Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the FCC properly withheld revenue information from forms filed by telecommunications carriers with the Universal Service Administrative Company, which administers the Universal Service Fund to help provide communities with affordable telecommunications services and is overseen by the FCC. Skybridge Spectrum Foundation, a non-profit telecommunications company headquartered in Berkeley, requested the forms for several competitors. The FCC ultimately provided much of the information included on the forms, but withheld the revenue information. Skybridge appealed by arguing that the information was not covered by Exemption 4 (confidential business information) because it was largely fraudulent and, thus, its disclosure could not constitute competitive harm. Skybridge filed suit after it was dissatisfied with the agency's decision on its administrative appeal. The agency initially contended that Skybridge had not exhausted its administrative remedies because it had argued nothing more than that the information was fraudulent. Indicating that "the record does not support such a parsimonious construction of Skybridge's written requests for administrative review," Kollar-Kotelly explained that "Skybridge undeniably argued that the information withheld in this case did not meet the legal definition of confidential commercial information, as that definition had been developed by the federal courts." Kollar-Kotelly then noted that Skybridge admitted the agency had already disclosed most of the information it sought. Nevertheless, since Skybridge contended that Exemption 4 did not apply, she went on to analyze the agency's claim. She pointed out that "the FCC has made a sufficient showing that the public disclosure of this information would, either on its own or in conjunction with other publicly available information, (1) provide competitors with specific information about [Skybridge's] competitors' competitive lines of business, general market segmentation and positioning, and competitive strength, (2) reveal confidential account numbers, and (3) disclose service pricing and customer identities that could be used by competitors to contact customers and undercut pricing." She rejected Skybridge's claim that the information was fraudulent, noting that "not only is Skybridge's interpretation legally unsupported, it would also be completely unworkable because it would effectively require agencies, and later the courts, to test the truth and accuracy of each discrete item of information covered by a plaintiff's request before applying the protections afforded by Exemption 4."
Issues: Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2010-09-02	1	COMPLAINT against FEDERAL COMMUNICATIONS COMMISSION ( Filing fee $ 350, receipt number 4616032427) filed by SKYBRIDGE SPECTRUM FOUNDATION. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 09/03/2010)
2010-09-02	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by SKYBRIDGE SPECTRUM FOUNDATION identifying Corporate Parent NONE for SKYBRIDGE SPECTRUM FOUNDATION. (rdj) (Entered: 09/03/2010)
2010-09-02		SUMMONS (3) Issued as to FEDERAL COMMUNICATIONS COMMISSION, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 09/07/2010)
2010-09-03	3	ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on September 3, 2010. (SM) (Entered: 09/03/2010)
2010-12-03	4	RULE 4(m) ORDER. By no later than December 31, 2010, Plaintiff must either cause process to be served and proof of service to be filed with the Court, or file a status report with the Court explaining why service has not been made. Signed by Judge Colleen Kollar-Kotelly on December 3, 2010. (lcckk3) (Entered: 12/03/2010)
2010-12-28	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed in a FOIA Case as to the U.S. Attorney for DC; FEDERAL COMMUNICATIONS COMMISSION served on 12/16/2010, answer due 1/15/2011 for U.S. Attorney. (Attachments: # 1 Affidavit of Service)(Damari, Tamir) (Entered: 12/28/2010)
