Ex Parte Presentations in Commission Proceedings

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0 and 1

[GC Docket No. 95-21; FCC 97-92]

Ex Parte Presentations in Commission Proceedings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission amends its regulations concerning ex parte

presentations in Commission proceedings. The new rules simplify the

determination in particular proceedings of whether ex parte

presentations are permissible and whether they must be disclosed. The

proposed rules also modify the Commission's ``Sunshine period

prohibition.'' Certain other minor amendments of the rules are made.

The intended effect of the amendments is to make the rules simpler and

easier to comply with, to enhance the fairness of the Commission's

processes, and to facilitate the public's ability to communicate with

the Commission.

EFFECTIVE DATE: June 2, 1997.

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

Counsel (202) 418-1760.

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

and Order, GC Docket No. 95-21, adopted on March 13, 1997, and released

March 19, 1997. The full text of the report and order 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 Report and Order

1. In this report and order, the Commission revises its rules

governing ex parte presentations in Commission proceedings. The

revision is intended to make the rules simpler and clearer, and thus

more effective in ensuring fairness in Commission proceedings. The

Commission stresses that the ex parte rules are important and that full

compliance is expected.

2. The Commission revises its system for specifying whether

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

which determine how ex parte presentations are treated in that

proceeding subject to specific 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 permit-but-disclose 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 revised rules adopt a simplified system

for determining the status of a proceeding.

3. Under this system, all proceedings not specifically designated

as exempt or permit-but-disclose (either by the rules or by order or

public notice in an individual proceeding) are restricted from the

point that someone becomes a ``party'' to the proceeding. Thus, the

extent of the restriction is governed by the definition of ``party.''

If there is only a single ``party'' (as defined in the ex parte rules)

in a restricted proceeding, the Commission and the party may freely

make presentations to each other because there is no other party to be

served or with a right to be present. If there are additional parties,

then those parties must be served or be given an opportunity to be

present. Under the rules, parties include: (1) any person who files an

application, waiver request, petition, motion, request for a

declaratory ruling, or other filing seeking affirmative relief

(including a Freedom of Information Act request), and any person who

files a written submission referencing and regarding such pending

filing which is served on the filer, or, in the case of an application,

any person filing a mutually exclusive application; (2) any person who

files a complaint which is served on the subject of the complaint or

which is a formal complaint under 47 U.S.C. Sec. 208 and Sec. 1.721 of

our rules, and the person who is the subject of such a complaint; (3)

any person who files a petition to revoke a license or other

authorization or a petition for an order to show cause and the licensee

or entity who is the subject of the petition; (4) the subject of an

order to show cause, hearing designation order, notice of apparent

liability, or similar notice or order, or petition for such notice or

order, or any other person who has otherwise been given formal party

status in a proceeding; and (5) in a rulemaking proceeding (other than

a broadcast allotment proceeding) or a proceeding before a Joint Board

or before the Commission to consider the recommendation of a Joint

Board, the general public. To be deemed a party, a person must make the

relevant filing with the Secretary, the relevant Bureau or Office, or

the Commission as a whole. Written submissions made only to the

Chairman or an individual Commissioner will not confer party status

since such filings do not demonstrate the requisite intent or formality

for party status.

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

exempt. These include (1) notice of inquiry proceedings, (2) petitions

for rulemaking, (3) tariff proceedings before they are set for

investigation, and (4) proceedings involving complaints which are not

served on the target of the complaint, are informal Sec. 208

complaints, or are cable rate complaints not filed on the standard

complaint form.

5. Other proceedings are classified as permit-but-disclose (a term

replacing the former term ``nonrestricted). These

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include: (1) declaratory ruling proceedings; (2) proceedings under 47

U.S.C. Sec. 214(a) that do not involve applications under Title III of

the Communications Act; and (3) Freedom of Information Act requests. As

under current practice, however, the Commission may decide on a case-

by-case basis that because a petition for declaratory relief

predominately concerns the rights of particular parties, it should be

treated as restricted, and may so modify treatment of the proceeding.

Applications for a Cable Landing Act license are similar to Sec. 214

applications (and often filed in conjunction therewith), and the new

rules also expressly subject them to permit-but-disclose procedures,

again provided that no Title III applications are involved. Permit-but-

disclose proceedings also include: (1) tariff investigations which have

been set for investigation under 47 U.S.C. Sec. 204; (2) proceedings

conducted pursuant to 47 U.S.C. Sec. 220(b) for prescription of common

carrier depreciation rates (upon release of a public notice of specific

proposed depreciation rates); and (3) proceedings to prescribe a rate

of return under 47 U.S.C. Sec. 205. Additionally, the Commission will

continue to treat proceedings before a Joint Board or before the

Commission involving a recommendation from a Joint Board as permit-but-

disclose. Proceedings involving cable rate complaints under 47 CFR

Sec. 543(c) and filed on the required form (FCC form 329) will also be

treated as permit-but-disclose.

