IP: Ex Parte Comments Re: URGENT ALERT: Broadband =

[Dave Farber <dave () farber net>]

One revision to the FAQ from OGC, the ex parte
comments can be complied with through the online
electronic comment filing system
http://www.fcc.gov/e-file/ecfs.html  Documentation can
be filed and found online.


------ Forwarded Message
From: Robert Cannon <rcannon100 () YAHOO COM>
Reply-To: Telecom Regulation & the Internet
<CYBERTELECOM-L () LISTSERV AOL COM>
Date: Fri, 3 May 2002 13:09:14 -0700
To: CYBERTELECOM-L () LISTSERV AOL COM
Subject: Ex Parte Comments Re: URGENT ALERT: Broadband =

The FCC generally is very receptive to public comment
and input.  After the comment period is closed, the
FCC continues to receive input pretty much until the
vote is taken on the item.  This is done pursuant to
the FCC's ex parte rules.  Explanations of these rules
can be found at http://www.fcc.gov/ogc/xprte.html

July 2001

FCC'S EX PARTE RULES

This Fact Sheet provides information to help you
understand the FCC's ex parte rules. These rules are
found in sections 1.1200 to 1.1216 of volume 47 of the
Code of Federal Regulations.

1. What is the purpose of the ex parte rules?

The ex parte rules govern the manner in which persons
may communicate with the Commission concerning the
issues in its proceedings. The rules play an important
role in protecting the fairness of the FCC's
proceedings by assuring that FCC decisions are not
influenced by impermissible
off-the-record-communications between decision-makers
and others. At the same time, the rules are designed
to ensure that the FCC has sufficient flexibility to
obtain the information that is necessary for it to
make reasonable decisions.

2. Do the ex parte rules apply to me?

The ex parte rules apply to anyone who engages in the
kind of communications covered by the rules whether or
not they are a party to the proceeding.

3. What types of communications are covered by the ex
parte rules?

The rules govern ex parte presentations to FCC
decision makers. In some types of proceedings
(restricted proceedings), the rules prohibit ex parte
presentations to decision makers concerning the issues
in its proceedings. In other types of proceedings
(permit-but-disclose proceedings), the rules require
that summaries of such presentations be placed in the
record. In some types of proceedings (exempt
proceedings), there are no restrictions on ex parte
presentations. The rules describe which types of
restrictions or requirements, if any, apply to ex
parte presentations in the various types of Commission
proceedings.

4. What is a presentation?

A presentation is a communication directed to the
merits or outcome of a proceeding, including any
procedural or other issues raised in the proceeding.
There are some exceptions, however. Communications
which are inadvertently or casually made are not
presentations. Neither are routine inquiries about
compliance with the Commission's procedural rules,
such as when a pleading must be filed, so long as the
question has not become the subject of dispute in the
proceeding. Inquiries relating solely to the status of
a proceeding are not presentations. However, a status
inquiry is deemed a presentation if it states or
implies a view as to the merits or outcome of the
proceeding or a preference for a particular party,
states why timing is important to a particular party
(other than the need to avoid administrative delay),
or indicates a view as to the date by which a
proceeding should be resolved.

5. What is an ex parte presentation?

An ex parte presentation is any presentation which, if
written (including electronic mail), is not served on
the parties to the proceeding, or, if oral, is made
without advance notice to the parties and without
opportunity for them to be present.

6. Who are FCC decision-making personnel?

Decision-making personnel are those people at the
Commission who are or who may reasonably be expected
to be involved in formulating a decision, rule, or
order in a proceeding. All FCC Bureau or Office staff
are considered decision-making personnel with respect
to decisions, rules, and orders in which their Bureau
or Office participates unless they have been
designated as part of a separate trial staff or
otherwise formally excluded from the decisional
process in the proceeding.

. . .

10. What are the disclosure requirements applicable in
permit-but-disclose proceedings?

There are specific procedures for ensuring that the
presentations are reflected in the record of a
permit-but-disclose proceeding. Ex parte presentations
by members of Congress or their staffs and other
federal agencies or their staffs need be disclosed
only if they are of substantial significance and
clearly intended to affect the ultimate decision in
the proceeding. Disclosure of ex parte presentations
by members of Congress or their staffs and other
federal agencies or their staffs will generally be
made by the Commission's staff.

In other circumstances, persons making written ex
parte presentations must, no later than the next
business day after the presentation, submit two copies
of the presentation to the Commission's secretary
under separate cover for inclusion in the public
record. The presentation (and cover letter) must
clearly identify the proceeding to which it relates,
including the docket number, if any; must indicate
that two copies have been submitted to the Secretary;
and must be labeled as an ex parte presentation. If
the presentation relates to more than one proceeding,
two copies must be filed for each proceeding.

Persons making oral ex parte presentations must
disclose them if they present data or arguments not
already reflected in that person's written comments,
memoranda or other filings in that proceeding. In that
case, the person must, no later than the next business
day after the presentation, submit to the Commission's
Secretary, with copies to the Commissioners or
Commission employees involved in the oral
presentation, an original and one copy of a memorandum
which summarizes the new data or arguments. The
subject matter of the presentation must be fully
disclosed; a mere listing of the subjects discussed is
not sufficient, and more than a one or two sentence
description of the views and arguments presented is
required. The memorandum (and cover letter) must
clearly identify the proceeding to which it relates,
including the docket number, if any, must indicate
that an original and one copy have been submitted to
the Secretary, and must be labeled as an ex parte
presentation. If the presentation relates to more than
one proceeding, two copies of the memorandum (or an
original and one copy) must be filed for each
proceeding. There is an exception to these
requirements where, for example, presentations occur
in the form of discussion at a widely attended
meeting, and preparation of a memorandum as specified
in the rule might be cumbersome. Under these
circumstances, the rule may be satisfied by submitting
a transcript or tape recording of the discussion as an
alternative to a memorandum.

