Goto Section: 0.453 | 0.458 | Table of Contents
Revised as of February 18, 2020
Goto Year:2019 |
§ 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
(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
(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
(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
(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
(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
(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
(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.
[ 82 FR 4189 , Jan. 13, 2017, as amended at 82 FR 55331 , Nov. 21, 2017]
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Goto Section: 0.453 | 0.458
Goto Year: 2019 |
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