Letter

0240-EX-ST-2016 Images

FCL Tech, Inc.

2016-02-22ELS_173137

February 22, 2016


VIA ELECTRONIC FILING

Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street N.W.
Washington, DC 20554

Re:      Request for Confidential Treatment, Extension for STA File No. 1237-EX-ST-2015
         (Application for Extension, File No. 0240-EX-ST-2016)


Dear Ms. Dortch:

        Pursuant to the provisions of Sections 0.457 and 0.459 of the Commission’s rules
governing submission of confidential materials,1 FCL-Tech, Inc. (“FCL”) respectfully requests
that the explanation and vendor portions of the attached application for extension be afforded
confidential treatment and not be placed in the Commission’s public files. The Commission
previously granted FCL’s application for Special Temporary Authority (“STA”), File No. 1237-
EX-ST-2015, and its accompanying request for confidential treatment for its on December 7,
2015. FCL is requesting an extension of the STA in order to continue conducting experiments
under the same technical parameters previously approved by the Commission. FCL is also
requesting the same confidential treatment previously granted to portions of FCL’s application.

        FCL is providing this information to the Commission in a confidential exhibit to
accompany its application for renewal of its STA, File No. 1237-EX-ST-2015. The confidential
information qualifies as “commercial or financial information” that “would customarily be
guarded from competitors” regardless of whether or not such materials are protected from
disclosure by a privilege, is closely held by FCL, is not available to the public, and not revealed
except under cover of confidentiality.2 FCL therefore requests that the Commission “not permit
the inspection” of these materials.3




1
    47 C.F.R. §§ 0.457, 0.459.
2
  See 47 C.F.R. § 0.457(d); Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir.
1992) (“[W]e conclude that financial or commercial information provided to the Government on
a voluntary basis is ‘confidential’ for the purpose of Exemption 4 if it is of a kind that would
customarily not be released to the public by the person from whom it was obtained.”).
3
    47 C.F.R. § 0.451.


Marlene H. Dortch
February 22, 2016
Page 2

       In support of this request and pursuant to 47 C.F.R. § 0.459(b), FCL hereby states as
follows:

              1. Knowledge of FCL’s vendor would allow competitors to infer or confirm
                 information about FCL’s business strategy of which they are currently unaware.

              2. The confidential information is being submitted to the Commission to assist in the
                 review of the attached experimental license application.

              3. FCL requests that the confidential information be withheld from disclosure for an
                 indefinite period. Because of the competitive nature of FCL’s business,
                 disclosure of this information could jeopardize the competitive position of both
                 FCL and any vendor it works with.

              4. Finally, FCL notes that a denial of its request would impair the Commission’s
                 ability to obtain this type of voluntarily disclosed information in the future,
                 making review of applications more problematic. The ability of a government
                 agency to continually obtain confidential information was the legislative intent for
                 developing exemptions from the Freedom of Information Act.4 The U.S. Court of
                 Appeals for the D.C. Circuit has recognized a “private interest in preserving the
                 confidentiality of information that is provided to the Government on a voluntary
                 basis.”5

        FCL is also submitting a confidential exhibit providing this information. FCL requests
that the Commission return this submission if its request for confidentiality is denied.6


                                                       Respectfully submitted,



                                                       _/s/ Christopher Bjornson______
                                                       Christopher Bjornson
                                                       Counsel to FCL Tech, Inc.


4
 See Critical Mass Energy Project v. NRC, 975 F.2d 871, 878 (D.C. Cir. 1992) (“Where,
however, the information is provided to the Government voluntarily, the presumption is that [the
Government’s] interest will be threatened by disclosure as the persons whose confidences have
been betrayed will, in all likelihood, refuse further cooperation.”).
5
    Id. at 879.
6
    See 47 C.F.R. § 0.459(e).



Document Created: 2016-02-22 18:00:19
Document Modified: 2016-02-22 18:00:19

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