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April 1997
This Fact Sheet provides information to help you
understand the FCC's recently revised ex parte rules.
These rules are found in sections 1.1200 to 1.1216 of
volume 47 of the Code of Federal Regulations, as
amended by FCC 97-92, released March 19, 1997. The
effective date of the revised rules is June 2, 1997.
1. What is the purpose of the ex parte rules?
The ex parte rules govern the manner in which persons
may communicate with the Commission concerning the
issues in its proceedings. The rules play an
important role in protecting the fairness of the FCC's
proceedings by assuring that FCC decisions are not
influenced by impermissible off-the-record-communications between decision-makers and others. At
the same time, the rules are designed to ensure that
the FCC has sufficient flexibility to obtain the
information that is necessary for it to make
reasonable decisions.
2. Do the ex parte rules apply to me?
The ex parte rules apply to anyone who engages in the
kind of communications covered by the rules whether or
not they are a party to the proceeding.
3. What types of communications are covered by the ex
parte rules?
The rules govern ex parte presentations to FCC
decision makers. In some types of proceedings
(restricted proceedings), the rules prohibit ex parte
presentations to decision makers concerning the issues
in its proceedings. In other types of proceedings
(permit-but-disclose proceedings), the rules require
that summaries of such presentations be placed in the
record. In some types of proceedings (exempt
proceedings), there are no restrictions on ex parte
presentations. The rules describe which types of
restrictions or requirements, if any, apply to ex
parte presentations apply in the various types of
Commission proceedings.
4. What is a presentation?
A presentation is a communication directed to the
merits or outcome of a proceeding, including any
procedural or other issues raised in the proceeding.
There are some exceptions, however. Communications
which are inadvertently or casually made are not
presentations. Neither are routine inquiries about
compliance with the Commission's procedural rules,
such as when a pleading must be filed, so long as the
question has not become the subject of dispute in the
proceeding. Inquiries relating solely to the status
of a proceeding are not presentations. However, a
status inquiry is deemed a presentation if it states
or implies a view as to the merits or outcome of the
proceeding or a preference for a particular party,
states why timing is important to a particular party
(other than the need to avoid administrative delay),
or indicates a view as to the date by which a
proceeding should be resolved.
5. What is an ex parte presentation?
An ex parte presentation is any presentation which, if
written (including electronic mail), is not served on
the parties to the proceeding, or, if oral, is made
without advance notice to the parties and without
opportunity for them to be present.
6. Who are FCC decision-making personnel?
Decision-making personnel are those people at the
Commission who are or who may reasonably be expected
to be involved in formulating a decision, rule, or
order in a proceeding. All FCC Bureau or Office staff
are considered decision-making personnel with respect
to decisions, rules, and orders in which their Bureau
or Office participates unless they have been
designated as part of a separate trial staff or
otherwise formally excluded from the decisional
process in the proceeding.
7. What ex parte presentations are exempt regardless
of the type of proceeding involved?
Certain kinds of ex parte presentations are considered
"exempt" and may be freely made even if a proceeding
is permit-but-disclose or restricted. Participants in
Commission proceedings should be aware that these
include:
(1) presentations authorized by statute or by the
Commission's rules to be made without service, as well
as the filing of required forms;
(2) presentations to the General Counsel's office
concerning judicial review of a proceeding;
(3) presentations directly relating to emergency
situations; and
(4) situations where confidentiality is necessary to
protect persons making ex parte presentations from
possible reprisals.
Participants in Commission proceedings are also
permitted to make 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,
subject to certain disclosure requirements.
Parties to restricted Commission proceedings are
permitted to request orally that the Commission act by
a particular date or give reasons for expediting the
case other than the need to avoid administrative
delay. If they do so, however, they must promptly
file a detailed summary of the presentation in the
record and serve it on the other parties to the
proceeding. Other parties may respond similarly in
support or opposition to the request.
The rules contain other exemptions and should also be
consulted to determine if a particular exemption
contains a disclosure requirement.
8. What types of proceedings are exempt from any
limitations on ex parte presentations?
Ex parte presentations are permissible in "exempt"
proceedings. There are six kinds of exempt
proceedings. These are:
(1) notice of inquiry proceedings;
(2) petitions for rulemaking (except for petitions
requesting the allotment of a broadcast channel) and
other requests for rule changes and policy statements;
(3) tariff proceedings (including directly associated
waiver requests or requests for special permission)
prior to being set for investigation;
(4) proceedings relating to prescription of common
carrier depreciation rates under section 220(b) of the
Communications Act prior to release of a public notice
of specific proposed depreciation rates;
(5) informal complaint proceedings under section 208
of the Communications Act; and
(6) complaints against a cable operator regarding its
rates that are not filed on FCC Form 329.
