MEMORANDUM OPINION AND ORDER

Adopted: September 13, 1991 Released: September 17, 1991 By the Commission:

1. The Commission has before it an Application for Review filed by Robert J. Butler on behalf of Aeronautical Radio Inc. (ARINC), appealing a June 26, 1991 Freedom of Information Act (FOIA) decision by the Chief, Common Carrier Bureau (Bureau). The Bureau's decision denied ARINC's request for access to documents that were generated during the course of certain international negotiations held between representatives of American Mobile Satellite Corporation (AMSC), the Union of Soviet Socialist Republics (the Soviet Union), and the United States. AMSC has filed an Opposition to ARINC's Application for Review. As discussed herein, we affirm the Bureau's ruling.

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BACKGROUND

2. In 1985, the Commission issued a Notice of Proposed Rule Making to allocate spectrum for a new service known as the mobile satellite service (MSS). Through the notice, the Commission proposed to establish regulatory and technical policies as well as licensing procedures for MSS. The notice explained that a portion of the spectrum to be allocated domestically to the new MSS had been allocated initially to the aeronautical mobile satellite service (AMSS(R)), but the service had never been implemented and the frequencies had remained unused. In July 1986, the Commission allocated spectrum for MSS, including some spectrum to be shared between MSS and AMSS(R). In a subsequent Rule Making order, the Commission concluded that the MSS in the upper L-band for the first generation system would be provided only by a consortium comprised of all willing and qualified applicants.

3. ARINC submitted a license application for an AMSS(R) system in April 1987. Among other things, ARINC proposed that 11 MHz of the spectrum allocated by the FCC for shared use between MSS and AMSS(R) be awarded to a system solely for aviation-related services. The Commission dismissed ARINC's application mainly for failing to conform to the Commission's spectrum allocation decision in the MSS Rule Making orders. Subsequently, in 1989, the Commission awarded the MSS license to a consortium of applicants under the name of American Mobile Satellite Corporation (AMSC).

4. The Commission denied ARINC's petition to reinstate its application, and ARINC then appealed to the United States court of appeals for the District of Columbia Circuit. Other applicants that had been dismissed from the MSS proceeding also appealed, asking the court to review various aspects of the Commission's decisions. In March 1991, the court issued a decision affirming the Commission's dismissal of ARINC's application and the Commission's spectrum allocation decisions." However, the court vacated the Commission's decision to require that MSS be provided only by a consortium. The court remanded this aspect of the Commission's MSS proceeding to the Commission, holding, among other things, that the Commission had not provided adequate justification for its decision to adopt a consortium-licensing approach in lieu of comparative hearings among competing MSS applicants.

5. On May 10 through 15, 1991, prior to the issuance of the court's mandate, representatives of AMSC, the Soviet Union, and the Commission attended meetings, which had taken over one-and-a-half years to arrange, to discuss the international coordination of the United States MSS system. The meetings were held pursuant to an international process that is designed to ensure cooperative use of spectrum for geostationary satellites by different countries who are members of the International Telecommunication Union (ITU).' Under ITU regulations, an administration seeking to use a frequency provides information about its proposed satellite system to the International Frequency Registration Board (IFRB), which in turn publishes information on the proposed system to all ITU members. The administration proposing the system must then coordinate with all other ITU administrations whose systems might be affected by the proposal. The crux of the coordination process is the exchange of detailed technical data between administrations in an effort to negotiate an agreement that will provide for the coexistence and effective operations of proposed or existing systems by avoiding any mutual harmful interference. The Commission conducts this international coordination process on behalf of the United States and includes as advisors in the coordination process representatives of the domestic entities proposing commercial satellite communications systems.

6. On July 30, 1991, the Commission adopted a Tentative Decision in response to the court's remand and concluded that compelling factors unique to the MSS proceeding required that a consortium approach be adopted. Specifically, the Commission explained that selection of an MSS licensee through a comparative hearing would likely prevent the United States from successfully completing the international frequency coordination of a domestic MSS system. The Commission also granted AMSC a temporary authorization to allow the international coordination of the United States MSS system to continue pending issuance of a final decision.

7. On June 11, 1991, ARINC filed a FOIA request seeking access to numerous documents generated during the United States coordination meetings held with the Soviet Union during May 10 through May 15, 1991. In particular, ARINC requested: minutes and other documents showing matters discussed during the meetings, memoranda and other documents describing or summarizing the meetings, and any agreements or understandings produced as a result of the meetings. The

Bureau identified 26 documents that fell within the scope of ARINC's request, but withheld twenty-four of these documents in full or in part."

