Ex Parte Presentations in Commission Proceedings

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 95-21; FCC 99-322]

Ex Parte Presentations in Commission Proceedings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission denies petitions for reconsideration and amends

on its own motion its regulations concerning ex parte presentations in

Commission proceedings, which were comprehensively revised in 1997. The

current amendments modify the rules in minor respects based on the

Commission's experience with the revised rules since 1997. The intended

effect of the current amendments is to further 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.

DATES: Effective January 10, 2000.

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

Counsel (202) 418-1720.

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

Memorandum Opinion and Order, GC Docket No. 95-21, adopted on October

28, 1999, and released November 9, 1999. The full text of the

memorandum opinion and order is available for inspection and copying

during normal business hours in the FCC Reference Center, Room CY-A257,

445 12th Street, SW, Washington DC 20554. The complete text may also be

purchased from the Commission's copy contractor, International

Transcription Service, Inc., Room CY-B400, 445 12th Street, SW,

Washington DC 20554, telephone (202) 314-3070.

Summary of Memorandum Opinion and Order

1. In 1997, the Commission revised its rules governing ex parte

presentations in Commission proceedings. Report and Order, 62 FR 15852

(April 3, 1997). The revision was intended to make the rules simpler

and clearer, and thus more effective in ensuring fairness in Commission

proceedings. The Commission stressed that the ex parte rules are

important and that full compliance is expected.

2. Two law firms, Hogan & Hartson and Lukas, McGowan, Nace &

Gutierrez, seek reconsideration of the revised rules. Hogan & Hartson

contends that the Commission should treat all proceedings as ``permit-

but-disclose'' except for certain quasi-judicial proceedings. Lukas,

McGowan, Nace & Gutierrez proposes that informal complaints under 47

U.S.C. 208 should be treated as ``restricted.'' The Commission finds

both petitions for reconsideration without merit and denies them.

3. The Commission, however, finds that, although its experience

with the revised rules has generally been positive, certain areas

warrant further consideration. The Commission therefore takes the

opportunity to modify the revised rules in certain minor respects. The

modifications are:

A. Parties

1. In proceedings designated for hearing, only persons formally

given party status will be treated as parties for ex parte purposes.

2. The ``viewer/listener'' exception, under which viewers or

listeners do not become parties because they comment on a pending

broadcast application and do not have to serve the broadcaster, is

clarified.

3. Members of Congress and other governmental officials will not

become parties merely by serving a presentation; they will be made

parties only if that is warranted based on an affirmative request for

party status.

4. Petitions to revoke and petitions for orders to show cause will

be treated the same as complaints.

B. Classification of Proceedings

1. Requests for modification of payment arrangements under 47 CFR

64.1001 will be treated as permit-but-disclose instead of restricted.

2. BOC applications to provide in-region interLATA services

pursuant to 47 U.S.C. 271(d), petitions for Commission preemption of

authority to review interconnection agreements under 47 U.S.C.

252(e)(5), and petitions for preemption under 47 U.S.C. 253 will be

treated as permit-but-disclose instead of restricted.

3. Persons filing petitions for declaratory rulings or rulemakings

that seek Commission preemption will be required to serve any state or

local government, the actions of which are cited as a basis for

requesting preemption. Such pleadings that are not served will be

dismissed without consideration as a defective pleading and treated as

a violation of the ex parte rules unless the Commission determines that

the matter should be entertained by making it part of the record under

47 CFR 1.1212(d) and the parties are so informed.

C. Exempt Presentations

1. Presentations between Commission staff and administrators, such

as the Universal Service Administrative Company, will be exempt.

D. Status Inquiries

1. The newly-adopted exemption for oral status inquiries requesting

action by a particular date or giving reasons that a proceeding should

be expedited other than to avoid administrative delay will apply only

in non-hearing proceedings.

[[Page 68947]]

E. Clarifications and Typographical Errors

1. The rules are amended where necessary to clarify them and

eliminate typographical errors.

F. Public Notices

1. The Bureaus and Offices are encouraged to specify the ex parte

status of proceedings when they issue public notices.

Regulatory Flexibility Certification

4. 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. 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. 605(b). The

Commission believes that the rules it adopted will not have a

significant economic impact on a substantial number of small entities.

5. As noted, 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.

6. 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 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. 605(b).

List of Subjects in 47 CFR Part 1

Administrative practice and procedure, Radio, Telecommunications,

Television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 1 of Title 47 of the Code of Federal Regulations are amended

as follows:

PART 1--PRACTICE AND PROCEDURE

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

Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), and

309.

2. Section 1.1202 is amended by revising the note to paragraph (a),

paragraph (d) introductory text, paragraphs (d)(1) through (d)(5) and

by adding note 5 to paragraph (d) to read as follows:

Sec. 1.1202 Definitions.

(a) * * *

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 not designated for hearing 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).

* * * * *

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

following persons are parties:

(1) In a proceeding not designated for hearing, 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 or members of Congress or their staffs or

branches of the federal government or their staffs) 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;

(2) Any person who files a complaint or request to revoke a license

or other authorization or for an order to show cause 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 or 47 U.S.C.

255 and Sec. 5.21, and the person who is the subject of such a

complaint or request that shows service or is a formal complaint under

47 U.S.C. 208 and Sec. 1.721 or 47 U.S.C. 255 and Sec. 5.21;

(3) 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;

(4) In a proceeding designated for hearing, any person who has been

given formal party status; and

(5) 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 5 to paragraph (d): A member of Congress or his or her

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

their staffs will not become a party by service of a written

submission regarding a pending proceeding that has not been

designated for hearing unless the submission affirmatively seeks and

warrants grant of party status.

3. Section 1.1203 is amended by revising paragraph (a) introductory

text to read as follows:

Sec. 1.1203 Sunshine period prohibition.

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

decisionmakers concerning matters listed on a Sunshine Agenda, whether

ex parte or not, are prohibited during the period prescribed in

paragraph (b) of this section unless:

* * * * *

4. Section 1.1204 is amended by revising paragraph (a) introductory

text, paragraphs (a)(6), (a)(9), (a)(10)(iii), and (a)(11), by adding

paragraph (a)(12), and by adding the note to paragraph (b) to read as

follows:

[[Page 68948]]

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 period prohibition (Sec. 1.1203):

* * * * *

(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 or commenter

(in an informal rulemaking or Joint board proceeding) 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;

* * * * *

(9) The presentation is made pursuant to an express or implied

promise of confidentiality to protect an individual from the

possibility of reprisal, or there is a reasonable expectation that

disclosure would endanger the life or physical safety of an individual;

(10) * * *

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

permit-but-disclose requirements, disclosure of any new written

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

information elicited from such request 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;

* * * * *

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

proceeding not designated for hearing requesting action by a particular

date or giving reasons that a proceeding should be expedited other than

the need to avoid administrative delay. A detailed 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.

(12) The presentation is between Commission staff and:

(i) The administrator of the interstate telecommunications relay

services fund relating to administration of the telecommunications

relay services fund pursuant to 47 U.S.C. 225;

(ii) The North American Numbering Plan Administrator or the North

American Numbering Plan Billing and Collection Agent relating to the

administration of the North American Numbering Plan pursuant to 47

U.S.C. 251(e);

(iii) The Universal Service Administrative Company relating to the

administration of universal service support mechanisms pursuant to 47

U.S.C. 254; or

(iv) The Number Portability Administrator relating to the

administration of local number portability pursuant to 47 U.S.C.

251(b)(2) and (e); provided that the relevant administrator has not

filed comments or otherwise participated as a party in the proceeding.

(b) * * *

Note 4 to paragraph (b): In the case of petitions for rulemaking

that seek Commission preemption of state or local regulatory

authority, the petitioner must serve the original petition on any

state or local government, the actions of which are specifically

cited as a basis for requesting preemption. Service should be made

on those bodies within the state or local governments that are

legally authorized to accept service of legal documents in a civil

context. Such pleadings that are not served will be dismissed

without consideration as a defective pleading and treated as a

violation of the ex parte rules unless the Commission determines

that the matter should be entertained by making it part of the

record under Sec. 1.1212(d) and the parties are so informed.

* * * * *

5. Section 1.1206 is amended by adding note 1 to paragraph (a)

introductory text, revising and redesignating note 1 as note 2, and by

revising and redesignating note 2 as note 3, and by adding paragraphs

(a)(12) through (a)(14) to read as follows:

Sec. 1.1206 Permit-but-disclose proceedings.

(a) * * *

Note 1 to paragraph (a) introductory text: In the case of

petitions for declaratory ruling that seek Commission preemption of

state or local regulatory authority, the petitioner must serve the

original petition on any state or local government, the actions of

which are specifically cited as a basis for requesting preemption.

Service should be made on those bodies within the state or local

governments that are legally authorized to accept service of legal

documents in a civil context. Such pleadings that are not served

will be dismissed without consideration as a defective pleading and

treated as a violation of the ex parte rules unless the Commission

determines that the matter should be entertained by making it part

of the record under Sec. 1.1212(d) of this section and the parties

are so informed.

* * * * *

(7) * * *

Note 2 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.

* * * * *

(12) A modification request filed pursuant to Sec. 64.1001 of this

chapter;

(13) Applications by Bell Operating Companies to provide in-region,

interLATA services pursuant to Sec. 271(d) of the Communications Act;

and

(14) Petitions for Commission preemption of authority to review

interconnection agreements under Sec. 252(e)(5) of the Communications

Act and petitions for preemption under Sec. 253 of the Communications

Act.

Note 3 to paragraph (a): In a permit-but-disclose proceeding

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

section, 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.

6. Section 1.1208 is amended by revising the undesignated text to

read as follows:

Sec. 1.1208 Restricted proceedings.

Unless otherwise provided by the Commission or its staff pursuant

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

ex parte presentations exempt under Sec. 1.1204(a) of this section) to

or from Commission decision-making personnel are prohibited in all

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

disclose in Sec. 1.1206(a) of this section 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).

7. Section 1.1210 is revised to read as follows:

[[Page 68949]]

Sec. 1.1210 Prohibition on solicitation of presentations.

No person shall solicit or encourage others to make any improper

presentation under the provisions of this section.

[FR Doc. 99-31620 Filed 12-8-99; 8:45 am]

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