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Skybridge Spectrum Foundation

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Released: October 14, 2011

Federal Communications Commission

FCC 11-152

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

FOIA Control Nos. 2011-241 and 2011-242
SKYBRIDGE SPECTRUM FOUNDATION
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On Request for Inspection of Records
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MEMORANDUM OPINION AND ORDER

Adopted: October 13, 2011

Released: October 14, 2011

By the Commission:

I.

INTRODUCTION

1.
By this memorandum opinion and order, we grant in part and otherwise deny the
application for review of Skybridge Spectrum Foundation (Skybridge),1 seeking review of responses by
the Wireless Telecommunications Bureau (WTB) to two Freedom of Information Act (FOIA) requests by
Skybridge.2 We find that WTB correctly classified Skybridge as a commercial requester. We modify
WTB's responses in certain respects.

II.

BACKGROUND

2.

FOIA 2011-241.

In this FOIA request, Skybridge seeks "records, documents,
communications (including, but not limited to, internal FCC staff communications and also FCC staff
communications with third parties, including, but not limited to, Amtrak and any representatives on
Amtrak's behalf or in support of Amtrak's request for waiver) and any other information that the FCC has
in its possession or control . . . that led to or pertain to: FCC Public Notice, DA 11-322, Released
February 18, 2011."3 The public notice seeks comment on a request by Amtrak for a waiver of certain
Part 80 rules to permit use of the 217-218 MHz and 219-220 MHz bands for "positive train control"
systems.4


1 See Review of Freedom of Information Act Action, filed May 6, 2011 (AFR).
2 See e-mail from Mark Griffith to FOIA@fcc.gov (Mar. 9, 2011) (because this relates to FOIA No. 2011-241, we
will refer to this as the "241 Request") see also Letter from Roger Noel, Chief, Mobility Division to Warren Havens,
President (Apr. 6, 2011) (for the same reason, the "241 Decision").
3 See 241 Request at 1-2.
4 See Wireless Telecommunications Bureau Seeks Comment on National Railroad Passenger Corporation (Amtrak)
Request for Waiver of Certain Part 80 Automated Maritime Telecommunications System (AMTS) Rules to
Implement Positive Train control (PTC)
, Public Notice, DA 11-322 (WTB Feb. 18, 2011).

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FCC 11-152

3.
In response, WTB released 41 pages of documents but withheld staff notes and analyses
and internal staff e-mails pursuant to the deliberative process privilege of FOIA Exemption 5.5 For
purposes of assessing fees for processing the request, WTB classified Skybridge as a commercial
requester6 and assessed a fee of $205.73.7 WTB rejected Skybridge's claim that it was entitled to a
waiver or reduction of fees as an educational or non-commercial scientific institution.8
4.

FOIA 2011-242.

This FOIA request contains two distinct sets of requests. In the first,9
Skybridge seeks "all records, documents, information, and communications" that pertain to (1) a formal
complaint, Franya Marzec v. Randy Power, File No. WTB/ENF-98-0002;10 (2) a licensing proceeding
involving Marzec and Procomm, a company affiliated with Power;11 (3) two letters cited in the Procomm
order;12 and (4) any other formal complaints involving Randy and Patricia Power and two related
businesses, Radiolink Corporation and Procomm. In the second set of requests, Skybridge seeks "all
records, documents, communications (including, but not limited to, informal and formal FCC staff
communications with the below-noted parties) and any other information" that pertains to (1) Randy
Power, (2) Patricia Power, (3) Radiolink Corporation, and (4) Procomm.13
5.
WTB responded that it located no records responsive to this FOIA request.14 WTB again
classified Skybridge as a commercial requester, rejecting Skybridge's claim to be a non-commercial
educational or scientific institution entitled to a waiver or reduction of fees, and assessed a search and
review fee of $161.63.15
6.

Application for review.

