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AT&T, Inc. v. FCC & USA, 08-4024 (3rd Cir.)

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Released: December 31, 1969
Case: 08-4024 Document: 00314857657 Page: 1 Date Filed: 01/16/2009

BRIEF FOR RESPONDENTS

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

08-4024

AT&T, INC.
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND THE UNITED STATES OF AMERICA
Respondents.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION



DEBORAH A. GARZA
MATTHEW B. BERRY
ACTING ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL
JAMES J. O'CONNELL, JR.
JOSEPH L. PALMORE
DEPUTY ASSISTANT ATTORNEY GENERAL
DEPUTY GENERAL COUNSEL
CATHERINE G. O'SULLIVAN
SUSAN L. LAUNER
ROBERT J. WIGGERS
DEPUTY ASSOCIATE GENERAL COUNSEL
ATTORNEYS
MICHAEL A. KRASNOW
UNITED STATES
COUNSEL
DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554
(202) 418-1740



Case: 08-4024 Document: 00314857657 Page: 2 Date Filed: 01/16/2009

TABLE OF CONTENTS

Page

JURISDICTION.........................................................................................................1
STATEMENT OF ISSUES ........................................................................................1
STATEMENT OF RELATED CASES ......................................................................2
STATEMENT OF FACTS .........................................................................................3
I. The
Commission's
Investigation of AT&T ...........................................3
II. CompTel's
FOIA
Request and AT&T's Request for
Confidentiality.......................................................................................5
III. The
FCC
Enforcement Bureau's Ruling ...............................................6
IV.
Commission Review of the Enforcement Bureau's
Ruling ....................................................................................................7
V. Other
Pertinent Matters .........................................................................9
STANDARD OF REVIEW .....................................................................................10
SUMMARY OF ARGUMENT................................................................................11
ARGUMENT ...........................................................................................................13
I. AT&T'S
FAILURE
TO
MAKE
A
TIMELY
REQUEST FOR CONFIDENTIALITY
PROVIDES AN INDEPENDENT AND
UNCHALLENGED BASIS FOR THE
COMMISSION'S DECISION. ...........................................................13
II. THE
COMMISSION
CORRECTLY
DETERMINED THAT AT&T DOES NOT
POSSESS A COGNIZABLE "PERSONAL
PRIVACY" INTEREST UNDER FOIA
EXEMPTION 7(C)..............................................................................14
A.
Legal Precedent Fully Supports The
Commission's Interpretation Of "Personal
Privacy" In Exemption 7(C). ....................................................15
i

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Page

B.
The Statutory Text And Structure
Demonstrate That The Exemption For
"Personal Privacy" In Exemption 7(C)
Pertains Only To Individuals.....................................................24
III. THE FCC, NOT THE COURT, SHOULD
CONDUCT ANY NECESSARY BALANCING
TEST....................................................................................................34
CONCLUSION........................................................................................................37


ii

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TABLE OF AUTHORITIES

Page

Cases


Abdelfattah v. U.S. Dept. of Homeland Sec. 488 F.3d 178
(3d Cir. 2007) ............................................................................... 15, 36
Bailey v. United States, 516 U.S. 137 (1995) ................................................24
Busse Broadcasting Corp. v. FCC, 87 F.3d 1456 (D.C.
Cir. 1996).............................................................................................20
C.I.R. v. Ridgeway's Estate, 291 F.2d 257 (3d Cir. 1961) .............................24
Casino Airlines, Inc. v. NTSB, 439 F.3d 715 (D.C. Cir.
2006)....................................................................................................14
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...................................... 10, 35
Chrysler Corp. v. Schlesinger, 565 F.2d 1190 (3d Cir.
1977), aff'd in relevant part sub nom., Chrysler
Corp v. Brown
, 441 U.S. 281 (1979)...................................................11
Church of Scientology Intern. v. U.S. I.R.S., 995 F.2d 916
(9th Cir. 1993) .....................................................................................18
Cohen v. EPA, 575 F. Supp. 425 (D.D.C. 1983) ............................................19
Cuccaro v. Sec'y of Labor, 770 F.2d 355 (3d Cir. 1985)...............................17
Davin v. U.S. Dep't of Justice, 60 F.3d 1043 (3d Cir.
1995)............................................................................................. 15, 17
Delaware River Stevedores v. DiFidelto, 440 F.3d 615
(3d Cir. 2006) ......................................................................................33
Dep't of Air Force v. Rose, 425 U.S. 352 (1976)...........................................15
Docal v. Bennsinger, 543 F. Supp. 38 (M.D. Pa. 1981).................................17
Envt'l Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir.
1984)....................................................................................................11
F.B.I. v. Abramson, 456 U.S. 615 (1982).......................................................33
FDIC v. Deglau, 207 F.3d 153 (3d Cir. 2000) ...............................................14
iii

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Page

Fed. Labor Relations Auth. v. Dep't of Treasury, 884 F.2d
1446 (D.C. Cir. 1989)..........................................................................24
Fed. Labor Relations Auth. v. U.S. Dept. of Veterans
Affairs, 958 F.2d 503 (D.C. Cir. 1992)................................................23
Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473
(2d Cir. 1999) ......................................................................................18
GTE Sylvania, Inc. v. Consumer Product Safety
Commission, 598 F.2d 790 (3d Cir. 1979) ..........................................11
Gustafson v. Alloyd Co., 513 U.S. 561 (1995)...............................................24
Halloran v. Veterans Admin., 874 F.2d 315 (5th Cir.
1989)....................................................................................................18
John Doe Agency v. John Doe Corp., 493 U.S. 146
(1989) ........................................................................................... 15, 31
Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir.
2006)....................................................................................... 19, 21, 22
KTVY-TV, a Div. of Knight-Ridder Broadcasting, Inc. v.
U.S, 919 F.2d 1465 (10th Cir. 1990) ...................................................18
Lame v. Dep't of Justice, 654 F.2d 917 (3d Cir. 1981) ..................................17
Lamont v. Dep't of Justice, 475 F. Supp. 761 (S.D.N.Y.
1979)....................................................................................................17
Landano v. U.S. Dep't of Justice, 956 F.2d 422 (3d Cir.
1992), vacated in part on other grounds and
remanded,
508 U.S. 165 (1993) ..........................................................17
Malat v. Riddell, 383 U.S. 569 (1966)...........................................................25
Manna v. U.S. DOJ, 51 F.3d 1158 (3d Cir. 1995) .........................................17
Mays v. Drug Enforcement Admin., 234 F.3d 1324 (D.C.
Cir. 2000).............................................................................................36
Miles v. U.S. Dep't of Labor, 546 F. Supp. 437 (M.D. Pa
1982)....................................................................................................16
iv

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Page

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29 (1983) ......................................................................11
Multi AG Media LLC v. Dep't of Agric., 515 F.3d 1224
(D.C. Cir. 2008)............................................................................ 22, 23
Nadler v. U.S. Dep't of Justice, 955 F.2d 1479 (11th Cir.
1992), overruled on other grounds by U.S. Dep't
Of Justice v. Landano
, 508 U.S. 165 (1993) .......................................18
Nat'l Archives and Records Admin. v. Favish, 541 U.S.
157 (2003) .................................................................................... 16, 33
Neufeld v. IRS, 646 F.2d 661 (D.C. Cir. 1981) ..............................................36
New England Apple Council v. Donovan, 725 F.2d 139
(1st Cir. 1984)......................................................................................18
New York Public Interest Research Group v. U.S. E.P.A.,
249 F. Supp. 2d 327 (S.D.N.Y. 2003)..................................................27
Occidental Petroleum Corp. v. SEC, 873 F.2d 325 (D.C.
Cir. 1989).................................................................................10, 11, 35
OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d
153 (3d Cir. 2000) ...............................................................................10
Paul v. Davis, 424 U.S. 693 (1976) ...............................................................16
Serv. Elec. Cable TV, Inc. v. FCC, 468 F.2d 674 (3d Cir.
1972)....................................................................................................20
Stern v. F.B.I., 737 F.2d 84 (D.C. Cir. 1984)..................................................16
Tavarez v. Klingensmith, 372 F.3d 188 (3d Cir. 2004) ..................................25
U.S. Dep't of Justice v. Reporters Committee for Freedom
of the Press, 489 U.S. 749 (1989) .......................................... 16, 17, 30
United States v. Ron Pair Enterprises., Inc., 489 U.S. 235
(1989) ..................................................................................................24
Washington Post Co. v. U.S. Department of Justice, 863
F.2d 96 (D.C. Cir. 1988)......................................................................18
v

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Page

Whalen v. Roe, 429 U.S. 589 (1977) .............................................................16

Administrative Decisions


SBC Communications Inc., 19 FCC Rcd 24014 (Enf. Bur.
2004) (2004 WL 2913392)................................................................3, 4

Statutes and Regulations


5 U.S.C. 551(2)...........................................................................................26
5 U.S.C. 552(a)(3)(A).................................................................................26
5 U.S.C. 552(a)(4)(A)(ii)(III) .....................................................................25
5 U.S.C. 552(a)(4)(B) ...................................................................................7
5 U.S.C. 552(a)(6)(C)(i) .............................................................................26
5 U.S.C. 552(b)...........................................................................................36
5 U.S.C. 552(b)(1)-(9) ..................................................................................4
5 U.S.C. 552(b)(4) ................................................................................. 5, 27
5 U.S.C. 552(b)(7)(C)............................................................................ 2, 15
5 U.S.C. 552(b)(7)(D).................................................................................25
5 U.S.C. 552a..............................................................................................28
5 U.S.C. 552a(a)(2).....................................................................................28
5 U.S.C. 706(2)(A) ...............................................................................10, 11
28 U.S.C. 2342(1).........................................................................................1
28 U.S.C. 2343............................................................................................23
47 U.S.C. 154(i)............................................................................................3
47 U.S.C. 154(j)............................................................................................3
47 U.S.C. 218................................................................................................3
vi

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Page

47 U.S.C. 402(a) ...........................................................................................1
47 U.S.C. 403................................................................................................3
47 U.S.C. 405(a) .........................................................................................20
47 U.S.C. 552(b)(6) ....................................................................................27
47 C.F.R 54.702 ............................................................................................3
47 C.F.R. 0.457(d) ........................................................................................7
47 C.F.R. 0.457(f) .........................................................................................4
47 C.F.R. 0.457(g) ........................................................................................7
47 C.F.R. 0.457(g)(3)........................................................................... 2, 4, 7
47 C.F.R. 0.459(a).......................................................................... 4, 6, 8, 13
47 C.F.R. 0.459(b) ........................................................................................4
47 C.F.R. 0.459(c).....................................................................................4, 8
47 C.F.R. 0.459(d) ........................................................................................4
47 C.F.R. 0.459(f) .................................................................................. 8, 14
47 C.F.R. 54.500 ...........................................................................................3
47 C.F.R. 54.523 ...........................................................................................3
47 C.F.R. 54.701 ...........................................................................................3
Electronic Freedom of Information Act Amendments of
1996, Pub. L. 104-231, 110 Stat. 3048................................................33
Freedom of Information Reform Act of 1986, Pub. L. No.
99-570, 1801 -04, 100 Stat. 3207-48 to -50
(1986) ..................................................................................................33
Government in Sunshine Act of 1976, 5 U.S.C. 552b
(1982) ..................................................................................................33
vii

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Page

Intelligence Authorization Act for Fiscal Year 2003, Pub.
Law No. 107-306 5 U.S.C.A. 552(a)(3)(A), (E)
(West Supp. 2003) ...............................................................................33
Open Government Act of 2007, Pub. L. No. 110-175, 121
Stat. 2524...................................................................................... 25, 33
Pub. L. No. 93-579, 2(b), 88 Stat. 1896 .............................................. 28, 29

Others


H. Rep. No. 89-1497, at 10 (1966) ................................................................27
House Comm. on Government Operations & Senate
Comm. on the Judiciary, 94th Cong., 1st Sess.,
Freedom of Information Act and Amendments of
1974 (P.L. 93-502) Source Book: Legislative
History, Texts, and Other Documents (Jt. Comm.
Print 1975).................................................................................... 31, 32
S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965) ..........................................30



viii

Case: 08-4024 Document: 00314857657 Page: 10 Date Filed: 01/16/2009


IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

08-4024

AT&T, INC.
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND THE UNITED STATES OF AMERICA
Respondents.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR RESPONDENTS

JURISDICTION

This Court has jurisdiction to review a final order of the Federal
Communications Commission under 47 U.S.C. 402(a) and 28 U.S.C. 2342(1).

STATEMENT OF ISSUES

1. Whether AT&T's failure to challenge an independent and alternative basis
for the Commission's Order AT&T's failure to file a timely request for
confidential treatment as required by the Commission's rules should by itself
lead to denial of its petition.
If AT&T's claim is not so barred,


Case: 08-4024 Document: 00314857657 Page: 11 Date Filed: 01/16/2009
2

2. Whether the Commission reasonably concluded that AT&T as a corporate
entity does not possess a cognizable privacy interest under Freedom of Information
Act Exemption 7(C), which exempts from disclosure "records or information
compiled for law enforcement purposes" if their production "could reasonably be
expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C.
552(b)(7)(C); 47 C.F.R. 0.457(g)(3).
3. Whether, if the Commission's Order was legally flawed, the appropriate
remedy is confined to remand to the Commission.

STATEMENT OF RELATED CASES

In October 2006, CompTel filed a civil action in the U.S. District Court for
the District of Columbia under the Freedom of Information Act seeking to compel
disclosure of additional records, which, unlike those at issue here, Commission
staff found to be covered by FOIA exemptions. CompTel's action does not
challenge the Commission Order1 under review here, and has been stayed pending
resolution of AT&T's "reverse FOIA" claim. See infra. n. 5.

1 See SBC Communications Inc. on Request for Confidential Treatment,
Memorandum Opinion and Order, FCC 08-207 (rel. Sept. 12, 2008) ("Order") (A
7). The Order and pleadings from the administrative proceedings in this case
address petitioner as SBC Communications, Inc. ("SBC"). In November 2005,
SBC acquired AT&T Corp., and changed its name to AT&T Inc. The name
"AT&T" is used generally herein.



Case: 08-4024 Document: 00314857657 Page: 12 Date Filed: 01/16/2009
3

STATEMENT OF FACTS

I.

The Commission's Investigation of AT&T

On August 6, 2004, AT&T informed the Commission that, during an
internal investigation, it had discovered "certain irregularities" concerning invoices
it had submitted to the Universal Service Administrative Company ("USAC") for
services provided to schools and other entities in New London, Connecticut
subsidized under the Universal Service Fund "Education Rate" ("E-Rate")
program.2 On August 24, 2004, the Commission's Enforcement Bureau notified
AT&T that it was investigating whether these "irregularities" constituted a
violation by AT&T of the Commission's rules and orders. The Enforcement
Bureau issued AT&T a letter of inquiry ("LOI") directing it to provide the
Commission with certain records and information pursuant to 47 U.S.C. 154(i),
154(j), 218, and 403.3 The LOI advised AT&T that "[i]f the Company requests
that any information or Documents...responsive to this letter be treated in a
confidential manner, it shall submit, along with all responsive information and
Documents, a statement in accordance with section 0.459 of the Commission's
rules." Order n.26 (A 10). The LOI stated further that "[r]equests for confidential

2 USAC is an independent, not-for-profit corporation that admininisters the federal
universal service fund on bahalf of the FCC. See SBC Communications Inc., 19
FCC Rcd 24014 3 n.5 (Enf. Bur. 2004) (2004 WL 2913392) ("Consent Decree");
47 C.F.R. 54.701-54.702. The E-Rate program is a universal service fund
mechanism designed to assist schools and libraries in gaining access to
telecommunications and related services. See Consent Decree 3; 47 C.F.R.
54.500-54.523.
3 The LOI is one of the records that AT&T asserts should be withheld from
disclosure. See Certified List Of Items In The Record (A 21).


