[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Rules and Regulations]
[Pages 24376-24383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10353]


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FEDERAL COMMUNICATIONS COMMISSION

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: Final rule.

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SUMMARY: In this document the Commission revises certain ex parte and 
organizational rules. This document amends and reforms the Commission's 
rules on ex parte presentations made in the course of Commission 
rulemakings and other permit-but-disclose proceedings. It also adopts a 
new rule requiring all oral ex parte communications to be documented, 
and their contents described. This reform should enable those 
participating in our proceedings as well as those observing them to 
better identify and understand the issues being debated before the 
Commission. New electronic filing rules will empower anyone using the 
Internet to access this information, and stronger enforcement 
provisions will bolster these new requirements. Given the complexity of 
the issues we must decide and the far-reaching impact our decisions 
often have, we believe these initiatives to increase transparency serve 
the best interests of the Commission, the entities we regulate, and the 
public we serve.

DATES: Effective June 1, 2011, except for the amendments to Sec. Sec.  
1.1206(b) and 1.1208, which contain information collection requirements 
that are not effective until approved by the Office of Management and 
Budget. The FCC will publish a document in the Federal Register 
announcing the effective date for those rules.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. In addition to filing comments with the Office of 
the Secretary, a copy of any 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].

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, contact Leslie F. Smith, (202) 418-0217, or send an 
e-mail to [email protected].

SUPPLEMENTARY INFORMATION: In this Report and Order adopted on February 
1, 2011, and released on February 2, 2011, the Commission amends 
certain ex parte rules and other procedural rules, 47 CFR parts 1 and 
0. Part 1 outlines a number of rules regarding ``presentations'' by 
outside parties to the Commission. Section 1.1202(a) of the 
Commission's rules defines a ``presentation'' as a communication 
directed to the merits or outcome of a proceeding. 47 CFR 1.1202(a). An 
oral presentation is ex parte when it is made without advance notice to 
other parties to a proceeding and without the opportunity for them to 
be present. See 47 CFR 1.1202(b). For purposes of the ex parte rules, 
Commission proceedings are divided into three categories: those in 
which there is no restriction on ex parte presentations (``exempt'' 
proceedings); those in which ex parte presentations are prohibited 
(``restricted'' proceedings); and those in which ex parte presentations 
are permitted subject to disclosure (``permit-but-disclose'' 
proceedings). See 47 CFR 1.1204, 1.1206, 1.1208. The various categories 
of ``permit-but-disclose'' proceedings are enumerated in sections 
1.1206(a)(1) through (14) of the rules, and include informal rulemaking 
and declaratory ruling proceedings.
    On March 25, 2010, the Commission released a notice of proposed 
rulemaking seeking comment on a number of proposed changes to the 
Commission's ex parte rules. See Amendment of the Commission's Ex Parte 
Rules and Other Procedural Rules, 25 FCC Rcd 2403 (2010) (NPRM). By 
this Report and Order, we adopt final rules effecting a number of 
proposals described in the Notice. By a Further Notice of Proposed 
Rulemaking, published elsewhere in the Federal Register, we seek 
comment on the adoption of real party-in-interest disclosure rules. The 
following paragraphs describe the final rules adopted by the 
Commission.

Filing and Content Requirements

1. Ex Parte Presentations for Which Ex Parte Notices Must Be Filed

    Section 1.1206(b)(2) of our rules requires that a notice of an oral 
ex parte presentation must be filed only if new data or arguments not 
already reflected in the party's written comments, memoranda or other 
filings in that proceeding are discussed. 47 CFR 1.1206(b)(2). In the 
NPRM, we suggested that this reduces the adequacy of the record on 
which Commission decisions are based and deprives parties and the 
public of a fair opportunity to respond. See 25 FCC Rcd at 2406. We 
therefore proposed to require the filing of ex parte notices for every 
oral ex parte presentation, whether or not it contains new data or 
arguments. To the extent that the presentation merely reiterates data 
and arguments already contained in the written comments filed by the 
presenter, the filing would either include a summary of this 
information or provide specific references, including paragraph or page 
numbers, to the presenter's prior filings containing the data and 
arguments presented.
    As an initial matter, we determine that ex parte presentations can 
give the Commissioners and staff valuable new information on the often 
highly complex and technical legal, economic, and engineering issues 
that we must consider in reaching our decisions. Prohibiting ex parte 
contacts outright, or

[[Page 24377]]

limiting them in time and scope, could adversely affect our ability to 
respond to new issues as they arise in the course of a proceeding. 
Limiting oral ex parte presentations to material already in the record 
would result in mere redundancy, prevent the Commission from obtaining 
information it needs as efficiently as possible, and provide inadequate 
assurance that an undisclosed ex parte presentation had not been made. 
We also find that recording all oral ex parte contacts and making them 
available online would be impractical compared with posting more 
complete and comprehensive written summaries online. For these reasons, 
we determine that oral ex parte presentations on the issues raised in 
permit-but-disclose proceedings should continue to be allowed and 
should not be limited by the alternatives commenters in the proceeding 
suggested.
    In the Report and Order, we adopt the proposal set forth in the 
NPRM and require the filing of notices for all oral ex parte 
presentations made in permit-but-disclose proceedings, regardless of 
whether they involve new data or arguments or simply reiterate what the 
party has already submitted in the written record of the proceeding. 
Transparency requires that interested parties, and the public, know 
that ex parte meetings are taking place, no matter whether old or new 
information is being discussed. This proposal will better assure 
procedural fairness to parties participating in a proceeding, 
especially those with limited resources. Just as important, this rule 
change will increase the public's ability to follow the course of 
Commission proceedings, thereby facilitating the public's ability to 
express opinions on pending matters either by submitting written 
comments or by joining the informal discussion of issues on the 
Commission's new electronic media platforms. This, in turn, should 
increase public confidence in the integrity of Commission decisions. 
(We note that this proposal will not prove burdensome insofar as most 
parties already file at least a pro forma notice after making an oral 
ex parte presentation.)