8. The Bureau found that some of the documents contained information reflecting the process by which the Commission developed the United States' negotiating position for satellite coordination with the Soviets. Access to these documents was denied pursuant to the deliberative process privilege embodied in Exemption 5 of the FOIA 10 The Bureau also found that other documents contained commercial information exchanged among the parties to the coordination meetings. These documents were withheld pursuant to FOIA Exemption 4.11

9. On review, ARINC does not dispute the Bureau's specific findings that the identified documents meet the threshold requirements of Exemptions 4 or 5. With respect to the documents withheld pursuant to Exemption 4, ARINC argues simply that there are public interest and due process reasons for releasing the documents. ARINC therefore maintains that, under the FOIA, Exemption 4 may not be invoked to shield the documents from disclosure. With respect to the documents withheld under Exemption 5, ARINC asserts that the Commission waived the protection afforded by this exemption when it disclosed the documents to AMSC, an outside party.

10. In reviewing the Bureau's decision, we shall examine first whether the Bureau properly invoked the FOIA exemptions. Then, if the FOIA does not require disclosure, we shall next consider whether there is public interest basis for requiring the documents' disclosure as a matter of our discretion.

I. FOIA ISSUES

DISCUSSION

A. Exemption 4 Records

11. Turning to the applicability of Exemption 4, we note that this exemption protects commercial or financial information obtained from a person when the information at issue is privileged or confidential. 5 U.S.C. § 552(b)(4). Within that context, information is "obtained from a person" if it has been generated by an entity that is outside the government, including foreign countries. See Stone v. Export-Import Bank of United States, 552 F.2d 132 (5th Cir. 1977). The "privileged or confidential" test is met if disclosure is likely to: 1) impair the Government's ability to obtain the necessary information in the future (the "impairment prong"); 2) cause substantial harm to the competitive position of the person from whom the information was obtained (the "competitive harm prong"); or 3) adversely affect the effectiveness of the Government's programs (the "program effectiveness prong"). See National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); see also Critical Mass Energy Project v. Nuclear Regulatory Commission, 931 F.2d 939, 943 (D.C. Cir. 1991); 9 to 5 Org. for Women Office Workers v. Board of Governors of the Federal Reserve System, 721 F.2d 1, 10 (1st Cir. 1983).

12. We first address the Bureau's conclusion that documents 1 through 20 and document 24, listed in the attached "Vaughn" index,12 are protected from mandatory disclosure under Exemption 4. An examination of documents 1 through 20 and document 24 reveals that they contain technical information and agreements about sat

ellite systems obtained from either AMSC or the Soviet Union. Applicable case law has established that records are "commercial" as long as the submitter has a commercial interest in them. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983); American Airlines Inc. v. National Mediation Board, 588 F.2d 863, 868 (2d Cir. 1978). The technical information submitted during the coordination meetings by AMSC and the Soviet Union regarding their commercial satellite systems clearly fits this standard. The documents thus satisfy the first two requirements of Exemption 4, in that they comprise commercial information obtained from persons outside the government.

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13. The remaining question is whether the Bureau properly determined that the documents were privileged or confidential. In deciding that the documents referenced above contained confidential information, the Bureau relied on the program effectiveness prong of Exemption 4. We agree with this determination. As explained by the Bureau, these documents reflect specific technical information exchanged by the parties to the coordination meetings (e.g. documents 1, 2, 3. 5, and 6 through 16), matters discussed among the parties (e.g. document 4. documents 17 through 20, document 24), and agreements reached (e.g. documents 17 through 20. document 24) during the coordination meetings.' The information exchanged goes beyond what is required to be disclosed publicly by international treaties, which require only the publication of information regarding the outermost parameters of an administration's plan for spectrum use. In particular, the information exchanged contains individualized concessions designed to facilitate the cooperative use of the spectrum. Public disclosure of this information would reveal the United States' negotiating strategy with the Soviet Union and the types of concessions that the United States was willing to consider in these particular negotiations. Its disclosure would thus hamper the United States' ability to engage in successful MSS negotiations with the other entities and countries proposing MSS systems, for which the United States might develop a different negotiation strategy. As a result, disclosure would undermine the United States' ability to obtain the optimum amount of spectrum to support a domestic system and, eventually, to conclude agreements with the other administrations and international organizations.14

