Goto Section: 0.455 | 0.458 | Table of Contents
FCC 0.457
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 0.457 Records not routinely available for public inspection.
The records listed in this section are not routinely available for public
inspection pursuant to 5 U.S.C. 552(b). The records are listed in this
section by category, according to the statutory basis for withholding those
records from inspection; 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 § 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, 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 closed agency
meetings will be considered under § 0.607 rather than under the provisions of
this section.
(a) Materials that are specifically authorized under criteria established by
Executive Order (E.O.) 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) Classified materials and
information will not be made available for public inspection, including
materials classified under E.O. 10450, “Security Requirements for Government
Employees”; E.O. 10501, as amended, “Safeguarding Official Information in
the Interests of the Defense of the United States”; and E.O. 12958,
“Classified National Security Information,” or any other executive order
concerning the classification of records. See also 47 U.S.C. 154(j).
(2) Materials referred to another Federal agency for classification will not
be disclosed while such a determination is pending.
(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 (see paragraph (f) of this section).
(2) Materials relating to the negotiation of contracts.
(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 either requires that the materials be withheld from the public
in such a manner as to leave no discretion on the issue, or 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 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 § 0.461. Normally, however, such
data and information is available for inspection.
(3) Under sec. 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. 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 § 0.461.
(4) Section 605 of the Communications Act, 47 U.S.C. 605(a), 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. Except as required for
the enforcement of the communications laws, treaties and the provisions of
this chapter, or as authorized in sec. 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 federal criminal code, the Trade Secrets Act, 18
U.S.C. 1905, prohibits the unauthorized disclosure of certain confidential
information. See paragraph (d) of this section and § 19.735-203 of this
chapter.
(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 paragraph 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 § 0.459. A
persuasive showing as to the reasons for inspection will be required in
requests submitted under § 0.461 for inspection of such materials.
(i) Financial reports submitted by radio or television licensees.
(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 § 0.460). Portions of
applications for equipment certification of scanning receivers and related
materials 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) The rates, terms and conditions in any agreement between a U.S. carrier
and a foreign carrier that govern the settlement of U.S.-international
traffic, including the method for allocating return traffic, except as
otherwise specified by the Commission by order or by the International
Bureau under delegated authority. See, e.g., International Settlements
Policy Reform, IB Docket Nos. 11-80, 05-254, 09-10, RM-11322, Report and
Order, FCC 12-145 (rel. Nov. 29, 2012).
(vi) Outage reports filed under Part 4 of this chapter.
(vii) The following records, relating to coordination of satellite systems
pursuant to procedures codified in the International Telecommunication Union
(ITU) Radio Regulations:
(A) Records of communications between the Commission and the ITU related to
the international coordination process, and
(B) Documents prepared in connection with coordination, notification, and
recording of frequency assignments and Plan modifications, including but not
limited to minutes of meetings, supporting exhibits, supporting
correspondence, and documents and correspondence prepared in connection with
operator-to-operator arrangements.
(viii) Information submitted with a 911 reliability certification pursuant
to 47 CFR 12.4 that consists of descriptions and documentation of
alternative measures to mitigate the risks of nonconformance with
certification elements, information detailing specific corrective actions
taken with respect to certification elements, or supplemental information
requested by the Commission with respect to such certification.
(ix) Confidential Broadcaster Information, as defined in § 1.2206(d) of this
chapter, submitted by a broadcast television licensee in a broadcast
television spectrum reverse auction conducted under section 6403 of the
Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96) (the
“Spectrum Act”), or in the application to participate in such a reverse
auction, is not routinely available for public inspection until the
reassignments and reallocations under section 6403(b)(1)(B) of the Spectrum
Act become effective or until two years after public notice that the reverse
auction is complete and that no such reassignments and reallocations shall
become effective. In the event that reassignments and reallocations under
section 6403(b)(1)(B) of the Spectrum Act become effective, Confidential
Broadcaster Information pertaining to any unsuccessful reverse auction bid
or pertaining to any unsuccessful application to participate in such a
reverse auction will not be routinely available for public inspection until
two years after the effective date.
Note to paragraph (d): The content of the communications described in
paragraph (d)(1)(vii)(A) of this section is in some circumstances separately
available through the ITU's publication process, or through records
available in connection with the Commission's licensing procedures.
(2) Unless the materials to be submitted are listed in paragraph (d)(1) of
this section and the protection thereby afforded is adequate, any person who
submits materials which he or she wishes withheld from public inspection
under 5 U.S.C. 552(b)(4) must submit a request for non-disclosure pursuant
to § 0.459. If it is shown in the request that the materials contain trade
secrets or privileged or confidential commercial, financial or technical
data, 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 § 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.
(e) Interagency and intra-agency memoranda or letters, 5 U.S.C. 552(b)(5).
Interagency and intra-agency memoranda 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 § 0.461.
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). Under
E.O. 10561, 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
293.311), 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
and Commission contractors will be withheld from public inspection.
(g) Under 5 U.S.C. 552(b)(7), records compiled for law enforcement purposes,
to the extent that production of such records:
(1) Could reasonably be expected to interfere with enforcement proceedings;
(2) Would deprive a person of a right to fair trial or an impartial
adjudication;
(3) Could reasonably be expected to constitute an unwarranted invasion of
personal privacy;
(4) Could reasonably be expected to disclose the identity of a confidential
source;
(5) Would disclose investigative techniques or procedures or would disclose
investigative guidelines if such disclosure could reasonably be expected to
risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical safety of
any individual.
[ 74 FR 14078 , Mar. 30, 2009, as amended at 78 FR 11111 , Feb. 15, 2013; 78 FR 49148 , Aug. 13, 2013; 79 FR 3130 , Jan. 17, 2014; 79 FR 48528 , Aug. 15, 2014]
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Goto Section: 0.455 | 0.458
Goto Year: 2014 |
2016
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