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Petitions for reconsideration dismissed

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Released: June 18, 2012

Federal Communications Commission

FCC 12-63

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

SKYBRIDGE SPECTRUM FOUNDATION
)
FOIA Control Nos. 2010-495, 2010-496,
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2010-506, 2010-507, 2010-508, 2010-538,
On Request for Inspection of Records
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2011-241, and 2011-242
)

MEMORANDUM OPINION AND ORDER

Adopted: June 15, 2012

Released: June 18, 2012

By the Commission:

I.

INTRODUCTION

1. In this memorandum opinion and order, we rule on two petitions for reconsideration filed by
Skybridge Spectrum Foundation (Skybridge).1 Skybridge seeks reconsideration of two Commission
orders that denied applications for review filed by Skybridge. The first order (FCC 11-140) upheld a
decision by the Office of General Counsel (OGC) that denied Skybridge’s request for a waiver of
Freedom of Information Act (FOIA) processing fees with respect to several FOIA requests and held that
Skybridge was not entitled to the reduced fee applicable to certain noncommercial requesters.2 The
second order (FCC 11-152) upheld a decision by the Wireless Telecommunications Bureau (WTB) that
responded to other FOIA requests by Skybridge and, in doing so, classified Skybridge as a commercial
use requester for purposes of FOIA fees.3 To the extent that Skybridge seeks reconsideration of the
Commission’s orders as they relate to the fee rulings by OGC and WTB, we dismiss the petitions for
reconsideration as defective because they fail to rely on new or newly discovered facts or arguments as
required by the Commission’s rules governing petitions for reconsideration of orders denying applications
for review. To the extent that Skybridge seeks reconsideration of certain Commission findings in FCC
11-152 supplementing WTB’s substantive response to Skybridge’s FOIA requests, we deny that petition
for reconsideration on its merits. We also deny Skybridge’s request that its petitions should be treated as
informal requests for relief or petitions for declaratory rulings.

II.

BACKGROUND

2. Skybridge sought waiver or reduction of fees for processing eight FOIA requests. Those fee
requests were addressed in the OGC and WTB decisions mentioned above. In FCC 11-140, covering the
first six FOIA requests, the Commission upheld OGC’s denial of a fee waiver under 5 U.S.C. §
552(a)(4)(A)(iii) and 47 C.F.R. § 0.470(e). These provisions require that a fee waiver be supported by a
showing that disclosure of the records requested is in the public interest because it is (i) “likely to
contribute significantly to the public understanding of the operations or activities of the government” and


1 See Petition for Reconsideration of Denial of Application for Review: Review of Freedom of Information Act
Action and Requests Under Section 1.41 and Section 1.2, filed October 27, 2011 (First PFR); Petition for
Reconsideration of Denial of Application for Review: Review of FOIA Action and Requests under Section 1.41 and
1.2 and, a Clarification Request [and supplement to First PFR], filed November 14, 2011 (Second PFR).
2 See Skybridge Spectrum Foundation, Memorandum Opinion and Order, 26 FCC Rcd 13800 (2011) (FCC 11-140).
3 See Skybridge Spectrum Foundation, Memorandum Opinion and Order, 26 FCC Rcd 14864 (2011) (FCC 11-152).

