[Federal Register Volume 60, Number 32 (Thursday, February 16, 1995)]
[Proposed Rules]
[Pages 8995-8996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3935]



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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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