[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Rules and Regulations]
[Pages 68946-68949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31620]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

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


Ex Parte Presentations in Commission Proceedings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission denies petitions for reconsideration and amends 
on its own motion its regulations concerning ex parte presentations in 
Commission proceedings, which were comprehensively revised in 1997. The 
current amendments modify the rules in minor respects based on the 
Commission's experience with the revised rules since 1997. The intended 
effect of the current amendments is to further make the rules simpler 
and easier to comply with, to enhance the fairness of the Commission's 
processes, and to facilitate the public's ability to communicate with 
the Commission.

DATES: Effective January 10, 2000.

FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General 
Counsel (202) 418-1720.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order, GC Docket No. 95-21, adopted on October 
28, 1999, and released November 9, 1999. The full text of the 
memorandum opinion and order is available for inspection and copying 
during normal business hours in the FCC Reference Center, Room CY-A257, 
445 12th Street, SW, Washington DC 20554. The complete text may also be 
purchased from the Commission's copy contractor, International 
Transcription Service, Inc., Room CY-B400, 445 12th Street, SW, 
Washington DC 20554, telephone (202) 314-3070.

Summary of Memorandum Opinion and Order

    1. In 1997, the Commission revised its rules governing ex parte 
presentations in Commission proceedings. Report and Order, 62 FR 15852 
(April 3, 1997). The revision was intended to make the rules simpler 
and clearer, and thus more effective in ensuring fairness in Commission 
proceedings. The Commission stressed that the ex parte rules are 
important and that full compliance is expected.
    2. Two law firms, Hogan & Hartson and Lukas, McGowan, Nace & 
Gutierrez, seek reconsideration of the revised rules. Hogan & Hartson 
contends that the Commission should treat all proceedings as ``permit-
but-disclose'' except for certain quasi-judicial proceedings. Lukas, 
McGowan, Nace & Gutierrez proposes that informal complaints under 47 
U.S.C. 208 should be treated as ``restricted.'' The Commission finds 
both petitions for reconsideration without merit and denies them.
    3. The Commission, however, finds that, although its experience 
with the revised rules has generally been positive, certain areas 
warrant further consideration. The Commission therefore takes the 
opportunity to modify the revised rules in certain minor respects. The 
modifications are:

A. Parties

    1. In proceedings designated for hearing, only persons formally 
given party status will be treated as parties for ex parte purposes.
    2. The ``viewer/listener'' exception, under which viewers or 
listeners do not become parties because they comment on a pending 
broadcast application and do not have to serve the broadcaster, is 
clarified.
    3. Members of Congress and other governmental officials will not 
become parties merely by serving a presentation; they will be made 
parties only if that is warranted based on an affirmative request for 
party status.
    4. Petitions to revoke and petitions for orders to show cause will 
be treated the same as complaints.

B. Classification of Proceedings

    1. Requests for modification of payment arrangements under 47 CFR 
64.1001 will be treated as permit-but-disclose instead of restricted.
    2. BOC applications to provide in-region interLATA services 
pursuant to 47 U.S.C. 271(d), petitions for Commission preemption of 
authority to review interconnection agreements under 47 U.S.C. 
252(e)(5), and petitions for preemption under 47 U.S.C. 253 will be 
treated as permit-but-disclose instead of restricted.
    3. Persons filing petitions for declaratory rulings or rulemakings 
that seek Commission preemption will be required to serve any state or 
local government, the actions of which are cited as a basis for 
requesting preemption. Such pleadings that are not served will be 
dismissed without consideration as a defective pleading and treated as 
a violation of the ex parte rules unless the Commission determines that 
the matter should be entertained by making it part of the record under 
47 CFR 1.1212(d) and the parties are so informed.

C. Exempt Presentations

    1. Presentations between Commission staff and administrators, such 
as the Universal Service Administrative Company, will be exempt.

D. Status Inquiries

    1. The newly-adopted exemption for oral status inquiries requesting 
action by a particular date or giving reasons that a proceeding should 
be expedited other than to avoid administrative delay will apply only 
in non-hearing proceedings.