Federal Communications Commission

FCC 12-63

(ii) “not primarily in the commercial interest of the requester.” The Commission found that Skybridge
failed to meet either prong of the test and that each unsatisfied requirement was an independent ground
for denying Skybridge’s waiver request.4
3. Also in FCC 11-140, the Commission found that Skybridge failed to qualify as an
“educational or noncommercial scientific institution” under 47 C.F.R. § 0.470(a)(2), which would have
entitled Skybridge to reduced fees without making a public interest showing.5 In FCC 11-152, the
Commission again ruled that Skybridge failed to qualify as an educational or noncommercial scientific
institution, and thus upheld WTB’s classification of Skybridge as a commercial requester.6
4. The Commission’s ruling in FCC 11-140 that Skybridge was not entitled to a public interest-
based fee waiver and its rulings in FCC 11-140 and 11-152 that Skybridge did not qualify as an
educational or noncommercial scientific institution involved a common finding of fact. In both decisions,
the Commission rejected Skybridge’s contention that its requests did not primarily serve a commercial
purpose.
5. In both proceedings, Skybridge relied on its classification by the Internal Revenue Service
(IRS) and the State of Delaware as a non-profit, tax-exempt scientific, educational, and charitable
foundation and on its assertion that it engages in non-commercial activities.7 With respect to this latter
point, Skybridge submitted that it publishes information on FCC matters in the public interest on its
websites, and that these publications attracted tens of thousands of visitors. Skybridge further stated that,
in addition to using the information sought in its FOIA requests in FCC proceedings and other litigation,
it intends to use the information for educational activities.
6. In rejecting Skybridge’s reliance on this showing, the Commission found that Skybridge’s tax
status is not determinative of whether its FOIA requests serve a commercial purpose under the FOIA.8
The Commission found that the dispositive factor in determining the commercial or noncommercial
purpose of Skybridge’s requests is that the information requested would be useful to commercial entities
affiliated with Skybridge and that, consistent with judicial precedent interpreting the FOIA, the interests
of affiliated entities should be taken into account, even if the requester itself is a nonprofit organization.9
7. In addition to ruling on the fee issues, the Commission, in FCC 11-152, supplemented WTB’s
findings on the merits of Skybridge’s request for documents related to two enforcement proceedings. The
Commission agreed with WTB that except for two publicly available orders, no responsive documents
could be found.


4 See 26 FCC Rcd at 13802-04 ¶¶ 10-13.
5 See id. at 1304 ¶ 15. Commercial use requesters are responsible for all costs for searching for, reviewing, and
duplicating the records sought. See 47 C.F.R. § 0.470(a)(1). Educational and non-commercial scientific institutions
are responsible only for duplication costs beyond the first 100 pages. See 47 C.F.R. § 0.470(a)(2).
6 See 26 FCC Rcd at 14866-68 ¶¶ 9-13.
7 See id.at 13801 ¶ 3 (summarizing Skybridge’s showing).
8 See id. at 13803-04 ¶¶ 12-13; id at 14867-68 ¶ 12.
9 See id. at 13803-04 ¶ 13. The Commission also rejected Skybridge’s claim that it should have been given a further
opportunity, pursuant to 47 C.F.R. § 0.470(d), to demonstrate the non-commercial character of its requests. The
Commission found that this claim raised at most an issue of harmless error, inasmuch as Skybridge had not
identified any further evidence that it would have provided if given the chance. See 26 FCC Rcd at 13804 ¶ 14.
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FCC 12-63

III.

DISCUSSION

8.

Fee matters.

To the extent Skybridge seeks reconsideration of the Commission’s fee rulings,
we find that the petitions are defective under our procedural rules and should be dismissed. The
Commission will entertain a petition for reconsideration of an order denying an application for review
only if the petition relies on “facts or arguments which relate to events which have occurred or
circumstances which have changed since the last opportunity to present such matters to the Commission”
or on facts or arguments unknown to the petitioner until after his last opportunity to present them to the
Commission.”10 For the most part, Skybridge’s pleadings restate its argument summarized at paragraph
5, above, that its requests serve a noncommercial purpose. Skybridge thus reasserts arguments, already
rejected by the Commission,11 that the Commission should rely on Skybridge’s nonprofit classification by
the IRS and the State of Delaware to find that its FOIA requests are not commercial.12 To the extent
Skybridge does so, the facts and arguments presented are neither new nor newly discovered and thus not
proper grounds for seeking reconsideration of an order denying an application for review.
9. Skybridge presents some ostensibly new facts and circumstances in support of its contention
that its requests serve a noncommercial purpose.13 Skybridge represents that it: (1) has expanded its
educational and publishing activities; (2) has expanded its activities challenging various government
activities; (3) has initiated litigation challenging a Commission rulemaking action; and (4) is participating
in a Commission enforcement proceeding. These are, however, the same kinds of activities described in
Skybridge’s earlier pleadings, and already were considered by the Commission.14 They do not alter the
commercial purpose analysis and do not cure the defect in Skybridge’s petitions noted above.15
10. In addition to asking for reconsideration, Skybridge asks us to treat its pleadings as either
informal requests for Commission action (under 47 C.F.R. § 1.41) or petitions for declaratory ruling
(under 47 C.F.R. § 1.2). 16 See First PFR at 2; Second PFR at 2. Skybridge’s pleadings are in substance
petitions for reconsideration, and we will treat them solely as such.
11.

