Skybridge Spectrum Foundation v. Federal Communications Commission ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRIC'I`` OF COLUMBIA
SKYBRIDGE SPECTRUM FOUNDATION,
Plaintiff,
V`` Civil Action No. l()-Ol496 (CKK)
FEDERAL COMMUNICATIONS
COMMISSION,
Defendant.
MEMORANDUM OPINION
(February 2, 2012)
Skybridge Spectrum Foundation ("Skybridge") brings this Freedom of Information Act
("FOIA") action against the Federal Communications Commission ("FCC"), seeking the
disclosure of records relating to the finances and operations of a handful of its competitors in the
telecommunications industry. Currently before the Court is the FCC’s [18] l\/Iotion for Summary
Judgnient. Upon careful consideration of the parties’ submissions, the relevant authorities, and
the record as a whole, the Motion shall be GRANTED and a judgment shall be entered in the
FCC’s favor.
I. BACKGROUND
Understanding the factual context of Skybridge’s FOIA requests clarifies the nature of
the parties’ dispute. Accordingly, the Court begins there.
A. The Universal Service Administrative Company, the Universal Service Fund,
and FCC F0rms 499-A and 499-Q
The Universal Service Administrative Company ("USAC") is an independent, non~profit
corporation designated by the FCC to serve as the administrator of a fund, called the Universal
Service Fund ("USF"), that helps provide communities across the country affordable
telecommunications services. Decl. of Divya S. Shenoy ("Shenoy Decl.") 11 3. USAC
administers USF programs for companies servicing rural areas, low-income consumers, rural
healthcare providers, and schools and libraries. Ia’. USAC’S work is overseen by the FCC’s
Wireline Competition Bureau ("WCB"). Ia’.
USF programs are funded by mandatory contributions from interstate
telecommunications providers. Nearly all interstate telecommunications providers are required
to submit two kinds of "Telecommunications Reporting Worksheets," often referred to as "FCC
Form 499-A" and "FCC Form 499-Q," to report detailed revenue information to USAC. Id. 11 4.
USAC then uses that information to calculate the providers’ mandatory contributions. Id.
FCC Forrn 499-A is used to report annual revenue inforrnation. Id. 1[ 9. The form
requires interstate telecommunications providers to disclose, among other things: (l) revenues
received from services provided for resale by other contributors to federal universal service
mechanisms, broken down by the underlying service and the amounts that are attributable to
interstate and international services; (2) revenues received from end-users and non-
telecommunications sources, broken down by the underlying service and the amounts that are
attributable to interstate and international services; and (3) for carriers and certain other entities,
percentages of their revenues broken down by region and by whether the revenue is derived from
a reseller or an end-user service. la’. W ll-l3, Attach. C (FCC Form 499~A) at 4-7.
Meanwhile, FCC Form 499-Q is used to report quarterly revenue inforrnation. Ia'. 1] 5.
The form requires telecommunications providers to disclose, among other things: (l) historical
revenue received from contributing resellers, with subtotals for interstate and international
revenues; (2) historical revenues received from end~users, with subtotals for interstate and
international revenues; (3) historical revenues from other goods and services; (4) total revenues
from the previous categories; and (5) projected gross-billed and collected end-user interstate and
international revenues for the three-month period commencing sixty days from the filing
deadline Ia'. 11 7, Attach. B (FCC Form 499-Q) at l.
FCC Form 499-A and FCC Form 499-Q both offer a space for providers to certify that
the information they disclose is "confidential" and that its public disclosure would be likely to
cause "substantial" competitive harrn. ld., Attach. B (FCC Fonn 499-Q) at l, Attach. C (FCC
Form 499-A) at 8. Both forms also require the provider to certify that "all statements of fact . . .
are true" and that its disclosures reflect "an accurate statement of [its] affairs." ld. The forms
conclude by waming that "persons willfully making false statements in the worksheet can be
punished by fine or imprisonment under Title 18 of the United States Code, 18 U.S.C. § l00l ."
Ia’. (capitalization omitted).
B. Skybridge’s November 2008 Request for Records Relating to Three Major
Competitors
Skybridge is a non-profit telecommunications company with its principal place of
business in Berkeley, California. On November 28, 2008, it submitted a FOIA request to the
FCC ("November 2008 Request"), the first of two requests at issue in this case. Def.’s Stmt. of
Materials Facts as to Which There Is No Genuine Issue ("Def.’s Stmt.") 11 l.! In its November
1 To the extent Skybridge intended its Cross-Statement of Material Facts Not in Dispute
Pursuant to Federal Rule of Civil Procedure 56 ("Cross-Statement") to respond to the FCC’s
statement, it will be disregarded because it flatly contravenes the terms of this Court’s
Scheduling and Procedures Order ("Scheduling Order") dated March 2, 20ll in at least three
ways. First, Skybridge fails to respond to each of the FCC’s factual assertions "with a
correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied."
Scheduling Order 11 4(c) (emphasis omitted). Instead, Skybridge selectively responds to the
FCC’s factual assertions and buries its responses at the end of its statement in lieu of correlating
them to the FCC’S numbered paragraphs. See Pl.’s Cross-Stmt. pt. II1111 lZ-l 5. Quite
reasonably, the FCC overlooked these statements and does not specifically address Skybridge’s
responsive assertions in its reply. See Def.’s Mem. of P. & A. in Reply to Pl.’s Opp’n to Def.’s
3
2008 Request, Skybridge sought an array of records relating to three related companies that
Skybridge characterizes as being among its "major competitors," Pl.’s Opp’n to Def.’s Mot. for
Summ. J. ("Pl.’s Opp’n") at S_namely, Maritime Communications/Land Mobile LLC
("MCLM"), Mobex Network Services, LLC ("Mobex"), and Waterway Communications
System, LLC ("Watercom") (collectively, "MCLM Group"), Def.’s Stmt. 11 l. Specifically,
Skybridge’s FOIA request sought: (l) Mobex and Watercom’s completed FCC Forrn 499-A’s
and FCC Forrn 499-Q’s for 2001 through 2006; (2) a May 8, 2006 letter from Mobex and
Watercom to USAC demanding a refund; (3) a June 30, 2006 written request from USAC to
Mobex and Watercom asking for additional information; and (4) an August l4, 2006 letter from
MCLM providing the additional information requested by USAC. Id. ln its request, Skybridge
acknowledged the possibility that some of the information requested might be deemed
"confidential," but suggested that confidentiality should be "waived in the public interest."
Shenoy Decl., Attach. D (November 2008 Request) at 2.
