[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