2010-12-28	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 12/16/2010. (Attachments: # 1 Affidavit of Service)(Damari, Tamir) Modified on 12/29/2010 to enhance text(rdj). (Entered: 12/28/2010)
2010-12-28	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL COMMUNICATIONS COMMISSION served on 12/16/2010 (Attachments: # 1 Affidavit of Service)(Damari, Tamir) Modified on 12/29/2010 to enhance text(rdj). (Entered: 12/28/2010)
2010-12-29	8	NOTICE of Appearance by Tamir Damari on behalf of SKYBRIDGE SPECTRUM FOUNDATION (Attachments: # 1 Certificate of Service)(Damari, Tamir) (Entered: 12/29/2010)
2011-01-04	9	NOTICE of Appearance by Marina Utgoff Braswell on behalf of FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 01/04/2011)
2011-01-14	10	Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 01/14/2011)
2011-01-19		MINUTE ORDER granting 10 Defendant's Unopposed Motion for Extension of Time in which to respond to the Compliant. Accordingly, Defendant shall have until and including February 18, 2011, to respond to Plaintiff's Complaint. Set/Reset Deadline: Answer due by 2/18/2011. Signed by Judge Colleen Kollar-Kotelly on January 19, 2011. (SM) (Entered: 01/19/2011)
2011-02-17	11	ANSWER to 1 Complaint by FEDERAL COMMUNICATIONS COMMISSION.(Braswell, Marina) (Entered: 02/17/2011)
2011-02-22	12	ORDER. The parties shall promptly meet and confer and, on or before Tuesday, March 1, 2011, at 5:00 p.m., file a Joint Status Report with the Court, which shall, at a minimum, (a) propose a schedule for the briefing of dispositive motions in this action, (b) indicate whether a Vaughn index will be required and, if so, propose dates for the preparation and exchange of the index, (c) indicate whether the parties intend to use a sample of the records at issue for purposes of briefing their dispositive motions and, if so, propose a procedure for selecting the sample, and (d) identify any components of the Complaint that have been resolved or otherwise rendered moot in the time since Plaintiff commenced this action. Signed by Judge Colleen Kollar-Kotelly on February 22, 2011. (lcckk3) (Entered: 02/22/2011)
2011-03-01	13	STATUS REPORT and Proposed Briefing Schedule by SKYBRIDGE SPECTRUM FOUNDATION. (Damari, Tamir) (Entered: 03/01/2011)
2011-03-02	14	SCHEDULING AND PROCEDURES ORDER. In order to administer this civil action in a manner fair to the litigants and consistent with the parties' interest in completing this litigation in the shortest possible time and at the least possible cost, the parties are directed to comply with each of the directives set forth in this Order. In addition, the parties shall adhere to the following schedule for the briefing of dispositive motions: on or before Thursday, April 28, 2011, at 5:00 p.m., Defendant shall serve and file its motion for summary judgment, accompanying Vaughn index, and supporting declarations; on or before Tuesday, May 31, 2011, at 5:00 p.m., Plaintiff shall serve and file its (a) opposition to Defendant's motion for summary judgment and (b) cross-motion for summary judgment; on or before Tuesday, June 28, 2011, at 5:00 p.m., Defendant shall serve and file its (a) reply in support of its motion for summary judgment and (b) opposition to Plaintiff's cross-motion for summary judgment; and on or before Friday, July 15, 2011, at 5:00 p.m., Plaintiff shall serve and file its reply in support of its cross-motion for summary judgment. The dates identified are firm; the Court has given the parties the schedule that they have requested and expects that they will adhere to that schedule. Signed by Judge Colleen Kollar-Kotelly on March 2, 2011. (lcckk3) (Entered: 03/02/2011)
2011-04-25	15	Consent MOTION for Extension of Time to File Dispositive Motion by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 04/25/2011)
