Attachment letter

letter

LETTER submitted by FCC, IB

letter

2001-12-11

This document pretains to SAT-STA-20010712-00063 for Special Temporal Authority on a Satellite Space Stations filing.

IBFS_SATSTA2001071200063_456913

Federal Communications Commission Washington, DC 20554 InorntonalBurens December 11, 2001 Bruce Jacobs, Esq. Shaw Pitman LLP 2300 N Street NW Washington, DC 20037—1128 Re: XM Radio, Inc. Request for Confidential Treatment File No. SAT—STA—20010712—00063 Dear Mr. Jacobs: This letter confirms today‘s telephone conversation in which you were informed of the denial of XM Radio, Inc.‘s request for confidential treatment of certain information regarding XM Radio‘s use of low power terrestrial repeaters (LPRs) that was submitted to the International Bureau (Bureau) in the above referenced fil." For the reasons stated below, we find that XM Radio has not met its burden of demonstrating that the submitted information qualifies for confidential treatment. Accordingly, unless XM Radio files an application for review by the Commission of this denial on or before December 18, 2001, the submitted information will be made available for public inspection. On September 17, 2001, the Bureau granted XM Radio special temporary authority (STA) to gperate satelite digital audio radio service (SDARS) complementary terrestrial repeaters.\ In the STA Order the Bureau directed XM Radio to provide the Commission, upon request, a list of the locations and technical specifications of terrestrial repeaters with an EIRP of 2 kW or less as of the date ofthe grant ofthe STA." On November 1, 2001, the Bureau requested XM Radio to submit the information specified in the STA Order." XM Radio complied with the request by letter dated November 13, 2001, and requested confidential treatment ofits submitted information." * See 47 CFR. § 0.459() (requiring that Notice of denialand of the time fo seckingreview or a judicial say will io given by telephone, with followsp notie in wriing). * XMRadl,Inc, Order and Auhorization, DA Ol—2172 (rl. September 17, 2001) (XMRad STA Order}, gpplicatonfor review perding, id t pae. 17. * Letierhom Donald Abelson, Chie, Interntional Bureasto XM Radio, Inc. (dated November 1, 2001); Specifcall, the Bureas requested the fllowing information regarding XM Radio‘s LPRs: 1) location — including eeogrphic coordinate;2)atenna type; 3)antemna orienuation 4) anterna rdiation patem venical downtlt5) toul EIRP; and 6) heightabove ground level. * Lenerfrom Bruce Jacabs, Counsel, XM Radio,Inc. to Donald AbelsonChief Interational Bureas (dted November 13, 2001) CRadio Confidentaliy Request.

XM Radio snbmm:dits request for confidentialtreatment purstant to Section 0.459 of the Commission‘s rules." The Bureau will grant a request for confidential reatment under Section 0.459 if the request presents, by a preponderance of the evidence, a case for non— disclosure mnslslzm with the provisions of the Freedom of Information Act (FOIA}, 5 U.S.C. § 552 (2000)." The Commission‘s rules on confidential submissions are based on FOIA Exemption 4, which provides that that non—disclosure is justified for "trade secrets and commercial or financial information obtained from a person, and privileged or confidential Commercial o financial information that is submitted on a mandatory basis is "confidential" under Exemption 4 of the FOLA if public disclosure is likely to cause substantial harm to the competitive position of the person from whom the information was obtained." Accordingly, the burden is on XM Radio to demonstrate, by the preponderance of the evidence, that public disclosure of its submitted material is likely to cause substantial harm to ts competitive position. XM Radio‘s request, as submitted, fails to meet this burden. The request supplies no factual basis to demonstrate the likelihood ofsubstantial comperitive harm to XM Radio by public disclosure ofthe submitted material. Rather, the request states only that XM Radio is "concemed" that disclosure of information about its LPRs "could be used to unnecessarily complicate their deployment and operation.""". Although an elaborate economic analysis is not necessary to establish the likelihood of substantial comperiive injury, conclusory and generalized allegations cannot support requests for non—disclosure."".In this instance, the mere assertion — without any factual support — that public disclosure of the submitted information might "complicate" LPR deployment and operation is too generalized and conclusory to meet the ‘burden of proof required of a request for confidential treatment. We also observe that the submitted information pertains only to LPRs that have already been deployed and were in operation at the time of the grant of the STA. The request does not explin how public disclosure of the submitted information would complicate the deployment or operation of LPRs that are, by terms ofthe STA Order, already deployed and operational. The request also states that the Bureau has specifically recognized the confidential nature of the submitted information in its order granting XM Radio its STA.." This statement is incorrect. The STA Order notes that in disclosing information regarding LPRs to certain other affected licensees, it would be reasonable for XM Radio to enter into non—disclosure agreements with licensees secking information on XM Radio‘s repeater locations."" The STA Order did not decide whether the information to be made available to affected licensees was of a confidential nature under the FOTA, nor did it require the use of non—disclosure agreements in order to access tirorn goase !Sean CFR§04900). taru8C.$ ss20)0. * Naronal Parks and Conservetion Ass‘nv. Morton, 498 F.24 765 (D.C. Cir. 1974) recon.in par, CrcolMss Energy Project v Nucleor Repulatry Comm‘n 975 F24 871 (D.C. Ci, 1992 !® XMRedio Confientalty Request 3. "! See, eg, Application ofAT&T Corp. and GE Anerican Communications, Ic. 11 FCC Red 2428, 2426 (1996) NatlonalExchange Carrier As‘n.In., 5 FCC Red 7184 (1990);Norional Parks & Conservetion Ass‘nv. Keppe, s47 Bad 6r3, ett.41 (D.C. Ci. 1970) !* XM Redio Confdentaliy Request ut 23. ° M Radio STA Order at par. 14n.30. See also XM Rad, c Orde, DA 01—2388 (rel.October15, 2001)at parn. 4n9.

the information. The STA Order merely noted that the use of non—disclosure agreements would be permissible and reasonable, but did not conclude that non—disclosure to the public was mandatory. Accordingly, the STA Order cannot be used a basis to justify XM Radio‘s present request for confidentiality. Since the request offers no other facts or rationale to justify confidential treatment, it must be denied. Under the Commission‘s rules, XM Radio may, within 5 working days, file an application for review by the Commission of this denial." For purposes of computing the deadline for filing an applicationfor review by the Commission, the first day to be counted is the day after the date oforal notice."" Because oral notice was provided by telephone on December 11, 2001, XM Radio mustfile an application for review by the Commission on or before Tuesday, December 18, 2001. The materials submitted to the Bureau on November 13, 2001, will continue to be accorded confidentialtreatment during this review period pursuant to the Commission‘s rules."* If XM Radio does not file an application for review by the Commission on or before December 18, 2001, the submitted materials will be placed in the fle of the above referenced proceeding for public inspection. Please contact Stephen J. Duall, Attomey Advisor, Satellte and Radiocommunication Division, at (202) 418—1103 if you have any questions regarding this leter. Sincerely, ,é]wjflm/ Cassandra Thomas Deputy Chief Satellite and Radiocommunication Division "Su47CFR 50459@ 5 See id !* Seeid


Document Created: 2005-09-27 17:18:32
Document Modified: 2005-09-27 17:18:32
© 2024 FCC.report
This site is not affiliated with or endorsed by the FCC