Adequacy of search.

Skybridge submits an additional basis for seeking reconsideration of
FCC 11-152. In that order, the Commission supplemented WTB’s response to Skybridge’s request for
documents concerning two enforcement proceedings.17 The Commission found that the only documents
responsive to Skybridge’s request were two orders that are publicly available online. The Commission
further stated that copies of two letters referenced in these orders were not in the Commission’s files.


10 See 47 C.F.R. §§ 1.106(b)(2) and 1.115(g)(1) (slight variations in wording).
11 See supra para. 6.
12 See First PFR at 3-7; Second PFR at 3-9.
13 See First PFR at 7-8; Second PFR at 9-10.
14 As discussed in para. 5, Skybridge has argued all along that its educational, publishing, litigation efforts, and
participation in FCC proceedings demonstrated a primary noncommercial purpose because they are assertedly in the
public interest. The Commission has consistently rejected this argument.
15 The underlying rationale for Rules 1.106(b)(2) and 1.115(g) is “that reconsideration will not be granted for the
purpose of again debating matters that have been fully considered.” See Greater Media Radio, Inc., 15 FCC Rcd
20485, 20485 ¶ 2 (2000) (applying § 1.106(b)(2)). New facts that are not materially or significantly different from
facts already before the Commission when it denied review raise matters that have already been fully considered.
16 See First PFR at 2; Second PFR at 2.
17 See 26 FCC Rcd at 14869 ¶ 16.
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FCC 12-63

12. Skybridge asserts that responsive records other than the two publicly available orders must
exist.18 Skybridge also questions why the two 17- and 18-year old letters were not found.19 The petition,
however, gives us no basis to believe that other documents still exist20 or were not diligently pursued. We
note that under the Federal Records Act and FCC Records Schedules, there was no requirement or need
for the Commission to retain these documents.21 We therefore have no reason to reconsider this matter
and deny Skybridge’s petition in this regard.

IV.

ORDERING CLAUSES

13. ACCORDINGLY, IT IS ORDERED that the petition for reconsideration filed by Skybridge
on October 27, 2011, with respect to FCC 11-140, IS DISMISSED with prejudice as procedurally
defective, and the petition for reconsideration filed November 14, 2011, with respect to FCC 11-152, IS
DISMISSED IN PART with prejudice as procedurally defective to the extent indicated above and IS
OTHERWISE DENIED to the extent indicated above. Skybridge may seek judicial review of this action,
pursuant to 5 U.S.C. § 552(a)(4)(B).
14. The officials responsible for this action are the following: Chairman Genachowski and
Commissioners McDowell, Clyburn, Rosenworcel, and Pai..
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


18 See Second PFR at 11-12.
19 See id. 10-11.
20 See Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (an agency must conduct a search
reasonably calculated to uncover all relevant documents.) The issue is not whether additional documents might
conceivably exist but whether the search was adequate.
21 See 44 U.S.C. § 3303(3) (agencies to submit schedules for disposal of records). The relevant provisions of the
Enforcement Bureau schedule specify disposal after 2-3 years.
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