On February 1, 2011, the Federal Communications Commission (FCC) adopted a Report and Order (FCC 11-11) substantially amending its "ex parte" rules, which govern how and when parties to certain rulemaking and other proceedings may communicate with FCC staff outside of a formal pleading cycle.
Under the FCC’s existing rules, certain proceedings are designated as "permit-but-disclose," such that parties are "permitted" to communicate with FCC staff outside of a pleading cycle provided they "disclose" such communication by filing a notice with the FCC identifying the information presented to FCC staff and who presented that information. This notice requirement is intended to ensure that the FCC’s processes are transparent. However, over the past few years the FCC’s ex parte rules have been criticized because: (i) notices have not been filed in connection with all ex parte communications, since existing rules require a notice to be filed only if new data or arguments are presented to FCC staff; and (ii) many of the notices that have been filed lack detail about the substance of the communication.
The new rules, which will become effective 30 days after publication in the Federal Register (which has not yet occurred), are intended to address these issues. Perhaps most significantly, the new rules alter the scope of what parties are required to disclose, for the record, following an oral ex parte communication with FCC staff. Specifically, under the new rules:
- Parties must file an ex parte notice following any oral ex parte communication made in a permit-but-disclose proceeding — even if that communication involves only information and arguments already in the record;
- Parties must include in the ex parte notice a summary of the information discussed in the course of the ex parte communication;
- Parties claiming that an ex parte communication involved only material already in the record must provide either: (i) a succinct summary of the matters discussed or (ii) citations, with page or paragraph numbers, to specific record documents containing that material;
- Parties must file copies of any document shown or given to staff — even if that document ultimately is returned to the presenting party; and
- Each ex parte notice must identify the person(s) who actually made the relevant ex parte presentation, as well as all other persons participating in the meeting at which the presentation was made.
The new rules also affect when a notice must be filed following an ex parte communication with FCC staff. This filing deadline varies depending on whether the communication is made during a "Sunshine period" — i.e., a period initiated by the release of a "Sunshine notice," during which ex parte communications are prohibited, with narrow exceptions. Notably:
- Each ex parte notice generally must be filed within two business days of the underlying communication (instead of on the next business day, as under the existing rules);
- If an ex parte communication is made on the day that a Sunshine notice is released, the ex parte notice must be submitted by the next business day; and
- If an ex parte communication is made during the Sunshine period (pursuant to an exception), the ex parte notice must be filed by midnight Eastern Standard Time on the day on which the presentation is made.
The new rules also make important changes in several other areas, including the following:
- Electronic Filing. Ex parte notices generally must be submitted electronically and in machine-readable format (e.g., Word format, non-copy protected text-searchable PDF format, a native spreadsheet format), except in rare cases where a machine-readable version of the document is not available. Scanned documents generally are unacceptable.
- Confidential Filings. Confidential information may be submitted by paper filing, but a redacted version must be filed electronically at the same time.
- Distribution of "Courtesy" Copies. Copies of electronically filed ex parte notices must be sent electronically to all FCC personnel present at the relevant meeting. After reviewing these notices, FCC staff may ask filers to submit corrections or further information.
- Replies during the "Sunshine period." In the event that a party files an ex parte notice on the day that a Sunshine notice is released covering the underlying proceeding, or during the subsequent Sunshine period, other parties to the proceeding may file a reply to that notice by the next business day, provided that the reply must: (i) address only the specific issues and information in the ex parte notice to which it is replying; and (ii) be distributed to all FCC personnel copied on the ex parte notice.
- Enforcement and Forfeiture Penalties. The FCC’s Enforcement Bureau may impose monetary forfeiture penalties on parties that violate the ex parte rules.
The FCC also adopted a Further Notice of Proposed Rulemaking, which seeks public comment on a number of additional issues related to the new ex parte rules. These include:
- Whether the FCC should extend disclosure requirements to communications made in connection with proceedings other than permit-but-disclosure proceedings — and if so, how;
- Whether different disclosure requirements should apply to different categories of entities (e.g., corporations, non-profits, etc.);
- Whether the FCC should impose "real-party-in-interest" disclosure requirements in connection with ex parte notices;
- Whether the FCC should require disclosure where the information to be disclosed can be found in existing Commission records or on an entity’s website; and
- Whether the FCC should create a single electronically accessible source for all disclosure statements, which would be updated periodically.
Initial comments in response to this Further Notice of Proposed Rulemaking will be due 45 days after Federal Register publication, which has not yet occurred. Reply comments will be due 30 days thereafter.