11. How does the Commission give notice of ex parte
presentations in permit-but-disclose proceedings?

The Commission's Secretary issues a public notice at
least twice a week listing any written ex parte
presentations or written summaries of oral ex parte
presentations in permit-but-disclose proceedings. It
is possible that some presentations might
inadvertently be omitted from this list, so interested
persons should review the public file or record in
proceedings about which they are concerned, where the
copies of written presentations and memoranda of oral
presentations can be found.

12. In what proceedings are ex parte presentations
prohibited entirely?

In all proceedings other than those specifically
listed as "exempt proceedings" or "permit-but-disclose
proceedings," ex parte presentations are prohibited.
In such proceedings, called "restricted proceedings,"
any written presentations to FCC decision makers must
be served on all the parties and oral presentations
may not be made unless all parties are given advance
notice and an opportunity to be present. If there is
only one party involved in a restricted proceeding,
that party may freely communicate with the Commission,
because there are no other parties entitled to advance
notice or service. However, presentations by a
nonparty or by one of multiple parties in a proceeding
are prohibited unless all parties are served or given
an opportunity to be present. Restricted proceedings
include all proceedings that have been designated for
hearing, proceedings involving amendments to the
broadcast table of allotments, applications for
authorizations for radio communications services, and
all waiver proceedings (except for those directly
associated with tariff filings).

13. Who are the parties to a restricted or
permit-but-disclose proceeding?

Certain circumstances make you a party with a right to
service of written presentations and advance notice of
oral presentations in restricted proceedings and to
disclosure of presentations in permit-but-disclose
proceedings. Being a party for purposes of the ex
parte rules does not necessarily mean that you will be
considered a party for other purposes.

Parties include people who file applications,
petitions, or other requests for relief and those
making responsive filings. To make someone a party,
such an application or petition must be directed to
the Secretary, the relevant Bureau or Office, or the
Commission as a whole -- not just to the Chairman or
individual Commissioners. In addition, to make someone
a party, responsive filings must reference the
original filing and be served on the filer.

For example, persons who file petitions to deny
license applications are parties. In addition, persons
who file "informal objections" under rule section
73.3587 are parties if their objections are served.
(However, the rules contain a special exception for
individual listeners or viewers who file informal
comments about pending broadcast applications. Such
persons are not made parties even if their informal
comments are served, and they do not have to serve
their comments on the applicant.)

When a Freedom of Information Act request is filed the
person who filed the request is a party and, where the
requested information is the subject of a request for
confidentiality, the person filing the request for
confidentiality is also a party. Applicants and people
filing mutually exclusive applications are parties
with respect to each others' applications except in

services that the Commission has announced will be
subject to competitive bidding or lotteries.

People who file complaints and the subject of the
complaint are parties if the complaint is a formal
complaint under ? 208 of the Communications Act or the
complaint shows that it was served on the subject of
the complaint. (Note that under questions 8 and 9
certain kinds of complaints are treated as exempt.)

A person who files a petition to revoke a license or
other authorization or who files a petition for an
order to show cause and the subject of the petition
are parties.

The subject of an order to show cause, hearing
designation order, notice of apparent liability, or
similar notice or order, or petition for such notice
or order is a party.

In informal notice and comment rulemaking proceedings
(except for those involving the allotment of a
broadcast channel), and proceedings before a Joint
Board or before the Commission to consider the
recommendation of a Joint Board, members of the
general public after the issuance of a notice of
proposed rulemaking or other order are parties.

In rulemakings for the allotment of a broadcast
channel the petitioners and those making responsive
filings are parties.

14. What is the sunshine period prohibition?

The sunshine period prohibition imposes a restriction
on presentations to Commission decision-makers in
addition to the limitations otherwise applicable under
the ex parte rules. It applies to proceedings in which
the Commission has issued a public notice that a
matter will be considered at a Commission meeting --
that is, the matter has been placed on the "Sunshine
Agenda." While the sunshine period prohibition is in
effect, all presentations to decision-makers
concerning matters listed on a Sunshine Agenda,
whether ex parte or not, are prohibited unless they
fall within certain exceptions. In particular,
presentations are permitted if they occur in the
course of a widely attended speech or panel discussion
and concern a Commission action in an exempt or a
permit-but-disclose proceeding that has been adopted.
Members of Congress or their staffs and other federal
agencies or their staffs may make presentations in
exempt or permit-but-disclose proceedings, but
presentations that are of substantial significance and
clearly intended to affect the ultimate decision in
the proceeding must be disclosed, either by the
presenter or the Commission's staff. The sunshine
period prohibition applies from the release of a
public notice that a matter has been placed on the
Sunshine Agenda until the Commission releases the text
of a decision or order relating to the matter, issues
a public notice stating that the matter has been
deleted from the Sunshine Agenda, or issues a public
notice stating that the matter has been returned to
the staff for further consideration, whichever occurs
first.

15. How can I find out more information about the ex
parte rules?

For further information about the ex parte rules,
contact the Federal Communications Commission, Office
of Public Affairs, Consumer Assistance Branch at (202)
418-0200 or the Office of General Counsel,
Administrative Law Division at (202) 418- 1720.

--FCC--  http://www.fcc.gov/ogc/admain/ex_parte_factsheet.html

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