FCC 0.457 Revised as of December 4, 2012
Goto Year:2011 |
§ 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
(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
(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
(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
(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
(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, if the U.S. international route is exempt from the
international settlements policy under § 43.51(e)(3) of this chapter.
(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.
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
(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
(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
(2) Would deprive a person of a right to fair trial or an impartial
(3) Could reasonably be expected to constitute an unwarranted invasion
of personal privacy;
(4) Could reasonably be expected to disclose the identity of a
(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.
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