At & T v. F.C.C.
| Decision Date | 22 September 2009 |
| Docket Number | No. 08-4024.,08-4024. |
| Citation | 582 F.3d 490 |
| Parties | AT & T Inc., Petitioner v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondent CompTel, Intervenor per Clerk Order of 10/10/08. |
| Court | U.S. Court of Appeals — Third Circuit |
Colin S. Stretch (argued), Kelly P. Dunbar, Kellogg, Huber, Hansen, Todd, Evans & Figel, Washington, DC, for Petitioner.
Michael A. Krasnow (argued), Federal Communications Commission, Washington, DC, Catherine G. O'Sullivan, Robert J. Wiggers, United States Department of Justice, Antitrust Division, Appellate Section, Washington, DC, for Respondent.
Mary C. Albert, CompTel, Washington, DC, for Intervenor.
Before FUENTES, CHAGARES, and TASHIMA*, Circuit Judges.
The Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 551-59, requires a federal agency to disclose certain documents within its possession. But FOIA exempts from mandatory disclosure "records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy," § 552(b)(7)(C) ("Exemption 7(C)"), and defines "person" to "include an individual, partnership, corporation, association, or public or private organization other than an agency," § 551(2). Human beings have such "personal privacy." This case requires us to determine whether corporations do, as well.
AT & T, Inc. ("AT & T") argued that the Federal Communications Commission ("FCC") could not lawfully release documents obtained during the course of an investigation into an alleged overcharging on the ground that disclosure would likely invade the company's "personal privacy." The FCC rejected AT & T's argument and held that a corporation, as a matter of law, has no "personal privacy" in the first place. AT & T filed a petition for review. We will grant the petition and remand to the FCC for further proceedings.
AT & T participated in a federal program administered by the FCC, called "E-Rate," that was designed to increase schools' access to advanced telecommunications technology. As part of the program, AT & T provided equipment and services to elementary and secondary schools, and then billed the Government for the cost of the equipment and services. In August 2004, AT & T discovered that it might have overcharged the Government for certain work done for the New London, Connecticut school district. AT & T voluntarily reported the matter to the FCC, and the FCC's Enforcement Bureau ("Bureau") conducted an investigation. The two sides ultimately resolved the matter via a consent decree.
During the course of the investigation, the Bureau ordered AT & T to produce, and the company did indeed produce, a range of documents related to its work with the New London schools. Those documents included invoices, internal e-mails providing pricing and billing information for the work done in New London, responses to Bureau interrogatories, names of employees involved in the allegedly improper billing, and AT & T's own assessment of whether and to what extent the employees involved in the overcharging violated its internal code of conduct.
On April 4, 2005, CompTel, a trade association representing some of AT & T's competitors, submitted a FOIA request for "[a]ll pleadings and correspondence contained in" the Bureau's AT & T E-Rate investigation file. Appendix ("App.") 27. AT & T submitted a letter to the Bureau opposing CompTel's request, arguing that the FCC collected the documents that AT & T produced for law enforcement purposes and therefore that the FCC regulations implementing FOIA's exemptions prohibited disclosure. CompTel submitted a reply letter.
On August 5, 2005, the Bureau issued a letter-ruling rejecting AT & T's argument that Exemption 7(C) and the FCC's regulations implementing that exemption prohibit disclosure. That exemption, the Bureau held, does not apply to corporations because corporations lack "personal privacy." AT & T filed an application requesting the FCC to review the Bureau's ruling. On September 12, 2008, the FCC issued an order denying the application and compelling disclosure, again on the ground that Exemption 7(C) does not apply to corporations.