On December l0, 2008, the FCC’s WCB forwarded Skybridge’s November 2008
Request to the MCLM Group in order to ascertain whether it had any objection to the release of
the requested inforrnation. Def.’s Stmt. 11 2. On December l6, 2008, the MCLM Group
responded by objecting to the release of certain records on the grounds that Skybridge is a
"director competitor" and that information in the requested records could be used to determine:
Mot. for Summ. J. ("Def.’s Reply") at 3-4. Second, even though it is clear that Skybridge
disputes some of the FCC’s factual assertions only in part, see, e.g., Pl.’s Cross-Stmt. pt. II1111 7,
l3, it fails to "specifically identify which parts are admitted and which parts are denied,"
Scheduling Order 11 4(e). Third, Skybridge’s selective responses are often devoid of references
to supporting evidence, see, e.g., Pl.’s Cross-Stmt. pt. ll 1111 12, l5, despite being told that the
"responding party must include . . . specific citations to the record," Scheduling Order 11 4(e). ln
short, Skybridge has defied the Court’s clear and unambiguous instructions and, because it has
failed to controvert the FCC’s factual assertions in the manner prescribed, the Court exercises its
discretion to treat those factual assertions as conceded.
4
(l) the "growth and placement of competitive lines of business"; (2) "general market
segrnentation and positioning"; and (3) the "competitive strength" of the MCLM Group. Id. 11 3.
On January 22, 2009, Skybridge responded by arguing that the disclosure of the
requested records would be in the public interest. Id. 11 4. Skybridge conceded that the requested
records contained "financial information," but suggested that the "public interest in release"
outweighs the private interest in confidentiality. Shenoy Decl., Attach. G (Ltr. From Skybridge
to FCC dated Jan. 22, 2009) at l-2. Skybridge also claimed that any "publicly disclosable
information" on FCC Forrn 499-A and FCC Forrn 499-Q should be released, but admitted that
the FCC could redact "any information properly deemed confidentia ." Id. at 3.
On August 24, 2009, the FCC’s WCB granted in part and denied in part Skybridge’s
November 2008 Request, releasing nineteen pages with some redactions. Def.’s Stmt. 11 5.
Those nineteen pages corresponded to the final three items of Skybridge’s request_that is,
correspondence between USAC and the MCLM Group. Shenoy Decl., Attach. H (Ltr. From
FCC to Skybridge dated Aug. 24, 2009) at l. Meanwhile, citing Exemption 4, the WCB
withheld the requested FCC Forrns 499-A and 499-Q in their entirety, as well as other
information reflecting checking account information, contributor identification, payment history,
amounts owed to USF, customer information, invoices, and network routing inforrnation. Ia'. at
4. In a six-page cover letter supporting its deterrninations, the WCB explained that the release of
such information would likely cause substantial competitive harm to the MCLM Group. Id. at 4-
5. Skybridge was informed that it had the right to "file an application for [administrative]
review" of the WCB’s determination and was told how to go about doing so. Id. at 5-6.
On June 24, 2009, Skybridge informally asked the FCC to produce the records covered
by its November 2008 Request. Def.’s Stmt. 11 6. Skybridge did not challenge the substance of
the WCB’s initial determination, but rather complained about the timeliness of the FCC’s
response and, in particular, its alleged failure to produce the "non-confidential" portions of the
records that the WCB concluded should be produced. Shenoy Decl., Attach. M (Ltr. From
Skybridge to FCC dated June 24, 2009) at l. In making this complaint, Skybridge either
overlooked or ignored the statement in the WCB’s determination letter providing that it would
"withhold[] release of these materials until all periods for requesting review or stay have passed,
and any such requests have been finally resolved." Id. , Attach. H (Ltr. From FCC to Skybridge
dated Aug. 24, 2009) at 1 n.2 (citing 47 C.F.R. § 0.46l(i)(2), (4)).2
On September 22, 2009, Skybridge filed a formal administrative appeal of the WCB’s
initial deterrnination. Def.’s Stmt. 11 7. ln its filing, Skybridge identified various alleged "errors"
in the WCB’s decision. Shenoy Decl., Attach. 0 (Appl. for Review for FOIA Control No. 2009-
089) at 3. With respect to the WCB’s decision to withhold information under Exemption 4,
Skybridge argued that the MCLM Group’s submissions to the FCC were "[f]raudulent, false, or
sham filings" ineligible for protection under Exemption 4, which Skybridge interpreted as being
limited to "legitimate confidential commercial information of value to legitimate commerce." Id.
at 7. Skybridge specifically argued that the information withheld did not meet the legal
definition of "confidential" information, see infra Part lll.C. l, because the release of fraudulent
information (l) would not impair the FCC’s ability to obtain legitimate commercial information
in the future and (2) would not cause any legitimate competitive harm other than to "expose the
sham." la’. at 8.
2 Temporarily delaying disclosure makes sense in this context because, in contrast to the typical
FOIA scenario, third parties seeking to maintain the confidentiality of their information may also
seek review of the agency’s initial deterrnination. Thus, requiring immediate disclosure would
effectively vitiate third parties’ ability to obtain meaningful administrative review.
6
C. Skybridge’s December 2008 Request for Records Relating to a F0urth Major
Competitor
On December 4, 2008, Skybridge submitted a second FOIA request to the FCC
("December 2008 Request"), seeking a similar universe of records relating to Paging Systems,
Inc. ("PSI"), Def.’s Stmt. 11 8, an entity that Skybridge likewise describes as a "major
competitor," Pl.’s Opp’n at 5. Specifically, Skybridge’s December 2008 Request sought: (l)
PSl’s completed FCC Forrn 499-A’s and FCC Form 499-Q’s for 1994 through the date of the
request; (2) any equivalent forms; (3) any other records that PSI filed with USAC; and (4)
written confirmation that PSI filed FCC Forrn 499-A’s and FCC Form 499-Q’s, or the
equivalent, for 1994 through the date of the request. Ia'. ln its request, Skybridge expressly
acknowledged that "[s]ome of the information in the requested records may be deemed by the
FCC as confidential." Shenoy Decl., Attach. l (December 2008 Request) at 2.
On December 22, 2008, the FCC’s WCB forwarded Skybridge’s December 2008 Request
to PSI in order to ascertain whether it had any objection to the release of the requested
inforrnation. Def.’s Stmt. 11 9. On January 7, 2009, PSI responded by objecting to the release of
certain records on the ground that Skybridge’s request sought confidential and proprietary
information, including "sensitive financial data which relates to subscriber revenue," and that the
"[d]isclosure of such information to competitors or potential competitors may have a detrimental
impact on PSl." Shenoy Decl., Attach. K (Ltr. from PSI to FCC dated Jan. 7, 2009) at 2.
On January 22, 2009, Skybridge responded by arguing that the disclosure of the
requested records would be in the public interest. Def’s Stmt. 11 ll. Skybridge conceded that
the requested records contained "financial information," but suggested that the "public interest in
release" outweighs the private interest in confidentiality. Shenoy Decl., Attach. G (Ltr. From
Skybridge to FCC dated Jan. 22, 2009) at l-2. Skybridge also claimed that any "publicly
disclosable information" on FCC Form 499-A and FCC Forrn 499-Q should be released, but
admitted that the FCC could redact "any information properly deemed confidential." Id. at 3.
