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In the Matter of Michael J. Marcus

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Released: September 14, 2012

Federal Communications Commission

FCC 12-112

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

MICHAEL J. MARCUS
)
FOIA Control No. 2011-530
)
On Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted: September 12, 2012

Released: September 14, 2012

By the Commission:

I. INTRODUCTION

1. By this Memorandum Opinion and Order, we grant in part and deny in part an Application for
Review (AFR) filed by Michael J. Marcus (Marcus)1 seeking partial review of a decision of the
Enforcement Bureau (EB)2 that granted in part and denied in part his Freedom of Information Act (FOIA)
request3 for a copy of a May 30, 2009 letter from Motorola, Inc. (Motorola) to the FCC4 responding to a
April 20, 2009 Letter of Inquiry from EB’s Spectrum Enforcement Division to Motorola.5 In connection
with Annexes A and B of the Motorola Letter, we find that EB correctly determined that the redacted
material not disclosed was confidential business information that falls within FOIA Exemption 4.6 With
respect to the response to LOI Question 2, we find that a portion of the previously redacted material
should be disclosed under the FOIA.


1 See Letter from Marcus to Laurence H. Schecker, Special Counsel, Office of General Counsel, FCC (September
23, 2011) (AFR).
2 See Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement Division, Enforcement Bureau, FCC to
Marcus (September 9, 2011) (Decision).
3 See Email from Marcus to FCC FOIA Mailbox (August 11, 2011) (Request).
4 See Letter from Steve B. Sharkey, Senior Director, Regulatory and Spectrum Policy, Motorola to Marlene H.
Dortch, Secretary, FCC (May 30, 2009) (Motorola Letter). Motorola also filed a separate request for confidential
treatment of the information provided in the Motorola Letter. See Letter from Steve B. Sharkey, Senior Director,
Regulatory and Spectrum Policy, Motorola to Marlene H. Dortch, Secretary, FCC (May 30, 2009) (Motorola
Request Letter).
5 See Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau, FCC to Steve B.
Sharkey, Senior Director, Regulatory and Spectrum Policy, Motorola (April 20, 2009) (LOI).
6 5 U.S.C. § 552(b)(4).

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FCC 12-112

II. BACKGROUND

2. The Request seeks a complete and unredacted copy of the Motorola Letter.7 In searching their
files, FCC officials located the document requested by Marcus. Because Motorola had requested
confidential treatment of the Motorola Letter,8 EB gave Motorola an opportunity to respond prior to
making a decision on the Request.9 In its response to the Bureau letter, Motorola asserted that the
Motorola Letter “contains confidential business information regarding Motorola’s sales of dozens of U-
NII products, including customer information, and associated quality control and regulatory compliance
processes.”10 Motorola asserted it would be “irreparably harmed if this information were publicly
released and thus made available to the company’s competitors.”11 Along with its response, Motorola
provided a redacted copy of the Motorola Letter that it claimed protected Motorola’s confidential business
information “while disclosing other information consistent with the requirements of FOIA.”12 Marcus
was furnished a copy of the Redacted Motorola Letter directly from counsel to Motorola.
3. EB determined that disclosure of the redacted portions of the Redacted Motorola Letter would
“likely cause substantial competitive harm”13 and that the redacted information constitutes commercial,
financial and other proprietary information that is privileged and confidential.”14 EB also determined that
disclosing the redacted information would “provide insight into the company’s business practices and
procedures, equipment development and internal quality control and compliance processes”15 and that this
information would be valuable to Motorola’s competitors. EB determined that the Redacted Motorola
Letter properly redacted the confidential information in the Motorola Letter in accordance with FOIA
Exemption 4, which protects entities required to submit commercial or financial information to the
government by safeguarding them from competitive disadvantages that could result from public
disclosure.16 EB found that of the two DVDs submitted with the Motorola Letter, DVD1 contained sales
data, customer information and invoices related to Motorola’s U-NII products and withheld it from
disclosure pursuant to FOIA Exemption 4.17 EB noted that there was no request for confidential treatment
of DVD2, which contained information related to operator manuals and furnished a copy of DVD2 to
Marcus.18


