[Federal Register: March 30, 2009 (Volume 74, Number 59)]
[Rules and Regulations]
[Page 14073-14091]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr09-10]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[FCC 08-282]
Public Information, the Inspection of Records, and Implementation
of Freedom of Information Act Amendments
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission amends its rules implementing the Freedom of
Information Act (FOIA) to reflect changes in that law made by the OPEN
Government Act of 2007. In addition, the rules are updated to reflect
the current structure of the agency; to reflect the increased
availability of records on the agency's Web site and the Commission's
decisions over the years with respect to whether certain records are
routinely available for public inspection; to ensure that the rules
reflect the agency's experience with processing FOIA requests; and to
clarify the fees applicable to FOIA requests.
DATES: Effective April 29, 2009.
FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Special Counsel,
Administrative Law Division, Office of General Counsel, 202-418-1720 or
Laurence.Schecker@fcc.gov.
SUPPLEMENTARY INFORMATION: In this Order, we amend part 0 of the
Commission's rules to update sections implementing the Freedom of
Information Act (FOIA), 5 U.S.C. 552.
On December 14, 2005, the President issued an Executive Order
concerning implementation of the FOIA. Executive Order No. 13392,
Improving Agency Disclosure of Information, 70 FR 75373 (December 14,
2005) (FOIA Executive Order). Among other things, the Executive Order
required each agency to review its FOIA operations, see id. sec. 3(a),
70 FR at 75375 (December 14, 2005), to develop a plan to improve its
FOIA operations, id. sec. 3(b)(iii), 70 FR at 75375 (December 14,
2005), and to report to the Attorney General about its review and plan
for improving FOIA operations. Id. sec. 3(c), 70 FR at 75375 (December
14, 2005). Consistent with the Executive Order, the Commission reviewed
its FOIA operations, developed a plan for improvement, and issued its
report. Improving Agency Disclosure of Information: Executive Order
13392 (June 14, 2006) (FCC FOIA Report), available at http://
www.fcc.gov/foia/2006improv_disclosure_ report.pdf. See also Letter
from Samuel Feder, General Counsel and Chief FOIA Officer, to Clay
Johnson, III, Chairman, President's Management Council (July 30, 2007)
(Updated Status Report--FOIA Implementation Plan), available at http://
www.fcc.gov/foia/2006improv-update.pdf; Letter from Matthew Berry,
General Counsel and Chief FOIA Officer, to Chairman Johnson (February
27, 2008) (Updated Status Report).
The Commission committed, inter alia, to review its FOIA
implementing rules ``[t]o ensure that the FCC's information access
regulations reflect the current structure of the agency, the
availability of records to the public and whether more records should
be posted pursuant to [FOIA] subsection (a)(2), [5 U.S.C. 552(a)(2)],
the proper procedures for processing FOIA requests and appeals, and
current fee information.'' FCC FOIA Report at 9.
In late 2007, Congress passed and the President signed the Openness
Promotes Effectiveness in our National Government Act, known as the
OPEN Government Act. Public Law No. 110-175, 121 Stat. 2524 (2007),
codified at scattered sections of 5 U.S.C. 552. The FOIA amendments
adopted in this statute require additional changes to our FOIA
implementing regulations.
In our FY 2007 FOIA Annual Report, we modified the target date for
reviewing and amending our FOIA regulations so that a single revision
of the rules could address the OPEN Government Act as well as the
commitment made in the FCC's FOIA Report. See FCC FY 2007 FOIA Annual
Report, at 8-9 (Section XII.C) (http://www.fcc.gov/foia/
2007foiareport.pdf); see also letter from Matthew Berry to Chairman
Johnson (Feb. 27, 2008) (noting the change in the target date for
revising our FOIA regulations). We have now completed an extensive
review of our FOIA regulations and in this Order adopt various
amendments to the rules. By this Order, we fulfill the commitment made
in the FCC FOIA Report, as modified in our FY2007 FOIA Annual Report.
Our FOIA implementing rules are presently found at 47 CFR 0.441
through 0.470. The rules amended in this Order may generally be grouped
into three sections: (1) rules describing records that are routinely
available for public inspection (47 CFR 0.441, 0.445, 0.451, 0.453,
0.455, 0.460 and 0.465); (2) rules describing records that are not
routinely available for public inspection and governing requests for
confidential treatment (47 CFR 0.442, 0.457, 0.458, 0.459, 0.461, and
0.463); and (3) the FOIA fee rules (47 CFR 0.451(d), 0.465 through
0.470). We have reviewed these rules and, as set forth in Appendix,
[[Page 14074]]
adopt a variety of changes to (i) reflect the current structure of the
agency; (ii) reflect the increased availability of records on the FCC's
Web site and the Commission's decisions over the years with respect to
whether certain records are routinely available for public inspection;
(iii) implement the changes to the FOIA enacted in the OPEN Government
Act; (iv) ensure that the rules reflect our experience with processing
FOIA requests; and (v) clarify the fees applicable to FOIA requests.
The following paragraphs describe the changes we adopt in the rules.
Records Routinely Available for Public Inspection. The FOIA
requires that a variety of records be made ``available for public
inspection and copying.'' 5 U.S.C. 552(a)(2)(A)-(D) (requiring each
agency to make available for public inspection and copying ``final
opinions * * * [and] orders made in the adjudication of cases;'' policy
statements that ``are not published in the Federal Register;''
``administrative staff manuals and instructions to staff that affect a
member of the public;'' and records released pursuant to a FOIA request
that ``the agency determines have become or are likely to become the
subject of subsequent requests for substantially the same records'');
FOIA Executive Order, sec. 1(b). The Electronic Freedom of Information
Act Amendments of 1996 (EFOIA), Public Law No. 104-231, 110 Stat. 3048
(1996), codified at scattered sections of 5 U.S.C. 552. See Amendment
of Part 0 of the Commission's Rules to Implement the Electronic Freedom
of Information Act Amendments of 1996, 13 FCC Rcd 3419 (1997),
requires, and the FOIA Executive Order provides for, the use of
electronic information technology to make records available to the
public. See 5 U.S.C. 552(a)(2); FOIA Executive Order, sec. 3(a)(iv), 70
FR at 75375 (December 14, 2005). We have developed an extensive Web
site, http://www.fcc.gov, providing the public with broad access to our
records. Our Web site also affirmatively discloses much information
about the Commission, consistent with the FOIA Executive Order's
direction that agencies make ``proactive'' and ``spontaneous disclosure
of information to the public'' to reduce the need for the public to
make FOIA requests to obtain information from agencies. Id., sec.
3(a)(iv). For example, our Web site makes available Commission and
Bureau/Office level decisions, Commission rules, comments filed in
rulemaking proceedings, public notices, applications for licenses or
other authorizations, and policy statements and staff guidance
concerning our rules and operations, just to mention a few categories
of records. We also maintain paper reading rooms for public access to
our records. Our rules governing access to routinely available records
require updating in light of changes in the structure of the
Commission, changes in the types of proceedings we conduct, Internet
availability of many of our records, and electronic filing and
referencing capabilities for many of our proceedings. We therefore
update sections 0.441, 0.445, 0.451, 0.453, 0.455, 0.460 and 0.465 of
our rules as discussed below and as set forth in the rule changes.
Section 0.441 is amended to indicate that in addition to the
sources for obtaining Commission information previously listed in the
rule, information may be obtained from the Commission's copy
contractor. It also contains updated Internet citations and FCC
headquarters locations for obtaining information. We have also amended
section 0.441 to note the availability of our FOIA Public Liaison to
assist persons requesting information from the Commission in resolving
any concerns relating to a FOIA request. OPEN Government Act, sec.
6(b)(1)(B); see http://www.fcc.gov/foia/#contact (FOIA Public Liaison
contact).
Section 0.445 contains our regulation concerning the availability
of our opinions, orders, policy statements, interpretations,
administrative manuals and staff instructions. 47 CFR 0.445. This rule
implements various statutory requirements concerning the public
availability of these documents. See 5 U.S.C. 552(a)(2)(A)-(C). We are
making minor modifications to this rule. We are changing the reference
to Pike and Fisher Radio Regulation in section 0.445(b) to Pike and
Fisher Communications Regulation, the current title of that
publication. See commreg.pf.com. We are also removing paragraph (g),
which currently refers to the FCC Administrative Manual, a document
that no longer exists. We are modifying current paragraph (h), which
will become paragraph (g), to reflect that general instructions to
staff may be contained in orders published in the Federal Register.
Finally, current paragraph (i), which will become paragraph (h),
indicates we may redact information from published documents to protect
personal privacy. See 5 U.S.C. 552(a) (allowing deletion of information
to protect personal privacy). We are amending this section to indicate
we may also redact information required or authorized to be withheld
pursuant to other Federal statutes. This amendment reflects our
practice of issuing decisions redacting confidential commercial
information, consistent with the Trade Secrets Act, 18 U.S.C. 1905. See
Examination of Current Policy Concerning Treatment of Confidential
Information Submitted to the Commission, 13 FCC Rcd 24816, 24854 (1998)
(Confidentiality R&O) (orders containing confidential commercial
information may be released in part under seal), recon. den., 14 FCC
Rcd 20128 (1999).
We are making a minor clarifying amendment to section 0.451(d),
which currently refers only to search fees, to cross-reference copying
and review fees that are provided for elsewhere in our FOIA
regulations. We also amend section 0.451(b)(5) to cross-reference part
19 of our rules.
Two of our FOIA rules, sections 0.453 and 0.455, set out the public
availability of records in our public reference rooms. 47 CFR 0.453 and
0.455. These rules are being updated to reflect the current nature of
our proceedings and the structure of the agency. Section 0.453(a) is
being amended to reflect the availability of the Commission's
Electronic Comment Filing System (ECFS), which makes case histories
available on the Internet to the public. Electronic Filing of Documents
in Rulemaking Proceedings, 13 FCC Rcd 11322 (1998) (ECFS Decision).
Section 0.453(a)(2)(i) provides a current list of Broadcast Services
proceedings which have records that are routinely available, and
section 0.453(a)(2)(ii) updates common carrier proceedings presently in
the Wireline Competition Bureau. Section 0.453(a)(2)(iii)(E) is amended
to delete the last sentence to reflect that the Uniform Licensing
System (ULS) is now fully functional. Section 0.453(a)(2)(iv) is
amended to reflect the availability of certain contracts and to
eliminate references to INTELSAT and INMARSAT in light of the
privatization of those entities. Finally, section 0.453(a)(2)(v)
updates the list of publicly available cable service proceedings. Minor
changes are made to section 0.455. We update paragraph (a) to reflect
the Media Bureau materials currently available in its reference room.
We also amend former paragraph (c), now (b), to indicate that
Commission minutes and records for votes are available in the Office of
the Secretary, not the Agenda Group. References to separate Bureau
reference rooms, now consolidated in the Reference Information Center,
are also removed from section 0.455.
Section 0.460 governs requests for inspection of records that are
routinely available for public inspection under
[[Page 14075]]
sections 0.453 and 0.455. Our rules have provided that records
routinely available to the public can be requested either through the
Commission directly or through our copy contractor. 47 CFR 0.460(f).
See also 47 CFR 0.465(f). While a large portion of the records
routinely available for public inspection are available on our Web
site, there are still some routinely available records that are only
available in paper copy at the Commission. Processing written requests
for these records has placed a great burden on our staff. We are
therefore amending paragraph (f) to require that written requests to
obtain copies of records routinely available for public inspection must
be processed through the Commission's copy contractor under section
0.465. We are also amending section 0.465(f) to indicate that the
Commission's copy contractor will fulfill requests for records that are
routinely available under section 0.453 or 0.455. These changes do not
affect those personally inspecting records at the Commission. See 47
CFR 0.460(b).
Records Not Routinely Available for Public Inspection. Section
0.442 of our rules addresses situations in which we receive requests
from other Federal agencies for records that were submitted to us with
a request for confidential treatment or that we consider presumptively
confidential. 47 CFR 0.442. This rule, based on sections of the
Paperwork Reduction Act (PRA), 44 U.S.C. 3512 and 3510(b), indicates
that such records will receive confidential treatment when we share
them with other agencies, and sets forth the procedures we employ when
we receive such requests. We are amending paragraphs (a) and (d)(3) to
provide that the rule covers records that have been deemed confidential
under other statutes, FCC orders, or regulations in addition to those
deemed confidential under section 0.457 or 0.459. We are amending
section 0.442(b) to indicate that the Commission may initiate the
sharing of records with another Federal agency under this section.
