goodman sought confidentiality for the list of Affected Licensees, and the FTC supported this request. The Commercial Wireless Division issued an order (Confidentiality Order) granting the request for confidentiality based on its belief that licensees who had obtained their licenses through the efforts of the Receivership Companies had a privacy interest in the compilation of the listing and because it believed the licensees could be subject to harassment and other deceptive tactics if their names were released. In addition to the Affected Licensees, an additional group of SMR licensees sought the same relief as those on the Goodman/Chan list. The names of these licensees, however, were not subject to the Confidentiality Order. 4. The waiver sought by Goodman and Chan was granted in part in Goodman/Chan I, effective upon publication in the Federal Register. However, the waiver decision was not published in the Federal Register until the Commission resolved post- Goodman/Chan I petitions and motions in Goodman/Chan II. The Goodman/Chan II decision was intended to resolve all outstanding issues in the proceeding, to allow licensees to construct or transfer their licenses, and to give prospective bidders a clear idea on available spectrum in the upcoming lower band auction. The FOIA Requests 5. Chadmoore's FOIA request sought "[a] current list of licensees to whom the Commission will extend the relief sought by Daniel R. Goodman and ultimately granted by the May 24, 1995, Order published at 10 FCC Rcd 8537 [Goodman/Chan I]." Mobex sought "[t]he current 'Goodman Chan' (FCC 95-211) list of approximately 4,000 licensees granted a construction waiver by the FCC." The Bureau denied both requests based on its Confidentiality Order. In its application for review, Chadmoore argues that the additional licensees who are entitled to the Goodman/Chan I relief are not subject to the Confidentiality Order, and that their names should be released. Chadmoore subsequently clarified that it was only seeking "the identity of the GX [General Category] 800 MHz SMR licensees, other than those contained on Goodman's list, that will be accorded the relief provided by the Goodman/Chan Order." Mobex asserts that in light of the issuance of the Goodman/Chan II decision, it believes there is no basis for continued confidential treatment of the Goodman/Chan list of the Affected Licensees. Decision 6. On October 9, 1998, the Bureau, in response to another FOIA request, released the listing of other SMR licensees eligible to receive the same relief as the Affected Licensees. Therefore, since the Bureau has now publicly disclosed the requested information, Chadmoore's application for review of the Bureau's withholding of these records is dismissed as moot. For the reasons stated below, we also conclude that the list of Affected Licensees is not entitled to confidential treatment. Mobex's application for review is therefore granted. 7. The Bureau's decision to keep the list of Affected Licensees confidential was based on the privacy interests of the licensees and the fear that the licensees could be subject to harassment and other deceptive tactics. See Confidentiality Order. The FTC also supports confidentiality based on privacy concerns, because it believes the licensees might be subjected to repeated fraudulent sales pitches. We conclude, however, that the information in question does not qualify for withholding under either of the FOIA exemptions which authorize agencies to withhold information to protect "personal privacy" interests. See 5 U.S.C.  552(b)(6) and (7)(C); see generally United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). Exemption 6 permits withholding information when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Exemption 7(C) provides for the protection of law enforcement information the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy." However, there are no personal privacy interests at stake here. Even though the majority of the names on the list of Affected Licensees are individuals, they are listed in their status as holders of commercial radio licenses, a capacity in which they have neither a personal privacy interest nor an expectation of privacy. See 47 C.F.R.  0.453(l) (all authorizations in private radio services publicly available); see also Sims v. CIA, 642 F.2d 562, 572 n.47 (D.C. Cir. 1980); National Parks and Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 n.44 (D.C. Cir. 1976); Ivanhoe Citrus Ass'n v. Handley, 612 F. Supp. 1560, 1567 (D.D.C. 1985) (individuals acting in a business capacity have little or no expectation of privacy). Even assuming that these commercial licensees have a privacy interest, it is at most de minimis and is far outweighed by the public interest in publicly disclosing information about commercial licensees who have been granted rule waivers in Commission proceedings. See 47 U.S.C.  154(j) (Commission proceedings shall be public upon the request of any party interested). Therefore, the list of Affected Licensees will be made public. 8. For the reason just discussed, Goodman's objections to the release of the list are without merit. FOIA Exemptions 6 and 7(C) are inapplicable here. Goodman also argues that the list was compiled in conjunction with law enforcement proceedings and therefore the names of the individual Affected Licensees should be withheld under Exemption 7(C). In addition to the reasons discussed above, the list of Affected Licensees cannot be withheld under Exemption 7(C) because the records were not "compiled for law enforcement purposes." The list of Affected Licensees was compiled for Goodman's waiver request before this agency. Cf. Reed v. NLRB, 927 F.2d 1249, 1252 (D.C. Cir. 1991), citing Birch v. United States Postal Serv., 803 F.2d 1206, 1209-10 (D.C. Cir. 1986) (for agencies performing both law enforcement and administrative functions, only "investigations which focus directly on specifically alleged illegal acts" are covered by Exemption 7). Ordering Paragraphs 9. Accordingly, IT IS ORDERED that the Chadmoore and Mobex Applications for Review are consolidated for disposition. 10. IT IS FURTHER ORDERED that Chadmoore's Application for Review is DISMISSED AS MOOT and Mobex's Application for Review IS GRANTED. Goodman will first be afforded ten (10) working days from the release date of this Order during which he may seek judicial review of our decision to disclose the names of the Affected Licensees pursuant to 5 U.S.C.  552(a)(4)(B) and 47 C.F.R.  0.461(i)(4). 11. The Officials responsible for this action are the following Commissioners: Chairman Kennard, Commissioners Ness, Furchtgott-Roth, Powell and Tristani. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary