FCC 0.457 Revised as of October 1, 2007
Goto Year:2006 |
2008
Sec. 0.457 Records not routinely available for public inspection.
The records listed in this section are not routinely available for public
inspection. The records are listed in this section by category, according to
the statutory basis for withholding those records from inspection; and under
each category, if appropriate, the underlying policy considerations
affecting the withholding and disclosure of records in that category are
briefly outlined. Except where the records are not the property of the
Commission or where the disclosure of those records is prohibited by law,
the Commission will entertain requests from members of the public under
Sec. 0.461 for permission to inspect particular records withheld from inspection
under the provisions of this section, and will weigh the policy
considerations favoring non-disclosure against the reasons cited for
permitting inspection in the light of the facts of the particular case. In
making such requests, it is important to appreciate that there may be more
than one basis for withholding particular records from inspection. The
listing of records by category is not intended to imply the contrary but is
solely for the information and assistance of persons making such requests.
Requests to inspect or copy the transcripts, recordings or minutes of agency
or advisory committee meetings will be considered under Sec. 0.603 rather than
under the provisions of this section.
(a) Materials that are specifically authorized under criteria established by
Executive Order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
Executive Order, 5 U.S.C. 552(b)(1). (1) E.O. 10450, “Security Requirements
for Government Employees,” 18 FR 2489 , April 27, 1953, 3 CFR, 1949–1953
Comp., p. 936. Pursuant to the provisions of E.O. 10450, reports and other
material and information developed in security investigations are the
property of the investigative agency. If they are retained by the
Commission, it is required that they be maintained in confidence and that no
access be given to them without the consent of the investigative agency.
Such materials and information will not be made available for public
inspection. See also paragraphs (f) and (g) of this section.
(2) E.O. 10501, “Safeguarding Official Information in the Interests of the
Defense of the United States,” 18 FR 7049 , November 10, 1953, as amended, 3
CFR, 1965 ed., p. 450. E.O. 10501, as amended, provides for the
classification of official information which requires protection in the
interests of national defense, and prohibits the disclosure of classified
information except as provided therein. Classified materials and information
will not be made available for public inspection. See also, E.O. 10033,
February 8, 1949, 14 FR 561 , 3 CFR, 1949–1953 Comp., p. 226, and 47 U.S.C.
154(j).
(b) Materials that are related solely to the internal personnel rules and
practices of the Commission, 5 U.S.C. 552(b)(2). (1) Materials related
solely to internal management matters, including minutes of Commission
actions on such matters. Such materials may be made available for inspection
under Sec. 0.461, however, unless their disclosure would interfere with or
prejudice the performance of the internal management functions to which they
relate, or unless their disclosure would constitute a clearly unwarranted
invasion of personal privacy (see paragraph (f) of this section).
(2) Materials relating to the negotiation of contracts.
(3) All materials used in conducting radio operator examinations, including
test booklets, Morse Code tapes, and scoring masks.
(c) Materials that are specifically exempted from disclosure by statute
(other than the Government in the Sunshine Act, 5 U.S.C. 552b): Provided,
That such statute (1) requires that the materials be withheld from the
public in such a manner as to leave no discretion on the issue, or (2)
establishes particular criteria for withholding or refers to particular
types of materials to be withheld. The Commission is authorized under the
following statutory provisions to withhold materials from public inspection.
(1) Section 4(j) of the Communications Act, 47 U.S.C. 154(j), provides, in
part, that, “The Commission is authorized to withhold publication of records
or proceedings containing secret information affecting the national
defense.” Pursuant to that provision, it has been determined that the
following materials should be withheld from public inspection (see also
paragraph (a) of this section):
(i) Maps showing the exact location of submarine cables.
(ii) Minutes of Commission actions on classified matters.
(iii) Maps of nation-wide point-to-point microwave networks.