7 Request at 1.
8 See 47 C.F.R. § 0.459.
9 See 47 C.F.R. § 0.461(d)(3); Letter from John D. Poutasse, Acting Chief, Spectrum Enforcement Division,
Enforcement Bureau, FCC to David E. Hillard, Wiley Rein, LLP (August 17, 2011).
10 Letter from David E. Hiller, Wiley Rein LLP to Karen Mercer, Enforcement Bureau, FCC (August 29, 2011) at 1.
11 Id.
12 Id. The redacted letter provided by counsel to Motorola is herein referred to as the “Redacted Motorola Letter.”
13 Decision at 1.
14 Id.
15 Id.
16 Id. at 1-2.
17 Decision at 2.
18 Id.
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FCC 12-112

III. APPLICATION FOR REVIEW

4. In the AFR, Marcus requests review of three specific redactions (Annex A, Annex B and the
response to LOI Question 2)19 and our review is limited to those redactions. Marcus argues in the AFR
that the fact that the Decision upheld every redaction proposed by Motorola and relied on the copy of the
Redacted Motorola Letter that Motorola sent to him “gives the distinct appearance of minimal review of
this issue by the EB staff and may well constitute arbitrary and capricious action.”20 Marcus also argues
that the FOIA exemptions are discretionary, and that the party seeking to prevent the disclosure of
information the government intends to release has the burden of justifying the nondisclosure of the
information.21 Marcus also argues that the release of the information is in the public interest as he seeks it
in order to study the “root causes of multiple incidents of interference from unlicensed U-NII devices…to
safety-of-life radar systems.”22
5. Motorola filed an Opposition to the AFR asserting that the AFR should be denied in its
entirety.23 In its Opposition, Motorola argued that the EB’s review of the Request was adequate,24 and
that the EB correctly found that the redacted information is protected from disclosure under FOIA
Exemption 4.25 In reply to the Opposition, Marcus argues that Motorola did not dispute (1) that
exemptions are discretionary, (2) that release of the information sought is in the public interest, and (3)
that any reasonably segregable portion of a record must be disclosed.26 Marcus reiterates in the Reply that
release of the information sought is in the public interest because it “involves a very serious interference
matter to FAA weather radar that is essential to aviation safety”27 and that “understanding the causes of
these interference incidents is key to assuring public safety.”28 Marcus also submitted a supplement to the
Reply noting the under the Open Government Act agencies must, if technically feasible, mark documents
to show the FOIA exemption being asserted at the place in the record where the deletion of exempted
material occurs.29

IV. DISCUSSION

6. Marcus’ arguments as set forth in the AFR, the Reply and the Supplement do not warrant a
different result than that reached by EB with regard to either Annex A or Annex B. However, as
explained below, we consider the redaction of the entire response to LOI Question 2 to be excessive and


19 See AFR at 1.
20 AFR at 2.
21 AFR at 2-3.
22 AFR at 3.
23 Letter from David E. Hiller, Wiley Rein LLP to Laurence H. Schecker, Special Counsel, Office of General
Counsel, FCC (October 3, 2011) (Opposition) at 1.
24 See Opposition at 3.
25 See Opposition at 3-7.
26 See Letter from Marcus to Laurence H. Schecker, Special Counsel, Office of General Counsel, FCC (October 11,
2011) (Reply) at 1.
27 Reply at 3.
28 Id.
29 See Email from Marcus to Laurence H. Schecker, Special Counsel, Office of General Counsel, FCC (October 12,
2011) (Supplement to Reply) at 1.
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FCC 12-112

grant in part the relief sought in the AFR by limiting the redaction of the response to LOI Question 2 as
set forth herein.
7. Annexes A and B. Annexes A and B address two potential compliance issues that Motorola
states it became aware of during the investigation of issues relating to the LOI, but that are not directly
covered by the questions in the LOI.30 In the Redacted Motorola Letter, all of Annex A is redacted, save
for the following section headings – Summary, Background, Root Cause, Scope, and Remediation and
other actions taken.31 Similarly, all of Annex B is redacted save for the following section headings –
Background, Remediation, and Scope.32 As is evident from the Redacted Motorola Letter, Annex A is
approximately 1.5 pages in length and Annex B is approximately one page in length.33 In the Decision,
EB found that disclosure of the redacted portions of the Redacted Motorola Letter “would likely cause
substantial competitive harm”34 and that the redacted information “constitutes commercial, financial and
other proprietary information that is privileged and confidential.”35
8. In the AFR, Marcus argues that, because of the total redaction of Annexes A and B in the
Redacted Motorola Letter, there is nothing “that gives the slightest hint [as] to what these ‘potential
compliance issues’ are.”36 The AFR asserts “it is difficult to understand how partial revelation of the
nature of these problems [would provide] ‘insight into the company’s business practices and procedures,
equipment development and internal quality control and compliance processes….’”37 The AFR also
asserts that the “insight test” it claims is used in the Decision goes beyond the FOIA, which it argues
protects information per se, rather than “insight that might be gathered from it.38 In addition to the
arguments specific to Annexes A and B, the AFR asserts that FOIA exemptions are discretionary,39 that
the party seeking to prevent disclosure has the burden of justifying the nondisclosure of the information,40
release of Annexes A and B and the response to LOI Question 2 are in the public interest,41 the total
redaction of Annexes A and B and the response to LOI Question 2 exceeds what is permitted by law
because any reasonably segregable portion of a record must be disclosed,42 and EB’s action in upholding
every redaction proposed by Motorola “may well constitute arbitrary and capricious action.”43
9. In addressing Annexes A and B in the Opposition, Motorola reiterated that during its investigation
into the issues relating to the LOI it “became aware of two compliance issues involving the company’s U-


30 See Motorola Letter at 1.
31 See Redacted Motorola Letter at 24-25.
32 Id. at 26.
33 Id. at 24-26
34 Decision at 1.
35 Id.
36 AFR at 5
37 Id.
38 Id.
39 Id. at 2.
40 Id. at 3.
41 Id. at 3-4.
42 Id. at 5.
43 Id. at 2.
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FCC 12-112

NII products which were not directly covered by the questions in the LOI”44 and provided details on these
issues in Annexes A and B. Motorola asserts that Annexes A and B “contain confidential business
information regarding quality control and regulatory compliance processes, processes relating to the
manufacturing of Motorola products and the sales of U-NII products.”45 Motorola also asserts that “the
very reporting of the issues in Annexes A and B is itself commercially sensitive business information.”46
Motorola further asserts that disclosure of this information would “result in substantial and irreparable
competitive harm to Motorola”47 as competitors would use the information “to better understand
Motorola’s manufacturing processes, compliance programs, and procedures.”48 Motorola also noted that
the public interest favored withholding the Annexes A and B under FOIA Exemption 4 because they were
provided to the Commission on a voluntary basis.49 In the Reply, Marcus asserts that the disclosures were
voluntary “only in the narrowest sense”50 because its main business is the sale of equipment regulated
under Title III of the Communications Act.51
10. Our review of Annexes A and B persuades us that EB was correct in determining that all of the
withheld information contained therein was properly withheld under FOIA Exemption 4. Exemption 4
exempts from disclosure under the FOIA “trade secrets and commercial or financial information obtained
from a person and privileged or confidential.”52 The information set out in Annexes A and B is both
commercial and confidential. In construing whether information is financial or commercial for purposes
of Exemption 4, the D.C. Circuit has held that these terms should be given their “ordinary meanings” and
has rejected the argument that “commercial” in Exemption 4 should be narrowly defined to include only
records that reveal basic commercial operations.53 Since the information in Annexes A and B relates to
business or trade, it is “commercial” as that term is used in Exemption 4.54
11. Financial and commercial information that is not voluntarily provided to the Government is
considered “confidential” for purposes of Exemption 4 if disclosure of the information would either (1)
impair the Government’s ability to obtain necessary information in the future; or (2) cause substantial
harm to the competitive position of the person from whom the information was obtained.55 Financial or
commercial information voluntarily submitted to the Government is considered “confidential” for
purposes of Exemption 4 “if it is a kind that would customarily not be released to the public by the person
from whom it was obtained.”56 In determining whether information is voluntarily supplied for Exemption


44 Opposition at 7.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Reply at 6.
51 Id.
52 5 U.S.C. § 552(b)(4).
53 See Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983); Baker & Hostetler LLP
v. U.S. Dep’t of Commerce
, 473 F.3d 312, 319-20 (D.C. Cir. 2006).
54 See, e.g. Allnet Commc’n Servs. v. FCC, 800 F. Supp. 984, 987 (D.D.C. 1992); Dow Jones Co. v. FERC, 219
F.R.D. 167, 179 (C.D. Cal 2002).
55 National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)
56 Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992).
5

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4 purposes, the existence of agency authority to require submission of information does not mean the
submission is involuntary. Rather, the agency authority must actually be exercised in order for a
particular submission to be deemed required than voluntary.57 We find that the submission of Annexes 1
and 2 in response to the LOI was voluntary and therefore the applicable standard for whether the
information therein is confidential is whether “it is a kind that would customarily not be released to the
public" by Motorola.58 Motorola has stated that it does not release the information contained in Annexes
1 and 2 to the public.59 Marcus does not contest this assertion, and our review of the information in
Annexes 1 and 2 convinces us that material of this type would not ordinarily be divulged to the general
public. We likewise reject Marcus’ argument that Exemption 4 does not extend to information that only
provides insight into a company’s business practices as opposed to information about the practices
themselves. Critical Mass makes no such distinction.
12. We have examined Annexes A and B to determine whether any additional portions could be
segregated and released, or whether any Annexes A and B should be released in the exercise of our
discretion under the FOIA.60 We can discern no non-exempt material that can be reasonably segregated
from the withheld portions of Annexes A and B, beyond the headings released by EB in response to the
Request.61 Marcus also argues that the Commission should release Annexes A and B because he intends
to use "this information in order to study the root causes of multiple incidents of interference from
unlicensed U-NII devices…to safety-of-life FAA radar systems."62 The D.C. Circuit has found that such
a "consequentialist approach to the public interest in disclosure is inconsistent with the '[balance of]
private and public interests' the Congress struck in Exemption 4."63 Disclosure under FOIA turns not on
the identity of the requestor or any collateral benefits of disclosure,64 thus the use (however laudable) to
which Marcus would put the information if it were released is not relevant to our analysis of the
applicability of Exemption 4 to the information sought. Finally, it is not arbitrary or capricious to follow
a submitter’s proposed redactions if the agency determines those redactions are consistent with law, as the
Bureau did and now the Commission does here.
13. Response to LOI Question 2. Question 2 of the LOI states that FCC field agents in San Juan,
Puerto Rico observed a Motorola U-NII device that was labeled with a model number but was not labeled
with any FCC ID number. The question also noted that the device was operating on 5460 MHz and was
causing interference at the San Juan International Airport. The question then asked (1) whether the


57 See Inner City Press/Cmty. On the Move v. Bd. of Governors of the Fed. Reserve Sys., 463 F.3d 239, 246-48 and
nn. 7-8 (2d Cir. 2006); Cf. Judicial Watch, Inc. v. DOE, 310 F. Supp. 2d 271, 308-309 (D.D.C. 2004), aff'd in part
& rev'd in part on other grounds,
412, F.3d 125 (D.C. Cir. 2005) (Documents were found to be voluntarily
submitted based largely on the representations made to the agency by the submitters of the documents.)
58 Critical Mass, 975 F.2d at 879.
59 See Motorola Request Letter at 2 (“At no time is the information in the Motorola Response (with the exception of
the manuals being provided to the Commission on DVD2) made available to the public.”)
60 See President’s Memorandum for the Heads of Executive Departments and Agencies, Freedom of Information
Act,
74 Fed.Reg. 4683 (2009); Attorney General’s Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act
(Mar. 19, 2009) (available at http://www.usdoj.gov/ag/foia-memo-
march2009.pdf).
61 See Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
62 AFR at 3.
63 Public Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999), (quoting Critical Mass, 975 F.
2d at 872).
64 Id.
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device was certified, (2) for the FCC identification number of the device (if the device were certified),
and (3) for an explanation "as to why the device was not labeled as required by section 2.925 of the Rules,
47 C.F.R. § 2.925."65
14. Marcus argues that the direct answer to the questions on whether the San Juan device was
certified, what its FCC ID number was, and why it was not properly labeled "contains no information that
might be covered by Exemption 4.66 In its Opposition, Motorola argues that its response to LOI Question
2 "reveals commercially sensitive information regarding its Canopy U-NII device."67 It also argues that
the response "contains confidential business information about the marketing of Canopy devices outside
of the United States, as well as processes for the development and modification of the device."68
15. Because the response to LOI Question 2 is commercial or financial information that was not
voluntarily provided to the Government,69 it is considered confidential for Exemption 4 purposes only if
disclosure of the information would either (1) impair the Government’s ability to obtain necessary
information in the future; or (2) cause substantial harm to Motorola's competitive position.70 This is a
higher threshold for finding information confidential than exists in the voluntary disclosure context where
information is considered confidential for Exemption 4 purposes “if it is a kind that would customarily
not be released to the public by the person from whom it was obtained.”71
16. We find that there are portions of Motorola's response to LOI Question 2 that would neither
cause substantial harm to Motorola's competitive position if disclosed nor impair the Government's ability
to obtain necessary information in the future. Disclosure of substantial portions of Motorola's response to
LOI Question 2 (e.g. when and where different Canopy devices were marketed in prior years and under
what FCC identification number) would not cause substantial harm to Motorola's competitive position.
Motorola's Opposition does not state how release of these portions – which deal with the marketing of
devices outside of North America between 2004 and 2007 - would cause substantial harm to Motorola's
competitive position on a going forward basis.72 We are similarly unpersuaded that the Commission's
ability to obtain necessary information in the future would be impaired by releasing certain portions of
Motorola's response to LOI Question 2.73 In this regard, we note that Motorola furnished this information
in response to an LOI, and our ability to obtain responses to LOIs in the future remains unimpaired by the


