Amendment of Certain of the Commission's Ex Parte Rules and Other Procedural Rules, 14409-14417 [2010-6494]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 57 (Thursday, March 25, 2010)]
[Proposed Rules]
[Pages 14409-14417]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-6494]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 10-43; FCC 10-31]


Amendment of Certain of the Commission's Ex Parte Rules and Other 
Procedural Rules

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, we begin a new proceeding to improve the 
transparency and effectiveness of the Commission's decisionmaking by 
reforming our ex parte rules. The ex parte process allows parties in 
most Commission proceedings to speak directly (or have written 
communications) with Commission staff and decisionmakers, providing a 
way to have an interactive dialogue that can root out areas of concern, 
address gaps in understanding, identify weaknesses in the record, 
discuss alternative approaches, and generally lead to more informed 
decisionmaking. Oral ex parte presentations are by their nature 
inaccessible to people who are not present at the meeting unless the 
presentations are publicly documented in some way. In this document, we 
seek comment on proposals to improve our ex parte and other procedural 
rules to make the Commission's decisionmaking processes more open, 
transparent, and effective.

DATES: Comments must be submitted by May 10, 2010, and reply comments 
must be submitted by June 8, 2010. Written comments on the Paperwork 
Reduction Act proposed information collection requirements must be 
submitted by the public, Office of Management and Budget (OMB), and 
other interested parties on or before May 24, 2010.

ADDRESSES: You may submit comments, identified by GC Docket No. 10-43, 
by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Julie Veach, Office of General 
Counsel, 202-418-1700. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an e-mail to PRA@fcc.gov or contact Leslie 
Smith, OMD, 202-418-0217.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 10-31, adopted on February 18, 2010, and 
released on February 22, 2010. Pursuant to Sec. Sec.  1.415 and 1.419 
of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may 
file comments and reply comments on or before the dates indicated on 
the first page of this document. Comments may be filed using: (1) The 
Commission's Electronic Comment Filing System (ECFS), (2) the Federal 
Government's eRulemaking Portal, or (3) by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, 
May 1, 1998.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: https://www.regulations.gov.
     ECFS filers must transmit one electronic copy of the 
comments for GC Docket No. 10-43. In completing the transmittal screen, 
filers should include their full name, U.S. Postal Service mailing 
address, and the applicable docket number. Parties may also submit an 
electronic comment by Internet e-mail.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    Parties shall also serve one copy with the Commission's copy 
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via 
e-mail to fcc@bcpiweb.com. Documents in GC Docket No. 10-43 will be 
available for public inspection and copying during business hours at 
the FCC Reference Information Center, Portals II, 445 12th Street, SW., 
Room CY-A257, Washington, DC 20554. The documents may also be purchased 
from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY 
(202) 488-5562, e-mail fcc@bcpiweb.com.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.

I. Introduction

    1. In this NPRM, we begin a new proceeding to improve the 
transparency and effectiveness of the Commission's decisionmaking by 
reforming our ex parte rules. The ex parte process allows parties in 
most Commission proceedings to speak directly (or have written 
communications) with Commission staff and decisionmakers, providing a 
way to have an interactive dialogue that can root out areas of concern, 
address gaps

[[Page 14410]]

in understanding, identify weaknesses in the record, discuss 
alternative approaches, and generally lead to more informed 
decisionmaking. (The Administrative Procedure Act (APA) defines ``ex 
parte communication'' as ``an oral or written communication not on the 
public record with respect to which reasonable prior notice to all 
parties is not given, but it shall not include requests for status 
reports on any matter or proceeding covered by this subchapter.'' 5 
U.S.C. 551(14). Consistent with that definition, the Commission's rules 
define an ex parte presentation as ``[a]ny presentation which: (1) If 
written, is not served on the parties to the proceeding; or (2) If 
oral, is made without advance notice to the parties and without 
opportunity for them to be present,'' with ``presentation'' defined as 
``[a] communication directed to the merits or outcome of a proceeding, 
including any attachments to a written communication or documents shown 
in connection with an oral presentation directed to the merits or 
outcome of a proceeding.'' Written ex parte presentations include, for 
example, data, memoranda making legal arguments, materials shown to or 
given to Commission staff during ex parte meetings, and e-mail 
communications to Commission staff directed to the merits or outcome of 
a proceeding. Oral ex parte presentations include, for example, 
meetings or telephone or relay calls with Commission staff where 
parties present information or arguments directed to the outcome of a 
proceeding. The definition excludes certain types of communications, 
such as status inquiries that do not state or imply a view on the 
merits or outcome of the proceeding. 47 CFR 1.1202(a), (b).) Oral ex 
parte presentations are by their nature inaccessible to people who are 
not present at the meeting unless the presentations are publicly 
documented in some way. In permit-but-disclose proceedings, our ex 
parte rules require just this documentation. Years of experience, 
however, have revealed a number of areas where our ex parte rules could 
be improved. In this NPRM, we seek comment on proposals to improve our 
ex parte and other procedural rules to make the Commission's 
decisionmaking processes more open, transparent, and effective.
    2. First, we propose reforms to our ex parte rules to require 
disclosure of every oral ex parte presentation in permit-but-disclose 
proceedings unless a specific exemption applies, and to require the 
filing of a notice that summarizes all data and arguments that were 
presented (although the filer may refer to prior written filings for 
data and arguments that the filer has presented before). Second, we 
propose to codify a preference for electronic filing of all notices of 
ex parte presentations, in machine-readable formats, and we propose to 
require electronic filing of notices of ex parte presentations made 
during the Sunshine period within four hours of the presentation. 
Third, we seek comment on whether to amend the rules exempting certain 
communications from the ban on ex parte presentations during the 
Sunshine period or in restricted proceedings, and whether to begin the 
Sunshine period prohibition on ex parte presentations at midnight 
following the release of the Sunshine notice. Fourth, we seek comment 
on whether to require disclosure of ownership or other information 
about the entity making an ex parte presentation or filing any pleading 
with the Commission so that readers will better understand the filer's 
interest in the proceeding. Finally, we propose minor changes to 
modernize or correct our current ex parte rules.

II. Background

    3. The Commission's ex parte rules recognize three types of 
proceedings, and the rules apply differently to each type. In 
``restricted'' proceedings, ex parte presentations are generally 
prohibited. By contrast, in ``exempt'' proceedings, there are no 
restrictions on ex parte presentations. In ``permit-but-disclose'' 
proceedings--the category we primarily address in this rulemaking--ex 
parte presentations are allowed so long as they are disclosed in the 
record of the proceeding. Copies of written presentations and summaries 
of oral presentations must (as explained more fully below) be filed in 
the record.
    4. The filing of summaries of oral presentations (or ex parte 
notices) plays a key role in permit-but-disclose-proceedings, because 
interested parties frequently meet with the Commissioners and their 
staffs and the staffs of relevant Bureaus and Offices to present their 
views on the issues involved in pending permit-but-disclose 
proceedings. The current rule applicable to the oral presentations made 
in these meetings attempts to strike a balance between the need to give 
the public and other interested persons fair notice of the content of 
ex parte meetings and the desirability of not requiring parties to file 
unnecessary paperwork. Specifically, the current rule requires that if 
a person makes an oral ex parte presentation that presents data or 
arguments that are not already in that person's written filings in the 
proceeding, the person making the presentation must file a summary only 
of the new data or arguments. Indeed, if no new data or arguments are 
presented, no record of the oral ex parte presentation need be filed.
    5. On October 28, 2009, the Commission hosted a staff workshop on 
the ex parte process at which senior Commission staff and outside 
experts discussed whether our current rules address the needs of the 
Commission and the public. Based on our own experience with the rules 
as well as the discussion at that workshop, we believe that two 
limitations in the current rules governing oral presentations in 
permit-but-disclose proceedings--lack of a filing documenting every 
oral ex parte presentation, and a lack of completeness about what was 
discussed in the meeting--reduce the transparency of the Commission's 
decisionmaking to the detriment of Commission staff, outside parties, 
and the general public. As mentioned above, if the oral presentation 
did not present any new data or arguments, there is currently no 
requirement to file any ex parte notice, so other parties may not even 
know that a meeting occurred. When filings are made, they often fail to 
give the reader sufficient information to know whether or not the ex 
parte discussion involved matters already on the record in the 
presenter's written filings, and if so, what matters. For example, many 
summaries of oral ex parte presentations state in one or two sentences 
that a party met with Commission staff members and discussed a 
particular proceeding in a manner consistent with the party's prior 
filings, without stating what the presentation was about, what data or 
arguments were presented, or whether particular data or arguments were 
characterized as especially important to the party's position. Although 
the number of complaints about alleged ex parte rule violations 
received by the Commission in permit-but-disclose proceedings is small 
(generally not more than one or two a year) and we are unable to 
estimate the number of violations that are not complained about, there 
is reason to believe that some ex parte notices fail to comply with the 
rule by failing to provide an adequate summary of new data or arguments 
discussed in ex parte meetings.

