[Federal Register Volume 75, Number 57 (Thursday, March 25, 2010)]
[Proposed Rules]
[Pages 14409-14417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6494]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[GC Docket No. 10-43; FCC 10-31]
Amendment of Certain of the Commission's Ex Parte Rules and Other
Procedural Rules
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, we begin a new proceeding to improve the
transparency and effectiveness of the Commission's decisionmaking by
reforming our ex parte rules. The ex parte process allows parties in
most Commission proceedings to speak directly (or have written
communications) with Commission staff and decisionmakers, providing a
way to have an interactive dialogue that can root out areas of concern,
address gaps in understanding, identify weaknesses in the record,
discuss alternative approaches, and generally lead to more informed
decisionmaking. Oral ex parte presentations are by their nature
inaccessible to people who are not present at the meeting unless the
presentations are publicly documented in some way. In this document, we
seek comment on proposals to improve our ex parte and other procedural
rules to make the Commission's decisionmaking processes more open,
transparent, and effective.
DATES: Comments must be submitted by May 10, 2010, and reply comments
must be submitted by June 8, 2010. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before May 24, 2010.
ADDRESSES: You may submit comments, identified by GC Docket No. 10-43,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Julie Veach, Office of General
Counsel, 202-418-1700. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an e-mail to [email protected] or contact Leslie
Smith, OMD, 202-418-0217.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 10-31, adopted on February 18, 2010, and
released on February 22, 2010. Pursuant to Sec. Sec. 1.415 and 1.419
of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments and reply comments on or before the dates indicated on
the first page of this document. Comments may be filed using: (1) The
Commission's Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121,
May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
ECFS filers must transmit one electronic copy of the
comments for GC Docket No. 10-43. In completing the transmittal screen,
filers should include their full name, U.S. Postal Service mailing
address, and the applicable docket number. Parties may also submit an
electronic comment by Internet e-mail.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes must be disposed of before
entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Parties shall also serve one copy with the Commission's copy
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via
e-mail to [email protected]. Documents in GC Docket No. 10-43 will be
available for public inspection and copying during business hours at
the FCC Reference Information Center, Portals II, 445 12th Street, SW.,
Room CY-A257, Washington, DC 20554. The documents may also be purchased
from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY
(202) 488-5562, e-mail [email protected].
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to the Federal
Communications Commission via e-mail to [email protected] and to Nicholas A.
Fraser, Office of Management and Budget, via e-mail to [email protected] or via fax at 202-395-5167.
I. Introduction
1. In this NPRM, we begin a new proceeding to improve the
transparency and effectiveness of the Commission's decisionmaking by
reforming our ex parte rules. The ex parte process allows parties in
most Commission proceedings to speak directly (or have written
communications) with Commission staff and decisionmakers, providing a
way to have an interactive dialogue that can root out areas of concern,
address gaps
[[Page 14410]]
in understanding, identify weaknesses in the record, discuss
alternative approaches, and generally lead to more informed
decisionmaking. (The Administrative Procedure Act (APA) defines ``ex
parte communication'' as ``an oral or written communication not on the
public record with respect to which reasonable prior notice to all
parties is not given, but it shall not include requests for status
reports on any matter or proceeding covered by this subchapter.'' 5
U.S.C. 551(14). Consistent with that definition, the Commission's rules
define an ex parte presentation as ``[a]ny 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,'' with ``presentation'' defined as
``[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.'' Written ex parte presentations include, for
example, data, memoranda making legal arguments, materials shown to or
given to Commission staff during ex parte meetings, and e-mail
communications to Commission staff directed to the merits or outcome of
a proceeding. Oral ex parte presentations include, for example,
meetings or telephone or relay calls with Commission staff where
parties present information or arguments directed to the outcome of a
proceeding. The definition excludes certain types of communications,
such as status inquiries that do not state or imply a view on the
merits or outcome of the proceeding. 47 CFR 1.1202(a), (b).) Oral ex
parte presentations are by their nature inaccessible to people who are
not present at the meeting unless the presentations are publicly
documented in some way. In permit-but-disclose proceedings, our ex
parte rules require just this documentation. Years of experience,
however, have revealed a number of areas where our ex parte rules could
be improved. In this NPRM, we seek comment on proposals to improve our
ex parte and other procedural rules to make the Commission's
decisionmaking processes more open, transparent, and effective.
2. First, we propose reforms to our ex parte rules to require
disclosure of every oral ex parte presentation in permit-but-disclose
proceedings unless a specific exemption applies, and to require the
filing of a notice that summarizes all data and arguments that were
presented (although the filer may refer to prior written filings for
data and arguments that the filer has presented before). Second, we
propose to codify a preference for electronic filing of all notices of
ex parte presentations, in machine-readable formats, and we propose to
require electronic filing of notices of ex parte presentations made
during the Sunshine period within four hours of the presentation.
Third, we seek comment on whether to amend the rules exempting certain
communications from the ban on ex parte presentations during the
Sunshine period or in restricted proceedings, and whether to begin the
Sunshine period prohibition on ex parte presentations at midnight
following the release of the Sunshine notice. Fourth, we seek comment
on whether to require disclosure of ownership or other information
about the entity making an ex parte presentation or filing any pleading
with the Commission so that readers will better understand the filer's
interest in the proceeding. Finally, we propose minor changes to
modernize or correct our current ex parte rules.