[[Page 68947]]

E. Clarifications and Typographical Errors

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

F. Public Notices

    1. The Bureaus and Offices are encouraged to specify the ex parte 
status of proceedings when they issue public notices.

Regulatory Flexibility Certification

    4. The NPRM (60 FR 8995 (February 16, 1995)) incorporated an 
Initial Regulatory Flexibility Analysis (IFRA) of the proposed rules 
pursuant to 5 U.S.C. 605. No comments were received in direct response 
to the IFRA. Section 604 of the Regulatory Flexibility Act, as amended, 
requires a final regulatory flexibility analysis in a notice and 
comment rulemaking proceeding unless the Commission certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' 5 U.S.C. 605(b). The 
Commission believes that the rules it adopted will not have a 
significant economic impact on a substantial number of small entities.
    5. As noted, the Commission's purpose in revising the ex parte 
rules is to simplify and clarify them. It finds that the modifications 
do not impose any additional compliance burden on persons dealing with 
the Commission including small entities. It also finds that the revised 
rules clarify the situations in which ex parte presentations are 
permissible, when they must be reported on the record, and when they 
are prohibited, without significantly changing the current rules 
substantively. The Commission believes that the revised rules do not 
otherwise affect the rights of persons to participate as parties in 
Commission proceedings. It further finds that there is no reason to 
believe that operation of the revised rules will impose any costs on 
parties in particular proceedings subject to those rules, beyond those 
costs incurred under our former rules. Rather, the Commission 
anticipates that the revisions will serve to make the rules easier to 
comply with and more effective for small entities as well as others. By 
increasing the frequency with which the Commission issues reports of ex 
parte presentations, the amended rules will make it easier for small 
entities and others to determine when ex parte presentations have 
occurred.
    6. Accordingly, the Commission certifies, pursuant to Section 
605(b) of the Regulatory Flexibility Act, as amended by the Contract 
with America Advancement Act of 1996 (CWAAA), Public Law 104-121, 110 
Stat. 847 (1996), that the rules will not have a significant economic 
impact on a substantial number of small entities. 5 U.S.C. 605(b).

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Radio, Telecommunications, 
Television.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations are amended 
as follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), and 
309.

    2. Section 1.1202 is amended by revising the note to paragraph (a), 
paragraph (d) introductory text, paragraphs (d)(1) through (d)(5) and 
by adding note 5 to paragraph (d) to read as follows:


Sec. 1.1202  Definitions.

    (a) * * *

    Note to paragraph (a): A communication expressing concern about 
administrative delay or expressing concern that a proceeding be 
resolved expeditiously will be treated as a permissible status 
inquiry so long as no reason is given as to why the proceeding 
should be expedited other than the need to resolve administrative 
delay, no view is expressed as to the merits or outcome of the 
proceeding, and no view is expressed as to a date by which the 
proceeding should be resolved. A presentation by a party in a 
restricted proceeding not designated for hearing requesting action 
by a particular date or giving reasons that a proceeding should be 
expedited other than the need to avoid administrative delay (and 
responsive presentations by other parties) may be made on an ex 
parte basis subject to the provisions of Sec. 1.1204(a)(11).
* * * * *
    (d) Party. Unless otherwise ordered by the Commission, the 
following persons are parties:
    (1) In a proceeding not designated for hearing, any person who 
files an application, waiver request, petition, motion, request for a 
declaratory ruling, or other filing seeking affirmative relief 
(including a Freedom of Information Act request), and any person (other 
than an individual viewer or listener filing comments regarding a 
pending broadcast application or members of Congress or their staffs or 
branches of the federal government or their staffs) filing a written 
submission referencing and regarding such pending filing which is 
served on the filer, or, in the case of an application, any person 
filing a mutually exclusive application;
    (2) Any person who files a complaint or request to revoke a license 
or other authorization or for an order to show cause which shows that 
the complainant has served it on the subject of the complaint or which 
is a formal complaint under 47 U.S.C. 208 and Sec. 1.721 or 47 U.S.C. 
255 and Sec. 5.21, and the person who is the subject of such a 
complaint or request that shows service or is a formal complaint under 
47 U.S.C. 208 and Sec. 1.721 or 47 U.S.C. 255 and Sec. 5.21;
    (3) The subject of an order to show cause, hearing designation 
order, notice of apparent liability, or similar notice or order, or 
petition for such notice or order;
    (4) In a proceeding designated for hearing, any person who has been 
given formal party status; and
    (5) In an informal rulemaking proceeding conducted under section 
553 of the Administrative Procedure Act (other than a proceeding for 
the allotment of a broadcast channel) or a proceeding before a Joint 
Board or before the Commission to consider the recommendation of a 
Joint Board, members of the general public after the issuance of a 
notice of proposed rulemaking or other order as provided under 
Sec. 1.1206(a) (1) or (2).
* * * * *
    Note 5 to paragraph (d): A member of Congress or his or her 
staff, or other agencies or branches of the federal government or 
their staffs will not become a party by service of a written 
submission regarding a pending proceeding that has not been 
designated for hearing unless the submission affirmatively seeks and 
warrants grant of party status.