2. Content of Notices

    Summary or Citation Required. The Report and Order next describes 
what information ex parte notices should contain. First, we find that 
it would not impose a significant burden on any party, or cause undue 
delays in filing, to require that a party reiterating data or arguments 
in its written submissions either summarize the information presented 
ex parte or include a citation to the pages or paragraphs of its own 
prior filings where the information can be found. Any incremental 
effort a party expends in providing brief summaries or citations to 
what it has itself written is minimal, and more than outweighed by the 
degree to which this requirement will facilitate the ability of 
everyone else involved--the Commission, staff, other parties, and the 
public--to understand how the issues in permit-but-disclose proceedings 
are being developed and refined. We therefore require parties making ex 
parte presentations that reiterate arguments previously made on the 
record to provide either a brief summary of the argument or a citation 
to either the page or the paragraph in the written material where the 
argument can be found. As our rules currently provide, when an ex parte 
presentation involves a discussion of new information or arguments, the 
notice must summarize the new arguments and data. Summaries must be 
sufficiently detailed that they would inform a person who did not 
attend the presentation of the facts that were discussed, the arguments 
made, and the support offered for those arguments.
    List of Participating Parties Required. Currently, section 
1.1206(b)(2) of the Commission's rules does not require that notices of 
ex parte presentations include a list of everyone attending or 
otherwise participating in an ex parte meeting. Many parties already 
include a list of attendees in their ex parte notices, and we find that 
requiring all parties to include such a list would not materially 
increase the burden of preparing ex parte notices. We determine that 
listing the names of all persons attending an ex parte presentation 
would significantly improve the transparency of the Commission's 
decision-making processes, and that other parties and the public are 
entitled to know who is attending or otherwise participating in 
meetings with decision-makers when an issue is being presented ex 
parte. We therefore amend our rules to incorporate a requirement that 
notices of ex parte presentations include a complete list of every 
person participating in the meeting.
    We do not impose further requirements concerning the content of ex 
parte notices at this time. In particular, we do not find it necessary 
to require that parties list of all their prior ex parte filings in a 
given proceeding. The Electronic Comment Filing System (ECFS) now makes 
it simple to find which parties have made oral ex parte presentations 
in a given proceeding and how often they have made them, rendering this 
proposal an unnecessary burden that would not materially increase the 
transparency of our proceedings.

Exemptions

1. Sunshine Exemption

    Section 1.1203(a) prohibits all presentations to decision-makers, 
whether ex parte or not, during the Sunshine period on matters listed 
on a Sunshine Agenda unless an exemption applies. (A Sunshine Agenda or 
Sunshine notice is typically released seven days before a Commission 
meeting and lists the items that will be presented to the Commission. 
The period between the release of the Sunshine Agenda and the 
Commission meeting is intended to provide decision-makers a ``period of 
repose'' during which they can consider the upcoming items free from 
outside interruptions. See Amendment of Part H, Part 1 of the 
Commission's Rules and Regulations Concerning Ex Parte Communications 
and Presentations in Commission Proceedings, 2 FCC Rcd 3011, 3020 
(1987).) This prohibition currently applies from the time a Sunshine 
notice is issued until the Commission releases a text of the decision 
or order relating to the matter, issues a public notice stating that 
the matter has been deleted from the Sunshine Agenda, or issues a 
public notice stating that the matter has been returned to the staff 
for further consideration. See 47 CFR 1.1203(b)(1)-(3). This 
prohibition is subject to an exemption for ex parte 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 pursuant to section 
1.1204(a)(10). See 47 CFR 1.1203(a)(1), 1.1204(a)(10). (A party making 
an oral ex parte communication during the Sunshine period pursuant to 
this exemption is required to file an ex parte notice pursuant to 
section 1.1204(a)(10)(iv), 47 CFR 1.1204(a)(10)(iv).)
    In the NPRM, we asked whether permitting ex parte presentations 
under any circumstances during the Sunshine period is compatible with 
the ``period of repose'' for internal deliberation the Sunshine period 
is intended to provide and, if so, whether the current exemption should 
be narrowed. In the event some type of exemption were found to serve 
the public interest, we also asked whether the Sunshine period 
prohibition should begin at midnight following the release of the 
Sunshine notice.
    In the Report and Order, we determine that the current rules