Case: 08-4024 Document: 00314857657 Page: 13 Date Filed: 01/16/2009
4

treatment must comply with the requirements of section 0.459, including the
standards of specificity mandated by section 0.459(b)," that "blanket requests for
confidentiality of a large set of Documents are unacceptable," and that "the Bureau
will not consider requests that do not comply with the requirements of section
0.459." LOI at 1-2.
The Commission's rules permit (but do not require) the Commission to
withhold from public disclosure various categories of information; the categories
are based on the exemptions to the FOIA, 5 U.S.C. 552(b)(1)-(9). See 47 C.F.R.
0.457(f), (g)(3). A party requesting confidentiality of records submitted to the
Commission must attach its request to the records; identify the records to which the
request applies; and sufficiently explain the reasons for requesting confidentiality.
Id. 0.459(a), (b) (subsection (b) lists factors that a confidentiality request must
address). Requests that do not comply with the requirements of 0.459(a) and (b)
will not be considered. Id. 0.459(c). The Commission accords confidential
treatment to information if the submitter "presents by a preponderance of the
evidence a case for non-disclosure consistent with the provisions of the [FOIA]."
Id. 0.459(d)(2). Here, AT&T produced the records, but did not request
confidential treatment at the time of production.
On December 16, 2004, the FCC and AT&T executed a consent decree in
"final settlement of the Investigation." See Consent Decree, 19 FCC Rcd 24014
4 (Enf. Bur. 2004) (2004 WL 2913392). AT&T admitted no wrongdoing but
agreed, inter alia, to "make a voluntary contribution to the United States


Case: 08-4024 Document: 00314857657 Page: 14 Date Filed: 01/16/2009
5

Treasury...of five hundred thousand dollars," and "establish and maintain an E-
rate compliance training program." Id. 5-6.

II.

CompTel's FOIA Request and AT&T's Request for
Confidentiality

On April 4, 2005, CompTel submitted a FOIA request to the FCC seeking
"[a]ll pleadings and correspondence contained in File No. EB-04-IH-0342," the
case file associated with the above-described investigation. See E-mail from Mary
C. Albert, CompTel, to FOIA FCC (Apr. 4, 2005, 10:52 AM) (A 27). After
receiving notice of CompTel's request from the FCC, AT&T, by letter dated May
27, 2005, opposed release of the records and, for the first time, requested that the
FCC treat them as confidential under 0.459 of the FCC's rules. See Letter from
Jim Lamoureux, SBC Services, Inc., to Judy Lancaster, Enforcement Bureau, FCC,
(May 27, 2005) (A 28). AT&T asserted that all of the records were exempt from
disclosure under Exemption 7(C), because they were "compiled for law
enforcement purposes," and disclosure would cause an unwarranted invasion of
AT&T's "personal privacy." Id. AT&T also asserted that certain records should
be withheld under Exemption 4, which covers competitively sensitive privileged or
confidential trade secrets and commercial or financial information, 5 U.S.C.
552(b)(4). Id.
On June 28, 2005, CompTel replied to AT&T's request for confidentiality.
CompTel did not object to the redaction of personally identifiable information
concerning AT&T employees (e.g., names, telephone numbers, and home and e-
mail addresses), but argued that Exemption 7(C) did not cover any other


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6

information contained in the records because AT&T "is a large, publicly traded
corporation...that...possesses no protectable personal privacy interest." Letter
from Mary C. Albert, CompTel, to Judy Lancaster, Enforcement Bureau, FCC
(June 28, 2005) (A 37).

III. The FCC Enforcement Bureau's Ruling

On August 5, 2005, the Commission's Enforcement Bureau found that
AT&T had not timely complied with 0.459(a) of the Commission's rules because
AT&T had not requested confidentiality when submitting the records. See Letter
from William H. Davenport, Enforcement Bureau, FCC, to Jim Lamoureux, SBC
Services, Inc., and Mary Albert, CompTel (Aug. 5, 2005) (A 43-44). The Bureau
found further that AT&T failed to comply with sections 0.459(b)(3), (5), and (7) of
the Commission's rules, because AT&T did not sufficiently explain why the
Enforcement Bureau should withhold all the records. Id. (A 44).
The Enforcement Bureau nonetheless, on its own motion, determined that
the records contained extensive confidential information, which it redacted under
FOIA Exemption 4; Exemption 5 (deliberative inter-agency or intra-agency
materials); and Exemption 6 (personal information of individuals contained in
personnel, medical, and similar files); and Exemption 7(C) (personal information


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7

of individuals contained in the records).4 Id.; see also 47 C.F.R. 0.457(d)-(g).
None of those redactions is at issue here.
The Enforcement Bureau denied in part AT&T's request insofar as AT&T
claimed that it, as a corporate entity, possessed a cognizable "personal privacy"
interest that justified withholding all of the records under Exemption 7(C). As to
that assertion, the Enforcement Bureau found that AT&T failed to carry its burden
to establish a case for non-disclosure consistent with the FOIA, because businesses
do not possess cognizable "personal privacy" interests under Exemption 7(C). See
Letter from William H. Davenport, Enforcement Bureau, FCC, to Jim Lamoureux,
SBC Services, Inc., and Mary Albert, CompTel (Aug. 5, 2005) (A 46); 47 C.F.R.
0.457(g)(3).

IV. Commission Review of the Enforcement Bureau's

Ruling

On September 12, 2008, the Commission denied AT&T's application for
review of the Bureau's decision, and directed the Bureau to release the redacted
records to CompTel.5 The Commission first concluded that AT&T's application

4 The Exemption 4 redactions included "costs and pricing data...billing and
payment dates, and identifying information of [AT&T's] staff, contractors, and the
representatives of its contractors and customers." See Letter from William H.
Davenport, Enforcement Bureau, FCC, to Jim Lamoureux, SBC Services, Inc., and
Mary Albert, CompTel (Aug. 5, 2005) (A 45).
5 On September 6, 2005, CompTel filed an application for review challenging the
Enforcement Bureau's decision to invoke Exemptions 4 and 5. On October 5,
2006, CompTel initiated an action in the U.S. District Court for the District of
Columbia under 5 U.S.C. 552(a)(4)(B) seeking a judicial order compelling
production of the records responsive to its FOIA request. See CompTel v. FCC,
Civil Action No. 06-1718 (HHK) [Docket No. 1]. AT&T intervened as a


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8

for review failed to conform with its rules because, despite having received proper
notice of its right to do so, AT&T failed to make a timely request for confidential
treatment, and its application for review was thus not properly before the
Commission. See Order 6, citing 47 C.F.R. 0.459(a), 0.461(j) (A 9-10). This
violation could alone have justified denial of AT&T's confidentiality request. Id.
(A 10); 47 C.F.R. 0.459(c).
The Commission nevertheless proceeded to consider AT&T's application
for review on its own motion. See 47 C.F.R. 0.459(f) ("[i]f no request for
confidentiality is submitted, the Commission assumes no obligation to consider the
need for non-disclosure but, in the unusual instance, may determine on its own
motion that the materials should be withheld from public inspection."). The
Commission rejected AT&T's argument that a corporation has a "personal
privacy" interest within the meaning of Exemption 7(C), because "a corporation's
interests are of necessity business interests." Order 7 (A 11). The Commission
found that AT&T's position was "at odds with established Commission and
judicial precedent," because Exemption 7(C) covers disclosures of "an intimate

defendant. Following cross-motions for summary judgment, on March 5, 2008, the
district court stayed the case, concluding that it could not address AT&T's "reverse
FOIA" claim that the records should be withheld from disclosure under Exemption
7(C) because that claim could only be reviewed under the APA after final
Commission action. Id., Memorandum Opinion and Order at 5-6 [Docket No. 36].
The court concluded further that the interests of judicial economy and efficiency
were served by staying CompTel's action until the Commission ruled on AT&T's
application for review. Id. That Commission ruling is the subject of this
proceeding.



Case: 08-4024 Document: 00314857657 Page: 18 Date Filed: 01/16/2009
9

personal nature," and not "information relating to business judgments and
relationships, even if disclosure might tarnish someone's professional reputation."
Id. (A 10-11). The Commission explained that "protecting a corporation from
embarrassment" does not fall within the purposes of Exemption 7(C), and that
"[j]udicial discussion of the purposes...focus[es] on the kinds of tangible personal
impact that disclosure of information of an intimate personal nature might have on
the targets of investigations, witnesses, and participating law enforcement officials,
such as damage to their personal reputation, embarrassment, and the possibility of
harassment." Id. 8 (citations omitted) (A 11-12). The Commission explained
further that these cases "refer to the literal embarrassment and danger that an
individual might suffer from disclosure of information of a personal nature and not
to the more abstract impact that disclosure might have on a legal entity like a
corporation." Id. (A 12). The Commission noted that AT&T had identified "no
Exemption 7(C) cases that are to the contrary." Id. 7 (A 11).
Finally, the Commission rejected AT&T's argument that because a
corporation may be treated as a "person" and have "privacy interests" for some
purposes, it has personal privacy interests under Exemption 7(C), explaining that
"[s]uch reasoning cuts too broadly." Id. 10 (A 12). The Commission found that
"[t]he interests underlying other forms of privacy that might be relevant in other
contexts are not controlling for purposes of Exemption 7(C)." Id.

V.

Other Pertinent Matters

On September 23, 2008, AT&T requested that the Commission stay its
Order. On September 26, 2008, before the Commission acted on that request,


Case: 08-4024 Document: 00314857657 Page: 19 Date Filed: 01/16/2009
10

AT&T filed its Petition for Review of the Commission's Order and a Motion for
Stay pending judicial review. The parties subsequently agreed that the
Commission would not release the redacted records to CompTel until this Court
had the opportunity to address AT&T's "reverse FOIA" claim, and that AT&T
would consent to the Commission's request for the Court to expedite review. See
Respondent Federal Communications Commission's Response to AT&T's Motion
for Stay, AT&T Inc. v. FCC, No. 08-4024 (3d Cir. Oct. 6, 2008); Respondent
Federal Communication's Commission's Consent Motion for Expedited
Treatment, AT&T, No. 08-4024 (3d Cir. Oct. 6, 2008). AT&T withdrew its
Motion for Stay and, by Order dated October 10, 2008, the Court granted the
Commission's Motion for Expedited Treatment (A 14).

STANDARD OF REVIEW

When an agency determines that records requested under the FOIA do not
fall within a FOIA exemption and must be disclosed, a party opposing release of
the records may bring suit "through the vehicle of the Administrative Procedure
Act [("APA")]...this type of suit is commonly referred to as a `reverse FOIA'
suit." OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d 153, 160 (3d Cir.
2000). "Reverse-FOIA" decisions are considered informal agency adjudications;
therefore the Court's review of the Commission's Order here is governed by the
"arbitrary and capricious" standard of the APA, 5 U.S.C. 706(2)(A). Chrysler
Corp. v. Brown, 441 U.S. 281, 317-18 (1979); Occidental Petroleum Corp. v. SEC,
873 F.2d 325, 337 (D.C. Cir. 1989) (citations omitted). Under this standard, a
court has a very limited basis of review of an agency's decision, and can only


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11

determine whether the agency had a rational basis for its decision. See Occidental
Petroleum Corp., 873 F.2d at 337; Envt'l Def. Fund, Inc. v. Costle, 657 F.2d 275,
282-83 (D.C. Cir. 1984). An agency's decision may be set aside only if it is found
to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. 706(2)(A); Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 41 (1983).
In "reverse FOIA" cases, a court first inquires whether any nondisclosure
statute or regulation is applicable to the material the agency intends to release.
GTE Sylvania, Inc. v. Consumer Product Safety Commission, 598 F.2d 790, 800
(3d Cir. 1979), citing Chrysler Corp. v. Schlesinger, 565 F.2d 1190, 1192 (3d Cir.
1977), aff'd in relevant part sub nom., Chrysler Corp v. Brown, 441 U.S. 281
(1979). Where, as here, no such statute or regulation applies, the court determines
"whether the contested information falls within an FOIA exemption and, if so,
whether the agency has considered the proper factors in determining that disclosure
was permitted...under its own disclosure regulations." Id. We agree with AT&T
that the Commission's interpretation of the FOIA is not entitled to Chevron
deference since it is a government-wide statute (Br. at 13).

SUMMARY OF ARGUMENT


The Court should dismiss this case because AT&T has waived the claims
that it attempts to raise here. AT&T failed to submit to the Commission a timely
request for confidential treatment of the records in this case. The Commission held
that this failure was an adequate and independent basis for denying AT&T relief,
and AT&T has not challenged that determination here. Therefore, AT&T is


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12

precluded from litigating its claim that the agency should have withheld all of the
records from release.
In any event, AT&T's challenges to the Commission's alternative, sua
sponte finding that AT&T, as a corporation, did not come within the scope of
Exemption 7(C) fall wide of the mark. That Exemption protects only "personal
privacy," a phrase commonly understood to relate to individuals, not artificial
entities like corporations. Federal courts have uniformly interpreted Exemption
7(C) to protect individual privacy interests, and all courts to have addressed the
question have held that the exemption does not apply to corporations. Moreover,
courts interpreting Exemption 6 which also uses the phrase "personal privacy"
have likewise held that it does not protect corporations.
The statutory text, structure of the FOIA, and the legislative history of
Exemption 7(C) support the reading of the phrase "personal privacy" in its
everyday sense to mean the privacy due to an individual. When Congress intended
to include corporations within the terms used in the FOIA and its exemptions, it
stated that intention expressly. It did not do so in Exemption 7(C). Indeed, the
legislative history of both Exemptions 6 and 7(C) demonstrates that Congress
intended both to protect an individual's private affairs from unnecessary public
scrutiny.
Finally, in the event the Court concludes that the Commission erred in
finding AT&T ineligible for protection under Exemption 7(C), it should remand to
the Commission so that the agency can conduct the balancing required under that


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13

provision. There is no basis for AT&T's request that this Court conduct that fact-
intensive exercise on its own in the first instance.

ARGUMENT

I.

AT&T'S FAILURE TO MAKE A TIMELY
REQUEST FOR CONFIDENTIALITY PROVIDES
AN INDEPENDENT AND UNCHALLENGED
BASIS FOR THE COMMISSION'S DECISION.

As a threshold matter, the Court should deny AT&T's petition because
AT&T has failed to challenge an independent and alternative basis for the
Commission's decision below. As the Commission reminded AT&T in the LOI,
FCC rules require that any request for confidential treatment of materials submitted
to the Commission must be made simultaneously with the submission of the
materials. 47 C.F.R. 0.459(a). AT&T failed to comply with this rule. Indeed,
AT&T sought confidential treatment of its records only after it entered into a
consent decree and after CompTel made its FOIA request. Cf. Order 6 n.27 (the
Commission's rules do "not permit a party submitting confidential documents to
the Commission to wait to claim confidentiality, as [AT&T] did, until a FOIA
request is filed") (A 10).
In the Order on review, the Commission concluded "[a]s an initial matter"
before examining the scope of Exemption 7(C) that AT&T's failure to file a
timely request for confidentiality "would alone justify the [Commission's] denial"
of AT&T's request. Order 6 (A 10). Because that finding, by itself, is sufficient
to support the agency's decision and because AT&T has not challenged it in its
opening brief, the Court should deny the petition for review without addressing


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14

AT&T's statutory arguments. See Casino Airlines, Inc. v. NTSB, 439 F.3d 715,
717 (D.C. Cir. 2006) (when agency decision rests on multiple independent
grounds, court should affirm if at least one is correct); FDIC v. Deglau, 207 F.3d
153, 169-70 (3d Cir. 2000) (argument not raised in opening brief is waived).
The fact that the Commission went on to find, in the alternative, that
AT&T's arguments about the scope of Exemption 7(C) were wrong does not
change the analysis. The Commission's rules provide that where, as here, "no
request for confidentiality is submitted, the Commission assumes no obligation to
consider the need for non-disclosure but, in the unusual instance, may determine
on its own motion that the materials should be withheld from public inspection."
47 C.F.R. 0.459(f). Accordingly, AT&T was not entitled to any consideration by
the Commission of its arguments as to why its documents should be kept
confidential. The fact that the Commission, on its own motion, considered those
arguments anyway does not mean that it excused AT&T's failure to follow its
procedural rules.6

II.