14. Moreover, as noted by the Bureau, foreign administrations expect that coordination meetings be conducted in private and that the agreements reached will be held in confidence. Thus, release of the information contained in these documents could undermine the United States' ability to negotiate successfully in future coordinations. Other countries will not be willing to make the types of technical and other concessions reflected in the documents at issue if the information were freely available to other nations with whom negotiations are also being carried out. As a consequence, and to the detriment of the U.S. public, the United States, unlike other nations, will be unable to negotiate for spectrum usage under the favorable terms and conditions that may be made available to the other nations that engage in this process. For these reasons, we believe that the Bureau properly concluded that disclosure of these documents would adversely affect the United States' interest in conducting effective negotiations for the international coordination of satellite services. 15

15. Further, we find that portions of documents 1, 2, 3, and 5 are protected from mandatory disclosure also under the competitive harm prong of Exemption 4. The competitive harm prong of Exemption 4 requires a showing that actual competition exists and substantial competitive injury would likely result from disclosure. See National Parks and Conservation Association v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976). Applying these precepts to this case, we note that AMSC will face business competition from other entities that provide, or seek to provide, mobile services. These documents contain selective technical data and information that AMSC was willing to share only with the Soviet Union representatives in coordinating use of this spectrum. Disclosure of these documents will limit the United States' ability to adopt a different negotiating posture in the coordination of MSS with other countries proposing MSS systems, thereby adversely affecting its ability to obtain the optimum amount of spectrum for AMSC to successfully conduct business. We conclude, therefore, that disclosure of this information will likely result in substantial competitive harm to AMSC. Similarly, to the extent that the minutes of the meetings (documents 17 through 20) would reveal the information contained in documents 1 2, 3, and 5, the minutes are also protected pursuant to the competitive harm prong of Exemption 4.

16. We also find that the impairment prong of Exemption 4 affords additional protection to documents 6 through 12. The impairment prong of Exemption 4 applies when documents were voluntarily submitted to the agency and disclosure would significantly impair the Government's ability to obtain the same type of information in the future. See Landfair v. Department of the Army, 645 F. Supp. 325, 328 (D.D.C. 1986); Carlisle Tire & Rubber Co. v. Customs Serv., 1 GDS ¶ 79,162 (D.D.C. 1979), aff'd in part, rev'd in part on other grounds, 663 F.2d 210 (D.C. Cir. 1980). Documents 6 through 12 are advance copies of Soviet Union records containing the boundary parameters of satellite systems proposed by the Soviet Union. While the final versions of these records must be submitted to the ITU for publication, the Soviet Union representatives were under no legal obligation to share these records in advance. Instead, these records were voluntarily submitted to facilitate the coordination of the U.S. MSS satellite system. If the documents were disclosed publicly, we believe there is far less likelihood that the United States would be afforded the privilege of early, and exclusive, access to such information in the future. We conclude, therefore, that disclosure of documents 6 through 12 would impair the Commission's ability to obtain this type of information from foreign administrations in the future.

17. Finally, as noted above, nowhere in its application for review does ARINC challenge, respond to, or in any way dispute the Bureau's findings that disclosure of this information would have a very serious adverse impact on the United States' ability to engage in international satellite coordination. ARINC simply contends that because disclosure is required to satisfy the Commissions' ex parte rules or due process concerns, the information cannot be considered "confidential" under Exemption 4. However, as AMSC points out in its Opposition, the applicability of the FOIA exemptions is not dependent on the particular circumstances of a FOIA requester or its litigation or other needs. See Reporters Committee for Freedom of the Press v. Department of Justice, 109 S. Ct. 1468, 1480 (1989); North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir.

1989). Therefore, the issues raised by ARINC in support of disclosure do not affect the applicability of Exemption 4 to the documents in question. The ex parte and public interest issues raised by ARINC thus will be treated separately below in considering whether to disclose the documents withheld, not pursuant to the mandates of the FOIA, but as a matter of our discretion.