6. The Commission also makes an exception to its Sunshine period

prohibition. Pursuant to the 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. The Commission exempts

from the prohibition the discussion of recent Commission actions at

widely-attended meetings or symposia.

7. The Commission also modifies the ex parte rules in certain

respects. It gives additional authority to the Office of General

Counsel to evaluate alleged ex parte violations. It increases to at

least two a week the frequency of publishing lists of ex parte

presentations. It also clarifies several aspects of the rules and

codifies some existing interpretations and policies.

Regulatory Flexibility Certification

8. The NPRM (60 FR 8995 (February 16, 1995)) incorporated an

Initial Regulatory Flexibility Analysis (IFRA) of the proposed rules

pursuant to 5 U.S.C. Sec. 605. No comments were received in direct

response to the IFRA. Section 604 of the Regulatory Flexibility Act, as

amended, requires a final regulatory flexibility analysis in a notice

and comment rulemaking proceeding unless the Commission certifies that

``the rule will not, if promulgated, have a significant economic impact

on a substantial number of small entities.'' 5 U.S.C. Sec. 605(b). The

Commission believes that the rules it adopted will not have a

significant economic impact on a substantial number of small entities.

9. As noted above, the Commission's purpose in revising the ex

parte rules is to simplify and clarify them. It finds that the

modifications do not impose any additional compliance burden on persons

dealing with the Commission including small entities. It also finds

that the revised rules clarify the situations in which ex parte

presentations are permissible, when they must be reported on the

record, and when they are prohibited, without significantly changing

the current rules substantively. The Commission believes that the

revised rules do not otherwise affect the rights of persons to

participate as parties in Commission proceedings. It further finds that

there is no reason to believe that operation of the revised rules will

impose any costs on parties in particular proceedings subject to those

rules, beyond those costs incurred under our former rules. Rather, the

Commission anticipates that the revisions will serve to make the rules

easier to comply with and more effective for small entities as well as

others. By increasing the frequency with which the Commission issues

reports of ex parte presentations, the amended rules will make it

easier for small entities and others to determine when ex parte

presentations have occurred.

10. Accordingly, the Commission certifies, pursuant to Section

605(b) of the Regulatory Flexibility Act, as amended by the Contract

with America Advancement Act of 1996 (CWAAA), Public Law No. 104-121,

110 Stat. 847 (1996), that the rules will not have a significant

economic impact on a substantial number of small entities. 5 U.S.C.

Sec. 605(b).

List of Subjects in 47 CFR Parts 0 and 1

Administrative practice and procedure, Radio, Telecommunications,

Television.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Rule Changes

Parts 0 and 1 of Title 47 of the Code of Federal Regulations are

amended as follows:

PART 0--COMMISSION ORGANIZATION

1. The authority citation for Part 0 continues to read as follows:

Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,

225, unless otherwise noted.

2. Section 0.11(a)(9) is revised to read as follows:

Sec. 0.11 Functions of the Office.

(a) * * *

(9) In consultation with the General Counsel, approve waivers of

the applicability of the conflict of interest statutes pursuant to 18

U.S.C. 205 and 208, or initiate necessary actions where other

resolutions of conflicts of interest are called for.

* * * * *

3. Section 0.41(o) is added to read as follows:

Sec. 0.41 Functions of the Office.

* * * * *

(o) To serve as the principal operating office on ex parte matters

involving restricted proceedings. To review and dispose of all ex parte

communications received from the public and others.

4. Section 0.251(h) is added to read as follows:

Sec. 0.251 Authority delegated.

* * * * *

(h) The General Counsel is delegated authority to issue rulings on

whether violations of the ex parte rules have occurred.

PART 1--PRACTICE AND PROCEDURE

5. The authority citation for Part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise

noted.

6. Section 1.1200 is revised to read as follows:

Sec. 1.1200 Introduction.

