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Reform of Procedures, Ex Parte Rules

by: Austin Schlick, General Counsel

May 27, 2011 - 02:50 PM

[[wysiwyg_imageupload:124:height=100,width=65]]A little more than a year ago, I blogged that the FCC had begun two formal proceedings on ways to reform its procedures.  I’m pleased to report now that the reforms are reality.  As a result, starting on Wednesday, June 1, the Commission and the public will benefit from greater openness and fairness in the Commission’s decision-making.

After carefully considering the public comments in the records, the Commission adopted reforms in two separate orders.  In the first order, the Commission examined its rules about ex parte presentations.  A presentation is “ex parte” if it is made without prior notice to the other parties to the proceeding and an opportunity for them to be present.  So, for example, a typical meeting where a party presents its views on a pending rulemaking to the Bureau staff would be an ex parte presentation.  Disclosing the contents of oral ex parte contacts on the record ensures that interested parties, the public, and the Commission staff all have complete information about the data and arguments that are presented to Commission decision-makers.  The Commission reformed its ex parte rules in several ways:

  • Parties must now file a notice in the record for every oral ex parte presentation, not just those that involve new data or arguments as in the past.  Documenting all ex parte meetings will provide transparency about who meets with whom on Commission proceedings.
  • Every oral ex parte notice must now include a list of everyone who participated in the meeting and a summary of all data presented and arguments made.  For data or arguments that are already in that party’s written filings in the record, the notice can provide citations back to those written filings instead of a summary.  This new requirement will ensure that everyone knows who was present and what was discussed in oral ex parte meetings.
  • Absent a particular hardship, all ex parte notices must now be filed electronically.  Electronic filing is fast and cost-efficient, and will ensure that Commission staff and interested parties have quick access to the full record.
  • Ex parte notices must now be filed in their “native” format, such as .doc or .xml.  This new requirement will make it simpler for Commission staff and interested parties to search filings electronically and to analyze the data and arguments in the record.
  • Recognizing that electronic filing is not appropriate for confidential material, the Commission will still permit confidential material to be filed on paper instead of electronically.  But the request for confidentiality and a redacted version of the material must be filed electronically, so the Commission staff and the public know that the confidential information is part of the official record.
  • To ease any additional burden resulting from these enhanced requirements, parties will now have two full business days, instead of one, to file most ex parte notices.  For example, if a party makes an oral ex parte presentation to Commission staff on Monday morning, the ex parte notice must be filed on Wednesday by 11:59 pm. 
  • Additional time, however, is not provided in the rare situation when ex parte presentations are made near or during the Sunshine period.  (During the Sunshine period, ex parte presentations are not permitted unless they fall within an exemption.)  During the Sunshine period, which is the week leading up to a Commission decision in a proceeding, data and arguments from ex parte presentations need to be made available to Commissioners, Commission staff, and the public in a timely fashion.  Therefore, for presentations made the day the Sunshine notice is released, notices must be filed in one business day; for presentations made during the Sunshine Period, notices must be filed the same day.
  • To provide greater clarity to Commission staff and the public about when the Sunshine period prohibition on most ex parte presentations takes effect, the Sunshine period will now begin at midnight following the release of the Sunshine notice.  For example, if the Commission releases the Sunshine notice at 4:00 pm on Thursday, the prohibition on ex parte presentations will begin at 12:00 am (midnight) Friday morning.
  • To be fair to all parties to a proceeding, limited replies to presentations made during the Sunshine period are now permitted for the first time.  They must be limited to responding to the data or arguments made in the presentation to which they reply.
  • To aid enforcement efforts, any ex parte notice filed during the Sunshine period must identify (1) the specific exemption to the general ban on ex parte presentations during the Sunshine period on which the presenter relies, and (2) for oral ex partes, the date and time of the presentation.
  • As another aid to enforcement, all ex parte notices from oral presentations must be emailed to the Commissioners and Commission staff who participated in the meeting.
  • In addition to the General Counsel’s existing authority to rule on potential ex parte violations, the Enforcement Bureau is delegated authority to levy forfeitures for violations.

On one issue, the Commission decided to seek further comment before changing the rules:  whether to adopt rules requiring enhanced disclosure about the identity and interests of parties making ex parte presentations.  Those wishing to submit comments have until June 16, with reply comments due by July 18.  We look forward to your input on that issue.

In the second order, the Commission updated several of its procedural and organizational rules.  Among the changes are expanded use of dockets and electronic filing.  Like the changes to the ex parte rules, these reforms will increase public and staff access to the records that inform the Commission’s decision-making processes.  In particular, the Commission reformed its rules by:

  • Expanding the use of docketed proceedings by instructing the Commission’s bureaus and offices (with the exception of the Enforcement Bureau) to assign docket numbers to proceedings within their jurisdiction in all but exceptional circumstances.  This change will move many dockets that are now maintained on paper to the electronic system, which will greatly enhance public access.
  • Requiring that comments and other pleadings be filed electronically in certain categories of proceedings, so that the full record is available to Commission staff, parties, and the public at large in real time or close to it.
  • Requiring that electronic filings be in their native format (such as .doc or .xml), to enhance the ability of Commission staff and interested parties to search and analyze the contents of the record.

These orders and associated notices have been published in the Federal Register.  In addition, the archived video from our May 6 Public Tutorial is available here, and the updated ex parte rules are available on our Ex Parte page.

Thank you to all who participated in these two proceedings and helped shape the reforms.

Updated: April 11, 2012 - 05:05 PM
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