B. Exemption 5 Records

18. We now address the Bureau's determination to invoke the deliberative process privilege embodied in Exemption 5 as grounds for withholding information contained in some of the documents at issue. In particular, the information withheld under the deliberative process privilege consists of three drafts of minutes for the coordination meetings (documents 17, 18, and 19), handwritten notations by Commission staff members in documents 2, 18, and 19, and an internal memorandum concerning the meetings prepared by a Commission staff member and addressed to staff members of the FCC, and two other federal government agencies (document 24).

19. The deliberative process privilege protects intraagency or inter-agency memoranda that are predecisional-formulated before the adoption of an agency decision-and deliberative reflecting the "give and take" of the consultative process leading to the adoption of a final agency decision. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980). The privilege seeks to protect the frank consideration of alternatives within the agency, and preserve the integrity of the agency's decisionmaking process. Applying these principles in this case, we first note that the drafts of the minutes for the coordination meetings were authored by the representatives of the negotiating parties during the course of the coordination meetings. Because the meetings included representatives from a foreign government, we cannot find that these documents were created within or among U.S. government agencies. Therefore, the draft minutes do not meet the threshold requirement for protection under Exemption 5. These minutes, however, do remain protected from disclosure under Exemption 4. See paras. 13-15, supra.

20. With respect to the memorandum identified as document 24 and the handwritten notations in documents 2, 18, and 19, we find that the Bureau properly invoked the deliberative process privilege as grounds for withholding these records. As a threshold matter, we note that these records were created by Commission officials representing the United States during the coordination meetings. The information contained in the memorandum and in the notations is clearly predecisional because it was generated for the purpose of developing specific agreements for the coordination of the AMSC satellite system. Further, the deliberative nature of the information is also apparent because it reflects the staff's assessment of different coordination matters discussed during the negotiation meetings. Therefore, we agree with the Bureau's conclusion that this information falls within the scope of Exemption 5.

21. ARINC states, however, that the Commission representatives disclosed the records at issue to AMSC, a nonGovernment entity. Thus, ARINC argues that disclosure to AMSC vitiated the protection otherwise afforded by

Exemption 5. AMSC, on the other hand, maintains that, in the circumstances presented in this case, any disclosure to AMSC would not result in a waiver of Exemption 5.

22. We have examined the manner in which the information at issue was created and used. The authors of these particular records state that they did not disclose the records to AMSC or to the Soviet Union representatives. The authors explain that, while the matters addressed in the records were subjects of discussions during the meetings, the records themselves were not shared with the other parties to the negotiations. In these circumstances, we cannot conclude that the protection afforded by Exemption 5 has been waived. See Dow, Lohnes & Albertson v. Presidential Comm'n on Broadcasting to Cuba, 624 F. Supp. 572, 577-78 (D.D.C. 1984).17

23. Moreover, we would reach the same determination even if, as ARINC suggests, the information at issue had been disclosed to AMSC. In considering question of waiver, the courts have upheld the agency's claim of exemption where the agency has established that it has acted responsibly in furtherance of a legitimate governmental purpose. For example, in Badhwar v. Department of the Air Force, 18 the agency released to outside contractors information that was later incorporated in certain safety reports prepared by the agency. The court found that such disclosure was for the limited purpose of securing the contractors' advice in the process of assembling a governmental report. Under those circumstances, it concluded that the agency had established a legitimate governmental purpose and therefore had not waived the protection afforded by the deliberative process privilege. Similarly, in Aviation Consumer Action Project,19 the court afforded Exemption 5 protection to documents prepared by the agency and released to nongovernmental officials who were members of an advisory committee to the agency.

24. The instant case presents similar considerations. As we explained in our Tentative Decision, AMSC is not an ordinary private party. Rather, AMSC was an essential participant in the coordination process. AMSC acted in an advisory capacity to the Commission in identifying. technical, economic, and spectrum tradeoffs during the negotiations. In addition, AMSC's presence provided assurance to other administrations that the coordination agreement will be adhered to and that the requirements specified by the Commission are necessary and will be implemented. See Tentative Decision, at para. 42. Any disclosure to AMSC during the coordination meetings would have been made for the purpose of assisting the Commission in the coordination process. In these circumstances, we believe that a legitimate government purpose for the disclosure would have been established, and thus a waiver claim would not have been sustained.20

II. EX PARTE AND DUE PROCESS ISSUES

25. Having determined that the documents at issue are not required to be disclosed under the FOIA, we next address ARINC's claims that the documents submitted by AMSC and the Soviet Union must be disclosed because they are prohibited ex parte communications and because they concern critical issues in the MSS licensing proceeding. As discussed below, information and documents submitted for purposes of carrying out the international coordination process do not violate the ex parte rules. Further, access to this material is not required in order to ensure due process in the licensing proceeding.