Paragraph (d)(1) provides for notice to the submitter of confidential
information that we have received a request from another Federal agency
for the records. We are amending this paragraph to make clear that we
may provide this notice either individually or by public notice in
instances where there are many submitters of confidential information.
We are amending paragraph (d)(2) to provide that Federal agencies may
request that we not provide notice to the submitter of confidential
information if such notice would interfere with national security or
homeland defense activities as well as law enforcement activities. 47
CFR 0.442(d)(2)-(3). We are amending paragraph (d)(2) to indicate that
Federal agencies should submit such requests in writing to us. We note
that such a request may be made by e-mail.
In setting forth nine FOIA disclosure exemptions, the FOIA
recognizes that not all agency records may be available to the public.
5 U.S.C. 552(b)(1)-(9). Section 0.457 of our rules sets forth these
exemptions and lists circumstances in which we have already determined
that certain types of records are not routinely available for public
inspection. Section 0.457(a) is amended to clarify that documents for
which the Commission has requested national security classification
from another agency will not be disclosed pending a classification
determination. We have also amended section 0.457(c)(3) to reflect our
previous repeal of section 43.53. See Amendment of Sections 43.51,
43.52, 43.53, 43.54 and 43.74 of the Commission's Rules To Eliminate
Certain Reporting Requirements, 1 FCC Rcd 933 (1986). In addition, the
Commission determined in a 2004 rulemaking to accord confidential
treatment to outage reports filed under part 4 of our rules, but did
not update section 0.457(d) at that time. See New Part 4 of the
Commission's Rules Concerning Disruptions to Communications, 19 FCC Rcd
16830 (2004), adopting 47 CFR 4.2. We are therefore adding a new
section 0.457(d)(1)(vii) to reflect that action. A new section
0.457(d)(1)(viii) has also been added to reflect the commercially
sensitive nature of coordination of satellite systems pursuant to
procedures codified in the International Telecommunication Union (ITU)
Radio Regulations. See Robert J. Butler, 6 FCC Rcd 5414 (1991)
(documents that were generated during the course of certain
international negotiations withheld pursuant to FOIA Exemption 4). We
have deleted the reference to radio operator examinations that are no
longer administered, see Amendment of Part 13 of the Commission's Rules
To Privatize the Administration of Examinations for Commercial Operator
Licenses and To Clarify Certain Rules, 8 FCC Rcd 1046 (1992), as well
as a dated reference to equipment authorization procedures prior to
1974. 47 CFR 0.457(b)(3). In section 0.457(f) regarding personal
privacy under FOIA Exemption 6, 5 U.S.C. 552(b)(6), we are expanding
the reference to ``employees'' so as to include Commission contractors.
See U.S. Dep't of Justice v. Reporters' Committee for Freedom of the
Press, 489 U.S. 749, 774 (1989) (an individual doing business with the
federal government may have some protectible privacy interest). We are
amending section 0.457(g), regarding law enforcement information, to
more closely track the language of the FOIA.
Section 0.459 of our rules addresses requests for confidential
treatment. See generally Confidentiality R&O, 13 FCC Rcd at 34826-27
(prescribing showing to be made for requests for confidential
treatment). Where confidential treatment is sought for only a part of a
document, we will require the filing of a redacted public version. We
are adding a new paragraph indicating that this section does not apply
to comments or materials filed by means of our Electronic Filing System
(ECFS), consistent with the rulemaking decision adopting the ECFS
system. ECFS Decision, 13 FCC Rcd at 11330-31 (confidential materials
cannot be filed electronically through ECFS). We have added a new
paragraph (a)(3) reflecting the practice of using a ``checkbox''
mechanism for indicating confidentiality on some forms. We are amending
paragraph (c) concerning casual requests for confidential treatment to
indicate that the existing required showing before confidential
treatment will be granted means that simply stamping a record
``confidential'' will not be considered a request for confidential
treatment. We are also amending paragraph (g) to provide that when a
request for confidential treatment is denied, the person who submitted
the records will have 10 days to seek review, instead of the 5 days
currently provided for in the rule. This change harmonizes the time
period in this rule with the time period in section 0.461(i)(1).
Compare 47 CFR 0.459(g) (currently providing 5 days for filing an
application for review or seeking a judicial stay when a request for
confidentiality is denied in whole or in part) with 47 CFR 0.461(i)(1)
(currently providing 10 days for filing an application for review or a
judicial stay when in the context of a FOIA request a request for
confidentiality is denied in whole or in part).
Finally, section 0.458 of our rules addresses situations when
persons regulated by or practicing before the Commission come into
possession of written non-public information. We amend this section to
provide that such information should be returned to the Commission's
Office of Inspector General promptly and without further distribution
or use. This amendment tracks the current language of 47 CFR 19.735-
203.
[[Page 14076]]
Obtaining Records Not Routinely Available for Public Inspection.
Section 0.461 of our rules describes how the public may seek records
not routinely available for public inspection. We herein make several
amendments to section 0.461 to reflect our experience in processing
FOIA requests and to implement the OPEN Government Act. We have amended
section 0.461(a) to include the definition of ``records'' adopted in
the OPEN Government Act. OPEN Government Act, sec. 9, codified at 5
U.S.C. 552(f)(2). This definition specifies that records include
electronic records and records maintained for the Commission by another
entity for purposes of records management. Section 0.461(a) is also
amended to provide more detail for FOIA requesters concerning what
information should be submitted with a request for inspection of
records. We make this change to assist staff in processing FOIA
requests. By providing a more detailed FOIA request, we hope staff
processing the request will be able to locate the records quickly, thus
reducing search time charges to FOIA requesters. We hope that this will
minimize the need to contact FOIA requesters for clarification. See
OPEN Government Act, sec. 6(a), codified at 5 U.S.C. 552a)(6)(A)(ii)
(limiting the tolling of time for processing FOIA requests when
requesters must be contacted for clarification). See also OIP Guidance:
New Limitations on Tolling the FOIA's Response Time (DOJ/OIP November
11, 2008), available at http://www.usdoj.gov/oip/foiapost/
2008foiapost29.htm. Section 0.461(a)(2) is amended to clarify that,
pursuant to FOIA section 552(a)(3)(B), while requesters may specify the
form or format of records to be produced, the records must be readily
reproducible in the requested form or format for the Commission to
comply with the request. See 5 U.S.C. 552(a)(3)(B). This is consistent
with our practice. See Rick Linsk, 18 FCC Rcd 25601, 25602 (2003),
citing TPS, Inc. v. U.S. Dep't of Defense, 330 F.3d 1191, 1193 (9th
Cir. 2003). Section 0.461(b) concerns information provided with FOIA
requests, and is amended to provide that mailing addresses be included
with a FOIA request so that we can mail paper copies of records
produced to FOIA requesters. It is also amended to remind requesters
that if they are seeking a FOIA fee waiver, such a request must be
included with their original FOIA request. See 47 CFR 0.470(c).
Section 0.461(d)(3) provides for notification of persons who have
submitted records to the Commission that are confidential under
sections 0.457 or 0.459 if a request for inspection of those records is
filed under section 0.461. We have amended this section to clarify
procedures for this notice and how all parties should serve each other
with any pleadings. We are also adding a note to this section reminding
parties that FOIA proceedings are permit-but-disclose proceedings under
our ex parte rules. See 47 CFR 1.1206(a)(7).
Section 0.461(e) is amended to indicate that a FOIA request is
deemed properly received when it is received and date stamped by our
FOIA Control Office and assigned to the Bureau or Office that is the
custodian of the records sought.See OPEN Government Act, sec. 6(a),
codified at 5 U.S.C. 552(a)(6)(A). See also OIP Guidance: Assigning
Tracking Numbers and Providing Status Information for Requests (DOJ/OIP
November 18, 2008), available at http://www.usdoj.gov/oip/foiapost/
2008foiapost30.htm; OIP Guidance: New Requirement to Route Misdirected
FOIA Requests (DOJ/OIP November 18, 2008), available at http://
www.usdoj.gov/oip/foiapost/2008foiapost31.htm. A new paragraph is being
added to paragraph (e), and language is added to sections 0.461(g)(1),
0.467(e)(2), and 0.469(c) concerning the tolling of the FOIA time
limits for processing requests, to implement the OPEN Government Act's
provisions. This paragraph provides that the time for responding to a
FOIA request is tolled while the custodian of records seeks reasonable
clarification from the requester. Such a request must be made within 10
days after a request is properly received by the custodian of records,
and only one such request may be made. The paragraph also provides for
a tolling of the time limits when fee issues (including fee waivers)
are unresolved. The OPEN Government Act allows us to make only one
request for clarification of the scope of a FOIA request, but does not
contain a similar restriction for fee matters. Compare 5 U.S.C.
552(a)(6)(A)(ii)(I) with 5 U.S.C. 552(a)(6)(A)(ii)(II). We will,
however, endeavor to resolve fee matters with only one inquiry to
requesters. Paragraph (e)(4) is also amended to reflect our practice of
assigning control numbers to FOIA requests, and to indicate that we
provide notice to a FOIA requester of the control number and of a
telephone number that may be called to obtain the status of the FOIA
request. These amendments reflect modifications to the FOIA made in the
OPEN Government Act. OPEN Government Act, sec. 7(a), codified at 5
U.S.C. 552(a)(7). See also OIP Guidance: Assigning Tracking Numbers and
Providing Status Information for Requests (DOJ/OIP November 18, 2008),
available at http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm.
We sometimes receive FOIA requests that seek records that are the
property of another federal agency or department. We have clarified in
section 0.461(f) that such requesters will be directed to the correct
department or agency. We have also amended section 0.461(f)(5), which
addresses withholding part of a record pursuant to a FOIA exemption.
The OPEN Government Act amended the FOIA to require that when a
redaction is made to a record being released, we must indicate the FOIA
exemption relied upon at the site of the redaction. See sec. 12,
codified at 5 U.S.C. 552(b) (after paragraph 9). See also OIP Guidance:
Segregating and Marking Documents for Release in Accordance with the
Open Government Act (DOJ/OIP October 23, 2008), available at http://
www.usdoj.gov/oip/foiapost/2008foiapost26.htm. Conforming or clarifying
edits are also made to section 0.461(g).
We have amended section 0.461(i) to add persons with a personal
privacy interest in a record to the categories of persons who may seek
review of a decision to grant access to the records. We have also added
a note to paragraphs 0.461(i) and (j) indicating that the General
Counsel will review applications for review of initial FOIA decisions
and may attempt informally to resolve issues with the applicant. This
has been our practice and we have found it to be a consumer-friendly
practice, consistent with the FOIA Executive Order. FOIA Executive
Order, sec. 1(b)-(d), 70 FR at 75373 (December 14, 2005). We have also
amended section 0.461(j) to make clear that applications for review of
fee determinations and fee waiver decisions may be sought under this
paragraph. See amended section 0.451(d) and new section 0.470(g). We
have provided in section 0.461(k)(2) that the Commission may
consolidate applications for review. Finally, we have clarified in
section 0.461(l)(2) that, as appropriate, we may continue to process
initial FOIA requests or applications for review if an action for
judicial review has been filed.
The Touhy Rule. Section 0.463 is the Commission's Touhy rule. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); 5 U.S.C. 301
(authorizing agencies to issue regulations regarding whether government
employees or documents may be subpoenaed). We amend this rule to
elaborate on the procedures used when determining whether Commission
employees will be
[[Page 14077]]
permitted to testify or provide records relating to their official
duties when they are directly subpoenaed or otherwise served with a
request. This amendment also specifies and clarifies the criteria that
the General Counsel will use when deciding whether to allow an employee
to testify or provide records. We make these amendments based on the
following: (1) Our experience in reviewing Touhy requests and the
information that we typically need to obtain from the requester in
order to properly evaluate the request; (2) our review of other
agencies' Touhy rules; and (3) the factors that courts have considered
when evaluating Administrative Procedure Act (APA) challenges to other
agencies' Touhy decisions. See, e.g., Houston Business Journal, Inc. v.
Office of the Comptroller of the Currency, United States Dep't of the
Treasury, 86 F.3d 1208 (D.C. Cir. 1996) (agency decisions under Touhy
regulation are reviewed under arbitrary or capricious standard under
the APA; Brobreski v. U.S. EPA, 284 F.Supp.2d 67, 79-80 (D.D.C. 2003)
(reviewing and upholding EPA's reasons for denying request for
testimony by an agency inspector).