(2) Under section 213(f) of the Communications Act, 47 U.S.C. 213(f), the
Commission is authorized to order, with the reasons therefor, that records
and data pertaining to the valuation of the property of common carriers and
furnished to the Commission by the carriers pursuant to the provisions of
that section, shall not be available for public inspection. If such an order
has been issued, the data and records will be withheld from public
inspection, except under the provisions of Sec. 0.461. Normally, however, such
data and information is available for inspection. See Sec. 0.455(c) (8).
(3) Under section 412 of the Communications Act, 47 U.S.C. 412, the
Commission may withhold from public inspection certain contracts, agreements
and arrangements between common carriers relating to foreign wire or radio
communication. Reports of negotiations regarding such foreign communication
matters, filed by carriers under Sec. 43.52 of this chapter, may also be
withheld from public inspection under section 412. Any person may file a
petition requesting that such materials be withheld from public inspection.
To support such action, the petition must show that the contract, agreement
or arrangement relates to foreign wire or radio communications; that its
publication would place American communication companies at a disadvantage
in meeting the competition of foreign communication companies; and that the
public interest would be served by keeping its terms confidential. If the
Commission orders that such materials be kept confidential, they will be
made available for inspection only under the provisions of Sec. 0.461.
(4) Section 605 of the Communications Act, 47 U.S.C. 605, provides, in part,
that, “no person not being authorized by the sender shall intercept any
communication [by wire or radio] and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such intercepted
communications to any person.” In executing its responsibilities, the
Commission regularly monitors radio transmissions (see Sec. 0.116). Except as
required for the enforcement of the communications laws, treaties and the
provisions of this chapter, or as authorized in section 605, the Commission
is prohibited from divulging information obtained in the course of these
monitoring activities; and such information, and materials relating thereto,
will not be made available for public inspection.
(5) Section 1905 of the Criminal Code, 18 U.S.C. 1905, prohibits the
unauthorized disclosure of certain confidential information. See paragraph
(d) of this section.
(d) Trade secrets and commercial or financial information obtained from any
person and privileged or confidential—categories of materials not routinely
available for public inspection, 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905. (1)
The materials listed in this subparagraph have been accepted, or are being
accepted, by the Commission on a confidential basis pursuant to 5 U.S.C.
552(b)(4). To the extent indicated in each case, the materials are not
routinely available for public inspection. If the protection afforded is
sufficient, it is unnecessary for persons submitting such materials to
submit therewith a request for non-disclosure pursuant to Sec. 0.459. A
persuasive showing as to the reasons for inspection will be required in
requests for inspection of such materials submitted under Sec. 0.461.
(i) Financial reports submitted by licensees of broadcast stations pursuant
to former Sec. 1.611 or by radio or television networks are not routinely
available for inspection.
(ii) Applications for equipment authorizations (type acceptance, type
approval, certification, or advance approval of subscription television
systems), and materials relating to such applications, are not routinely
available for public inspection prior to the effective date of the
authorization. The effective date of the authorization will, upon request,
be deferred to a date no earlier than that specified by the applicant.
Following the effective date of the authorization, the application and
related materials (including technical specifications and test measurements)
will be made available for inspection upon request (See Sec. 0.460). Portions of
applications for equipment certification of scanning receivers and related
materials will not be made available for inspection. This information
includes that necessary to prevent modification of scanning receivers to
receive Cellular Service frequencies, such as schematic diagrams, technical
narratives describing equipment operation, and relevant design details.
Portions of applications for equipment certification of software defined
radios that describe the operation of the device's software and security
features will not be made available for inspection.
(iii) Information submitted in connection with audits, investigations and
examination of records pursuant to 47 U.S.C. 220.
(iv) Programming contracts between programmers and multichannel video
programming distributors.