[[Page 24378]]

allowing the solicitation of ex parte presentations during the Sunshine 
period (either by the Commission or staff or with the advance approval 
of the Commission or staff) serves the public interest. As a practical 
matter, important issues can arise late in the deliberative process, 
and efficient decision-making requires that staff and Commissioners be 
permitted to gather the information needed to resolve them. As the 
issues the Commission considers become more numerous and complex, it is 
essential that the Commission have the ability to test its assumptions 
and conclusions, and that the information and arguments the Commission 
relies on in reaching its decisions are clear, compelling, and timely. 
Allowing the solicitation of ex parte presentations during the Sunshine 
period serves those needs, and we therefore retain the exemption in 
sections 1.1203(a)(1) and 1.1204(a)(10).
    We find in the Report and Order that fairness and transparency in 
these situations are protected by the requirement that all ex parte 
presentations solicited during the Sunshine period are subject to the 
same disclosure rules that apply whenever an ex parte presentation is 
made. We also believe that fairness and the interest in a complete and 
accurate record suggest that other parties should have an opportunity 
to reply to ex parte presentations made during the Sunshine period, 
just as they would if the ex parte presentation were made at any other 
time. However, in the interests of administrative efficiency, we 
believe that ex parte contacts during the Sunshine period should be 
minimized and limited to information that is necessary to the impending 
decision. Similarly, any reply filed in response to a solicited ex 
parte presentation that occurs during the Sunshine period should be 
limited to the specific issues raised in the ex parte notice, including 
any new facts or data submitted. We thus determine that the Sunshine 
period will commence on the day (including business days, weekends, and 
holidays) following the release of the Sunshine notice. This approach 
will afford parties a sufficient opportunity to make submissions before 
the Sunshine period begins.

2. Status Inquiries

    The NPRM also raised the issue of the exemption provided for 
inquiries on the status of permit-but-disclose proceedings. Section 
1.1202(a) and the note to that section generally provide that inquiries 
related solely to the approximate time that action in a proceeding may 
be taken, without expressing a view on the merits or outcome of the 
proceeding or the date by which it should be resolved, are not 
``presentations,'' and are therefore exempt from the rules on ex parte 
presentations. See 47 CFR 1.1202(a). We requested comment on changes to 
this rule. In the Report and Order, we do not amend the rule, but we 
restate that if a staff member believes that an ex parte presentation 
has actually been made, and the presenter appears to believe the 
communication was only a status inquiry, the staff member should inform 
the party making the contact of the party's obligation to file an ex 
parte notice.

3. Interagency Discussions

    Section 1.1204(a)(5) exempts any presentation ``to or from an 
agency or branch of the Federal Government or its staff and involves a 
matter over which that agency or branch and the Commission share 
jurisdiction.'' 47 CFR 1.1204(a)(5). Section 1.1204(a)(5) also requires 
the Commission to disclose factual information on issues of shared 
jurisdiction that is obtained ex parte from another Federal agency or 
agency staff member if the Commission relies on it in its decision-
making process. Section 1.1204(a)(6) contains a similar provision 
regarding contacts between the Commission and the Department of Justice 
or Federal Trade Commission on telecommunications competition matters 
not designated for hearing. See 47 CFR 1.1204(a)(6). A note to these 
paragraphs specifies that such information will be relied on by the 
Commission and disclosure made only after advance coordination with the 
agency involved. If the other agency does not wish the information 
disclosed, the Commission will not disclose it and cannot rely on it in 
its decision-making process.
    Several commenters suggested that we delete this exemption to the 
extent that it permits the National Telecommunications and Information 
Administration (NTIA) to discuss with the Commission issues concerning 
their shared responsibility over spectrum management. We do not adopt 
this proposal in the Report and Order. To require disclosure of all 
interagency ex parte contacts may not only affect another agency's 
jurisdictional responsibilities, as the Note states, but could also 
adversely affect the Commission's ability to render timely decisions 
based on the best information possible. We therefore believe that the 
current rules strike an appropriate balance between transparency and 
due process on the one hand and reasoned decision-making and 
administrative dispatch on the other.

Method of Filing

    In the NPRM, we called attention to the fact that many ex parte 
notices now are filed electronically on ECFS. This allows Commission 
staff, parties, and the general public easy and timely access to these 
filings online. By contrast, when ex parte notices are filed in paper 
format, they can take several days to appear in ECFS. This delays the 
staff's ability to analyze the contents of the presentation and limits 
outside parties' ability to respond to it, particularly during the 
Sunshine period. We therefore proposed to require that ex parte notices 
be filed electronically in any proceeding in which electronic filing is 
available. We sought comment on whether these electronic filings should 
be required in a machine-readable format, such as Microsoft Word 
``.doc'' format or non-copy protected text-searchable ``.pdf'' format 
for text filing, and ``native formats'' for non-text filings such as 
spreadsheets in Microsoft ``.xml'' format. We also recognized that 
electronic filing could be problematic where the party making the ex 
parte presentation does not have access to a computer or the Internet 
or the filing contains confidential business or financial information. 
We proposed specific language to codify the general requirement and 
exceptions, and sought comment on these issues. See 25 FCC Rcd at 2409-
10.
    1. Electronic Filing Requirement. In the Report and Order, we adopt 
the proposed rule requiring electronic filing. Consistent with the 
intent of section 1.1206(b)(2) and to assist Commissioners and 
decision-making staff, we modify section 1.1206(b)(2) to ensure that 
parties filing ex parte notices electronically also send copies to 
those Commissioners and staff who attended the meeting. We also adopt 
the requirement that electronic filings be made in a machine-readable 
format where feasible. This requirement parallels DC Circuit Court of 
Appeals Rule ECF-5, which requires electronically filed documents to be 
in machine-readable and text-searchable format. See Rule ECF-5(B), May 
15 Administrative Order. We are not persuaded that the possibility of 
altering electronically filed documents is of sufficient concern to 
warrant departing from the same filing procedure that Federal courts 
use. As the court rules also provide, we will grant exceptions to the 
electronic filing requirement for parties unable to comply by reason of 
hardship. A party claiming a hardship exemption must state the basis 
for its claim in the notice.

