[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Notices]
[Pages 76728-76730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31545]
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FEDERAL COMMUNICATIONS COMMISSION
[GC Docket No. 10-44; DA 11-1950]
Benefits and Burdens of Requiring Commenters To File Cited
Materials in Rulemaking Proceedings as Further Reform To Enhance
Record-Based Decisionmaking
AGENCY: Federal Communications Commission.
ACTION: Notice.
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SUMMARY: This document seeks comment on procedures to improve
transparency and efficiency in Commission proceedings. In particular,
the Public Notice seeks comment on whether the Commission should
require commenters to file materials they cite in pleadings submitted
in rulemaking proceedings, so that those materials are more easily
accessible to all interested parties.
DATES: Comments may be filed on or before January 9, 2012, and reply
comments may be filed on or before January 23, 2012.
ADDRESSES: You may submit comments, identified by GC Docket No. 10-44,
by any of the following methods:
Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: See the SUPPLEMENTARY INFORMATION section of this
document.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-
0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information, see the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: For further information regarding this
proceeding, contact Elizabeth Lyle, Office of General Counsel, (202)
418-1720.
SUPPLEMENTARY INFORMATION: This is a summary of a Public Notice
released by the Office of General Counsel on November 29, 2011. The
full text of this document is available for public inspection and
copying during regular business hours in the Commission's Reference
Information Center, Portals II, 445 12th Street SW., Room CY-A257,
Washington, DC 20554. The complete text of this document also may be
purchased from the Commission's copy contractor, Best Copy and
Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402,
Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-
5563 or via email [email protected]. The full text may also be downloaded
at http://www.fcc.gov.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street SW., Washington DC 20554.
[[Page 76729]]
Documents will be available for public inspection and copying
during business hours at the FCC Reference Information Center, Portals
II, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The
documents may also be purchased from BCPI, telephone (202) 488-5300,
facsimile (202) 488-5563, TTY (202) 488-5562, email [email protected].
People with Disabilities: To request materials in accessible formats
for people with disabilities (braille, large print, electronic files,
audio format), send an email to [email protected] or call the Consumer &
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(tty). The Commission has designated this proceeding as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. 47 CFR 1.1200 et seq.; Amendment of Certain of the Commission's
Part 1 Rules of Practice and Procedure and Part 0 Rules of Commission
Organization, Notice of Proposed Rulemaking, 25 FCC Rcd 2430, 2439-40
(2010). Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the 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. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b) of the Commission's rules. In
proceedings governed by Sec. 1.49(f) of the Commission's rules 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, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.
Summary of Public Notice
This Public Notice seeks comment on additional procedures to
improve transparency and efficiency in Commission proceedings. In
particular, the Public Notice seeks comment on whether the Commission
should require commenters to file materials they cite in pleadings
submitted in rulemaking proceedings, so that those materials are more
easily accessible to all interested parties. The Commission bases its
decisions on record evidence, properly disclosed, with the least
possible burden on filers, and strives to tailor its procedures to
those ends. Transparency, robust public participation, and informed
decision-making are key values that the Commission and its staff strive
to uphold in all proceedings. In some proceedings, particularly large
and complicated rulemakings, staff may analyze materials that parties
have not submitted in the record, including materials such as state
statutes, academic articles, blog posts, and company financial reports.
This material may or may not contribute to the Commission's final
decision, and seeking comment specifically on all the sources viewed by
staff would greatly enlarge the record and tax the time and resources
of the Commission and parties, with potentially little benefit.
In an effort to balance these considerations, staff has submitted
collections of materials into the record of at least two major
proceedings. In the Preserving the Open Internet proceeding, staff
added the full text of various sources, including FCC working papers,
transcripts from FCC workshops, comments submitted in other Commission
rulemaking proceedings, public financial filings, academic literature,
news articles, blog posts, corporate and non-profit research reports,
material from industry participants' Web sites, and investment firm
conference call transcripts. See Letter from Carol Simpson, Deputy
Chief, Competition Policy Division, Wireline Competition Bureau, FCC,
to Marlene S. Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket
No. 07-52 (Dec. 13, 2010); Letter from Carol Simpson, Deputy Chief,
Competition Policy Division, Wireline Competition Bureau, FCC, to
Marlene S. Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket No.
