If adopted, these proposed changes will increase the number of filings parties are required to make, will require parties to make more in-depth disclosures about their communications with FCC staff and could increase the penalties for failing to comply with the notice requirements.
The Federal Communications Commission (FCC) has issued two notices of proposed rulemaking (NPRMs) with proposed revisions to its rules designed to enhance efficiency and reduce backlogs, enhance the transparency and openness of FCC proceedings, and clarify certain rules. If adopted, these proposed changes will increase the number of filings parties are required to make, will require parties to make more in-depth disclosures about their communications with FCC staff and could increase the penalties for failing to comply with the notice requirements. At the same time, the changes will also provide the public and interested parties with more access to FCC proceedings and delegate greater flexibility to the FCC staff to resolve certain matters.
Comments are due 45 days after Federal Register publication, which has not yet occurred, and reply comments are due 75 days after Federal Register publication.
In the first NPRM, the FCC proposes several revisions to its procedural and organizational rules that are intended to increase efficiency and modernize its procedures, enhance the openness and transparency of FCC proceedings, and clarify certain procedural rules. The FCC's proposed revisions fall into the following three general categories:
Streamline Reconsideration of Agency Proceedings
- Authority will be delegated to the chiefs of the relevant FCC bureau(s) or office(s) to dismiss or deny defective or repetitious petitions filed with the FCC for reconsideration of Commission decisions, such as petitions that are untimely, omit information required by the rules, fail to identify any material omission or reason warranting reconsideration, or rely on arguments that have been fully considered and rejected within the same proceeding. Petitions for reconsideration filed electronically through the FCC Universal Licensing System are subject to separate procedures and will not be amended at this time.
- The FCC may, on its own motion, revise or modify any decision within 30 days of public notice, not just set aside or vacate its decision.
- The use of docketed proceedings will be expanded and electronic filing of comments and other pleadings will increase.
- The FCC will be allowed to serve parties to a proceeding electronically.
- Authority will be delegated to the chief of the Consumer and Governmental Affairs Bureau to periodically review the status of open docketed proceedings and, in consultation with the relevant bureau or office with responsibility for a particular proceeding, terminate any docket in which no further action is required or contemplated.
- A default effective date will be adopted for new rules so that if an FCC order adopting a rule does not specify an effective date, the rule will become effective 30 days after publication in the Federal Register unless a later date is required by statute.
- The computation of time rule will be amended to specify that when the due date for FCC action would fall on a holiday or weekend, the due date would be extended to the next business day.
Ex Parte Rules
In the second NPRM, the FCC proposes reforms to the ex parte rules that are designed to improve the transparency and effectiveness of the FCC's decision making process. Ex parte communications are oral or written communications with the FCC staff and decision makers as to the merits of a pending matter. Under the current rules, the three categories of proceedings are restricted, which generally prohibits ex parte presentations; exempt, which allows ex parte presentations; and permit-but-disclose, which generally allows ex parte presentations that are disclosed in the record. The FCC has concluded that its current rules often fail to give interested parties sufficient information to know whether or not ex parte discussions have occurred and what matters were discussed. Accordingly, the FCC proposes several revisions that would expand the circumstances under which parties must file notices, require parties to provide more detailed information and increase the penalties for failing to comply.
The FCC also proposes several revisions to its rules on presentations during the "sunshine period." Under the current rules, most presentations are prohibited during a sunshine period, which begins when a proposed order is placed on a sunshine notice and ends when the text of a decision is released or the draft is returned to the staff. Typically, the sunshine notice is released seven days before an FCC agenda meeting. The sunshine period is intended to provide FCC decision makers with a period of time where they will be free from last-minute interruptions or other external pressures to examine the record.
The major proposals in the ex parte NPRM including the following:
Summaries of Oral Presentations
- Disclosure will be required for every oral ex parte presentation in a permit-but-disclose proceeding, even if no new information or arguments are presented.
- To the extent the presentation concerns data or arguments already reflected in the presenter's written filings in the record, the notice must either summarize the data or arguments presented or explicitly state that the data and arguments are reflected in prior written filings and provide specific references, including page or paragraph numbers, to the presenter's prior filings containing the data and arguments presented.
- The FCC seeks comment on whether the deadline for filing the required notice of an oral ex parte presentation should be extended to two business days (except for exempt presentations during the sunshine period) if these proposals are adopted, instead of one business day.
- The FCC seeks comment on whether to adopt practices of other federal agencies regarding oral presentations, such as placing the burden on the FCC staff to provide a written summary for placement in the public record, in requiring summaries or transcripts of oral communications or adopting a total prohibition on oral presentations.
- Oral presentations that are made at the request of the FCC staff must be disclosed to the same extent as oral presentations that are made at the request of the presenter.
Electronic Filing of Notices
- When feasible, written ex parte presentations and memoranda summarizing oral presentations in docketed proceedings should be filed electronically.
- Written ex parte presentations and memoranda summarizing oral ex parte presentations in docketed proceedings will be required to be filed electronically no later than one business day after the presentation.
- The person required to submit a memorandum must file one original and one copy with the secretary's office if a docket number has not been assigned to a proceeding, if the FCC has not provided a method for filing memoranda electronically or if the electronic filing would present an undue hardship.
- Parties may request confidential treatment by electronically filing a redacted copy and submitting an original unredacted copy with the secretary's office.
Presentations During Sunshine Period
- In cases where oral ex parte presentations are permitted during the sunshine period, notices must be filed electronically within four hours of the completion of the presentation.
- The prohibition on ex parte presentations during the sunshine period begins at 12:00 am of the day on which a sunshine notice is issued.
- The current exceptions to the sunshine period restrictions may be narrowed or modified, for example by prohibiting an outside party from soliciting a request from FCC staff for an ex parte presentation for the clarification or adduction of evidence, or for the resolution of issues.
- Parties filing a pleading or other document with the FCC or making an ex parte presentation will be required to submit a corporate disclosure statement identifying themselves and their interests in connection with their filings in all FCC proceedings. The FCC identifies several possible models for a disclosure requirement, including rules adopted by the Supreme Court of the United States, the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Lobbying Disclosure Act.
- The FCC requests comment on whether stricter enforcement of its existing rules would lessen or eliminate the need for any proposed changes to its rules, as well as what types of sanctions should be deemed appropriate.
- The FCC requests comment on whether and how to account for differences in comments made using new media, such as the FCC's blogs, Facebook page and Twitter feeds.
- The FCC staff, at its discretion, will be allowed to file an ex parte summary of a meeting attended by many parties, thereby relieving the parties of the obligation to file individually.
- A party making an oral presentation in a restricted proceeding, on a non-ex parte basis, will be required to file a summary of the presentation in the record.