Washington - Feb 22, 2010 - The FCC, as part of its own procedural review, has issued a notice of proposed rulemaking as it seeks to improve the transparency and effectiveness of the Commission's decision-making. The focus this time is to reform its ex parte rules. The ex parte process allows parties in most Commission proceedings to speak directly (or have written communications) with Commission staff and decision makers, providing a way to have an interactive dialog that can root out areas of concern, address gaps in understanding, identify weaknesses in the record, discuss alternative approaches, and generally lead to more informed decision-making. Oral ex parte presentations are by their nature inaccessible to people who are not present at the meeting unless the presentations are publicly documented in some way. In permit-but-disclose proceedings, the FCC ex parte rules require just this documentation.
The FCC admits that there are a number of areas where its ex parte rules could be improved. Many of the shortcomings were noted by the General Accounting Office in a December 2009 report. The FCC seeks comment on proposals to improve its ex parte and other procedural rules to make the Commission's decision-making processes more open, transparent and effective.
The Administrative Procedure Act (APA) defines "ex parte communication" as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter."
The FCC proposes to require disclosure of every oral ex parte presentation in permit-but-disclose proceedings unless a specific exemption applies, and to require the filing of a notice that summarizes all data and arguments that were presented (although the filer may refer to prior written filings for data and arguments that the filer has presented before). The FCC also proposes to codify a preference for electronic filing of all notices of ex parte presentations in machine-readable formats and to require electronic filing of notices of ex parte presentations made during the sunshine period within four hours of the presentation.
Also being considered is the idea to amend the rules exempting certain communications from the ban on ex parte presentations during the sunshine period or in restricted proceedings, and whether to begin the sunshine period prohibition on ex parte presentations at midnight following the release of the sunshine notice. And finally, the FCC wants to know if it should require disclosure of ownership or other information about the entity making an ex parte presentation or filing any pleading with the Commission so that readers will better understand the filer's interest in the proceeding.
GC Docket No. 10-43
Comment Date: 45 days after date of publication in the Federal Register
Reply Comment Date: 75 days after date of publication in the Federal Register