§ 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. 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
   Commission will permit inspection of records unless Commission staff
   reasonably foresees that disclosure would harm an interest protected by
   the exemptions described in 5 U.S.C. 552(b) or where disclosure is
   prohibited by law. 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. 13526, “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).

   (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), 5 U.S.C. 552(b)(3). 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 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. 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) 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.

   (x) Copyrighted materials the release of which would have a substantial
   adverse effect on the copyright holder's potential market, except to
   the extent such a release can be considered fair use.

   (xi) Lists and updates of U.S.-international routes for which a carrier
   has an arrangement with a foreign carrier for direct termination in the
   foreign destination provided pursuant to § 63.22(h) of this chapter.

   Note to paragraph (d)(1): 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, because
   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. The Commission will not use this deliberative process
   exemption to withhold records created 25 years or more before the date
   on which the request was received.

   (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. 12107, 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 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.

   [ 82 FR 4189 , Jan. 13, 2017, as amended at  82 FR 55331 , Nov. 21, 2017]

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