THE COMMISSION CORRECTLY DETERMINED
THAT AT&T DOES NOT POSSESS A
COGNIZABLE "PERSONAL PRIVACY" INTEREST
UNDER FOIA EXEMPTION 7(C).

In the event the Court reaches the merits of AT&T's challenge, it should
reject it. Exemption 7(C) covers "records or information compiled for law

6 If an agency's decision to supplement a finding of procedural default with an
alternative explanation as to why the party's claims fail on the merits meant that
the procedural default disappeared for purposes of judicial review, then the agency
will have a strong incentive not to provide such alternative holdings.


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15

enforcement purposes...to the extent that the production of such law enforcement
records or information...could reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. 552(b)(7)(C) (emphasis added). The
Commission does not dispute that the records here were "compiled for law
enforcement purposes;" they were assembled by the Commission during its
investigation of AT&T for alleged violations of law in connection with the E-Rate
program. See, e.g., Abdelfattah v. U.S. Dept. of Homeland Sec. 488 F.3d 178 (3d
Cir. 2007); Order 7 (A 10). The Commission correctly found, however, that
AT&T as a corporate entity has no "personal privacy" that can be "inva[ded]" by
the documents' disclosure. That determination is fully supported by consistent
judicial precedent interpreting Exemption 7(C) and the closely related Exemption
6, as well as the statute's text, structure, and legislative history.
The FOIA creates "a strong presumption in favor of disclosure." Davin v.
U.S. Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995), citing Dep't of Air Force
v. Rose, 425 U.S. 352, 361 (1976). This presumption means that all of FOIA's
exemptions (including Exemption 7(C)) "must be narrowly construed." John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). AT&T's novel construction
of Exemption 7(C) runs exactly counter to this admonition because it would result
in a dramatically expansive reading of that exemption.

A.

Legal Precedent Fully Supports The
Commission's Interpretation Of "Personal
Privacy" In Exemption 7(C).

Federal courts have uniformly interpreted Exemption 7(C) to protect
individual privacy interests, and all courts to have addressed the question have held


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16

that the exemption does not apply to corporations. Moreover, courts interpreting
Exemption 6 which uses the same phrase, "personal privacy" have likewise
held that it does not protect corporations.
Courts have found that Exemption 7(C) protects individuals who are
suspects, witnesses, interviewees, informants, investigators, and corporate
employees from disclosure of their names or other personally identifiable
information in connection with the fact and subject matter of an investigation, so as
to avoid possible embarrassment, harassment, retaliation, or stigma. Nat'l
Archives and Records Admin. v. Favish, 541 U.S. 157, 167, 170 (2003); U.S. Dep't
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 763-64
(1989); Stern v. F.B.I., 737 F.2d 84, 92 (D.C. Cir. 1984) (citations omitted); Miles
v. U.S. Dep't of Labor, 546 F. Supp. 437, 440 (M.D. Pa 1982) (citations omitted).
These cases' discussion of the purpose underlying Exemption 7(C) makes clear
that it has no relevance to corporations.
In Reporter's Committee, for example, the Supreme Court identified two
privacy interests that are encompassed by Exemption 7(C): "the individual interest
in avoiding disclosure of personal matters," and "the interest in independence in
making certain kinds of important decisions." Id. at 762, (citing Whalen v. Roe,
429 U.S. 589, 598-600 (1977) (footnotes omitted)). With respect to the latter
interest, the Court characterized such decisions as dealing with "matters relating to
marriage, procreation, contraception, family relationships, and child rearing and
education." Whalen, 429 U.S. at 599 n.26, citing Paul v. Davis, 424 U.S. 693, 713
(1976). The Court specifically noted that "[p]rivacy is the claim of individuals ...


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17

to determine for themselves when, how, and to what extent information about them
is communicated to others." Reporters Committee, 489 U.S. at 764 n.16 (citation
omitted) (emphasis added).
The Third Circuit has similarly found that Exemption 7(C) is intended to
protect an individual's privacy interests. Specifically, it has stated that Exemption
7(C) "protects the disclosure of the identity of individuals where such disclosure
would be likely to cause harassment or embarrassment because of the person's
cooperation in the investigation or the nature of the information disclosed by that
individual." See Cuccaro v. Sec'y of Labor, 770 F.2d 355, 359 (3d Cir. 1985)
(emphasis added), citing Lame v. Dep't of Justice, 654 F.2d 917, 923 (3d Cir.
1981); Manna v. U.S. DOJ, 51 F.3d 1158, 1166 (3d Cir. 1995) (finding requester's
identity relevant to "the protection of individual privacy interests that Exemption
7(C) is meant to protect"); Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1058 (3d
Cir. 1995), citing Landano v. U.S. Dep't of Justice, 956 F.2d 422, 426 (3d Cir.
1992), vacated in part on other grounds and remanded, 508 U.S. 165 (1993);
Docal v. Bennsinger, 543 F. Supp. 38, 45 (M.D. Pa. 1981) ("the Third Circuit
adopted the reasoning...in Lamont v. Dep't of Justice, 475 F. Supp. 761 (S.D.N.Y.
1979) regarding the purpose of this privacy exemption, [which] protects against the
disclosure of the identity of individuals"); Miles, 546 F. Supp. at 440 ("[t]he
purpose of [Exemption 7(C)] is to protect against the disclosure of the identity of
individuals...") (citations omitted).7

7 Courts in several other circuits similarly have discussed the purpose and
applicability of Exemption 7(C) in the limited context of an individual's privacy


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18

Given the purpose of Exemption 7(C), the courts that have confronted
arguments similar to AT&T's have uniformly rejected them. For example, in
Washington Post Co. v. U.S. Department of Justice, the D.C. Circuit held that
Exemption 7(C) did not cover the report of an internal corporate investigation that
mentioned individual employees by name but did not identify them as being
personally the target of the investigation. 863 F.2d 96, 100-101 (D.C. Cir. 1988).
The court explained that the disclosures with which the FOIA is concerned are
those of "an intimate personal nature" such as "marital status, legitimacy of

interests. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 485 (2d Cir.
1999) ("[e]xemption 7(C) protects against unwarranted invasion of personal
privacy...This language has given rise to a test that balances the individual's
interest in privacy in a withheld document against the public's need for
information"); Church of Scientology Intern. v. U.S. I.R.S., 995 F.2d 916, 920 (9th
Cir. 1993) ("[t]o determine whether production of a particular document would
constitute an unwarranted invasion of personal privacy, a court must determine
whether the public interest in disclosure outweighs the individual privacy interests
that would suffer from disclosure"); Nadler v. U.S. Dep't of Justice, 955 F.2d
1479, 1487 (11th Cir. 1992), overruled on other grounds by U.S. Dep't Of Justice
v. Landano
, 508 U.S. 165 (1993) ("a court considering the applicability of
[Exemption 7(C)] must balance the individual's privacy interest against the public
interest in disclosure"); KTVY-TV, a Div. of Knight-Ridder Broad., Inc. v. U.S, 919
F.2d 1465, 1469 (10th Cir. 1990) ("[t]o determine whether Exemption 7(C) is
applicable, courts must balance the individual's privacy interest against the public's
interest in the release of information"); Halloran v. Veterans Admin., 874 F.2d 315,
318 (5th Cir. 1989) ("[o]ne of the most important concerns counterbalancing the
public's general interest in disclosure is the desire to protect individuals' privacy
interests; it is for this reason that two out of the nine exemptions, exemptions 6 and
7(C), refer explicitly to "privacy"); New England Apple Council v. Donovan, 725
F.2d 139, 144 (1st Cir. 1984) ("[e]xemption 7(C) requires a court to mediate
between the public interest in disclosure and the individual's privacy interest in
nondisclosure") (additional citations omitted for the foregoing cases).



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19

children, identity of fathers of children, medical condition, welfare payments,
alcoholic consumption, family fights, and reputation." Id. In contrast, the report
"would not reveal anything of a private nature about any employees mentioned, as
it is an investigation and assessment of the business decisions of [the] employees
during the development and marketing of a commercial product." Id.
In Cohen v. EPA, the U.S. District Court for the District of Columbia
likewise found that Exemption 7(C) "does not apply to information regarding
professional or business activities." 575 F. Supp. 425, 429-30 (D.D.C. 1983). The
Court held that Exemption 7(C) did not cover the names of individuals, such as
corporate officials, mentioned in EPA hazardous waste notices, since they were
identified only in their "public role" of being the users of hazardous waste disposal
sites and would no more be subject to harassment than if the name of the
corporation were disclosed. Id.
AT&T suggests (Br. at 36) that the D.C. Circuit's decision in Washington
Post is "wrong," and argues that it has been superseded by that court's more recent
decision in Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006). In reality,
there is no inconsistency in the D.C. Circuit's decisions, and Judicial Watch
supports the Commission's position that Exemption 7(C) is limited to individual
privacy interests.
As an initial matter, however, AT&T's reliance on Judicial Watch is barred
by Section 405 of the Communications Act. That provision specifies that when a
party seeks review of a Commission order it may not raise an issue "upon which
the Commission . . . has been afforded no opportunity to pass." 47 U.S.C.


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20

405(a); Serv. Elec. Cable TV, Inc. v. FCC, 468 F.2d 674, 676-77 (3d Cir. 1972).
AT&T did not cite Judicial Watch in any of its filings with the Commission prior
to issuance of the Order on review; nor did it seek reconsideration based on that
decision.
Even more critically, AT&T took a position before the Commission
diametrically opposed to what it now argues. In its filing with the Commission,
AT&T said: "Exemption 6 protects information that could only pertain to an
individual and which might reveal personal private information pertaining to that
individual...It thus makes plain sense to conclude that Exemption 6 implicates only
individual privacy concerns and does not apply to corporations." See SBC
Application for Review (A 52) (emphasis added). AT&T went on to argue,
however, that Exemption 7 was broader than Exemption 6 and therefore was
uniquely applicable to corporations. Id. Now AT&T argues the opposite (Br. at
15, 27-28), contending, based on Judicial Watch, that "the term personal privacy in
Exemption 6 encompasses the privacy rights of corporations," and that Exemption
7(C), which uses the same phrase, "personal privacy," must therefore have a scope
at least as broad (Br. 28). Where a party seeking review "seem[s] to abandon its
argument... by taking inconsistent positions," the Commission has not been
afforded a fair opportunity to pass on an issue. Busse Broadcasting Corp. v. FCC,
87 F.3d 1456, 1461 (D.C. Cir. 1996). Because AT&T did not give the
Commission the opportunity to pass on its newly-minted argument that Exemption
7 must be read to cover corporations since that is the way that Exemption 6 has
been read, it is barred under Section 405 from asserting the claim now.


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21

In any event, AT&T's reading of Judicial Watch is erroneous. The D.C.
Circuit in that case upheld the redaction of business names and addresses and
names of agency and business employees under Exemption 6 as permissible
because it protected the privacy interests of the individual employees of these
companies to be safe from the danger of physical violence. It was the individual
employees' "personal privacy" not the "personal privacy" of a corporation that
was at issue.
In Judicial Watch, the FDA had withheld under Exemption 6 "the names of
agency personnel and private individuals and companies who worked on the
approval of mifepristone," a drug used for medical abortion, as well as the street
addresses of companies associated with the creation and manufacturing of the
drug. 449 F.3d at 152. The privacy interest cited by the FDA was "the danger of
abortion-related violence to those who developed mifepristone, worked on its FDA
approval, and continue to manufacture the drug." Id. at 153. To support its
withholdings, the FDA provided evidence of abortion clinic bombings and
"websites that encourage readers to look for mifepristone's manufacturing
locations and then kill or kidnap employees once found." Id.
In evaluating the FDA's showing, the court noted that "the FDA fairly
asserted abortion-related violence as a privacy interest for both the names and
addresses of persons and businesses associated with mifepristone." Id. The court
stated that the asserted privacy interest applied "to all such employees." Id. The
court applied that interest to protect only the personal privacy of the individual
employees who worked at these locations, not the privacy interest of the


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22

corporation. Id. Redaction of the business names and addresses under Exemption
6 was permissible because release of that information would be akin to informing
those who had expressed a specific intent to harm the businesses' employees where
to locate them, and withholding this information protected "all such employees"
from physical danger.
The court explained that: "to determine whether the FDA appropriately
withheld these names and addresses, we must balance the private interest involved
(namely, the individual's right of privacy) against the public interest." 449 F.3d at
153 (internal quotations and citations omitted) (emphasis added). The court found
that an individual did not surrender any privacy interest because the matter at issue
involved his employment with a business.
AT&T asserts (Br. at 28) that the D.C. Circuit in Judicial Watch extended
the "personal privacy" protections in Exemption 6 to both private individuals and
corporations. AT&T, however, conflates the privacy concerns of individuals
employed by a business with those of the business itself. AT&T's reliance on
Judicial Watch is misplaced and does not change the fact that there are no cases
supporting its reading of Exemptions 6 or 7(C).
Moreover, if there was any doubt about the meaning of Judicial Watch, the
D.C. Circuit dispelled it last year. In Multi AG Media LLC v. Dep't of Agric., that
court said "[i]t is clear that businesses themselves do not have protected privacy
interests under Exemption 6, but where their records reveal financial information
easily traceable to an individual, disclosing those records jeopardizes a personal
privacy interest that Exemption 6 protects." 515 F.3d 1224, 1228 (D.C. Cir. 2008)


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23

(emphasis in original); see also id. at 1227 (citing Judicial Watch).8 Even if this
statement constitutes "dicta" (Br. at 29 n.9), it represents the D.C. Circuit's latest
statement on what "is clear" from its precedents: Exemption 6 does not protect the
"personal privacy" of corporations. Indeed, if AT&T were truly confident that
D.C. Circuit precedent supported its position here, it presumably would have filed
its petition for review in that court. See 28 U.S.C. 2343 (establishing venue in
either the circuit where "the petitioner resides" or the D.C. Circuit).
AT&T asserts (Br. at 28) that because Judicial Watch held that "the personal
privacy interests protected by Exemption 6 can extend to corporations, it follows
that those same interests may likewise extend to corporations under the broader
protection afforded by Exemption 7(C)." First, as discussed, Judicial Watch does
not stand for the proposition that AT&T suggests. Moreover, the "broader"
coverage of Exemption 7(C) goes only to the degree of protection that is afforded
after it is found that a privacy interest is implicated. There is nothing "broader"
about the privacy interest itself that would trigger such balancing, especially given
that Congress used the identical phrase, "personal privacy," in both exemptions.
Fed. Labor Relations Auth. v. U.S. Dept. of Veterans Affairs, 958 F.2d 503, 509
(D.C. Cir. 1992) (holding the same degree of privacy interest is required to trigger

8 This understanding of Exemption 6 is consistent with longstanding D.C. Circuit
precedent. Sims v. CIA, 642 F.2d 562, 572 n. 47 (D.C. Cir. 1980), rev'd in part on
other grounds
, 471 U.S. 159 (1985) (citations omitted) ("Exemption 6 is applicable
only to individuals"); Nat'l Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673,
685 n.44 (D.C. Cir. 1976) (citations omitted) ("[t]he sixth exemption has not been
extended to protect the privacy interests of businesses or corporations").


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24

balancing under Exemptions 6 and 7(C)); Fed. Labor Relations Auth. v. Dep't of
Treasury, 884 F.2d 1446, 1451-52 (D.C. Cir. 1989) (the difference between
Exemptions 6 and 7(C) "goes only to the weight of the privacy interest needed to
outweigh disclosure") (emphasis in original).
It is a "normal rule of statutory construction" to afford the same meaning to
an identical phrase used in two separate statutory subsections. Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995) (internal quotation marks and citations omitted).
This is particularly true, and "more imperative," where, as here, "the same word or
term is used in different statutory sections that are similar in purpose and content."
C.I.R. v. Ridgeway's Estate, 291 F.2d 257, 259 (3d Cir. 1961) (citations omitted).
In this case, the same phrase "personal privacy" in both Exemption 6 and
Exemption 7(C) has the same meaning: the privacy of individuals, not
corporations.