FOIA Fee Related Rules. We also make a variety of changes to our
FOIA fee-related rules. 47 CFR 0.451(d), 0.465 through 0.470. In
section 0.465, we amend paragraph (b) to reflect the availability of
audio and video recordings or transcripts of Commission proceedings and
note that in certain cases, not all formats may exist. In paragraph
(c)(2), we reduce the per page copying fees we are required to charge
under the FOIA, 5 U.S.C. 552(a)(4)(A), from $0.17 to $0.10. This
reduction is a result of our re-evaluation of reproduction costs. We
are also adding to paragraph (c)(2) a charge of $5.00 per computer disk
for instance when we provide copies in an electronic format, and add a
reference to computer disks in this paragraph. Finally, we are amending
paragraph (e) to reflect the availability of many of our documents on
the Internet. Paragraphs (e) and (f) are also amended, consistent with
our amendment of section 0.460 discussed supra, to indicate that the
public must seek copies of records routinely available for public
inspection in person or from our copy contractor.
Section 0.466 of our rules contains the definitions related to FOIA
fees. In paragraph (a)(1) we are changing the definition of ``direct
costs'' to reflect that we add 20 percent to our labor costs to cover
benefits, to make it consistent with our current practice as reflected
in paragraph 0.467(a)(2). When sections 0.466 and 0.467 were first
amended to reflect the changes in the FOIA regarding fees, the
Commission indicated that it would add 16 percent to the basic rate of
pay to cover employee benefits. The Freedom of Information Reform Act
of 1986; Fee Schedule and Administrative Procedures, 3 FCC Rcd 5107
(1988). This was the percentage adopted in the OMB FOIA Fee Guidelines
for Federal personnel benefits to be added to the Federal pay levels
for search purposes. The Freedom of Information Reform Act of 1986;
Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR
10012 (March 27, 1987) (OMB FOIA Fee Guidelines). The FOIA charged OMB
with promulgating ``guidelines * * * which shall provide for a uniform
schedule of fees.'' 5 U.S.C. 552(a)(4)(A)(i). Over the years, we have
updated the benefits section in paragraph 0.467(a)(1) to reflect actual
costs of personnel benefits. In 1994 it was changed to 19 percent (see
Amendment To The Fee Schedule For The Processing Of Requests For Agency
Records Pursuant To The Freedom Of Information Act, 9 FCC Rcd 1810
(1994)) and in 1996 to 20 percent (see Amendment To The Fee Schedule
For The Processing Of Requests For Agency Records Pursuant To The
Freedom Of Information Act, 11 FCC Rcd 3606 (1996)). Because the search
and review fees are to charge for our ``direct costs,'' 5 U.S.C.
552(a)(4)(A)(iv), which includes benefits, it was reasonable to
increase the percentage we added for benefits as those costs rose over
the years, even though OMB never changed the OMB FOIA Fee Guidelines in
this regard.
We amend paragraph (a)(7) to reflect the new definition of
``representative of the news media'' adopted in the OPEN Government
Act, OPEN Government Act, sec. 3, codified at 5 U.S.C.
552(a)(4)(A)(ii). We also amend paragraph (a)(3) to indicate that
dissemination of records by a representative of the news media shall
not be considered to be for a commercial use. See OMB FOIA Fee
Guidelines, 52 FR 10012, 10019 (March 27, 1987) (a request for records
from a representative of the news media ``shall not be considered to be
a request that is for a commercial use.''); National Security Archive
v. Dep't of Defense, 880 F.2d 1381, 1387-88 (DC Cir. 1989).
In section 0.467, which addresses search and review fees, we delete
the chart listing the hourly fee for FCC employees responding to FOIA
requests because the rates change when federal salaries change.
Instead, we provide that changes in the hourly fee will be announced by
Public Notice and will be posted on our FOIA Web site, http://
www.fcc.gov/foia. We also specify in paragraph 0.461(a)(1) that labor
rates for non-FCC employees will be assessed at their actual hourly
cost to the agency. This includes Universal Service Administrative
Company (USAC) personnel, who search for USAC records in response to
FOIA requests. See Inter-Tel Technologies, Inc., 19 FCC Rcd 5204 n.3
(2004).
In section 0.470, we implement the OPEN Government Act section that
waives search fees for commercial and ``all others'' requesters and
waives duplication fees for educational requesters or representatives
of the news media when we fail to comply with FOIA's time limits in
processing a FOIA request. OPEN Government Act, sec. 6(b), codified at
5 U.S.C. 552(a)(4)(A)(viii). See also OIP Guidance: New Limitations on
Assessing Fees (DOJ.OIP November 11, 2008), available at http://
www.usdoj.gov/oip/foiapost/2008foiapost28.htm. We are also codifying
the considerations we take into account when addressing requests for
FOIA fee waivers. These standards are well-established in judicial and
Commission case law, see, e.g., McClellan Ecological Seepage Situation
v. Carlucci, 835 F.2d 1282, 1286 (9th Cir. 1987); Robert J. Robbins,
Call Communications Group., Inc., 21 FCC Rcd 6685 (2006), and are being
set forth in this rule to provide guidance to any FOIA requesters who
seek a fee waiver. We note that simply repeating the language of the
FOIA fee waiver statute is an insufficient basis for requesting or our
granting a fee waiver. We are also adding a new paragraph 0.470(e)(5)
indicating that we generally will not rule on a request for fee waiver
if no fees or de minimis fees (fifteen dollars or less) are involved.
We give a requester ten working days, rather than the previous five, to
provide additional information in certain circumstances. Finally, we
have amended sections 0.451(d) and 0.461(j), and adopted a new section
0.470(g), to make clear that review may be sought for fee
determinations and initial fee waiver decisions.
No Notice and Comment Required. We have determined that the changes
we adopt here are general statements of policy, interpretive rules, or
rules of agency organization, procedure or practice, and are therefore
exempt from the notice and comment requirements of the APA, 5 U.S.C.
553(b)(A) (notice requirements inapplicable to ``interpretive rules,
general statements of policy, or rules of agency organization,
procedure or practice'').
[[Page 14078]]
See Confidentiality R&O, 14 FCC Rcd at 20131 (amending 47 CFR 0.459 and
0.461 without notice and comment), citing Aluminum Co. of America v.
FTC, 589 F. Supp. 169, 178 (S.D.N.Y. 1984) (holding FOIA rules are
procedural rules); United States ex rel. O'Keefe v. McDonnell Douglas
Corp., 132 F.3d 1252, 1255 (8th Cir. 1998) (Touhy regulations deal
exclusively with internal administrative procedure). The substantive
standards for obtaining agency records are set forth in the FOIA. See
generally 5 U.S.C. 552.
Regulatory Flexibility Act, Paperwork Reduction Act, and
Congressional Review Act. Section 603 of the Regulatory Flexibility
Act, as amended (RFA), requires an initial regulatory flexibility
analysis in notice and comment rulemaking proceedings. 5 U.S.C. 603(a).
As we are adopting these rules without notice and comment, no
regulatory flexibility analysis is required. This document does not
contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA). 44 U.S.C. 3501-3520. In addition,
therefore, it does not contain any new or modified ``information
collection burden for small business concerns with fewer than 25
employees,'' pursuant to the Small Business Paperwork Relief Act of
2002. 44 U.S.C. 3506(c)(4). Our FOIA rule amendments are being adopted
without notice and comment, and therefore are not required to be
submitted to Congress under the Congressional Review Act. 5 U.S.C.
804(3)(C) (rules subject to the Congressional Review Act do not include
``any rule of agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties'').
Segregability. It is our intention in adopting these rule changes
that, if any provision of the rules is held invalid by any court of
competent jurisdiction, the remaining provisions shall remain in effect
to the fullest extent permitted by law.
List of Subjects in 47 CFR Part 0
Freedom of information, Government publications, Organization and
functions (Government agencies), Privacy.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 0 as follows:
PART 0--COMMISSION ORGANIZATION
Subpart C--General Information
Public Information and Inspection of Records
0
1. The authority citation continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended: 47 U.S.C. 155,
225, unless otherwise noted.
0
2. Sections 0.441 through 0.470 are revised to read as follows:
Sec.
0.441 General.
0.442 Disclosure to other Federal government agencies of information
submitted to the Commission in confidence.
0.445 Publication availability and use of opinions, orders, policy
statements, interpretations, administrative manuals and staff
instructions.
0.451 Inspection of records: Generally.
0.453 Public reference rooms.
0.455 Other locations at which records may be inspected.
0.457 Records not routinely available for public inspection.
0.458 Nonpublic information.
0.459 Requests that materials or information submitted to the
Commission be withheld from public inspection.
0.460 Requests for inspection of records which are routinely
available for public inspection.
0.461 Requests for inspection of materials not routinely available
for public inspection.
0.463 Demand by competent authority for the production of documents
or testimony concerning information contained therein.
0.465 Request for copies of materials which are available, or made
available, for public inspection.
0.466 Definitions.
0.467 Search and review fees.
0.468 Interest.
0.469 Advance payments.
0.470 Assessment of fees.
Sec. 0.441 General.
(a) Any person desiring to obtain information from the Commission
may do so by contacting the Consumer and Governmental Affairs Bureau
(CGB). Requests for information and general inquiries may be submitted
by:
(1) Internet at http://www.fcc.gov/cgb/fccinfo or http://
www.fcc.gov/foia.
(2) Telephone at 1-888-CALL-FCC (1-888-225-5322).
(3) TDD/TDY at 1-888-TELL-FCC (1-888-835-5322).
(4) Correspondence to: Consumer and Governmental Affairs Bureau,
445 12th Street, SW., Washington, DC 20554.
(5) Visiting the Reference Information Center of the Consumer and
Governmental Affairs Bureau at Room CY-A257 of the Commission's main
office at 445 12th Street, SW., Washington, DC 20554.
(6) Facsimile at 1-866-418-0232.
(7) Contacting the Commission's Copy Contractor, see Sec.
0.465(a).
(b) The Commission's FOIA Public Liaison is available to assist any
person requesting information from the Commission in resolving any
concerns related to a Freedom of Information Act request. See http://
www.fcc.gov/foia/.
Sec. 0.442 Disclosure to other Federal government agencies of
information submitted to the Commission in confidence.
(a) The disclosure of records to other Federal government agencies
is generally governed by the Paperwork Reduction Act, 44 U.S.C. 3510,
rather than the Freedom of Information Act. The acceptance of materials
in confidence under Sec. 0.457 or Sec. 0.459, or any other statute,
rule or Commission order, does not preclude their disclosure to other
federal agencies.
(b) Information submitted to the Commission in confidence pursuant
to Sec. 0.457(c)(2) and (3), (d) and (g) or Sec. 0.459, or any other
statute, rule or order, may be disclosed to other agencies of the
Federal government upon request or upon the Commission's own motion,
provided:
(1) Specific Commission assurances against such disclosure have not
been given;
(2) The other agency has established a legitimate need for the
information;
(3) Disclosure is made subject to the provisions of 44 U.S.C.
3510(b); and
(4) Disclosure is not prohibited by the Privacy Act or other
provisions of law.
(c) The Commission's staff may give assurances against disclosure
of information to other Federal agencies only with the prior written
approval of the General Counsel. In no event will assurance against
disclosure to other agencies be given in advance of submission of the
information to the Commission if submission is required by statute or
by the provisions of this chapter; but the notice provisions of
paragraph (d) of this section will apply to such required submissions.
(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this
section, a party who furnished records to the Commission with a request
for confidential treatment, see Sec. 0.459, will be notified at the
time that the request for disclosure is submitted and will be afforded
ten calendar days in which to submit an opposition to disclosure. This
notification may be made either individually or by public notice.
[[Page 14079]]
(2) If the agency requesting the records provides in writing to the
satisfaction of the Commission that notice to the party who furnished
the records to the Commission will interfere unduly with its law
enforcement, national security or homeland defense activities and
further states that it will notify that party of the Commission's
disclosure once the potential for such interference is eliminated, the
Commission will not give notice of disclosure.
(3) A party who furnished records to the Commission in confidence
will not be afforded prior notice when the disclosure is made to the
Comptroller General of the United States, in the Government
Accountability Office. Such a party will instead be notified of
disclosure of the records to the Comptroller General either
individually or by public notice.