[[Page 14411]]

III. Discussion

A. Completeness and Accuracy of Memoranda Summarizing Oral Ex Parte 
Presentations

1. Filing Notices of All Oral Ex Parte Presentations, and Disclosing 
All Facts and Arguments Presented
    6. Oral ex parte presentations provide a valuable opportunity for 
parties to converse with Commission staff, addressing concerns and 
questions in an interactive manner that is not possible in written 
filings. Oral presentations, however, must be adequately documented for 
the Commission to rely on them in its decisionmaking and for other 
parties to respond to them. (We take this opportunity to eliminate a 
possible misperception by noting that our current rules do not except 
oral ex parte presentations from the disclosure requirements when they 
are made at the request of staff. Oral ex parte presentations that are 
made at the request of staff must be disclosed to the same extent as 
oral ex parte presentations that are made at the request of the 
presenter. See 47 CFR 1.1206(b)(2).) When for any reason the record 
does not adequately reflect the contents of oral ex parte 
presentations, the public is deprived of a fair opportunity to respond 
to oral communications with decisionmakers, and the Commission may lack 
an adequate administrative record to the extent that the Commission 
wishes to rely on information presented during an oral ex parte 
presentation.
    7. These same issues prompted the Commission, when it last 
comprehensively revised the ex parte rules, to propose that ex parte 
notices summarize the contents of all oral presentations in permit-but-
disclose proceedings, regardless whether the presentation involved new 
information. Commenters were divided over the merits of this proposal, 
and the Commission ultimately rejected it. The Commission found that 
that it was not necessary to require additional filings that would 
merely reiterate submissions already filed. Instead, the Commission 
chose to rely on enforcement of the existing requirement that new data 
or arguments be summarized. The Commission reiterated its intent to 
enforce the existing requirement by issuing a public notice three years 
later reminding the public of its responsibilities to summarize new 
data and arguments in permit-but-disclose proceedings. The Commission 
has also emphasized these requirements on its Web site.
    8. The Commission's and the public's need for information about the 
contents of oral ex parte presentations now causes us to propose to 
require more disclosure. To address the two main limitations in our 
current rules described above, we propose rules changes that (1) 
require the filing of an ex parte notice for every oral ex parte 
presentation, not just presentations that present data or arguments not 
already reflected in the presenter's written comments, memoranda or 
other filings; and (2) require that to the extent the presentation 
concerned data or arguments already reflected in the presenter's 
written filings in the record, the notice either summarizes the data or 
arguments presented or explicitly states that the data and arguments 
are already reflected in prior written filings and provides specific 
references (including page or paragraph numbers) to the presenter's 
prior filings containing the data and arguments presented. As under the 
current rule, the ex parte notice would have to contain a summary of 
any new data or arguments presented at the ex parte meeting. (We note 
that our current rules already state that any ``documents shown in 
connection with an oral presentation'' are defined as a written ex 
parte presentation and must be filed. 47 CFR 1.1202(a), (b)(1).) See 
Sec.  1.1206 of the proposed rules section of this document for 
proposed revised language.
    9. We believe that requiring that a memorandum be filed after every 
oral ex parte presentation would make the Commission's processes more 
transparent. We also believe that by requiring more disclosure of what 
was said in the presentation, by summarizing all facts and arguments or 
referring to prior written submissions, the new approach would also 