[[Page 24379]]

    2. Confidential Information. In recognition of concerns expressed 
by commenters about requiring the electronic filing of confidential 
information in ex parte notices, we permit parties to remove metadata 
containing confidential or privileged information, and we will not 
require parties to file electronically ex parte notices that contain 
confidential information. We will, however, require that a redacted 
version be filed electronically at the same time the paper filing is 
submitted, and that the redacted version be machine-readable whenever 
technically possible.
    3. Appendices and Attachments. With particular regard to appendices 
and attachments, we require that as a general matter appendices and 
attachments to an electronically filed notice should also be filed in a 
machine-readable format, and that PDF images created by scanning a 
paper document may not be submitted, except in cases where a word-
processing version of a document is not available. This approach tracks 
the rule for the U.S. Court of Appeals for the DC Circuit. We find that 
any incremental burden on the parties to prepare and submit redacted or 
scanned versions of certain material is outweighed by the efficiency of 
having these materials electronically accessible to the Commission, to 
other parties, and to the public.
    At the same time, however, we are mindful of the fact that there 
will be instances in which appended material is voluminous or otherwise 
not practically filed in machine-readable format, and we believe 
carefully considered exceptions should be made in those cases. In 
considering such exceptions, we note that U.S. District Court for the 
District of Columbia Local Rule LCvR 5.4(e)(1)(A)-(C) provides that 
attachments exceeding 500 pages, or not in a format that readily 
permits electronic filing such as large maps, charts, videotapes, and 
similar material, or that are filed under seal, may be filed in paper 
form. We will consider waivers of the electronic filing requirement for 
appendices and attachments on a case-by-case basis, and will require 
parties seeking a waiver to claim it when the filing is made.

Filing Deadlines

    In light of the added filing requirements proposed in the NPRM, we 
proposed to extend the deadline for filing notices of ex parte 
presentations from one to two business days for any presentation not 
made during the Sunshine period. However, in recognition of the need to 
assure procedural fairness for all parties during the compressed seven-
day Sunshine period, we also proposed a filing deadline of four hours 
for any ex parte presentation made during the Sunshine period.
    In the Report and Order, we extend the filing deadline from one to 
two business days for ex parte presentations occurring outside the 
Sunshine period. We find that this extension is reasonably calibrated 
to the expanded filing requirements adopted elsewhere in the Report and 
Order. In addition, because we require the submission of most ex parte 
notices electronically, which should speed their public availability, 
the added day for filing should not materially affect the ability of 
the Commission and its staff, other parties, and the public to identify 
the issues raised by various parties. In the interests of clarity and 
uniformity, we use ``business day'' to denote the entire calendar day 
(i.e., from 12 a.m. until 11:59:59 p.m.) for any day other than a 
weekend or holiday, and further specify that the governing time zone 
will be Eastern Time. Thus, for example, if an ex parte presentation 
occurs on a Tuesday, the ex parte notice must be filed no later than 
11:59:59 p.m. on the following Thursday, assuming no intervening 
holidays. But 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--a shorter deadline that is necessary to afford 
all parties a sufficient opportunity to present their arguments within 
the compressed timeframe of the Sunshine period. Under these 
circumstances, any reply must be filed by the next business day 
following filing of the ex parte notice, and must be submitted in 
writing and limited to only the particular issues raised in the ex 
parte notice. Thus, if an ex parte presentation is made on a Tuesday 
and the Sunshine notice is also issued on that day, the ex parte notice 
must be filed no later than 11:59:59 p.m. on Wednesday, and any reply 
would need to be filed by 11:59:59 p.m. on Thursday, assuming no 
intervening holidays. Copies of any reply must be provided to each 
staff member or Commissioner who received the original presentation 
from the submitting party. Neither oral replies nor oral or written 
sur-replies are permitted in the absence of an express request by a 
Commissioner or staff.
    When ex parte presentations are made during the limited Sunshine 
period, it is particularly important that the required notices be filed 
quickly and in an accessible electronic format. However, we find valid 
the concern about the difficulty of complying with a four-hour filing 
deadline, especially in those not-infrequent cases in which a party 
makes several oral ex parte presentations in one day. We find that 
imposing a four-hour deadline on filings made after a series of 
meetings at different times during the same day could result in rushed, 
insufficient filings and unintentional noncompliance with the deadline. 
For this reason, we amend our rule to provide that permissible ex parte 
presentations made in permit-but-disclose proceedings during the 
Sunshine period (under an exception to the Sunshine period prohibition) 
must be summarized and placed in the record by the end of the same day 
(i.e., by 11:59:59 p.m.) on which the presentation was made. This 
revised deadline is more easily applied than our four-hour proposal and 
should not materially affect the interests of due process and 
transparency. Consistent with this revised rule, we will allow parties 
to file written replies to ex parte presentations during the Sunshine 
period no later than the next business day following the presentation. 
These replies shall be limited to addressing the specific issues and 
information in the ex parte notice to which they are replying. Copies 
of any reply must be provided to each staff member or Commissioner who 
received the original presentation from the submitting party. Finally, 
as in the case of filings for presentations made on the day the 
Sunshine Notice is issued, neither oral replies nor oral or written 
sur-replies shall be permitted in the absence of an express request by 
staff.

