FCC Considers Requiring Commenters To File Cited Materials in Rulemaking Proceedings

The Federal Communications Commission seeks comment on additional procedures to improve transparency and efficiency in FCC proceedings. In particular, the FCC seeks comment on whether it 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.

In particular, the FCC 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 that the record timely and unambiguously includes those materials that parties to our proceedings believe to be germane and informative.

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?