Federal Communications Commission FCC 96-347
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of )
) FOIA Control No. 96-80 
Jeffrey A. Krauss )
) 
On Request for Inspection
MEMORANDUM OPINION AND ORDER 
Adopted: August 13, 1996; Released: August 23, 1996
By the Commission:
1. The Commission has under consideration an application for review filed on April 
10, 1996, by Jeffrey A. Krauss (Krauss), seeking review of an April 4, 1996. Freedom of 
Information Act (FOIA) decision by the Chief, New Technology Development Division, Office 
of Engineering and Technology (OET). A response to the application for review was filed on 
April 24, 1996, by Dispatch Interactive Television, Inc. (Dispatch) and Welcome to the Future, 
Inc. (Welcome). Krauss filed a reply on April 30, 1996. For the reasons discussed below, we 
grant in part and deny in part the application for review.
Background
2. By FOIA request filed on March 6, 1996, Krauss sought "copies of the license, 
application and all correspondence" associated with the experimental license KA2XAL that was 
issued to Dispatch. The experimental license authorized Dispatch, the licensee of two Interactive 
Video and Data Service (TVDS) systems, to test the set-top equipment (RTU), developed by 
Welcome, in conjunction with Dispatch's IVDS systems. Prior to the filing of the FOIA 
request, OET had granted a request filed by Dispatch and Welcome asking that material in the 
application be accorded confidential treatment under section 0.459 of the Commission's rules, 
47 C.F.R. § 0.459, and Exemption 4 of the FOIA. 5 U.S.C. § 552(b)(4). In response to the 
FOIA request, OET provided Krauss with a copy of the experimental license and OET's 
response to the confidentiality request.
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Federal Communications Commission FCC 96-347
Pursuant to section 0.461(c) of the Commission's rules, 47 C.F.R. § 0.461(c),' GET withheld 
from disclosure Dispatch's application and a narrative statement appended to the application as 
Exhibit 1.
3. In his application for review, Krauss contends that OET's failure to release the 
applications for experimental licenses was contrary to the public interest. In particular, Krauss 
alleges that the Commission should disclose sufficient information to permit interested parties 
to detect potential sources of radio interference. In their joint response, Dispatch and Welcome 
assert that public disclosure of the technical design of the model RTU equipment, which is 
revealed in their application, likely will cause them substantial competitive harm, particularly 
given that "great competition currently exists between the various companies who are striving 
to develop and market the most effective and efficient IVDS technology and equipment." : 
Dispatch and Welcome also maintain that Krauss1 application for review has failed to present 
a persuasive factual showing that justifies the disclosure of the records. 3 In his reply, Krauss 
continues to assert that only a more complete disclosure will afford the information needed to 
evaluate potential interference.
Discussion
4. We have reviewed Dispatch's experimental application and the associated ten page 
narrative statement (Exhibit 1) and have determined that pages three through ten and portions 
of page one of the narrative statement, which detail the technical aspects and design of the model 
RTU equipment, should not be disclosed. We agree that public disclosure of this information 
would result in substantial competitive harm to Dispatch and Welcome in that it would lessen 
the value of their technologically innovative product by enabling others to utilize the information 
to develop similar products. Accordingly, the material is not required to be disclosed under 
the FOIA because it is within the scope of Exemption 4, which protects from public disclosure 
matters that are "trade secrets and commercial or financial information obtained from a person 
and privileged or confidential." 5 U.S.C. § 552(b)(4).
1 Section 0.461(c) requires that requests for disclosure of confidential materials specify the reasons for 
disclosure and the facts in support thereof. OET found that Mr. Krauss did not provide reasons for disclosure of 
the confidential information.
2 Response at 4.
3 Response at 3.
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Federal Communications Commission FCC 96-347
See National Parks and Conservation Ass'n v. Morton. 498 F.2d 765, 770-71 (B.C. Cir. 
I974)(where disclosure of commercial information likely will cause substantial competitive harm, 
it is confidential information protected from disclosure under Exemption 4). In light of our 
determination that this information is "confidential" within the meaning of Exemption 4, we need 
not decide whether the information is also exempt as a "trade secret" under the Exemption. See 
Public Citizen Health Research Group v. Food and Drug Administration. 704 F.2d 1280, 1288 
(D.C. Cir. 1983).
5. Krauss' concern regarding potential interference does not justify disclosure of the 
confidential information. The experimental authorizations issued to Dispatch and Welcome were 
for the limited purpose of enabling them to operate and test their RTU equipment in conjunction 
with Dispatch's licensed IVDS systems. In conducting their tests, Dispatch and Welcome must 
comply in all respects with the applicable IVDS rules regarding permissible frequencies, antenna 
heights, and maximum power output limits.4 Moreover, the Commission's IVDS licensing rules 
explicitly require licensees to resolve and correct any interference problems caused by their 
operations. 5 Additionally, under the Commission\s experimental authorization rules, applicants 
are required to refrain from causing harmful interference and to cease operations in the event 
that such interference occurs. 6 Finally, in the event harmful interference does occur, any 
interested party may file a complaint with the Commission, and the Commission will determine 
the source of the interference. Accordingly, because disclosure of the information is not 
required in order to protect interested parties from potential harmful interference, we find no 
public interest basis to release it.
6. We have confirmed, however, that the three page application itself (exclusive of 
Exhibit 1) was not within the scope of the applicant's original request for confidentiality and that 
the applicant has no objection to its disclosure. Accordingly, the three page application form 
will be released. In addition, portions of pages one and two of the narrative statement contain 
information that is virtually identical to the information provided in Dispatch's and Welcome's 
publicly filed response to the application for review. Therefore, because this information is not 
confidential, we will also disclose paragraphs one and two of page one and all of page two of 
the narrative statement.7
4 See 47 C.F.R. §§ 95.815(b), 95.851(a). 95.853. 95.855. 95.857. 95.859.
5 See 47 C.F.R. §95.861.
6 See 47 C.F.R. §5.151.
7 See Church of Scientology International v. U.S. Department of Justice. 30 F.3d 224. 228 (1st Cir. 
1994)(Government is required to disclose all reasonably segregable. non-exempt portions of the record).
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Federal Communications Commission FCC 96-347
Dispatch and Welcome have also indicated that they do not seek confidential treatment for this 
information.
Conclusion
7. Accordingly, the application for review IS GRANTED to the extent indicated 
herein and IS DENIED to the extent indicated herein. Krauss may seek judicial review of this 
decision pursuant to 5 U.S.C. § 552(a)(4)(B).
8. The officials responsible for this action are the following Commissioners: 
Reed E. Hundt, Chairman; James H. Quello, Susan Ness and Rachelle B. Chong.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton 
Acting Secretary
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