[Code of Federal Regulations]

[Title 47, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 47CFR76.9]



[Page 555-556]

 

                       TITLE 47--TELECOMMUNICATION

 

                    CHAPTER I--FEDERAL COMMUNICATIONS

                         COMMISSION (CONTINUED)

 

PART 76_MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE--Table of Contents

 

                            Subpart A_General

 

Sec. 76.9  Confidentiality of proprietary information.



    (a) Any materials filed in the course of a proceeding under this 

provision may be designated as proprietary by that party if the party 

believes in good faith that the materials fall within an exemption to 

disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C. 

552(b). Any party asserting confidentiality for such materials shall so 

indicate by clearly marking each page, or portion thereof, for which a 

proprietary designation is claimed. If a proprietary designation is 

challenged, the party claiming confidentiality will have the burden of 

demonstrating, by a preponderance of the evidence, that the material 

designated as proprietary falls under the standards for nondisclosure 

enunciated in FOIA.

    (b) Submissions containing information claimed to be proprietary 

under this section shall be submitted to the Commission in confidence 

pursuant to the requirements of Sec. 0.459 of this chapter and clearly 

marked ``Not for Public Inspection.'' An edited version removing all 

proprietary data shall be filed with the Commission for inclusion in the 

public file within five (5) days from the date the unedited reply is 

submitted, and shall be served on the opposing parties.

    (c) Except as provided in paragraph (d) of this section, materials 

marked as proprietary may be disclosed solely to the following persons, 

only for use in the proceeding, and only to the extent



[[Page 556]]



necessary to assist in the prosecution or defense of the case:

    (i) Counsel of record representing the parties in the proceeding and 

any support personnel employed by such attorneys;

    (ii) Officers or employees of the parties in the proceeding who are 

named by another party as being directly involved in the proceeding;

    (iii) Consultants or expert witnesses retained by the parties;

    (iv) The Commission and its staff; and

    (v) Court reporters and stenographers in accordance with the terms 

and conditions of this section.

    (d) The Commission will entertain, subject to a proper showing, a 

party's request to further restrict access to proprietary information as 

specified by the party. The other parties will have an opportunity to 

respond to such requests.

    (e) The persons designated in paragraphs (c) and (d) of this section 

shall not disclose information designated as proprietary to any person 

who is not authorized under this section to receive such information, 

and shall not use the information in any activity or function other than 

the prosecution or defense of the case before the Commission. Each 

individual who is provided access to the information by the opposing 

party shall sign a notarized statement affirmatively stating, or shall 

certify under penalty of perjury, that the individual has personally 

reviewed the Commission's rules and understands the limitations they 

impose on the signing party.

    (f) No copies of materials marked proprietary may be made except 

copies to be used by persons designated in paragraphs (c) and (d) of 

this section. Each party shall maintain a log recording the number of 

copies made of all proprietary material and the persons to whom the 

copies have been provided.

    (g) Upon termination of the complaint proceeding, including all 

appeals and petitions, all originals and reproductions of any 

proprietary materials, along with the log recording persons who received 

copies of such materials, shall be provided to the producing party. In 

addition, upon final termination of the proceeding, any notes or other 

work product derived in whole or in part from the proprietary materials 

of an opposing or third party shall be destroyed.



[64 FR 6571, Feb. 10, 1999]