Sanctions and Enforcement

    In the NPRM, we stated our intent to place increased emphasis on 
enforcement addressing impermissible ex parte contacts, regardless of 
any rule amendments we might adopt in this Report and Order. We asked 
specifically what sanctions would be appropriate to address the filing 
of insufficient ex parte notices, and whether prejudice to other 
parties should be a principal factor in determining an appropriate 
sanction. We also sought comment on whether all sanctions for ex parte 
rule violations should be publicly announced. See 25 FCC Rcd at 2415.
    In the Report and Order, we affirm the tentative conclusion in the 
NPRM that stricter enforcement of our ex parte rules complements the 
improvements to the rules described elsewhere in this summary and 
reinforces their purpose in making our proceedings more open and 
transparent to the public and fairer to interested parties. We further 
find that the revised enforcement program will be best implemented by 
close

[[Page 24380]]

coordination between the Office of General Counsel and the Enforcement 
Bureau. Accordingly, the Office of General Counsel will retain the 
authority it currently has under section 0.251(g), 47 CFR 0.251(g), to 
issue rulings on whether violations of the ex parte rules have occurred 
and to impose appropriate sanctions. We do, however, amend our rules to 
require that the General Counsel refer any case in which a forfeiture 
or a citation may be warranted to the Enforcement Bureau for 
disposition, and we delegate authority to the Enforcement Bureau to 
levy fines for violations of the ex parte rules. In the event the 
Enforcement Bureau ultimately determines that a forfeiture or a 
citation is not warranted, the General Counsel will take appropriate 
action on the matter. The Commission will also give public notice via 
the Internet of the filing and disposition of ex parte complaints.
    We decline at this time to provide for the harsher sanction of 
routine disqualification. Although it would certainly deter parties 
from violating the rules, routinely barring parties from further 
participation in Commission proceedings diminishes their ability to 
influence action from the Commission that would serve the public 
interest, and it would lessen the pool of knowledge and information on 
which to base our decisions. However, we will monitor this new 
enforcement program to assure that it is effective in deterring future 
violations.

Other Issues

1. Other Agencies' Procedures

    In the NPRM, we observed that other Federal agencies have ex parte 
rules and procedures that differ from our own, including the 
requirement that Commissioners and staff summarize and file oral ex 
parte communications rather than the parties making them. See 25 FCC 
Rcd at 2408-09. We asked whether any of these distinct approaches would 
be instructive in considering amendments to our own ex parte rules.
    We see no clear advantage to the suggestion by one commenter that 
Commission staff prepare and file ex parte notices. Even if the 
Commission is unique in relying on outside parties to submit such 
notices, other agencies may be differently situated to the extent their 
docket is primarily adjudicatory rather than rulemaking (e.g., the 
Federal Trade Commission). Also, staff summaries raise an issue of 
fairness. The complex legal and technical nature of the issues 
sometimes presented ex parte make it preferable for the parties arguing 
those issues to summarize them. We also question what procedures would 
be used in cases where the presenter believes a staff summary is 
incorrect or incomplete. Finally, the time staff would spend in writing 
summaries of ex parte presentations would take away from the time 
available to analyze the issues and assist the Commission in reaching 
its decisions. For these reasons, we focus primarily in the Report and 
Order on improving our own rules rather than on adopting the rules of 
other agencies.
    As we stated previously, we amend our rules to clarify that copies 
of all electronically filed ex parte notices be sent electronically to 
staff and Commissioners who participated in the presentation. This will 
enhance the ability of decision-makers to review these notices 
expeditiously, detect any outstanding errors or omissions, and request 
that they be cured. Filers may be asked to submit any corrections or 
further information as necessary to comply with the ex parte rules. 
Where staff believes there are instances of substantial or repeated 
violations of the ex parte rules, staff should report such violations 
to the General Counsel.

2. New Media

    Although we did not propose any rule amendments in the NPRM 
regarding the treatment of comments on various Commission new media 
sites, including the Commission's blogs, its Facebook page, its MySpace 
page, its IdeaScale pages, its Flickr page, its Twitter page, its RSS 
feeds, and its YouTube page, several commenters addressed this issue. 
As a general matter, the commenters addressing this issue acknowledged 
the value of new media as part of the Commission's public outreach 
efforts, but they expressed reservations about the use of this material 
in Commission proceedings.
    In the Report and Order, we find that these comments illustrate the 
complications associated with increasing the accessibility of 
Commission decision-making via new media in proceedings governed by the 
Administrative Procedure Act. The Commission has incorporated some of 
this material into the record of some inquiries and other proceedings, 
and will continue to develop ways that will make its inclusion in more 
proceedings technically and practically possible. However, at this 
time, we agree that incorporating blog posts and other presentations 
via new media into the record of all rulemaking proceedings would be 
impractical. Therefore, as stated in the NPRM, we will continue to 
associate new media contacts in the records of specific proceedings, on 
the terms announced for those particular proceedings. In addition, 
users of new media may file comments electronically in any permit-but-
disclose proceeding consistent with the ex parte rules by clicking on 
the link to ECFSExpress on the Commission's homepage: http://www.fcc.gov.