On August 24, 2009, the FCC’s WCB granted in part and denied in part Skybridge’s
December 2008 Request, releasing eight pages and withholding thirty-six pages in full. Def.’s
Stmt. 11 12. The eight pages represented attachments to the FCC Form 499-A’s that PSI filed for
years 2003, 2004, 2006, and 2008. Shenoy Decl., Attach. L (Ltr. from FCC to Skybridge dated
Aug. 24, 2009) at 2. The WCB also provided written confirmation of what filings were made by
PSI between 1994 and 2009. ld. at 4-5. Meanwhile, citing Exemption 4, the WCB withheld the
requested FCC Forms 499-A and 499-Q in their entirety. Id. at 2. ln a six-page cover letter
supporting its determination, the WCB explained that the information requested included
"sensitive financial data, which relates to subscriber revenues, and that disclosure of such
information may have a detrimental impact on [PSI]." Id. at 3. Skybridge was informed that it
had the right to "file an application for [administrative] review" of the WCB’s determination and
was told how to go about doing so. Ia’. at 5-6.
On June 24, 2009, Skybridge informally asked the FCC to produce the records covered
by its December 2008 Request. Def.’s Stmt. 11 6. Skybridge did not challenge the substance of
the WCB’s initial determination, but rather complained about the timeliness of the FCC’s
response and, in particular, its alleged failure to produce the "non-confrdential" portions of the
records that the WCB concluded should be produced. Shenoy Decl., Attach. M (Ltr. From
Skybridge to FCC dated June 24, 2009) at l. Again, in making this complaint, Skybridge either
overlooked or ignored the statement in the WCB’s determination letter providing that it would
"withhold[] release of these materials until all periods for requesting review or stay have passed,
and any such requests have been finally resolved." Ia’., Attach. L (Ltr. from FCC to Skybridge
dated Aug. 24, 2009) at 1 n.3 (citing 47 C.F.R. § 0.461(i)(2), (4)).
On September 22, 2009, Skybridge filed a formal administrative appeal of the WCB’s
initial determination Def.’s Stmt. 11 7. ln its filing, Skybridge identified various alleged "errors"
in the WCB’s decision. Shenoy Decl., Attach. 0 (Appl. for Review for FOIA Control No 2009-
136) at 3. With respect to the WCB’s decision to withhold information under Exemption 4,
Skybridge again argued that PSI’s submissions to the FCC were "[t]raudulent, false, or sham
filings" ineligible for protection under Exemption 4, which Skybridge interpreted as being
limited to "legitimate confidential commercial information of value to legitimate commerce." Id.
at 9. Skybridge specifically argued that the information withheld did not meet the legal
definition of "confidential" information, see infra Part lll.C. 1 , because the release of fraudulent
infonnation (1) would not impair the FCC’s ability to obtain legitimate commercial information
in the future and (2) would not cause any legitimate competitive harm other than to "expose the
sham." la’.
D. The FCC’s Final Determination
On August 3, 2010, the FCC issued a final written decision resolving the two
administrative appeals filed by Skybridge in connection with Skybridge’s November 2008 and
December 2008 Requests, as well as a third administrative appeal filed by PSl. See In re
Skybridge Spectrum Found., 25 F.C.C. Recd. 11064 (F.C.C. 2010). The FCC divided its
decision into three parts.
First, the FCC denied Skybiidge’s appeal of the WCB’s resolution of the November 2008
Request. Suggesting that "Skybridge d[id] not challenge WCB’s determination that disclosure of
the material at issue here would likely cause substantial competitive harm to MC/LM,” id. at
11068, the FCC interpreted Skybridge’s appeal as confined to a more narrow argument that the
information submitted by the MCLM Group was "false" and "fraudulent" and therefore
ineligible for protection under Exemption 4, ia'. at 11066. As a legal matter, the FCC
emphasized that Skybridge "cite[d] no authority" for its position, z``d. at 11067, and concluded
that "there is no justification to adopt a ‘fraud exception’ to Exemption 4," id. at 11069. The
FCC reasoned that Exemption 4 "does not have the effect of shielding alleged misconduct from
the officials with jurisdiction for investigating it" because, regardless of whether information is
released publicly through FOIA, the "materials are freely available to both USAC and the FCC
for investigation." Ia’. at 11067. As a factual matter, the FCC concluded that Skybridge
presented "nothing more than . . . unsubstantiated allegations of fraud," ia'., and found that "the
allegedly fraudulent nature of the records at issue here does not place them outside the scope of
Exemption 4," id. at 11069.
Second, tuming to Skybridge’s appeal with respect to the December 2008 Request, the
FCC similarly found that "Skybridge d[id] not question the WCB’s determination of competitive
harm but rather assert[ed] that PSl’s filings are fraudulent.” Id. at 11070. The FCC denied the
appeal on identical grounds. Ia’. at 11070-71.
Third, and finally, the FCC granted in part PSl’s administrative appeal, agreeing with PSI
that certain information responsive to Skybridge’s December 2008 Request should be withheld
under Exemption 6 in light of personal privacy concems. Ia’. at 11072.
E. The Instant Action
Skybridge commenced this action on September 2, 2010, challenging the FCC’s decision
to withhold information responsive to its November 2008 and December 2008 Requests. See
Compl. for Mandatory lnj. Relief. After the FCC filed a responsive pleading, the Court set a
10
schedule for the briefing of motions for summary judgment, see Scheduling Order at 4, which
was subsequently extended. ln accordance with the extended schedule, the FCC filed the
pending Motion for Summary judgment on June 3, 2011. See Def.’s Mem. of P. & A. in Supp.
of Defs.’ [sic] Mot. for Summ. J. ("Def.’s Mem."). ln the course of preparing its motion, the
FCC conducted a further review of the records withheld from Skybridge and concluded that
additional segregable information could and should be disclosed. Shenoy Decl. 1111 42-43. The
FCC sent the supplemental release to Skybridge on June 30, 2011. See Decl. of Tamir Damari
("Damari Decl."), Ex. 1 (Ltr. from FOIA to Skybridge dated June 30, 201l). The supplemental
release included redacted copies of the MCLM Group and PSl’s completed FCC Forrn 499-A’s
and FCC Form 499-Q’s, as well as additional portions of the correspondence between USAC and
the MCLM Group. Shenoy Decl. 11 44; Damari Decl., Ex. 1 (Schedule of Documents Released
June 29, 2011). By Skybridge’s own account, "[t]his released information represents at least the
majority of the documents and information sought in the subject two FOIA requests." Decl. of
Warren C. Havens ("Havens Decl.") 11 24.