Skybridge argues, with respect to both FOIA requests, that
WTB erred in classifying it as a commercial requester that was not entitled to a reduced fee or a waiver of
fees.16 Skybridge accuses WTB of relying on past determinations that Skybridge was a commercial
requester and ignoring the showing made in Skybridge's FOIA requests.17 Skybridge asserts that it is
"the only nonprofit educational (and scientific and charitable) nonprofit tax-exempt organization in the
nation with large amounts (nationwide or in major regions of the nation) of FCC licensed spectrum
dedicated to public-agency and high public interest wireless, and that publishes extensive materials on


5 See 241 Decision at 1-3; see also 5 U.S.C. 552(b)(5) (exempting from disclosure "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 See 47 C.F.R. 0.466(a)(4), 0.470(a)(1).
7 See 241 Decision at 3.
8 See id. at 3 n.14.
9 See e-mail from Skybridge Spectrum Foundation to FOIA@fcc.gov (Mar. 10, 2011) (the "242 Request") at 1-2;
see also Letter from Roger Noel, Chief, Mobility Division to Warren Havens, President (Apr. 6, 2011) (for the same
reason, the "242 Decision").
10 See Marzec v. Power, Order, 15 FCC Rcd 4475 (EB 2000).
11 See Procomm, Memorandum Opinion and Order, 16 FCC Rcd 19478 (EB 2001).
12 These are described as a letter from Stephen Tsuya, Engineer in Charge, to Randy Power (Oct. 25, 1993) and a
letter from Terry L. Fishel, Chief, Land Mobile Branch to Randy Power (Feb. 7, 1994).
13 See 242 Request at 2-3.
14 See 242 Decision at 1.
15 See id. at 1-2.
16 See AFR at 1-3.
17 See id. at 1-2.
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FCC 11-152

advanced wireless to achieve these goals, and legal actions to protect said spectrum and said goals."18
Skybridge additionally notes that it publishes material on the website scribd.com, and donates money for
public agency research on advanced wireless.19
7.
With respect to FOIA No. 2011-241, Skybridge argues that WTB charged it an excessive
fee.20 Skybridge notes that it did not request documents that are available online.21 According to
Skybridge, of the 41 pages that WTB released, 34 are available online. Skybridge contends that the
search and copying fees should not have been based on the full 41 pages.
8.
With respect to FOIA No. 2011-242, Skybridge states that it does not believe that WTB
was unable to locate any responsive documents. Skybridge also questions whether WTB failed to inform
it of materials that are available online.22

III.

DISCUSSION

9.

Skybridge's status as a commercial requester.

As Skybridge notes, it has repeatedly
claimed entitlement to reduced fees or a waiver of fees in past FOIA requests based, in part or in whole,
on the claim that its requests did not serve a commercial purpose. Under the FOIA statute and our
implementing regulations, "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."23 Although
Skybridge's FOIA request and AFR refer to a "waiver or reduction of fees" and appear to use these terms
interchangeably in its AFR, it cites only the above provision limiting fees for eligible educational or
noncommercial scientific institutions to reproduction costs and we shall accordingly deal only with that
provision here.24
10.
First, we examine whether Skybridge is "an education or noncommercial scientific
institution." Skybridge has not contended that it is an "educational institution," which is defined under
our regulations as "a preschool, a public or private elementary or secondary school, an institution of
graduate higher education, an institution of professional education or an institution of vocational
education, which operates a program or programs of scholarly research."25 We therefore turn to whether
Skybridge is a "non-commercial scientific institution," which is defined as "an institution that is not
operated on a commercial basis as that term is referenced in paragraph (a)(4) of this section, and which is


18 See id. at 2.
19 See id.
20 See id. at 3.
21 See 241 Request at 1.
22 See AFR at 3-4.
23 5 U.S.C. 552(a)(4)(A)(ii)(II); accord 47 C.F.R. 0.470(a)(2). Requesters who are representatives of the news
media are entitled to reduced fees under this provision "only when the request is for the purpose of distributing
information." Id. 0.470(a)(2)(i).
24 A fee waiver or reduction is also is available "when `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.'" 5 U.S.C. 552(a)(4)(A)(ii)(II); 47 C.F.R.
0.470(e)(1)(quoting 5 U.S.C. 552(a)(A)(iii)). Skybridge does not rely on this provision. See AFR at 3.
25 See 47 C.F.R. 0.466(a)(5). We recently rejected a similar claim by Skybridge. Skybridge Spectrum
Foundation
, Memorandum Opinion and Order FCC 11-140 (rel. Sept. 26, 2011), para. 15 ( Skybridge FOIA Order)
(finding that Skybridge does not meet the criteria to be classified as a education institution).
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FCC 11-152