B.

The Statutory Text And Structure Demonstrate
That The Exemption For "Personal Privacy" In
Exemption 7(C) Pertains Only To Individuals

.
Given the uniform precedent supporting the Commission's interpretation of
"personal privacy," it is not surprising that AT&T's textual argument fails based
upon the text and structure of the statute, even if there were no special rule of
construction for FOIA exemptions. See John Doe Agency, 493 U.S. at 152 (FOIA
exemptions "must be narrowly construed"). When interpreting the meaning of a
statute, analysis must begin with the statutory language itself. Bailey v. United
States, 516 U.S. 137, 144-45 (1995), citing United States v. Ron Pair Enterprises.,
Inc., 489 U.S. 235, 241 (1989). Moreover, as the Supreme Court has explained,


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25

the "words of statutes . . . should be interpreted where possible in their ordinary,
everyday senses." Malat v. Riddell, 383 U.S. 569, 571 (1966). The "ordinary,
everyday" meaning of the phrase "personal privacy" is the privacy due to an
individual. Conversely, few, if any, people would understand a corporation to
have "personal privacy."
By giving the word "personal" in Exemption 7(C) a virtually limitless scope,
AT&T's interpretation essentially reads it out of the statute. Yet Congress clearly
meant the word "personal" to provide some limitation on the kind of "privacy"
protected by Exemption 7(C) or else it would not have included it in the statute.
Tavarez v. Klingensmith, 372 F.3d 188, 190 (3d Cir. 2004) ("[i]f possible, we must
give effect ... to every clause and word of a statute, and be reluctant to treat
statutory terms as surplusage") (internal citations and quotations omitted). The
Commission's interpretation that "personal" limits the privacy interests to
individuals gives effect to all of the statute's terms.
Further, in other parts of the FOIA where there could be ambiguity as to
whether a phrase applies only to an individual or also to a business entity,
Congress expressly clarified the meaning of that phrase. See 5 U.S.C.
552(a)(4)(A)(ii)(III), amended by Open Government Act of 2007, Pub. L. No. 110-
175, 121 Stat. 2524 ("[i]n this clause, the term a representative of the news media
means any person or entity") (internal quotations omitted). Similarly, within the
exemptions themselves, where ambiguity could exist, Congress expressly made
clear whether a particular phrase was supposed to apply also to business entities.
See 5 U.S.C. 552(b)(7)(D) (clarifying that the phrase "confidential source"


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26

includes "a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis"). No such clarifying
language was included in Exemption 7(C).
AT&T's textual argument rests largely on the definition of a term, "person,"
that does not even appear in Exemption 7(C). As AT&T points out (Br. at 19,
citing 5 U.S.C. 551(2)), the APA (of which FOIA is a part) defines "person" to
"include an individual, partnership, corporation, association, or public or private
organization other than an agency." AT&T then posits (Br. at 20) that it is a
"`grammatical imperative[]'" that the (undefined) statutory term "personal" must
have the same scope.
Rather than advancing AT&T's argument about the meaning of "personal,"
the statutory definition of "person" actually weakens it. It is because the word
"person" is not commonly understood to include a "corporation" or other entity
that Congress needed to provide a special definition for it in the APA. Without
such a definition, the word "person" would have been interpreted in its everyday
sense to mean an individual. Yet Congress provided no special definition for
"personal" and thus the default rule that statutory terms are to be construed
according to their ordinary meanings applies to that term.
Congress's use of the term "person" in the statute demonstrates why it
decided to provide it with a special and unusually broad definition. For example,
Congress provided that a "person" can file a FOIA request, and it makes sense that
it would have intended corporations to be among the entities that could request
public records. 5 U.S.C. 552(a)(3)(A); 552(a)(6)(C)(i). Even more telling is


Case: 08-4024 Document: 00314857657 Page: 36 Date Filed: 01/16/2009
27

Exemption 4, which protects from disclosure "trade secrets and commercial or
financial information obtained from a person . . . ." Id. 552(b)(4) (emphasis
added). An exemption for commercial information should clearly apply to
corporations. The use of the word "person" in Exemption 4 thus makes perfectly
clear why Congress decided to define it to include them.9
The statute includes no such examples of the use of the word "personal" that
would make clear why Congress would have wanted to give it an unusually broad
definition. To the contrary, the statute's other use of the phrase "personal privacy"
is most naturally read to apply only to individuals. Exemption 6 protects from
disclosure "personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy." 47 U.S.C.
552(b)(6). There is no reason to believe that Congress would have intended the
"personal privacy" discussed in this exemption to apply to corporations; indeed,

9 The presence of Exemption 4 also demonstrates that reading Exemption 7(C) to
exclude corporations nonetheless leaves them with ample protection. Exemption 4
protects competitively sensitive privileged or confidential trade secrets and
commercial or financial information. See 5 U.S.C. 552(b)(4). The corporate
interest that the FOIA protects is disclosure that would result in substantial
competitive harm. "Exemption 4 was intended, according to the legislative
history, to extend privacy to a number of interests," and include information
"considered private and confidential in business life," such as "business sales
statistics, inventories, customer lists, scientific or manufacturing processes or
developments, and negotiating positions." See N.Y. Pub. Interest Research Group
v. U.S. E.P.A.
, 249 F. Supp. 2d 327, 332 (S.D.N.Y. 2003), citing H. Rep. No. 89-
1497, at 10 (1966). The type of business information that AT&T seeks to protect
here (Br. at 26 n.8, 44-45 n.14) would therefore typically be considered under
Exemption 4. The Commission has already redacted all records falling within that
exemption, and AT&T does not challenge those redactions here.


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28

such a reading would be bizarre since corporations do not have "medical files" or
"personnel files" about the corporation itself (personnel files pertain to
individuals). See, e.g., Multi AG Media LLC, 515 F.3d at 1228.
AT&T also points to the Privacy Act of 1974, 5 U.S.C. 552a, claiming (Br.
20) that it "demonstrate[s] that Congress knows how to extend protections
exclusively to natural persons when it intends that result." As AT&T notes, the
Privacy Act's protections apply only to an "individual," which is statutorily
defined to include only natural persons. 5 U.S.C. 552a(a)(2). This definition
certainly demonstrates that Congress intended "individual" and "person" to have
distinct meanings in these statutes, but it says nothing about what Congress
intended "personal" to mean.10
In fact, rather than advancing AT&T's argument, the Privacy Act actually
undermines it. That statute's Congressional findings demonstrate that Congress
understood "personal" to be a synonym to the adjectival version of the word
"individual." For example, Congress described the purpose of the Privacy Act as
"to provide certain safeguards for an individual against an invasion of personal
privacy." Pub. L. No. 93-579, 2(b), 88 Stat. 1896 (codified as amended at 5
U.S.C. 552a) (emphases added). Congress likewise found that "the privacy of
an individual is directly affected by the collection, maintenance, use, and
dissemination of personal information by Federal agencies." Id. 2(a)(1)

10 Likewise, AT&T asserts (Br. at 22) that an inference should be drawn based on
the use of the word "individual" in Exemption 7(F). Again, all this demonstrates is
that Congress intended "individual" and "person" to have different meanings. It
sheds no light on what Congress meant by the word "personal."


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29

(emphases added). Finally, Congress stated that "the right to privacy is a personal
and fundamental right protected by the Constitution of the United States." Id.
2(a)(4) (emphases added). If the Congress that made this pronouncement
thought that the word "personal" encompassed corporations, it would not have
limited the Privacy Act's protections to individuals.
AT&T asserts (Br. at 25) that reading Exemption 7(C) to include a
"corporate privacy" interest is consistent with its purpose, because corporations are
"routinely suspects or cooperating parties (or both) in law-enforcement
investigations,...[and] face the prospect of public embarrassment, harassment, and
stigma based upon their involvement in such investigations." The Commission has
already redacted from the records information about individuals, consistent with
Exemptions 6 and 7(C) and the case-law, as well as competitively sensitive
commercial information under Exemption 4. So all information that could
potentially embarrass individuals will be withheld, as will information that could
competitively harm AT&T. There is no basis to suggest that the exemptions
demand withholding even more information that which is not embarrassing to an
individual or commercially sensitive but that is somehow "embarrassing" to an
abstract corporate entity.
Last, AT&T asserts (Br. at 29-33) that because corporations may be treated
as a "person" and have "privacy interests" in other contexts, they should have
"personal privacy" under Exemption 7(C). The Supreme Court has squarely
rejected that mode of analysis: "The question of the statutory meaning of privacy
under the FOIA is, of course, not the same as the question whether a tort action


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30

might lie for invasion of privacy or the question whether an individual's interest in
privacy is protected by the Constitution." Reporters Committee, 489 U.S. at 762
n.13; see Order 10 (A 12) ("[s]uch reasoning cuts too broadly," because "[t]he
interests underlying other forms of privacy that might be relevant in other contexts
are not controlling for purposes of Exemption 7(C)") (internal quotation omitted).
This case is about statutory construction of FOIA, not the scope or meaning of the
Constitution, and, as demonstrated, FOIA itself makes clear that corporations do
not enjoy "personal privacy" for purposes of Exemption 7(C).


C.

The

Legislative

History

Supports The Commission's




Interpretation Of "Personal Privacy" In Exemption 7(C).

Given the text and structure of FOIA and the consistent judicial
interpretation of it, there is no need to resort to legislative history in this case. In
any event, the legislative history confirms the correctness of the Commission's
interpretation of "personal privacy" in Exemption 7(C).
As an initial matter, Senator Long of Missouri explained in the Report of the
Judiciary Committee when FOIA was first enacted that "[t]he phrase clearly
unwarranted invasion of personal privacy" in Exemption 6 "enunciates a policy
that will involve a balancing of interests between the protection of an individual's
private affairs from unnecessary public scrutiny...." S. Rep. No. 813, 89th Cong.,
1st Sess., 9 (1965).
In 1974, Congress amended FOIA to add a "personal privacy" qualification
to Exemption 7. Exemption 7, in its original 1966 form, had broadly exempted
from disclosure "investigatory files compiled for law enforcement purposes except


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31

to the extent available by law to a private party." John Doe Agency, 493 U.S. at
156. Senator Hart of Michigan successfully offered a floor amendment to provide
that release of such information would be barred only where it would constitute a
"clearly unwarranted" invasion of "personal privacy." See House Comm. on
Government Operations & Senate Comm. on the Judiciary, 94th Cong., 1st Sess.,
Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book:
Legislative History, Texts, and Other Documents (Jt. Comm. Print 1975) ("1975
Source Book"). Senator Hart explained that "the protection for personal privacy"
that was the subject of his amendment "is a part of the sixth exemption in the
present law," and "[b]y adding the protective language here, we simply make clear
that the protections in the sixth exemption for personal privacy also apply to
disclosure under the seventh exemption." Id. Various legislators echoed Senator
Hart's statement, making clear they understood the phrase "personal privacy" to
pertain to individuals. See Remarks of Senator Hruska of Nebraska, 1975 Source
Book at 340 ("[w]e have held extensive hearing on these bills and throughout these
hearings the point has been repeatedly stressed that information in law enforcement
files must be kept in confidence to insure that the individual's right to privacy is
secure"); Statement of Senator Thurmond of South Carolina, Id. at 342 ("we
are...concerned about a mutual problem of invasion of an individual's privacy");
see also Remarks of Senator Kennedy, Id. at 349 ("it was clearly the interpretation
in the Senate's development of [the FOIA] that the investigatory file exemption
would be extremely narrowly defined") (internal quotations omitted).


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32

By letter dated August 20, 1974, President Ford expressed concern to the
conference committee leaders that the amendments to Exemption 7 would not
sufficiently protect individual privacy. See 1975 Source Book at 370 ("I am ...
concerned that an individual's right to privacy would not be appropriately
protected by requiring the disclosure of information contained in an investigatory
file about him unless the invasion of individual privacy is clearly unwarranted ... I
believe now is the time to preclude the Freedom of Information Act from
disclosing information harmful to the privacy of individuals") (emphasis in
original). Senator Kennedy and Representative Moorhead of Pennsylvania
informed the President by letter dated September 23, 1974 that to "respond to your
suggestion on the withholding of information in law enforcement records involving
personal privacy the conference committee agreed to strike the word `clearly' from
the Senate-passed language" (therefore making it more difficult for a requester to
obtain a record pertaining to an individual). Id.
Reading the phrase "personal privacy" to refer only to individuals is also
supported by the Attorney General's Memorandum on the 1974 Amendments to
FOIA, prepared shortly after their enactment. That Memorandum states that "[t]he
phrase personal privacy pertains to the privacy interests of individuals," and "does
not seem applicable to corporations or other entities." See 1975 Source Book at
519 (Appendix 5). The Memorandum was prepared following "an extensive
consultative process" including "the professional staffs of the congressional
committees responsible for the Amendments." Id. at 509 (Foreword). Although
the Memorandum is not entitled to deference, Benavides v. DEA, 968 F.2d 1243,


Case: 08-4024 Document: 00314857657 Page: 42 Date Filed: 01/16/2009
33

1247-48 (D.C. Cir. 1992), the Supreme Court and others have cited the
Memorandum (and other Attorney General Memoranda) as authority for
interpretation of Exemption 7(C) and other FOIA exemptions. Favish, 541 U.S. at
169; F.B.I. v. Abramson, 456 U.S. 615, 622 n.5 (1982); U.S. Dep't of State v.
Washington Post Co., 456 U.S. 595, 602 n.3 (1982); Pratt v. Webster, 673 F.2d
408, 413 n.10 (D.C. Cir. 1982).
The FOIA and Exemption 7 were subsequently amended several times. See
Government in Sunshine Act of 1976, 5 U.S.C. 552b (1982) (amending
Exemption 3); Freedom of Information Reform Act of 1986, Pub. L. No. 99-570,
1801-04, 100 Stat. 3207-48 to -50 (1986) (codified as amended at 5 U.S.C.
552 (amending Exemption 7(C) to read "... could reasonably be expected to
constitute an unwarranted invasion of personal privacy"); Electronic Freedom of
Information Act Amendments of 1996, Pub. L. 104-231, 110 Stat. 3048, 3049
(codified as amended at 5 U.S.C. 552); Intelligence Authorization Act for Fiscal
Year 2003, Pub. L. No. 107-306 116 Stat. 2382, (codified as amended at 5
U.S.C.A. 552(a)(3)(A), (E) (West Supp. 2003)) (limiting ability of foreign agents
to get records from U.S. intelligence agencies); Open Government Act of 2007,
Pub. L. No. 110-175, 121 Stat. 2524. The phrase "personal privacy" was left intact
on each occasion; Congress never saw fit to alter the phrase despite widespread
precedent interpreting it in both Exemptions 6 and 7(C) as applying only to
individual privacy interests. See Delaware River Stevedores v. DiFidelto, 440 F.3d
615, 623 (3d Cir. 2006) ("courts have long recognized that the meaning of a statute


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34

may be inferred partly from the course of its implementation over time") (Fisher J.
concurring).

III. THE FCC, NOT THE COURT, SHOULD

CONDUCT ANY NECESSARY BALANCING TEST.