(a) Purpose. To ensure the fairness and integrity of its decision-

making, the Commission has prescribed rules to

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regulate ex parte presentations in Commission proceedings. These rules

specify ``exempt'' proceedings, in which ex parte presentations may be

made freely (Sec. 1.1204(b)), ``permit-but-disclose'' proceedings, in

which ex parte presentations to Commission decision-making personnel

are permissible but subject to certain disclosure requirements

(Sec. 1.1206), and ``restricted'' proceedings in which ex parte

presentations to and from Commission decision-making personnel are

generally prohibited (Sec. 1.1208). In all proceedings, a certain

period (''the Sunshine Agenda period'') is designated in which all

presentations to Commission decision-making personnel are prohibited

(Sec. 1.1203). The limitations on ex parte presentations described in

this section are subject to certain general exceptions set forth in

Sec. 1.1204(a). Where the public interest so requires in a particular

proceeding, the Commission and its staff retain the discretion to

modify the applicable ex parte rules by order, letter, or public

notice. Joint Boards may modify the ex parte rules in proceedings

before them.

(b) Inquiries concerning the propriety of ex parte presentations

should be directed to the Office of General Counsel.

7. Section 1.1202 is revised to read as follows:

Sec. 1.1202 Definitions.

For the purposes of this subpart, the following definitions apply:

(a) Presentation. A communication directed to the merits or outcome

of a proceeding, including any attachments to a written communication

or documents shown in connection with an oral presentation directed to

the merits or outcome of a proceeding. Excluded from this term are

communications which are inadvertently or casually made, inquiries

concerning compliance with procedural requirements if the procedural

matter is not an area of controversy in the proceeding, statements made

by decisionmakers that are limited to providing publicly available

information about pending proceedings, and inquiries relating solely to

the status of a proceeding, including inquiries as to the approximate

time that action in a proceeding may be taken. However, a status

inquiry which states or implies a view as to the merits or outcome of

the proceeding or a preference for a particular party, which states why

timing is important to a particular party or indicates a view as to the

date by which a proceeding should be resolved, or which otherwise is

intended to address the merits or outcome or to influence the timing of

a proceeding is a presentation.

Note to paragraph (a): A communication expressing concern about

administrative delay or expressing concern that a proceeding be

resolved expeditiously will be treated as a permissible status

inquiry so long as no reason is given as to why the proceeding

should be expedited other than the need to resolve administrative

delay, no view is expressed as to the merits or outcome of the

proceeding, and no view is expressed as to a date by which the

proceeding should be resolved. A presentation by a party in a

restricted proceeding requesting action by a particular date or

giving reasons that a proceeding should be expedited other than the

need to avoid administrative delay (and responsive presentations by

other parties) may be made on an ex parte basis subject to the

provisions of Sec. 1.1204(a)(11).

(b) Ex parte presentation. Any presentation which:

(1) If written, is not served on the parties to the proceeding; or

(2) If oral, is made without advance notice to the parties and

without opportunity for them to be present.

Note to paragraph (b): Written communications include electronic

submissions transmitted in the form of texts, such as by Internet

electronic mail.

(c) Decision-making personnel. Any member, officer, or employee of

the Commission, or, in the case of a Joint Board, its members or their

staffs, who is or may reasonably be expected to be involved in

formulating a decision, rule, or order in a proceeding. Any person who

has been made a party to a proceeding or who otherwise has been

excluded from the decisional process shall not be treated as a

decision-maker with respect to that proceeding. Thus, any person

designated as part of a separate trial staff shall not be considered a

decision-making person in the designated proceeding. Unseparated Bureau

or Office staff shall be considered decision-making personnel with

respect to decisions, rules, and orders in which their Bureau or Office

participates in enacting, preparing, or reviewing.

(d) Party. Unless otherwise ordered by the Commission, the

following persons are parties:

(1) Any person who files an application, waiver request, petition,

motion, request for a declaratory ruling, or other filing seeking

affirmative relief (including a Freedom of Information Act request),

and any person (other than an individual viewer or listener filing

comments regarding a pending broadcast application) filing a written

submission referencing and regarding such pending filing which is

served on the filer, or, in the case of an application, any person

filing a mutually exclusive application;

Note 1 to paragraph (d): Persons who file mutually exclusive

applications for services that the Commission has announced will be

subject to competitive bidding or lotteries shall not be deemed

parties with respect to each others' applications merely because

their applications are mutually exclusive. Therefore, such

applicants may make presentations to the Commission about their own

applications provided that no one has become a party with respect to

their application by other means, e.g., by filing a petition or

other opposition against the applicant or an associated waiver

request, if the petition or opposition has been served on the

applicant.