give readers a better understanding of the content of the presentation. 
It would do so, however, without imposing the significantly increased 
burden on those filing notices of having to summarize both old and new 
information. For that reason, we believe the proposed rule properly 
balances the need for fairness and transparency in Commission 
proceedings with avoiding unnecessary burdens on parties.
    10. We seek comment on whether to adopt this proposal. Given that 
the proposed rule would generally require more detailed ex parte 
notices than the current rule does, we seek comment on whether parties 
should (except with respect to exempt presentations during the Sunshine 
period as discussed below) have two business days after making an oral 
ex parte presentation to make a filing rather than the current one 
business day.
    11. The Commission remains committed to enforcing its rules. We 
seek comment on whether more aggressive enforcement of our existing 
rules would address some of the issues we have described above with 
regard to adequate disclosure of oral ex parte presentations. For 
instance, if the Commission imposed harsher sanctions against parties 
that fail to disclose ex parte presentations or that file inadequate 
summaries of oral ex parte presentations under our existing rules, 
would any of the rule changes we propose be unwarranted? We invite 
commenters to make specific enforcement-related proposals that would 
improve transparency of oral ex parte presentations in an efficient 
manner.
    12. We do not propose to change the current treatment of status 
inquiries as described in Sec.  1.1202(a). Section 1.1202(a) defines 
the term ``presentation,'' and provides that ``Excluded from this term 
are * * * inquiries relating solely to the status of a proceeding, 
including inquiries as to the approximate time that action in a 
proceeding may be taken. However, a status inquiry which states or 
implies a view as to the merits or outcome of the proceeding or a 
preference for a particular party, which states why timing is important 
to a particular party or indicates a view as to the date by which a 
proceeding should be resolved, or which otherwise is intended to 
address the merits or outcome or to influence the timing of a 
proceeding is a presentation.''
    If a status inquiry falls within the exclusion defined in Sec.  
1.1202, it is not an ex parte ``presentation'' and need not be 
disclosed. We seek comment on this proposal to retain the current 
treatment of status inquiries.
2. Other Approaches
    13. Nothing in the APA requires that agencies give the public the 
opportunity to make oral presentations in rulemaking proceedings or in 
adjudications that are not otherwise required to be conducted on the 
record after a hearing. Not surprisingly, not all agencies have taken 
the same approach to oral ex parte communications. For example, in 
rulemaking proceedings at the Federal Election Commission, if a 
commissioner or member of a commissioner's staff receives an oral ex 
parte communication, the burden is on the commissioner or 
commissioner's staff to provide a written summary to the commission's 
Secretary for placement in the public record. When

[[Page 14412]]

the Federal Trade Commission conducts informal rulemakings, oral ex 
parte presentations to commissioners and their staffs occur 
infrequently, but summaries or transcripts of oral communications must 
be placed on the public record. Adjudications at the Federal Trade 
Commission are conducted as formal adjudications and ex parte 
presentations are not permitted. Other agencies, such as the Nuclear 
Regulatory Commission, favor taking in oral information through 
informal public meetings, rather than individual ex parte meetings. 
Indeed, this Commission has considered, but not adopted, measures as 
strong as a complete prohibition on ex parte contacts in informal 
rulemaking proceedings.
    14. We seek comment on whether adopting some practices of other 
agencies regarding oral presentations would improve transparency in our 
own proceedings. We also invite alternative proposals that would 
increase compliance with our ex parte rules.

