[Federal Register Volume 62, Number 64 (Thursday, April 3, 1997)]
[Rules and Regulations]
[Pages 15852-15858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8042]


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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

[[Page 15853]]

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

[[Page 15854]]

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

[[Page 15855]]

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

[[Page 15856]]

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