(2) Any person who files a complaint which shows that the

complainant has served it on the subject of the complaint or which is a

formal complaint under 47 U.S.C. 208 and Sec. 1.721, and the person who

is the subject of such a complaint that shows service or is a formal

complaint under 47 U.S.C. 208 and Sec. 1.721;

(3) Any person who files a petition to revoke a license or other

authorization or who files a petition for an order to show cause and

the licensee or other entity that is the subject of the petition;

(4) The subject of an order to show cause, hearing designation

order, notice of apparent liability, or similar notice or order, or

petition for such notice or order;

(5) Any other person who has otherwise been given formal party

status in a proceeding; and

(6) In an informal rulemaking proceeding conducted under section

553 of the Administrative Procedure Act (other than a proceeding for

the allotment of a broadcast channel) or a proceeding before a Joint

Board or before the Commission to consider the recommendation of a

Joint Board, members of the general public after the issuance of a

notice of proposed rulemaking or other order as provided under

Sec. 1.1206(a)(1) or (2).

Note 2 to paragraph (d): To be deemed a party, a person must

make the relevant filing with the Secretary, the relevant Bureau or

Office, or the Commission as a whole. Written submissions made only

to the Chairman or individual Commissioners will not confer party

status.

Note 3 to paragraph (d): The fact that a person is deemed a

party for purposes of this subpart does not constitute a

determination that such person has satisfied any other legal or

procedural requirements, such as the operative requirements for

petitions to deny or requirements as to timeliness. Nor does it

constitute a determination that such person has any other procedural

rights, such as the right to intervene in hearing proceedings. The

Commission or the staff may also

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determine in particular instances that persons who qualify as

``parties'' under Sec. 1.1202(d) should nevertheless not be deemed

parties for purposes of this subpart.

Note 4 to paragraph (d): Individual listeners or viewers

submitting comments regarding a pending broadcast application

pursuant to Sec. 1.1204(a)(8) will not become parties simply by

service of the comments. The Mass Media Bureau may, in its

discretion, make such a commenter a party, if doing so would be

conducive to the Commission's consideration of the application or

would otherwise be appropriate.

(e) Matter designated for hearing. Any matter that has been

designated for hearing before an administrative law judge or which is

otherwise designated for hearing in accordance with procedures in 5

U.S.C. 554.

8. Section 1.1203 is revised to read as follows:

Sec. 1.1203 Sunshine period prohibition.

(a) With respect to any Commission proceeding, all presentations to

decision-makers concerning matters listed on a Sunshine Agenda, whether

ex parte or not, are prohibited during the period specified by

paragraph (b) of this section:

(1) The presentation is exempt under Sec. 1.1204(a);

(2) The presentation relates to settlement negotiations and

otherwise complies with any ex parte restrictions in this subpart;

(3) The presentation occurs in the course of a widely attended

speech or panel discussion and concerns a Commission action in an

exempt or a permit-but-disclose proceeding that has been adopted (not

including private presentations made on the site of a widely attended

speech or panel discussion); or

(4) The presentation is made by a member of Congress or his or her

staff, or by other agencies or branches of the federal government or

their staffs in a proceeding exempt under Sec. 1.1204 or subject to

permit-but-disclose requirements under Sec. 1.1206. If the presentation

is of substantial significance and clearly intended to affect the

ultimate decision, the presentation (or, if oral, a summary of the

presentation) must be placed in the record of the proceeding by

Commission staff or by the presenter in accordance with the procedures

set forth in Sec. 1.1206(b).

(b) The prohibition set forth in paragraph (a) of this section

applies from the release of a public notice that a matter has been

placed on the Sunshine Agenda until the Commission:

(1) Releases the text of a decision or order relating to the

matter;

(2) Issues a public notice stating that the matter has been deleted

from the Sunshine Agenda; or

(3) Issues a public notice stating that the matter has been

returned to the staff for further consideration, whichever occurs

first.

9. Section 1.1204 is revised to read as follows:

Sec. 1.1204 Exempt ex parte presentations and proceedings.

(a) Exempt ex parte presentations. The following types of

presentations are exempt from the prohibitions in restricted

proceedings (Sec. 1.1208), the disclosure requirements in permit-but-

disclose proceedings (Sec. 1.1206), and the prohibitions during the

Sunshine Agenda and circulation period prohibition (Sec. 1.1203):

(1) The presentation is authorized by statute or by the

Commission's rules to be made without service, see, e.g.,

Sec. 1.333(d), or involves the filing of required forms;

(2) The presentation is made by or to the General Counsel and his

or her staff and concerns judicial review of a matter that has been

decided by the Commission;

(3) The presentation directly relates to an emergency in which the

safety of life is endangered or substantial loss of property is

threatened, provided that, if not otherwise submitted for the record,

Commission staff promptly places the presentation or a summary of the

presentation in the record and discloses it to other parties as

appropriate.

