For Record Only $//The Conspiracy FOIA FCC 95-23//$ $/0.461 Request for inspection of materials not routinely availabl/$ $/15.239 Operation in the band 88-108 MHz/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-23 In the Matter of ) ) The Conspiracy ) FOIA Control No. 94-160 ) On Request for ) Inspection of Records ) MEMORANDUM OPINION AND ORDER Adopted: January 12, 1995 Released: January 13, 1995 By the Commission: 1. The Commission has under consideration an Application for Review filed by The Conspiracy, the newspaper of the San Francisco- Bay Area Chapter of the National Lawyers Guild. The appeal seeks review of an initial ruling made by the former Field Operations Bureau (FOB), concerning the denial of The Conspiracy's Freedom of Information Act (FOIA) request. 5 U.S.C.  552. Letter from Beverly G. Baker, Chief, FOB, to Betsy Johnson, Editor, The Conspiracy (October 14, 1994). The request relates to unauthorized broadcasts, in 1993, by Stephen Paul Dunifer in the vicinity of Berkeley, California. I. BACKGROUND 2. In April 1993, the FOB's San Francisco office received information from two individuals indicating that an unauthorized FM radio transmitter was operating on 88.1 MHz in the San Francisco Bay area. Declaration of Philip M. Kane (Kane) at  9. A subsequent investigation spanning several months in 1993 and 1994 by FOB engineers, involving the use of electronic radio direction- finding equipment and other techniques, disclosed that Dunifer was engaging in unauthorized radio operations in violation of Section 301 of the Communications Act of 1934, as amended, 47 U.S.C.  301. The radio transmissions were on 88.1 MHz, a frequency set aside for non-commercial educational FM broadcast stations. Additionally, non-licensed, low-power transmitters may use that frequency provided that they comply with certain technical specifications. See 47 C.F.R.  15.239(b). The FOB investigation determined that Dunifer's radio operations exceeded the authorized field strengths for non-licensed transmissions. Moreover, Dunifer's operations were observed to cause interference to radio stations KQED-FM, San Francisco, California, and KECG(FM), El Cerrito, California. Declaration of David K. Hartshorn at  15; Declaration of William R. Zears, Jr. at  13; Kane Declaration at  24. 3. The FOB, acting pursuant to Section 503(b) of the Communications Act, 47 U.S.C.  503(b), imposed a $20,000 forfeiture against Dunifer on November 8, 1993 for two unlicensed broadcasts occurring on April 25 and May 2, 1993. Stephen Paul Dunifer, NAL/Acct. No. 315SF0050 (FOB Nov. 8, 1993), application for review pending. 4. On October 6, 1994, the United States brought suit under Section 401(a) of the Communications Act, 47 U.S.C.  401(a), against Dunifer in the United States District Court for the Northern District of California. That suit seeks injunctive and declaratory relief and is based on 24 separate and unauthorized broadcasts occurring from April 25, 1993 to May 8, 1994. United States v. Dunifer, No. C94 3542 CW (see n. 3 above). II. FOIA REQUEST 4. The Conspiracy's FOIA request, filed on May 19, 1994, noted an August 1993 newspaper article in which Philip M. Kane, the Engineer in Charge of the FOB's San Francisco office, was attributed with the claim that his office had received complaints from "several" licensed stations. Express, Aug. 13, 1993 at 14. The FOIA request asked the Commission "to inform us of:" the details regarding these complaints, which stations filed them, the dates of the complaints, the nature of the complaints, and the FCC's response to them. 5. In its October 14, 1994 letter ruling, the Bureau responded that several informal inquiries or complaints, regarding why stronger action had not been taken against Dunifer, had been received from local broadcast engineer and consultant sources. The FOB explained that the complaints and inquiries were made in person or by telephone and that no documents or other records were compiled regarding such communications. Additionally, the FOB noted that the individuals responsible for the inquiries and complaints had expressly requested confidentiality. Thus, the FOB found that, even if records of these complaints did exist, the identities of the individuals were exempt from mandatory disclosure under 5 U.S.C.  552(b)(7)(D) and 47 C.F.R.  0.457(g)(4). III. APPLICATION FOR REVIEW 6. The Conspiracy challenges the FOB's claim that no records of these inquiries and complaints exist. The Conspiracy assumes that records of these complaints would routinely have been kept. Moreover, The Conspiracy asserts that because its request sought information concerning the Commission's response to citizen complaints, the Commission should have disclosed all information concerning the monitoring of Dunifer's operations. The Conspiracy suggests that such documentation should include field notes of Commission investigators and records compiled by the Commission respecting Dunifer's Internet postings publicizing his operations. 