Federal Communications Commission FCC 11-77
DISSENTING STATEMENT OF 
COMMISSIONER ROBERT M. MCDOWELL
Re: National Legal and Policy Center; On Request for Inspection of Records, FOIA Control Nos. 
2010-026, 2010-027, 2010-028, 2010-098, and 2010-135
I respectfully dissent from this Memorandum Opinion and Order (“Order”) because it takes an 
unnecessarily restrictive approach to the Freedom of Information Act (“FOIA”) fee waivers afforded 
under 5 U.S.C. § 552(a)(4)(A)(iii).  That provision directs agencies to give certain FOIA requesters a full 
or partial fee waiver “if disclosure of the information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester.”  In my view, the denial of the request by the 
National Law and Policy Center (“NLPC”) is not compelled by the statutory language or FCC 
implementing rules, 47 C.F.R. §§ 0.470(a)(2) and 0.470(e).  
There is no dispute here with respect to the requester’s status as a nonprofit foundation or its 
history as a self-appointed government watchdog which uses its own website, among other outlets, to 
disseminate information to the public about government activities that the requester believes warrant 
public attention.  The Order’s outcome turns, essentially, on a determination that the requester was not 
specific enough about what it expected to find or how that information, if found, would contribute to the 
public’s understanding of FCC operations.  
This result is troubling in several respects.  Not the least of these is that the Order puts the 
Commission in the constitutionally awkward position of deciding whether the subject of a FOIA request 
is one of “wide public attention” – i.e., newsworthy – or not. Moreover, in an era in which the 
Commission itself has been at the forefront of recognizing and tracking the roiling of traditional news 
media business models and the rise of new sources of information, it seems inconsistent for us to continue 
to insist on a sharp distinction in the context of FOIA fee waivers between a “news media” requester, for 
whom fee waivers are practically automatic, and other requesters who fulfill the same information-
dissemination function but do not fit within the traditional rubric.  
I would have preferred that the Order follow the philosophy of statutory construction set forth in 
Citizens for Responsibility and Ethics in Washington v. United States Dep’t of Health and Human 
Services, 481 F. Supp. 2d 99 (D.D.C. 2006).  Such an approach also would be in keeping with President 
Obama’s January 2009 directive on FOIA.  See Executive Office of the President, “Freedom of 
Information Act,” 74 Fed. Reg. 4683 (Jan. 21, 2009).  Although not specifically addressed to fee waivers, 
the Presidential Memorandum states that FOIA “should be administered with a clear presumption:  In the 
face of doubt, openness prevails.”  Construing the statute to recognize the effect of FOIA costs on 
nonprofit government watchdog entities would be consistent with that spirit.  
I appreciate the work of the Office of the General Counsel to address my concerns.  Although I 
could not in the end vote for the Order, I thank the OGC staff for improving upon the original draft by 
clarifying the standard that nonprofit requestors must satisfy in order to obtain a fee waiver.