AT&T Inc v. FCC

Filing 28

ELECTRONIC APPENDIX on behalf of Petitioner AT&T Inc, filed. Volumes: 2 (Volume I attached to brief). Manner of Service: electronic. Certificate of Service dated 12/19/2008. (CSS)

AT&T Inc v. FCC

Doc. 28

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________________ No. 08-4024 ____________________ AT&T INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. ____________________ On Petition for Review of an Order of the Federal Communications Commission ____________________ APPENDIX Volume II (A 15-67) ____________________ Wayne Watts Paul K. Mancini AT&T SERVICES INC. 208 S. Akard Street, Suite 3505 Dallas, Texas 75202 [phone] Gary L. Phillips Terri Hoskins AT&T INC. 1120 20th Street, N.W. Washington, D.C. 20036 [phone] December 19, 2008 Colin S. Stretch Kelly P. Dunbar KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 [phone]

Counsel for AT&T Inc.

Dockets.Justia.com

TABLE OF CONTENTS Volume I Page Petition for Review (filed Sept. 26, 2008) (without attachments).........................A 1 Memorandum Opinion and Order, SBC Communications Inc. On Request For Confidential Treatment, FCC 08-207 (rel. Sept. 12, 2008) ..................................................................................... A 7 Order Granting Motion to Expedite Appeal (Nov. 19, 2008)..............................A 14 Volume II Certified List of Items in the Record (File No. EB-04-IH-0342) ........................ A 15 Email from Mary C. Albert, CompTel, to FOIA FCC (Apr. 4, 2005) .......................................................................................................... A 27 Letter from Jim Lamoureux, SBC Services, Inc., to Judy Lancaster, Enforcement Bureau, FCC, FOIA Control No. 2005-333 (May 27, 2005)..........................................................................A 28 Letter from Mary C. Albert, CompTel, to Judy Lancaster, Enforcement Bureau, FCC, FOIA Control No. 2005-333 (June 28, 2005) .......................................................................................... A 37 Letter from William H. Davenport, Enforcement Bureau, FCC, to Jim Lamoureux, SBC Services, Inc., and Mary Albert, CompTel, FOIA Control No. 2005-333 (Aug. 5, 2005)............................A 41 Letter from Jim Lamoureux, SBC Services, Inc., to Samuel Feder, Acting General Counsel, FCC, FOIA Control No. 2005-333 (Aug. 19, 2005) ......................................................................... A 47 Letter from Mary Albert, CompTel, to Samuel Feder, Acting General Counsel, FCC, FOIA Control No. 2005-333 (Sept. 6, 2005)............................................................................................A 55

Declaration of Leslie Bowman, Attachment B to Motion of AT&T Inc. for Stay Pending Judicial Review (3d Cir. filed Sept. 26, 2008)...................................................................................A 61

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Mr. Jim Larnoureux Ms. Mary C. Albert August 5,2005 Page 5 disclosure would either impair the government's ability to obtain necessary information in the future or would be likely to substantially harm the competitive position of the ~ubmitter.~' SBCYs responses were required submissions for the purposes of our FOIA analysis." LO1 An LO1 is an administrative order that compels the production of information. Failure to respond properly to an LO1 may subject an entity to forfeiture action.22Because we directed SBC to submit its written responses to the Bureau's LOI, its responses were required. We find that certain information in SBC's submissions constitutes commercial or financial information, the disclosure of which could result in substantial competitive harm to SBC. Such commercially sensitive information includes, but is not limited to, SBC's costs and pricing data, its billing and payment dates, and identifying information of SBC's staff, contractors, and the representatives of its contractors and customers. Accordingly, such information is exempt from disclosure under FOIA Exemption 4.23 Although section 54.501(d)(3) of the Commission's rules requires telecommunications service providers such as SBC to allow public inspections of the rates it charges and the discounts it allows to schools and libraries eligible for universal service support,24SBC can comply with the rule's requirements by maintaining a "public inspection file" containing the required rate information. The rule does not mandate disclosure here of all of the pricing data contained in SBC's submissions. In this instance, disclosure of SBC's invoice and discount amounts could disclose the total value of its contract, information that would not otherwise be publicly available. That information is not in the public domain and its release is not required by the rule. Because release of SBC pricing information in this case is likely to substantially harm SBCYs competitive position, such information is exempt from disclosure under FOIA Exemption
4.

C.

Names of SBC Employees And Customers Are Protected From Disclosure Due To Personal Privacy Concerns

The FOIA statute, 47 U.S.C. 5 552(b)(7)(C), provides that records or information compiled for law enforcement purposes are exempt from disclosure to the extent that the
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National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) ("National Parks"); Critical Mass, 795 F.2d at 878 (citing National Parks).

2 i See Critical Mass (establishing separate tests for confidential treatment of voluntary submissions and required submissions). See also

See SBC Communications,Inc., Order of Forfeiture, 17 FCC Rcd 7589 (2002) (forfeiture paid); Globcom Inc., Notice of Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893, n. 36 (2003), response pending.
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See, e.g., In Re The Lakin Law Firm, P.C., Memorandum Opinion and Order, 19 FCC Rcd 12727 (2004).

24 47 C.F.R. 54.501(d)(3) provides that "[Telecommunications] Service providers shall keep and retain records of rates charged to and discounts allowed for eligible schools and libraries - on their own or as part of a consortium. Such records shall be available for public inspection."

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Mr. Jim Lamoweux Ms. Mary C. Albert August 5,2005 Page 6 production of such records could reasonably be expected to "constitute an unwarranted invasion of personal privacy" are exempt from d i s c l ~ s u r e .Generally, businesses do not possess ~~ "personal privacy" interests as required for application of FOIA Exemption 7(C).2However,the individuals identified in SBC's submissions do have such privacy rights and, pursuant to this provision, portions of SBC's submissions will be redacted to withhold the names and identifying information of those individuals to prevent unwarranted invasions of their personal privacy.

D.

Documents Which Disclose an Agency's Deliberative Process Are Protected From Disclosure

Exemption 5 of the FOIA protects "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."" Pursuant to this exemption we will withhold from public disclosure drafts of Bureau pleadings and correspondence, and memoranda and emails, distributed among Commission staff, which discuss the issues and investigation related to this matter.

IV.

CONCLUSION

For the reasons stated above, we grant in part and deny in part SBC's request for confidentiality. If SBC believes that this decision is in error, it must file an application for review of this action with the Commission's Office of General Counsel within ten working days of the date of this letter. See 47 C.F.R. 5 0.461(i). We will produce the documents requested as noted above if no such application for review is filed. We will assess copying charges, if any, at that time. .If Comptel believes that this decision is in error, it may file an application for review of this action with the Commission's Office of General Counsel within 30 days of the date of this letter. See 47 C.F.R. 5 0.461Cj). We are providing SBC's counsel with a copy of the documents as redacted pursuant to this decision. Sincerely,

William H. Davenport Chief, Investigatio& and ~ e a r i z Division ~s Enforcement Bureau

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5 U.S.C. 5 552(b)(7)(C). See also 5 U.S.C. jj 552(b)(6); In re William McConnell, Broadcasting and Cable, Order, 18 FCC Rcd 2637 1 (2003).
26 See,

e.g., Chadmore Communications, Inc., Memorandum Opinion and Order, I3 FCC Rcd 23943 (1998)

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5 U.S.C. $ 552(b)(5).

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Samuel Feder August 19,2005 Page 2 of 8

On August 5,2005, the Enforcement Bureau denied SBC's request that the documents be withheld from disclosure under FOlA Exemption 7 ( ~ ) Although the Enforcement Bureau .~ agreed to redact the names of individuals contained in the responsive records, the Enforcement Bureau otherwise denied SBC's claim that the records should be withheld pursuant to Exemption 7 ( ~ ) Its rationale for doing so was contained in a single sentence: "Generally businesses do .~ not possess 'personal privacy' interests as required for application of FOIA Exemption 7(C)." In effect, with a single sweeping statement, the Enforcement Bureau held, as a categorical matter, that corporations have no rights under FOIA Exemption 7(C). Thus, according to the Enforcement Bureau, a corporation's basis for requesting non-disclosure of records compiled for law enforcement purposes is limited to an assertion that the records fall within some other specific FOIA exemption, such as Exemption 4 pertaining to confidential commercial information. That holding is inconsistent with and contrary to the purpose underlying Exemption 7(C), cases addressing the scope of Exemption 7(C), and the actual language of Exemption 7(C). Accordingly, SBC respectfully requests that the Enforcement Bureau's rejection of SBC's request for confidentiality be reversed, and that the documents requested by CompTel/ALTS be withheld from disclosure. Withholding of the Responsive Documents Exemption 7(C) Com~els Exemption 7(C) applies to all "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). The purpose of Exemption 7(C) is to protect parties who had been the subject of law enforcement proceedings from embarrassment, reprisal or harassment, and other invasions of privacy associated with the stigma of law enforcement investigations. See Voinche v. F.B.I, 940 F. Supp. 323 (D.D.C. 1996); Foster v. U.S. Dept. ofJustice, 933 F. Supp. 687 (E.D. Mi 1996). Because of the intense privacy interests in information compiled by law enforcement agencies, Exemption 7(C) "affords broad[] privacy rights to suspects, witnesses, and investigators." Bast v. Dep 't o Justice, 665 F.2d 1251, 1254 (D.C. Cir. 1981). With respect f to the records at issue here, there is no question, and the Enforcement Bureau does not challenge, that the records were "compiled for law enforcement purposes."4 Thus, the only question is
See Letter from William H. Davenport, Chief, Investigations and Hearings Division, Enforcement Bureau, Federal Communications Comm