Ex Parte Presentations in Commission Proceedings

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 95-21; FCC 95-52]

Ex Parte Presentations in Commission Proceedings

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes to amend its regulations concerning ex

parte presentations in Commission proceedings. The proposed rules would

simplify the determination in particular proceedings of whether ex

parte presentations are premissible and whether they must be disclosed.

The proposed rules would also modify the Commission's ``sunshine period

prohibition.'' Additionally, the proposed rules would modify in certain

respects the procedures for reporting oral ex parte presentations and

for handling potential violations of the rules. Certain other minor

amendments of the rules are proposed. The intended effect of these

proposals is to make the rules simpler and easier with which to comply,

to enhance the fairness of the Commission's processes, and to

facilitate the public's ability to communicate with the Commission.

DATES: Comments must be filed on or before March 16, 1995; reply

comments must be filed on or before March 31, 1995.

ADDRESSES: Federal Communications Commission, 1919 M Street NW,

Washington D.C. 20554.

FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General

Counsel (202) 418-1760.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice

of Proposed Rulemaking, GC Docket No. 95-21, adopted on February 7,

1995, and released February 7, 1995. The full text of the notice of

proposed rulemaking is available for inspection and copying during

normal business hours in the FCC Reference Center (Room 239), 1919 M

Street NW, Washington D.C. The complete text may also be purchased from

the Commission's copy contractor, International Transcription Service,

Inc., Suite 140, 2100 M Street NW, Washington, D.C. 20037, telephone

(202) 857-3800.

Summary of Further Notice of Proposed Rule Making

1. In this notice, the Commission invites comment on proposals to

revise its rules governing ex parte presentations in Commission

proceedings. The Commission believes that the current rules continue to

be excessively complex, making compliance difficult. Moreover, certain

specific problem areas have become apparent.

2. The Commission proposes to revise its system for specifying

whether proceedings are ``restricted,'' ``permit-but-disclose'' or

``exempt,'' which determine how ex parte presentations are treated in

that proceeding (with certain exceptions). (An ex parte presentation is

a communication to a Commission decisionmaker concerning the outcome or

merits of a proceeding which-if written-is not served on all parties

and-if oral-is made without notice and the opportunity for all parties

to be present.) In restricted proceedings, ex parte presentations are

prohibited. In non-restricted proceedings, ex parte presentations are

permitted but must be disclosed on the record of the proceeding. In

exempt proceedings, ex parte presentations may be made without

limitation. The Commission is proposing a simplified system that would

permit people to rely on broad general rules to determine the status of

a proceeding.

3. Under the proposed system, all proceedings not restricted or

exempt would be subject to permit-but-disclose rules. The rules would

generally classify as restricted only those proceedings required to be

so classified by the Administrative Procedure Act (APA). This would

include proceedings designated for hearing. Consistent with the APA,

proceedings would also be restricted with respect to any person with

knowledge that a designation order was in preparation. Additionally,

proceedings involving mutually exclusive applications not subject to

auction or lottery would be restricted. The Commission or a Bureau or

Office after consultation with OGC could also classify individual

proceedings as restricted on a case-by-case basis.

4. A few matters would continue to be expressly classified as

exempt. These would include notice of inquiry proceedings and

proceedings involving complaints which are not served on the target of

the complaint.

5. All other proceedings, including informal adjudications (such as

an application, waiver request, other filings seeking affirmative

relief) and informal rulemakings, would be subject to permit-but-

disclose rules when ex parte presentations are made. For the purposes

of these ex parte rules, ``parties'' would be defined as those making

filings which initiate adjudicatory-type proceedings and those who make

written submissions regarding the filing party which are served on the

filer. Parties also include other persons formally given party status,

such as the subject of an order to show cause proceeding.

6. In addition, the proposed rules deal specifically with

complaints. They provide that generally in complaint proceedings where

the complaint is served on the target of the complaint, both the

complainant and the target are parties. In formal section 208

proceedings, both the complainant and the carrier would be parties.

Comment is requested on the treatment of informal section 208

complaints.

7. Under this proposal, a sole applicant or other uncontested filer

could freely make presentations to the Commission about its filing. As

long as no other party appeared, these presentations would not be ``ex

parte'' [[Page 8996]] presentations, as defined in the rules, and would

therefore not be subject to permit-but-disclose requirements. Once

another party appeared, both the applicant or filer and the other party

would have to comply with the permit-but-disclose rules, because their

presentations would be ``ex parte.''

8. In rulemaking proceedings, the public would, in effect, be

treated as parties. Thus, the rules would expressly provide that

permit-but-disclose requirements would be triggered by the filing of a

petition for rulemaking, or the issuance of a notice of proposed

rulemaking (or a rulemaking order done without notice and comment) and

would apply to all persons.

9. The Commission also solicits comments as to whether the sunshine

period prohibition should be modified. Under the current rules, once a

proceeding has been placed on a sunshine notice, no presentations,

whether ex parte or not, are permitted until the Commission has

released the full text of the order in the proceeding noticed in the

sunshine notice, deleted the item from the sunshine agenda, or returned

the item for further staff consideration. The prohibition is intended

to give the Commission ``a period of repose'' in which to make

decisions.

10. The Commission asks for comments on whether there should be a

``sunshine period'' once items are adopted on circulation. The

Commission also proposes to exempt from the prohibition the discussion

of recent Commission actions at public meetings or symposia.

11. Additionally, the Commission proposes certain specific

provisions of the ex parte rules. First, the Commission proposes to

give additional authority to the Office of General Counsel to evaluate

alleged ex parte violations. Second, the Commission proposes that

notices of oral ex parte presentations should be more informative by

requiring that a full summary of the contents of the presentation be

filed with respect to all oral presentations, whether or not the

arguments or data presented are ``new.'' Third, the Commission proposes

to require that persons with reason to believe that a situation raises

an ex parte question must alert the Office of General Counsel of this

circumstance.

Initial Regulatory Flexibility Analysis

Reason for Action

The Commission has determined that the rules governing ex parte

communications in Commission proceedings should be made simpler,

clearer, and less restrictive. The Commission finds it appropriate to

reexamine the public interest basis for the limitations on ex parte

communications.

Objective

The Commission seeks to simplify and clarify the rules governing ex

parte communications in Commission proceedings and to make the rules

more consistent with the needs of administrative practice.

Legal Basis

Action is being taken pursuant to 47 U.S.C. Secs. 154(i) and

(j),303(r), 403.

Reporting, Record Keeping and Other Compliance Requirements

This proposal would modify the requirement to report ex parte

presentations in order to increase the usefulness and value of the

reports and to eliminate unnecessary restrictions on ex parte

presentations.

Federal Rules which Overlap, Duplicate or Conflict with the Proposed

Rules

None.

Description, Potential Impact, and Number of Small Entities Affected

Small entities participating in Commission proceedings would be

subject to limitations on ex parte presentations.

Any Significant Alternative Minimizing Impact on Small Entities and

Consistent with the Stated Objections

None.

List of Subjects for 47 CFR Part 1

Administrative practice and procedure, Radio, Telecommunications,

Television.

Federal Communications Commission.

William F. Caton,

Secretary.

[FR Doc. 95-3935 Filed 2-15-95; 8:45 am]

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