II. Background
3. The Commission's ex parte rules recognize three types of
proceedings, and the rules apply differently to each type. In
``restricted'' proceedings, ex parte presentations are generally
prohibited. By contrast, in ``exempt'' proceedings, there are no
restrictions on ex parte presentations. In ``permit-but-disclose''
proceedings--the category we primarily address in this rulemaking--ex
parte presentations are allowed so long as they are disclosed in the
record of the proceeding. Copies of written presentations and summaries
of oral presentations must (as explained more fully below) be filed in
the record.
4. The filing of summaries of oral presentations (or ex parte
notices) plays a key role in permit-but-disclose-proceedings, because
interested parties frequently meet with the Commissioners and their
staffs and the staffs of relevant Bureaus and Offices to present their
views on the issues involved in pending permit-but-disclose
proceedings. The current rule applicable to the oral presentations made
in these meetings attempts to strike a balance between the need to give
the public and other interested persons fair notice of the content of
ex parte meetings and the desirability of not requiring parties to file
unnecessary paperwork. Specifically, the current rule requires that if
a person makes an oral ex parte presentation that presents data or
arguments that are not already in that person's written filings in the
proceeding, the person making the presentation must file a summary only
of the new data or arguments. Indeed, if no new data or arguments are
presented, no record of the oral ex parte presentation need be filed.
5. On October 28, 2009, the Commission hosted a staff workshop on
the ex parte process at which senior Commission staff and outside
experts discussed whether our current rules address the needs of the
Commission and the public. Based on our own experience with the rules
as well as the discussion at that workshop, we believe that two
limitations in the current rules governing oral presentations in
permit-but-disclose proceedings--lack of a filing documenting every
oral ex parte presentation, and a lack of completeness about what was
discussed in the meeting--reduce the transparency of the Commission's
decisionmaking to the detriment of Commission staff, outside parties,
and the general public. As mentioned above, if the oral presentation
did not present any new data or arguments, there is currently no
requirement to file any ex parte notice, so other parties may not even
know that a meeting occurred. When filings are made, they often fail to
give the reader sufficient information to know whether or not the ex
parte discussion involved matters already on the record in the
presenter's written filings, and if so, what matters. For example, many
summaries of oral ex parte presentations state in one or two sentences
that a party met with Commission staff members and discussed a
particular proceeding in a manner consistent with the party's prior
filings, without stating what the presentation was about, what data or
arguments were presented, or whether particular data or arguments were
characterized as especially important to the party's position. Although
the number of complaints about alleged ex parte rule violations
received by the Commission in permit-but-disclose proceedings is small
(generally not more than one or two a year) and we are unable to
estimate the number of violations that are not complained about, there
is reason to believe that some ex parte notices fail to comply with the
rule by failing to provide an adequate summary of new data or arguments
discussed in ex parte meetings.
[[Page 14411]]
III. Discussion
A. Completeness and Accuracy of Memoranda Summarizing Oral Ex Parte
Presentations
1. Filing Notices of All Oral Ex Parte Presentations, and Disclosing
All Facts and Arguments Presented
6. Oral ex parte presentations provide a valuable opportunity for
parties to converse with Commission staff, addressing concerns and
questions in an interactive manner that is not possible in written
filings. Oral presentations, however, must be adequately documented for
the Commission to rely on them in its decisionmaking and for other
parties to respond to them. (We take this opportunity to eliminate a
possible misperception by noting that our current rules do not except
oral ex parte presentations from the disclosure requirements when they
are made at the request of staff. Oral ex parte presentations that are
made at the request of staff must be disclosed to the same extent as
oral ex parte presentations that are made at the request of the
presenter. See 47 CFR 1.1206(b)(2).) When for any reason the record
does not adequately reflect the contents of oral ex parte
presentations, the public is deprived of a fair opportunity to respond
to oral communications with decisionmakers, and the Commission may lack
an adequate administrative record to the extent that the Commission
wishes to rely on information presented during an oral ex parte
presentation.
7. These same issues prompted the Commission, when it last
comprehensively revised the ex parte rules, to propose that ex parte
notices summarize the contents of all oral presentations in permit-but-
disclose proceedings, regardless whether the presentation involved new
information. Commenters were divided over the merits of this proposal,
and the Commission ultimately rejected it. The Commission found that
that it was not necessary to require additional filings that would
merely reiterate submissions already filed. Instead, the Commission
chose to rely on enforcement of the existing requirement that new data
or arguments be summarized. The Commission reiterated its intent to
enforce the existing requirement by issuing a public notice three years
later reminding the public of its responsibilities to summarize new
data and arguments in permit-but-disclose proceedings. The Commission
has also emphasized these requirements on its Web site.
8. The Commission's and the public's need for information about the
contents of oral ex parte presentations now causes us to propose to
require more disclosure. To address the two main limitations in our
current rules described above, we propose rules changes that (1)
require the filing of an ex parte notice for every oral ex parte
presentation, not just presentations that present data or arguments not
already reflected in the presenter's written comments, memoranda or
other filings; and (2) require that to the extent the presentation
concerned data or arguments already reflected in the presenter's
written filings in the record, the notice either summarizes the data or
arguments presented or explicitly states that the data and arguments
are already reflected in prior written filings and provides specific
references (including page or paragraph numbers) to the presenter's
prior filings containing the data and arguments presented. As under the
current rule, the ex parte notice would have to contain a summary of
any new data or arguments presented at the ex parte meeting. (We note
that our current rules already state that any ``documents shown in
connection with an oral presentation'' are defined as a written ex
parte presentation and must be filed. 47 CFR 1.1202(a), (b)(1).) See
Sec. 1.1206 of the proposed rules section of this document for
proposed revised language.