9. In what types of proceedings may ex parte
presentations be made if they are properly disclosed?
Ex parte presentations are permitted in "permit-but-disclose" proceedings provided that the presentations
are disclosed in the manner specified in the rules.
There are eleven kinds of permit-but-disclose
proceedings. These are:
(1) informal notice and comment rulemaking proceedings other than a proceeding for the allotment of a broadcast channel, upon release of a Notice of Proposed Rulemaking;
(2) proceedings involving a rule change, policy
statement or interpretive rule adopted without a
Notice of Proposed Rule Making upon release of the
order adopting the rule change, policy statement or
interpretive rule;
(3) declaratory ruling proceedings;
(4) tariff proceedings which have been set for
investigation under section 204 or 205 of the
Communications Act (including directly associated
waiver requests or requests for special permission);
(5) unless designated for hearing, proceedings under section 214(a) of the Communications Act that do not also involve applications for authorizations for radio communications services;
(6) unless designated for hearing, proceedings
involving applications for Cable Landing Act licenses
that do not also involve applications for
authorizations for radio communications services;
(7) proceedings involving a request for information
filed pursuant to the Freedom of Information Act;
(8) proceedings before a Joint Board or proceedings
before the Commission involving a recommendation from
a Joint Board;
(9) proceedings conducted pursuant to section 220(b)
of the Communications Act for prescription of common
carrier depreciation rates upon release of a public
notice of specific proposed depreciation rates;
(10) proceedings to prescribe a rate of return for
common carriers under section 205 of the
Communications Act; and
(11) cable rate complaint proceedings pursuant to
section 623(c) of the Communications Act where the
complaint is filed on FCC Form 329.
If there is only one party involved in a permit-but-disclose proceeding, that party may communicate with
the Commission without disclosure. If, however, a
presentation is made by a nonparty or by one of
multiple parties in such a proceeding, the
presentation is deemed ex parte and must be disclosed
(persons who are "parties" for purposes of the ex
parte rules are described in detail in question 13).
10. What are the disclosure requirements applicable in permit-but-disclose proceedings?
There are specific procedures for ensuring that the
presentations are reflected in the record of a permit-but-disclose proceeding. Ex parte presentations by
members of Congress or their staffs and other federal
agencies or their staffs need be disclosed only if
they are of substantial significance and clearly
intended to affect the ultimate decision in the
proceeding. Disclosure of ex parte presentations by
members of Congress or their staffs and other federal
agencies or their staffs will generally be made by the
Commission's staff.
In other circumstances, persons making written ex
parte presentations must, no later than the next
business day after the presentation, submit two copies
of the presentation to the Commission's secretary
under separate cover for inclusion in the public
record. The presentation (and cover letter) must
clearly identify the proceeding to which it relates,
including the docket number, if any; must indicate
that two copies have been submitted to the Secretary;
and must be labeled as an ex parte presentation. If
the presentation relates to more than one proceeding,
two copies must be filed for each proceeding.
Persons making oral ex parte presentations must
disclose them if they present data or arguments not
already reflected in that person's written comments,
memoranda or other filings in that proceeding. In
that case, the person must, no later than the next
business day after the presentation, submit to the
Commission's Secretary, with copies to the
Commissioners or Commission employees involved in the
oral presentation, an original and one copy of a
memorandum which summarizes the new data or arguments.
The subject matter of the presentation must be fully
disclosed; a mere listing of the subjects discussed is
not sufficient, and more than a one or two sentence
description of the views and arguments presented is
required. The memorandum (and cover letter) must
clearly identify the proceeding to which it relates,
including the docket number, if any, must indicate
that an original and one copy have been submitted to
the Secretary, and must be labeled as an ex parte
presentation. If the presentation relates to more
than one proceeding, two copies of the memorandum (or
an original and one copy) must be filed for each
proceeding. There is an exception to these
requirements where, for example, presentations occur
in the form of discussion at a widely attended
meeting, and 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 tape recording of the discussion as an
alternative to a memorandum.
11. How does the Commission give notice of ex parte
presentations in permit-but-disclose proceedings?
The Commission's Secretary issues a public notice at least twice a week listing any written ex parte presentations or written summaries of oral ex parte presentations in permit-but-disclose proceedings. It is possible that some presentations might inadvertently be omitted from this list, so interested persons should review the public file or record in proceedings about which they are concerned, where the copies of written presentations and memoranda of oral presentations can be found.