Skybridge filed its opposition on August 1, 2011. Conceding that the FCC’s
supplemental release "comprise[d] the vast majority of the documents subsumed with [its]
[r]equests which had yet to be produced," Pl.’s Opp’n at 14, Skybridge dedicated the lion’s share
of its submission to what it styled as a "Cross-Motion for Summary Judgment on the Issue of
Attomeys’ Fees." On August 2, 2011, the Court denied Skybridge’s cross-motion without
prejudice, finding that the motion was "in actuality just a petition for fees under 5 U.S.C. §
552(a)(4)(E)(i), which is a matter collateral to the merits." Min. Order (Aug. 2, 2011). The
Court granted Skybridge "leave to re-file a petition for fees after the Court has resolved the
merits of this case.” Ia'.
ll
On September 9, 2011, the FCC filed a reply in support of its Motion for Summary
Judgment. See Def.’s Reply. Accordingly, the motion is fully briefed and ripe for adjudication.
ln an exercise of its discretion, the Court finds that holding oral argument would not be of
assistance in rendering a decision. See LCVR 7(f).
II. LEGAL STANDARD
Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny." Dep ’t of the Air F0rce v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks omitted). However, Congress remained sensitive to the need to achieve
balance between these objectives and the potential that "legitimate governmental and private
interests could be harmed by release of certain types of information." Critical Mass Energy
Project v. Nuclear Regulatory Comm ’rz, 975 F.2d 871, 872 (D.C. Cir. l992) (en banc) (quotation
marks omitted), cert. denz``ed, 507 U.S. 984 (1993). To this end, FOIA "requires federal agencies
to make Govemment records available to the public, subject to nine exemptions for categories of
material." Milner v. Dep ’t ofNavy, __ U.S. __, 131 S. Ct. 1259, 1261-62 (201 l). Despite the
availability of such exemptions, "disclosure, not secrecy, is the dominant objective of the act."
Rose, 425 U.S. at 361. For this reason, the "exemptions are explicitly made exclusive, and must
be narrowly construed." Milner, 131 S. Ct. at 1262 (quotation marks and citation omitted).
Summary judgment is proper when the pleadings, the discovery materials on file, and any
affidavits or declarations "show[] that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When presented with a
motion for summary judgment in this context, the district court must conduct a "de novo" review
of the record, 5 U.S.C. § 552(a)(4)(B), which "requires the court to ascertain whether the agency
has sustained its burden of demonstrating that the documents requested . . . are exempt from
12
disclosure," Assassz``nation Archz``ves & Research Cir. v. Cent. lntellz``gence Agency, 334 F.3d 55,
57 (D.C. Cir. 2003) (quotation marks omitted). "Consistent with the purpose of the Act, the
burden is on the agency to justify withholding requested documents," Beck v. Dep ’t of Justice,
997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that "it has fully
discharged its disclosure obligations" is summary judgment appropriate, Weisberg v. U.S. Dep ’t
of Justiee, 705 F.2d 1344, 1350 (D.C. Cir. l983). In ascertaining whether the agency has met its
burden, the district court may rely upon agency affidavits or declarations. Milz``tary Aua'it Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "lf an agency’s affidavit describes the
justifications for withholding the information with specific detail, demonstrates that the
information withheld logically falls within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment
is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dep ’t of Def ,
628 F.3d 612, 619 (D.C. Cir. 2011). ln other words, "[ujncontradicted, plausible affidavits
showing reasonable specificity and a logical relation to the exemption are likely to prevail."
Ancient Coin Collectors Guild v. U.S. Dep ’t ofState, 641 F.3d 504, 509 (D.C. Cir. 2011).
III. DISCUSSION
A. The FCC Has Failed to Establish that the Doctrine of Administrative
Exhaustion Circumscribes the Scope of this Case
As a preliminary matter, the Court must address the FCC’s threshold contention that the
scope of this action is circumscribed by Skybridge’s alleged failure to fully exhaust its
administrative remedies. Under FOIA, "[e]xhaustion of administrative remedies is generally
required before seeking judicial review ‘so that the agency has an opportunity to exercise its
discretion and expertise on the matter and to make a factual record to support its decision."’
Wilbur v. Cem‘. lntellz``gence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam) (quoting
13
Oglesby v. U.S. Dep ’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). However, in this context, the
doctrine is "jurisprudential" and "not jurisdictional." Hia’algo v. Fed. Bureau of Investigation,
344 F.3d 1256, 1258 (D.C. Cir. 2003). Broadly speaking, a plaintiffs "failure to exhaust
precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular administrative
scheme’ support such a bar." Ia'. at 1258-59 (quoting Oglesby, 920 F.2d at 61).
ln this case, it is undisputed that Skybridge in fact sought and obtained administrative
review of the WCB’s initial determinations, resulting in a final written decision from the FCC.
See In re Skybridge Spectrum Found., 25 F.C.C. Recd. 11064 (F.C.C. 2010). For this reason, the
FCC wisely forgoes an argument that Skybridge is barred from pursuing this action in its entirety
and instead tenders a more narrow exhaustion argument, suggesting that Skybridge is precluded
from raising certain arguments or theories before this Court by failing to raise them below.
Specifically, the FCC contends that Skybridge’s administrative appeal did not challenge the
WCB’s determinations that (1) in connection with Exemption 4, the information withheld by the
WCB constituted confidential commercial information the release of which would likely result in
competitive harm to third parties, and (2) in connection with Exemption 6, the disclosure of the
information withheld would constitute an unwarranted invasion of third parties’ personal
privacy. See Def’s Mem. at 5-7, 19 n.3. Whatever the legal merits of the FCC’s exhaustion
argument in the abstract, it fails at the outset because it rests on a false premise_namely, that
Skybridge could and should have raised these arguments below but did not do so.
1. Skybridge’s Administrative Appeal Did Contest Whether the lnformation
Withheld by the WCB Constituted Confidential Commercial lnforrnation
Distilled to its essence, Exemption 4 protects confidential commercial information
submitted to agencies by third parties. See infra Part lll.C.l. To invoke the exemption to protect
information submitted under compulsion, the agency must show that disclosure would either (1)
14
impair the govemment’s ability to obtain similar information in the future or (2) cause
substantial competitive harm to the person from whom the information was obtained. See ia'. ln
this regard, the FCC claims that Skybridge’s "administrative appeal was limited to the question
of whether a ‘fraud exception’ should be carved out of Exemption 4." Def.’s Mem. at 7.
According to the FCC, Skybridge "did not challenge the [WCB’S] determination that the
information being withheld constituted commercial information the release of which would
likely result in competitive harm" to the MCLM Group and PSl. Id. The Court disagrees.
ln support of its interpretation, the FCC cites only to its own final written decision, in
which it found that Skybridge "d[id] not challenge" and "d[id] not question" that the disclosure
of the information withheld by the WCB would cause substantial competitive harm to the
MCLM Group and PSl. 1n re Skybridge Spectrum Found., 25 F.C.C. Recd. at 11068, 11070.
