FCC Amends Rules for Greater Transparency

The Federal Communications Commission is amending its rules concerning communications with staff and interested parties concerning FCC rulemaking proceedings. The Report and Order adopts a new rule requiring all oral ex parte communications to be documented, and their content 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 FCC. 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. We also continue this proceeding with a Further Notice of Proposed Rulemaking that asks for comment on whether the interests of fairness and openness would be served by adopting real party-in-interest disclosure rules based on those that apply in many court proceedings.

FCC Commissioner Michael Copps said the FCC, through this action, is making "true improvements to the transparency and openness of its work."

Quickly...

Filing and Content Requirements

Ex parte notices will be required for all oral ex parte presentations in permit-but-disclose proceedings, not just for those presentations that involve new information or arguments not already in the record.

If an oral ex parte presentation is limited to material already in the written record, the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number in the party’s written submission(s) where the matters discussed can be found. If an oral ex parte presentation includes new information, the notice must contain a summary of the new data and arguments presented.

Notices for all ex parte presentations must include the name of the person(s) who made the ex parte presentation as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made.

Notices of ex parte presentations made outside the Sunshine period must be filed within two business days of the presentation.

The question whether to require disclosure of real parties-in-interest requires further consideration in light of issues raised by the commenters. Therefore, while we do not adopt disclosure requirements today, we are including a Further Notice of Proposed Rulemaking to elicit further comment on this matter.

Special Provisions for the Sunshine Period
The Sunshine period will begin on the day (including business days, weekends, and holidays) after issuance of the Sunshine notice, rather than when the Sunshine Agenda is issued (as the current rules provide).

If an ex parte presentation is made on the day the Sunshine notice is released, an ex parte notice must be submitted by the next business day, and any reply would be due by the following business day. If a permissible ex parte presentation is made during the Sunshine period (under an exception to the Sunshine period prohibition), the ex parte notice is due by the end of the same day on which the presentation was made, and any reply would need to be filed by the next business day. Any reply must be in writing and limited to the issues raised in the ex parte notice to which the reply is directed.

Commissioners and agency staff may continue to request ex parte presentations during the Sunshine period, but these presentations should be limited to the specific information required by the Commission.

Electronic Filing
Ex parte notices must be submitted electronically in machine-readable format. PDF images created by scanning a paper document may not be submitted, except in cases in which a word-processing version of the document is not available. Confidential information may continue to be submitted by paper filing, but a redacted version must be filed electronically at the same time the paper filing is submitted. An exception to the electronic filing requirement will be made in cases in which the filing party claims hardship. The basis for the hardship claim must be substantiated in the ex parte filing.

Enforcement
To facilitate stricter enforcement of the ex parte rules, the Enforcement Bureau is authorized to levy forfeitures for ex parte rule violations.

The rules are modified to require that copies of electronically filed ex parte notices must also be sent electronically to all staff and Commissioners present at the ex parte meeting so as to enable them to review the notices for accuracy and completeness. Filers may be asked to submit corrections or further information as necessary for compliance with the rules. Where staff believes there are instances of substantial or repeated violations of the ex parte rules, staff should report such to the General Counsel.

New Media
Comments made on the Commission’s new media sites will not routinely be incorporated into the records of all permit-but-disclose proceedings at this time. The Commission will continue to incorporate this material into some Notices of Inquiry and other proceedings, and will continue to develop ways that will make its inclusion in additional proceedings technically possible. In the interim, 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, www.fcc.gov.