Daily Rules, Proposed Rules, and Notices of the Federal Government
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,
The Commission committed,
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),
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.
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,
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);
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.
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.
Section 0.460 governs requests for inspection of records that are routinely available for public inspection under
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.
Section 0.459 of our rules addresses requests for confidential treatment.
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.
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.
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.
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.
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.
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.
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,
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,
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),
Freedom of information, Government publications, Organization and functions (Government agencies), Privacy.
Sec. 5, 48 Stat. 1068, as amended: 47 U.S.C. 155, 225, unless otherwise noted.
(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
(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 § 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
(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 § 0.457 or § 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 § 0.457(c)(2) and (3), (d) and (g) or § 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 § 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.
(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.
(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 § 0.453 and § 0.455. In addition, many adjudicatory orders and opinions are available on the Commission's Web site,
(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
(c) All rulemaking documents or summaries thereof are published in the
(d) Formal policy statements and interpretations designed to have general applicability are published in the
(e) If the documents described in paragraphs (a) through (d) of this section are published in the
(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
(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.
(1) The first category consists of those records or kinds of records listed in § 0.457 and of particular records withheld from public inspection under § 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 § 0.453, § 0.455, or § 0.457 and have not been withheld from inspection under § 0.459. In some cases, these records have not been identified for listing. In other cases (
(3) Procedures governing requests for inspection of these records are set forth in § 0.461.
(4) Procedures governing demands by competent authority for inspection of these records are set forth in § 0.463.
(5) Except as provided in § 0.461 and § 0.463, or pursuant to § 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 § 0.453 or § 0.455, or disclose information contained therein.
The Commission may require advance payment pursuant to § 0.469 before releasing documents.
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
(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 § 73.3615 of this chapter;
(4) Television network application contracts, radio and television time brokerage agreements, and other documents required to be filed under § 73.3613 of this chapter;
(5) Children's television programming reports filed by commercial television licensees pursuant to § 73.3526 of this chapter;
(6) Annual DTV ancillary/supplementary services reports filed by commercial and non-commercial educational digital television licensees pursuant to § 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 § 73.3612 of this chapter; and.
(9) Responses from licensees to random audits of their Equal Employment Opportunity programs conducted pursuant to § 73.2080 of this chapter.
(1) Annual reports filed by carriers under § 43.21 of this chapter;
(2) Reports of proposed changes in depreciation rates filed by carriers under § 43.43 of this chapter;
(3) Rate-of-return reports filed by price-cap and rate-of-return incumbent local exchange carriers under § 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 § 1.711 through § 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 § 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.
(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,
(5) Petitions and related materials.
(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 § 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 § 43.51 of this chapter, except for those that are filed with a request for confidential treatment (see
(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 § 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 § 1.4000 of this chapter;
(5) Filings by cable television operators, including Cable Signal Leakage Reports (Form 320 and § 76.1804 of this chapter), Cable System Registration Statements (§ 76.1801 of this chapter), Cable System Operator Changes (§ 76.1610 of this chapter), Cable Aeronautical Frequency Notifications (§ 76.1804 of this chapter), Cable Annual Report (Form 325 and § 76.403 of this chapter), and filings related to CARS licenses (Part 78 of this chapter).
This data also is available at
(6) Annual employment reports filed by multichannel video programming distributors pursuant to § 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 § 76.77 of this chapter.
Except as provided in § 0.453, § 0.457, and § 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 § 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).
(2) All materials associated with a rate proceeding for basic cable service and associated equipment over which the Commission has assumed jurisdiction pursuant to § 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 § 76.944 of this chapter;
(4) All materials associated with local government requests for authorization to regulate basic cable rates pursuant to § 76.910 of this chapter (Form 328);
(5) All materials associated with the certification of Open Video System (OVS) operators pursuant to § 76.1502 of this chapter;
(6) A list of all registered cable communities is maintained electronically at