But the record does not support such a parsimonious construction of Skybridge’s written requests
for administrative review. Therein, Skybridge argued that the WCB’s decision to withhold
information under Exemption 4 was improper because the MCLM Group’s and PSl’s filings
were fraudulent. From this premise, it argued that the information withheld by the WCB was
ineligible for protection under Exemption 4 because the release of fraudulent information would,
as a logical matter, neither (l) impair the FCC’s ability to obtain legitimate commercial
information in the future nor (2) cause any legitimate competitive harm to the MCLM Group or
PSl. See Shenoy Decl., Attach. 0 (Appl. for Review for F0lA Control No. 2009-089) at 8,
Attach. 0 (Appl. for Review for FOIA Control No 2009-136) at 9. ln short, Skybridge
undeniably argued that the information withheld by the WCB in this case did not meet the legal
definition of confidential commercial information, as that definition has been developed by the
15
federal courts. Accordingly, the doctrine of administrative exhaustion presents no bar to
Skybridge now raising such an argument before this Court.
2. There Was No Reason for Skybridge to Know that the FCC Would Rely
on Exemption 6 as a Basis for Withholding lnforrnation
The FCC next faults Skybridge for failing to "administratively appeal the application of
Exemption 6." Def.’s Mem. at 19 n.3. The argument requires little attention. True, Skybridge’s
written requests for administrative review of the WCB’s initial determination make no mention
of Exemption 6, but there is a good reason for the omission: the WCB did not cite Exemption 6
as a basis for withholding any information. See Shenoy Decl., Attach. H (Ltr. From FCC to
Skybridge dated Aug. 24, 2009), Attach. L (Ltr. from FCC to Skybridge dated Aug. 24, 2009).
lndeed, there was no reason for Skybridge to believe that Exemption 6 was even at issue until the
FCC issued its final written decision citing Exemption 6 as a basis for the non-disclosure of
certain personal inforrnation. In re Skybridge Spectrum Found., 25 F.C.C. Recd. at 11072. As a
result, Skybridge could not have known it needed to raise issues surrounding Exemption 6 at the
time its administrative appeal was due. ln other words, to the extent the issue was not fully
developed on the administrative level, the fault lies with the FCC and not Skybridge.
Accordingly, the doctrine of administrative exhaustion presents no bar to Skybridge now
challenging the FCC’s reliance upon Exemption 6 before this Court.
B. Skybridge Has Conceded the Merits of the FCC’s Continued Withholding
Decisions
Even though the FCC has not shown that the doctrine of administrative exhaustion
precludes Skybridge from pursuing certain arg,rments in this case, the Court nonetheless
concludes that Skybridge has conceded the merits of the FCC’s continued withholding decisions.
ln this regard, the FCC begins its reply by observing that Skybridge has offered "little by way of
opposition to [its] dispositive motion." Def.’s Reply at 2. That observation is a radical
16
understatement. lndeed, based upon a searching review of Skybridge’s opposition, it does not
appear that Skybridge even intended to challenge the FCC’s decision to continue withholding
some information responsive to Skybridge’s November 2008 and December 2008 Requests.
After Skybridge commenced this action, the FCC revisited its withholding decisions and
concluded that additional information could and should be disclosed. See Shenoy Decl. 1111 42-
43. ln a supplemental release, the FCC sent Skybridge a broad universe of documents it had
previously withheld, including redacted copies of the MCLM Group’s and PSl’s completed FCC
Forrn 499-A’s and FCC Forrn 499-Q’s and additional portions of the correspondence between
the MCLM Group and USAC.3 See Damari Decl., Ex. 1 (Ltr. from F0lA to Skybridge dated
June 30, 2011). ln its opposition, Skybridge repeatedly asserts that the FCC’s supplemental
release covered "the vast majority of the documents subsumed within [its] [r]equests" Pl.’s
Opp’n at 4; see also id. at 14-15 ("The released documents comprise the vast majority of the
documents subsumed within the Requests which had yet to be produced by the FCC."); id. at 16
("[T]he FCC ultimately produced (in whole or in part) virtually all of the documents
requested."); Havens Decl. 11 24 ("This released information represents at least the majority of
the documents and information sought in the subject two F0lA requests."). ln essence,
Skybridge concedes that its claims are, if not entirely then at least largely, moot. See Perry v.
Block, 684 F.2d 121, 125 (D.C. Cir. 1982) ("[H]owever fitful or delayed the release of
3 Although Skybridge faults the FCC for failing to explain why the information included in its
supplemental release was not produced earlier, see Pl.’s Opp’n at 15, the particular
circumstances of this case do not present a basis for penalizing the FCC for its decision to release
records it had previously withheld. See Militarjy Audit, 656 F.2d at 738 ("emphatically
reject[ing]" an argument that an agency’s "change of heart" and decision to release documents in
the midst of litigation somehow "vitiates the agency’s continuing claims against the release of
the remaining information."); Am. Civil Liberties Union, 628 F.3d at 627 ("As in previous FOIA
cases, we decline to penalize a govemment agency for voluntarily reevaluating and revising its
F0lA withholdings.").
17
information under the F0lA may be, once all requested records are surrendered, federal courts
have no further statutory function to perform.").
ln fact, the only time Skybridge even touches upon the merits of the FCC’s withholding
decisions is in the context of addressing its claimed entitlement to attorneys’ fees, which the
Court previously denied as premature. Noting that "[t]he reasonableness of the responding
agency in withholding documents is a factor to be considered in evaluating whether an award of
attomeys’ fees is proper," Pl.’s 0pp’n at 25, the heart of Skybridge’s opposition is its argument
that it is the substantially prevailing party in this action because the FCC’s supplemental release
reflects a "voluntary or unilateral change" in the FCC’s position, 5 U.S.C. § 552(a)(4)(E). ln
other words, Skybridge is arguing that it has already obtained the desired outcome. Consistent
with this interpretation, Skybridge’s opposition is consistently targeted not to information that is
currently being withheld by the FCC, but rather the propriety of the FCC’s past withholding
decisions-that is, the information the FCC withheld before its supplemental release. See ia’. at 4
(claiming that "the bases upon which the FCC originally withheld documents . . . do not in fact
support withholding.") (emphasis added); id. at 33 ("[T]he FCC did not act reasonably in the first
instance by withholding these documents.") (emphasis added); id. at 37 ("[T]he non-exempt
portions of these documents should nonetheless have been produced prior to the inception of this
litigation.") (emphasis added). For all these reasons, the Court does not understand Skybridge as
intending to challenge the FCC’s ongoing withholding decisions
Still, the Court acknowledges that Skybridge’s intentions are not completely free from
doubt. For instance, Skybridge states in its opposition not only that its "Cross-Motion on the
issue of attomeys’ fees should be granted," but also suggests, in passing and with no meaningful
explication whatsoever, that the FCC’s "Motion for Summary Judgment should be denied." Pl.’s
18
Opp’n at 38. Since the FCC’s Motion for Summary Judgment is directed exclusively towards
establishing the propriety of its decision to continue withholding certain information even after
its supplemental release, one might read Skybridge’s stray comment as incorporating a challenge
to that decision. However, even assuming that Skybridge intended to challenge the propriety of
the FCC’s continued withholding decisions, the Court would nonetheless conclude that
Skybridge has conceded the merits of the FCC’s arguments for continued non-disclosure by
failing to tender a meaningful opposition.
ln its opening memorandum, the FCC provides a thorough, thoughtful, and exhaustive
account as to why it has acted properly by continuing to withhold confidential commercial
information under Exemption 4 and personal identifying information under Exemption 6. See
Def.’s Mem. at 7-24. lt couples this account with an itemized index correlating withheld
information with a specific exemption and the justification for non-disclosure. See Shenoy Decl.
11 44, Attach. A (Table of Withheld Records); Damari Decl., Ex. 1 (Schedule of Documents
Released June 29, 2011).4 Meanwhile, Skybridge’s opposition does not directly respond to the
FCC’s arguments for continued non-disclosure Despite tendering a litany of objections as to the
propriety of the FCC’s past withholding decisions, Skybridge never identifies a single document,
or a single item of information, that it claims the FCC is improperly withholding today. ln this
Circuit, "it is well understood . . . that when a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded." Hopkins v. Women ’s Div., Gen. Bd. of Global
Ministries, 284 F. Supp. 2d l5, 25 (D.D.C. 2003), ajj"d, 98 F. App’x 8 (D.C. Cir. 2004); accord
Lewis v. Disirict ofColumbia, No. 10-5275, 2011 WL 321711, at *l (D.C. Cir. Feb. 2, 20l1). ln
4 At no point has Skybridge challenged the adequacy of the FCC’s submissions
19
this instance, the Court exercises its discretion to treat the FCC’s arguments for continued non-
disclosure as conceded and, because that is dispositive of the pending motion, the Court shall
GRANT the FCC’s 1181 Motion for Summary Judgment on that basis alone.$
C. The FCC Has Properly Invoked Exemptions 4 and 6
Even assuming, for the sake of argument, that the Court were inclined to reach the merits
of the FCC’s Motion for Summary Judgment, the result would be the same because the FCC has
properly invoked Exemptions 4 and 6 as a basis for continued non-disclosure.
1. The FCC Has Properly Invoked Exemption 4
The FCC relies upon Exemption 4 as a basis for continuing to withhold detailed revenue
information obtained from the MCLM Group and PSI via their completed FCC Forrn 499-A’s
and FCC Form 499-Q’s, as well as portions of the correspondence between USAC and the
MCLM Group reflecting revenue information, checking account inf``ormation, payment history,
amounts owed to USF, customer information, and service pricing. Exemption 4 protects
"commercial or financial information obtained from a person and privileged or confidential." 5
5 ln reaching this conclusion, the Court is mindful that the "strong presumption in favor of
disclosure places the burden on the agency to justify the withholding of any requested
documents." U.S. Dep ’t ofState v. Ray, 502 U.S. 164, 173 (1991). ln this case, the FCC has met
that burden by tendering an "[u]ncontradicted, plausible" index and declaration explaining with
reasonable specificity the justification for continued non-disclosure and correlating the withheld
information with a specific exemption. Ancient Coin Collectors Guild, 641 F.3d at 509. The
entire point of requiring an agency to go through this evidentiary exercise is to permit "adequate
adversary testing" by putting the plaintiff in a position to provide "controverting illumination"
with reference to specific information that has been withheld and to explain why the exemption
cited does not provide a basis for non-disclosure. Vaughn v. Rosen, 484 F.2d 820, 824-25 (D.C.
Cir. 1973), cert. denied, 415 U.S. 977 (l974). In this case, Skybridge has conceded the pending
motion by failing to identify a single document or a single item of information that the FCC
continues to withhold and then explain why the FCC’s arguments for non-disclosure are
insufficient. 0r, viewed from a slightly different perspective, Skybridge’s failure to identify a
single document or item of information that it claims is currently being improperly withheld can
be seen as a failure to state an actual live controversy. See Stejj‘el v. Thompson, 415 U.S. 452,
459 n.10 (l974) ("The rule in federal cases is that an actual controversy must be extant at all
stages of review, not merely at the time the complaint is filed.").
20
U.S.C. § 552(b)(4). To invoke the exemption, an agency must show that "the information is: (l)
commercial or financial; (2) obtained from a person, and (3) privileged or confrdential."
Canadian Commercial Corp. v. Dep ’t of Air Force, 442 F. Supp. 2d 15, 30 (D.D.C. 2006), ajj"d,
514 F.3d 37 (D.C. Cir. 2008). The FCC has satisfied this three-part showing.
First, courts have eschewed an interpretation of "commercia " information that would
limit Exemption 4’s coverage to "records that reveal basic commercial operations or relate to the
income-producing aspects of a business.” Baker & Hostetler LLP v. U.S. Dep ’t of Commerce,
473 F.3d 313, 319 (D.C. Cir. 2006) (quotation marks and notations omitted). Rather, the tenn
has been construed broadly: "information is ‘commercial’ under the exemption if . . . it serves a
commercial function or is of a commercial nature." Nat’l Ass ’n of Home Builders v. Norton, 309
F.3d 26, 38 (D.C. Cir. 2002) (quotations marks omitted). Here, there can be no doubt that the
information that the FCC continues to withhold falls well within the ambit of this concept:
revenue information, checking account information, service pricing, and the like are at the core
of the "commercial or financial information" eligible for protection under Exemption 4. See
Shenoy Decl. 1111 44, 46-52.
Second, information must be "obtained from a person" to be eligible for protection under
Exemption 4. The tenn "person" includes "an individual, partnership, association, or public or
private organization other than an agency." 5 U.S.C. § 551(2). ln other words, the information
must be "obtained outside the Govemment." Fed. Open Mkt. Comm. of F ed. Reserve Sys. v.
Merrill, 443 U.S. 340, 360 (1979).6 This requirement is also clearly satisfied in this case because
6 An agency’s summary of information obtained from sources outside the govemment may also
be eligible for protection. See, e.g., Gulf& W. Indus., Inc. v. United States, 615 F.2d 527, 529-
30 (D.C. Cir. 1979).
21
the information that the FCC continues to withhold under Exemption 4 was submitted by third
parties to USAC-namely, the MCLM Group and PSl. See Shenoy Decl. 1111 44, 46-52.
Third, information must be "privileged or confidential" to be eligible for protection under
Exemption 4. ln this case, the FCC claims that the information at issue is "confidential," a tenn
that has been the focus of the vast majority of the litigation surrounding Exemption 4. Whether
infonnation is confidential "tums in part on whether it was provided to the govemment
voluntarily or under compulsion." McD0nnell Douglas Corp. v Nat ’l Aeronautics & Space
Admin., 180 F.3d 303, 304 (D.C. Cir. 1999).
ln this case, the bulk of the infonnation that the FCC continues to withhold from
Skybridge originates from the FCC Fonn 499-A’s and FCC Fonn 499-Q’s completed by the
MCLM Group and PSl. The parties agree that interstate telecommunications providers,
including the MCLM Group and PSl, are required to complete these fonns. See Def.’s Mem. at
13; Pl.’s 0pp’n at 36. Therefore, the FCC must show that disclosure of the infonnation it
continues to withhold "would be likely either (l) to impair the Govemment’s ability to obtain
necessary infonnation in the future; or (2) to cause substantial harm to the competitive position
of the person from whom the infonnation was obtained." United Techs. Corp. v. U.S. Dep ’t of
Def, 601 F.3d 557, 559 (D.C. Cir. 2010) (quotation marks omitted). Regardless of whether the
disclosure of such infonnation would impair the FCC’s ability to obtain similar infonnation in
the future, the FCC has shown that forced disclosure would likely cause substantial competitive
harm to the MCLM Group and PSl.
Skybridge concedes that the MCLM Group and PSI are among its "major competitors."
Pl.’s Opp’n at 5. The infonnation that the FCC continues to withhold from the FCC Fonn 499-
A’s and FCC Fonn 499-Q’s submitted by the MCLM Group and PSI consists of incredibly
22
detailed revenue infonnation, including: revenues received from services provided for resale by
other contributors to federal universal service mechanisms broken down by the underlying
service and the amounts that are attributable to interstate and intemational services; revenues
received from end-users and non-telecommunications sources, broken down by the underlying
service and the amounts that are attributable to interstate and intemational services; revenues
broken down by region and whether the revenue is derived from a reseller or an end-user service;
revenue received from contributing resellers, with subtotals for interstate and intemational
revenues; revenue received from end-users, with subtotals for interstate and intemational
revenues; revenues from other goods and services; and projected gross-billed and collected end-
user interstate and intemational telecommunications revenues. See Shenoy Decl. 1111 7, 11-13, 44,
46-48, Attach. B (FCC Fonn 499-Q) at 1, Attach. C (FCC Fonn 499-A) at 4-7. Courts recognize
that an agency’s predictive judgment about substantial competitive hann is "not capable of exact
proof" and therefore "generally defer" to the agency’s detennination. United Techs., 601 F.3d at
563 (quotation marks omitted). ln this case, the FCC has made a sufficient showing that the
public disclosure of this infonnation would, either on its own or in conjunction with other
publicly available information, provide competitors with specific infonnation about the MCLM
Group and PSl’s (l) competitive lines of business, (2) general market seg1nentation and
positioning, and (3) competitive strength. See id. 1111 48-49; Decl. of S. Cooper 1111 8-9; Decl. of
Sandra DePriest ("DePriest Decl.") 1111 10-11. Accordingly, the FCC has properly invoked
Exemption 4 as a basis for the continued non-disclosure of information in FCC Fonn 499-A’s
and FCC Fonn 499-Q’s.
ln addition, the FCC continues to withhold infonnation from portions of the
correspondence between USAC and the MCLM Group reflecting revenue information, checking
23
account infonnation, payment history, amounts owed to USF, customer infonnation, and service
pricing. Shenoy Decl. 1111 44, 49-52. lt is not entirely clear whether this infonnation was
submitted under compulsion or voluntarily. lf the fonner, the FCC must again show either that
disclosure of the infonnation it continues to withhold "would be likely either (l) to impair the
Govemment’s ability to obtain necessary infonnation in the future; or (2) to cause substantial
hann to the competitive position of the person from whom the infonnation was obtained."
United Techs., 601 F.3d at 559 (quotation marks omitted). lf the latter, the FCC must show that
the infonnation is "the kind that the provider would not customarily release to the public." Id. at
559 n.3 (quotation marks omitted). ln the end, the uncertainty is immaterial because the FCC’s
showing would satisfy either standard. 0n the one hand, the FCC has made a sufficient showing
that the public disclosure of this information would, either on its own or in conjunction with
other publicly available infonnation, (l) provide competitors with specific infonnation about the
MCLM Group and PSl’s competitive lines of business, general market segmentation and
positioning, and competitive strength, (2) reveal confidential account numbers, and (3) disclose
service pricing and customer identities that could be used by competitors to contact customers
and undercut pricing. See Shenoy Decl. 1111 49-50; DePriest Decl. 1111 4-9. 0n the other hand, it is
plain from the context and the FCC’s submissions that infonnation of this kind would not
customarily be released to the public. See Shenoy Decl. 1111 49-50; DePriest Decl. 1111 4-9, l1.
Accordingly, the FCC has properly invoked Exemption 4 as a basis for the continued non-
disclosure of infonnation from portions of the correspondence between USAC and the MCLM
Group.
Meanwhile, Skybridge has failed to identify a single document or a single item of
information that the FCC continues to withhold and then explain why the FCC’s arguments for
24
non-disclosure are insufficient. Nor do the arguments that Skybridge raised on the
administrative level, or that it apparently intends to raise in connection with a future petition for
attomeys’ fees, counsel in favor of reaching a different result. 0ut of an abundance of caution,
the Court addresses those arguments summarily here.
First, in the past, Skybridge has suggested that the public interest in the particular
infonnation covered by its requests should outweigh the private interest in the non-disclosure of
confidential commercial infonnation, However, once the district court concludes that the agency
has established the applicability of the exemption, its inquiry is at an end; the proponent of
disclosure is not free to "bolster the case for disclosure by claiming an additional public benefit."
Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999).