B. Preference for Electronic Filings

    15. When the Commission last reassessed its ex parte rules thirteen 
years ago, parties filed documents in Commission proceedings mostly on 
paper. Now, more often than not, parties file documents in Commission 
proceedings electronically. Many if not most of our permit-but-disclose 
proceedings are now docketed on the Commission's Electronic Comment 
Filing System or other electronic filing systems, where the records are 
available electronically, and the Commission has made it possible for 
parties to file many types of documents electronically. Moreover, we 
are taking steps to expand this capability. Indeed, filing ex parte 
notices is now very often done electronically, allowing the Commission 
staff, parties, and the general public to have easy and timely access 
to those documents online, and reducing the time that Commission staff 
must spend gathering record materials as they work to resolve 
Commission proceedings. Reducing the burdens of following Commission 
proceedings also supports our goals of transparency and public 
participation.
    16. We propose to amend our ex parte rules generally to require 
that written ex parte presentations and memoranda summarizing oral ex 
parte presentations in docketed proceedings be filed electronically on 
a Commission electronic comment filing system. We believe that most 
parties already do so; this rule would for the most part codify current 
practice. In those cases where a docket number has not been assigned to 
a proceeding or the Commission has not provided a method for filing 
memoranda electronically, we propose that the person required to submit 
the memorandum shall file on paper an original and one copy with the 
Secretary's office. We also seek comment on whether these filings 
should be made in machine-readable format (e.g., Microsoft Word 
``.doc'' format or non-copy protected text-searchable ``.pdf'' format 
for text filings, and ``native formats'' for non-text filings, such as 
spreadsheets in Microsoft Excel ``.xml'' format). We recognize that in 
some cases, electronic filing is not possible without undue hardship 
because the person making the oral ex parte presentation does not have 
access to a computer or the Internet or because the filing contains 
confidential business or financial information. We therefore propose to 
codify an exception. See Sec.  1.206(b) of the proposed rules section 
of this document for proposed revised language.
    17. We seek comment on these proposals. In particular, we seek 
comment on whether there are types of proceedings for which these 
procedures would be impractical, such that we should require paper 
filing or allow other methods for submitting ex parte notices.
    18. We note a particular issue with regard to the filing of ex 
parte notices during the Sunshine period. The current ex parte rules 
prohibit most presentations, whether ex parte or not, during the 
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 returned to the staff. Typically, the Sunshine notice is released 
seven days before an agenda meeting. The Sunshine period prohibition is 
intended to provide decisionmakers ``a `period of repose' during which 
they can be assured that they will be free from last minute 
interruptions and other external pressures, thereby promoting an 
atmosphere of calm deliberation.'' The prohibition on most 
presentations during the Sunshine period is also meant to give the 
Commissioners and staff time to examine a record that is largely fixed, 
rather than continuing to analyze new data and arguments. We believe 
that a period of repose from both oral and written presentations before 
a Commission meeting continues to make sense in most circumstances and 
seek comment on this conclusion. We note in this regard that the 
Commission has and can in the future waive the prohibition where the 
public interest so requires.
    19. In those cases where an oral ex parte presentation is permitted 
to be made during the Sunshine period but must still be disclosed, it 
is very important that the notice summarizing that presentation be 
available quickly to Commissioners, Commission staff, and interested 
outside parties. During the Sunshine period, the Commission is in the 
final stages of considering how to resolve a proceeding. When, as 
permitted under the current rules, notices of oral ex parte 
presentations are filed by the end of the following business day, as 
many as two working days may have elapsed between the conclusion of the 
oral presentation and the filing of the summary. An even longer delay 
in having the notice appear in the electronic docket may result if the 
summary is not filed electronically. At the end of a proceeding, when 
decision-makers are making final judgments concerning the matter, this 
can be a great deal of time and the delay in filing may preclude 
sufficient consideration of the contents of the filing by Commissioners 
and Commission staff. In addition, if the rules were to be amended so 
that other parties were allowed to make responsive presentations during 
the Sunshine period, it would be necessary for them to see the 
summaries of other parties' presentations so that they can respond to 
the data or arguments that were presented.
    20. Because of the problem of timing, we propose that ex parte 
notices summarizing oral ex parte presentations that were made during 
the Sunshine period must be filed electronically within four hours of 
the completion of the presentation, so that they are available quickly 
to all. We recognize that in some cases, this may be difficult for 
parties to accomplish because of sequential meetings, travel plans, or 
very occasionally a lack of access to a computer and the Internet. We 
believe that it is vitally important to the Commission's deliberations 
that as many ex parte notices as possible are filed electronically 
within four hours. Almost all proposed orders that are placed on a 
Sunshine notice are in proceedings for which electronic filing is 
available. If, however, the Commission were to place a proposal on the 
Sunshine notice for which Sec.  1.1203 applied but for which no 
electronic filing mechanism was available, we propose that memoranda 
summarizing oral ex parte presentations that must be filed during the 
Sunshine period be sent by electronic mail (or, if electronic mail is 
not available, by facsimile) to all Commission staff who attended the 
presentation and to all parties who have provided such contact 
information

