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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
IKUSI-Angel Iglesias, S.A. ) File No. EB-03-SE-214
)
ORDER
Adopted: June 8, 2004 Released: June 9,
2004
By the Chief, Spectrum Enforcement Division, Enforcement
Bureau:
I. INTRODUCTION
1. In this Order, we deny in large part a request for
confidential treatment of material submitted by IKUSI-
Angel Iglesias, S.A. (``IKUSI'') in response to a letter
of inquiry (``LOI'') from the Enforcement Bureau.
However, we grant confidential treatment of one specific
item in IKUSI's response.
II. BACKGROUND
2. On March 29, 2004, the Spectrum Enforcement
Division of the Enforcement Bureau sent IKUSI an LOI
seeking information and documents concerning the
compliance of IKUSI's Remote Crane Transmitter (``RCT'')
Model TM60, FCC ID # PVT-TM60, with the requirements of
Part 15 of the Commission's Rules (``Rules'').1 IKUSI
submitted a Response to this LOI on April 26, 2004.2
IKUSI's Response included a Confidentiality Request,3 in
which IKUSI seeks confidential treatment of its entire
Response. IKUSI asserts that ``[t]he Response contains
sensitive proprietary commercial information concerning
the number of devices shipped by IKUSI for sale in the
United States.''4 IKUSI asserts that ``[t]he Response
also contains information relating to IKUSI's future
product development and marketing plans for the U.S.''5
IKUSI submits that ``[p]ublic release of the Response
would result in competitive harm to IKUSI because it
would provide competitors with information related to the
nature and extent of IKUSI's relationship with entities
purchasing its products, including total product sales
data, which could be used to approximate market share
data.''6 IKUSI also states that ``[t]o date there has
been no disclosure to the public of the sensitive data
contained in the Response.''7
III. DISCUSSION
3. Section 0.459 of the Rules establishes a
procedure by which parties may request that information
or materials that they have submitted to the Commission
not be routinely available for public inspection.8 This
rule requires that a party seeking confidentiality
provide a statement of the reasons for withholding the
materials in question from public inspection and set
forth the specific categories of materials for which such
treatment is appropriate.9
4. We find that IKUSI's request for confidential
treatment of its Response substantially fails to comply
with the standards set forth in Section 0.459 of the
Rules. The Commission's rules make clear that casual
requests for confidentiality that do not comply with the
requirements of Section 0.459 will not be considered.10
Further, the LOI issued to IKUSI by the Spectrum
Enforcement Division explicitly warned IKUSI that
requests for confidential treatment must comply with the
requirements of Section 0.459, including the standards of
specificity mandated by Section 0.459(b), and that the
Bureau will not consider confidentiality requests that do
not comply.11 However, IKUSI has failed to provide a
statement of reasons for withholding its Response in its
entirety. For example, while IKUSI generally asserts
that the Response ``contains information relating to
[its] future product development and marketing plans for
the U.S.,'' it does not identify the specific ``product
development and marketing'' information for which
confidential treatment is sought as required by Section
0.459(b)(1), explain the degree to which such information
is commercial or financial or contains a trade secret as
required by Section 0.459(b)(3), or explain how
disclosure of such information could result in
substantial competitive harm as required by Section
0.459(b)(5). Moreover, we find that IKUSI's request for
confidential treatment of its Response is overbroad. In
this regard, IKUSI's Response includes information that
is clearly not commercial, financial or trade secret
information. For example, IKUSI's Response references
and discusses at length its application for equipment
authorization for the RCT Model TM60.12 We note,
however, that this application is publicly available on
the FCC Office of Engineering and Technology's internet
site. Accordingly, we conclude that IKUSI has failed to
demonstrate by a preponderance of the evidence a case for
nondisclosure of its entire Response. We therefore deny
IKUSI's request that we grant confidential treatment of
its entire Response.
5. We nevertheless find that IKUSI has demonstrated
that one specific item in its Response constitutes
commercial or financial information, the disclosure of
which could result in substantial competitive harm.13
Specifically, we find that IKUSI has demonstrated that
disclosure of the number of devices shipped by IKUSI for
sale in the United States, as set forth in its response
to question (1), could result in substantial competitive
harm. Accordingly, we will accord confidential treatment
to this information.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED, pursuant to Sections
0.111, 0.311, 0.459(c) and 0.459(d)(2) of the Rules,14
that the Confidentiality Request filed on April 26, 2004
by IKUSI-Angel Iglesias, S.A. IS GRANTED to the limited
extent indicated herein and IS otherwise DENIED.
7. IT IS FURTHER ORDERED, pursuant to Section
0.459(g) of the Rules, that IKUSI-Angel Iglesias, S.A.
may file an application for review of this denial with
the Commission within five (5) working days of this
Order.
8. IT IS FURTHER ORDERED that a copy of this Order
shall be sent via first class mail and certified mail,
return receipt requested, to counsel for IKUSI-Angel
Iglesias, S.A., Mace J. Rosenstein, Esq. and David L.
Martin, Esq., Hogan & Hartson, L.L.P., 555 Thirteenth
Street, N.W., Washington, D.C. 20004-1109.
FEDERAL COMMUNICATIONS
COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
1 Letter from Joseph P. Casey, Chief, Spectrum Enforcement
Division, Enforcement Bureau, to Miguel Portillo, Director,
TLC Division, IKUSI-Angel Igelsias, S.A. (March 29, 2004)
(``LOI'').
2 Letter from Mace J. Rosenstein, Esq. and David L. Martin,
Esq., Hogan & Hartson, L.L.P., to Yasin Ozer, Spectrum
Enforcement Division, Enforcement Bureau (April 26, 2004)
(``Response'').
3 Letter from Mace J. Rosenstein, Esq. and David L. Martin,
Esq., Hogan & Hartson, L.L.P., to Yasin Ozer, Spectrum
Enforcement Division, Enforcement Bureau (April 26, 2004)
(``Confidentiality Request'').
4 Confidentiality Request at 1.
5 Id.
6 Id.
7 Id. at 2.
8 47 C.F.R. § 0.459.
9 47 C.F.R. § 0.459(b). Section 0.457 sets forth the
categories of records that are not routinely available for
public inspection, i.e., accorded confidential treatment,
and Section 0.459 sets forth the procedures for submitting
requests that material or information be withheld from
public inspection. For instance, Section 0.459(b)(3)
provides that a request for confidentiality shall, among
other things, include an "explanation of the degree to which
the information is commercial or financial, or contains a
trade secret or is privileged." 47 C.F.R. § 0.459(b)(3).
10 See 47 C.F.R. § 0.459(c).
11 LOI at 3.
12 Response at 4-6.
13 See 47 C.F.R. § 0.459(b)(3). See also 5 U.S.C. §
552(b)(4); 47 C.F.R. § 0.457(d).
14 47 C.F.R. §§ 0.111, 0.311, 0.459(c) and 0.459(d)(2).