(4) If disclosure is opposed and the Commission decides to make the
records available to the other agency, the party who furnished the
records to the Commission will be afforded ten calendar days from the
date of the ruling to move for a judicial stay of the Commission's
action. If the party does not move for stay within this period, the
records will be disclosed.
(e) Except as provided in paragraph (d)(3) of this section, nothing
in this section is intended to govern disclosure of information to
Congress or the Comptroller General.
Sec. 0.445 Publication, availability and use of opinions, orders,
policy statements, interpretations, administrative manuals, and staff
instructions.
(a) Adjudicatory opinions and orders of the Commission, or its
staff acting on delegated authority, are sent to the parties by mail,
delivery service, or e-mail, unless the Commission determines that
individual delivery would be unduly burdensome and instead issues a
public notice of its decision. As part of the record, these documents
are generally available for inspection in accordance with Sec. 0.453
and Sec. 0.455. In addition, many adjudicatory orders and opinions are
available on the Commission's Web site, http://www.fcc.gov. In
appropriate circumstances, the Commission may redact the copy made
available to the public in order to protect information not routinely
available to the public under Sec. 0.457, which is treated
confidentially pursuant to a request under Sec. 0.459, or which is
confidential pursuant to other statutes, regulations or orders.
(b) Texts adopted by the Commission or a member of its staff on
delegated authority and released through the Office of Media Relations
are published in the FCC Record. Older materials of this nature are
available in the FCC Reports. In the event that such older materials
are not published in the FCC Reports, reference should be made to the
Federal Register or Pike and Fischer Communications Regulation.
(c) All rulemaking documents or summaries thereof are published in
the Federal Register and are available on the Commission's Web site.
The complete text of the Commission decision also is released by the
Commission and is available for inspection and copying during normal
business hours in the Office of Media Relations, the Reference
Information Center, via the Electronic Comment Filing System (ECFS), or
as otherwise specified in the rulemaking document published in the
Federal Register. The complete texts of rulemaking decisions may also
be purchased from the Commission's copy contractor.
(d) Formal policy statements and interpretations designed to have
general applicability are published in the Federal Register, the FCC
Record, FCC Reports, or Pike and Fischer Communications Regulation.
Commission decisions and other Commission documents not entitled formal
policy statements or interpretations may contain substantive
interpretations and statements regarding policy, and these are
published as part of the document in the FCC Record, FCC Reports or
Pike and Fischer Communications Regulation. General statements
regarding policy and interpretations furnished to individuals, in
correspondence or otherwise, are not ordinarily published.
(e) If the documents described in paragraphs (a) through (d) of
this section are published in the Federal Register, the FCC Record, FCC
Reports, or Pike and Fischer Communications Regulation, they are
indexed, and they may be relied upon, used or cited as precedent by the
Commission or private parties in any manner. If they are not so
published, they may not be relied upon, used or cited as precedent,
except against persons who have actual notice of the document in
question or by such persons against the Commission. No person is
expected to comply with any requirement or policy of the Commission
unless he or she has actual notice of that requirement or policy or a
document stating it has been published as provided in this paragraph.
Nothing in this paragraph, however, shall be construed as precluding a
reference to a recent document that is pending publication.
(f) Subparts A and B of this part describe the functions of the
staff and list the matters on which authority has been delegated to the
staff. All general instructions to the staff and limitations upon its
authority are set forth in those subparts or in decisions of the
Commission published in the Federal Register. Instructions to the staff
in particular matters or cases are privileged and/or protected and are
not published or made available for public inspection.
(g) To the extent required to prevent a clearly unwarranted
invasion of personal privacy, or to prevent disclosure of information
required or authorized to be withheld by another statute, the
Commission may delete identifying details or confidential information
when it makes available or publishes any document described in this
section. The justification for any such deletion will be fully
explained in a preamble to the document.
Sec. 0.451 Inspection of records: Generally.
(a) Records which are routinely available for public inspection.
Sections 0.453 and 0.455 list those Commission records which are
routinely available for public inspection and the places at which those
records may be inspected. Procedures governing requests for inspection
of such records are set out in Sec. 0.460.
(b) Records which are not routinely available for public
inspection. Records which are not listed in Sec. 0.453 or Sec. 0.455
are not routinely available for public inspection. Such records fall
into two categories.
(1) The first category consists of those records or kinds of
records listed in Sec. 0.457 and of particular records withheld from
public inspection under Sec. 0.459. The Commission has determined that
there is a statutory basis for withholding these records from public
inspection. In some cases, the Commission is prohibited from permitting
the inspection of records. In other cases, the records are the property
of another agency, and the Commission has no authority to permit their
inspection. In still other cases, the Commission is authorized, for
reason of policy, to withhold records from inspection, but is not
required to do so.
(2) The second category consists of records that are not listed in
Sec. 0.453, Sec. 0.455, or Sec. 0.457 and have not been withheld
from inspection under Sec. 0.459. In some cases, these records have
not been identified for listing. In other cases (e.g., the general
correspondence files), the Commission is unable to determine either
that all records in a class should be routinely available for
inspection or that all records in that class should not
[[Page 14080]]
be routinely available for inspection, and individualized determination
is required.
(3) Procedures governing requests for inspection of these records
are set forth in Sec. 0.461.
(4) Procedures governing demands by competent authority for
inspection of these records are set forth in Sec. 0.463.
(5) Except as provided in Sec. 0.461 and Sec. 0.463, or pursuant
to Sec. 19.735-203 of this chapter, no officer or employee of the
Commission shall permit the inspection of records which are not
routinely available for public inspection under Sec. 0.453 or Sec.
0.455, or disclose information contained therein.
(c) Copies. Section 0.465 applies to requests for copies of
Commission records which are routinely available for public inspection
under Sec. 0.453 and Sec. 0.455 and those which are made available
for inspection under Sec. 0.461. Sections 0.467 and 0.465(c)(3) apply
to requests for certified copies of Commission records.
(d) Search and copying fees. Section 0.465(c)(2) prescribes the per
page fee for copying records made available for inspection under Sec.
0.460 or Sec. 0.461. Section 0.466 prescribes fees to cover the
expense of searching for and reviewing records made available for
inspection under Sec. 0.460 or Sec. 0.461. Review of initial fee
determinations under Sec. 0.467 through Sec. 0.470 and initial fee
reduction or waiver determinations under Sec. 0.470(e) may be sought
under Sec. 0.461(j).
Note to paragraph (d): The Commission may require advance
payment pursuant to Sec. 0.469 before releasing documents.
Sec. 0.453 Public reference rooms.
The Commission maintains the FCC Reference Information Center as
its public reference room at its offices in Washington, DC. Much of the
information available from the public reference room may also be
retrieved from the Commission's main Web site at http://www.fcc.gov and
its electronic reading room at http://www.fcc.gov/foia/e-room.html:
(a) The Reference Information Center. Maintains files containing
the record of all docketed cases, petitions for rule making and related
papers. A file is maintained for each docketed hearing case and for
each docketed rule making proceeding. Cards summarizing the history of
such cases for the years before 1984 are available for inspection.
Information summarizing the history of such cases for the years from
1984 through present is available online on the Electronic Comment
Filing System (ECFS).
(b) Broadcast Services. The following files and documents are
available, including:
(1) Applications for radio and television broadcast station
construction permits, licenses, modifications of facilities, license
renewal, assignments and transfer of control, including any Commission
correspondence or rulings pertaining to those applications;
(2) Petitions to deny, informal objections, and complaints directed
against the stations and/or station applications;
(3) Ownership reports filed by licensees pursuant to Sec. 73.3615
of this chapter;
(4) Television network application contracts, radio and television
time brokerage agreements, and other documents required to be filed
under Sec. 73.3613 of this chapter;
(5) Children's television programming reports filed by commercial
television licensees pursuant to Sec. 73.3526 of this chapter;
(6) Annual DTV ancillary/supplementary services reports filed by
commercial and non-commercial educational digital television licensees
pursuant to Sec. 73.624 of this chapter;
(7) Station requests for declaratory rulings, special temporary
authorizations, and other waivers;
(8) Annual employment reports filed by licensees and permittees of
broadcast stations pursuant to Sec. 73.3612 of this chapter; and.
(9) Responses from licensees to random audits of their Equal
Employment Opportunity programs conducted pursuant to Sec. 73.2080 of
this chapter.
(c) Common Carrier Services, including:
(1) Annual reports filed by carriers under Sec. 43.21 of this
chapter;
(2) Reports of proposed changes in depreciation rates filed by
carriers under Sec. 43.43 of this chapter;
(3) Rate-of-return reports filed by price-cap and rate-of-return
incumbent local exchange carriers under Sec. 65.600 of this chapter;
(4) All applications for common carrier authorizations acted upon
by the Enforcement Bureau, and related files;
(5) All formal and informal complaints against common carriers
filed under Sec. 1.711 through Sec. 1.735 of this chapter, all
documents filed in connection therewith, and all communications related
thereto;
(6) Annual employment reports filed by common carrier licensees or
permittees pursuant to Sec. 1.815 of this chapter;
(7) Enforcement proceedings and public inquiries and related
materials;
(8) Cost Allocation Manuals and related materials;
(9) Currently effective tariffs filed by Communications Common
Carriers pursuant to various FCC Rules and Regulations; and
(10) Recent revisions to tariff filings and the Reference
Information Center Log, which is prepared daily and lists the tariff
filings received the previous day.
(d) Wireless Telecommunications Services and Auction related data
including:
(1) Pending files containing applications for additional facilities
or modifications of existing facilities;
(2) Cellular and Paging Granted Station files and related
materials;
(3) Pending cellular and paging applications and related files;
(4) Electronically stored application and licensing data for
commercial radio operators and for all authorizations in the Wireless
Radio services are available for public inspection via the Commission's
Web site, http://wireless.fcc.gov/uls. Wireless Radio services include
Commercial and Private Mobile Radio, Common Carrier and Private
Operational Field point-to-point Microwave, Local Television
Transmission Service (LTTS), Digital Electronic Message Service (DEMS),
Aviation Ground and Marine Coast applications; and
(5) Petitions and related materials.
(e) International Services as follows, except to the extent they
are excluded from routine public inspection under another section of
this chapter:
(1) Satellite and earth station applications files and related
materials under part 25 of this chapter;
(2) Section 214 applications and related files under part 63 of
this chapter, to the extent that they concern international
communications facilities and services;
(3) International Fixed Public Radio applications and related files
under part 23 of this chapter;
(4) Files relating to submarine cable landing licenses and
applications for such licenses since June 30, 1934, except for maps
showing the exact location of submarine cables, which are withheld from
inspection under sec. 4(j) of the Communications Act, 47 U.S.C. 154(j)
(see Sec. 0.457(c)(1)(i));
(5) International broadcast applications, applications for
permission to deliver programming to foreign stations, and related
files under part 73 of this chapter; and
(6) Contracts and other arrangements filed under Sec. 43.51 of
this chapter, except for those that are filed with a request for
confidential treatment (see
[[Page 14081]]
Sec. 0.459) or are deemed confidential pursuant to sec. 412 of the
Communications Act (see also Sec. 0.457(c)(3)).
(f) Cable and other Multichannel Video Program Distribution
Services. The following files and records are available, including:
(1) Complaints regarding multichannel video programming, all
documents filed in connection therewith, and all communications related
thereto, unless the cable operator has submitted a request pursuant to
Sec. 0.459 that such information not be made routinely available for
public inspection;
(2) Special relief petitions and files pertaining to cable
television operations;
(3) Special relief petitions and files pertaining to DBS television
operations;
(4) Petitions and related documents concerning the enforcement of
regulations governing the installation of over-the-air reception
devices (OTARD) pursuant to Sec. 1.4000 of this chapter;
(5) Filings by cable television operators, including Cable Signal
Leakage Reports (Form 320 and Sec. 76.1804 of this chapter), Cable
System Registration Statements (Sec. 76.1801 of this chapter), Cable
System Operator Changes (Sec. 76.1610 of this chapter), Cable
Aeronautical Frequency Notifications (Sec. 76.1804 of this chapter),
Cable Annual Report (Form 325 and Sec. 76.403 of this chapter), and
filings related to CARS licenses (Part 78 of this chapter).
Note to paragraph (f)(5): This data also is available at http://
www.fcc.gov/coals. Electronic submissions for cable filings
(excluding CARS) are mandatory. Original forms are not available for
information filed electronically, but the Reference Information
Center or the Commission's Copy Contractor may assist in producing
paper copies of information found in the COALS database;
(6) Annual employment reports filed by multichannel video
programming distributors pursuant to Sec. 76.1802 of this chapter; and
(7) Responses from multichannel video programming distributors to
random audits of their Equal Employment Opportunity programs conducted
pursuant to Sec. 76.77 of this chapter.
