§ 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]

   return arrow Back to Top