12. In what proceedings are ex parte presentations
prohibited entirely?
In all proceedings other than those specifically
listed as "exempt proceedings" or "permit-but-disclose
proceedings," ex parte presentations are prohibited.
In such proceedings, called "restricted proceedings,"
any written presentations to FCC decision makers must
be served on all the parties and oral presentations
may not be made unless all parties are given advance
notice and an opportunity to be present. If there is
only one party involved in a restricted proceeding,
that party may freely communicate with the Commission,
because there are no other parties entitled to advance
notice or service. However, presentations by a
nonparty or by one of multiple parties in a proceeding
are prohibited unless all parties are served or given
an opportunity to be present. Restricted proceedings
include all proceedings that have been designated for
hearing, proceedings involving amendments to the
broadcast table of allotments, applications for
authorizations for radio communications services, and
all waiver proceedings (except for those directly
associated with tariff filings).
13. Who are the parties to a restricted or permit-but-disclose proceeding?
Certain circumstances make you a party with a right to service of written
presentations and advance notice of oral presentations in restricted proceedings
and to disclosure of presentations in permit-but-disclose proceedings. Being a
party for purposes of the ex parte rules does not necessarily mean that you will be
considered a party for other purposes.
Parties include people who file applications, petitions, or other requests for relief
and those making responsive filings. To make someone a party, such an
application or petition must be directed to the Secretary, the relevant Bureau or
Office, or the Commission as a whole -- not just to the Chairman or individual
Commissioners. In addition, to make someone a party, responsive filings must
reference the original filing and be served on the filer.
For example, persons who file petitions to deny license applications are parties.
In addition, persons who file "informal objections" under rule section 73.3587
are parties if their objections are served. (However, the rules contain a special
exception for individual listeners or viewers who file informal comments about
pending broadcast applications. Such persons are not made parties even if their
informal comments are served, and they do not have to serve their comments on
the applicant.)
When a Freedom of Information Act request is filed the person who filed the request is a party and, where the requested information is the subject of a request for confidentiality, the person filing the request for confidentiality is also a party. Applicants and people filing mutually exclusive applications are parties with respect to each others' applications except in
services that the Commission has announced will be subject to competitive
bidding or lotteries.
People who file complaints and the subject of the complaint are parties if the
complaint is a formal complaint under § 208 of the Communications Act or the
complaint shows that it was served on the subject of the complaint. (Note that
under questions 8 and 9 certain kinds of complaints are treated as exempt.)
A person who files a petition to revoke a license or other authorization or who
files a petition for an order to show cause and the subject of the petition are
parties.
The subject of an order to show cause, hearing designation order, notice of
apparent liability, or similar notice or order, or petition for such notice or order
is a party.
In informal notice and comment rulemaking proceedings (except for those
involving the allotment of a broadcast channel), and proceedings before a Joint
Board or before the Commission to consider the recommendation of a Joint
Board, members of the general public after the issuance of a notice of proposed
rulemaking or other order are parties.
In rulemakings for the allotment of a broadcast channel the petitioners and those
making responsive filings are parties.
14. What is the sunshine period prohibition?
The sunshine period prohibition imposes a restriction on presentations to
Commission decision-makers in addition to the limitations otherwise applicable
under the ex parte rules. It applies to proceedings in which the Commission has
issued a public notice that a matter will be considered at a Commission meeting --
that is, the matter has been placed on the "Sunshine Agenda." While the
sunshine period prohibition is in effect, all presentations to decision-makers
concerning matters listed on a Sunshine Agenda, whether ex parte or not, are
prohibited unless they fall within certain exceptions. In particular, presentations
are permitted if they occur in the course of a widely attended speech or panel
discussion and concern a Commission action in an exempt or a permit-but-disclose proceeding that has been adopted. Members of Congress or their staffs
and other federal agencies or their staffs may make presentations in exempt or
permit-but-disclose proceedings, but presentations that are of substantial
significance and clearly intended to affect the ultimate decision in the proceeding
must be disclosed, either by the presenter or the Commission's staff. The
sunshine period prohibition applies from the release of a public notice that a
matter has been placed on the Sunshine Agenda until the Commission releases the
text of a 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,
whichever occurs first.
15. How can I find out more information about the ex parte rules?
For further information about the ex parte rules, contact the Federal
Communications Commission, Office of Public Affairs, Consumer Assistance
Branch at (202) 418-0200 or the Office of General Counsel, Administrative Law Division at (202) 418-1720.