Before addressing the merits, the FCC held that AT & T failed to comply with the FCC's regulations in filing its application for review of the Bureau's order. Generally, only a FOIA requester may file an application for the FCC to review the Bureau's resolution of that request. But, there is an exception. According to 47 C.F.R. § 0.461(i)(1), when a FOIA request for inspection of records submitted in confidence pursuant to §§ 0.457(d) or 0.459 is granted (even if only in part), the submitter of the information — in addition to the requester — may file an application for review. The FCC determined, however, that AT & T did not submit the material it provided to the FCC in confidence pursuant to either of those regulations, because AT & T failed to include with that material a request that the FCC treat that material as confidential. Nevertheless, the FCC stated that it would, "on [its] own motion," consider the merits of AT & T's application for review. App. 10.
The FCC then held that a corporation lacks "personal privacy" within the meaning of Exemption 7(C). It determined that FCC precedent supports this view, App. 10 (citing Chadmoore Commc'n, Inc., 13 FCC Rcd. 23943, 23946-47 ¶ 7 (1998)), as does judicial precedent, App. 11-12 (citing U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 100-01 (D.C.Cir.1988); Cohen v. EPA, 575 F.Supp. 425, 429-30 (D.D.C. 1983)). The FCC also concluded that this interpretation accords with the Exemption's purpose to protect key players in an investigation — targets, witnesses, and law enforcement officers — from the "literal embarrassment and danger" that an individual might suffer, rather than from the "more abstract impact" that a corporation might suffer. App. 12. The FCC stated that a corporation's privacy interests in other contexts — such as Fourth Amendment search-and-seizure law and the discovery regime created by the Federal Rules of Civil Procedure — have no bearing on whether a corporation has a privacy interest in the context of Exemption 7(C). App. 13.
AT & T filed a petition for review of the FCC's order, arguing that the FCC incorrectly interpreted Exemption 7(C) to prevent a corporation from claiming a "personal privacy" interest. AT & T further argues that, should we interpret the statute to allow a corporation to claim a "personal privacy" interest, disclosure of AT & T's documents is, as a matter of law, reasonably likely to constitute an "unwarranted invasion" of that interest. The FCC and CompTel (who entered this case as an intervenor) oppose on the merits and also raise certain threshold issues. CompTel argues that this Court lacks subject matter jurisdiction over AT & T's petition for review and therefore must dismiss. The FCC argues that we should deny the petition for review because AT & T failed to challenge the FCC's determination that AT & T did not comply with certain procedural requirements during the administrative proceedings.1
The FCC had jurisdiction to issue its order denying AT & T's application for review. See 47 U.S.C. §§ 154(i) (), 155(c)(5) (). CompTel argues that we lack appellate jurisdiction. We disagree.
CompTel asserts that because the Administrative Procedure Act ("APA") confers AT & T's cause of action, and because 28 U.S.C. § 1331 provides jurisdiction to review an APA claim, the district courts have jurisdiction to hear AT & T's petition for review. CompTel acknowledges that 28 U.S.C. § 2342(1) gives the courts of appeals exclusive jurisdiction over orders "under" the Communications Act within the meaning of 47 U.S.C. § 402(a), but argues that the FCC's order in this matter is not such an order.
CompTel made this argument for the first time to this Court in opposing AT & T's petition for review (which is the first time it could have made this argument). Therefore, there is no decision on this issue to review, and we will address the issue in the first instance.
Section 2342 provides that "[t]he court[s] of appeals ... ha[ve] exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of — (1) all final orders of the [FCC] made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1). A "final order[] of the [FCC] made reviewable by section 402(a) of title 47," § 2342(1), is, with certain exceptions not relevant here, "an[] order of the [FCC] under th[e Communications] Act...." 47 U.S.C. § 402(a). Thus, we have jurisdiction to review the FCC's order adjudicating AT & T's application for review if that order is an order "under" the Communications Act.
Courts have consistently held that an order adjudicating an alleged violation of FCC regulations is an order "under" the Communications Act within the meaning of § 402(a). See, e.g., Rocky Mountain Radar, Inc. v. FCC, 158 F.3d 1118, 1119, 1121-23 (10th Cir.1998) (); Maier v. FCC, 735 F.2d 220, 224 (7th Cir.1984) (...
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