FEDERAL COMMUNICATIONS COMMISSION

FACT SHEET

April 1997

FCC'S REVISED EX PARTE RULES


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.







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