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08/29/89 Media Access Project, v. Federal Communications

August 29, 1989





Petition for Review of an Order of the Federal Communications Commission.


Robinson, Mikva and D. H. Ginsburg, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva. Opinion concurring in part and dissenting in part filed by Circuit Judge D. H. Ginsburg.


Petitioners seek review of Federal Communications Commission ("Commission") regulations that implement, under the Freedom of Information Reform Act of 1986 ("Reform Act"), Pub.L. No. 99-570, 100 Stat. 3207 (codified at 5 U.S.C. § 552(a)(4)), fee waivers for certain Freedom of Information Act requests.

We find as a threshold matter that we have jurisdiction to decide this case. Because the Commission invoked the Communications Act, 47 U.S.C. §§ 151 et seq., as concurrent authority for its promulgation of the regulations at issue, it is bound by the judicial review provisions of 28 U.S.C. § 2342(1) (giving the court of appeals exclusive jurisdiction to review final Commission orders). We reject petitioners' facial challenge of the regulations, however, because we find the case not ripe for review. The uncertainties surrounding petitioners' claim that they would be denied preferred fee status under the regulations render the issues presented not fit for judicial decision, and we find little hardship in requiring petitioners to pursue their claims before the Commission prior to commencing judicial action. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). I A. Petitioners

Petitioners are three nonprofit organizations that disseminate information about government activities and policies. Petitioner Media Access Project describes itself as a foundation-funded, nonprofit public interest law firm and legal education project that represents citizens' interests before the Commission, other state and federal regulatory bodies, and courts. Petitioner People for the American Way describes itself as a nonpartisan membership organization that seeks to educate its members and the public about democracy and constitutional liberties, including issues such as government secrecy, education, and civil rights. Petitioner Union of Concerned Scientists describes itself as an independent, membership-supported, nonprofit group concerned about the impact of advanced technology on society, including such issues as nuclear arms control, nuclear power safety, and national energy policy. All three petitioners declare that they use FOIA requests in their public education and advocacy functions.

Petitioners have not filed a FOIA request before the Commission seeking preferred fee status; the challenged regulations have thus not been applied to them, and there is no administrative record to review.

B. Statutory Provisions

The Reform Act requires all federal agencies to promulgate notice-and-comment regulations "specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced." 5 U.S.C. § 552(a)(4)(i). Such fee schedules must conform to uniform fee schedule guidelines promulgated by the Office of Management and Budget . Id.

The Reform Act also establishes three levels of fees that the agency may charge, depending on the identity of the requester and the use of the requested information: (1) if records are requested for "commercial use," then fees may include reasonable charges for document search, duplication, and review, see 5 U.S.C. § 552(a)(4)(ii); (2) if records are not sought for "commercial use" and if the requester is an "educational or noncommercial scientific institution, whose purpose is scholarly or scientific research" or a "representative of the news media," then fees are limited to reasonable charges for document duplication only, see id. § 552(a)(4)(ii); and (3) if the requester is an ordinary or "other" FOIA requester, then the fees are limited to reasonable charges for document search and duplication only, see id. § 552(a)(4)(ii). In addition, any requester may seek a general waiver or reduction of fees (for review, search, or duplication), on a case-by-case basis, "if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." Id. § 552(a)(4)(iii).

The Reform Act does not define the terms "commercial use," "educational institution," or "representative of the news media."

C. Regulatory History

Pursuant to Congress' directive in section 552(a)(4)(i), OMB promulgated, after notice and comment, final regulations defining, inter alia, "commercial use," "educational institution," and "representative of the news media." See 52 Fed.Reg. 10,011 (1987) (codified at 5 C.F.R. §§ 1303.30 et seq.).

The Commission then promulgated, after further notice and comment, final regulations establishing its fee schedules and guidelines, adopting verbatim the definitions promulgated by OMB. See 3 FCC Rcd. 5107 (1988) (codified at 47 C.F.R. § 0.466). The Commission explicitly premised its authority to issue the regulations on both section 4(i) of the Communications Act, 47 U.S.C. § 154(i), and section 552(a)(4)(i) of the Reform Act, 5 U.S.C. § 552(a)(4)(i). See 3 FCC Rcd. at 5110.

The final Commission regulations provide in relevant part:

The term "commercial use" request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester. . . .

The term "educational institution" refers to a preschool, a public or private elementary or secondary school, an institute of graduate higher education, an institution of professional education and an institution of vocational education, which operates a program or programs of scholarly research.

The term "representative of the news media" refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term "news" means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances where they can qualify as disseminators of "news") who make their products available for purchase or subscription by the general public. These examples are not intended to be all inclusive.

3 FCC Rcd. at 5111 (codified at 47 C.F.R. § 0.466(a)(4), (5), (7)). The Commission rejected comments claiming that these definitions were unduly narrow, explaining that (1) its definition of "representative of the news media" was "sufficiently broad to include other than 'traditional' news media," such as, for example, publishers of newsletters, id. at 5108; (2) its definition of "commercial use" was consistent with "Congress' intent . . . to clarify that commercial users who are representatives of the news media or who qualify for fee waivers are not to be treated as commercial users," id.; and (3) its definition of "educational institution" was a "reasonable and permissible interpretation of the statutory term," id. at 5109. II

Petitioners seek judicial review of the Commission's order establishing the final regulations, arguing that the agency's definitions of the terms "commercial use," "educational institution," and "representative of the nets media" are, on their face, contrary to the intent of Congress.

A. Jurisdiction

We must first resolve the Commission's threshold argument that we lack ...

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