[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Proposed Rules]
[Pages 24434-24436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10352]



47 CFR Parts 0 and 1

[GC Docket No. 10-43; FCC 11-11]

Commission's Ex Parte Rules and Other Procedural Rules

AGENCY: Federal Communications Commission.

ACTION: Further notice of proposed rulemaking


SUMMARY: In this document the Commission seeks comment on amending the 
rules to require that notices of ex parte discussions disclose real 
parties-in-interest. The change was proposed because the existing rules 
do not enable interested parties to know whose interests are being 
represented when a contact is made. By requiring the disclosure of this 
information the proposed amendment would increase transparency and 
openness in Commission proceedings. The FNPRM was adopted in 
conjunction with a Report and Order amending the ex parte rules, which 
is published elsewhere in this Federal Register.

DATES: 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 on or 
before June 16, 2011 and reply comments on or before July 18, 2011. 
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 
July 1, 2011.

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 
     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.
    In addition to filing comments with the Office of the Secretary, a 
copy of any

[[Page 24435]]

comments on the Paperwork Reduction Act information collection 
requirements contained herein should be submitted to Leslie F. Smith, 
Federal Communications Commission, Room 1-C216, 445 12th Street, SW, 
Washington, DC 20554, or send an 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.
    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: Joel Kaufman, Chief, Administrative 
Law Division, Office of General Counsel, (202) 418-1758 or 
[email protected]. 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 F. 
Smith, (202) 418-0217 or [email protected].

SUPPLEMENTARY INFORMATION: 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 
     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.
     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).
    In this FNPRM adopted February 1, 2011 and released February 2, 
2011, the Commission seeks comment on requiring anyone making an ex 
parte presentation to disclose the identity of any real party in 
interest to the issues discussed. At times a party making an ex parte 
contact may be representing the interests of another undisclosed party, 
or the presenter's interest in the proceeding may not be entirely 
clear. The Commission found that a disclosure requirement that 
addresses these problems without imposing undue burdens on the 
disclosing party, or requiring duplicative filing of generally-
available information, would serve the public interest. The FNPRM 
solicits comment on what type of disclosure rule would balance those 
two interests, and how it should be applied. Comment is sought on the 
suitability of using existing judicial disclosure rules, such as 
Supreme Court Rules 29.6 and 37.6, or Rule 26.1 of the Rules for the 
U.S. Court of Appeals for the DC Circuit. Comment is also sought on the 
possible use of the Lobbying Disclosure Act as a model. Comment is 
requested on the range of proceedings to which new disclosure rules 
should apply, and whether disclosure requirements should apply to trade 
associations and non-profit entities. Finally, the Commission asks a 
number of logistical questions regarding disclosure. Comment is sought 
on whether disclosure should be required when the information to be 
disclosed can be found in existing Commission records or on the party's 
Web site. If reliance were to be placed on information already in the 
Commission's records, how would the Commission ensure its information 
is up-to-date and easily accessible? Comment is requested on whether 
the Commission should create a single electronically accessible source 
for all disclosure statements, and how often filers should be required 
to update this information.
    Regulatory Flexibility Act. Our proposed action does not require 
notice and comment, and therefore falls outside the Regulatory 
Flexibility Act of 1980, as amended, 5 U.S.C. 605(b), and requires no 
initial or final regulatory flexibility analysis under Section 604 of 
that Act, 5 U.S.C. 604. We nevertheless note that we anticipate that 
the alternatives proposed in the FNPRM will not have a significant 
economic impact on a substantial number of small entities or impose 
significant costs on parties to Commission proceedings. We will, 
however, send a copy of the FNPRM to the Chief Counsel of Advocacy of 
the Small Business Administration.
    Initial Paperwork Reduction Act of 1995 Analysis. This document 
contains proposed 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, Public 
Law 104-13. Public and agency comments are due July 1, 2011.
    Comments should address: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology; and (e) 
ways to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might 
further reduce the information collection burden for small business 
concerns with fewer than 25 employees.
    OMB Control Number: 3060-0430.
    Title: Section 1.1206, Permit-but-Disclose Proceedings.
    Type of Review: Revision of currently approved collection.
    Respondents: Individuals or households; Business or other for-
profits; Not-for-profit institutions; Federal Government; and State, 
local or tribal governments.

[[Page 24436]]

