Today the Federal Communications Commission (FCC) released a Report and Order and Further Notice of Proposed Rulemaking in GC Docket No. 10-43 regarding its rules governing disclosure of ex parte presentations. The Report and Order (R&O) portion of the item imposes significant new requirements, most notably with regard to the content of ex parte notices, and the Further Notice of Proposed Rulemaking (FNPRM) seeks comment on new issues, including whether to adopt different disclosure requirements for non-profit entities and trade associations. To view the item, click here.

Report and Order

Notably, the R&O extends the deadline for filing ex parte notices to two business days. Para. 60. It also adopts, for the first time, the following requirements:

  • All ex parte presentations must be memorialized in a notice, regardless of whether the presentation provided new information or arguments not already in the record. Para. 33.
  • Notices must contain precise citations to or a detailed summary of any previous pleading by the filer on which the ex parte presentation relied. Para. 35.
  • Notices must list every person that attended the meeting, a practice which the FCC recognizes is already common and “would not materially increase the burden” of submitting notices. Para. 36.
  • All ex parte notices must be filed electronically in any proceeding in which such filing is enabled, Para. 52, though parties may redact metadata containing confidential or privileged information, Para. 53.

Violations of the disclosure rules now will be referred to the Enforcement Bureau if the General Counsel believes they may warrant a forfeiture or citation. Para. 66.

The R&O rejects several proposals on which the FCC previously had sought comment:

  • An ex parte notice need not include disclosure of “the presenter’s interest in the proceeding” in a manner akin to corporate disclosure statements that federal courts require. Paras. 38-39. The FCC seeks additional comment on this issue in the FNPRM portion of the item (see below).
  • The FCC will continue to permit ex parte communications during the “Sunshine period” that are requested by or made with the approval of the FCC or its Staff. Paras. 41, 44. Notices memorializing such communications must continue to be disclosed, but the FCC is extending the deadline for filing such notices to 11:59 pm on the day in which the communication took place. Para. 61.
  • Communications that regard merely the procedural status of a proceeding will remain exempt from the ex parte disclosure rules. Para. 46.
  • Interagency communications, for example between the FCC and the National Telecommunications and Information Administration (NTIA), that do not involve the disclosure of new facts remain exempt from the ex parte disclosure rules. Para. 48.

The R&O is effective 30 days after its publication in the Federal Register.

Further Notice of Proposed Rulemaking

The FNPRM portion of the item seeks further comment on several issues, including:

  • Whether ex parte notices must include corporate disclosure statements. Para. 77. The FCC “believe[s] it would serve the public interest to have a disclosure requirement” but seeks comment on whether it would impose “undue burdens” or result in “duplicative filing of information already generally available from another source.” Para. 80.
  • Whether the disclosure rules should apply to additional categories of proceeding. Para. 81.
  • Whether different disclosure rules should be adopted for trade associations, non-profit entities, and other non-corporate parties. Para. 82.

Comments are due 45 days after the item is published in the Federal Register, and Reply Comments are due 30 days thereafter. We will issue a further Client Alert once those dates can be determined.