If the Court reaches the merits of AT&T's challenge, and if the Court
disagrees with the Commission's interpretation of Exemption 7(C) as limited to
individual privacy interests, the appropriate remedy is remand to allow the
Commission to engage in the process of balancing AT&T's alleged privacy interest
against the public interest in disclosure. There is no basis for this Court to accept
AT&T's invitation (Br. at 41) to conduct such balancing itself.
"[U]nder settled principles of administrative law, when a court reviewing
agency action determines that an agency made an error of law, the court's inquiry
is at an end: the case must be remanded to the agency for further action consistent
with the corrected legal standards." N.C. Fisheries Ass'n, Inc. v. Gutierrez, __
F.3d __, 2008 WL 5214642, at *4 (D.C. Cir. Dec. 16, 2008). "Only in
extraordinary circumstances" does a reviewing court "issue detailed remedial
orders." Id.
No such "extraordinary circumstances" are present in this case. There is no
reason for this Court to step into the shoes of the agency and conduct the fact-
intensive balancing that would be required by Exemption 7(C) (if it is found to be
applicable). AT&T would not be harmed by leaving those determinations to the
Commission, as no documents would be released until the Commission made a
decision. Moreover, to the extent AT&T believed such a subsequent decision were


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35

in error, it could seek judicial review again. This Court would then review the
Commission's determination under the arbitrary and capricious standard, Chrysler
Corp., 441 U.S. at 317-18; Occidental Petroleum Corp., 873 F.2d at 337 (D.C. Cir.
1989), not the de novo standard AT&T's request for this Court to make the
determinations itself would necessarily entail.
AT&T asserts (Br. at 43) that "[n]one of the AT&T records that CompTel
seeks contains official information about the FCC or otherwise pertains to the
conduct of the FCC;" therefore no public interest in disclosure exists and no
balancing would be required. But the Commission is not merely a warehouse
storing the records in this case. The records concern an FCC investigation of its
regulatee for alleged violations of rules, orders, and laws enforced by the
Commission. The Commission received AT&T's records in response to a letter of
inquiry, and the FCC's investigation resulted in a public consent decree to which
the Commission is a party. Had this been merely a private matter, the Commission
would not have become involved. The Commission possesses the records,
reviewed them, and already invoked Exemption 7(C) to the ends of its permissible
purpose, by redacting the names and other personally identifiable information of
individuals, thus protecting those individuals' "personal privacy." Should this
Court disagree, the appropriate remedy is remand for the Commission to conduct a
balancing of the interests and ascertain page by page which records may be
withheld.
Additionally, AT&T's request that this Court issue an order providing for
the blanket withholding of all the disputed documents ignores the fact that the


Case: 08-4024 Document: 00314857657 Page: 45 Date Filed: 01/16/2009
36

FOIA requires redaction of portions of records and release of the remainder. See 5
U.S.C. 552(b) (requiring that "[a]ny reasonably segregable portion of a record
shall be provided to any person requesting such record after deletion of the
portions which are exempt"). Any non-exempt information must be segregated
and released, unless the "exempt and nonexempt information are inextricably
intertwined, such that the excision of exempt information would impose significant
costs on the agency and produce an edited document with little informational
value." Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1328 (D.C. Cir. 2000)
(internal quotations omitted), citing 5 U.S.C. 552(b), Neufeld v. IRS, 646 F.2d
661, 666 (D.C. Cir. 1981). Similarly, Exemption 7(C) does not justify wholesale
concealment of entire records, but rather "permits the Government to withhold
only the specific information to which it applies, not the entire page or document in
which the information appears." Mays, 234 F.3d at 1327; Abdelfattah, 488 F.3d at
186 (an "agency cannot justify withholding an entire document simply by showing
that it contains some exempt material") (citations omitted).
AT&T fails to explain, much less establish, why every single part of every
single page of the records should be covered by Exemption 7(C). Accordingly, in
the event this Court finds that Exemption 7(C) protects AT&T's "personal
privacy," it should remand to the Commission for it to conduct the required
balancing and required redactions.





Case: 08-4024 Document: 00314857657 Page: 46 Date Filed: 01/16/2009
37


CONCLUSION

Based on the foregoing, this Court should deny the petition for review.



Respectfully submitted,



DEBORAH A. GARZA
MATTHEW B. BERRY
ACTING ASSISTANT ATTORNEY GENERAL GENERAL COUNSEL
JAMES J. O'CONNELL, JR.

DEPUTY ASSISTANT ATTORNEY GENERAL JOSEPH L. PALMORE
DEPUTY GENERAL COUNSEL

CATHERINE G. O'SULLIVAN

ROBERT J. WIGGERS
A
S
TTORNEYS
USAN L. LAUNER
DEPUTY ASSOCIATE GENERAL COUNSEL


UNITED STATES DEPARTMENT OF JUSTICE /S/MICHAEL A. KRASNOW
WASHINGTON, D.C. 20530
MICHAEL A. KRASNOW

COUNSEL


FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740 (TELEPHONE)
(202) 418-2819 (FAX)


January 16, 2009



Case: 08-4024 Document: 00314857657 Page: 47 Date Filed: 01/16/2009

COMBINED CERTIFICATIONS



Bar

Membership

: Pursuant to Third Circuit Rules 28.3(d) and
46.1(e), and the Committee Comments on Third Circuit Rule 28.3, I hereby
certify that I am an attorney employed with the Federal Government and
thus bar membership in the Third Circuit is not required.

Compliance with Fed. R. App. P. 32(a)

: I hereby certify, pursuant to
Fed. R. App. P. 32(a)(7)(C), that this brief complies with the applicable
type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because it contains
9,438 words, excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii). This brief has been prepared in proportionally spaced
typeface using Microsoft Office Word 2003 in 14-point Times New Roman
font, and accordingly complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6).

Identical Compliance of Briefs

: I hereby certify, pursuant to Third
Circuit Rule 31.1(c), that the text of the electronic (PDF) version of this brief
(filed with the Court on its electronic filing system) is identical to the text in
the paper copies of the brief sent to the Court via overnight mail.



Case: 08-4024 Document: 00314857657 Page: 48 Date Filed: 01/16/2009

Virus Check

: I hereby certify, pursuant to Third Circuit Rule 31.1(c),
that a virus detection program (Symantec AntiVirus, version 10.1.6.1610)
has been run on the electronic version of the brief and that no viruses have
been detected.




/s/ Michael A. Krasnow 0

Michael A. Krasnow
Federal
Communications
Commission

Office of General Counsel
445
12th
Street,
S.W.
Washington,
D.C.

20554
(202)
418-1740


Counsel for the FCC

January 16, 2009

Case: 08-4024 Document: 00314857657 Page: 49 Date Filed: 01/16/2009
















ADDENDUM



















Case: 08-4024 Document: 00314857657 Page: 50 Date Filed: 01/16/2009

TABLE OF CONTENTS





United
States
Code:
Page


Freedom of Information Act, 5 U.S.C. 552 ................................. Add. 1


47 U.S.C. 405 ................................................................... Add. 18

Code of Federal Regulations:


47 C.F.R. 0.457.................................................................. Add. 20


47 C.F.R. 0.459.................................................................. Add. 26


47 C.F.R. 0.461.................................................................. Add. 29






Case: 08-4024 Document: 00314857657 Page: 51 Date Filed: 01/16/2009
5 U.S.C.A. 552


UNITED STATES CODE ANNOTATED
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 5--ADMINISTRATIVE PROCEDURE
SUBCHAPTER II--ADMINISTRATIVE PROCEDURE

552. Public information; agency rules, opinions, orders, records, and proceedings


(a) Each agency shall make available to the public information as follows:

(1) Each agency shall separately state and currently publish in the Federal Register for the
guidance of the public--

(A) descriptions of its central and field organization and the established places at which,
the employees (and in the case of a uniformed service, the members) from whom, and the
methods whereby, the public may obtain information, make submittals or requests, or
obtain decisions;

(B) statements of the general course and method by which its functions are channeled and
determined, including the nature and requirements of all formal and informal procedures
available;

(C) rules of procedure, descriptions of forms available or the places at which forms may
be obtained, and instructions as to the scope and contents of all papers, reports, or
examinations;

(D) substantive rules of general applicability adopted as authorized by law, and
statements of general policy or interpretations of general applicability formulated and
adopted by the agency; and



Add. 1



Case: 08-4024 Document: 00314857657 Page: 52 Date Filed: 01/16/2009
(E) each amendment, revision, or repeal of the foregoing.

Except to the extent that a person has actual and timely notice of the terms thereof, a
person may not in any manner be required to resort to, or be adversely affected by, a
matter required to be published in the Federal Register and not so published. For the
purpose of this paragraph, matter reasonably available to the class of persons affected
thereby is deemed published in the Federal Register when incorporated by reference
therein with the approval of the Director of the Federal Register.

(2) Each agency, in accordance with published rules, shall make available for public
inspection and copying--

(A) final opinions, including concurring and dissenting opinions, as well as orders, made
in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency
and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the
public;

(D) copies of all records, regardless of form or format, which have been released to any
person under paragraph (3) and which, because of the nature of their subject matter, the
agency determines have become or are likely to become the subject of subsequent
requests for substantially the same records; and

(E) a general index of the records referred to under subparagraph (D);

unless the materials are promptly published and copies offered for sale. For records
created on or after November 1, 1996, within one year after such date, each agency shall
make such records available, including by computer telecommunications or, if computer
telecommunications means have not been established by the agency, by other electronic
means. To the extent required to prevent a clearly unwarranted invasion of personal
privacy, an agency may delete identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, staff manual, instruction, or copies of records
referred to in subparagraph (D). However, in each case the justification for the deletion
shall be explained fully in writing, and the extent of such deletion shall be indicated on
the portion of the record which is made available or published, unless including that
indication would harm an interest protected by the exemption in subsection (b) under
which the deletion is made. If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was made. Each agency shall also

Add. 2



Case: 08-4024 Document: 00314857657 Page: 53 Date Filed: 01/16/2009
maintain and make available for public inspection and copying current indexes providing
identifying information for the public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph to be made available or published. Each
agency shall promptly publish, quarterly or more frequently, and distribute (by sale or
otherwise) copies of each index or supplements thereto unless it determines by order
published in the Federal Register that the publication would be unnecessary and
impracticable, in which case the agency shall nonetheless provide copies of such index on
request at a cost not to exceed the direct cost of duplication. Each agency shall make the
index referred to in subparagraph (E) available by computer telecommunications by
December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff
manual or instruction that affects a member of the public may be relied on, used, or cited
as precedent by an agency against a party other than an agency only if--

(i) it has been indexed and either made available or published as provided by this
paragraph; or

(ii) the party has actual and timely notice of the terms thereof.

(3)(A) Except with respect to the records made available under paragraphs (1) and (2) of
this subsection, and except as provided in subparagraph (E), each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if any), and procedures to
be followed, shall make the records promptly available to any person.

(B) In making any record available to a person under this paragraph, an agency shall
provide the record in any form or format requested by the person if the record is readily
reproducible by the agency in that form or format. Each agency shall make reasonable
efforts to maintain its records in forms or formats that are reproducible for purposes of
this section.

(C) In responding under this paragraph to a request for records, an agency shall make
reasonable efforts to search for the records in electronic form or format, except when
such efforts would significantly interfere with the operation of the agency's automated
information system.

(D) For purposes of this paragraph, the term "search" means to review, manually or by
automated means, agency records for the purpose of locating those records which are
responsive to a request.

(E) An agency, or part of an agency, that is an element of the intelligence community (as
that term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4))) shall not make any record available under this paragraph to--

Add. 3



Case: 08-4024 Document: 00314857657 Page: 54 Date Filed: 01/16/2009
(i) any government entity, other than a State, territory, commonwealth, or district of the
United States, or any subdivision thereof; or

(ii) a representative of a government entity described in clause (i).

(4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate
regulations, pursuant to notice and receipt of public comment, specifying the schedule of
fees applicable to the processing of requests under this section and establishing
procedures and guidelines for determining when such fees should be waived or reduced.
Such schedule shall conform to the guidelines which shall be promulgated, pursuant to
notice and receipt of public comment, by the Director of the Office of Management and
Budget and which shall provide for a uniform schedule of fees for all agencies.

(ii) Such agency regulations shall provide that--

(I) fees shall be limited to reasonable standard charges for document search, duplication,
and review, when records are requested for commercial use;

(II) fees shall be limited to reasonable standard charges for document duplication when
records are not sought for commercial use and the request is made by an educational or
noncommercial scientific institution, whose purpose is scholarly or scientific research; or
a representative of the news media; and

(III) for any request not described in (I) or (II), fees shall be limited to reasonable
standard charges for document search and duplication.

In this clause, the term "a representative of the news media" means any person or entity
that gathers information of potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and distributes that work to an
audience. In this clause, the term "news" means information that is about current events
or that would be of current interest to the public. Examples of news-media entities are
television or radio stations broadcasting to the public at large and publishers of
periodicals (but only if such entities qualify as disseminators of "news") who make their
products available for purchase by or subscription by or free distribution to the general
public. These examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of newspapers through
telecommunications services), such alternative media shall be considered to be news-
media entities. A freelance journalist shall be regarded as working for a news-media
entity if the journalist can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the entity. A publication
contract would present a solid basis for such an expectation; the Government may also
consider the past publication record of the requester in making such a determination.

Add. 4



Case: 08-4024 Document: 00314857657 Page: 55 Date Filed: 01/16/2009
(iii) Documents shall be furnished without any charge or at a charge reduced below the
fees established under clause (ii) if disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial interest of the
requester.

(iv) Fee schedules shall provide for the recovery of only the direct costs of search,
duplication, or review. Review costs shall include only the direct costs incurred during
the initial examination of a document for the purposes of determining whether the
documents must be disclosed under this section and for the purposes of withholding any
portions exempt from disclosure under this section. Review costs may not include any
costs incurred in resolving issues of law or policy that may be raised in the course of
processing a request under this section. No fee may be charged by any agency under this
section--

(I) if the costs of routine collection and processing of the fee are likely to equal or exceed
the amount of the fee; or

(II) for any request described in clause (ii)(II) or (III) of this subparagraph for the first
two hours of search time or for the first one hundred pages of duplication.

(v) No agency may require advance payment of any fee unless the requester has
previously failed to pay fees in a timely fashion, or the agency has determined that the fee
will exceed $250.

(vi) Nothing in this subparagraph shall supersede fees chargeable under a statute
specifically providing for setting the level of fees for particular types of records.

(vii) In any action by a requester regarding the waiver of fees under this section, the court
shall determine the matter de novo: Provided, That the court's review of the matter shall
be limited to the record before the agency.

(B) On complaint, the district court of the United States in the district in which the
complainant resides, or has his principal place of business, or in which the agency records
are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall determine the matter de
novo, and may examine the contents of such agency records in camera to determine
whether such records or any part thereof shall be withheld under any of the exemptions
set forth in subsection (b) of this section, and the burden is on the agency to sustain its
action. In addition to any other matters to which a court accords substantial weight, a

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Case: 08-4024 Document: 00314857657 Page: 56 Date Filed: 01/16/2009
court shall accord substantial weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility under paragraph (2)(C) and subsection (b) and
reproducibility under paragraph (3)(B).

(C) Notwithstanding any other provision of law, the defendant shall serve an answer or
otherwise plead to any complaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such complaint is made, unless the
court otherwise directs for good cause shown.

[(D) Repealed. Pub.L. 98-620, Title IV, 402(2), Nov. 8, 1984, 98 Stat. 3357]

(E)(i) The court may assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed.

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the
complainant has obtained relief through either--

(I) a judicial order, or an enforceable written agreement or consent decree; or

(II) a voluntary or unilateral change in position by the agency, if the complainant's claim
is not insubstantial.

(F)(i) Whenever the court orders the production of any agency records improperly
withheld from the complainant and assesses against the United States reasonable attorney
fees and other litigation costs, and the court additionally issues a written finding that the
circumstances surrounding the withholding raise questions whether agency personnel
acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall
promptly initiate a proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for the withholding. The
Special Counsel, after investigation and consideration of the evidence submitted, shall
submit his findings and recommendations to the administrative authority of the agency
concerned and shall send copies of the findings and recommendations to the officer or
employee or his representative. The administrative authority shall take the corrective
action that the Special Counsel recommends.