7. Additionally, The Conspiracy contends that the Commission waived the confidentiality of any alleged complaints by stations KQED-FM and KECG(FM) because they appear to have been mentioned in a newspaper article which reported an interview of FCC counsel concerning the pending district court litigation. 8. The Conspiracy further requests that, if its application for review is denied pursuant to 47 C.F.R. 0.461(i), it should be treated as a new FOIA request covering all materials in the Commission's possession regarding Dunifer's broadcasts and activities. IV. DISCUSSION 9. We will deny The Conspiracy's application for review. The Conspiracy has shown no basis to believe that, contrary to the express representations of Commission staff, any record was made or ever existed reflecting the informal inquiries and complaints referred to in The Conspiracy's FOIA request. We have no reason to believe that these informal contacts were of a type that would have been recorded in the ordinary course of business. In fact, the public inquiries seem to be duplicative and, therefore, redundant of information already received and compiled by the Commission. 10. As the sworn declarations indicate, the FOB initiated its investigation of Dunifer's illegal broadcasts after receiving information from two individuals in April 1993. Information, indicating numerous and ongoing violations of the Communications Act by Dunifer, was developed by FOB investigators during the course of their investigation. Thus, there is no reason to infer that the inquiries and complaints referred to by The Conspiracy had any singular significance that would have warranted making a public record of them, especially since those making the contacts wished to remain anonymous and the information furnished tracked the intelligence already gathered by the staff. 11. Similarly, because the inquiries and complaints referred to by The Conspiracy did not give rise to or precipitate the investigation of Dunifer, the investigation therefore was not a "response" to these inquiries and the materials developed during the investigation, e.g., notes and memoranda of FCC engineers investigating Dunifer's illegal broadcasts, were not within the scope of the FOIA request. In this regard, we do not adopt The Conspiracy's overly literal interpretation of the FOB's statement that: "the San Francisco Field Office response was to continue to schedule field enforcement work to gather probative evidence of any Communications Act violations involving Mr. Dunifer." Letter from Baker to Johnson at 1. We read the Bureau's letter to mean that it made no specific response to the public contacts but merely continued its ongoing investigation. 12. Moreover, there is no support for The Conspiracy's contention that the Commission indicated that stations KQED-FM and KECG(FM) were the complainants and that the Commission thereby waived the confidentiality of their identities. The sworn declarations further indicate that interference to these stations was observed by the FOB investigators, not that the stations had made the complaints. Paragraph 2, supra. The interference to KECG(FM) was observed by an FCC engineer on January 16, 1994, and thus could not have been the subject of the August 1993 newspaper article. See  4 above. To the extent that the newspaper article relied on by The Conspiracy suggests that KECG(FM) was one of the complainants to the Commission, the article is inconsistent with the declarations to which it refers. San Francisco Daily Journal, Nov. 28, 1994. 13. Although we find that the Bureau was entirely justified in its response to The Conspiracy's request, we note that The Conspiracy has clarified the scope of the records it now seeks in its application for review. In this connection, however, we believe that it would best conduce to efficient administration of the public's business for The Conspiracy to file a new request covering any material outside the scope of its original request. V. ORDER 14. In view of the reasons explained above, IT IS ORDERED, That the Application for Review, filed on December 14, 1994, by The Conspiracy IS DENIED. The Requester may seek judicial review of this decision pursuant to 5 U.S.C. 552(a)(4)(B). 15. The Officials responsible for this action are the following Commissioners: Reed E. Hundt, Chairman, James H. Quello, Andrew C. Barrett, Rachelle B. Chong, and Susan Ness. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary