10 FCC Red No. 5 Federal Communications Commission Record FCC 95-23

ed the authorized field strengths for non-licensed Before the transmissions. Moreover, Dunifer©s operations were ob Federal Communications Commission served to cause interference to radio stations KQED-FM, Washington, D.C. 20554 , , and KECG(FM), El Cerrito, California. Declaration of David K. Hartshorn at H 15; Declaration of William R. Zears, Jr. at K 13; Kane Declara In the Matter of tion at f 24. 3. The FOB, acting pursuant to Section 503(b) of the The Conspiracy FOIA Control No. 94-160 Communications Act, 47 U.S.C. § 503(b), imposed a $20,000 forfeiture against Dunifer on November 8, 1993 On Request for for two unlicensed broadcasts occurring on April 25 and May 2, 1993. Stephen Paul Dunifer, NAL/Acct. No. Inspection of Records 315SF0050 (FOB Nov. 8, 1993), application for review pending. MEMORANDUM OPINION AND ORDER 4. On October 6, 1994, the United States brought suit under Section 401(a) of the Communications Act, 47 Adopted: January 12,1995; Released: January 13,1995 U.S.C. § 401(a), against Dunifer in the United States Dis trict Court for the Northern District of California. That suit seeks injunctive and declaratory relief and is based on By the Commission: 24 separate and unauthorized broadcasts occurring from April 25, 1993 to May 8, 1994. United States v. Dunifer, No. 1. The Commission has under consideration an Applica C94 3542 CW (see n.3 above). tion for Review filed by The Conspiracy, the newspaper of the San Francisco-Bay Area Chapter of the National Law yers Guild. The appeal seeks review of an initial ruling II. FOIA REQUEST made by the former Field Operations Bureau (FOB),© 4. The Conspiracy©s FOIA request, filed on May 19, 1994, concerning the denial of The Conspiracy©s Freedom of In noted an August 1993 newspaper article in which Philip formation Act (FOIA) request. 5 U.S.C. § 552. Letter from M. Kane, the Engineer in Charge of the FOB©s San Fran Beverly G. Baker, Chief, FOB, to Betsy Johnson, Editor, cisco office, was attributed with the claim that his office The Conspiracy (October 14, 1994).2 The request relates to had received complaints from "several" licensed stations. unauthorized broadcasts, in 1993, by Stephen Paul Dunifer Express, Aug. 13, 1993 at 14. The FOIA request asked the in the vicinity of Berkeley, California. Commission "to inform us of:" the details regarding these complaints, which stations filed them, the dates of the complaints, the nature of the complaints, and the FCC©s I. BACKGROUND response to them.4 2. In April 1993, the FOB©s San Francisco office re 5. In its October 14, 1994 letter ruling, the Bureau ceived information from two individuals indicating that an responded that several informal inquiries or complaints, unauthorized FM radio transmitter was operating on 88.1 regarding why stronger action had not been taken against MHz in the . Declaration of Philip Dunifer, had been received from local broadcast engineer M. Kane (Kane) at f 9.3 A subsequent investigation span and consultant sources. The FOB explained that the com ning several months in 1993 and 1994 by FOB engineers, plaints and inquiries were made in person or by telephone involving the use of electronic radio direction-finding and that no documents or other records were compiled equipment and other techniques, disclosed that Dunifer regarding such communications. Additionally, the FOB was engaging in unauthorized radio operations in violation noted that the individuals responsible for the inquiries and of Section 301 of the Communications Act of 1934, as complaints had expressly requested confidentiality. Thus, amended, 47 U.S.C. § 301. The radio transmissions were the FOB found that, even if records of these complaints on 88.1 MHz, a frequency set aside for non-commercial did exist, the identities of the individuals were exempt from educational FM broadcast stations. Additionally, non-li mandatory disclosure under 5 U.S.C. § 552(b)(7)(D) and censed, low-power transmitters may use that frequency pro 47 C.F.R. § 0.457(g)(4). vided that they comply with certain technical specifications. See 47 C.F.R. § 15.239(b). The FOB inves tigation determined that Dunifer©s radio operations exceed

1 As a result of Commission reorganization, the Bureau©s ac made by other FOB personnel were filed by the United States tivities have been assumed by the new Compliance and In in support of its complaint for declaratory and injunctive relief formation Bureau (CIB). against Dunifer in United States v. Stephen Paul Dunifer, No. 2 While the requester©s appeal is technically not timely and C94 3542 CW (N.D. Cal., docketed October 6, 1994). A hearing does not conform to the Commission©s procedural rules for in that case is scheduled for January 20, 1995. appealing the denial of an FOIA request, see 47 C.F.R. § 4 FOIA requires federal agencies to make public their records 0.46 l(i), it does appear that there were administrative except for those falling within specified exemptions. It does not, difficulties in the delivery of the Bureau©s initial FOIA re however, require agencies to answer what are in effect sponse. Therefore, and under these particular circumstances, we interrogatories. DiViaio v. Kelley, 571 F.2d 538, 542-43 (10th Cir. will treat The Conspiracy©s late filed letter pleading as an ap 1978); Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985). Nor plication for review and consider its merits. does FOIA require agencies to create paper or other records for 5 The sworn declaration executed by Kane, the Engineer in the requester©s benefit. See, e.g., Krohn v. Department of Justice, Charge of the FOB©s San Francisco office, and declarations 628 F.2d 195, 197-98 (D.C. Cir. 1980). 6

2155 FCC 95-23 Federal Communications Commission Record 10 FCC Red No. 5

III. APPLICATION FOR REVIEW the Bureau©s letter to mean that it made no specific re 6. The Conspiracy challenges the FOB©s claim that no sponse to the public contacts but merely continued its records of these inquiries and complaints exist. The Con ongoing investigation. spiracy assumes that records of these complaints would 12. Moreover, there is no support for The Conspiracy ©s routinely have been kept. Moreover, The Conspiracy asserts contention that the Commission indicated that stations that because its request sought information concerning the KQED-FM and KECG(FM) were the complainants and Commission©s response to citizen complaints, the Commis that the Commission thereby waived the confidentiality of sion should have disclosed all information concerning the their identities. The sworn declarations further indicate monitoring of Dunifer©s operations. The Conspiracy sug that interference to these stations was observed by the FOB gests that such documentation should include field notes of investigators, not that the stations had made the com Commission investigators and records compiled by the plaints. Paragraph 2, supra. The interference to KECG(FM) Commission respecting Dunifer©s Internet postings pub was observed by an FCC engineer on January 16, 1994, licizing his operations. and thus could not have been the subject of the August 7. Additionally, The Conspiracy contends that the Com 1993 newspaper article. See f 4 above. To the extent that mission waived the confidentiality of any alleged the newspaper article relied on by The Conspiracy suggests complaints by stations KQED-FM and KECG(FM) because that KECG(FM) was one of the complainants to the Com they appear to have been mentioned in a newspaper article mission, the article is inconsistent with the declarations to which reported an interview of FCC counsel concerning which it refers. San Francisco Daily Journal, Nov. 28, 1994. the pending district court litigation. 13. Although we find that the Bureau was entirely jus 8. The Conspiracy further requests that, if its application tified in its response to The Conspiracy ©s request, we note for review is denied pursuant to 47 C.F.R. 0.461(i), it that The Conspiracy has clarified the scope of the records it should be treated as a new FOIA request covering all now seeks in its application for review. In this connection, materials in the Commission©s possession regarding however, we believe that it would best conduce to efficient Dunifer©s broadcasts and activities. administration of the public©s business for The Conspiracy to file a new request covering any material outside the scope of its original request. IV. DISCUSSION 9. We will deny The Conspiracy ©s application for review.. The Conspiracy has shown no basis to believe that, contrary V. ORDER to the express representations of Commission staff, any 14. In view of the reasons explained above, IT IS OR record was made or ever existed reflecting the informal DERED, That the Application for Review, filed on Decem inquiries and complaints referred to in The Conspiracy©s ber 14, 1994, by The Conspiracy IS DENIED. The FOIA request. We have no reason to believe that these Requester may seek judicial review of this decision pursu informal contacts were of a type that would have been ant to 5 U.S.C. §552(a)(4)(B). recorded in the ordinary course of business. In fact, the 15. The Officials responsible for this action are the fol public inquiries seem to be duplicative and, therefore, lowing Commissioners: Reed E. Hundt, Chairman, James redundant of information already received and compiled H. Quello, Andrew C. Barrett, Rachelle B. Chong, and by the Commission. Susan Ness. 10. As the sworn declarations indicate, the FOB initiated its investigation of Dunifer©s illegal broadcasts after receiv FEDERAL COMMUNICATIONS COMMISSION ing information from two individuals in April 1993. In formation, indicating numerous and ongoing violations of the Communications Act by Dunifer, was developed by FOB investigators during the course of their investigation. Thus, there is no reason to infer that the inquiries and William F. Caton complaints referred to by The Conspiracy had any singular Acting Secretary significance that would have warranted making a public record of them, especially since those making the contacts wished to remain anonymous and the information fur nished tracked the intelligence already gathered by the staff. 11. Similarly, because the inquiries and .complaints re ferred to by The Conspiracy did not give rise to or precipitate the investigation of Dunifer, the investigation therefore was not a "response" to these inquiries and the materials developed during the investigation, e.g., notes and memoranda of FCC engineers investigating Dunifer©s il legal broadcasts, were not within the scope of the FOIA request. In this regard, we do not adopt The Conspiracy©s overly literal interpretation of the FOB©s statement that: "the San Francisco Field Office response was to continue to schedule field enforcement work to gather probative evidence of any Communications Act violations involving Mr. Dunifer." Letter from Baker to Johnson at 1. We read

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