    3. Section 1.1203 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec. 1.1203  Sunshine period prohibition.

    (a) With respect to any Commission proceeding, all presentations to 
decisionmakers concerning matters listed on a Sunshine Agenda, whether 
ex parte or not, are prohibited during the period prescribed in 
paragraph (b) of this section unless:
* * * * *
    4. Section 1.1204 is amended by revising paragraph (a) introductory 
text, paragraphs (a)(6), (a)(9), (a)(10)(iii), and (a)(11), by adding 
paragraph (a)(12), and by adding the note to paragraph (b) to read as 
follows:

[[Page 68948]]

Sec. 1.1204  Exempt ex parte presentations and proceedings.

    (a) Exempt ex parte presentations. The following types of 
presentations are exempt from the prohibitions in restricted 
proceedings (Sec. 1.1208), the disclosure requirements in permit-but-
disclose proceedings (Sec. 1.1206), and the prohibitions during the 
Sunshine Agenda period prohibition (Sec. 1.1203):
* * * * *
    (6) The presentation is to or from the United States Department of 
Justice or Federal Trade Commission and involves a telecommunications 
competition matter in a proceeding which has not been designated for 
hearing and in which the relevant agency is not a party or commenter 
(in an informal rulemaking or Joint board proceeding) provided that, 
any new factual information obtained through such a presentation that 
is relied on by the Commission in its decision-making process will be 
disclosed by the Commission no later than at the time of the release of 
the Commission's decision;
* * * * *
    (9) The presentation is made pursuant to an express or implied 
promise of confidentiality to protect an individual from the 
possibility of reprisal, or there is a reasonable expectation that 
disclosure would endanger the life or physical safety of an individual;
    (10) * * *
    (iii) If the presentation is made in a proceeding subject to 
permit-but-disclose requirements, disclosure of any new written 
information elicited from such request or a summary of any new oral 
information elicited from such request must be made in accordance with 
the requirements of Sec. 1.1206(b), provided, however, that the 
Commission or its staff may determine that disclosure would interfere 
with the effective conduct of an investigation and dispense with the 
disclosure requirement. As in paragraph (a)(10)(ii) of this section, 
information relating to how a proceeding should or could be settled, as 
opposed to new information regarding the merits, shall not be deemed to 
be new information for purposes of this section;
* * * * *
    (11) The presentation is an oral presentation in a restricted 
proceeding not designated for hearing requesting action by a particular 
date or giving reasons that a proceeding should be expedited other than 
the need to avoid administrative delay. A detailed summary of the 
presentation shall promptly be filed in the record and served by the 
person making the presentation on the other parties to the proceeding, 
who may respond in support or opposition to the request for expedition, 
including by oral ex parte presentation, subject to the same service 
requirement.
    (12) The presentation is between Commission staff and:
    (i) The administrator of the interstate telecommunications relay 
services fund relating to administration of the telecommunications 
relay services fund pursuant to 47 U.S.C. 225;
    (ii) The North American Numbering Plan Administrator or the North 
American Numbering Plan Billing and Collection Agent relating to the 
administration of the North American Numbering Plan pursuant to 47 
U.S.C. 251(e);
    (iii) The Universal Service Administrative Company relating to the 
administration of universal service support mechanisms pursuant to 47 
U.S.C. 254; or
    (iv) The Number Portability Administrator relating to the 
administration of local number portability pursuant to 47 U.S.C. 
251(b)(2) and (e); provided that the relevant administrator has not 
filed comments or otherwise participated as a party in the proceeding.
    (b) * * *

