Breaking News

**FCC Proposes Changes to its Ex Parte and Procedural Rules**

February 23 , 2010
printable version

The Federal Communications Commission (FCC) recently adopted two Notices of Proposed Rulemaking (NPRM), one which proposes changes to the Commission’s rules regarding ex parte communications and a second that proposes changes to several of the FCC’s procedures regarding consideration of petitions for reconsideration, docketing, electronic filing and effective dates. Below is a summary of the FCC’s proposals. Both NPRMs included appendices with full drafts of the proposed rules, which we have attached to this memorandum for your reference.

Ex Parte Proposals

According to the Commission, the proposals in the ex parte NPRM are designed to improve the transparency and effectiveness of Commission decision-making. The Commission notes that complaints about ex parte violations are rare, but the FCC has reason to suspect that at least some ex parte notices fail to provide enough information about ex parte meetings. The NPRM requests comment on the following proposals:

Requiring the filing of an ex parte notice for all oral ex parte presentations, regardless of whether the presentation presents new data or arguments.

Requiring the ex parte notice to include a summary of all data and/or arguments presented during the presentation, or providing specific references to data and/or arguments that have already been submitted in the record.

Giving ex parte notice filers two business days to submit notices as opposed to one business day to enable filers to comply with the more stringent filing requirements.

Generally requiring ex parte notices and written presentations to be filed with the FCC electronically through the FCC’s Electronic Comment Filing System (ECFS) unless a docket number is not available or some other impediment prevents electronic filing. The NPRM also seeks comment on whether documents filed via ECFS should be required to be in “machine readable,” i.e., searchable, format. Additionally, the Commission proposes to clarify that the rules already require documents that are shown or given to the Commission staff during ex parte meeting are to be filed.

Requiring that notices for ex parte presentations during the Sunshine Period that are legally permitted by Commission waiver be filed electronically on ECFS within 4 hours of the presentation. Additionally, the filing would need to explain in the first sentence why the ex parte presentation was permissible and the date and time of the presentation.

Allowing staff to file an ex parte summary of a meeting attended by many parties, relieving the obligation of parties to file individual notices. The FCC notes this proposal would simply codify existing practice.

Requiring parties taking part in an exempted ex parte presentation in a restricted proceeding to submit a notice similar to that required in permit-but-disclose proceedings.

In addition to these proposals, the Commission generally seeks comment on the following:

Whether the FCC should prohibit a party from soliciting a request from staff for an ex parte presentation during the Sunshine Period “for the clarification or adduction of evidence, or for the resolution of issues.” Currently, section 1.1203(a)(1) and 1.1204(a)(1) allow for such conduct.

Whether parties taking part in ex parte presentations should be required to submit a “disclosure statement” that would disclose information about the party’s ownership structure and other ownership interests. Because some regulated parties are already required to submit this information to the FCC (e.g., broadcasters’ submission of FCC Form 323), the FCC inquires whether a party could appropriately reference a FCC or other public filing in lieu of providing a disclosure statement. The Commission also seeks comment on what disclosure requirements, if any, should be imposed on individuals who engage in ex parte presentations.

How the ex parte rules should apply to “new media,” such as websites, blogs, Facebook and IdeaScale where comment on issues being considered by the FCC is permitted and the Commission or staff might host or have access to comments by members of the public. The Commission notes that in the past, it has specifically modified its ex parte rules to enable contacts with the Commission through new media.

More generally, the FCC seeks comment on whether the Commission should adopt alternatives to its current practice of allowing oral ex parte presentations. For example, the NPRM cites the Federal Trade Commission’s (FTC) practice of requiring transcripts of oral ex parte meetings (which are rare at the FTC) to be publicly released. The FCC also mentions the Nuclear Regulatory Commission’s practice of taking in oral presentations through informal public meetings. The Commission generally invites comment on these alternatives and any other alternative proposals to the current ex parte meeting practice at the FCC.

Additionally, the NPRM inquires whether more aggressive enforcement of the ex parte rules is necessary, and whether more stringent enforcement would alleviate the need to adopt any of the NPRM’s proposals. The Commission also seeks comment on what types of sanctions should be imposed for different types of ex parte violations.

Procedural Proposals

The procedural proposals, much like the ex parte proposals, are intended to promote efficiency and transparency, while modernizing the FCC’s operations. The NPRM requests comment on the following proposals:

Petitions for Reconsideration

Allowing FCC staff (as opposed to the full Commission) to dismiss petitions for reconsideration that are procedurally defective or merely repeat arguments that the Commission has already rejected.

Encouraging parties to file petitions for reconsideration electronically via ECFS.

Allowing the FCC to, on its own motion and within 30 days, reconsider an action or rule adopted by revising or modifying the action or rule (as opposed to completely overturning the action).

Docketing and Electronic Filing

Expanding the FCC’s docketing procedures to assign docket numbers to as many proceedings as practical, thereby enabling these proceedings to use electronic filing. Specifically, the Commission seeks comment on what types of proceedings (e.g., market modifications, must-carry complaints, etc.) are best suited for docketing, and what procedures are not well-suited for docketing.

Allowing the FCC to more expeditiously terminate dockets. The FCC requests comment on how to determine if a docket is dormant and what procedures should be used to terminate a docket; for instance, whether the FCC should release a public notice identifying dockets the Commission intends to terminate.

Service and Effective Dates

Allowing the FCC, in large proceedings where paper service of pleadings and documents is required by statue or rule, to issue a public notice with instructions on obtaining documents.

Enacting a default effective date for rules in situations where an order does not otherwise specify an effective date. The proposed default effective date would be 30 days after publication of the rule in the Federal Register.

Clarifying that when a Commission action is required by statute or regulation to take place on a holiday, the Commission is legally permitted to act on the next business day.

Comments for both NPRMs will be due 45 days after their publication in the Federal Register and Reply Comments will be due 30 days later.

We would be pleased to respond to any questions regarding these matters.