2011-04-26	16	ORDER granting 15 Motion for Extension of Time to File. On or before May 27, 2011: Defendant will file any dispositive motion and accompanying Vaughn Index and/or declaration; On or before June 27, 2011: Plaintiff will oppose Defendant's dispositive motion and cross-move for summary judgment; One or before July 22, 2011: Defendant will oppose Plaintiff's cross-motion for summary judgment and reply to Plaintiff's opposition to Defendant's dispositive motion; On or before August 11, 2011: Plaintiff will file its reply to Defendant's opposition to Plaintiff's cross-motion for summary judgment. Signed by Judge Colleen Kollar-Kotelly on 4/26/11. (dot ) (Entered: 04/29/2011)
2011-05-25	17	MOTION for Extension of Time to File Motion for Summary Judgment by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 05/25/2011)
2011-06-01		MINUTE ORDER granting 17 Defendant's Motion for Further Brief Extension of Time to File dispositive motions. Accordingly, Defendant shall have until June 3, 2011, to file Dispositive Motion and accompanying Vaughn Index and/or declaration(s); Plaintiff's Opposition to Defendant's Dispositive Motion, and Cross-Motion for Summary Judgment due on/before July 6, 2011; Defendant's Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment due on/before July 22, 2011; Plaintiff's reply in support of Cross-Motion for Summary Judgment due August 11, 2011. Set/Reset Deadlines: Dispositive Motion due by 6/3/2011; Response to Dispositive Motions due by 7/6/2011; Reply to Dispositive Motions due by 7/22/2011. Cross Motions due by 7/6/2011; Response to Cross Motions due by 7/22/2011; Reply to Cross Motions due by 8/11/2011. Signed by Judge Colleen Kollar-Kotelly on June 1, 2011. (SM) (Entered: 06/01/2011)
2011-06-03	18	MOTION for Summary Judgment by FEDERAL COMMUNICATIONS COMMISSION (Attachments: # 1 Shenoy Declaration, # 2 Shenoy Declaration, Attachments A-D, # 3 Shenoy Declaration, Attachments E-G, # 4 Shenoy Declarations, Attachments H-K, # 5 Shenoy Declaration, Attachments L-N, # 6 Shenoy Declaration, Attachment O, # 7 Shenoy Declaration, Attachment P, # 8 Cooper declaration, # 9 DePriest Declaration)(Braswell, Marina) (Entered: 06/03/2011)
2011-07-05	19	Consent MOTION for Order to Modify Summary Judgment Briefing Schedule by SKYBRIDGE SPECTRUM FOUNDATION (Attachments: # 1 Text of Proposed Order Consent Motion to Modify Summary Judgment Briefing Schedule)(Damari, Tamir) (Entered: 07/05/2011)
2011-07-06		MINUTE ORDER (paperless). Plaintiff's 19 Consent Motion to Modify Summary Judgment Briefing Schedule is GRANTED. The parties shall adhere to the following schedule: on or before August 1, 2011, Plaintiff shall serve and file its opposition to Defendant's motion for summary judgment and its cross-motion for summary judgment; on or before September 9, 2011, Defendant shall serve and file its reply in support of its motion for summary judgment and its opposition to Plaintiff's cross-motion for summary judgment; and on or before September 30, 2011, Plaintiff shall serve and file its reply in support of its cross-motion for summary judgment. The Court notes that it grants Plaintiff's motion reluctantly; the motion was filed on the eve of the relevant deadline in contravention of Paragraph 2(a) of this Court's 14 Scheduling and Procedures Order dated March 2, 2011. Moreover, the motion reflects the third requested extension of the briefing schedule initially proposed by the parties and ordered by the Court; no further extensions will be granted absent extraordinary circumstances. Signed by Judge Richard W. Roberts, sitting as the Motions Judge pursuant to Local Civil Rule 40.8(b)(3), on July 6, 2011. (lcckk3) (Entered: 07/06/2011)
2011-07-06		Set/Reset Deadlines: Plaintiff's Cross Motions due by 8/1/2011. Response to Cross Motions due by 9/9/2011. Reply to Cross Motions due by 9/30/2011. Response to Motion for Summary Judgment due by 8/1/2011. Reply to Motion for Summary Judgment due by 9/9/2011. (dot) (Entered: 07/07/2011)
2011-08-01	20	Memorandum in opposition to re 18 MOTION for Summary Judgment filed by SKYBRIDGE SPECTRUM FOUNDATION. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Declaration Declaration of Tamir Damari, # 3 Exhibit Exhibit 1 Part 1 of T. Damari Declaration, # 4 Exhibit Exhibit 1 Part 2 of T. Damari Declaration, # 5 Exhibit Exhibit 1 Part 3 of T. Damari Declaration, # 6 Exhibit Exhibit 1 Part 4 of T. Damari Declaration, # 7 Exhibit Exhibit 1 Part 5 of T. Damari Declaration, # 8 Exhibit Exhibit 1 Part 6 of T. Damari Declaration, # 9 Exhibit Exhibit 1 Part 7 of T. Damari Declaration, # 10 Exhibit Exhibit 1 Part 8 of T. Damari Declaration, # 11 Exhibit Exhibit 1 Part 9 of T. Damari Declaration, # 12 Statement of Facts Plaintiff's Cross Statement, # 13 Declaration Declaration of Warren C. Havens, # 14 Exhibit Exhibit 1 of W.C. Havens Declaration, # 15 Exhibit Exhibit 2 of W.C. Havens Declaration, # 16 Exhibit Exhibit 3 of W.C. Havens Declaration)(Damari, Tamir) (Attachment 8 replaced to correct sideways pages on 8/3/2011) (znmw, ). (Entered: 08/01/2011)
2011-08-02		MINUTE ORDER (paperless). Defendant filed its 18 Motion for Summary Judgment in this FOIA action on June 3, 2011. On August 1, 2011, Plaintiff filed a 20 document styled as both (a) an Opposition to Defendant's Motion for Summary Judgment and (b) a Cross-Motion for Summary Judgment on the Issue of Attorneys' Fees ("Cross-Motion"). In its Cross-Motion, Plaintiff contends that it is a "substantially prevailing party" under FOIA because Defendant has allegedly released the vast majority of documents covered by its requests. Plaintiff's Cross-Motion is in actuality just a petition for fees under 5 U.S.C. § 552(a)(4)(E)(i), which is a matter collateral to the merits. As such, Plaintiff's Cross-Motion is premature and is DENIED WITHOUT PREJUDICE with leave to re-file a petition for fees after the Court has resolved the merits in this case. See Cambell v. U.S. Dep't of Justice, 164 F.3d 20, 37 n.18 (D.C. Cir. 1998); Hussain v. U.S. Dep't of Homeland Sec., 674 F. Supp. 2d 260, 272-73 (D.D.C. 2009). Signed by Judge Colleen Kollar-Kotelly on August 2, 2011. (lcckk3) (Entered: 08/02/2011)
2011-09-09	21	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by FEDERAL COMMUNICATIONS COMMISSION. (Braswell, Marina) (Entered: 09/09/2011)
2012-02-02	22	ORDER AND JUDGMENT. For the reasons set forth in the accompanying Memorandum Opinion, the FCC's 18 Motion for Summary Judgment is GRANTED and judgment is ENTERED in the FCC's favor. Signed by Judge Colleen Kollar-Kotelly on February 2, 2012. (lcckk3) (Entered: 02/02/2012)
2012-02-02	23	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on February 2, 2012. (lcckk3) (Entered: 02/02/2012)
2012-02-16	24	Unopposed MOTION for Extension of Time to File Motion for Prevailing Party Attorneys' Fees by SKYBRIDGE SPECTRUM FOUNDATION (Attachments: # 1 Text of Proposed Order)(Damari, Tamir) (Entered: 02/16/2012)
2012-02-16	25	STRICKEN PURSUANT TO MINUTE ORDER FILED 2/16/2012.....NOTICE OF WITHDRAWAL OF APPEARANCE as to SKYBRIDGE SPECTRUM FOUNDATION. Attorney Robert Martin Adler and Tamir Damari terminated. (Damari, Tamir) Modified on 2/17/2012 (znmw, ). (Entered: 02/16/2012)
2012-02-16		MINUTE ORDER (paperless). The Clerk of the Court shall STRIKE the 25 Notice of Withdrawal by Nossaman, LLP. The notice fails to comply with Local Civil Rule 83.6(b), under which a notice for withdrawal of appearance must be signed by the party represented and is only effective if another attorney has already entered an appearance. The Clerk of the Court shall modify the public docket to reflect that Robert Martin Adler, Esq., and Tamir Damari, Esq., remain counsel of record for Plaintiff. Signed by Judge Colleen Kollar-Kotelly on February 16, 2012. (lcckk3) (Entered: 02/16/2012)
2012-02-16		MINUTE ORDER granting 24 Plaintiff's Unopposed Motion for Extension of Time Within Which to File a Motion for Prevailing Party Attorneys' Fees. Plaintiff shall have until and including March 16, 2012, to file Motion for Prevailing Party Fees. Signed by Judge Colleen Kollar-Kotelly on February 16, 2012. (SM) (Entered: 02/16/2012)
2012-02-21	26	MOTION to Withdraw APPEARANCE BY NOSSAMAN, LLP AND NOTICE TO PLAINTIFF TO RETAIN NEW COUNSEL by SKYBRIDGE SPECTRUM FOUNDATION (Attachments: # 1 Certificate of Service, # 2 Text of Proposed Order)(Damari, Tamir) (Entered: 02/21/2012)