(ii) The Attorney General shall--

(I) notify the Special Counsel of each civil action described under the first sentence of
clause (i); and


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Case: 08-4024 Document: 00314857657 Page: 57 Date Filed: 01/16/2009
(II) annually submit a report to Congress on the number of such civil actions in the
preceding year.

(iii) The Special Counsel shall annually submit a report to Congress on the actions taken
by the Special Counsel under clause (i).

(G) In the event of noncompliance with the order of the court, the district court may
punish for contempt the responsible employee, and in the case of a uniformed service, the
responsible member.

(5) Each agency having more than one member shall maintain and make available for
public inspection a record of the final votes of each member in every agency proceeding.

(6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of
this subsection, shall--

(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of any such request whether to comply with such request and shall
immediately notify the person making such request of such determination and the reasons
therefor, and of the right of such person to appeal to the head of the agency any adverse
determination; and

(ii) make a determination with respect to any appeal within twenty days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on
appeal the denial of the request for records is in whole or in part upheld, the agency shall
notify the person making such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.

(B)(i) In unusual circumstances as specified in this subparagraph, the time limits
prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by
written notice to the person making such request setting forth the unusual circumstances
for such extension and the date on which a determination is expected to be dispatched.
No such notice shall specify a date that would result in an extension for more than ten
working days, except as provided in clause (ii) of this subparagraph.

(ii) With respect to a request for which a written notice under clause (i) extends the time
limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person
making the request if the request cannot be processed within the time limit specified in
that clause and shall provide the person an opportunity to limit the scope of the request so

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Case: 08-4024 Document: 00314857657 Page: 58 Date Filed: 01/16/2009
that it may be processed within that time limit or an opportunity to arrange with the
agency an alternative time frame for processing the request or a modified request. Refusal
by the person to reasonably modify the request or arrange such an alternative time frame
shall be considered as a factor in determining whether exceptional circumstances exist for
purposes of subparagraph (C).

(iii) As used in this subparagraph, "unusual circumstances" means, but only to the extent
reasonably necessary to the proper processing of the particular requests--

(I) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;

(II) the need to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are demanded in a single request; or

(III) the need for consultation, which shall be conducted with all practicable speed, with
another agency having a substantial interest in the determination of the request or among
two or more components of the agency having substantial subject-matter interest therein.

(iv) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for the aggregation of certain requests by the same requestor, or by a
group of requestors acting in concert, if the agency reasonably believes that such requests
actually constitute a single request, which would otherwise satisfy the unusual
circumstances specified in this subparagraph, and the requests involve clearly related
matters. Multiple requests involving unrelated matters shall not be aggregated.

(C)(i) Any person making a request to any agency for records under paragraph (1), (2), or
(3) of this subsection shall be deemed to have exhausted his administrative remedies with
respect to such request if the agency fails to comply with the applicable time limit
provisions of this paragraph. If the Government can show exceptional circumstances exist
and that the agency is exercising due diligence in responding to the request, the court may
retain jurisdiction and allow the agency additional time to complete its review of the
records. Upon any determination by an agency to comply with a request for records, the
records shall be made promptly available to such person making such request. Any
notification of denial of any request for records under this subsection shall set forth the
names and titles or positions of each person responsible for the denial of such request.

(ii) For purposes of this subparagraph, the term "exceptional circumstances" does not
include a delay that results from a predictable agency workload of requests under this
section, unless the agency demonstrates reasonable progress in reducing its backlog of
pending requests.


Add. 8



Case: 08-4024 Document: 00314857657 Page: 59 Date Filed: 01/16/2009
(iii) Refusal by a person to reasonably modify the scope of a request or arrange an
alternative time frame for processing a request (or a modified request) under clause (ii)
after being given an opportunity to do so by the agency to whom the person made the
request shall be considered as a factor in determining whether exceptional circumstances
exist for purposes of this subparagraph.

(D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public
comment, providing for multitrack processing of requests for records based on the
amount of work or time (or both) involved in processing requests.

(ii) Regulations under this subparagraph may provide a person making a request that does
not qualify for the fastest multitrack processing an opportunity to limit the scope of the
request in order to qualify for faster processing.

(iii) This subparagraph shall not be considered to affect the requirement under
subparagraph (C) to exercise due diligence.

(E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public
comment, providing for expedited processing of requests for records--

(I) in cases in which the person requesting the records demonstrates a compelling need;
and

(II) in other cases determined by the agency.

(ii) Notwithstanding clause (i), regulations under this subparagraph must ensure--

(I) that a determination of whether to provide expedited processing shall be made, and
notice of the determination shall be provided to the person making the request, within 10
days after the date of the request; and

(II) expeditious consideration of administrative appeals of such determinations of
whether to provide expedited processing.

(iii) An agency shall process as soon as practicable any request for records to which the
agency has granted expedited processing under this subparagraph. Agency action to deny
or affirm denial of a request for expedited processing pursuant to this subparagraph, and
failure by an agency to respond in a timely manner to such a request shall be subject to

Add. 9



Case: 08-4024 Document: 00314857657 Page: 60 Date Filed: 01/16/2009
judicial review under paragraph (4), except that the judicial review shall be based on the
record before the agency at the time of the determination.

(iv) A district court of the United States shall not have jurisdiction to review an agency
denial of expedited processing of a request for records after the agency has provided a
complete response to the request.

(v) For purposes of this subparagraph, the term "compelling need" means--

(I) that a failure to obtain requested records on an expedited basis under this paragraph
could reasonably be expected to pose an imminent threat to the life or physical safety of
an individual; or

(II) with respect to a request made by a person primarily engaged in disseminating
information, urgency to inform the public concerning actual or alleged Federal
Government activity.

(vi) A demonstration of a compelling need by a person making a request for expedited
processing shall be made by a statement certified by such person to be true and correct to
the best of such person's knowledge and belief.

(F) In denying a request for records, in whole or in part, an agency shall make a
reasonable effort to estimate the volume of any requested matter the provision of which is
denied, and shall provide any such estimate to the person making the request, unless
providing such estimate would harm an interest protected by the exemption in subsection
(b) pursuant to which the denial is made.

(b) This section does not apply to matters that are--

(1) (A) specifically authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order;

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title),
provided that such statute (A) requires that the matters be withheld from the public in

Add. 10



Case: 08-4024 Document: 00314857657 Page: 61 Date Filed: 01/16/2009
such a manner as to leave no discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be withheld;

(4) trade secrets and commercial or financial information obtained from a person and
privileged or confidential;

(5) inter-agency or intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information (A) could reasonably
be expected to interfere with enforcement proceedings, (B) would deprive a person of a
right to a fair trial or an impartial adjudication, (C) could reasonably be expected to
constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected
to disclose the identity of a confidential source, including a State, local, or foreign agency
or authority or any private institution which furnished information on a confidential basis,
and, in the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, information furnished by a confidential
source, (E) would disclose techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the
law, or (F) could reasonably be expected to endanger the life or physical safety of any
individual;

(8) contained in or related to examination, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the regulation or supervision of
financial institutions; or

(9) geological and geophysical information and data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under this subsection. The
amount of information deleted, and the exemption under which the deletion is made, shall
be indicated on the released portion of the record, unless including that indication would
harm an interest protected by the exemption in this subsection under which the deletion is
made. If technically feasible, the amount of the information deleted, and the exemption
under which the deletion is made, shall be indicated at the place in the record where such
deletion is made.

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Case: 08-4024 Document: 00314857657 Page: 62 Date Filed: 01/16/2009
(c)(1) Whenever a request is made which involves access to records described in
subsection (b)(7)(A) and--

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not
aware of its pendency, and (ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings, the agency may, during only such
time as that circumstance continues, treat the records as not subject to the requirements of
this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under
an informant's name or personal identifier are requested by a third party according to the
informant's name or personal identifier, the agency may treat the records as not subject to
the requirements of this section unless the informant's status as an informant has been
officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the
Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence,
or international terrorism, and the existence of the records is classified information as
provided in subsection (b)(1), the Bureau may, as long as the existence of the records
remains classified information, treat the records as not subject to the requirements of this
section.

(d) This section does not authorize withholding of information or limit the availability of
records to the public, except as specifically stated in this section. This section is not
authority to withhold information from Congress.

(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney
General of the United States a report which shall cover the preceding fiscal year and
which shall include--

(A) the number of determinations made by the agency not to comply with requests for
records made to such agency under subsection (a) and the reasons for each such
determination;

(B)(i) the number of appeals made by persons under subsection (a)(6), the result of such
appeals, and the reason for the action upon each appeal that results in a denial of
information; and

(ii) a complete list of all statutes that the agency relies upon to authorize the agency to
withhold information under subsection (b)(3), the number of occasions on which each

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Case: 08-4024 Document: 00314857657 Page: 63 Date Filed: 01/16/2009
statute was relied upon, a description of whether a court has upheld the decision of the
agency to withhold information under each such statute, and a concise description of the
scope of any information withheld;

(C) the number of requests for records pending before the agency as of September 30 of
the preceding year, and the median and average number of days that such requests had
been pending before the agency as of that date;

(D) the number of requests for records received by the agency and the number of requests
which the agency processed;

(E) the median number of days taken by the agency to process different types of requests,
based on the date on which the requests were received by the agency;

(F) the average number of days for the agency to respond to a request beginning on the
date on which the request was received by the agency, the median number of days for the
agency to respond to such requests, and the range in number of days for the agency to
respond to such requests;

(G) based on the number of business days that have elapsed since each request was
originally received by the agency--

(i) the number of requests for records to which the agency has responded with a
determination within a period up to and including 20 days, and in 20-day increments up
to and including 200 days;

(ii) the number of requests for records to which the agency has responded with a
determination within a period greater than 200 days and less than 301 days;

(iii) the number of requests for records to which the agency has responded with a
determination within a period greater than 300 days and less than 401 days; and

(iv) the number of requests for records to which the agency has responded with a
determination within a period greater than 400 days;

(H) the average number of days for the agency to provide the granted information
beginning on the date on which the request was originally filed, the median number of

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Case: 08-4024 Document: 00314857657 Page: 64 Date Filed: 01/16/2009
days for the agency to provide the granted information, and the range in number of days
for the agency to provide the granted information;

(I) the median and average number of days for the agency to respond to administrative
appeals based on the date on which the appeals originally were received by the agency,
the highest number of business days taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by the agency to respond to an
administrative appeal;

(J) data on the 10 active requests with the earliest filing dates pending at each agency,
including the amount of time that has elapsed since each request was originally received
by the agency;

(K) data on the 10 active administrative appeals with the earliest filing dates pending
before the agency as of September 30 of the preceding year, including the number of
business days that have elapsed since the requests were originally received by the agency;

(L) the number of expedited review requests that are granted and denied, the average and
median number of days for adjudicating expedited review requests, and the number
adjudicated within the required 10 days;

(M) the number of fee waiver requests that are granted and denied, and the average and
median number of days for adjudicating fee waiver determinations;

(N) the total amount of fees collected by the agency for processing requests; and

(O) the number of full-time staff of the agency devoted to processing requests for records
under this section, and the total amount expended by the agency for processing such
requests.

(2) Information in each report submitted under paragraph (1) shall be expressed in terms
of each principal component of the agency and for the agency overall.

(3) Each agency shall make each such report available to the public including by
computer telecommunications, or if computer telecommunications means have not been
established by the agency, by other electronic means. In addition, each agency shall make
the raw statistical data used in its reports available electronically to the public upon
request.

(4) The Attorney General of the United States shall make each report which has been
made available by electronic means available at a single electronic access point. The

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Case: 08-4024 Document: 00314857657 Page: 65 Date Filed: 01/16/2009
Attorney General of the United States shall notify the Chairman and ranking minority
member of the Committee on Government Reform and Oversight of the House of
Representatives and the Chairman and ranking minority member of the Committees on
Governmental Affairs and the Judiciary of the Senate, no later than April 1 of the year in
which each such report is issued, that such reports are available by electronic means.

(5) The Attorney General of the United States, in consultation with the Director of the
Office of Management and Budget, shall develop reporting and performance guidelines
in connection with reports required by this subsection by October 1, 1997, and may
establish additional requirements for such reports as the Attorney General determines
may be useful.

(6) The Attorney General of the United States shall submit an annual report on or before
April 1 of each calendar year which shall include for the prior calendar year a listing of
the number of cases arising under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed under subparagraphs
(E), (F), and (G) of subsection (a)(4). Such report shall also include a description of the
efforts undertaken by the Department of Justice to encourage agency compliance with
this section.

(f) For purposes of this section, the term--

(1) "agency" as defined in section 551(1) of this title includes any executive department,
military department, Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency; and

(2) "record" and any other term used in this section in reference to information includes--

(A) any information that would be an agency record subject to the requirements of this
section when maintained by an agency in any format, including an electronic format; and

(B) any information described under subparagraph (A) that is maintained for an agency
by an entity under Government contract, for the purposes of records management.

(g) The head of each agency shall prepare and make publicly available upon request,
reference material or a guide for requesting records or information from the agency,
subject to the exemptions in subsection (b), including--

(1) an index of all major information systems of the agency;


Add. 15



Case: 08-4024 Document: 00314857657 Page: 66 Date Filed: 01/16/2009
(2) a description of major information and record locator systems maintained by the
agency; and

(3) a handbook for obtaining various types and categories of public information from the
agency pursuant to chapter 35 of title 44, and under this section.

(h)(1) There is established the Office of Government Information Services within the
National Archives and Records Administration.

(2) The Office of Government Information Services shall--

(A) review policies and procedures of administrative agencies under this section;

(B) review compliance with this section by administrative agencies; and

(C) recommend policy changes to Congress and the President to improve the
administration of this section.

(3) The Office of Government Information Services shall offer mediation services to
resolve disputes between persons making requests under this section and administrative
agencies as a non-exclusive alternative to litigation and, at the discretion of the Office,
may issue advisory opinions if mediation has not resolved the dispute.

(i) The Government Accountability Office shall conduct audits of administrative agencies
on the implementation of this section and issue reports detailing the results of such audits.

(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of
such agency (at the Assistant Secretary or equivalent level).

(k) The Chief FOIA officer of each agency shall, subject to the authority of the head of
the agency--

(1) have agency-wide responsibility for efficient and appropriate compliance with this
section;

(2) monitor implementation of this section throughout the agency and keep the head of
the agency, the chief legal officer of the agency, and the Attorney General appropriately
informed of the agency's performance in implementing this section;

(3) recommend to the head of the agency such adjustments to agency practices, policies,
personnel, and funding as may be necessary to improve its implementation of this
section;

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Case: 08-4024 Document: 00314857657 Page: 67 Date Filed: 01/16/2009
(4) review and report to the Attorney General, through the head of the agency, at such
times and in such formats as the Attorney General may direct, on the agency's
performance in implementing this section;

(5) facilitate public understanding of the purposes of the statutory exemptions of this
section by including concise descriptions of the exemptions in both the agency's
handbook issued under subsection (g), and the agency's annual report on this section, and
by providing an overview, where appropriate, of certain general categories of agency
records to which those exemptions apply; and

(6) designate one or more FOIA Public Liaisons.

(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall serve as
supervisory officials to whom a requester under this section can raise concerns about the
service the requester has received from the FOIA Requester Center, following an initial
response from the FOIA Requester Center Staff. FOIA Public Liaisons shall be
responsible for assisting in reducing delays, increasing transparency and understanding of
the status of requests, and assisting in the resolution of disputes.




















Add. 17



Case: 08-4024 Document: 00314857657 Page: 68 Date Filed: 01/16/2009
47 U.S.C.A. 405



UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5--WIRE OR RADIO COMMUNICATION
SUBCHAPTER IV--PROCEDURAL AND ADMINISTRATIVE PROVISIONS


405. Petition for reconsideration; procedure; disposition; time of filing;
additional evidence; time for disposition of petition for reconsideration of order
concluding hearing or investigation; appeal of order.

