Goto Section: 8.15 | 8.17 | Table of Contents
FCC 8.16
Revised as of June 8, 2018
Goto Year:2017 |
2019
§ 8.16 Confidentiality of proprietary information.
Link to an amendment published at 83 FR 7922 , Feb. 22, 2018.
Link to an amendment published at 83 FR 21927 , May 11, 2018.
(a) Any materials generated in the course of a proceeding under this
part may be designated as proprietary by either party to the proceeding
or a third party if the party believes in good faith that the materials
fall within an exemption to disclosure contained in the Freedom of
Information Act (FOIA), 5 U.S.C. 552(b) (1) through (9). Any party
asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a proprietary
designation is claimed. If a proprietary designation is challenged, the
party claiming confidentiality shall have the burden of demonstrating,
by a preponderance of the evidence, that the materials designated as
proprietary fall under the standards for nondisclosure enunciated in
the FOIA.
(2) File with the Commission, using the Commission's Electronic Comment
Filing System, a public version of the materials that redacts any
proprietary information and clearly marks each page of the redacted
public version with a header stating “Public Version.” The redacted
document shall be machine-readable whenever technically possible. Where
the document to be filed electronically contains metadata that is
confidential or protected from disclosure by a legal privilege
(including, for example, the attorney-client privilege), the filer may
remove such metadata from the document before filing it electronically.
(3) File with the Secretary's Office an unredacted hard copy version of
the materials that contain the proprietary information and clearly
marks each page of the unredacted confidential version with a header
stating “Confidential Version.” The unredacted version must be filed on
the same day as the redacted version.
(4) Serve one hard copy of the filed unredacted materials and one hard
copy of the filed redacted materials on the attorney of record for each
party to the proceeding, or where a party is not represented by an
attorney, each party to the proceeding either by hand delivery,
overnight delivery, or email, together with a proof of such service in
accordance with the requirements of § 1.47(g) of this chapter and
§ 8.13(c)(1)(a) through (c).
(b) Except as provided in paragraph (c) of this section, materials
marked as proprietary may be disclosed solely to the following persons,
only for use in the proceeding, and only to the extent necessary to
assist in the prosecution or defense of the case:
(1) Counsel of record representing the parties in the complaint action
and any support personnel employed by such attorneys;
(2) Officers or employees of the opposing party who are named by the
opposing party as being directly involved in the prosecution or defense
of the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance with the terms and
conditions of this section.
(c) The Commission will entertain, subject to a proper showing under
§ 0.459 of this chapter, a party's request to further restrict access to
proprietary information. Pursuant to § 0.459 of this chapter, the other
parties will have an opportunity to respond to such requests. Requests
and responses to requests may not be submitted by means of the
Commission's Electronic Comment Filing System but instead must be filed
under seal with the Office of the Secretary.
(d) The individuals designated in paragraphs (b)(1) through (3) of this
section shall not disclose information designated as proprietary to any
person who is not authorized under this section to receive such
information, and shall not use the information in any activity or
function other than the prosecution or defense in the case before the
Commission. Each individual who is provided access to the information
shall sign a notarized statement affirmatively stating that the
individual has personally reviewed the Commission's rules and
understands the limitations they impose on the signing party.
(e) No copies of materials marked proprietary may be made except copies
to be used by persons designated in paragraphs (b) and (c) of this
section. Each party shall maintain a log recording the number of copies
made of all proprietary material and the persons to whom the copies
have been provided.
(f) Upon termination of a complaint proceeding, including all appeals
and petitions, all originals and reproductions of any proprietary
materials, along with the log recording persons who received copies of
such materials, shall be provided to the producing party. In addition,
upon final termination of the proceeding, any notes or other work
product derived in whole or in part from the proprietary materials of
an opposing or third party shall be destroyed.
[ 80 FR 19848 , Apr. 13, 2015]
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Goto Section: 8.15 | 8.17
Goto Year: 2017 |
2019
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