    Note 4 to paragraph (b): In the case of petitions for rulemaking 
that seek Commission preemption of state or local regulatory 
authority, the petitioner must serve the original petition on any 
state or local government, the actions of which are specifically 
cited as a basis for requesting preemption. Service should be made 
on those bodies within the state or local governments that are 
legally authorized to accept service of legal documents in a civil 
context. Such pleadings that are not served will be dismissed 
without consideration as a defective pleading and treated as a 
violation of the ex parte rules unless the Commission determines 
that the matter should be entertained by making it part of the 
record under Sec. 1.1212(d) and the parties are so informed.
* * * * *
    5. Section 1.1206 is amended by adding note 1 to paragraph (a) 
introductory text, revising and redesignating note 1 as note 2, and by 
revising and redesignating note 2 as note 3, and by adding paragraphs 
(a)(12) through (a)(14) to read as follows:


Sec. 1.1206  Permit-but-disclose proceedings.

    (a) * * *

    Note 1 to paragraph (a) introductory text: In the case of 
petitions for declaratory ruling that seek Commission preemption of 
state or local regulatory authority, the petitioner must serve the 
original petition on any state or local government, the actions of 
which are specifically cited as a basis for requesting preemption. 
Service should be made on those bodies within the state or local 
governments that are legally authorized to accept service of legal 
documents in a civil context. Such pleadings that are not served 
will be dismissed without consideration as a defective pleading and 
treated as a violation of the ex parte rules unless the Commission 
determines that the matter should be entertained by making it part 
of the record under Sec. 1.1212(d) of this section and the parties 
are so informed.
* * * * *
    (7) * * *

    Note 2 to paragraph (a): Where the requested information is the 
subject of a request for confidentiality, the person filing the 
request for confidentiality shall be deemed a party.
* * * * *
    (12) A modification request filed pursuant to Sec. 64.1001 of this 
chapter;
    (13) Applications by Bell Operating Companies to provide in-region, 
interLATA services pursuant to Sec. 271(d) of the Communications Act; 
and
    (14) Petitions for Commission preemption of authority to review 
interconnection agreements under Sec. 252(e)(5) of the Communications 
Act and petitions for preemption under Sec. 253 of the Communications 
Act.

    Note 3 to paragraph (a): In a permit-but-disclose proceeding 
involving only one ``party,'' as defined in Sec. 1.1202(d) of this 
section, the party and the Commission may freely make presentations 
to each other and need not comply with the disclosure requirements 
of paragraph (b) of this section.

    6. Section 1.1208 is amended by revising the undesignated text to 
read as follows:


Sec. 1.1208  Restricted proceedings.

    Unless otherwise provided by the Commission or its staff pursuant 
to Sec. 1.1200(a) of this section, ex parte presentations (other than 
ex parte presentations exempt under Sec. 1.1204(a) of this section) to 
or from Commission decision-making personnel are prohibited in all 
proceedings not listed as exempt in Sec. 1.1204(b) or permit-but-
disclose in Sec. 1.1206(a) of this section until the proceeding is no 
longer subject to administrative reconsideration or review or judicial 
review. Proceedings in which ex parte presentations are prohibited, 
referred to as ``restricted'' proceedings, include, but are not limited 
to, all proceedings that have been designated for hearing, proceedings 
involving amendments to the broadcast table of allotments, applications 
for authority under Title III of the Communications Act, and all waiver 
proceedings (except for those directly associated with tariff filings).
    7. Section 1.1210 is revised to read as follows:

[[Page 68949]]

Sec. 1.1210  Prohibition on solicitation of presentations.

    No person shall solicit or encourage others to make any improper 
presentation under the provisions of this section.

[FR Doc. 99-31620 Filed 12-8-99; 8:45 am]
BILLING CODE 6712-01-P