(4) The presentation involves a military or foreign affairs

function of the United States or classified security information;

(5) The presentation is to or from an agency or branch of the

Federal Government or its staff and involves a matter over which that

agency or branch and the Commission share jurisdiction provided that,

any new factual information obtained through such a presentation that

is relied on by the Commission in its decision-making process will, if

not otherwise submitted for the record, be disclosed by the Commission

no later than at the time of the release of the Commission's decision;

(6) The presentation is to or from the United States Department of

Justice or Federal Trade Commission and involves a telecommunications

competition matter in a proceeding which has not been designated for

hearing and in which the relevant agency is not a party provided that,

any new factual information obtained through such a presentation that

is relied on by the Commission in its decision-making process will be

disclosed by the Commission no later than at the time of the release of

the Commission's decision;

Note 1 to paragraph (a): Under paragraphs (a)(5) and (a)(6) of

this section, information will be relied on and disclosure will be

made only after advance coordination with the agency involved in

order to ensure that the agency involved retains control over the

timing and extent of any disclosure that may have an impact on that

agency's jurisdictional responsibilities. If the agency involved

does not wish such information to be disclosed, the Commission will

not disclose it and will disregard it in its decision-making

process, unless it fits within another exemption not requiring

disclosure (e.g., foreign affairs). The fact that an agency's views

are disclosed under paragraphs (a)(5) and (a)(6) does not preclude

further discussions pursuant to, and in accordance with, the

exemption.

(7) The presentation is between Commission staff and an advisory

coordinating committee member with respect to the coordination of

frequency assignments to stations in the private land mobile services

or fixed services as authorized by 47 U.S.C. 332;

(8) The presentation is a written presentation made by a listener

or viewer of a broadcast station who is not a party under

Sec. 1.1202(d)(1), and the presentation relates to a pending

application that has not been designated for hearing for a new or

modified broadcast station or license, for renewal of a broadcast

station license or for assignment or transfer of control of a broadcast

permit or license;

(9) Confidentiality is necessary to protect persons making ex parte

presentations from possible reprisals; or

(10) The presentation is requested by (or made with the advance

approval of) the Commission or staff for the clarification or adduction

of evidence, or for resolution of issues, including possible

settlement, subject to the following limitations:

(i) This exemption does not apply to restricted proceedings

designated for hearing;

(ii) In restricted proceedings not designated for hearing, any new

written information elicited from such request or a summary of any new

oral information elicited from such request shall promptly be served by

the person making the presentation on the other parties to the

proceeding. Information relating to how a proceeding should or could be

settled, as opposed to new information regarding the merits, shall not

be deemed to be new information for purposes of this section. The

Commission or its staff may waive the service requirement if service

would be too burdensome because the parties are

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numerous or because the materials relating to such presentation are

voluminous. If the service requirement is waived, copies of the

presentation or summary shall be placed in the record of the proceeding

and the Commission or its staff shall issue a public notice which

states that copies of the presentation or summary are available for

inspection. The Commission or its staff may determine that service or

public notice would interfere with the effective conduct of an

investigation and dispense with the service and public notice

requirements;

(iii) If the presentation is made in a proceeding subject to

permit-but-disclose requirements, disclosure must be made in accordance

with the requirements of Sec. 1.1206(b), provided, however, that the

Commission or its staff may determine that disclosure would interfere

with the effective conduct of an investigation and dispense with the

disclosure requirement. As in paragraph (a)(10)(ii) of this section,

information relating to how a proceeding should or could be settled, as

opposed to new information regarding the merits, shall not be deemed to

be new information for purposes of this section;

Note 2 to paragraph (a): If the Commission or its staff

dispenses with the service or notice requirement to avoid

interference with an investigation, a determination will be made in

the discretion of the Commission or its staff as to when and how

disclosure should be made if necessary. See Amendment of Subpart H,

Part I, 2 FCC Rcd 6053, 6054 Paras. 10-14 (1987).

(iv) If the presentation is made in a proceeding subject to the

Sunshine period prohibition, disclosure must be made in accordance with

the requirements of Sec. 1.1206(b) or by other adequate means of notice

that the Commission deems appropriate;

(v) In situations where new information regarding the merits is

disclosed during settlement discussions, and the Commission or staff

intends that the product of the settlement discussions will be

disclosed to the other parties or the public for comment before any

action is taken, the Commission or staff in its discretion may defer

disclosure of such new information until comment is sought on the

settlement proposal or the settlement discussions are terminated.

(11) The presentation is an oral presentation in a restricted

proceeding requesting action by a particular date or giving reasons

that a proceeding should be expedited other than the need to avoid

administrative delay. A summary of the presentation shall promptly be

filed in the record and served by the person making the presentation on

the other parties to the proceeding, who may respond in support or

opposition to the request for expedition, including by oral ex parte

presentation, subject to the same service requirement.

