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Joseph I. Marchese On Request for Inspection of Records.

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Released: September 26, 2011

Federal Communications Commission

FCC 11-141

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

JOSEPH I. MARCHESE
)
)

FOIA Control No. 2011-445
On Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: September 23, 2011

Released: September 26, 2011
By the Commission:
1. We have before us an Application for Review (AFR) filed by Joseph I. Marchese of Bursor &
Fisher, P.A. (Marchese)1 seeking review of the decision of the Wireless Telecommunications Bureau
(WTB)2 denying his Freedom of Information Act (FOIA) request3 for an unredacted copy of the
declaration of Colin B. Weir filed in WT Docket No. 11-65 (the Weir Declaration).4 Two oppositions to
the Marchese AFR were filed.5 For the reasons discussed below, Mr. Marchese's AFR is dismissed as
untimely filed.
2. On July 19, 2011, WTB denied Marchese's FOIA request for the Weir Declaration because it
determined that the declaration contained confidential commercial information that should be withheld
under FOIA Exemption 4, 5 U.S.C. 552(b)(4).6 Pursuant to the Commission's rules, Marchese had 30
calendar days from the date of the Denial Letter (i.e., until August 18, 2011) to file an AFR.7


1 Letter from Joseph I. Marchese, Bursor & Fisher, P.A. to Office of the General Counsel (Sept. 9, 2011) (Marchese
AFR).
2 Letter from Nese B. Guendelsberger, Chief, Spectrum & Competition Policy Division, WTB, to Joseph I.
Marchese (July 19, 2011) (Denial Decision).
3 Email from Joseph I. Marchese to FOIA@FCC.gov (June 20, 2011) (Request).
4 Applications of AT&T Inc. and Deutsche Telekom AG for Consent To Assign or Transfer Control of Licenses and
Authorizations, WT Docket No. 11-65.
5 AT&T's Opposition to Bursor & Fisher, P.A.'s Application for Review (Sept. 22, 2011); letter from Nancy J.
Victory, Wiley Rein LLP, to Austin Schlick, General Counsel (Sept. 22, 2011) (opposition of Deutsche Telekom
AG and T-Mobile USA, Inc.).
6 Denial Decision at 1.
7 The FOIA provides a right of administrative appeal from initial FOIA decisions. See 5 U.S.C. 552(a)(6)(A)(i)
(initial FOIA determinations must notify requester of the right to appeal that determination). Our rules require that
such appeals (AFRs) must be filed within 30 days. 47 C.F.R. 0.461(j) ("The application [for review] shall be filed
within 30 calendar days after the date of the written ruling by the custodian of records."). The Denial Decision
specifically notified Mr. Marchese of this requirement. See Denial Decision at 2.

Federal Communications Commission

FCC 11-141

On August 5, 2011, Mr. Marchese's law firm, Bursor & Fisher, P.A., filed a complaint in the United
States District Court for the Southern District of New York seeking release of the Weir
Declaration.8 On September 8, 2011, the court denied Bursor & Fisher's motion for a preliminary
injunction.9 The next day, September 9, 2011, Mr. Marchese filed his AFR with the Commission.
3. We dismiss the Marchese AFR as untimely filed. Mr. Marchese filed his AFR 53 days after
WTB issued its Denial Letter, 23 days after the deadline set by our rules and noted in the Denial Letter.
Mr. Marchese intentionally bypassed administrative review, choosing instead to seek judicial relief in the
name of his law firm, even though he had failed to exhaust his administrative remedies. It was only after
the District Court denied preliminary relief, following expiration of the time for submitting an AFR, that
Mr. Marchese filed his AFR with the Commission. The AFR does not seek a waiver of the 30-day filing
deadline contained in our regulations. Consistent with our rules and precedent, we dismiss the late-filed
Marchese AFR as untimely.10
4. Accordingly,

IT IS ORDERED

that the Application for Review filed September 9, 2011 by
Joseph I. Marchese IS DISMISSED.11
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


8 Bursor & Fisher, P.A. v. FCC, Civ. Action No. 11-cv-5457-LAK (S.D.N.Y. filed Aug. 5, 2011). The complaint
was served on the Unites States Attorney for the Southern District of New York, who represents the Commission in
the Bursor action, on August 19, 2011.
9 Transcript of oral argument in Bursor & Fisher v. FCC (Sept. 8, 2011). The court repeatedly noted Mr.
Marchese's failure to file an administrative appeal of the Denial Decision. Id. at 19, 28, 30, 35, 37, and 38.
Specifically, the court observed:
The FCC denied the Freedom of Information Act request on July 19, 20[1]1. It advised
the plaintiff's law firm of its right to appeal the FOIA denial within the FCC in
accordance with 47 C.F.R. section 0.461. The plaintiff did not avail itself of its right to
appeal within the FCC. For a month it did nothing relevant at all. It let that month just
slide by.
Id. at 28.
10 Capital Reporting Co., 24 FCC Rcd 12355, 12356 (2009); David A. Larson, 22 FCC Rcd 5281 (2007); Jeffrey W.
Hanson,
16 FCC Rcd 16497, 16499 (2001); Robin Hardin, 14 FCC Rcd 18265 (1999); Michael C. Olson, 13 FCC
Rcd 20593 (1998). This matter is not like those in which we have excused the late filing of an AFR. See Digital
Control Corp
., 18 FCC Rcd 15076 at n.3 (2003) (AFR treated as timely where mailing of bureau's FOIA response
was delayed); Gordon R. Lyford, 17 FCC Rcd 19902 at n.3 (2002) (AFR received over two months after mailing
treated as timely due to anthrax threats delaying mail).
11 We note that as part of the Open Government Act of 2007, the Office of Government Information Services
(OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as
a non-exclusive alternative to litigation. Using OGIS services does not affect Mr. Marchese's right to pursue
litigation. Mr. Marchese may contact OGIS in any of the following ways: Office of Government Information
Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, MD
20740-6001; by e-mail at ogis@nara.gov; by telephone at 301-837-1996 or toll-free at 1-877-684-6448; or by
facsimile at 301-837-0348.
2

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