65 Motorola Letter at 10.
66 AFR at 6.
67 Opposition at 8.
68 Id.
69 See e.g., In Def. of Animals v. HHS, No. 99-3024, 2001 WL 34871354 at *9 (D.D.C. Sept. 28, 2001) (Information
is involuntarily submitted for purposes of Exception 4 where agency sent a letter requesting information that it had
the legal authority to compel.)
70 National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)
71 Critical Mass Energy Project, 975 F.2d at 879.
72 See Public Citizen Health Research Grp., 704 F.2d at 1291 ("Conclusory and generalized allegations of
substantial competitive harm…cannot support an agency's decision to withhold documents.")
73 To withhold information under the "impairment prong" of Exception 4 an agency must demonstrate that a
threatened impairment to its ability to obtain information in the future is "significant" rather, than "minor." See
Washington Post Co. v. HHS,
690 F.2d 252, 269 (D.C. Cir. 1982). Moreover, only the agency has standing to raise
this prong of Exemption 4. See e.g., Hercules v. Marsh 839 F.2d 1027, 1030 (4th Cir. 1988); McDonnell Douglas
Corp. v. U.S. Dep’t of the Air Force,
215 F. Supp. 2d 200, 206 (D.D.C. 2002); and Comdisco, Inc. v. GSA, 864 F.
Supp. 510, 515 (E.D. Va. 1994).
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release of certain portions of the response to LOI Question 2. Nor do we believe that withholding of the
entirety of the response to LOI Question 2 is necessary to protect other governmental interests, such as
compliance and program effectiveness.74
The withholding of information about when Motorola
commenced marketing a certain Canopy device in the United States and the period in which it marketed a
similar device without an FCC ID outside the United States is not necessary to enable the Commission to
obtain information in the future or protect other governmental interests. Marcus will be furnished a
revised redacted version of the Motorola Response that unredacts (1) the first paragraph of Motorola's
response to LOI Question 2, and (2) all of the second paragraph of Motorola's response to LOI Question 2
with the exception of a portion of the third sentence of that paragraph. The third paragraph of Motorola's
response to LOI Question 2 discloses operational details regarding Motorola's Canopy devices. Because
we find that this information would cause substantial competitive harm to Motorola if released, this
paragraph will continue to be redacted.

V. ORDERING CLAUSE

17. IT IS ORDERED that Marcus’ Application for Review is GRANTED to the extent indicated
above and is otherwise DENIED. If Motorola does not seek a judicial stay within ten (10) working days
of the date of release of this Memorandum Opinion and Order, we direct EB to produce to Marcus the
corrected redacted records as modified above upon payment by Marcus of the FOIA fee he owes. See 47
C.F.R. § 0.461(i)(4). Marcus may seek judicial review of this action pursuant to 5 U.S.C. §
552(a)(4)(B).75
18. The following officials are responsible for this action: Chairman Genachowski and
Commissioners McDowell, Clyburn, Rosenworcel and Pai.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


74 See National Parks & Conservation Ass’n, 498 F.2d at 770 n.17.
75 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 Marcus' right to pursue litigation.
Marcus 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
E-mail: ogis@nara.gov
Telephone: 301-837-1996
Facsimile: 301-837-0348
Toll-free: 1-877-684-6448
8

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