9. We believe that requiring that a memorandum be filed after every
oral ex parte presentation would make the Commission's processes more
transparent. We also believe that by requiring more disclosure of what
was said in the presentation, by summarizing all facts and arguments or
referring to prior written submissions, the new approach would also
give readers a better understanding of the content of the presentation.
It would do so, however, without imposing the significantly increased
burden on those filing notices of having to summarize both old and new
information. For that reason, we believe the proposed rule properly
balances the need for fairness and transparency in Commission
proceedings with avoiding unnecessary burdens on parties.
10. We seek comment on whether to adopt this proposal. Given that
the proposed rule would generally require more detailed ex parte
notices than the current rule does, we seek comment on whether parties
should (except with respect to exempt presentations during the Sunshine
period as discussed below) have two business days after making an oral
ex parte presentation to make a filing rather than the current one
business day.
11. The Commission remains committed to enforcing its rules. We
seek comment on whether more aggressive enforcement of our existing
rules would address some of the issues we have described above with
regard to adequate disclosure of oral ex parte presentations. For
instance, if the Commission imposed harsher sanctions against parties
that fail to disclose ex parte presentations or that file inadequate
summaries of oral ex parte presentations under our existing rules,
would any of the rule changes we propose be unwarranted? We invite
commenters to make specific enforcement-related proposals that would
improve transparency of oral ex parte presentations in an efficient
manner.
12. We do not propose to change the current treatment of status
inquiries as described in Sec. 1.1202(a). Section 1.1202(a) defines
the term ``presentation,'' and provides that ``Excluded from this term
are * * * 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.''
If a status inquiry falls within the exclusion defined in Sec.
1.1202, it is not an ex parte ``presentation'' and need not be
disclosed. We seek comment on this proposal to retain the current
treatment of status inquiries.
2. Other Approaches
13. Nothing in the APA requires that agencies give the public the
opportunity to make oral presentations in rulemaking proceedings or in
adjudications that are not otherwise required to be conducted on the
record after a hearing. Not surprisingly, not all agencies have taken
the same approach to oral ex parte communications. For example, in
rulemaking proceedings at the Federal Election Commission, if a
commissioner or member of a commissioner's staff receives an oral ex
parte communication, the burden is on the commissioner or
commissioner's staff to provide a written summary to the commission's
Secretary for placement in the public record. When
[[Page 14412]]
the Federal Trade Commission conducts informal rulemakings, oral ex
parte presentations to commissioners and their staffs occur
infrequently, but summaries or transcripts of oral communications must
be placed on the public record. Adjudications at the Federal Trade
Commission are conducted as formal adjudications and ex parte
presentations are not permitted. Other agencies, such as the Nuclear
Regulatory Commission, favor taking in oral information through
informal public meetings, rather than individual ex parte meetings.
Indeed, this Commission has considered, but not adopted, measures as
strong as a complete prohibition on ex parte contacts in informal
rulemaking proceedings.
14. We seek comment on whether adopting some practices of other
agencies regarding oral presentations would improve transparency in our
own proceedings. We also invite alternative proposals that would
increase compliance with our ex parte rules.
B. Preference for Electronic Filings
15. When the Commission last reassessed its ex parte rules thirteen
years ago, parties filed documents in Commission proceedings mostly on
paper. Now, more often than not, parties file documents in Commission
proceedings electronically. Many if not most of our permit-but-disclose
proceedings are now docketed on the Commission's Electronic Comment
Filing System or other electronic filing systems, where the records are
available electronically, and the Commission has made it possible for
parties to file many types of documents electronically. Moreover, we
are taking steps to expand this capability. Indeed, filing ex parte
notices is now very often done electronically, allowing the Commission
staff, parties, and the general public to have easy and timely access
to those documents online, and reducing the time that Commission staff
must spend gathering record materials as they work to resolve
Commission proceedings. Reducing the burdens of following Commission
proceedings also supports our goals of transparency and public
participation.
16. We propose to amend our ex parte rules generally to require
that written ex parte presentations and memoranda summarizing oral ex
parte presentations in docketed proceedings be filed electronically on
a Commission electronic comment filing system. We believe that most
parties already do so; this rule would for the most part codify current
practice. In those cases where a docket number has not been assigned to
a proceeding or the Commission has not provided a method for filing
memoranda electronically, we propose that the person required to submit
the memorandum shall file on paper an original and one copy with the
Secretary's office. We also seek comment on whether these filings
should be made in machine-readable format (e.g., Microsoft Word
``.doc'' format or non-copy protected text-searchable ``.pdf'' format
for text filings, and ``native formats'' for non-text filings, such as
spreadsheets in Microsoft Excel ``.xml'' format). We recognize that in
some cases, electronic filing is not possible without undue hardship
because the person making the oral ex parte presentation does not have
access to a computer or the Internet or because the filing contains
confidential business or financial information. We therefore propose to
codify an exception. See Sec. 1.206(b) of the proposed rules section
of this document for proposed revised language.