Sec. 0.455 Other locations at which records may be inspected.
Except as provided in Sec. 0.453, Sec. 0.457, and Sec. 0.459,
records are routinely available for inspection in the Reference
Information Center or the offices of the Bureau or Office which
exercises responsibility over the matters to which those records
pertain (see Sec. 0.5), or will be made available for inspection at
those offices upon request. Upon inquiry to the appropriate Bureau or
Office, persons desiring to inspect such records will be directed to
the specific location at which the particular records may be inspected.
Examples of the records available from Bureaus and Offices are set
forth in paragraphs (a) through (c).
(a) Media Bureau. (1) Rulings under secs. 312(a)(7), 315, and 317
of the Communications Act of 1934, as amended;
(2) All materials associated with a rate proceeding for basic cable
service and associated equipment over which the Commission has assumed
jurisdiction pursuant to Sec. 76.913 of this chapter;
(3) All materials associated with Commission review of franchise
authority decisions concerning the rate charged for the basic cable
service tier and associated equipment pursuant to Sec. 76.944 of this
chapter;
(4) All materials associated with local government requests for
authorization to regulate basic cable rates pursuant to Sec. 76.910 of
this chapter (Form 328);
(5) All materials associated with the certification of Open Video
System (OVS) operators pursuant to Sec. 76.1502 of this chapter;
(6) A list of all registered cable communities is maintained
electronically at http://www.fcc.gov/mb; and
(7) Public notices issued related to CARS licenses, Cable Special
Relief Petitions, and other filings are available electronically at
http://www.fcc.gov/Document_Indexes/Media/.
(b) Office of Managing Director. (1) All minutes of Commission
actions, containing a record of all final votes, minutes of actions and
internal management matters as provided in Sec. 0.457(b)(1) and
(c)(1)(i). These records and files are available for inspection in the
Office of the Secretary.
(2) Files containing information concerning the history of the
Commission's rules. These files are available for inspection in the
Office of the Secretary.
(3) Reports filed by employees pursuant to 5 CFR Parts 2634 and
3902 and applications for inspection of such reports. See Sec.
0.460(k).
(c) International Bureau. (1) The treaties and other international
and bilateral agreements listed in Sec. 73.1650 of this chapter are
available for inspection in the office of the Chief, Strategic Analysis
and Negotiations Division, International Bureau.
(2) Contracts and other arrangement filed under Sec. 43.51 of this
chapter and reports of negotiations regarding foreign communication
matters filed under Sec. 43.52 of this chapter, except those kept
confidential pursuant to sec. 412 of the Communications Act. See Sec.
0.457(c)(3).
(3) Files relating to international settlements under part 64 of
this chapter.
Sec. 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 Sec. 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 Sec. 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.
[[Page 14082]]
(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
Sec. 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 Sec. 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 Sec.
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 Sec. 0.459. A persuasive showing as to the
reasons for inspection will be required in requests submitted under
Sec. 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 Sec. 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, if the U.S. international route is exempt from the
international settlements policy under Sec. 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 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 Sec. 0.459. If it is shown in the request
that the materials contain trade secrets or
[[Page 14083]]
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 Sec. 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 Sec. 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.
Sec. 0.458 Nonpublic information.
Any person regulated by or practicing before the Commission coming
into possession of written nonpublic information (including written
material transmitted in electronic form) as described in Sec. 19.735-
203(a) of this chapter under circumstances where it appears that its
release was inadvertent or otherwise unauthorized shall be obligated to
and shall promptly return the information to the Commission's Office of
Inspector General without further distribution or use. See 47 CFR
19.735-203.
Sec. 0.459 Requests that materials or information submitted to the
Commission be withheld from public inspection.
(a)(1) Any person submitting information or materials to the
Commission may submit therewith a request that such information not be
made routinely available for public inspection. (If the materials are
specifically listed in Sec. 0.457, such a request is unnecessary.) A
copy of the request shall be attached to and shall cover all of the
materials to which it applies and all copies of those materials. If
feasible, the materials to which the request applies shall be
physically separated from any materials to which the request does not
apply; if this is not feasible, the portion of the materials to which
the request applies shall be identified. In the latter circumstance,
where confidential treatment is sought only for a portion of a
document, the person submitting the document shall submit a redacted
version for the public file.
(2) Comments and other materials may not be submitted by means of
the Commission's Electronic Comment Filing System (ECFS) with a request
for confidential treatment under this section.
(3) The Commission may use abbreviated means for indicating that
the submitter of a record seeks confidential treatment, such as a
checkbox enabling the submitter to indicate that the record is
confidential. However, upon receipt of a request for inspection of such
records pursuant to Sec. 0.461, the submitter will be notified of such
request pursuant to Sec. 0.461(d)(3) and will be requested to justify
the confidential treatment of the record, as set forth in paragraph (b)
of this section.
(b) Except as provided in Sec. 0.459(a)(3), each such request
shall contain a statement of the reasons for withholding the materials
from inspection (see Sec. 0.457) and of the facts upon which those
records are based, including:
(1) Identification of the specific information for which
confidential treatment is sought;
(2) Identification of the Commission proceeding in which the
information was submitted or a description of the circumstances giving
rise to the submission;
(3) Explanation of the degree to which the information is
commercial or financial, or contains a trade secret or is privileged;
(4) Explanation of the degree to which the information concerns a
service that is subject to competition;
(5) Explanation of how disclosure of the information could result
in substantial competitive harm;
(6) Identification of any measures taken by the submitting party to
prevent unauthorized disclosure;
(7) Identification of whether the information is available to the
public and the extent of any previous disclosure of the information to
third parties;
(8) Justification of the period during which the submitting party
asserts that material should not be available for public disclosure;
and
(9) Any other information that the party seeking confidential
treatment believes may be useful in assessing whether its request for
confidentiality should be granted.
(c) Casual requests (including simply stamping pages
``confidential'') which do not comply with the requirements of
paragraphs (a) and (b) of this section will not be considered.
(d)(1) If a response in opposition to a confidentiality request is
filed, the party requesting confidentiality may file a reply within ten
business days. All responses or replies filed under this paragraph must
be served on all parties.
(2) Requests which comply with the requirements of paragraphs (a)
and (b) of this section will be acted upon by the appropriate custodian
of records (see Sec. 0.461(d)(1)), who is directed to grant the
request if it demonstrates by a preponderance of the evidence that non-
disclosure is consistent with the provisions of the Freedom of
Information Act, 5 U.S.C. 552. If the request for confidentiality is
granted, the ruling will be placed in the public file in lieu of the
materials withheld from public inspection.
(3) The Commission may defer acting on requests that materials or
information submitted to the Commission be withheld from public
inspection until a request for inspection has been made pursuant to
Sec. 0.460 or Sec. 0.461. The information will be
[[Page 14084]]
accorded confidential treatment, as provided for in Sec. 0.459(g) and
Sec. 0.461, until the Commission acts on the confidentiality request
and all subsequent appeal and stay proceedings have been exhausted.
(e) If the materials are submitted voluntarily (i.e., absent any
requirement by statute, regulation, or the Commission), the person
submitting them may request the Commission to return the materials
without consideration if the request for confidentiality should be
denied. In that event, the materials will ordinarily be returned (e.g.,
an application will be returned if it cannot be considered on a
confidential basis). Only in the unusual instance where the public
interest so requires will the materials be made available for public
inspection. However, no materials submitted with a request for
confidentiality will be returned if a request for inspection has been
filed under Sec. 0.461. If submission of the materials is required by
the Commission and the request for confidentiality is denied, the
materials will be made available for public inspection once the period
for review of the denial has passed.
(f) If no request for confidentiality is submitted, the Commission
assumes no obligation to consider the need for non-disclosure but, in
the unusual instance, may determine on its own motion that the
materials should be withheld from public inspection. See Sec.
0.457(g).
(g) If a request for confidentiality is denied, the person who
submitted the request may, within ten business days, file an
application for review by the Commission. If the application for review
is denied, the person who submitted the request will be afforded ten
business days in which to seek a judicial stay of the ruling. If these
periods expire without action by the person who submitted the request,
the materials will be returned to the person who submitted them or will
be placed in a public file. Notice of denial and of the time for
seeking review or a judicial stay will be given by telephone, with
follow-up notice in writing. The first day to be counted in computing
the time periods established in this paragraph is the day after the
date of oral notice. Materials will be accorded confidential treatment,
as provided in Sec. 0.459(g) and Sec. 0.461, until the Commission
acts on any timely applications for review of an order denying a
request for confidentiality, and until a court acts on any timely
motion for stay of such an order denying confidential treatment.
(h) If the request for confidentiality is granted, the status of
the materials is the same as that of materials listed in Sec. 0.457.
Any person wishing to inspect them may submit a request for inspection
under Sec. 0.461.
(i) Third party owners of materials submitted to the Commission by
another party may participate in the proceeding resolving the
confidentiality of the materials.
Sec. 0.460 Requests for inspection of records which are routinely
available for public inspection.
(a) Sections 0.453 and 0.455 list those Commission records which
are routinely available for public inspection and the places at which
those records may be inspected. Subject to the limitations set out in
this section, a person who wants to inspect such records need only
appear at the specified location and ask to see the records. Many such
records also are available through the Commission's Web site, located
at http://www.fcc.gov and the Commission's electronic reading room,
located on its Web site at http://www.fcc.gov/foia/e-room.html.
Commission documents listed in Sec. 0.416 and Sec. 0.445 are
published in the FCC Record, and many such documents or summaries
thereof are also published in the Federal Register.
(b) A person who wishes to inspect the records must appear at the
specified location during the office hours of the Commission and must
inspect the records at that location. (Procedures governing requests
for copies are set out in Sec. 0.465.) However, arrangements may be
made in advance, by telephone or by correspondence, to make the records
available for inspection on a particular date, and there are many
circumstances in which such advance arrangements will save
inconvenience. If the request is for a large number of documents, for
example, a delay in collecting them is predictable. Current records may
be in use by the staff when the request is made. Older records may have
been forwarded to another location for storage.
(c) The records in question must be reasonably described by the
person requesting them so as to permit their location by staff
personnel. The information needed to locate the records will vary,
depending on the records requested. Advice concerning the kind of
information needed to locate particular records will be furnished in
advance upon request. Members of the public will not be given access to
the area in which records are kept and will not be permitted to search
the files.
(d) If it appears that there will be an appreciable delay in
locating or producing the records (as where a large number of documents
is the subject of a single request or where an extended search for a
document appears to be necessary), the requester may be directed to
submit or confirm the request in writing in appropriate circumstances.
(e)(1) Written requests shall be directed to the Commission's copy
contractor pursuant to the procedures set forth in Sec. 0.465.
Requests shall be captioned ``Request For Inspection Of Records,''
shall be dated, shall list the mailing address, telephone number (if
any) of the person making the request, and the e-mail address (if any)
and for each document requested, shall set out all information known to
the person making the request which would be helpful in identifying and
locating the document. Written requests shall, in addition, specify the
maximum search fee the person making the request is prepared to pay
(see Sec. 0.467).
(2) Written requests shall be delivered or mailed directly to the
Commission's copy contractor (see Sec. 0.465(a)).
(f) When a written request is received by the copy contractor, it
will be date-stamped.
(g) All requests limited to records listed in Sec. 0.453 and Sec.
0.455 will be granted, subject to paragraph (k) of this section.
Requests for records listed in those sections shall not be combined
with requests for other records.
(h) The records will be produced for inspection at the earliest
possible time.
(i) Records shall be inspected within 7 days after notice is given
that they have been located and are available for inspection. After
that period, they will be returned to storage and additional charges
may be imposed for again producing them.
(j) In addition to the other requirements of this section, the
following provisions apply to the reports filed with the Commission
pursuant to 5 CFR Parts 2634 and 3902.
(1) Such reports shall not be obtained or used:
(i) For any unlawful purpose;
(ii) For any commercial purpose, other than by news and
communications media for dissemination to the general public;
(iii) For determining or establishing the credit rating of any
individual; or
(iv) For use, directly or indirectly, in the solicitation of money
for any political, charitable, or other purpose.
