[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Rules and Regulations]
[Pages 24376-24383]
From the Federal Register Online via the Government Printing 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
PRA@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Joel Kaufman, Chief, Administrative
Law Division, Office of General Counsel, 202-418-1758 or
joel.kaufman@fcc.gov. 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 PRA@fcc.gov.
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