26. Where mutually-exclusive applications are pending or where a petition to deny has been filed against a radio application, the proceeding is "restricted" under the Commission's ex parte rules. In a restricted proceeding, no ex parte "presentations" may be made until a Commission decision is no longer subject to reconsideration or to review by any court. See 47 C.F.R. § 1.1208. Because the MSS licensing proceeding involves mutually exclusive applications and petitions to deny were filed against AMSC's MSS application, the licensing proceeding is restricted.21

27. The ex parte rules do not prohibit the communications in question for several reasons. The rules prohibit ex parte "presentations," which are defined as communications "directed to the merits or outcome of a proceeding." 47 C.F.R. § 1.1202(a). The communications in question, however, are not directed to, nor do they concern, the merits or outcome of a proceeding to select an MSS licensee. As discussed below, para. 34, the communications at issue largely concern specific power levels, bandwidth and frequency usage, and are directed solely to the negotiations for, and outcome of, the specific international coordination process carried out with the Soviet Union. The international coordination process, moreover, is not a restricted proceeding under the Commission's ex parte rules. Indeed, as explained above, to ensure that the United States and other countries' interests are protected, the negotiations are not conducted as public proceedings but are carried out in confidence. Because, therefore, the communications are directed only to the outcome and conduct to an international negotiation, and are not directed to selection of an MSS licensee in a restricted FCC licensing proceeding, they are not prohibited ex parte presentations. 22

28. Further, even if the communications at issue were considered to be directed to the merits or outcome of the licensing proceeding, they would be permissible for other reasons. The ex parte rules do not prohibit presentations that are "authorized by the Commission's Rules" or which "involve a foreign affairs function of the United States. . . ." 47 C.F.R. §§ 1.1204(b)(1); (b)(4). Under authority of section 25.202(c) of the rules, the Commission directed AMSC to submit the information in question and held it in confidence to enable the effective conduct of the negotiations. Contrary to ARINC's claims, AMSC thus has not "used the pendency of coordination a pretext for unlawful ex parte communications." AMSC merely complied with the Commission's lawful requests to provide the specific information necessary for the conduct of the Soviet negotiations.23

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29. Finally, the Commission's ex parte rules contain an explicit exception for presentations that involve a "foreign affairs function of the United States." 47 C.F.R. § 1.1204(b)(4). In adopting this exception, the Commission envisioned that it would be used on occasions in which the Commission has "negotiations with counterparts from foreign countries and in which disclosure of the meetings or their substance could have injurious repercussions on this country's relations with other nations." Report and Order, 2 FCC Rcd. 3011, 3018, para. 51 (1987). This reasoning applies squarely to the information provided by the Soviet Union during these negotiations, as well as to the documents and minutes that reflect agreements between the United States and the Soviets. In adopting the exception, we noted that "absent highly unusual circumstances," the foreign affairs exemption will apply only to ex parte communications with Federal Government of

ficials or with officials from other countries. Report and Order, 2 FCC Rcd 3011, 3018, para. 52 (1987). As to information supplied by the Soviet Union, we believe any communication concerning such Soviet-supplied information is within the foreign affairs exception, whether the Soviets provide the information to FCC officials directly or the same Soviet-provided information is contained in documents prepared by AMSC.

30. As to other communications made by AMSC, which may not contain Soviet-supplied information, we conclude the international coordination process is an "unusual" circumstance contemplated by the rule, in which these communications are permissible even though provided by a non-Government entity. We explained in our Tentative Decision in the MSS proceeding that the presence and full participation of a U.S. licensee is a necessary adjunct to the satellite coordination process. Thus, AMSC must supply information and participate in consultations critical to development of the U.S. negotiating position. In addition, public disclosure of information supplied by AMSC would jeopardize United States interests in successfully negotiating either with the Soviet Union or with other countries with whom coordination also must be carried out. In these circumstances, the policy and purposes underlying the foreign affairs exception apply as strongly to communications from AMSC as to communications we might receive from Federal Government officials. We conclude, therefore, that the communications at issue were not improper under the Commission's ex parte rules. They were not directed to the merits of any restricted FCC proceeding, and, in any event, they were authorized by FCC rules and are within the foreign affairs exception to the ex parte restrictions.