operated solely for the purpose of conducting scientific research the results of which are not intended to
promote any particular product or industry."26 The Commission recently found that Skybridge is not a
"non-commercial scientific institution" under the Commission's rules.27 Under the first prong of the
relevant definition, such an institution must be operated "solely for the purpose of conducting scientific
research the results of which are not intended to promote any particular product or industry."28
Skybridge itself points out in its AFR that it has "large amounts . . . of FCC licensed spectrum dedicated
to public-agency and high public interest wireless, and . . . publishes extensive materials on advanced
wireless to achieve these goals, and legal actions to protect said spectrum and said goals."29 In its own
words, Skybridge promotes advanced wireless, a "particular product or industry." On this basis alone, we
find again that Skybridge does not meet the definition of a "non-commercial scientific institution" eligible
for reduced fees.
11.
Separately and independently, Skybridge has again failed to show that it is "not operated
on a commercial basis" for purposes of satisfying the second prong of the definition of "noncommercial
scientific institution." Under the definition in rule 0.466(a)(6), a "non-commercial scientific institution"
must be an "institution that is not operated on a commercial basis as that term is referenced in paragraph
(a)(4)."30 Paragraph (a)(4), in turn, describes a "commercial use request" as one "from or on behalf of
one who seeks information for a use or purpose that furthers the commercial interests of the requester.
[T]he Commission [looks at] the use to which [the] requester will put the documents."31
12.
The Commission recently considered how Skybridge's affiliations with Havens'
commercial wireless business affect Skybridge's claim to be noncommercial.32 We held, consistent with
judicial precedent interpreting the statutory standard, that Skybridge's requests were primarily in its
commercial interest, because the information requested would benefit the Havens commercial wireless
businesses closely associated with Skybridge.33 In particular, we concluded that the information
requested would primarily serve the interests of the Havens commercial wireless businesses closely
associated with Skybridge, by virtue of the fact that Skybridge was established to undertake activities,
including publicizing issues and legal defense, related to these businesses.34 Here again, we conclude
that the information requested would primarily serve the interests of the Havens commercial wireless
businesses. The 241 Request concerns a waiver request by Amtrak, a matter in which Skybridge and its
commercial affiliates have participated as parties. In moving to dismiss Amtrak's waiver request,
Skybridge and its affiliates stated that "[p]etitioners have standing to file this petition since they hold
AMTS spectrum [the service subject to Amtrak's waiver request] nationwide and any substantive action
on the subject of Amtrak's `waiver' request could affect their rights as co-channel and adjacent channel
spectrum holders."35 In the 242 Request, Skybridge seeks information about Randy Power, a competitor


26 See 47 C.F.R. 0.466(a)(6) (emphasis added).
27 See Skybridge FOIA Order, para. 15.
28 47 C.F.R. 0.466(a)(6) (emphasis added).
29 AFR at 2.
30 47 C.F.R. 0.466(a)(6).
31 Id. 0.466(a)(4).
32 See Skybridge FOIA Order, paras. 12-14.
33 See id., paras. 12-14.
34 See id., para. 13 n.27.
35 See Petition for Reconsideration and Motion to Dismiss, filed February 25, 2011, by Warren C. Havens on behalf
of Skybridge and six other entities.
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of Skybridge's affiliate Telesaurus and the subject of litigation by Telesaurus.36 These statements
demonstrate that information requested likely furthers the interests of Skybridge's commercial affiliates.
13.
Returning to the Commission's rule for determining whether a reduction in fees is
available, we find, for the same reason describe above, that Skybridge has failed to show that the "records
are not sought for commercial use" as is separately required for educational and noncommercial scientific
institutions seeking reduced fees. Under the conjunctive test in rule 0.470(a)(2), a request for a fee
reduction is only granted when records are not sought for commercial use and the request is made by an
educational or noncommercial scientific institution.37 Separately and independently from our conclusion
that Skybridge is not an "education or noncommercial scientific institution," we also find here that the
specific records at issue are likely sought for commercial use by Havens' commercial wireless businesses.
14.
While we will carefully examine any new facts that Skybridge may raise in future
proceedings, we put Skybridge on notice that if it continues to make repetitious claims without a
reasonable basis in fact or law, in light of our precedent and judicial decisions, it may be subject to
enforcement action under Section 1.52 of the Commission's Rules,38 which prohibits frivolous
pleadings.39
15.

Fee computation in FOIA No. 2011-241.

We modify WTB's computation of the fee for
processing the 241 Request. The fee consisted of $201.63 for search and review and $4.10 for copying 41
pages.40 Skybridge's contention that it did not seek copies of 37 pages of the documents released has no
bearing on search and review fees, which cover searching for and reviewing all relevant records to
determine whether they should be released.41 However, since Skybridge's request indicated that it did not
seek any record that was publicly available, Skybridge should not have been charged copy costs for the
37-page document that was available to the public on the Commission's Electronic Comment Filing
System (ECFS).. We therefore deduct from the copying fee the $3.70 charged for reproducing the 37-
page document. The new total fee for search, review, and copying is $202.03.