17. We seek comment on these proposals. In particular, we seek
comment on whether there are types of proceedings for which these
procedures would be impractical, such that we should require paper
filing or allow other methods for submitting ex parte notices.
18. We note a particular issue with regard to the filing of ex
parte notices during the Sunshine period. The current ex parte rules
prohibit most presentations, whether ex parte or not, during the
Sunshine period, which begins when a proposed order is placed on a
Sunshine notice and ends when the text of a decision is released or the
draft returned to the staff. Typically, the Sunshine notice is released
seven days before an agenda meeting. The Sunshine period prohibition is
intended to provide decisionmakers ``a `period of repose' during which
they can be assured that they will be free from last minute
interruptions and other external pressures, thereby promoting an
atmosphere of calm deliberation.'' The prohibition on most
presentations during the Sunshine period is also meant to give the
Commissioners and staff time to examine a record that is largely fixed,
rather than continuing to analyze new data and arguments. We believe
that a period of repose from both oral and written presentations before
a Commission meeting continues to make sense in most circumstances and
seek comment on this conclusion. We note in this regard that the
Commission has and can in the future waive the prohibition where the
public interest so requires.
19. In those cases where an oral ex parte presentation is permitted
to be made during the Sunshine period but must still be disclosed, it
is very important that the notice summarizing that presentation be
available quickly to Commissioners, Commission staff, and interested
outside parties. During the Sunshine period, the Commission is in the
final stages of considering how to resolve a proceeding. When, as
permitted under the current rules, notices of oral ex parte
presentations are filed by the end of the following business day, as
many as two working days may have elapsed between the conclusion of the
oral presentation and the filing of the summary. An even longer delay
in having the notice appear in the electronic docket may result if the
summary is not filed electronically. At the end of a proceeding, when
decision-makers are making final judgments concerning the matter, this
can be a great deal of time and the delay in filing may preclude
sufficient consideration of the contents of the filing by Commissioners
and Commission staff. In addition, if the rules were to be amended so
that other parties were allowed to make responsive presentations during
the Sunshine period, it would be necessary for them to see the
summaries of other parties' presentations so that they can respond to
the data or arguments that were presented.
20. Because of the problem of timing, we propose that ex parte
notices summarizing oral ex parte presentations that were made during
the Sunshine period must be filed electronically within four hours of
the completion of the presentation, so that they are available quickly
to all. We recognize that in some cases, this may be difficult for
parties to accomplish because of sequential meetings, travel plans, or
very occasionally a lack of access to a computer and the Internet. We
believe that it is vitally important to the Commission's deliberations
that as many ex parte notices as possible are filed electronically
within four hours. Almost all proposed orders that are placed on a
Sunshine notice are in proceedings for which electronic filing is
available. If, however, the Commission were to place a proposal on the
Sunshine notice for which Sec. 1.1203 applied but for which no
electronic filing mechanism was available, we propose that memoranda
summarizing oral ex parte presentations that must be filed during the
Sunshine period be sent by electronic mail (or, if electronic mail is
not available, by facsimile) to all Commission staff who attended the
presentation and to all parties who have provided such contact
information
[[Page 14413]]
unless the Sunshine notice provides otherwise. We seek comment on these
proposals.
21. Furthermore, to make it simpler for staff to determine whether
the ex parte presentation was permissible and whether the notice was
timely filed, we propose to require that the notice say in the first
sentence why the ex parte presentation was permissible, and also on
what day and at what time the oral presentation took place. See Sec.
1.1206(b) of the proposed rules section of this document for proposed
revised language.
22. We seek comment on these proposals. In particular, we seek
comment on the four-hour filing period, and whether that will in most
cases provide a sufficient filing opportunity. If not, we ask parties
to propose a reasonable time for filing that takes into consideration
the harm that delays in receiving the information can have on the
Commission's resolution of its proceedings. We also seek comment on
whether this requirement would be impracticable for certain filers, and
whether and how we could craft an exception that would still make
notices of these presentations available to the Commissioners, staff,
and public quickly.
C. The Sunshine Period Prohibition and Exceptions
23. We also seek comment on whether the current exceptions to the
Sunshine period restrictions ought to be modified. Exceptions to the
Sunshine period prohibition include presentations ``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.'' (We note that this exception allows ex
parte presentations to be made when they would otherwise be prohibited,
but it does not relieve the presenter from the burden of disclosing the
contents of oral ex parte presentations. Even if an oral presentation
is at the request of staff, disclosure requirements still apply. See 47
CFR 1.1204(a)(10)(iv).) We believe that information gathered through
such permitted presentations can be important to the Commission's
ability to reach the best possible decisions on proposed orders subject
to a Sunshine period restriction. Nonetheless, the exception could be
abused to shore up the record on one side of an argument without
allowing responses on the other side. Indeed, during the workshop, some
participants suggested that as a matter of fairness to all parties, the
Sunshine period ought to be ``all or nothing''--that is, it should
either be a period of strict repose or it should be eliminated to allow
all presentations. Accordingly, we seek comment on whether this
exception ought to be narrowed to prohibit an outside party from
soliciting a request from staff for an ex parte presentation ``for the
clarification or adduction of evidence, or for the resolution of
issues.'' We also seek comment on whether it is practical and
consistent with having a ``period of repose'' to allow replies to
presentations made pursuant to a Sunshine period exception. We seek
comment on other possible resolutions.