    Number of Respondents and Responses: 11,500 respondents; 34,500 
    Estimated time per Response: 45 minutes (0.75 hours).
    Obligation to Respond: Required to obtain or retain benefits.
    Frequency of Response: On-occasion reporting requirements; Third 
party disclosure.
    Total Annual Burden: 25,875 hours.
    Total Annual Cost: None.
    Privacy Act Impact Assessment: No impacts.
    Nature and Extent of Confidentiality: The Commission is not 
requesting that respondents submit confidential information; however, 
consistent with the Commission's rules on confidential treatment of 
submissions, under 47 CFR 0.459, a presenter may request confidential 
treatment of ex parte presentations. In addition, the Commission will 
permit parties to remove metadata containing confidential or privileged 
information, and the Commission will also not require parties to file 
electronically ex parte notices that contain confidential information. 
The Commission will, however, require a redacted version to be filed 
electronically at the same time the paper filing is submitted, and that 
the redacted version must be machine-readable whenever technically 
    Needs and Uses: The Commission's rules, under 47 CFR 1.1206, 
require that a public record be made of ex parte presentations (i.e., 
written presentations not served on all parties to the proceeding or 
oral presentations as to which all parties have not been given notice 
and an opportunity to be present) to decision-making personnel in 
``permit-but-disclose'' proceedings, such as notice-and-comment 
rulemakings and declaratory ruling proceedings. Persons making such 
presentations must file two copies of written presentations and two 
copies of memoranda reflecting new data or arguments in oral 
presentations no later than the next business day after the 
presentation; alternatively, in proceedings in which electronic filing 
is permitted, a copy may be filed electronically.
    On February 2, 2011, the FCC released a Report and Order and 
Further Notice of Proposed Rulemaking, CG Docket Number 10-43, FCC 11-
11, which amends and reforms the Commission's rules on ex parte 
presentations (47 CFR 1.1206(b)(2)) made in the course of Commission 
rulemakings and other permit-but-disclose proceedings. The 
modifications to the existing rules adopted in this Report and Order 
address these problems by requiring that parties file more descriptive 
summaries of their ex parte contacts, by ensuring that other parties 
and the public have an adequate opportunity to review and respond to 
information submitted ex parte, and by improving the FCC's oversight 
and enforcement of the ex parte rules. The modified ex parte rules 
provide as follows: (1) Ex parte notices will be required for all oral 
ex parte presentations in permit-but-disclose proceedings, not just for 
those presentations that involve new information or arguments not 
already in the record; (2) If an oral ex parte presentation is limited 
to material already in the written record, the notice must contain 
either a succinct summary of the matters discussed or a citation to the 
page or paragraph number in the party's written submission(s) where the 
matters discussed can be found; (3) Notices for all ex parte 
presentations must include the name of the person(s) who made the ex 
parte presentation as well as a list of all persons attending or 
otherwise participating in the meeting at which the presentation was 
made; (4) Notices of ex parte presentations made outside the Sunshine 
period must be filed within two business days of the presentation; (5) 
The Sunshine period will begin on the day (including business days, 
weekends, and holidays) after issuance of the Sunshine notice, rather 
than when the Sunshine Agenda is issued (as the current rules provide); 
(6) If an ex parte presentation is made on the day the Sunshine notice 
is released, an ex parte notice must be submitted by the next business 
day, and any reply would be due by the following business day. If a 
permissible ex parte presentation is made during the Sunshine period 
(under an exception to the Sunshine period prohibition), the ex parte 
notice is due by the end of the same day on which the presentation was 
made, and any reply would need to be filed by the next business day. 
Any reply must be in writing and limited to the issues raised in the ex 
parte notice to which the reply is directed; (7) Commissioners and 
agency staff may continue to request ex parte presentations during the 
Sunshine period, but these presentations should be limited to the 
specific information required by the Commission; (8) Ex parte notices 
must be submitted electronically in machine-readable format. PDF images 
created by scanning a paper document may not be submitted, except in 
cases in which a word-processing version of the document is not 
available. Confidential information may continue to be submitted by 
paper filing, but a redacted version must be filed electronically at 
the same time the paper filing is submitted. An exception to the 
electronic filing requirement will be made in cases in which the filing 
party claims hardship. The basis for the hardship claim must be 
substantiated in the ex parte filing; (9) To facilitate stricter 
enforcement of the ex parte rules, the Enforcement Bureau is authorized 
to levy forfeitures for ex parte rule violations; (10) Copies of 
electronically filed ex parte notices must also be sent electronically 
to all staff and Commissioners present at the ex parte meeting so as to 
enable them to review the notices for accuracy and completeness. Filers 
may be asked to submit corrections or further information as necessary 
for compliance with the rules. Where staff believes there are instances 
of substantial or repeated violations of the ex parte rules, staff 
should report such to the General Counsel; and (11) Minor conforming 
and clarifying rule changes proposed in the Notice are adopted. The 
only change entailing increased information collection is the 
requirement that parties making permissible ex parte presentations in 
restricted proceedings must file an ex parte notice.
    The information is used by parties to permit-but-disclose 
proceedings, including interested members of the public, to respond to 
the arguments made and data offered in the presentations. The responses 
may then be used by the Commission in its decision-making. The 
availability of the ex parte materials ensures that the Commission's 
decisional processes are fair, impartial, and comport with the concept 
of due process in that all interested parties can know of and respond 
to the arguments made to the decision-making officials.
    Currently, persons making ex parte presentations have no obligation 
to disclose whether the person making the presentation represents a 
real party-in-interest whose identity has not been disclosed. In this 
FNPRM, the Commission proposed to require the disclosure of the 
identity of real parties-in-interest, which would further the goal of 
openness and transparency in the Commission decision making process.

    Statutory Authority: 47 U.S.C. 154(i), 154(j), and 303(r).

Federal Communications Commission.
Marlene H. Dortch,
[FR Doc. 2011-10352 Filed 4-29-11; 8:45 am]