(2) Such reports may not be made available to any person nor may
any copy thereof be provided to any person except upon a written
application by such person stating:
(i) That person's name, occupation and address;
[[Page 14085]]
(ii) The name and address of any other person or organization on
whose behalf the inspection or copying is requested; and
(iii) That such person is aware of the prohibitions on the
obtaining or use of the report. Further, any such application for
inspection shall be made available to the public throughout the period
during which the report itself is made available to the public. (Secs.
4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154,
303, 397; 18 U.S.C. 207(j))
Sec. 0.461 Requests for inspection of materials not routinely
available for public inspection.
Any person desiring to inspect Commission records that are not
listed in Sec. 0.453 or Sec. 0.455 shall file a request for
inspection meeting the requirements of this section. The FOIA Public
Liaison is available to assist persons seeking records under this
section. See Sec. 0.441(a).
(a)(1) Records include:
(i) Any information that would be an agency record subject to the
requirements of the Freedom of Information Act when maintained by the
Commission in any format, including an electronic format; and
(ii) Any information maintained for the Commission by an entity
under Government contract, for purposes of records management.
(2) The records in question must be reasonably described by the
person requesting them, so as to permit their location by staff
personnel with a reasonable amount of effort. Whenever possible, a
request should include specific information about each record sought,
such as the title or name, author, recipient, and subject matter of the
record. Requests should also specify the date or time period for the
records sought. The custodian of records sought may contact the
requester to obtain further information about the records sought to
assist in locating them.
(3) The person requesting records under this section may specify
the form or format of the records to be produced provided that the
records may be made readily reproducible in the requested form or
format.
(b)(1) Requests shall be captioned ``Freedom of Information Act
Request,'' shall be dated, shall list the telephone number (if any),
street address, and e-mail address (if any) of the person making the
request, and should reasonably describe, for each document requested
(see Sec. 0.461(a)(1)), all information known to the person making the
request that would be helpful in identifying and locating the document.
(2) The request shall, in addition, specify the maximum search fee
the person making the request is prepared to pay or a request for
waiver or reduction of fees if the requester is eligible (see Sec.
0.470(e)). By filing a FOIA request, the requester agrees to pay all
applicable fees charged under Sec. 0.467, unless the person making the
request seeks a waiver of fees (see Sec. 0.470(e)), in which case the
Commission will rule on the waiver request before proceeding with the
search.
(c) If the records are of the kinds listed in Sec. 0.457 or if
they have been withheld from inspection under Sec. 0.459, the request
shall, in addition, contain a statement of the reasons for inspection
and the facts in support thereof. In the case of other materials, no
such statement need accompany the request, but the custodian of the
records may require the submission of such a statement if he or she
determines that the materials in question may lawfully be withheld from
inspection.
(d)(1) Requests shall be
(i) Delivered or mailed to the Managing Director, FCC, 445--12th
Street, SW., Room 1-A836, Washington, DC 20554;
(ii) Sent by e-mail to foia@fcc.gov;
(iii) Filed electronically though the Internet at http://
www.fcc.gov/foia/#reqform; or
(iv) Sent by facsimile to (202) 418-2826 or (202) 418-0521.
If the request is filed by mail or facsimile, an original and two
copies of the request shall be submitted. If the request is enclosed in
an envelope, the envelope shall be marked, ``Freedom of Information Act
Request.''
(2) For purposes of this section, the custodian of the records is
the Chief of the Bureau or Office where the records are located. The
Chief of the Bureau or Office may designate an appropriate person to
act on a FOIA request.
(3) If the request is for materials submitted to the Commission by
third parties and not open to routine public inspection under Sec.
0.457(d), Sec. 0.459, or another Commission rule or order, or if a
request for confidentiality is pending pursuant to Sec. 0.459, or if
the custodian of records has reason to believe that the information may
contain confidential commercial information, one copy of the request
will be provided by the custodian of the records (see Sec. 0.461(e))
to the person who originally submitted the materials to the Commission.
If there are many persons who originally submitted the records and are
entitled to notice under this paragraph, the custodian of records may
use a public notice to notify the submitters of the request for
inspection. The submitter or submitters will be given ten calendar days
to respond to the FOIA request. See Sec. 0.459(d)(1). If a submitter
has any objection to disclosure, he or she is required to submit a
detailed written statement specifying all grounds for withholding any
portion of the information (see Sec. 0.459). This response shall be
served on the party seeking to inspect the records. The requester may
submit a reply within ten business days unless a different period is
specified by the custodian of records. The reply shall be served on all
parties that filed a response. In the event that a submitter fails to
respond within the time specified, the submitter will be considered to
have no objection to disclosure of the information.
Note to paragraph (d)(3): Under the ex parte rules, Sec.
1.1206(a)(7) of this chapter, a proceeding involving a FOIA request
is a permit-but-disclose proceeding, but is subject to the special
service rules in this paragraph. We also note that while the FOIA
request itself is a permit-but-disclose proceeding, a pleading in a
FOIA proceeding may also constitute a presentation in another
proceeding if it addresses the merits of that proceeding.
(e)(1) When the request is received by the Managing Director, it
will be assigned to the Freedom of Information Act (FOIA) Control
Office, where it will be date-stamped and assigned to the appropriate
custodian of the records. A FOIA request is then considered properly
received. This will occur no later than ten calendar days after the
request is first received by the agency.
(2)(i) Except for the purpose of making a determination regarding
expedited processing under paragraph (h) of this section, the time for
processing a request for inspection of records will be tolled
(A) While the custodian of records seeks reasonable clarification
of the request;
(B) Until clarification with the requester of issues regarding fee
assessment occurs, including:
(1) While there is an unresolved fee waiver issue pending under
Sec. 0.470(e), unless the requester has provided a written statement
agreeing to pay some or all of the fees pending the outcome of the
waiver question;
(2) Following the denial of a fee waiver, unless the requester had
provided a written statement agreeing to pay the fees if the fee waiver
was denied;
(3) Where advance payment is required pursuant to Sec. 0.469 and
has not been made.
(ii) Only one Commission request for information shall be deemed to
toll the time for processing a request for
[[Page 14086]]
inspection of records under Sec. 0.461(e)(2)(i)(A). Such request must
be made no later than ten calendar days after a request is properly
received by the custodian of records under Sec. 0.461(e)(1).
(3) The FOIA Control Office will send an acknowledgement to the
requester notifying the requester of the control number assigned to the
request, the due date of the response, and the telephone contact number
(202-418-0440) to be used by the requester to obtain the status of the
request. Requesters may also obtain the status of an FOIA request via
e-mail at foia@fcc.gov.
(4) Multiple FOIA requests by the same or different FOIA requesters
may be consolidated for disposition. See also Sec. 0.470(b)(2).
(f) Requests for inspection of records will be acted on as follows
by the custodian of the records.
(1) If the Commission is prohibited from disclosing the records in
question, the request for inspection will be denied with a statement
setting forth the specific grounds for denial.
(2)(i) If records in the possession of the Commission are the
property of another agency, the request will be referred to that agency
and the person who submitted the request will be so advised, with the
reasons for referral.
(ii) If it is determined that the FOIA request seeks only records
of another agency or department, the FOIA requester will be so informed
by the FOIA Control Officer and will be directed to the correct agency
or department.
(3) If it is determined that the Commission does not have authority
to withhold the records from public inspection, the request will be
granted.
(4) If it is determined that the Commission does have authority to
withhold the records from public inspection, the considerations
favoring disclosure and non-disclosure will be weighed in light of the
facts presented, and the request will be granted, either conditionally
or unconditionally, or denied.
(5) If there is a statutory basis for withholding part of a
document from inspection, that part will be deleted and the remainder
will be made available for inspection. Records disclosed in part shall
be marked or annotated to show the amount of information deleted unless
doing so would harm an interest protected by an applicable exemption.
The location of the information deleted and the exemption under which
the deletion is made also shall be indicated on the record, if
technically feasible.
(6) In locating and recovering records responsive to an FOIA
request, only those records within the Commission's possession and
control as of the date of its receipt of the request shall be
considered.
(g)(1) The custodian of the records will make every effort to act
on the request within twenty business days after it is received and
date-stamped by the FOIA Control Office.
However, if a request for clarification has been made under Sec.
0.461(e)(2)(i)(A) or an issue is outstanding regarding the payment of
fees for processing the FOIA request is pending under Sec.
0.461(e)(2)(i)(B), the counting of time will start upon resolution of
these requests. If it is not possible to locate the records and to
determine whether they should be made available for inspection within
twenty business days, the custodian may, in any of the following
circumstances, extend the time for action by up to ten business days:
(i) It is necessary to search for and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request.
(ii) It is necessary to search for, collect and appropriately
examine a voluminous amount of separate and distinct records which are
demanded in a single request; or
(iii) It is necessary to consult with another agency having a
substantial interest in the determination of the request, or among two
or more components of the Commission having substantial subject matter
interest therein.
(2) The custodian of the records will notify the requester in
writing of any extension of time exercised pursuant to paragraph (g) of
this section. The custodian of the records may also call the requester
to extend the time provided a subsequent written confirmation is
provided. If it is not possible to locate the records and make the
determination within the extended period, the person or persons who
made the request will be provided an opportunity to limit the scope of
the request so that it may be processed within the extended time limit,
or an opportunity to arrange an alternative time frame for processing
the request or a modified request, and asked to consent to an extension
or further extension. If the requester agrees to an extension, the
custodian of the records will confirm the agreement in a letter or e-
mail specifying the length of the agreed-upon extension. If he or she
does not agree to an extension, the request will be denied, on the
grounds that the custodian has not been able to locate the records and/
or to make the determination within the period for a ruling mandated by
the Freedom of Information Act, 5 U.S.C. 552. In that event, the
custodian will continue to search for and/or assess the records and
will advise the person who made the request of further developments;
but that person may file an application for review by the Commission.
When action is taken by the custodian of the records, written notice of
the action will be given. Records will be made available with the
written notice of action or as soon thereafter as is feasible.
(3) If the custodian of the records grants a request for inspection
of records submitted to the Commission in confidence under Sec.
0.457(d), Sec. 0.459, or some other Commission rule or order, the
custodian of the records will give the submitter written notice of the
decision and of the submitter's right to seek review pursuant to Sec.
0.461(i).
(h)(1) Requesters who seek expedited processing of FOIA requests
shall submit such requests, along with their FOIA requests, to the
Managing Director, as described in Sec. 0.461(d). If the request is
enclosed in an envelope, the envelope shall be marked ``Request for
Expedited Proceeding--FOIA Request.'' An original and two copies of the
request for expedition shall be submitted, but only one copy is
necessary if submitted by e-mail or by the Internet. When the request
is received by the Managing Director, it, and the accompanying FOIA
request, will be assigned to the FOIA Control Office, where it will be
date-stamped and assigned to the custodian of records.
(2) Expedited processing shall be granted to a requester
demonstrating a compelling need that is certified by the requester to
be true and correct to the best of his or her knowledge and belief.
(3) For purposes of this section, compelling need means--
(i) That failure to obtain requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged
in disseminating information, there is an urgency to inform the public
concerning actual or alleged Federal Government activity.
(4)(i) Notice of the determination whether to grant expedited
processing shall be provided to the requester by the custodian of
records within ten calendar days after receipt of the request by the
FOIA Control Office. Once the determination has been made to grant
expedited processing, the custodian
[[Page 14087]]
shall process the FOIA request as soon as practicable.
(ii) If a request for expedited processing is denied, the person
seeking expedited processing may file an application for review within
five business days after the date of the written denial. The
application for review and the envelope containing it (if any) shall be
captioned ``Review of FOIA Expedited Proceeding Request.'' The
application for review shall be delivered or mailed to the General
Counsel. (For general procedures relating to applications for review,
see Sec. 1.115 of this chapter.) The Commission shall act
expeditiously on the application for review, and shall notify the
custodian of records and the requester of the disposition of such an
application for review.
(i)(1) If a request for inspection of records submitted to the
Commission in confidence under Sec. 0.457(d), Sec. 0.459, or another
Commission rule or order is granted in whole or in part, an application
for review may be filed by the person who submitted the records to the
Commission, by a third party owner of the records or by a person with a
personal privacy interest in the records, or by the person who filed
the request for inspection of records within the ten business days
after the date of the written ruling. The application for review and
the envelope containing it (if any) shall be captioned ``Review of
Freedom of Information Action.'' The application for review shall be
filed within ten business days after the date of the written ruling,
shall be delivered or mailed to the General Counsel, and shall be
served on the person who filed the request for inspection of records
and any other parties to the proceeding. The person who filed the
request for inspection of records may respond to the application for
review within ten business days after it is filed.