07-52 (Dec. 10, 2010). In the Connect America Fund proceeding, staff
added citations to similar materials, including material from other
federal and state government entities, books, and data already released
by the Commission or the Universal Service Administrative Company. See
Letter from Jennifer Prime, Legal Counsel, Wireline Competition Bureau,
FCC, to Marlene Dortch, Secretary, FCC, WC Docket No. 10-90 et al.
(Oct. 19, 2011); Letter from Jennifer Prime, Legal Counsel, Wireline
Competition Bureau, FCC, to Marlene Dortch, Secretary, FCC, WC Docket
No. 10-90 et al. (Oct. 17, 2011); Letter from Jennifer Prime, Legal
Counsel, Wireline Competition Bureau, FCC, to Marlene Dortch,
Secretary, FCC, WC Docket No. 10-90 et al. (Oct. 7, 2011). Materials
also included such things as state statutes, pleadings and decisions
from state administrative proceedings, and data and reports available
on the Commission's Web site. In many instances, filings that the
Commission staff placed in the record had been cited by commenters in
their filings, and the staff's submission was intended to make the
materials more accessible. In both proceedings, however, a small number
of commenters voiced concern that such submissions, toward the end of
the proceeding, might not serve their intended purpose of promoting
transparent decision-making and might, indeed, limit opportunities for
meaningful responsive comment. See, e.g., Letter from Todd D. Daubert &
J. Isaac Himowitz, Counsel for SoutherinLINC Wireless and the Universal
Service for America Coalition, to Chairman Genachowski, WC Docket No.
10-90 et al., at 3 (Oct. 21, 2011); Letter from David A. LaFuria,
Counsel to Allied Wireless Communications Corp. et al., WC Docket No.
10-90 et al. (Oct. 20, 2011); see also Preserving the Open Internet,
Broadband Industry Practices, Report and Order, 25 FCC Rcd 17905,
18049-50 (2010) (dissenting Stmt. of Cmmr. McDowell), recon. and pets.
for review pending.
In light of these developments, the Public Notice seeks comment on
filing requirements that may improve transparency and informed
decision-making in future rulemaking proceedings. In particular, the
Public Notice seeks comment on requiring parties to submit full copies
of any materials cited in their pleadings or ex parte submissions. Such
a requirement may be viable under the Commission's current electronic
filing processes, when it would not previously have been feasible.
Further, it could help to ensure
[[Page 76730]]
that the record timely and unambiguously includes those materials that
parties to our proceedings believe to be germane and informative. In
the context of formal complaint proceedings, the Commission's rules
already require parties to provide ``all non-Commission authorities
relied upon which are not routinely available in national reporting
systems, such as unpublished decisions or slip opinions of courts or
administrative agencies.'' See 47 CFR 1.721(f).
What would be the benefits and burdens of such a new procedural
requirement in rulemaking proceedings? Should any such rule distinguish
among types of documents cited? For example, should data be treated
differently from other forms of information and should economic
analysis be treated differently from a law review article, court
decision, or other government publication? Should ease of access to the
cited information matter? If so, how should ease of access be
determined? Are there some circumstances in which materials could not
practically be placed in the record, such as when third parties do not
permit copying (e.g., daily newsletters), the material is very bulky,
or the material is in the form of a database? Would parties need to
place an entire document in the record or would an excerpt suffice?
Should the inclusion of an Internet address (URL) where the document
can be viewed be deemed sufficient to satisfy the filing requirement
for that document? Might this proposal diminish the quality of the
comments received by the Commission, for instance if the additional
burden of providing supporting materials outweighs their perceived
value to the commenter? Would this proposal impose an undue paperwork
burden on filers? Should the proposal be adopted in additional, or
different, categories of proceedings?
Federal Communications Commission.
Julie A. Veach,
Deputy General Counsel, Office of General Counsel.
[FR Doc. 2011-31545 Filed 12-7-11; 8:45 am]
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