On Feb 22, 2010, the Federal Communications Commission (FCC) released the text of its Notice of Proposed Rulemaking (NPRM) to revise certain of its regulations governing ex parte presentations to Commissioners and staff. The proposed rule changes expand on existing disclosure requirements for meetings with the FCC, as part of broad agency reform toward transparency and greater public participation.

In addition to proposing several specific rule changes, the Commission asked for comment on a variety of matters surrounding its lobbying procedures, which could lead to a wide-ranging examination. Areas of proposed change or further inquiry include lobbying disclosure obligations, the status of new media use (such as Twitter or blog posts) as a lobbying tool, and restrictions on lobbying immediately prior to Commission votes.

Expanded disclosure obligations

In the most significant proposed change, the FCC announced its intention to remove the exemption excusing written notices of meetings where parties present only previously made arguments. Under the existing rules, ex parte notices are not required where a party believes the arguments made during an oral presentation are not “new,” but already have been made in writing by the presenter and entered into the docket. This exemption would be eliminated under the FCC proposal.

In addition, the FCC proposes to require more substance to written ex parte notices generally. Under the proposed change, all arguments (rather than just new ones) presented at a meeting must be summarized in writing afterwards. It will no longer be sufficient for ex parte notices to summarize discussions by merely referring back to a party’s previous written filings. Instead, summaries of arguments or data previously presented must cite specific passages of the pleading (by page or paragraph) where the information was originally submitted. Because more substance will be required, the FCC also proposes to extend the time for filing notices from one to two business days after a meeting.

The Commission asks for comment on whether corporate ownership disclosure statements should accompany all ex parte notices (similar to the ownership disclosure requirements of federal courts or the Lobbying Disclosure Act). The NPRM acknowledges that licensees of broadcast and certain wireless spectrum are already required to file detailed ownership information with the Commission regularly.

Lobbying and new media

The NPRM asks how Internet postings concerning FCC proceedings should be treated under the ex parte rules. In the past year, the Commission has shown an inclination to allow comments published on FCC blogs to constitute a new communication channel for the broader public to reach decision makers, unburdened by the usual formal filing requirements. For instance, the Commission encouraged public participation in its Broadband Plan proceeding by waiving its ex parte rules for postings made to its broadband blog. In doing so, the FCC advised interested parties that they must check both the FCC docket and new media outlets to be apprised of all arguments being presented.

In addition, following adoption of its recent Net Neutrality NPRM (as we summarized in a prior advisory, "FCC Commences 'Net Neutrality' Rulemaking"), the FCC denied a motion that would have required Internet posters to follow the same ex parte rules as others during the period leading up to the vote. There, the FCC waived its rules to allow extended public comments via the Commission’s blogs after the formal comment period had closed. The Commission reasoned that doing so was fair because blog postings were accessible to all parties. It rejected objections that such an exception disfavored individuals without Internet access. The FCC now requests comment on whether the differences in accessibility between the Commission’s traditional filing mechanisms and new media venues should be accounted for in the ex parte rules.

Sunshine Period changes

In theory, the period immediately preceding an FCC vote or decision is meant to be a time for decision makers to reflect on comments filed in a docket without further public input. In practice, some “permitted” ex parte meetings occur during this Sunshine Period, most commonly at the request of the FCC to clarify arguments or shape the record. In order to prevent the appearance of secret deal making, the NPRM proposes to require parties to file notices electronically within four hours after such permitted Sunshine Period meetings occur. Under the proposal, if a permitted ex parte presentation is made during the Sunshine Period, the notice must provide the date and time of the presentation and must state in the first sentence why the meeting was permitted under the rules.

At the same time, the Commission asks for comment on whether the rules for the Sunshine Period should be altered further. The NPRM asks whether parties should be prohibited from soliciting requests from FCC staff for clarifying Sunshine Period presentations to avoid potential abuse. The FCC further asks whether parties should have a right to reply to whatever was clarified. Another suggestion is to begin the Sunshine Period at midnight on the day a Sunshine Notice is issued. This would replace the current system, by which such notices are issued at random times during the day and become effective immediately, sometimes causing confusion among lobbyists and FCC staff over when a permitted meeting becomes a prohibited one.

Effect on adjudicatory proceedings

The FCC proposes to require notices of all permitted presentations made in “restricted” proceedings, such as adjudications. Currently, presentations in adjudications are permitted only when all parties to a dispute are given the opportunity to be present. These meetings are not considered to be one-sided under existing rules and so do not require a written notice of what was discussed. The new rule would require such a notice. 1

In addition, the NPRM requests comment on how the Commission can tighten its lobbying rules without unduly restricting its proper adjudicatory functions. For instance, one longstanding exception to the ex parte rules allows otherwise-prohibited contact with FCC staff when made for the purposes of settling disputes. However, the NPRM suggests the exception could be misused for improper lobbying purposes. The FCC asks for comments on how to tighten ex parte prohibition exceptions such as this one without eliminating the settlement exception (or limiting its effectiveness) for resolving formal complaints.

Other issues

The Commission’s notice also puts forward a number of minor rule changes, clarifications and additional avenues of inquiry. The NPRM corrects a common misunderstanding by clarifying that presentations made at the request of Commission staff are currently subject to the standard notice requirements. The NPRM recommends a rule change to codify a general preference for electronically filing ex parte notices wherever feasible. The FCC asks whether that preference should extend to require notices to be “text searchable” electronic documents as opposed to scanned paper documents. The FCC also asks whether incorporating aspects of the divergent lobbying rules favored by other agencies (such as the FTC, Nuclear Regulatory Commission or FEC) would be beneficial. Finally, the NPRM requests comment on what sanctions for violations of the ex parte rules are appropriate, specifically asking whether the punishment should be equal to the amount of prejudice caused to other interested parties.

Comments and reply comments are due 45 and 75 days after the NPRM is published in the Federal Register. The proposed rules could become effective upon FCC adoption following comments and reply comments. Areas that the Commission has slated for “inquiry” only, as opposed to proposed rules, will most likely not lead to proposed or final rules until a further notice is issued (although it is always possible they could). Only the minor rule clarifications in the NPRM are currently in effect.