ln other words, Exemption 4 embodies a congressional detennination that the public disclosure
of confidential commercial infonnation does outweigh the public interest in disclosure, and it is
not the district court’s role to second-guess that judgment on a case-by-case basis
Second, in connection with its premature petition for attomeys’ fees, Skybridge argued
that the FCC’s past withholdings were improper because they covered "commercially dated
information." Pl.’s 0pp’n at 28. Whatever the merits of Skybridge’s argument with respect to
the FCC’s past withholding decisions, it has no bearing on the FCC’s current withholdings As
previously explained, the FCC has made a sufficient showing that the infonnation it continues to
withhold likely would, despite the passage of a modest amount of time, result in substantial
competitive harm to the MCLM Group and PSl. ln this context, courts recognize that an
agency’s predictive judgment about substantial competitive hann is "not capable of exact proof ’
and therefore "generally defer" to the agency’s detennination. United Techs., 601 F.3d at 563
25
(quotation marks omitted). The FCC’s explanation here is logical, plausible, and entitled to this
Court’s deference
Third, on the administrative level and in connection with its premature petition for
attorneys’ fees, Skybridge argued that Exemption 4 "does not extend to documents/infonnation
that is [sic] false" or fraudulent. Pl.’s Opp’n at 30. But despite having the benefit of decades of
jurisprudence interpreting Exemption 4 at its fingertips, Skybridge cites to no legal authority
supporting its unique interpretation of the exemption_none. lndeed, not only is Skybridge’s
interpretation legally unsupported, it would also be completely unworkable because it would
effectively require agencies, and later the courts, to test the truth and accuracy of each discrete
item of infonnation covered by a plaintiff s request before applying the protections afforded by
Exemption 4. Ultimately, under Skybridge’s interpretation, cases tuming on Exemption 4 would
inevitably devolve into multiple mini-trials about the truthfulness and accuracy of the
information withheld by the agency, multiplying proceedings exponentially and drawing upon
scarce judicial and administrative resources while contributing little in the way of furthering the
purposes and policies behind FOIA. Such an approach would run up against the Supreme
Court’s observation that, when it comes to FOIA, "categorical decisions may be appropriate . . .
when a case fits into a genus in which the balance characteristically tips in one direction," and its
recognition that it is often problematic when the courts attempt a "case-by-case, or ad hoc"
assessment of individual circumstances U.S, Dep ’t of Justice v. Reporters Comm. for Freedom
ofthe Press, 489 U.S. 749, 776 (1989); see also SafeCard Servs., Inc. v. Secs. & Exch. Comm ’n,
926 F.2d 1197, 1206 (D.C. Cir. 1991) ("Courts are to generalize from their experience . . . in
order to minimize unnecessary inquiries into factual minutiae.").7
7 Even assuming for the sake of argument, the existence of Skybridge’s so-called "fraud
exception" to Exemption 4, the Court would find that Skybridge has fallen far, far short of
26
2. The FCC Has Properly Invoked Exemption 6
Exemption 6 protects "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. §
552(b)(6). ln detennining whether the exemption applies, courts look "not to the nature of the
files," but rather to "the nature of the infonnation" at issue. N. Y. Times Co. v. Nat ’l Aeronautics
& Space Adrriin., 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc) (quotation marks omitted). lf
the infonnation "applies to a particular individual," then the threshold for application has been
met. U.S. Dep ’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982). From there, the question
becomes whether public disclosure would constitute a "clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6). "lf a substantial privacy interest is at stake, then [the district
court1 must balance the privacy interest in non-disclosure against the public interest."
Consumers ’ Checkbook Cir. for the Study of Servs. v. U.S. Dep ’t of Health & Hurnan Servs., 554
F.3d 1046, 1050 (D.C. Cir. 2009), cert. denied, ___ U.S. _, 130 S. Ct. 2140 (2010). ln this
regard, "[t]he only relevant public interest . . . is the extent to which disclosure would serve the
core purpose of F0lA, which is contributing significantly to public understanding of the
operations or activities of government." Id. at 1051 (quotation marks, notations, and emphasis
omitted).
ln this case, the FCC cites Exemption 6 as a basis for withholding the names and personal
identifying infonnation of officers employees, and representatives of the MCLM Group and
making the sort of showing that would be required to invoke its tenns. Cf Wolfv. Cent.
Intelligence Agency, 473 F.3d 370, 378 (D.C. Cir. 2007) (requiring a plaintiff relying on the prior
disclosure doctrine to establish that the "specific" infonnation at issue has been officially
disclosed; "exactitude" and not "speculation" must be provided); SafeCard, 926 F.2d at 1205
(requiring a plaintiff to come forward with "compelling evidence" of governmental misconduct
before overriding an exemption claim).
27
PSl.g See Shenoy Decl. 1111 44, 54-56. 0n the one hand, "the privacy interest of an individual in
avoiding the unlimited disclosure of his or her name and address is significant." Nat’l Ass ’n of
Retired Fed. Enips. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) cert. denied, 494 U.S. 1078(1990).9 0n the other hand, the disclosure of these names and personal identifying infonnation
would contribute little or nothing to the public’s understanding of the govemment’s operations
and activities Accordingly, the Court finds that the private interest in non-disclosure outweighs
the public interest in disclosure The FCC has properly invoked Exemption 6.
ln sum, the Court concludes that the FCC has properly invoked Exemptions 4 and 6 as a
basis for the continued non-disclosure of the infonnation withheld from Skybridge. Therefore,
even assuming, for the sake of argument, that Skybridge had not conceded the merits the Court
would nonetheless GRANT the FCC’s [181 Motion for Summary Judgment.
D. The FCC Has Discharged Its Burden of Establishing that lt Has Disclosed
All Reasonably Segregable Information
Even when an agency may properly withhold a responsive record under one of F0lA’s
enumerated exemptions it nevertheless must disclose any non-exempt information that is
"reasonably segregable." 5 U.S.C. § 552(b). The question of segregability is by necessity
subjective and context-specific, turning upon the nature of the documents in question and the
infonnation contained therein. Mead Data Cent., Inc. v. U.S. Dep ’t of Air Force, 566 F.2d 242,
261 (D.C. Cir. 1997). An agency need not, for instance, "commit significant time and resources
8 The FCC has however, disclosed some contact infonnation for the MCLM Group and PSl,
including the names of some of the companies’ officers and representatives and their business
addresses
9 ln connection with its premature petition for attomeys’ fees Skybridge argued that
"Exemption 6 is inapplicable to corporations and other institutional entities which are not natural
persons." Pl.’s Opp’n at 26. While that is undeniably true, it is irrelevant because the
information that the FCC has withheld includes the names and personal identifying infonnation
of natural persons
28
to the separation of disjointed words, phrases or even sentences which taken separately or
together have minimal or no infonnation content." Id. at 269 n.54. Ultimately, to discharge its
burden before the district court, the agency "must provide a reasonably detailed justification
rather than conclusory statements to support its claim that the non-exempt material in a
document is not reasonably segregable." Id,
ln this case, the FCC explains how it carefully reviewed and released all reasonably
segregable infonnation, a process that included at least three rounds of review-the first in
connection with the WCB’s initial detennination the second in connection with the FCC’s
consideration of Skybridge’s administrative appeals and the third in connection with this
litigation. See Shenoy Decl. 1111 44-45, 47 -52, 54-55. Based upon this description and a
searching review of the documents that the FCC has withheld only in part, the Court finds that
the FCC has adequately demonstrated, in reasonable and non-conclusory tenns, that all non-
exempt material has either been disclosed to Skybridge or is not reasonably segregable.
IV. CONCLUSION
For the reasons set forth above, the Court shall GRANT the FCC’s [18] Motion for
Summary Judg1nent. An appropriate Order and J udg1nent accompanies this Memorandum
0pinion.
Date: February 2, 2012
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
29