24. While the settlement exception in Sec. 1.1204(a)(10) of the
rules serves an important function, we also seek comment on whether it
is susceptible to misuse apart from its impact during the Sunshine
period. For example, we seek comment on whether reliance on the
provision of the rule exempting from disclosure ``information relating
to how a proceeding should or could be settled, as opposed to new
information regarding the merits,'' sometimes has been applied in an
overly broad manner to effectively permit the undisclosed discussion of
the merits of proceedings. To the extent this may be so, we seek
comment on how the rule should be amended to eliminate this problem,
without constraining appropriate uses of the staff's ability to
facilitate settlements in adjudicatory matters, such as formal
complaint proceedings under section 208 of the Act and pole attachment
complaint proceedings under section 224 of the Act.
25. We note one other complexity with regard to our Sunshine
procedures. Under our current rules, the prohibition on ex parte
communications begins with the release of the Sunshine notice. While
Sunshine notices are almost always released seven days in advance of an
Agenda Meeting, the time of day at which a Sunshine notice is released
varies. This variability makes it difficult for outside parties to know
up until what time they may make oral ex parte presentations or file
written ex parte presentations. It also makes it difficult for
Commission staff to analyze later whether a presentation that was made
on the day a Sunshine notice was released was made before or after the
notice was released. For these reasons, we seek comment whether we
should modify Sec. 1.1203(b) to make the prohibition on ex parte
communications effective at midnight after a Sunshine notice is
released, unless otherwise specified in the notice. See Sec. 1.1203(b)
of the proposed rules section of this document for proposed revised
language. We seek comment on this proposal. In particular, we seek
comment on whether there are other ways to create a brighter line to
mark the beginning of the period of repose that would not also shorten
the period of repose.
26. We take this opportunity to remind parties that the Commission
and its staff have discretion to modify the applicable ex parte rules
in a particular proceeding by ``order, letter, or public notice.'' For
example, staff may indicate that a particular licensing proceeding will
be changed from a restricted proceeding to a permit-but-disclose
proceeding because it raises policy issues on which broader public
participation would benefit the public interest. Staff may choose to
continue to require service of process in such a proceeding, and will
so indicate in the document that changes the status of the proceeding.
D. Disclosure Statements
27. In many cases, a party filing a pleading or other document with
the Commission or making an ex parte presentation may represent the
interests of other entities, or the party's interest in the proceeding
may otherwise be unclear. We are interested in whether the ability of
both the Commission and the public to evaluate the positions taken in
Commission proceedings would be improved if parties provided more
information about themselves and their interests in the proceedings. We
therefore seek comment on the desirability of requiring filers to
submit a disclosure statement in connection with their filings in all
Commission proceedings.
28. There are several possible models for a disclosure requirement.
One possible model is Supreme Court Rule 29.6. That rule requires any
nongovernmental corporation filing a document with the Court to include
a corporate disclosure statement identifying the parent corporations
and listing any publicly held company that owns ten percent or more of
the corporation's stock. In addition, Supreme Court Rule 37.6 requires
that amicus briefs (except those filed by certain government entities)
``indicate whether counsel for a party authored the brief in whole or
in part and whether such counsel or a party made a monetary
contribution intended to fund the preparation or submission of the
brief, and shall identify every person other than the amicus curiae,
its members, or its counsel, who made such a monetary contribution.''
Another possible model is Rule 26.1 of the Circuit Rules for the U.S.
Court of Appeals for the DC Circuit. That rule applies more broadly
than the Supreme
[[Page 14414]]
Court Rule, to any corporation, association, joint venture,
partnership, syndicate or other similar entity appearing as a party or
amicus curiae in any proceeding. Like Supreme Court Rule 29.6, it
requires these entities to file a disclosure statement that identifies
all parent companies and any publicly held company that has a ten
percent or greater interest in the entity, but it goes on to define
``parent companies'' to include all companies controlling the specified
entity directly, or indirectly through intermediaries. The statement
must also identify the represented entity's general nature and purpose,
insofar as relevant to the litigation. If the entity is an
unincorporated entity whose members have no ownership interests, the
disclosure statement must include the names of any members who have
issued shares or debt securities to the public. This last requirement
does not apply to trade associations or professional associations,
defining a trade association as a continuing association of numerous
organizations or individuals operated for the purpose of promoting the
general commercial, professional, legislative, or other interests of
the membership. A third possible model is the Lobbying Disclosure Act
(LDA). The LDA requires the disclosure of the registrant's clients and
any organizations that contribute more than $5,000 in a quarterly
period to the registrant's lobbying activities.
29. We seek comment on these alternatives and, more generally,
whether to require disclosure of this type in filings with the
Commission. We ask parties to comment on whether one of the models
described would suit this objective, or whether a combination of these
models or a different model would be better. We recognize that greater
disclosure might discourage some entities from participating in our
proceedings. We seek comment on whether a disclosure rule could be
fashioned in a way that would avoid discouraging participation in our
proceedings while still providing more information about the relevant
interests of the parties. We also seek comment on what, if any,
disclosure requirements would be appropriate for individuals. We also
ask parties to identify whether there are types of entities or
proceedings to which any disclosure requirement should not apply.
