Chelmowski v. FCC, No. 16-5587, 2017 WL 736893 (N.D. Ill. Feb. 24, 2017) (Coleman, J.)

Chelmowski v. FCC, No. 16-5587, 2017 WL 736893 (N.D. Ill. Feb. 24, 2017) (Coleman, J.)

Re: Requests for records concerning certain informal FCC complaints

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies: Regarding two of plaintiff's requests, the court holds that "[t]he undisputed facts demonstrate that [plaintiff] did not file an application for review, which would exhaust his administrative remedies." The court explains that "[a]n application for review by the Commission is the final stage of the administrative remedies available to a FOIA requester under the FCC regulations." The court notes that "[i]nstead of contacting either of the FCC offices listed . . ., [plaintiff] sent a request for assistance to the Office of Governmental Information Services (OGIS), which is a separate agency from the FCC." "There is no authority on which this Court could find that submitting a request to OGIS for assistance can supplant an application for review from the full Commission, which Congress has specifically stated is a 'condition precedent to judicial review.'"
   
• Procedural Requirements, Time Limits: Regarding two other requests, concerning a "fee that the FCC has assessed to complete the requests[,]" the court relates that "[plaintiff] posits that he should be exempt from paying the fee because the FCC did not provide a timely response to his requests[,]" and the court holds that "the FCC has not shown that unusual and exceptional circumstances or other reason exists to excuse the delay in the agency's response to [plaintiff's] . . . administrative appeal." The court finds that "the FCC never provided written notice to [plaintiff] that it needed an additional ten days." Additionally, regarding the possibility that exceptional circumstances exist, the court finds that "[t]he FCC does not provide any reason for the delay."