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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
) File No. EB-04-SE-045
Perfect Fit Industries, Inc. )
ORDER
Adopted: October 14, 2004 Released: October 18,
2004
By the Chief, Spectrum Enforcement Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Order (``Order''), we deny in its entirety a
request for confidential treatment of material submitted by
Perfect Fit Industries, Inc. (``Perfect Fit'') in response to a
letter of inquiry (``LOI'') from the Enforcement Bureau.
II. BACKGROUND
2. On March 5, 2004, the Spectrum Enforcement Division of
the Enforcement Bureau sent Perfect Fit a LOI seeking information
and documents concerning the compliance of Perfect Fit's Heated
Mattress Pads with the requirements of Part 15 of the Rules.
Perfect Fit submitted a response to the LOI on April 19, 2004.1
Perfect Fit's response included a Request for Confidentiality in
which Perfect Fit seeks confidential treatment of ``any and all
information submitted in response'' to the LOI. Perfect Fit
states that ``[a]ll of the information falls into the category of
trade secrets, and/or commercial, financial or technical
information . . . that would customarily be guarded from
disclosure to competitors.'' It further avers that the
information is especially sensitive because of the Commission's
ongoing investigation. Finally, Perfect Fit argues that because
much of the information it provides exceeds the scope of the
specific inquiries in the LOI, confidentiality is especially
appropriate.
III. DISCUSSION
3. Section 0.459 of the Rules establishes a procedure by
which parties may request that information or materials that they
have submitted to the Commission not be routinely available for
public inspection.2 The rule requires that each such request
shall contain a statement of the reasons for withholding the
materials from inspection as described in Section 0.457 of the
Rules,3 and of the facts on which this record is based, including
in part (1) identification of the specific information, (2) an
explanation of the degree to which the information is commercial
or financial, or contains a trade secret or is privileged, (3) an
explanation of the degree to which the information concerns a
service that is subject to competition, (4) an explanation of how
disclosure of the information could result in substantial
competitive harm, and (5) justification of the time period during
which the submitting party asserts that material should not be
available for public disclosure.
4. We conclude that Perfect Fit's request for confidential
treatment of the materials submitted in response to the LOI fails
to comply with the standards set forth in Section 0.459 of the
Rules.4 Perfect Fit did not provide an analysis of the degree to
which each specific category of information meets the criteria of
being commercial or financial, or contains a trade secret or is
privileged. Perfect Fit provided no discussion of the degree to
which the Heated Mattress Pad industry is subject to competition.
Perfect Fit likewise provided no discussion of how disclosure of
the information it provided could result in substantial
competitive harm, nor did Perfect Fit identify, or justify, a
time period during which the information should not be disclosed.
5. Section 0.459(c) of the Rules states that casual
requests for confidentiality that do not comply with Sections
0.459(a) and (b) of the Rules will not be considered. The LOI
issued to Perfect Fit by the Spectrum Enforcement Division
explicitly warned Perfect Fit that any requests to treat
materials responsive to the LOI as confidential must comply with
Section 0.459 and that ``blanket'' requests for confidentiality
of a large set of documents would be unacceptable. Nevertheless,
as discussed above, Perfect Fit made a blanket request for
confidentiality of all the information it provided. Accordingly,
pursuant to Section 0.459(c), we deny Perfect Fit's request.
6. Section 0.459(e) of the Rules states that information
submitted voluntarily may be returned upon request of the person
submitting the information, if the party's request for
confidentiality is denied. Perfect Fit argued that some of the
information it provided in response to the LOI was not
specifically requested by the Commission and therefore should be
considered voluntary. However, Perfect Fit failed to identify
the subset of information in its response for which it seeks
voluntarily-provided status. Moreover, it did not request the
return of such information as required by Section 0.459(e).
Accordingly, we need not consider whether any materials provided
by Perfect Fit should be returned at this time.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED, pursuant to Sections 0.111,
0.311, and 0.459(c), that the Request for Confidentiality filed
on April 19, 2004 by Perfect Fit Industries, Inc., IS DENIED.
8. IT IS FURTHER ORDERED that, pursuant to Section
0.459(g) of the Rules, that Perfect Fit Industries, Inc., may
file an application for review of this denial with the Commission
within five (5) working days of the release date of this Order.
9. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to counsel for Perfect Fit Industries, Inc., Jack
Richards, Esq. Keller and Heckman LLP, 1001 G Street. N.W., Ste
500 West, Washington, D.C. 20005.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Casey
Chief, Spectrum Enforcement
Division
Enforcement Bureau
_________________________
1 Letter from Jack Richards, Esq., Keller and Heckman LLP to
Brian Butler, Spectrum Enforcement Division, Enforcement Bureau,
(April 19, 2004) (``Response.'')
2 47 C.F.R. § 0.459.
3 47 C.F.R. § 0.457.
4 47 C.F.R. § 0.459.