[[Page 14413]]

unless the Sunshine notice provides otherwise. We seek comment on these 
proposals.
    21. Furthermore, to make it simpler for staff to determine whether 
the ex parte presentation was permissible and whether the notice was 
timely filed, we propose to require that the notice say in the first 
sentence why the ex parte presentation was permissible, and also on 
what day and at what time the oral presentation took place. See Sec.  
1.1206(b) of the proposed rules section of this document for proposed 
revised language.
    22. We seek comment on these proposals. In particular, we seek 
comment on the four-hour filing period, and whether that will in most 
cases provide a sufficient filing opportunity. If not, we ask parties 
to propose a reasonable time for filing that takes into consideration 
the harm that delays in receiving the information can have on the 
Commission's resolution of its proceedings. We also seek comment on 
whether this requirement would be impracticable for certain filers, and 
whether and how we could craft an exception that would still make 
notices of these presentations available to the Commissioners, staff, 
and public quickly.

C. The Sunshine Period Prohibition and Exceptions

    23. We also seek comment on whether the current exceptions to the 
Sunshine period restrictions ought to be modified. Exceptions to the 
Sunshine period prohibition include presentations ``requested by (or 
made with the advance approval of) the Commission or staff for the 
clarification or adduction of evidence, or for resolution of issues, 
including possible settlement.'' (We note that this exception allows ex 
parte presentations to be made when they would otherwise be prohibited, 
but it does not relieve the presenter from the burden of disclosing the 
contents of oral ex parte presentations. Even if an oral presentation 
is at the request of staff, disclosure requirements still apply. See 47 
CFR 1.1204(a)(10)(iv).) We believe that information gathered through 
such permitted presentations can be important to the Commission's 
ability to reach the best possible decisions on proposed orders subject 
to a Sunshine period restriction. Nonetheless, the exception could be 
abused to shore up the record on one side of an argument without 
allowing responses on the other side. Indeed, during the workshop, some 
participants suggested that as a matter of fairness to all parties, the 
Sunshine period ought to be ``all or nothing''--that is, it should 
either be a period of strict repose or it should be eliminated to allow 
all presentations. Accordingly, we seek comment on whether this 
exception ought to be narrowed to prohibit an outside party from 
soliciting a request from staff for an ex parte presentation ``for the 
clarification or adduction of evidence, or for the resolution of 
issues.'' We also seek comment on whether it is practical and 
consistent with having a ``period of repose'' to allow replies to 
presentations made pursuant to a Sunshine period exception. We seek 
comment on other possible resolutions.
    24. While the settlement exception in Sec.  1.1204(a)(10) of the 
rules serves an important function, we also seek comment on whether it 
is susceptible to misuse apart from its impact during the Sunshine 
period. For example, we seek comment on whether reliance on the 
provision of the rule exempting from disclosure ``information relating 
to how a proceeding should or could be settled, as opposed to new 
information regarding the merits,'' sometimes has been applied in an 
overly broad manner to effectively permit the undisclosed discussion of 
the merits of proceedings. To the extent this may be so, we seek 
comment on how the rule should be amended to eliminate this problem, 
without constraining appropriate uses of the staff's ability to 
facilitate settlements in adjudicatory matters, such as formal 
complaint proceedings under section 208 of the Act and pole attachment 
complaint proceedings under section 224 of the Act.
    25. We note one other complexity with regard to our Sunshine 
procedures. Under our current rules, the prohibition on ex parte 
communications begins with the release of the Sunshine notice. While 
Sunshine notices are almost always released seven days in advance of an 
Agenda Meeting, the time of day at which a Sunshine notice is released 
varies. This variability makes it difficult for outside parties to know 
up until what time they may make oral ex parte presentations or file 
written ex parte presentations. It also makes it difficult for 
Commission staff to analyze later whether a presentation that was made 
on the day a Sunshine notice was released was made before or after the 
notice was released. For these reasons, we seek comment whether we 
should modify Sec.  1.1203(b) to make the prohibition on ex parte 
communications effective at midnight after a Sunshine notice is 
released, unless otherwise specified in the notice. See Sec.  1.1203(b) 
of the proposed rules section of this document for proposed revised 
language. We seek comment on this proposal. In particular, we seek 
comment on whether there are other ways to create a brighter line to 
mark the beginning of the period of repose that would not also shorten 
the period of repose.
    26. We take this opportunity to remind parties that the Commission 
and its staff have discretion to modify the applicable ex parte rules 
in a particular proceeding by ``order, letter, or public notice.'' For 
example, staff may indicate that a particular licensing proceeding will 
be changed from a restricted proceeding to a permit-but-disclose 
proceeding because it raises policy issues on which broader public 
participation would benefit the public interest. Staff may choose to 
continue to require service of process in such a proceeding, and will 
so indicate in the document that changes the status of the proceeding.