(b) Exempt proceedings. Unless otherwise provided by the Commission

or the staff pursuant to Sec. 1.1200(a), ex parte presentations to or

from Commission decision-making personnel are permissible and need not

be disclosed with respect to the following proceedings, which are

referred to as ``exempt'' proceedings:

(1) A notice of inquiry proceeding;

(2) A petition for rulemaking, except for a petition requesting the

allotment of a broadcast channel (see also Sec. 1.1206(a)(1)), or other

request that the Commission modify its rules, issue a policy statement

or issue an interpretive rule, or establish a Joint Board;

(3) A tariff proceeding (including directly associated waiver

requests or requests for special permission) prior to it being set for

investigation (see also Sec. 1.1206(a)(4));

(4) A proceeding relating to prescription of common carrier

depreciation rates under section 220(b) of the Communications Act prior

to release of a public notice of specific proposed depreciation rates

(see also Sec. 1.1206(a)(9));

(5) An informal complaint proceeding under 47 U.S.C. 208 and

Sec. 1.717; and

(6) A complaint against a cable operator regarding its rates that

is not filed on the standard complaint form required by Sec. 76.951 of

this chapter (FCC Form 329).

10. Section 1.1206 is revised to read as follows:

Sec. 1.1206 Permit-but-disclose proceedings.

(a) Unless otherwise provided by the Commission or the staff

pursuant to Sec. 1.1200(a), until the proceeding is no longer subject

to administrative reconsideration or review or to judicial review, ex

parte presentations (other than ex parte presentations exempt under

Sec. 1.1204(a)) to or from Commission decision-making personnel are

permissible in the following proceedings, which are referred to as

permit-but-disclose proceedings, provided that ex parte presentations

to Commission decision-making personnel are disclosed pursuant to

paragraph (b) of this section:

(1) An informal rulemaking proceeding conducted under section 553

of the Administrative Procedure Act other than a proceeding for the

allotment of a broadcast channel, upon release of a Notice of Proposed

Rulemaking (see also Sec. 1.1204(b)(2));

(2) A proceeding involving a rule change, policy statement or

interpretive rule adopted without a Notice of Proposed Rule Making upon

release of the order adopting the rule change, policy statement or

interpretive rule;

(3) A declaratory ruling proceeding;

(4) A tariff proceeding which has been set for investigation under

section 204 or 205 of the Communications Act (including directly

associated waiver requests or requests for special permission) (see

also Sec. 1.1204(b)(4));

(5) Unless designated for hearing, a proceeding under section

214(a) of the Communications Act that does not also involve

applications under Title III of the Communications Act (see also

Sec. 1.1208);

(6) Unless designated for hearing, a proceeding involving an

application for a Cable Landing Act license that does not also involve

applications under Title III of the Communications Act (see also

Sec. 1.1208);

(7) A proceeding involving a request for information filed pursuant

to the Freedom of Information Act;

Note 1 to paragraph (a): Where the requested information is the

subject of a request for confidentiality, the person filing the

request for confidentiality shall be deemed a party.

(8) A proceeding before a Joint Board or a proceeding before the

Commission involving a recommendation from a Joint Board;

(9) A proceeding conducted pursuant to section 220(b) of the

Communications Act for prescription of common carrier depreciation

rates upon release of a public notice of specific proposed depreciation

rates (see also Sec. 1.1204(b)(4));

(10) A proceeding to prescribe a rate of return for common carriers

under section 205 of the Communications Act; and

(11) A cable rate complaint proceeding pursuant to section 623(c)

of the Communications Act where the complaint is filed on FCC Form 329.

Note 2 to paragraph (a): In a permit-but-disclose proceeding

involving only one ``party,'' as defined in Sec. 1.1202(d) of this

subpart, the party and the Commission may freely make presentations

to each other and need not comply with the disclosure requirements

of paragraph (b) of this section.

(b) The following disclosure requirements apply to ex parte

presentations in permit but disclose proceedings:

(1) Written presentations. A person who makes a written ex parte

presentation subject to this section shall, no later than the next

business day after the presentation, submit two

[[Page 15857]]

copies of the presentation to the Commission's secretary under separate

cover for inclusion in the public record. The presentation (and cover

letter) shall clearly identify the proceeding to which it relates,

including the docket number, if any, shall indicate that two copies

have been submitted to the Secretary, and must be labeled as an ex

parte presentation. If the presentation relates to more than one

proceeding, two copies shall be filed for each proceeding.