31. In concluding that the communications are excepted from the ex parte prohibition, we strongly emphasize that the foreign affairs exception is not intended as a mechanism for the submission of communications that are intended to influence decisionmakers in restricted matters. The communications at issue were strictly confined to matters necessary to the conduct of the international negotiations. We therefore conclude that application of the foreign affairs exception in this instance is proper.

32. As a final matter, we address ARINC's related claim that the documents should be disclosed as a matter of fundamental fairness and due process, because the information concerns "critical issues" in the MSS licensing proceeding. The Commission, pursuant to section 0.457(d)(2)(i) of the rules, may disclose material that is within Exemption 4 upon a "persuasive showing." Pursuant to this rule, the Commission's long standing policy is that Exemption 4 materials will not be made available on the mere chance that the information might be interesting or helpful in an FCC proceeding. Rather, the Commission insists on a showing that the information is a necessary link in a chain of evidence that will resolve a public interest issue. Western Union Telegraph Co., 2 FCC Rcd 4485, 4487 (1987); Knoxville Broadcasting Corporation, 87 FCC 2d 1099, 1105 (1981); Classical Radio for Connecticut, Inc., 69 FCC 2d 1517, 1520 n.4 (1978).

33. ARINC asserts that details of the AMSC and Soviet satellite systems go to the merits of an MSS licensing proceeding that will determine "the technologically best qualified" MSS applicant. At this juncture, however, the Commission has reached a tentative decision that no comparative licensing proceeding will be conducted to select

among the MSS applicants. See Tentative Decision at paras. 48-53. Therefore, even assuming that the information at issue is relevant to the relative technical qualifications of an MSS applicant, and, moreover, that an issue as framed by ARINC were to be designated for hearing, the proceeding envisioned by ARINC has not yet been designated by the Commission and there is no certainty that it will be.

34. In addition, the information at issue (and especially the information supplied by the Soviets) does not bear on the "technological superiority" of any applicant. Information concerning the technical merits of AMSC's application is fully available from AMSC's publicly filed application and amendments to that application. To the extent AMSC intends to make any major or minor modifications to its application, those changes, too, must be placed in the public record.24 The information withheld, in contrast, either is unrelated to the technical aspects of AMSC's system or reflects particular accommodations, in terms of power levels, bandwidth and specific frequency usage, that AMSC could make to enable coordination with the Soviets. To a large degree, these technical parameters may be based on particular customer requirements, reflect business judgments made by the licensee, or were tailored to a specific negotiating strategy for the particular foreign country and system involved. See Tentative Decision at para. 42. The information thus concerns highly individualized business, technical, and negotiating judgments that might be made by any licensee authorized to operate in this spectrum and who undergoes coordination. It does not reflect on the technical "superiority" of the system.

35. Indeed, as a practical matter, it is difficult to envision how the detailed technical decisions pertaining to an actual coordination could be at issue in an initial licensing proceeding. Decisions concerning coordination necessarily are dependent on the proposed plans of other countries and concessions that may be made by them in the actual negotiating process. Thus, as the Commission recognized when it issued AMSC's original authorization, its MSS licensing decision could not be based on matters that might transpire during the "dynamic" process of actual negotiations. 25 We conclude, therefore, that ARINC has not made a persuasive showing that the information at issue is necessary to the resolution of any issues of "technical superiority," or any other issues, that might be addressed in any currently pending licensing proceeding. See Pan American Satellite, 4 FCC Rcd 4586, 4587 (1989); Western Union Telegraph Co., 2 FCC Rcd at 4487.

36. ARINC also states that the information under consideration relates to the "critical issues" of "ability to coordinate with international satellites and ability to operate on a non-interference basis." Application for Review at 16. The issue of the United States' ability to coordinate an MSS satellite system was considered at an earlier phase of the MSS proceedings as an aspect of the Commission's general Rule Making decision to allocate the particular spectrum that was chosen for MSS. However, in its decision upholding the Commission's spectrum allocation rule, the court of appeals already has affirmed the Commission's Rule Making decision concerning the MSS spectrum allocation in the face of ARINC's claim that coordination of the AMSC system is not feasible. The court recognized the "simple reality that no final judgment [regarding the prospects for international coordination] is possible absent completion of the coordination