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Robert Newton On Request for Inspection of Records

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Released: July 30, 2013
Federal Communications Commission
FCC 13-103

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

ROBERT NEWTON
)
)

On Request for Inspection of Records
)

MEMORANDUM OPINION AND ORDER

Adopted:

July 26, 2013

Released:

July 30, 2013
By the Commission:
1.
By this Memorandum Opinion and Order, we dismiss as untimely an application
for review filed by Robert Newton.1 Mr. Newton requests review of a decision by the
Commission's Freedom of Information Act (FOIA) Public Liaison.2
2.
On December 11, 2012, the Commission's Public Liaison advised Mr. Newton
that the records he sought in a FOIA request filed with the Commission3 were not "within the
Commission's jurisdiction" and that they "may be in the possession of the Department of the
Navy." 4 On April 29, 2013, Mr. Newton filed an application for review of that decision, stating
that "[d]ue to unforeseen medical reasons, . . . [he] was unable to send this request within sixty
days[.]"5
3.
The FOIA Control Officer's December 11, 2012 decision in which she informed
Mr. Newton that the records he sought were not within the Commission's jurisdiction,6 i.e., that


1 See letter from Robert Newton to Stephanie D. Kost, FCC FOIA Public Liaison (Apr. 13,
2013) (AFR).
2 See letter from Stephanie D. Kost, FCC FOIA Public Liaison to Robert Newton (Dec. 11, 2012)
(December 11, 2012 Decision).
3 See letter from Robert Newton to FCC at 1 (Oct. 14, 2012) (requesting (1) copies of "Naval
Audit Service/Department of Navy/DoD wiretap or related contractor wiretap order, signal
interference, communications, and all signal information for" two wireless cell phone numbers
and two Comcast cell phone account numbers and (2) "[a]ny records pertaining to electronic
communication or Radio Frequency Communication through RFID chips coming from my
person").
4 December 11, 2012 Decision at 1.
5 See AFR at 1 (contending that "an adequate search . . . was not accomplished").
6 See 47 C.F.R. 0.461(f)(ii) ("If it is determined that the FOIA request seeks only records of
another agency or department, the FOIA requester will be so informed by the FOIA Control
Officer and will be directed to the correct agency or department.").

Federal Communications Commission
FCC 13-103
the Commission had no responsive records, was "an initial action on a request for inspection of
records" subject to the application for review provisions of Section 0.461(j) of the Commission's
rules, 47 C.F.R. 0.461(j). That rule provides that applications for review "shall be filed within
30 calendar days after the date of the written ruling by the custodian of the records."7 The 30
days to be counted in computing the time period began on December 12, 2012, the day after the
date appearing on the Public Liaison's decision.8 Thus, Mr. Newton was required to file his
application for review by January 10, 2013, the 30th day. Mr. Newton's application for review is
dated April 13, 2013, but was not received until April 29, 2013.9 Under the Commission's rules,
documents are considered to be filed on their receipt.10 Mr. Newton's filing was more than 90
days late and we therefore find it was untimely.11
4.
We also find that Mr. Newton's claim of unspecified, "unforeseen medical
reasons" provides insufficient grounds to waive the 30-day deadline because we do not waive
filing deadlines "in the absence of extremely unusual circumstances."12 Here, the application for
review provides no explanation or substantiation for why the applicant's "unforeseen medical
reasons" should be considered sufficiently unusual to waive the filing deadline by more than three
months. Rather, the applicant states that he was "unable to send this request within sixty days"13
without further explanation. Even if we were inclined to grant a waiver where there is a


7 See 47 C.F.R. 0.461(j). The 30-day deadline applies to all applications for review subject to
Section 0.461(j), including those relating to "initial actions" taken by the FOIA Control Officer
pursuant to Section 0.461(f)(2)(ii). We note that even if we were to determine that the more
general application for review provisions under Section 1.115 of the Commission's rules, 47
C.F.R. 1.115, were applicable, the deadline would still be 30 days.
8 See 47 C.F.R. 1.4(c) (the first day to be counted when a period of time begins with the
occurrence of an event is the day after the event); see also 47 C.F.R. 1.4(b)(5) (for documents
not published in the Federal Register, released to the public, or referenced in a public notice,
Commission action occurs on the date appearing on the document).
9 See AFR (date stamp).
10 See 47 C.F.R. 1.7.
11 See The Consumer Law Group, 28 FCC Rcd 684 5 (2013) (dismissing application for review
of a FOIA decision filed three days late); see also Michael C. Olson, 13 FCC Rcd 20593 1
(1998) (dismissing application for review filed one day late); Application of Board of Education
of the City of Atlanta
, 11 FCC Rcd 7763, 7765-66 6 (1996) (same).
12 See NetworkIP v. FCC, 548 F.3d 116, 126 -27 (D.C. Cir. 2008) (citing BDCPS Inc. v. FCC,
351 F.3d 1177, 1184 (D.C. Cir. 2003) and 21st Century Telesis Joint Venture v. FCC, 318 F.3d
192, 200 (D.C. Cir. 2003) as discouraging the Commission from entertaining late-filed pleadings
"absent extremely unusual circumstances"); see also CGG Veritas Land Inc., 26 FCC Rcd 2493,
2494 at n.13 (2011) (citing longstanding precedent that the Commission does not consider as
unusual or compelling, waiver requests based on claims of delay caused by copy machines,
delivery services "or even, in most cases, inclement weather or illness"); Request for Review of
the Decision of the Universal Service Administrator by St. Patrick School, White Lake, Michigan,
17 FCC Rcd 13619, 13620 (Telecommunications Access Policy Div., Wireline Competition Bur.
2002) (filer's prolonged medical problems do not constitute "good cause for purposes of waiving
filing deadline).
13 See AFR at 1.
2

Federal Communications Commission
FCC 13-103
documented medical issue (which is not the case here), it would take a very strong showing to
establish that a waiver was proper for a filing more than three months late. Given that Mr.
Newton did not make such a showing, we dismiss Mr. Newton's filing as untimely.
5.
ACCORDINGLY, IT IS ORDERED, that the Application for Review filed by
Robert Newton IS DISMISSED. Mr. Newton may seek judicial review of this action pursuant to
5 U.S.C. 552(a)(4)(B). 14
6.
The following officials are responsible for this action: Acting Chairwoman
Clyburn, Commissioners Rosenworcel and Pai.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


14 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.
Newton's right to pursue litigation. Mr. Newton 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
3

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