(2) Oral presentations. A person who makes an oral ex parte

presentation subject to this section that presents data or arguments

not already reflected in that person's written comments, memoranda or

other filings in that proceeding shall, no later than the next business

day after the presentation, submit to the Commission's Secretary, with

copies to the Commissioners or Commission employees involved in the

oral presentation, an original and one copy of a memorandum which

summarizes the new data or arguments. Memoranda must contain a summary

of the substance of the ex parte presentation and not merely a listing

of the subjects discussed. More than a one or two sentence description

of the views and arguments presented is generally required. The

memorandum (and cover letter) shall clearly identify the proceeding to

which it relates, including the docket number, if any, shall indicate

that an original and one copy have been submitted to the Secretary, and

must be labeled as an ex parte presentation. If the presentation

relates to more than one proceeding, two copies of the memorandum (or

an original and one copy) shall be filed for each proceeding.

Note 1 to paragraph (b): Where, for example, presentations occur

in the form of discussion at a widely attended meeting, preparation

of a memorandum as specified in the rule might be cumbersome. Under

these circumstances, the rule may be satisfied by submitting a

transcript or tape recording of the discussion as an alternative to

a memorandum.

(3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section,

in permit-but-disclose proceedings presentations made by members of

Congress or their staffs or by an agency or branch of the Federal

Government or its staff shall be treated as ex parte presentations only

if the presentations are of substantial significance and clearly

intended to affect the ultimate decision. The Commission staff shall

prepare a written summary of any such oral presentations and place them

in the record in accordance with paragraph (b)(2) of this section and

place any such written presentations in the record in accordance with

paragraph (b)(1) of this section.

(4) Notice of ex parte presentations. The Commission's Secretary

or, in the case of non-docketed proceedings, the relevant Bureau or

Office shall place in the public file or record of the proceeding

written ex parte presentations and memoranda reflecting oral ex parte

presentations. The Secretary shall issue a public notice listing any

written ex parte presentations or written summaries of oral ex parte

presentations received by his or her office relating to any permit-but-

disclose proceeding. Such public notices should generally be released

at least twice per week.

Note 2 to paragraph (b): Interested persons should be aware that

some ex parte filings, for example, those not filed in accordance

with the requirements of this paragraph (b), might not be placed on

the referenced public notice. All ex parte presentations and

memoranda filed under this section will be available for public

inspection in the public file or record of the proceeding, and

parties wishing to ensure awareness of all filings should review the

public file or record.

Note 3 to paragraph (b): As a matter of convenience, the

Secretary may also list on the referenced public notices materials,

even if not ex parte presentations, that are filed after the close

of the reply comment period or, if the matter is on reconsideration,

the reconsideration reply comment period.

11. Section 1.1208 is revised to read as follows:

Sec. 1.1208 Restricted proceedings.

Unless otherwise provided by the Commission or its staff pursuant

to Sec. 1.1200(a), ex parte presentations (other than ex parte

presentations exempt under Sec. 1.1204 (a)) are prohibited in all

proceedings not listed as exempt in Sec. 1.1204(b) or permit-but-

disclose in Sec. 1.1206(a) until the proceeding is no longer subject to

administrative reconsideration or review or judicial review.

Proceedings in which ex parte presentations are prohibited, referred to

as ``restricted'' proceedings, include, but are not limited to, all

proceedings that have been designated for hearing, proceedings

involving amendments to the broadcast table of allotments, applications

for authority under Title III of the Communications Act, and all waiver

proceedings (except for those directly associated with tariff filings).

Note 1 to Sec. 1.1208: In a restricted proceeding involving only

one ``party,'' as defined in Sec. 1.1202(d), the party and the

Commission may freely make presentations to each other because there

is no other party to be served or with a right to have an

opportunity to be present. See Sec. 1.1202(b). Therefore, to

determine whether presentations are permissible in a restricted

proceeding without service or notice and an opportunity for other

parties to be present the definition of a ``party'' should be

consulted. Examples: After the filing of an uncontested application

or waiver request, the applicant or other filer would be the sole

party to the proceeding. The filer would have no other party to

serve with or give notice of any presentations to the Commission,

and such presentations would therefore not be ``ex parte

presentations'' as defined by Sec. 1.1202(b) and would not be

prohibited. On the other hand, in the example given, because the

filer is a party, a third person who wished to make a presentation

to the Commission concerning the application or waiver request would

have to serve or notice the filer. Further, once the proceeding

involved additional ``parties'' as defined by Sec. 1.1202(d) (e.g.,

an opponent of the filer who served the opposition on the filer),

the filer and other parties would have to serve or notice all other

parties.

