Observers of the FCC’s minutia have noticed that your blogger’s name is now on the FCC’s “Items on Circulation” list for the 2nd time. This post explains why: A FOIA request I filed on behalf of this blog and the public interest is being blocked to a considerable degree by a “reverse FOIA” campaign from Motorola dealing with a product line it sold last year.

The Court of Appeals for the District of Columbia Circuit has defined a "reverse" FOIA action as one in which the "submitter of information -- usually a corporation or other business entity" that has supplied an agency with "data on its policies, operations or products -- seeks to prevent the agency that collected the information from revealing it to a third party in response to the latter's FOIA request."

So here are the basic facts:

• On August 11, 2011 I submitted a FOIA request to FCC for Motorola’s response to an Enforcement Bureau Letter of Inquiry (“LOI”) in EB-09-SE- 064, the investigation of U-NII interference to Terminal Doppler Weather Radar (TDWR) , a safety-related system to detect severe storms near airports, near the San Juan International Airport. This document was cited in an April 2010 Consent Agreement between Motorola and FCC where Motorola “agree(d) that it will make a voluntary contribution to the United States Treasury in the amount of $9,000” and make some management changes and FCC agreed to terminate the investigation.
• Rather than getting a response from FCC, I got a response from Motorola that included a severely redacted copy of their letter to FCC. (Those of us who worked at FCC know that it was traditional for FCC to give “professional courtesy” to Motorola in the past.) Much to my surprise, a September 9, 2011 letter from FCC’s Enforcement Bureau simply ratified Motorola’s redactions, part of which are shown below:

Motorola redactions of their response to FCC/EB which included a request for the FCC ID number of the unit involved and a question about whether it was properly certified. Is this really proprietary information?

• On September 23, 2011 (nearly a year ago) I filed a timely appeal of these excessive redactions under the provisions of 47 C.F.R. §0.461(i)(1). Motorola engaged Wiley Rein (“Broadcasting & Cable has recognized Wiley Rein as a ‘powerhouse law firm.’ “ ) to wage a reverse FOIA fight to protect all the original redactions.
• While it is generally felt that the FOIA legislation requires redaction of proprietary information, the Supreme Court held in Chrysler Corp. v. Brown that "Congress did not design the FOIA exemptions to be mandatory bars to disclosure" and that the agency could release information in the public interest.

A major reason for my request for this information is not voyeurism and has been discussed here previously: the software defined radio (SDR) rules adopted in Docket 00-47 were modified shortly afterwards in Docket 03-108 at the request of several manufacturers including Motorola. These changes watered down the software security provisions for SDRs. As a result of these concerns, the former 2.932(e) was replaced with the present 2.944 which does not apply to transmitters unless the “software is designed or expected to be modified by a party other than the manufacturer”. It is your blogger’s guess that the root cause of this series of interference incidents is this rule change.

While Motorola, and hopefully the company that now makes the Canopy products in question, are bound by the Consent Agreement and are unlikely to repeat the actions that resulted in this dangerous interference, other manufacturers of radios implemented with SDR technology are still only bound by the vague terms of the present §2.944 and might take similar actions to what Motorola did and is now trying to hide in this reverse FOIA action. Is it in the public interest to see what the root causes of this problem were and if necessary take steps to prevent any other firms from doing what Motorola employees did here?

Readers may recall a recent FOIA controversy at FCC involving Google. In that case Google told FCC to release only a highly redacted version of its “Spy-Fi” report which was done on 4/13/12. Under blistering criticism, Google released the report with minimal redactions - the only remaining redactions appear to be identities of people interviewed.

Google’s original redactions of “Spy-Fi” FCC report along with the unredacted text released by Google after public outcry. Large corporations, like government agencies, sometimes try to hide their misdeeds from the public by misusing information disclosure laws.

Motorola has changed a lot in the past 2 decades. The Canopy device involved in this controversy is part of a product line that was sold to Cambium Networks in September 2011, about the time this FOIA battle started. The remaining publicly owned company, Motorola Solutions, focuses on the Part 90 market with public safety being a key customer. (“Motorola Solutions serves both enterprise and government customers with core markets in public safety government agencies and commercial enterprises” ref.) Motorola Solutions has a set of publicly stated values that includes:

We are accountable. We stand behind the work we do, the contributions we make and the high business standards we maintain.

Motorola Solutions, is it really worth risking your reputation with your current customer base on this issue and the vagaries of the 8th Floor? I have offered repeatedly to settle this FOIA issue through discussions and recognize that the document in question has some valid trade secrets. Google made a wise decision to err on the side of disclosure, perhaps you should also. Your counsel knows how to reach me.

Public safety users, do you really want to depend on an infrastructure provider that doesn’t meet the standard of transparency that Google set with respect to admitting practices that resulted in safety-related interference? Perhaps you should press Motorola to come clean on what really happened in San Juan?

UPDATE

FCC has now released an Order supporting some of your bloggers requests to remove redactions and upholding Motorola’s requests for redaction on other issues. However, the final redactions have not been released yet and any decision to appeal further will depend on the nature of the final redactions.

Tags: enforcement, TDWR interference, FOIA at FCC