(v) Prior to July 4, 1967, the rules and regulations provided that certain
materials submitted to the Commission would not be made available for public
inspection or provided assurance, in varying degrees, that requests for
nondisclosure of certain materials would be honored. See, e.g., 47 CFR
chapter I revised as of October 1, 1966, Sec. Sec. 0.417, 2.557, 5.204, 5.255,
15.70, 21.406, 80.33, 87.153, 89.215, 91.208, 91.605 and 93.208. Materials
submitted under these provisions are not routinely available for public
inspection. To the extent that such materials were accepted on a
confidential basis under the then existing rules, they are not routinely
available for public inspection. The rules cited in this paragraph (d)(1)(v)
were superseded by the provisions of this paragraph (d), effective July 4,
1967. Equipment authorization information accepted on a confidential basis
between July 4, 1967 and March 25, 1974, will not be routinely available for
inspection and a persuasive showing as to the reasons for inspection of such
information will be required in requests for inspection of such materials
submitted under Sec. 0.461.
(vi) Information on the users and locations of radio frequency
identification systems submitted to the Commission pursuant to Sec. 15.240 will
be made available to other Federal Government agencies but will not
otherwise be made available for inspection.
(2) Unless the materials to be submitted are listed in paragraph (d)(1) of
this section and the protection thereby afforded is adequate, it is
important for any person who submits materials which he wishes withheld from
public inspection under 5 U.S.C. 552(b)(4) to submit therewith a request for
non-disclosure pursuant to Sec. 0.459. If it is shown in the request that the
materials contain trade secrets or commercial, financial or technical data
which would customarily be guarded from competitors, the materials will not
be made routinely available for inspection; and a persuasive showing as to
the reasons for inspection will be required in requests for inspection
submitted under Sec. 0.461. In the absence of a request for non-disclosure, the
Commission may, in the unusual instance, determine on its own motion that
the materials should not be routinely available for public inspection.
Ordinarily, however, in the absence of such a request, materials which are
submitted will be made available for inspection upon request pursuant to
Sec. 0.461, even though some question may be present as to whether they contain
trade secrets or like matter.
(e) Interagency and intra-agency memorandums or letters, 5 U.S.C. 552(b)(5).
Interagency and intra-agency memorandums or letters and the work papers of
members of the Commission or its staff will not be made available for public
inspection, except in accordance with the procedures set forth in Sec. 0.461.
Only if it is shown in a request under Sec. 0.461 that such a communication
would be routinely available to a private party through the discovery
process in litigation with the Commission will the communication be made
available for public inspection. Normally such papers are privileged and not
available to private parties through the discovery process, since their
disclosure would tend to restrain the commitment of ideas to writing, would
tend to inhibit communication among Government personnel, and would, in some
cases, involve premature disclosure of their contents.
(f) Personnel, medical and other files whose disclosure would constitute a
clearly unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6). (1)
Under Executive Order 10561, 19 FR 5963 , September 13, 1954, 3 CFR,
1954–1958 Comp., page 205, the Commission maintains an Official Personnel
Folder for each of its employees. Such folders are under the jurisdiction
and control, and are a part of the records, of the U.S. Office of Personnel
Management. Except as provided in the rules of the Office of Personnel
Management (5 CFR 294.701–294.703), such folders will not be made available
for public inspection by the Commission. In addition, other records of the
Commission containing private, personal or financial information concerning
particular employees will be withheld from public inspection.
(2) [Reserved]
(3) Information submitted to the Commission by applicants for commercial
radio operator licenses concerning the character and mental or physical
health of the applicant is available for inspection only under procedures
set forth in Sec. 0.461. Except in this respect, or where other aspects of a
similar private nature warrant nondisclosure, commercial radio operator
application files are available for inspection.
(g) Investigatory records compiled for law enforcement purposes, to the
extent that production of such records would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source;
(5) Disclose investigative techniques or procedures; or
(6) Endanger the life or physical safety of law enforcement personnel, 5
U.S.C. 552(b)(7).
[ 32 FR 10573 , July 19, 1967]
Editorial Note: ForFederal Registercitations affecting Sec. 0.457, see the
List of CFR Sections Affected, which appears in the Finding Aids section of
the printed volume and on GPO Access.
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