Minor and Conforming Amendments

    The NPRM proposed a series of minor changes to the ex parte rules 
designed to update or clarify them. See 25 FCC Rcd at 2416-18. For the 
reasons stated in the NPRM, we adopt in the Report and Order the 
following minor amendments: (1) Section 1.1202(d)(6), 47 CFR 
1.1202(d)(6), duplicates section 1.1202(d)(5) and is deleted; (2) 
section 1.1204(a)(6), 47 CFR 1.1204(a)(6), is amended to change the 
word ``telecommunications'' to ``communications'' and to delete the 
word ``competition''; (3) section 1.1204(a)(12), 47 CFR 1.1204(a)(12), 
is amended to add the Pooling Administrator and the TRS Numbering 
Administrator to the list of entities with whom communications are 
exempt from the ex parte rules; (4) section 1.1206(a), 47 CFR 
1.1206(a), is amended to delete from the list of permit-but-disclose 
proceedings Bell Operating Company applications under section 271 of 
the Act, because all Bell Operating Companies have applied for and 
received authority under section 271 in all their respective states; 
(5) section 1.1208, 47 CFR 1.1208, is amended to require the filing of 
a disclosure notice when parties in restricted proceedings make a 
permissible presentation on a non-ex parte basis (i.e., when other 
parties have been given advance notice and an opportunity to 
participate); (6) section 1.1206(b)(2), 47 CFR 1.1206(b)(2), is 
clarified to state expressly that documents shown or given to 
Commission staff during ex parte meetings are themselves written ex 
parte presentations and must be filed; (7) section 1.1206(b)(2), 47 CFR 
1.1206(b)(2), is further amended by adding a sentence to note one to 
codify the practice whereby the staff at its discretion may file an ex 
parte summary of a multiparty meeting as an alternative to having each 
participant do so; (8) section 1.1203(a)(4), 47 CFR 1.1203(a)(4), is 
clarified to state that the requirement to disclose presentations made 
during the Sunshine period only applies to presentations made in 
permit-but-disclose proceedings; (9) section 1.1203, 47 CFR 1.1203, is 
clarified to state that the Sunshine period prohibition does not affect 
parties' obligation to file a written ex parte presentation or 
memorandum

[[Page 24381]]

summarizing an oral ex parte presentation made on the day before the 
Sunshine period begins, even though new ex parte presentations are not 
permitted during the Sunshine period unless they are made pursuant to 
an exception to the prohibition on ex parte contacts; and (10) section 
1.1206, 47 CFR 1.1206, is non-substantively reorganized to make it 
clearer and easier to understand and to make various conforming edits.
    Regulatory Flexibility Act. Our actions do not require notice and 
comment, and therefore fall outside the Regulatory Flexibility Act of 
1980, as amended, 5 U.S.C. 605(b), and require 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 rules changes 
adopted in the Report and Order will not have a significant economic 
impact on a substantial number of small entities or impose significant 
costs on parties to Commission proceedings.
    Paperwork Reduction Act of 1995 Analysis. This document contains 
new and modified information collection requirements. The Commission, 
as part of its continuing effort to reduce paperwork burdens, invites 
the general public to comment on the information collection 
requirements contained in this Report and Order as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. In addition, the 
Commission notes that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we 
previously sought specific comment on how the Commission might further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees. In this present document, we have 
assessed the effects of the modified ex parte rules on small business 
concerns, and find that they will impose no significant added burden on 
businesses with fewer than 25 employees.
    Congressional Review Act. The Commission will send a copy of this 
Report and Order to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

List of Subjects

47 CFR Part 0

    Organization and functions (Government agencies).

47 CFR Part 1

    Administrative practice and procedure, claims, Investigations, 
Lawyers, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 0 and 1 as follows:

PART 0--COMMISSION ORGANIZATION

0
1. The authority citation for part 0 continues to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 
225, unless otherwise noted.


0
2. Section 0.111 is amended by redesignating paragraphs (a)(15) through 
(23) as paragraphs (a)(16) through (24) and by adding new paragraph 
(a)(15) to read as follows:


Sec.  0.111  Functions of the Bureau.

    (a) * * *
    (15) Upon referral from the General Counsel pursuant to Sec.  
0.251(g), impose sanctions for violations of the Commission's ex parte 
rules including, but not limited to, the imposition of monetary 
forfeitures, consistent with Sec.  0.311.
* * * * *

0
3. Section 0.251 is amended by revising paragraph (g) to read as 
follows:


Sec.  0.251  Authority delegated.