30. We recognize that the Commission currently requires some
regulatees to submit certain ownership information. For example,
commercial broadcaster licensees and entities that hold attributable
interests in such licensees must file FCC Form 323 biennially, and also
after various triggering events. Filers of Form 323 identify their
ownership interest as well as any other entities or individuals that
have an attributable ownership interest. The filed forms are available
to the public online through the Consolidated Database System (CDBS).
Similarly, licensees and license applicants for wireless services
subject to competitive bidding must have an updated FCC Form 602 on
file upon certain triggering events, which include applying for or
renewing a license and requesting authority to transfer control of a
license. Among other things, the filer must disclose the real party or
parties in interest, including the identity and relationship of persons
or entities directly or indirectly controlling the applicant. Filers
also must disclose information regarding persons or entities that
directly or indirectly hold a ten percent or greater ownership interest
or general partnership interest in the filer. Information from Form 602
is available to the public online through the Universal Licensing
System (ULS).
31. We seek comment on whether this ownership information
appropriately could be referenced by a party in its ex parte filing or
pleading to satisfy part or all of any disclosure requirements that the
Commission may adopt. Are there other publicly available sources of
similar information that appropriately could be referenced or attached
in a similar way? We invite any other suggestions on how to improve the
Commission's and the public's understanding of a party's interest in a
proceeding.
E. Other Issues
32. Sanctions and Enforcement. Even with perfect compliance with
our existing rules, we tentatively believe our proposals would improve
transparency by, for example, requiring disclosure of every ex parte
presentation in permit-but-disclose proceedings, and requiring parties
to identify or refer specifically to all data and arguments that they
present. Above, however, we seek comment on whether stricter
enforcement of our existing rules would lessen or eliminate the need
for any of the changes to our rules that we propose in this Notice. In
doing so, we do not suggest that the rule changes suggested here are a
substitute for enforcement of the ex parte rules. Regardless of what
amendments are adopted in this proceeding or when, we intend to place
greater emphasis on enforcement against impermissible ex parte
contacts. We will not hesitate to impose appropriate sanctions,
including monetary forfeitures, for violations. In this regard, we seek
comment on what types of sanctions should be deemed appropriate with
respect to different types of ex parte violations, and, in particular,
what sanctions would be appropriate for the filing of inadequate ex
parte notices. We specifically seek comment on the extent to which
prejudice to other parties should be a principal factor in determining
the appropriate sanction and any other factors we should consider in
determining what sanctions are appropriate. We also seek comment on
whether all ex parte sanctions, including admonitions, should be
publicly announced.
33. New Media. The Commission is beginning to make use of new media
technologies in some of its proceedings. For example, the Commission
has three new Web sites that are dedicated to particular issues--
broadband.gov for the proceeding to create a National Broadband Plan,
OpenInternet.gov for the proceeding to preserve and promote the open
Internet, and reboot.fcc.gov to solicit and discuss ideas on general
Commission reform. These Web sites and the Commission's more familiar
Web site provide information about the Commission and its proceedings,
but they also allow the public to comment on various issues through new
media such as blogs, Facebook, and IdeaScale. Some of the issues on
which the public provides input are the subjects of permit-but-disclose
proceedings and are therefore subject to our ex parte rules. The
Commission to date has modified its ex parte rules to accommodate the
use of new media on a case-by-case basis pursuant to Sec. 1.1200(a).
We expect to continue to do so as we and the public gain experience
with the use of new media.
34. We do not, at this time, propose specific rules regarding the
ex parte implications of new media, but we welcome any comments on the
issue. In particular, we are interested in comments as to whether and
how we should account for any differences in access to these new media
by different segments of the public, such as those whose homes or
communities are not served by broadband or those who have not
subscribed to broadband.
35. Minor Changes. We seek comment on a number of additional
proposed changes:
36. First, we seek comment on eliminating Sec. 1.1202(d)(6) as it
appears to be an exact duplicate of Sec. 1.1202(d)(5).
37. Second, we seek comment on amending Sec. 1.1204(a)(6)
regarding communications between the Department of Justice or Federal
Trade Commission and this Commission to reflect that the matter be
related to
[[Page 14415]]
``communications'' generally rather than ``telecommunications,'' and to
delete the word ``competition.'' We believe that referring to
``communications'' rather than ``telecommunications,'' which is a
defined term under the Act, would reflect more accurately the types of
discussions that are intended to be exempt under this rule, and would
avoid any appearance that we intend to limit the scope of the exemption
to communications regarding ``telecommunications'' as defined in the
Act, as opposed to, for example, cable services. We also propose to
delete the word ``competition'' to reflect that communications between
our agencies may touch on matters such as consumer protection or law
enforcement, which may not be directly linked to competition. We seek
comment on these proposals.
38. Third, we propose to add the Pooling Administrator and the TRS
Numbering Administrator to the list of entities in Sec. 1.1204(a)(12)
with which communications are exempt from the ex parte rules. This
would be consistent with the exemptions for other numbering
administrators such as the North American Numbering Plan Administrator
and the Number Portability Administrator. The Commission established
the framework for selecting the national Pooling Administrator in 2000,
and created the TRS Numbering Administrator in 2008; these proposed
changes would bring the ex parte rules up to date with regard to these
entities. We seek comment on these proposals.