(a) After an order, decision, report, or action has been made or taken in any proceeding
by the Commission, or by any designated authority within the Commission pursuant to a
delegation under section 155(c)(1) of this title, any party thereto, or any other person
aggrieved or whose interests are adversely affected thereby, may petition for
reconsideration only to the authority making or taking the order, decision, report, or
action; and it shall be lawful for such authority, whether it be the Commission or other
authority designated under section 155(c)(1) of this title, in its discretion, to grant such a
reconsideration if sufficient reason therefor be made to appear. A petition for
reconsideration must be filed within thirty days from the date upon which public notice is
given of the order, decision, report, or action complained of. No such application shall
excuse any person from complying with or obeying any order, decision, report, or action
of the Commission, or operate in any manner to stay or postpone the enforcement thereof,
without the special order of the Commission. The filing of a petition for reconsideration
shall not be a condition precedent to judicial review of any such order, decision, report, or
action, except where the party seeking such review (1) was not a party to the proceedings
resulting in such order, decision, report, or action, or (2) relies on questions of fact or law
upon which the Commission, or designated authority within the Commission, has been
afforded no opportunity to pass. The Commission, or designated authority within the
Commission, shall enter an order, with a concise statement of the reasons therefor,
denying a petition for reconsideration or granting such petition, in whole or in part, and
ordering such further proceedings as may be appropriate: Provided, That in any case
where such petition relates to an instrument of authorization granted without a hearing,
the Commission, or designated authority within the Commission, shall take such action
within ninety days of the filing of such petition. Reconsiderations shall be governed by
such general rules as the Commission may establish, except that no evidence other than
newly discovered evidence, evidence which has become available only since the original
taking of evidence, or evidence which the Commission or designated authority within the
Commission believes should have been taken in the original proceeding shall be taken on
any reconsideration. The time within which a petition for review must be filed in a


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Case: 08-4024 Document: 00314857657 Page: 69 Date Filed: 01/16/2009

proceeding to which section 402(a) of this title applies, or within which an appeal must
be taken under section 402(b) of this title in any case, shall be computed from the date
upon which the Commission gives public notice of the order, decision, report, or action
complained of.


(b)(1) Within 90 days after receiving a petition for reconsideration of an order concluding
a hearing under section 204(a) of this title or concluding an investigation under section
208(b) of this title, the Commission shall issue an order granting or denying such petition.

(2) Any order issued under paragraph (1) shall be a final order and may be appealed
under section 402(a) of this title.























Add. 19



Case: 08-4024 Document: 00314857657 Page: 70 Date Filed: 01/16/2009
47 C.F.R. 0.457


CODE OF FEDERAL REGULATIONS
TITLE 47. TELECOMMUNICATION
CHAPTER I. FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER A. GENERAL
PART 0. COMMISSION ORGANIZATION
SUBPART C. GENERAL INFORMATION
PUBLIC INFORMATION AND INSPECTION OF RECORDS

0.457 Records not routinely available for public inspection.

The records listed in this section are not routinely available for public inspection. The
records are listed in this section by category, according to the statutory basis for
withholding those records from inspection; and under each category, if appropriate, the
underlying policy considerations affecting the withholding and disclosure of records in
that category are briefly outlined. Except where the records are not the property of the
Commission or where the disclosure of those records is prohibited by law, the
Commission will entertain requests from members of the public under 0.461 for
permission to inspect particular records withheld from inspection under the provisions of
this section, and will weigh the policy considerations favoring non-disclosure against the
reasons cited for permitting inspection in the light of the facts of the particular case. In
making such requests, it is important to appreciate that there may be more than one basis
for withholding particular records from inspection. The listing of records by category is
not intended to imply the contrary but is solely for the information and assistance of
persons making such requests. Requests to inspect or copy the transcripts, recordings or
minutes of agency or advisory committee meetings will be considered under 0.603
rather than under the provisions of this section.

(a) Materials that are specifically authorized under criteria established by Executive
Order to be kept secret in the interest of national defense or foreign policy and are in fact
properly classified pursuant to such Executive Order, 5 U.S.C. 552(b)(1).

(1) E.O. 10450, "Security Requirements for Government Employees," 18 FR 2489, April
27, 1953, 3 CFR, 1949-1953 Comp., p. 936. Pursuant to the provisions of E.O. 10450,
reports and other material and information developed in security investigations are the

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Case: 08-4024 Document: 00314857657 Page: 71 Date Filed: 01/16/2009
property of the investigative agency. If they are retained by the Commission, it is
required that they be maintained in confidence and that no access be given to them
without the consent of the investigative agency. Such materials and information will not
be made available for public inspection. See also paragraphs (f) and (g) of this section.

(2) E.O. 10501, "Safeguarding Official Information in the Interests of the Defense of the
United States," 18 FR 7049, November 10, 1953, as amended, 3 CFR, 1965 ed., p. 450.
E.O. 10501, as amended, provides for the classification of official information which
requires protection in the interests of national defense, and prohibits the disclosure of
classified information except as provided therein. Classified materials and information
will not be made available for public inspection. See also, E.O. 10033, February 8, 1949,
14 FR 561, 3 CFR, 1949-1953 Comp., p. 226, and 47 U.S.C. 154(j).

(b) Materials that are related solely to the internal personnel rules and practices of the
Commission, 5 U.S.C. 552(b)(2).

(1) Materials related solely to internal management matters, including minutes of
Commission actions on such matters. Such materials may be made available for
inspection under 0.461, however, unless their disclosure would interfere with or
prejudice the performance of the internal management functions to which they relate, or
unless their disclosure would constitute a clearly unwarranted invasion of personal
privacy (see paragraph (f) of this section).

(2) Materials relating to the negotiation of contracts.

(3) All materials used in conducting radio operator examinations, including test booklets,
Morse Code tapes, and scoring masks.

(c) Materials that are specifically exempted from disclosure by statute (other than the
Government in the Sunshine Act, 5 U.S.C. 552b): Provided, That such statute (1) requires
that the materials be withheld from the public in such a manner as to leave no discretion
on the issue, or (2) establishes particular criteria for withholding or refers to particular
types of materials to be withheld. The Commission is authorized under the following
statutory provisions to withhold materials from public inspection.

(1) Section 4(j) of the Communications Act, 47 U.S.C. 154(j), provides, in part, that,
"The Commission is authorized to withhold publication of records or proceedings
containing secret information affecting the national defense." Pursuant to that provision,
it has been determined that the following materials should be withheld from public
inspection (see also paragraph (a) of this section):


Add. 21



Case: 08-4024 Document: 00314857657 Page: 72 Date Filed: 01/16/2009
(i) Maps showing the exact location of submarine cables.

(ii) Minutes of Commission actions on classified matters.

(iii) Maps of nation-wide point-to-point microwave networks.

(2) Under section 213(f) of the Communications Act, 47 U.S.C. 213(f), the Commission
is authorized to order, with the reasons therefor, that records and data pertaining to the
valuation of the property of common carriers and furnished to the Commission by the
carriers pursuant to the provisions of that section, shall not be available for public
inspection. If such an order has been issued, the data and records will be withheld from
public inspection, except under the provisions of 0.461. Normally, however, such data
and information is available for inspection. See 0.455(c)(8).

(3) Under section 412 of the Communications Act, 47 U.S.C. 412, the Commission may
withhold from public inspection certain contracts, agreements and arrangements between
common carriers relating to foreign wire or radio communication. Reports of negotiations
regarding such foreign communication matters, filed by carriers under 43.52 of this
chapter, may also be withheld from public inspection under section 412. Any person may
file a petition requesting that such materials be withheld from public inspection. To
support such action, the petition must show that the contract, agreement or arrangement
relates to foreign wire or radio communications; that its publication would place
American communication companies at a disadvantage in meeting the competition of
foreign communication companies; and that the public interest would be served by
keeping its terms confidential. If the Commission orders that such materials be kept
confidential, they will be made available for inspection only under the provisions of
0.461.

(4) Section 605 of the Communications Act, 47 U.S.C. 605, provides, in part, that, "no
person not being authorized by the sender shall intercept any communication [by wire or
radio] and divulge or publish the existence, contents, substance, purport, effect, or
meaning of such intercepted communications to any person." In executing its
responsibilities, the Commission regularly monitors radio transmissions (see 0.116).
Except as required for the enforcement of the communications laws, treaties and the
provisions of this chapter, or as authorized in section 605, the Commission is prohibited
from divulging information obtained in the course of these monitoring activities; and
such information, and materials relating thereto, will not be made available for public
inspection.

(5) Section 1905 of the Criminal Code, 18 U.S.C. 1905, prohibits the unauthorized
disclosure of certain confidential information. See paragraph (d) of this section.


Add. 22



Case: 08-4024 Document: 00314857657 Page: 73 Date Filed: 01/16/2009
(d) Trade secrets and commercial or financial information obtained from any person and
privileged or confidential--categories of materials not routinely available for public
inspection, 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905.

(1) The materials listed in this subparagraph have been accepted, or are being accepted,
by the Commission on a confidential basis pursuant to 5 U.S.C. 552(b)(4). To the extent
indicated in each case, the materials are not routinely available for public inspection. If
the protection afforded is sufficient, it is unnecessary for persons submitting such
materials to submit therewith a request for non-disclosure pursuant to 0.459. A
persuasive showing as to the reasons for inspection will be required in requests for
inspection of such materials submitted under 0.461.

(i) Financial reports submitted by licensees of broadcast stations pursuant to former
1.611 or by radio or television networks are not routinely available for inspection.

(ii) Applications for equipment authorizations (type acceptance, type approval,
certification, or advance approval of subscription television systems), and materials
relating to such applications, are not routinely available for public inspection prior to the
effective date of the authorization. The effective date of the authorization will, upon
request, be deferred to a date no earlier than that specified by the applicant. Following the
effective date of the authorization, the application and related materials (including
technical specifications and test measurements) will be made available for inspection
upon request (See 0.460). Portions of applications for equipment certification of
scanning receivers and related materials will not be made available for inspection. This
information includes that necessary to prevent modification of scanning receivers to
receive Cellular Service frequencies, such as schematic diagrams, technical narratives
describing equipment operation, and relevant design details. Portions of applications for
equipment certification of software defined radios that describe the operation of the
device's software and security features will not be made available for inspection.

(iii) Information submitted in connection with audits, investigations and examination of
records pursuant to 47 U.S.C. 220.

(iv) Programming contracts between programmers and multichannel video programming
distributors.

(v) Prior to July 4, 1967, the rules and regulations provided that certain materials
submitted to the Commission would not be made available for public inspection or
provided assurance, in varying degrees, that requests for nondisclosure of certain
materials would be honored. See, e.g., 47 CFR chapter I revised as of October 1, 1966,
0.417, 2.557, 5.204, 5.255, 15.70, 21.406, 80.33, 87.153, 89.215, 91.208, 91.605 and
93.208. Materials submitted under these provisions are not routinely available for public

Add. 23



Case: 08-4024 Document: 00314857657 Page: 74 Date Filed: 01/16/2009
inspection. To the extent that such materials were accepted on a confidential basis under
the then existing rules, they are not routinely available for public inspection. The rules
cited in this paragraph (d)(1)(v) were superseded by the provisions of this paragraph (d),
effective July 4, 1967. Equipment authorization information accepted on a confidential
basis between July 4, 1967 and March 25, 1974, will not be routinely available for
inspection and a persuasive showing as to the reasons for inspection of such information
will be required in requests for inspection of such materials submitted under 0.461.

(vi) Information on the users and locations of radio frequency identification systems
submitted to the Commission pursuant to 15.240 will be made available to other
Federal Government agencies but will not otherwise be made available for inspection.

(2) Unless the materials to be submitted are listed in paragraph (d)(1) of this section and
the protection thereby afforded is adequate, it is important for any person who submits
materials which he wishes withheld from public inspection under 5 U.S.C. 552(b)(4) to
submit therewith a request for non-disclosure pursuant to 0.459. If it is shown in the
request that the materials contain trade secrets or commercial, financial or technical data
which would customarily be guarded from competitors, the materials will not be made
routinely available for inspection; and a persuasive showing as to the reasons for
inspection will be required in requests for inspection submitted under 0.461. In the
absence of a request for non-disclosure, the Commission may, in the unusual instance,
determine on its own motion that the materials should not be routinely available for
public inspection. Ordinarily, however, in the absence of such a request, materials which
are submitted will be made available for inspection upon request pursuant to 0.461,
even though some question may be present as to whether they contain trade secrets or
like matter.

(e) Interagency and intra-agency memorandums or letters, 5 U.S.C. 552(b)(5).
Interagency and intra-agency memorandums or letters and the work papers of members
of the Commission or its staff will not be made available for public inspection, except in
accordance with the procedures set forth in 0.461. Only if it is shown in a request under
0.461 that such a communication would be routinely available to a private party
through the discovery process in litigation with the Commission will the communication
be made available for public inspection. Normally such papers are privileged and not
available to private parties through the discovery process, since their disclosure would
tend to restrain the commitment of ideas to writing, would tend to inhibit communication
among Government personnel, and would, in some cases, involve premature disclosure of
their contents.

(f) Personnel, medical and other files whose disclosure would constitute a clearly
unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6).

Add. 24



Case: 08-4024 Document: 00314857657 Page: 75 Date Filed: 01/16/2009
(1) Under Executive Order 10561, 19 FR 5963, September 13, 1954, 3 CFR, 1954-1958
Comp., page 205, the Commission maintains an Official Personnel Folder for each of its
employees. Such folders are under the jurisdiction and control, and are a part of the
records, of the U.S. Office of Personnel Management. Except as provided in the rules of
the Office of Personnel Management (5 CFR 294.701-294.703), such folders will not be
made available for public inspection by the Commission. In addition, other records of the
Commission containing private, personal or financial information concerning particular
employees will be withheld from public inspection.

(2) [Reserved]

(3) Information submitted to the Commission by applicants for commercial radio
operator licenses concerning the character and mental or physical health of the applicant
is available for inspection only under procedures set forth in 0.461. Except in this
respect, or where other aspects of a similar private nature warrant nondisclosure,
commercial radio operator application files are available for inspection.

(g) Investigatory records compiled for law enforcement purposes, to the extent that
production of such records would:

(1) Interfere with enforcement proceedings;

(2) Deprive a person of a right to fair trial or an impartial adjudication;

(3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source;

(5) Disclose investigative techniques or procedures; or

(6) Endanger the life or physical safety of law enforcement personnel, 5 U.S.C.
552(b)(7).








Add. 25



Case: 08-4024 Document: 00314857657 Page: 76 Date Filed: 01/16/2009
47 C.F.R. 0.459


CODE OF FEDERAL REGULATIONS
TITLE 47. TELECOMMUNICATION
CHAPTER I. FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER A. GENERAL
PART 0. COMMISSION ORGANIZATION
SUBPART C. GENERAL INFORMATION
PUBLIC INFORMATION AND INSPECTION OF RECORDS

0.459 Requests that materials or information submitted to the Commission be
withheld from public inspection.


(a) Any person submitting information or materials to the Commission may submit
therewith a request that such information not be made routinely available for public
inspection. (If the materials are specifically listed in 0.457, such a request is
unnecessary.) A copy of the request shall be attached to and shall cover all of the
materials to which it applies and all copies of those materials. If feasible, the materials to
which the request applies shall be physically separated from any materials to which the
request does not apply; if this is not feasible, the portion of the materials to which the
request applies shall be identified.