* * * * *
    (g) The General Counsel is delegated authority to issue rulings on 
whether violations of the ex parte rules have occurred and to impose 
appropriate sanctions. The General Counsel shall refer to the 
Enforcement Bureau for disposition pursuant to Sec.  0.311(b) any 
matter in which a forfeiture or a citation under 47 U.S.C. 503(b)(5) 
may be warranted. If the Enforcement Bureau determines that forfeiture 
or a citation is not warranted, the matter shall be referred back to 
the General Counsel for appropriate action.
* * * * *

PART 1--PRACTICE AND PROCEDURE

0
4. 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.  1.1202  [Amended]

0
5. In Sec.  1.1202, remove paragraph (d)(6).

0
6. Section 1.1203 is amended by revising paragraphs (a)(4) and (b) 
introductory text, and adding 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. Except as 
otherwise provided in Sec.  1.1204(a)(6), if the 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 proceeding by Commission staff or by the 
presenter in accordance with the procedures set forth in Sec.  
1.1206(b).
    (b) The prohibition set forth in paragraph (a) of this section 
begins on the day (including business days and holidays) after the 
release of a public notice that a matter has been placed on the 
Sunshine Agenda until the Commission:
* * * * *
    (c) The prohibition set forth in paragraph (a) of this section 
shall not apply to the filing of a written ex parte presentation or a 
memorandum summarizing an oral ex parte presentation made on the day 
before the Sunshine period begins, or a permitted reply thereto.

0
7. Section 1.1204 is amended by revising paragraphs (a)(6) and 
(a)(12)(iv), and adding paragraphs (a)(12)(v) and (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 decision-making process will be disclosed by the 
Commission no later than at the time of the release of the Commission's 
decision;
* * * * *
    (12) * * *
    (iv) The Number Portability Administrator relating to the 
administration of local number portability pursuant to 47 U.S.C.

[[Page 24382]]

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).
* * * * *

0
8. Section 1.1206 is amended by revising paragraph (a)(12), removing 
paragraph (a)(13), and redesignating paragraph (a)(14) as (a)(13), 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) Oral presentations. A person who makes an oral ex parte 
presentation subject to this section shall submit to the Commission's 
Secretary a memorandum that lists all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and summarizes all data presented and arguments made during the 
oral ex parte presentation. 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. If the oral ex 
parte presentation consisted in whole or in part of the presentation of 
data or arguments already reflected in the presenter's written 
comments, memoranda or other filings in the proceeding, the presenter 
may provide citations to such data or arguments in his or her prior 
comments, memoranda, or other filings (specifying the relevant page 
and/or paragraph numbers where such data or arguments can be found) in 
lieu of summarizing them in the memorandum.

    Note to Paragraph (b)(1):  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. Likewise, Commission staff in its 
discretion may file an ex parte summary of a multiparty meeting as 
an alternative to having each participant file a summary.

    (2) Written and oral presentations. A written ex parte presentation 
and a memorandum summarizing an oral ex parte presentation (and cover 
letter, if any) shall clearly identify the proceeding to which it 
relates, including the docket number, if any, and must be labeled as an 
ex parte presentation. Documents shown or given to Commission staff 
during ex parte meetings are deemed to be written ex parte 
presentations and, accordingly, must be filed consistent with the 
provisions of this section. Consistent with the requirements of Sec.  
1.49 paragraphs (a) and (f), additional copies of all written ex parte 
presentations and notices of oral ex parte presentations, and any 
replies thereto, shall be mailed, e-mailed or transmitted by facsimile 
to the Commissioners or Commission employees who attended or otherwise 
participated in the presentation.
    (i) 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 through the electronic comment filing system available for that 
proceeding, and shall be filed in a native format (e.g., .doc, .xml, 
.ppt, searchable .pdf). If electronic filing would present an undue 
hardship, the person filing must request an exemption from the 
electronic filing requirement, stating clearly the nature of the 
hardship, and submitting an original and one copy of the written ex 
parte presentation or memorandum summarizing an oral ex parte 
presentation to the Secretary, with a copy by mail or by electronic 
mail to the Commissioners or Commission employees who attended or 
otherwise participated in the presentation.
    (ii) Confidential Information. In cases where a filer believes that 
one or more of the documents or portions thereof to be filed should be 
withheld from public inspection, the filer should file electronically a 
request that the information not be routinely made available for public 
inspection pursuant to Sec.  0.459 of this chapter. Accompanying any 
such request, the filer shall include in paper form a copy of the 
document(s) containing the confidential information, and also shall 
file electronically a copy of the same document(s) with the 
confidential information redacted. The redacted document shall be 
machine-readable whenever technically possible. Where the document to 
be filed electronically contains metadata that is confidential or 
protected from disclosure by a legal privilege (including, for example, 
the attorney-client privilege), the filer may remove such metadata from 
the document before filing it electronically.
    (iii) Filing dates outside the Sunshine period. Except as otherwise 
provided in paragraphs (b)(2)(iv) and (v) of this section, all written 
ex parte presentations and all summaries of oral ex parte presentations 
must be filed no later than two business days after the presentation. 
As set forth in Sec.  1.4(e)(2), a ``business day'' shall not include a 
holiday (as defined in Sec.  1.4(e)(1)). In addition, for purposes of 
computing time limits under the rules governing ex parte presentations, 
a ``business day'' shall include the full calendar day (i.e., from 
12:00 a.m. Eastern Time until 11:59:59 p.m. Eastern Time).
    Example: On Tuesday a party makes an ex parte presentation in a 
permit-but-disclose proceeding to a Commissioner. The second 
business day following the ex parte presentation is the following 
Thursday (absent an intervening holiday). The presenting party must 
file its ex parte notice before the end of the day (11:59:59 p.m.) 
on Thursday. Similarly, if an ex parte presentation is made on 
Friday, the second business day ordinarily would be the following 
Tuesday, and the ex parte notice must be filed no later than 
11:59:59 p.m. on that Tuesday.