39. Fourth, we propose to delete from the list of permit-but-
disclose proceedings in Sec. 1.1206(a) Bell Operating Company
applications under section 271 of the Act. All Bell Operating Companies
have applied for and received authority under section 271 in all their
relevant states. If for some reason in the future a Bell Operating
Company were to reapply for authority under section 271, the staff
could designate the proceeding as a permit-but-disclose proceeding
under Sec. 1.1200(a). We seek comment on this proposal.
40. Fifth, we propose to codify the practice whereby staff may at
its discretion file an ex parte summary of a meeting attended by many
parties, thereby relieving the parties of the obligation to file
individually. This would be at the staff's option. We seek comment on
this proposal.
41. Sixth, we propose a change to our rules regarding oral
presentations in restricted proceedings. Under our current rules, ex
parte presentations are generally not permitted in restricted
proceedings. An oral presentation is not ex parte, however, if it is
made with advance notice to all the parties to the proceeding with an
opportunity for them to be present. If a party makes a permissible oral
presentation, our rules currently do not require the party to file a
summary in the record of the proceeding. We propose to require a
summary to the same extent as in permit-but-disclose proceedings. We
believe that having a summary in the record of the proceeding would
facilitate review of the record by Commission staff as well as the
parties to the proceeding. A draft of a revised Sec. 1.1203(b) is
provided. We seek comment on the proposal.
42. Seventh, we propose to make it more plain that our rules
already require that documents that are shown to or given to Commission
staff during ex parte meetings are themselves written ex parte
presentations and must be filed. A draft of a proposed clarification to
Sec. 1.1206(b)(1) is provided. We seek comment on the proposed
language.
43. Eighth, we propose to clarify a point regarding inter-
governmental ex parte presentations that are permitted during the
Sunshine period. Current Sec. 1.1203(a)(4) permits presentations from
members of Congress, their staff, or other agencies or branches of the
Federal government in exempt and permit-but-disclose proceedings during
the Sunshine period, when most presentations are not permitted. The
rule also states that significant presentations must be placed in the
record consistent with Sec. 1.1206(b). Section 1.1204(b), however,
provides that ex parte presentations in exempt proceedings need not be
disclosed at all. To remedy this inconsistency, we propose to clarify
in Sec. 1.1203(a)(4) that the requirement to disclose presentations
that are made during the Sunshine period only applies to presentations
made in permit-but-disclose proceedings. We seek comment on this
proposal.
44. Ninth, we propose to clarify that the Sunshine period
prohibition does not affect parties' obligation to file a written ex
parte presentation or memorandum summarizing an oral ex parte
presentation for presentations that are made on the last day before the
Sunshine period begins, even though new ex parte presentations are not
permitted unless they are made pursuant to an exception to the
prohibition on ex parte presentations. A proposed clarification to
Sec. 1.1203 is provided.
45. Finally, we propose in general to reorganize Sec. 1.1206 to
make it clearer and easier to understand, and to make various
conforming edits. A draft of a proposed improved Sec. 1.1206 is
provided. We seek comment on these proposed changes.
46. Other. We invite commenters to propose any other modifications
to the ex parte rules that would enhance the transparency, fairness,
and efficiency of the decisionmaking process.
IV. Procedural Matters
47. Ex Parte Presentations. The rulemaking this NPRM initiates
shall be treated as a ``permit-but-disclose'' proceeding in accordance
with the Commission's ex parte rules. Persons making oral ex parte
presentations are reminded that memoranda summarizing the presentations
must contain summaries of the substance of the presentations and not
merely a listing of the subjects discussed. More than a one- or two-
sentence description of the views and arguments presented generally is
required. Other requirements pertaining to oral and written
presentations are set forth in Sec. 1.1206(b) of the Commission's
rules.
48. Accessible Formats: To request materials in accessible formats
for people with disabilities (Braille, large print, electronic files,
audio format), send an e-mail to [email protected] or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty).
49. Regulatory Flexibility Act. Our action does not require notice
and comment, and therefore falls outside of the Regulatory Flexibility
Act of 1980, as amended. We will send a copy of this Notice of Proposed
Rulemaking to the Chief Counsel of Advocacy of the SBA.
50. Paperwork Reduction Act. This proceeding may result in new
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collection requirements contained in this document, as
required by the Paperwork Reduction Act of 1995. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, we seek specific
comment on how we might ``further reduce the information collection
burden for small business concerns with fewer than 25 employees.''
V. Ordering Clauses
51. Accordingly, it is ordered, pursuant to sections 4(i), 4(j),
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 154(j), and 303(r), that notice is hereby given of the proposed
regulatory changes described
[[Page 14416]]
above, and that comment is sought on these proposals.
52. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Government employees,
Lawyers, Penalties, Reporting and recordkeeping requirements,
Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 1 to read as
follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 303(r), and 309.
Sec. 1.202 [Amended]
2. Section 1.1202 is amended by removing paragraph (d)(6).
3. Section 1.1203 is amended by revising paragraphs (a)(4) and (b)
introductory text, and adding a new paragraph (c) to read as follows:
Sec. 1.1203 Sunshine period prohibition.