(b) Each such request shall contain a statement of the reasons for withholding the
materials from inspection (see 0.457) and of the facts upon which those records are
based, including:

(1) Identification of the specific information for which confidential treatment is sought;

(2) Identification of the Commission proceeding in which the information was submitted
or a description of the circumstances giving rise to the submission;

(3) Explanation of the degree to which the information is commercial or financial, or
contains a trade secret or is privileged;


Add. 26



Case: 08-4024 Document: 00314857657 Page: 77 Date Filed: 01/16/2009
(4) Explanation of the degree to which the information concerns a service that is subject
to competition;

(5) Explanation of how disclosure of the information could result in substantial
competitive harm;

(6) Identification of any measures taken by the submitting party to prevent unauthorized
disclosure;

(7) Identification of whether the information is available to the public and the extent of
any previous disclosure of the information to third parties;

(8) Justification of the period during which the submitting party asserts that material
should not be available for public disclosure; and

(9) Any other information that the party seeking confidential treatment believes may be
useful in assessing whether its request for confidentiality should be granted.

(c) Casual requests which do not comply with the requirements of paragraphs (a) and (b)
of this section will not be considered.

(d)(1) The Commission may defer acting on requests that materials or information
submitted to the Commission be withheld from public inspection until a request for
inspection has been made pursuant to 0.460 or 0.461. The information will be
accorded confidential treatment, as provided for in 0.459(g) and 0.461, until the
Commission acts on the confidentiality request and all subsequent appeal and stay
proceedings have been exhausted. If a response in opposition to a confidentiality request
is filed, the party requesting confidentiality may file a reply.

(2) Requests which comply with the requirements of paragraphs (a) and (b) of this section
will be acted upon by the appropriate Bureau or Office Chief, who is directed to grant the
request if it presents by a preponderance of the evidence a case for non-disclosure
consistent with the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the
request is granted, the ruling will be placed in the public file in lieu of the materials
withheld from public inspection. A copy of the ruling shall be forwarded to the General
Counsel.

(e) If the materials are submitted voluntarily (i.e., absent any direction by the
Commission), the person submitting them may request the Commission to return the
materials without consideration if the request for confidentiality should be denied. In that
event, the materials will ordinarily be returned (e.g., an application will be returned if it
cannot be considered on a confidential basis). Only in the unusual instance where the

Add. 27



Case: 08-4024 Document: 00314857657 Page: 78 Date Filed: 01/16/2009
public interest so requires will the materials be made available for public inspection.
However, no materials submitted with a request for confidentiality will be returned if a
request for inspection is filed under 0.461. If submission of the materials is required by
the Commission and the request for confidentiality is denied, the materials will be made
available for public inspection.

(f) If no request for confidentiality is submitted, the Commission assumes no obligation
to consider the need for non-disclosure but, in the unusual instance, may determine on its
own motion that the materials should be withheld from public inspection. See 0.457(g).

(g) If a request for confidentiality is denied, the person who submitted the request may,
within 5 working days, file an application for review by the Commission. If the
application for review is denied, the person who submitted the request will be afforded 5
working days in which to seek a judicial stay of the ruling. If these periods expire without
action by the person who submitted the request, the materials will be returned to the
person who submitted them or will be placed in a public file. Notice of denial and of the
time for seeking review or a judicial stay will be given by telephone, with follow-up
notice in writing. The first day to be counted in computing the time periods established in
this subsection is the day after the date of oral notice. Materials will be accorded
confidential treatment, as provided in 0.459(g) and 0.461, 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.

(h) If the request is granted, the status of the materials is the same as that of materials
listed in 0.457. Any person wishing to inspect them may submit a request for inspection
under 0.461.

(i) Third party owners of materials submitted to the Commission by another party may
participate in the proceeding resolving the confidentiality of the materials.










Add. 28



Case: 08-4024 Document: 00314857657 Page: 79 Date Filed: 01/16/2009
47 C.F.R. 0.461


CODE OF FEDERAL REGULATIONS
TITLE 47. TELECOMMUNICATION
CHAPTER I. FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER A. GENERAL
PART 0. COMMISSION ORGANIZATION
SUBPART C. GENERAL INFORMATION
PUBLIC INFORMATION AND INSPECTION OF RECORDS

0.461 Requests for inspection of materials not routinely available for public
inspection.


Any person desiring to inspect Commission records which are not listed in 0.453 or
0.455 shall file a request for inspection meeting the requirements of this section.

(a)(1) The records in question must be reasonably described by the person requesting
them, so as to permit their location by staff personnel. See 0.460(c).

(2) The person requesting records under this section may specify the form or format of
the records to be produced.

(b)(1) Requests shall be captioned "Freedom of Information Act Request," shall be dated,
shall list the telephone number (if any) of the person making the request and, for each
document requested, shall set out all information known to the person making the request
which would be helpful in identifying and locating the document.

(2) The request shall, in addition, specify the maximum search fee the person making the
request is prepared to pay (see 0.467).

(c) If the records are of the kinds listed in 0.457 or if they have been withheld from
inspection under 0.459, the request shall, in addition, contain a statement of the reasons
for inspection and the facts in support thereof. In the case of other materials, no such
statement need accompany the request; but the custodian of the records may require the
submission of such a statement if he determines that the materials in question may
lawfully be withheld from inspection.

Add. 29



Case: 08-4024 Document: 00314857657 Page: 80 Date Filed: 01/16/2009
(d)(1) Requests shall be delivered or mailed to the Managing Director, sent by electronic
mail to foia@fcc.gov, or sent by facsimile. (For purposes of this section, the custodian of
the records is the Chief of the appropriate Bureau or Office.)

(2) If the request is enclosed in an envelope, the envelope shall be marked, "Freedom of
Information Act Request."

(3) An original and two copies of the request shall be submitted. If the request is for
materials not open to routine public inspection under 0.457(d) or 0.459, or if a request
for confidentiality is pending pursuant to 0.459, one copy of the request will be mailed
by the custodian of the records to the person who originally submitted the materials to the
Commission.

(e) When the request is received by the Managing Director, it will be assigned to the
Freedom of Information Act (FOIA) Control Office, where it will be date-stamped and
assigned to the custodian of the records.

(f) Requests for inspection of records will be acted on as follows by the custodian of the
records.

(1) If the Commission is prohibited from disclosing the records in question, the request
for inspection will be denied with a statement setting forth the specific grounds for
denial.

(2) If the records are the property of another agency, the request will be referred to that
agency and the person who submitted the request will be so advised, with the reasons
therefor.

(3) If it is determined that the Commission does not have authority to withhold the
records from public inspection, the request will be granted.

(4) If it is determined that the Commission does have authority to withhold the records
from public inspection, the considerations favoring disclosure and non-disclosure will be
weighed in light of the facts presented, and the request will be granted, either
conditionally or unconditionally, or denied.

(5) If there is a statutory basis for withholding part of a document only from inspection,
that part will be deleted and the remainder will be made available for inspection.

(6) In locating and recovering records responsive to a FOIA request, only those records
within the Commission's possession and control as of the date of its receipt of the request
shall be considered.

Add. 30



Case: 08-4024 Document: 00314857657 Page: 81 Date Filed: 01/16/2009
(g) The custodian of the records will make every effort to act on the request within 20
working days after it is received by the FOIA Control Office. If it is not possible to locate
the records and to determine whether they should be made available for inspection within
20 working days, the custodian may, in any of the following circumstances, extend the
time for action by up to 10 working days:

(1) It is necessary to search for and collect the requested records from field facilities or
other establishments that are separate from the office processing the request.

(2) It is necessary to search for, collect and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a single request; or

(3) It is necessary to consult with another agency having a substantial interest in the
determination of the request, or among two or more components of the Commission
having substantial subject matter interest therein.

The custodian of the records will notify the requester in writing of any extension of time
exercised pursuant to paragraph (g) of this section. If it is not possible to locate the
records and make the determination within the extended period, the person or persons
who made the request will be provided an opportunity to limit the scope of the request so
that it may be processed within the extended time limit, or an opportunity to arrange an
alternative time frame for processing the request or a modified request, and asked to
consent to an extension or further extension. If the requester agrees to an extension, the
custodian of the records will confirm the agreement in a letter specifying the length of the
agreed-upon extension. If he or she does not agree to an extension, the request will be
denied, on the grounds that the custodian has not been able to locate the records and/or to
make the determination within the period for a ruling mandated by the Freedom of
Information Act, 5 U.S.C. 552. In that event, the custodian will continue to search for
and/or assess the records and will advise the person who made the request of further
developments; but that person may file an application for review by the Commission.
When action is taken by the custodian of the records, written notice of the action will be
given.

(h)(1) Requesters who seek expedited processing of FOIA requests shall submit such
requests, along with their FOIA requests, to the Managing Director, as described in
0.461(d). If the request is enclosed in an envelope, the envelope shall be marked
"Request for Expedited Proceeding--FOIA Request." An original and two copies of the
request for expedition shall be submitted, but only one copy is necessary if submitted by
electronic mail. When the request is received by the Managing Director, it, and the
accompanying FOIA request, will be assigned to the FOIA Control Office, where it will
be date-stamped and assigned to the custodian of records.


Add. 31



Case: 08-4024 Document: 00314857657 Page: 82 Date Filed: 01/16/2009
(2) Expedited processing shall be granted to a requester demonstrating a compelling need
that is certified by the requester to be true and correct to the best of his or her knowledge
and belief.

(3) For purposes of this section, compelling need means--

(i) That failure to obtain requested records on an expedited basis could reasonably be
expected to pose an imminent threat to the life or physical safety of an individual; or

(ii) With respect to a request made by a person primarily engaged in disseminating
information, there is an urgency to inform the public concerning actual or alleged Federal
Government activity.

(4)(i) Notice of the determination as to whether to grant expedited processing shall be
provided to the requester by the custodian of records within 10 calendar days after receipt
of the request by the FOIA Control Office. Once the determination has been made to
grant expedited processing, the custodian shall process the FOIA request as soon as
practicable.

(ii) If a request for expedited processing is denied, the person seeking expedited
processing may file an application for review within five working days after the date of
the written denial. The application for review and the envelope containing it (if any) shall
be captioned "Review of FOIA Expedited Proceeding Request." The application for
review shall be delivered or mailed to the General Counsel. (For general procedures
relating to applications for review, see 1.115 of this chapter.) The Commission shall act
expeditiously on the application for review, and shall notify the custodian of records of
the disposition of such an application for review.

(i)(1) If a request for inspection of records submitted to the Commission in confidence
under 0.457(d) or 0.459 is granted, an application for review of the action may be
filed by the person who submitted the records to the Commission or by a third party
owner of the records. The application for review and the envelope containing it (if any)
shall be captioned "Review of Freedom of Information Action." The application for
review shall be filed within 10 working days after the date of the written ruling, shall be
delivered or mailed to the General Counsel, and shall be served on the person who filed
the request for inspection of records. The first day to be counted in computing the time
period for filing the application for review is the day after the date of the written ruling. If
an application for review is not filed within this period, the records will be produced for
inspection. The person who filed the request for inspection of records may respond to the
application for review within 10 working days after it is filed.


Add. 32



Case: 08-4024 Document: 00314857657 Page: 83 Date Filed: 01/16/2009
(2) If the request for inspection of records submitted to the Commission in confidence
under 0.457(d) or 0.459 is partially granted and partially denied, the person who
submitted the records to the Commission, a third party owner of the records and the
person who filed the request for inspection of those records may file an application for
review within the 10 working days after the date of the written ruling. The application for
review and the envelope containing it (if any) shall be captioned "REVIEW OF
FREEDOM OF INFORMATION ACTION." The application for review shall be
delivered or mailed to the General Counsel. If either person files an application for
review, it shall be served upon the other person.

(3) If an application for review is denied, the person filing the application for review will
be notified in writing and advised of their rights.

(4) If an application for review filed by the person who submitted the records to the
Commission or who owns the records is denied, or if the records are made available on
review which were not initially made available, the person who submitted the records to
the Commission or who owns the records will be afforded 10 working days from the date
of the written ruling in which to move for a judicial stay of the Commission's action. The
first day to be counted in computing the time period for seeking a judicial stay is the day
after the date of the written ruling. If a motion for stay is not made within this period, the
record will be produced for inspection.

(j) Except as provided in paragraph (i) of this section, an application for review of an
initial action on a request for inspection may be filed only by the person who made the
request. The application shall be filed within 30 days after the date of the written ruling
by the custodian of records, and shall be captioned, "Review of Freedom of Information
Action." The envelope (if any) shall also be so captioned. The application shall be
delivered or mailed to the General Counsel and shall be served on the person (if any) who
originally submitted the materials to the Commission. That person may file a response
within 10 working days after the application for review is filed. If the records are made
available on review, the person who submitted them to the Commission (if any) will be
afforded 10 working days after the date of the written ruling to seek a judicial stay. See
paragraph (i) of this section. The first day to be counted in computing the time period for
filing the application for review or seeking a judicial stay is the day after the date of the
written ruling. (For general procedures relating to applications for review, see 1.115 of
this chapter.)

(k) The Commission will make every effort to act on an application for review of an
action on a request for inspection of records within 20 working days after it is filed. See,
however, paragraph (i) of this section. If it is not possible to locate the records and to
determine whether they should be made available for inspection within 20 working days,
the General Counsel may, in the following circumstances and to the extent time has not

Add. 33



Case: 08-4024 Document: 00314857657 Page: 84 Date Filed: 01/16/2009
been extended under paragraphs (g)(1)(i), (ii), or (iii) of this section, extend the time for
action up to 10 working days. (The total period of extensions taken under this paragraph
and under paragraph (g) of this section without the consent of the person who submitted
the request shall not exceed 10 working days.):

(1) It is necessary to search for and collect the requested records from field facilities or
other establishments that are separate from the office processing the request;

(2) It is necessary to search for, collect and appropriately examine a voluminous amount
of separate and distinct records which are demanded in a single request; or

(3) It is necessary to consult with another agency having a substantial interest in the
determination of the request or among two or more components of the Commission
having substantial subject matter interest therein.

If these circumstances are not present or if it is not possible to locate the records and
make the determination within the extended period, the person who made the request will
be advised of his/her rights and asked to consent to an extension or further extension. If
the requester or person who made the request agrees to an extension, the General Counsel
will confirm the agreement in a letter specifying the length of the agreed-upon extension.
If the requestor or person who made the request does not agree to an extension, the
Commission will continue to search for and/or assess the record and will advise the
person who made the request of further developments; but that person may file a
complaint in an appropriate United States district court.

(l) Subject to the application for review and judicial stay provisions of paragraphs (h) and
(i) of this section, if the request is granted, the records will be produced for inspection at
the earliest possible time.

(m) Staff orders and letters denying requests for inspection are signed by the official (or
officials) who give final approval of their contents. If a request is denied by the
Commission, notice of denial will set forth the names of the Commissioners participating
in the decision.

(n) Records shall be inspected within 7 days after notice is given that they have been
located and are available for inspection. After that period, they will be returned to
storage, and additional charges may be imposed for again producing them.




Add. 34




Case: 08-4024 Document: 00314857657 Page: 85 Date Filed: 01/16/2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
AT&T, Inc, Petitioner,
v.
Federal Communications Commission and the United States of America,
Respondents.
Certificate of Service
I, Michael A. Krasnow, hereby certify that on the 16th day of January, 2009
the foregoing "Brief for Respondents" was served electronically by the Third Circuit
Court of Appeal's Notice of Docket Activity on the following Filing Users and via U.S.
mail:

Mary Albert
Gary Liman Phillips
COMPTEL
AT&T Inc.
900 17th Street, N.W.
1120 20th Street, N.W.
Suite 400
Washington DC 20036
Washington DC 20006
Counsel For: AT&T Inc.
Counsel For: CompTel


Colin S. Stretch
Catherine G. O'Sullivan
Kellogg, Huber, Hansen, Todd, Evans &
U.S. Department of Justice
Figel, PLLC
Antitrust Division, Appellate Section
1615 M Street, N.W., Suite 400
950 Pennsylvania Avenue, N.W., Room
Washington DC 20036-3209
3224
Counsel For: AT&T Inc.
Washington DC 20530-0001

Counsel For: United States of America
D. Wayne Watts

AT&T Inc.

175 East Houston

San Antonio TX 78205

Counsel For: AT&T Inc.





/s/ Michael A. Krasnow
Michael A. Krasnow

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