    (iv) Filing dates for presentations made on the day that the 
Sunshine notice is released. For presentations made on the day the 
Sunshine notice is released, any written ex parte presentation or 
memorandum summarizing an oral ex parte presentation required pursuant 
to Sec.  1.1206 or Sec.  1.1208 must be submitted no later than the end 
of the next business day. Written replies, if any, shall be filed no 
later than two business days following the presentation, and shall be 
limited in scope to the specific issues and information presented in 
the ex parte filing to which they respond.
    Example: On Tuesday, a party makes an ex parte presentation in a 
permit-but-disclose proceeding to a Commissioner. That same day, the 
Commission's Secretary releases the Sunshine Agenda for the next 
Commission meeting and that proceeding appears on the Agenda. The 
Sunshine period begins as of Wednesday, and therefore the presenting 
party must file its ex parte notice by the end of the day (11:59:59 
p.m.) on Wednesday. A reply would be due by the end of the day 
(11:59:59 p.m.) on Thursday.

    (v) Filing dates during the Sunshine Period. If an ex parte 
presentation is made pursuant to an exception to the Sunshine period 
prohibition, the written ex parte presentation or

[[Page 24383]]

memorandum summarizing an oral ex parte presentation required under 
this paragraph shall be submitted by the end of the same business day 
on which the ex parte presentation was made. The memorandum shall 
identify plainly on the first page the specific exemption in Sec.  
1.1203(a) on which the presenter relies, and shall also state the date 
and time at which any oral ex parte presentation was made. Written 
replies to permissible ex parte presentations made pursuant to an 
exception to the Sunshine period prohibition, if any, shall be filed no 
later than the next business day following the presentation, and shall 
be limited in scope to the specific issues and information presented in 
the ex parte filing to which they respond.

    Example: On Tuesday, the Commission's Secretary releases the 
Sunshine Agenda for the next Commission meeting, which triggers the 
beginning of the Sunshine period on Wednesday. On Thursday, a party 
makes an ex parte presentation to a Commissioner on a proceeding 
that appears on the Sunshine Agenda. That party must file an ex 
parte notice by the end of the day (11:59:59 p.m.) on Thursday. A 
reply would be due by the end of the day (11:59:59 p.m.) on Friday.

    (vi) If a notice of an oral ex parte presentation is incomplete or 
inaccurate, staff may request the filer to correct any inaccuracies or 
missing information. Failure by the filer to file a corrected 
memorandum in a timely fashion as set forth in paragraph (b) of this 
section, or any other evidence of substantial or repeated violations of 
the rules on ex parte contacts, should be reported to the General 
Counsel.
    (3) Notwithstanding paragraphs (b)(1) and (2) of this section, 
permit-but-disclose proceedings involving 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 written summaries of any such oral presentations and place them 
in the record in accordance with paragraph (b) of this section and also 
place any written presentations in the record in accordance with that 
paragraph.
    (4) Notice of ex parte presentations. The Commission's 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 generally should be released at least twice per week.

    Note 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.


0
9. Section 1.1208 is amended by revising the introductory 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) 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 a 
written or oral presentation in a restricted proceeding, on a non-ex 
parte basis, must file a copy of the presentation or, for an oral 
presentation, a summary of the presentation in the record of the 
proceeding using procedures consistent with those specified in Sec.  
1.1206.
* * * * *
0
10. Section 1.1216 is amended by revising paragraph (a) and adding 
paragraph (d) to read as follows:


Sec.  1.1216  Sanctions.

    (a) Parties. Upon notice and hearing, any party to a proceeding who 
directly or indirectly violates or causes the violation of any 
provision of this subpart, or who fails to report the facts and 
circumstances concerning any such violation as required by this 
subpart, may be subject to sanctions as provided in paragraph (d) of 
this section, or disqualified from further participation in that 
proceeding. In proceedings other than a rulemaking, a party who has 
violated or caused the violation of any provision of this subpart may 
be required to show cause why his or her claim or interest in the 
proceeding should not be dismissed, denied, disregarded, or otherwise 
adversely affected. In any proceeding, such alternative or additional 
sanctions as may be appropriate may also be imposed.
* * * * *
    (d) Penalties. A party who has violated or caused the violation of 
any provision of this subpart may be subject to admonishment, monetary 
forfeiture, or to having his or her claim or interest in the proceeding 
dismissed, denied, disregarded, or otherwise adversely affected. In any 
proceeding, such alternative or additional sanctions as may be 
appropriate also may be imposed. Upon referral from the General Counsel 
following a finding of an ex parte violation pursuant to Sec.  0.251(g) 
of this chapter, the Enforcement Bureau shall have delegated authority 
to impose sanctions in such matters pursuant to Sec.  0.111(a)(15) of 
this chapter.

[FR Doc. 2011-10353 Filed 4-29-11; 8:45 am]
BILLING CODE 6712-01-P