2012-02-21		Leave to File Denied. Plaintiff's supplemental motion for an extension of time within which to file a motion for prevailing party attorneys' fees "Leave to file is denied as moot as plaintiff has already been granted the requested extension to March 16, 2012 " by Judge C. Kollar-Kotelly (td, ) (Entered: 02/21/2012)
2012-03-14	27	NOTICE of Appearance by Christopher Anthony Canter on behalf of SKYBRIDGE SPECTRUM FOUNDATION (Canter, Christopher) (Entered: 03/14/2012)
2012-03-15	28	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Allison D. Rule, :Firm- Marashlian & Donahue, LLC, :Address- 1420 Spring Hill Road, Suite 401, McLean, VA 22102. Phone No. - 703-714-1312. Fax No. - 703-714-1330 by SKYBRIDGE SPECTRUM FOUNDATION (Canter, Christopher) (Entered: 03/15/2012)
2012-03-15		MINUTE ORDER granting 28 Motion for Admission Pro Hac Vice as to Allison D. Rule, contingent upon Attorney Rule certifying to the Court that she is familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on March 15, 2012. (SM) (Entered: 03/15/2012)
2012-03-16	29	MOTION for Attorney Fees by SKYBRIDGE SPECTRUM FOUNDATION (Attachments: # 1 Exhibit)(Canter, Christopher) (Entered: 03/16/2012)
2012-03-21	30	NOTICE of Appearance by Allison D. Rule on behalf of SKYBRIDGE SPECTRUM FOUNDATION (Rule, Allison) (Entered: 03/21/2012)
2012-03-29	31	Unopposed MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Attorney Fees by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 03/29/2012)
2012-03-30		MINUTE ORDER granting 31 Defendant's Unopposed Motion for Extension of Time to file response to Plaintiff's Petition for Attorney's Fees. Accordingly, to allow for settlement discussions, Defendant shall have until and including April 16, 2012, to file a response to Plaintiff's Petition for Attorney's Fees. Set/Reset Deadline: Response due by 4/16/2012. Signed by Judge Colleen Kollar-Kotelly on March 30, 2012. (SM) (Entered: 03/30/2012)
2012-04-05		MINUTE ORDER (paperless). The 26 Motion to Withdraw Appearance by Nossaman, LLP is GRANTED pursuant to Local Civil Rule 83.6(d). In light of the posture of this case and the fact that Plaintiff has obtained new counsel and that counsel has now entered an appearance in this action, the Court finds that granting the motion will not unduly delay resolution of this case, be unfairly prejudicial to any party, or otherwise not be in the interest of justice. Signed by Judge Colleen Kollar-Kotelly on April 5, 2012. (lcckk3) (Entered: 04/05/2012)
2012-04-13	32	Unopposed MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Attorney Fees by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 04/13/2012)
2012-04-17		MINUTE ORDER granting 32 Defendant's Unopposed (second) Motion for Extension of Time to Respond to Plaintiff's Petition for Attorney's Fees. Accordingly, to allow for further settlement discussions, Defendant shall have until and including April 24, 2012, to Respond to Plaintiff's Petition. Signed by Judge Colleen Kollar-Kotelly on April 17, 2012. (SM) (Entered: 04/17/2012)
2012-04-25	33	VACATED PURSUANT TO ORDER FILED 4/30/2012.....ORDER: Plaintiff's 29 Petition for Attorneys' Fees is GRANTED and Plaintiff is hereby awarded $22,290.40 in attorneys' fees and costs. Signed by Judge Colleen Kollar-Kotelly on April 25, 2012. (lcckk3) Modified on 4/30/2012 (dot ). (Entered: 04/25/2012)
2012-04-27	34	Unopposed MOTION to Vacate 33 Order by FEDERAL COMMUNICATIONS COMMISSION (Braswell, Marina) (Entered: 04/27/2012)
2012-04-27	35	STIPULATION of Settlement and Dismissal by FEDERAL COMMUNICATIONS COMMISSION. (Braswell, Marina) (Entered: 04/27/2012)
2012-04-30	36	ORDER granting 34 Unopposed Motion to Vacate. The Court's April 25, 2012 Order awarding fees to plaintiff is hereby vacated. The Clerk shall enter the parties' stipulation of settlement and dismissal on the record, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii). Signed by Judge Colleen Kollar-Kotelly on 4/30/12. (dot ) (Entered: 04/30/2012)
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