(a) * * *
(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 this
presentation is of substantial significance and clearly intended to
affect the ultimate decision, and is made in a permit-but-disclose
proceeding, the presentation (or, if oral, a summary of the
presentation) must be placed in the record of the proceedings 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 beginning at midnight following the release of a public notice
that a matter has been placed on the Sunshine Agenda until the
Commission:
* * * * *
(c) Nothing in this section prevents a party from submitting a
written ex parte presentation or a memorandum summarizing an oral ex
parte presentation on the first business day of the Sunshine period
prohibition to the extent that Sec. 1.1206 or Sec. 1.1208 requires
submission of such a presentation or memorandum to reflect an ex parte
presentation that was made on the last day before the beginning of the
Sunshine period.
4. Section 1.1204 is amended by revising paragraphs (a)(6),
(a)(12)(iii), and (a)(12)(iv), and adding new paragraphs (a)(12)(v) and
(a)(12)(vi) to read as follows:
Sec. 1.1204 Exempt ex parte presentations and proceedings.
(a) * * *
(6) The presentation is to or from the United States Department of
Justice or Federal Trade Commission and involves a communications
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 decisionmaking process will be disclosed by the
Commission no later than at the time of the release of the Commission's
decision;
* * * * *
(12) * * *
(iii) The Universal Service Administrative Company relating to the
administration of universal service support mechanisms pursuant to 47
U.S.C. 254;
(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;
(v) The TRS Numbering Administrator relating to the administration
of the TRS numbering directory pursuant to 47 U.S.C. 225 and 47 U.S.C.
251(e); or
(vi) The Pooling Administrator relating to the administration of
thousands-block number pooling pursuant to 47 U.S.C. 251(e).
* * * * *
5. Section 1.1206 is amended by revising paragraph (a)(12),
removing paragraph (a)(13), redesignating paragraph (a)(14) as (a)(13)
(Note 3 to paragraph (a) remains unchanged), and revising paragraph (b)
to read as follows:
Sec. 1.1206 Permit-but-disclose proceedings.
(a) * * *
(12) A modification request filed pursuant to Sec. 64.1001 of this
chapter; and
* * * * *
(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, including giving or showing a
document to Commission staff, shall, no later than the next business
day after the presentation, submit two 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 an original and one copy have been
submitted to the Secretary or that one copy has been filed
electronically, and must be labeled as an ex parte presentation. If the
presentation relates to more than one proceeding, two copies (or an
original and one copy, or one copy if filed electronically) shall be
filed for each proceeding.
(2) Oral presentations.
(i) A person who makes an oral ex parte presentation subject to
this section shall submit a memorandum that summarizes all data
presented and arguments made during the oral ex parte presentation. If
the oral ex parte presentation consisted in whole or in part of the
presentation of data or arguments already reflected in that person's
written comments, memoranda or other filings in the proceeding, the
person who made such presentation may provide citations to such data or
arguments in that person's prior comments, memoranda, or other filings
in lieu of summarizing them in the memorandum. 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, if any) 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 or that one copy has been filed electronically, 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, or one copy if filed electronically) shall be filed for
each proceeding.
[[Page 14417]]
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 recording of the discussion as an alternative to a
memorandum.
(ii) The memorandum required to be submitted to the Secretary under
this subpart must be submitted no later than the next business day
after the presentation. In proceedings governed by Sec. 1.49(f) or for
which the Commission has made available a method of electronic filing,
the memorandum shall, when feasible, be filed through the electronic
comment filing system available for that proceeding. In other
proceedings or if filing through the electronic comment filing system
would present an undue hardship, an original and one copy must be
submitted to the Secretary and also sent on paper or via electronic
mail to the Commissioners and Commission employees involved in the
presentation.
(iii) If the memorandum summarizing an oral presentation required
to be submitted under this subpart results from an oral ex parte
presentation that is made pursuant to an exception to the Sunshine
period prohibition, the memorandum shall be submitted through the
Commission's electronic comment filing system, and shall be submitted
within four hours of the presentation to which it relates. The
memorandum shall also identify plainly on the first page the specific
exception in Sec. 1.1203(a) on which the presenter relies. The
memorandum shall also state the date and time at which the oral ex
parte presentation was made.
(3) Electronic Filing and Native Formats. In proceedings governed
by Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, shall, when feasible, be filed electronically, and shall be
filed in native formats (i.e., .doc, .xml, .ppt, searchable .pdf). In
cases where a filer believes that the document to be filed should be
withheld from public inspection, the filer should file electronically a
request that the information not be made routinely available for public
inspection pursuant to Sec. 0.459, and a copy of the document with
such confidential information redacted. The filer should submit the
original unredacted document to the Secretary as directed in Sec.
0.459.
(4) 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 presentation and place it in
the record in accordance with paragraph (b)(2) of this section and
place any such written presentation in the record in accordance with
paragraph (b)(1) of this section.
(5) 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.
6. 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) of this section, ex parte presentations (other than
ex parte presentations exempt under Sec. 1.1204(a)) 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) 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). A party making an oral
presentation in a restricted proceeding, on a non-ex parte basis, must
file a summary of the presentation in the record of the proceeding
using procedures consistent with those specified in Sec. 1.1206.
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 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 ``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.
[FR Doc. 2010-6494 Filed 3-24-10; 8:45 am]
BILLING CODE 6712-01-P