Note 2 to Sec. 1.1208: Consistent with Sec. 1.1200(a), the

Commission or its staff may determine that a restricted proceeding

not designated for hearing involves primarily issues of broadly

applicable policy rather than the rights and responsibilities of

specific parties and specify that the proceeding will be conducted

in accordance with the provisions of Sec. 1.1206 governing permit-

but-disclose proceedings.

12. Section 1.1210 is revised to read as follows:

Sec. 1.1210 Prohibition on solicitation of presentations.

No person shall solicit or encourage others to make any

presentation which he or she is prohibited from making under the

provisions of this subpart.

13. Section 1.1212 is revised to read as follows:

Sec. 1.1212 Procedures for handling of prohibited ex parte

presentations.

(a) Commission personnel who believe that an oral presentation

which is being made to them or is about to be made to them is

prohibited shall promptly advise the person initiating the presentation

that it is prohibited and shall terminate the discussion.

(b) Commission personnel who receive oral ex parte presentations

which they believe are prohibited shall forward to the Office of

General Counsel a statement containing the following information:

(1) The name of the proceeding;

(2) The name and address of the person making the presentation and

that person's relationship (if any) to the parties to the proceeding;

(3) The date and time of the presentation, its duration, and the

circumstances under which it was made;

(4) A full summary of the substance of the presentation;

(5) Whether the person making the presentation persisted in doing

so after

[[Page 15858]]

being advised that the presentation was prohibited; and

(6) The date and time that the statement was prepared.

(c) Commission personnel who receive written ex parte presentations

which they believe are prohibited shall forward them to the Office of

General Counsel. If the circumstances in which the presentation was

made are not apparent from the presentation itself, a statement

describing those circumstances shall be submitted to the Office of

General Counsel with the presentation.

(d) Prohibited written ex parte presentations and all documentation

relating to prohibited written and oral ex parte presentations shall be

placed in a public file which shall be associated with but not made

part of the record of the proceeding to which the presentations

pertain. Such materials may be considered in determining the merits of

a restricted proceeding only if they are made part of the record and

the parties are so informed.

(e) If the General Counsel determines that an ex parte presentation

or presentation during the Sunshine period is prohibited by this

subpart, he or she shall notify the parties to the proceeding that a

prohibited presentation has occurred and shall serve on the parties

copies of the presentation (if written) and any statements describing

the circumstances of the presentation. Service by the General Counsel

shall not be deemed to cure any violation of the rules against

prohibited ex parte presentations.

(f) If the General Counsel determines that service on the parties

would be unduly burdensome because the parties to the proceeding are

numerous, he or she may issue a public notice in lieu of service. The

public notice shall state that a prohibited presentation has been made

and may also state that the presentation and related materials are

available for public inspection.

(g) The General Counsel shall forward a copy of any statement

describing the circumstances in which the prohibited ex parte

presentation was made to the person who made the presentation. Within

ten days thereafter, the person who made the presentation may file with

the General Counsel a sworn declaration regarding the presentation and

the circumstances in which it was made. The General Counsel may serve

copies of the sworn declaration on the parties to the proceeding.

(h) Where a restricted proceeding precipitates a substantial amount

of correspondence from the general public, the procedures in paragraphs

(c) through (g) of this section will not be followed with respect to

such correspondence. The correspondence will be placed in a public file

and be made available for public inspection.

14. Section 1.1214 is revised to read as follows:

Sec. 1.1214 Disclosure of information concerning violations of this

subpart.

Any party to a proceeding or any Commission employee who has

substantial reason to believe that any violation of this subpart has

been solicited, attempted, or committed shall promptly advise the

Office of General Counsel in writing of all the facts and circumstances

which are known to him or her.

15. Section 1.1216 is revised to read as follows:

Sec. 1.1216 Sanctions.

(a) Parties. Upon notice and hearing, any party to a proceeding who

directly or indirectly violates or causes the violation of any

provision of this subpart, or who fails to report the facts and

circumstances concerning any such violation as required by this

subpart, may be disqualified from further participation in that

proceeding. In proceedings other than a rulemaking, a party who has

violated or caused the violation of any provision of this subpart may

be required to show cause why his or her claim or interest in the

proceeding should not be dismissed, denied, disregarded, or otherwise

adversely affected. In any proceeding, such alternative or additional

sanctions as may be appropriate may also be imposed.

(b) Commission personnel. Commission personnel who violate

provisions of this subpart may be subject to appropriate disciplinary

or other remedial action as provided in part 19 of this chapter.

(c) Other persons. Such sanctions as may be appropriate under the

circumstances shall be imposed upon other persons who violate the

provisions of this subpart.

[FR Doc. 97-8042 Filed 4-2-97; 8:45 am]

BILLING CODE 6712-01-P