(2) The first day to be counted in computing the time period for
filing the application for review is the day after the date of the
written ruling. If an application for review is not filed within this
period, the records will be produced for inspection.
(3) If an application for review is denied, the person filing the
application for review will be notified in writing and advised of his
or her rights.
(4) If an application for review filed by the person who submitted,
owns, or has a personal privacy interest in the records to the
Commission is denied, or if the records are made available on review
which were not initially made available, the person will be afforded
ten business days from the date of the written ruling in which to move
for a judicial stay of the Commission's action. The first day to be
counted in computing the time period for seeking a judicial stay is the
day after the date of the written ruling. If a motion for stay is not
made within this period, the records will be produced for inspection.
(j) Except as provided in paragraph (i) of this section, an
application for review of an initial action on a request for inspection
of records, a fee determination (see Sec. 0.467 through Sec. 0.470),
or a fee reduction or waiver decision (see Sec. 0.470(e)) may be filed
only by the person who made the request. The application shall be filed
within 30 calendar days after the date of the written ruling by the
custodian of records. The application for review and the envelope (if
any) shall be captioned, ``Review of Freedom of Information Action.''
The application shall be delivered or mailed to the General Counsel. If
the proceeding involves records subject to confidential treatment under
Sec. 0.457 or Sec. 0.459, or involves a person with an interest as
described in Sec. 0.461(i), the application for review shall be served
on such persons. That person may file a response within ten business
days after the application for review is filed. If the records are made
available for review, the person who submitted them to the Commission
will be afforded ten business days after the date of the written ruling
to seek a judicial stay. See paragraph (i) of this section. The first
day to be counted in computing the time period for filing the
application for review or seeking a judicial stay is the day after the
date of the written ruling.
Note to paragraphs (i) and (j): The General Counsel may review
applications for review with the custodian of records and attempt to
informally resolve outstanding issues with the consent of the
requester. For general procedures relating to applications for
review, see Sec. 1.115 of this chapter.
(k)(1)(i) The Commission will make every effort to act on an
application for review of an action on a request for inspection of
records within twenty business days after it is filed. In the following
circumstances and to the extent time has not been extended under
paragraphs (g)(1)(i), (ii), or (iii) of Sec. 0.461(g) of this section,
the Commission may extend the time for acting on the application for
review up to ten business days. (The total period of extensions taken
under this paragraph and under paragraph (g) of this section without
the consent of the person who submitted the request shall not exceed
ten business days.):
(A) It is necessary to search for and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request;
(B) It is necessary to search for, collect and appropriately
examine a voluminous amount of separate and distinct records which are
demanded in a single request; or
(C) It is necessary to consult with another agency having a
substantial interest in the determination of the request or among two
or more components of the Commission having substantial subject matter
interest therein.
(ii) If these circumstances are not present, the person who made
the request may be asked to consent to an extension or further
extension. If the requester or person who made the request agrees to an
extension, the General Counsel will confirm the agreement in a letter
specifying the length of the agreed-upon extension. If the requestor or
person who made the request does not agree to an extension, the
Commission will continue to search for and/or assess the records and
will advise the person who made the request of further developments;
but that person may file a complaint in an appropriate United States
district court.
(2) The Commission may at its discretion or upon request
consolidate for consideration related applications for review filed
under Sec. 0.461(i) or Sec. 0.461(j).
(l)(1) Subject to the application for review and judicial stay
provisions of paragraphs (i) and (j) of this section, if the request is
granted, the records will be produced for inspection at the earliest
possible time.
(2) If a request for inspection of records becomes the subject of
an action for judicial review before the custodian of records has acted
on the request, or before the Commission has acted on an application
for review, the Commission may continue to consider the request for
production of records.
(m) Staff orders and letters ruling on requests for inspection are
signed by the official (or officials) who give final approval of their
contents. Decisions of the Commission ruling on applications for review
will set forth the names of the Commissioners participating in the
decision.
(n) Records shall be inspected within seven days after notice is
given that they have been located and are available for inspection.
After that period, they will be returned to storage, and additional
charges may be imposed for again producing them.
[[Page 14088]]
Sec. 0.463 Disclosure of Commission records and information in legal
proceedings in which the Commission is a non-party.
(a) This section sets forth procedures to be followed with respect
to the production or disclosure of any material within the custody and
control of the Commission, any information relating to such material,
or any information acquired by any person while employed by the
Commission as part of the person's official duties or because of the
person's official status.
(b) In the event that a demand is made by a court or other
competent authority outside the Commission for the production of
records or testimony (e.g., a subpoena, order, or other demand), the
General Counsel shall promptly be advised of such demand, the nature of
the records or testimony sought, and all other relevant facts and
circumstances. The General Counsel, in consultation with the Managing
Director, will thereupon issue such instructions as he or she may deem
advisable consistent with this subpart.
(c) A party in a court or administrative legal proceeding in which
the Commission is a non-party who wishes to obtain records or testimony
from the Commission shall submit a written request to the General
Counsel. Such request must be accompanied by a statement setting forth
the nature of the proceeding (including any relevant supporting
documentation, e.g., a copy of the Complaint), the relevance of the
records or testimony to the proceeding (including a proffer concerning
the anticipated scope and duration of the testimony), a showing that
other evidence reasonably suited to the requester's needs is not
available from any other source (including a request submitted pursuant
to Sec. 0.460 or Sec. 0.461 of the Commission's rules), and any other
information that may be relevant to the Commission's consideration of
the request for records or testimony. The purpose of the foregoing
requirements is to assist the General Counsel in making an informed
decision regarding whether the production of records or the testimony
should be authorized.
(d) In deciding whether to authorize the release of records or to
permit the testimony of present or former Commission personnel, the
General Counsel, in consultation with the Managing Director, shall
consider the following factors:
(1) Whether the request or demand would involve the Commission in
issues or controversies unrelated to the Commission's mission;
(2) Whether the request or demand is unduly burdensome;
(3) Whether the time and money of the Commission and/or the United
States would be used for private purposes;
(4) The extent to which the time of employees for conducting
official business would be compromised;
(5) Whether the public might misconstrue variances between personal
opinions of employees and Commission policy;
(6) Whether the request or demand demonstrates that the records or
testimony sought are relevant and material to the underlying
proceeding, unavailable from other sources, and whether the request is
reasonable in its scope;
(7) Whether, if the request or demand were granted, the number of
similar requests would have a cumulative effect on the expenditure of
Commission resources;
(8) Whether the requestor has agreed to pay search and review fees
as set forth in Sec. 0.467 of this subpart;
(9) Whether disclosure of the records or the testimony sought would
otherwise be inappropriate under the circumstances; and
(10) Any other factor that is appropriate.
(e) Among those demands and requests in response to which
compliance will not ordinarily be authorized are those with respect to
which any of the following factors exist:
(1) Disclosure of the records or the testimony would violate a
statute, Executive Order, rule, or regulation;
(2) The integrity of the administrative and deliberative processes
of the Commission would be compromised;
(3) Disclosure of the records or the testimony would not be
appropriate under the rules of procedure governing the case or matter
in which the demand arose;
(4) Disclosure of the records, including release in camera, or the
testimony, is not appropriate or required under the relevant
substantive law concerning privilege;
(5) Disclosure of the records, except when in camera and necessary
to assert a claim of privilege, or of the testimony, would reveal
information properly classified or other matters exempt from
unrestricted disclosure; or
(6) Disclosure of the records or the testimony could interfere with
ongoing Commission enforcement proceedings or other legal or
administrative proceedings, compromise constitutional rights, reveal
the identity of an intelligence source or confidential informant, or
disclose trade secrets or similarly confidential commercial or
financial information.
(f) The General Counsel, following consultation with the Managing
Director and any relevant Commission Bureau or Office, is authorized to
approve non-privileged testimony by a present or former employee of the
Commission or the production of non-privileged records in response to a
valid demand issued by competent legal authority, or a request for
records or testimony received under this section, and to assert
governmental privileges on behalf of the Commission in litigation that
may be associated with any such demand or request.
(g) Any employee or former employee of the Commission who receives
a demand for records of the Commission or testimony regarding the
records or activities of the Commission shall promptly notify the
General Counsel so that the General Counsel may take appropriate steps
to protect the Commission's rights.
(Secs. 4(i), 303(r), Communications Act of 1934, as amended, 47
U.S.C. 154(i) and 303(r); 5 U.S.C. 301; 47 CFR 0.231(d))
Sec. 0.465 Request for copies of materials which are available, or
made available, for public inspection.
(a) The Commission awards a contract to a commercial duplication
firm to make copies of Commission records and offer them for sale to
the public. In addition to the charge for copying, the contractor may
charge a search fee for locating and retrieving the requested documents
from the Commission's files.
Note to paragraph (a): The name, address, telephone number, and
schedule of fees for the current copy contractor are published at
the time of contract award of renewal in a public notice and
periodically thereafter. Current information is available at http://
www.fcc.gov/foia and http://www.fcc.gov/cgb. Questions regarding
this information should be directed to the Reference Information
Center of the Consumer and Governmental Affairs Bureau at 202-418-
0270.
(b) Audio or video recordings or transcripts of Commission
proceedings are available to the public through the Commission's
current copy contractor. In some cases, only some of these formats may
be available.
(c)(1) Contractual arrangements which have been entered into with
commercial firms, as described in this section, do not in any way limit
the right of the public to inspect Commission records or to retrieve
whatever information may be desired. Coin-operated and debit card copy
machines are available for use by the public.
(2) The Commission has reserved the right to make copies of its
records for its
[[Page 14089]]
own use or for the use of other agencies of the U.S. Government. When
it serves the regulatory or financial interests of the U.S. Government,
the Commission will make and furnish copies of its records free of
charge. In other circumstances, however, if it should be necessary for
the Commission to make and furnish copies of its records for the use of
others, the fee for this service shall be ten cents ($0.10) per page or
$5 per computer disk in addition to charges for staff time as provided
in Sec. 0.467. For copies prepared with other media, such as computer
tapes, microfiche, videotape, the charge will be the actual direct cost
including operator time. Requests for copying should be accompanied by
a statement specifying the maximum copying fee the person making the
request is prepared to pay. If the Commission estimates that copying
charges are likely to exceed the greater of $25 or the amount which the
requester has indicated that he/she is prepared to pay, then it shall
notify the requester of the estimated amount of fees. Such a notice
shall offer the requester the opportunity to confer with Commission
personnel with the object of revising or clarifying the request.
Note to paragraph (c)(2): The criterion considered in acting on
a waiver request is whether ``waiver or reduction of the fee is in
the public interest because furnishing the information can be
considered as primarily benefiting the general public.'' 5 U.S.C.
552(a)(4)(A). A request for a waiver or reduction of fees will be
decided by the General Counsel as set forth in Sec. 0.470(e).
(3) Certified Documents. Copies of documents which are available or
made available, for inspection under Sec. 0.451 through Sec. 0.465,
will be prepared and certified, under seal, by the Secretary or his or
her designee. Requests shall be in writing, specifying the exact
documents, the number of copies desired, and the date on which they
will be required. The request shall allow a reasonable time for the
preparation and certification of copies. The fee for preparing copies
shall be the same as that charged by the Commission as described in
Sec. 0.465(c)(2). The fee for certification shall be $10 for each
document.
(d)(1) Computer maintained databases produced by the Commission and
available to the public may be obtained from the FCC's Web site at
http://www.fcc.gov or if unavailable on the Commission's Web site, from
the copy contractor.
Note to paragraph (d)(1): The Commission awards a contract to
provide the public with access to FCC databases from the copy
contractor. See note to paragraph (a) of this section.
(2) Copies of computer generated data stored as paper printouts or
electronic media and available to the public may also be obtained from
the Commission's copy contractor (see paragraph (a) of this section).
(3) Copies of computer source programs and associated documentation
produced by the Commission and available to the public may be obtained
from the Office of the Managing Director.
(e) This section does not apply to records available on the
Commission's Web site, http://www.fcc.gov, or printed publications
which may be purchased from the Superintendent of Documents or private
firms (see Sec. 0.411 through Sec. 0.420), nor does it apply to
application forms or information bulletins, which are prepared for the
use and information of the public and are available upon request (see
Sec. 0.421 and Sec. 0.423) or on the Commission's Web site, http://
www.fcc.gov/formpage.html.