36 See Telesaurus VPC, LLC v. Power EWA, 623 F.3d 998 (9th Cir. 2010) (noting that Telesaurus' predecessor-in-
interest, Warren Havens, competed with Power in a spectrum auction). We note that the FOIA request gives e-mail
addresses for Mark Griffith and Jimmy Stobaugh at telesaurus.com.
37 47 C.F.R. 0.470(a)(2) .
38 47 C.F.R. 1.52.
39 In connection with more than a dozen FOIA requests, Skybridge has previously claimed entitlement to a fee
waiver pursuant to 5 U.S.C. 552(a)(4)(A)(ii)(II) and 47 C.F.R. 0.470(e)(1), which requires a showing that the
request would significantly contribute to public understanding of the operations or activities of the government and
is not primarily in the commercial interest of the requester. See Skybridge Spectrum Foundation, Memorandum
Opinion and Order, 26 FCC Rcd 7125, 7125 n.5 (2011). The Office of General Counsel consistently rejected
Skybridge's waiver requests on both grounds. The full Commission affirmed these determinations on two occasions
prior to the filing of the FOIA requests at issue here. See Warren Havens, Memorandum Opinon and Order, 24 FCC
Rcd 12308, 12315-16, paras. 15-16 (2009) (finding Skybridge's statement of purpose inconsistent with the claim
that its request was not primarily in its commercial interest); Skybridge Spectrum Foundation, Memorandum
Opinion and Order, 25 FCC Rcd 11064, 11074, para. 24 (2010) (finding that Skybridge had again failed to meet the
criteria for a fee waiver). Separately, in appealing six fee waiver denials, Skybridge sought a reduced fee based on
the claim that it was a non-commercial educational or scientific requester, thereby eliminating the need to
demonstrate that its requests served a public interest. The Commission recently denied this appeal. See Skybridge
FOIA Order.
40 See 241 Request at 3.
41 See 47 C.F.R. 0.467(b) (search fees may be assessed even if the Commission fails to locate responsive records
or the record are determined to be exempt from disclosure).
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16.

Search for documents in FOIA No. 2011-242.

We also supplement WTB's finding that
it was unable to locate any records responsive to the 242 Request.42 Although Skybridge did not seek
copies of records publicly available online, it did seek information about whether online information was
available.43 The two orders that Skybridge refers to in its FOIA request may be accessed in the FCC
Record or through the Commission's EDOCS system. Licensing records regarding Power's station
WNXS420 may be accessed through the Commission's Universal Licensing System (ULS). Beyond that,
WTB has specifically confirmed that the two letters referenced in Skybridge's FOIA request, which are
17 and 18 years old, are not in existing Commission files.
17.

Procedural matter.

Skybridge contends that the Commission cannot assess fees for
processing the two FOIA requests because the responses were outside of the due date.44 WTB's
responses, however, are dated April 6, 2011, within 20 business days of receipt of the FOIA requests on
March 9 and 11, indicating that they were timely.45 Skybridge does not offer any basis for disregarding
the stated response dates.

IV.

ORDERING CLAUSE

18.
ACCORDINGLY, IT IS ORDERED, that the application for review by Skybridge
Spectrum Foundation IS GRANTED to the extent indicated and otherwise DENIED. Skybridge may
seek judicial review of this action, pursuant to 5 U.S.C. 552(a)(4)(B).46
19.
The officials responsible for this action are the following: Chairman Genachowski and
Commissioners Copps, McDowell, and Clyburn.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


42 See 242 Decision at 1.
43 See 242 Request at 1.
44 See AFR at 3; 5 U.S.C. 552(a)(4)(A)(viii) (agency may not assess search fees if it fails to comply with time
limits); 47 C.F.R. 0.470(a)(1)(ii) (commercial requester may not be assessed search fees it Commission fails to
comply with time limit).
45 See 5 U.S.C. 552(a)(6)(A)(i) (agency shall determine within 20 business days whether to comply with FOIA
request).
46 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 Skybridge's right to pursue
litigation. Skybridge may contact OGIS in any of the following ways:
Office of Government Information Services
National Archives and Records Administration
8601 Adelphi Road - Room 2510
College Park, MD 20740-6001
E-mail: ogis@nara.gov
Telephone: 301-837-1996
Facsimile: 301-837-0348
Toll-free: 877-684-6448.
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