(f) Anyone requesting copies of documents pursuant to this section
may either come in person to the Commission (see Sec. 0.461) or
request that the copy contractor fulfill the request. If a request goes
directly to the contractor, the requester will be charged by the
contractor pursuant to the price list set forth in the latest contract.
Sec. 0.466 Definitions.
(a) For the purpose of Sec. 0.467 and Sec. 0.468, the following
definitions shall apply:
(1) The term direct costs means those expenditures which the
Commission actually incurs in searching for and duplicating (and in
case of commercial requesters, reviewing) documents to respond to a
FOIA request. Direct costs include the salary of the employee
performing the work (the basic rate of pay for the employee plus twenty
percent of that rate to cover benefits), and the cost of operating
duplicating machinery. Not included in direct costs are overhead
expenses, such as costs of space, and heating or lighting the facility
in which the records are stored.
(2) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material contained within documents. Such activity
should be distinguished, however, from ``review'' of material in order
to determine whether the material is exempt from disclosure (see
paragraph (a)(3) of this section).
(3) The term review refers to the process of examining documents
located in response to a commercial use request (see paragraph (a)(4)
of this section) to determine whether any portion of a document located
is exempt from disclosure. It also includes processing any documents
for disclosure, e.g., performing such functions that are necessary to
excise them or otherwise prepare them for release. Review does not
include time spent resolving general legal or policy issues regarding
the application of FOIA exemptions.
(4) The term commercial use request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial interests of the requester. In determining whether a
requester properly falls within this category, the Commission shall
determine the use to which a requester will put the documents
requested. Where the Commission has reasonable cause to question the
use to which a requester will put the documents sought, or where that
use is not clear from the request itself, the Commission shall seek
additional clarification before assigning the request to a specific
category. The dissemination of records by a representation of the news
media (see Sec. 0.466(a)(7)) shall not be considered to be for a
commercial use.
(5) The term educational institution refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of professional education and
an institution of vocational education, which operates a program or
programs of scholarly research.
(6) The term non-commercial scientific institution refers to an
institution that is not operated on a commercial basis as that term is
referenced in paragraph (a)(4) of this section, and which is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(7) The term representative of the news media refers to any person
or entity that gathers information of potential interest to a segment
of the public, uses its editorial skills to turn the raw materials into
a distinct work, and distributes that work to an audience. In this
clause, the term news means information that is about current events or
that would be of current interest to the public. Examples of news-media
entities are television or radio stations broadcasting to the public at
large and publishers of periodicals (but only if such entities qualify
as disseminators of news) who make their products available for
purchase or subscription by, or free distribution to, the general
public. These examples are not all-inclusive. Moreover, as methods of
news delivery evolve (for example,
[[Page 14090]]
the adoption of electronic dissemination of newspapers through
telecommunications services), such alternative media shall be
considered to be news-media entities. A freelance journalist shall be
regarded as working for a news-media entity if the journalist can
demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by the
entity. A publication contract would present a solid basis for such an
expectation; the Commission may also consider the past publication
record of the requester in making such a determination. See 5 U.S.C.
552(a)(4)(A)(ii).
(8) The term all other requester refers to any person not within
the definitions in paragraphs (a)(4) through (a)(7) of this paragraph.
(b) [Reserved]
Sec. 0.467 Search and review fees.
(a)(1) Subject to the provisions of this section, an hourly fee
shall be charged for recovery of the full, allowable direct costs of
searching for and reviewing records requested under Sec. 0.460 or
Sec. 0.461, unless such fees are reduced or waived pursuant to Sec.
0.470. The fee is based on the pay grade level of the FCC's employee(s)
who conduct(s) the search or review, or the actual hourly rate of FCC
contractors or other non-FCC personnel who conduct a search.
Note to paragraph (a)(1): The fees for FCC employees will be
modified periodically to correspond with modifications in the rate
of pay approved by Congress and any such modifications will be
announced by public notice and will be posted on the Commission's
Web site, http://www.fcc.gov/foia/#feeschedule.
(2) The fees specified in paragraph (a)(1) of this section are
computed at Step 5 of each grade level based on the General Schedule
and include twenty percent for personnel benefits. Search and review
fees will be assessed in \1/4\ hour increments.
(b) Search fees may be assessed for time spent searching, even if
the Commission fails to locate responsive records or if any records
located are determined to be exempt from disclosure.
(c) The Commission shall charge only for the initial review, i.e.,
the review undertaken initially when the Commission analyzes the
applicability of a specific exemption to a particular record. The
Commission shall not charge for review at the appeal level of an
exemption already applied. However, records or portions of records
withheld in full under an exemption that is subsequently determined not
to apply may be reviewed again to determine the applicability of other
exemptions not previously considered. The costs of such a subsequent
review, under these circumstances, are properly assessable.
(d) The fee charged will not exceed an amount based on the time
typically required to locate records of the kind requested.
(e)(1) If the Commission estimates that search charges are likely
to exceed the greater of $25 or the amount which the requester
indicated he/she is prepared to pay, then it shall notify the requester
of the estimated amount of fees. Such a notice shall offer the
requester the opportunity to confer with Commission personnel with the
object of revising or clarifying the request. See Sec. 0.465(c)(2) and
Sec. 470(d).
(2) The time for processing a request for inspection shall be
tolled while conferring with the requester about his or her willingness
to pay the fees required to process the request. See Sec. 0.461(e).
(f) When the search has been completed, the custodian of the
records will give notice of the charges incurred to the person who made
the request.
(g) The fee shall be paid to the Financial Management Division,
Office of Managing Director, or as otherwise directed by the
Commission.
(h) Records shall be inspected within seven days after notice is
given that they have been located and are available for inspection. See
Sec. 0.461(n). After that period, they will be returned to storage,
and additional charges may be imposed for again producing them.
Sec. 0.468 Interest.
Interest shall be charged those requesters who fail to pay the fees
charged. The agency will begin assessing interest charges on the amount
billed starting on the 31st day following the day on which the billing
was sent. The date on which the payment is received by the agency will
determine whether and how much interest is due. The interest shall be
set at the rate prescribed in 31 U.S.C. 3717.
Sec. 0.469 Advance payments.
(a) The Commission may not require advance payment of estimated
FOIA fees except as provided in paragraph (b) or where the Commission
estimates or determines that allowable charges that a requester may be
required to pay are likely to exceed $250.00 and the requester has no
history of payment. Where allowable charges are likely to exceed
$250.00 and the requester has a history of prompt payment of FOIA fees
the Commission may notify the requester of the estimated cost and
obtain satisfactory assurance of full payment. Notification that fees
may exceed $250.00 is not, however, a prerequisite for collecting fees
above that amount.
(b) Where a requester has previously failed to pay a fee charged in
a timely fashion (i.e., within 30 days of the date of the billing), the
Commission may require the requester to pay the full amount owed plus
any applicable interest as provided in Sec. 0.468, and to make an
advance payment of the full amount of the estimated fee before the
Commission begins to process a new request or a pending request from
that requester.
(c) When the Commission acts under paragraph (a) of this section,
the administrative time limits prescribed in Sec. Sec. 0.461(g) and
(k) (i.e., twenty business days from receipt of initial requests and
twenty business days from receipt of appeals from initial denials, plus
permissible extensions of these time limits (see Sec. 0.461(g)(1)(i)
through (iii) and Sec. 0.461(k)(1)(i) through (iii)) will begin only
after the agency has received the fee payments described in this
section. See Sec. 0.461(e)(2)(ii) and Sec. 0.467(e)(2).
Sec. 0.470 Assessment of fees.
(a)(1) Commercial use requesters. (i) When the Commission receives
a request for documents for commercial use, it will assess charges that
recover the full direct cost of searching for, reviewing and
duplicating the records sought pursuant to Sec. 0.466 and Sec. 0.467,
above.
(ii) Commercial use requesters shall not be assessed search fees if
the Commission fails to comply with the time limits under Sec.
0.461(g)(1), if no unusual or exceptional circumstances (Sec.
0.461(g)(1)(i) through (iii)) apply to the processing of the request.
(2) Educational and non-commercial scientific institution
requesters and requesters who are representatives of the news media.
(i) The Commission shall provide documents to requesters in these
categories for the cost of reproduction only, pursuant to Sec. 0.465
above, excluding reproduction charges for the first 100 pages, provided
however, that requesters who are representatives of the news media
shall be entitled to a reduced assessment of charges only when the
request is for the purpose of distributing information.
(ii) Educational requesters or requesters who are representatives
of the news media shall not be assessed fees for the cost of
reproduction if the Commission fails to comply with the time limits
under Sec. 0.461(g)(1), if no unusual or exceptional circumstances
[[Page 14091]]
(Sec. 0.461(g)(1)(i) through (iii)) apply to the processing of the
request.
(3) All other requesters. (i) The Commission shall charge
requesters who do not fit into any of the categories above fees which
cover the full, reasonable direct cost of searching for and reproducing
records that are responsive to the request, pursuant to Sec. 0.465 and
Sec. 0.467, except that the first 100 pages of reproduction and the
first two hours of search time shall be furnished without charge.
(ii) All other requesters shall not be assessed search fees if the
Commission fails to comply with the time limits under Sec.
0.461(g)(1), if no unusual or exceptional circumstances (Sec.
0.461(g)(1)(i) through (iii)) apply to the processing of the request.
(b)(1) The 100 page restriction on assessment of reproduction fees
in paragraphs (a)(2) and (a)(3) of this section refers to 100 paper
copies of a standard size, which will normally be ``8\1/2\ x 11'' or
``11 x 14,'' or microfiche containing the equivalent of 100 pages or
100 pages of computer printout.
(2) When the agency reasonably believes that a requester or group
of requesters is attempting to segregate a request into a series of
separate individual requests for the purpose of evading the assessment
of fees, the agency will aggregate any such requests and assess charges
accordingly.
(c) When a requester believes he or she is entitled to a reduced
fee assessment pursuant to paragraphs (a)(2) and (a)(3) of this
section, or a waiver pursuant to paragraph (e) of this section, the
requester must include, in his or her original FOIA request, a
statement explaining with specificity, the reasons demonstrating that
he or she qualifies for a reduced fee or a fee waiver. Included in this
statement should be a certification that the information will not be
used to further the commercial interests of the requester.
Note to paragraph (c): Anyone requesting a reduced fee or a fee
waiver must submit the request directly to the Commission and not to
the contractor who will provide documents only at the contract
price.
(d) If the Commission reasonably believes that a commercial
interest exists, based on the information provided pursuant to
paragraph (c) of this section, the requester shall be so notified and
given an additional ten business days to provide further information to
justify receiving a reduced fee. See Sec. 0.467(e)(2). During this
time period, the materials will be available for inspection to the
extent that the time period exceeds the time period for responding to
FOIA requests, as appropriate.
(e)(1) Copying, search and review charges shall be waived or
reduced by the General Counsel when ``disclosure of the information is
in the public interest because it is likely to contribute significantly
to public understanding of the operations or activities of the
government and is not primarily in the commercial interest of the
requester.'' 5 U.S.C. 552(a)(4)(A)(iii). Simply repeating the fee
waiver language of section 552(a)(4)(A)(iii) is not a sufficient basis
to obtain a fee waiver.
(2) The criteria used to determine whether disclosure is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
include:
(i) Whether the subject of the requested records concerns the
operations or activities of the government;
(ii) Whether the disclosure is likely to contribute to an
understanding of government operations or activities; and
(iii) Whether disclosure of the requested information will
contribute to public understanding as opposed to the individual
understanding of the requester or a narrow segment of interested
persons.
(3) The criteria used to determine whether disclosure is primarily
in the commercial interest of the requester include:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so
(ii) Whether the magnitude of the identified commercial interest of
the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester.
(4) This request for fee reduction or waiver must accompany the
initial request for records and will be decided under the same
procedures used for record requests.
(5) If no fees or de minimis fees would result from processing a
FOIA request and a fee waiver or reduction has been sought, the General
Counsel will not reach a determination on the waiver or reduction
request.
(f) Whenever the total fee calculated under this section is $15 or
less, no fee will be charged.
(g) Review of initial fee determinations under Sec. 0.467 through
Sec. 0.470 and initial fee reduction or waiver determinations under
Sec. 0.470(e) may be sought under Sec. 0.461(j).
[FR Doc. E9-7033 Filed 3-27-09; 8:45 am]
BILLING CODE 6712-01-P