D. Disclosure Statements

    27. In many cases, a party filing a pleading or other document with 
the Commission or making an ex parte presentation may represent the 
interests of other entities, or the party's interest in the proceeding 
may otherwise be unclear. We are interested in whether the ability of 
both the Commission and the public to evaluate the positions taken in 
Commission proceedings would be improved if parties provided more 
information about themselves and their interests in the proceedings. We 
therefore seek comment on the desirability of requiring filers to 
submit a disclosure statement in connection with their filings in all 
Commission proceedings.
    28. There are several possible models for a disclosure requirement. 
One possible model is Supreme Court Rule 29.6. That rule requires any 
nongovernmental corporation filing a document with the Court to include 
a corporate disclosure statement identifying the parent corporations 
and listing any publicly held company that owns ten percent or more of 
the corporation's stock. In addition, Supreme Court Rule 37.6 requires 
that amicus briefs (except those filed by certain government entities) 
``indicate whether counsel for a party authored the brief in whole or 
in part and whether such counsel or a party made a monetary 
contribution intended to fund the preparation or submission of the 
brief, and shall identify every person other than the amicus curiae, 
its members, or its counsel, who made such a monetary contribution.'' 
Another possible model is Rule 26.1 of the Circuit Rules for the U.S. 
Court of Appeals for the DC Circuit. That rule applies more broadly 
than the Supreme

[[Page 14414]]

Court Rule, to any corporation, association, joint venture, 
partnership, syndicate or other similar entity appearing as a party or 
amicus curiae in any proceeding. Like Supreme Court Rule 29.6, it 
requires these entities to file a disclosure statement that identifies 
all parent companies and any publicly held company that has a ten 
percent or greater interest in the entity, but it goes on to define 
``parent companies'' to include all companies controlling the specified 
entity directly, or indirectly through intermediaries. The statement 
must also identify the represented entity's general nature and purpose, 
insofar as relevant to the litigation. If the entity is an 
unincorporated entity whose members have no ownership interests, the 
disclosure statement must include the names of any members who have 
issued shares or debt securities to the public. This last requirement 
does not apply to trade associations or professional associations, 
defining a trade association as a continuing association of numerous 
organizations or individuals operated for the purpose of promoting the 
general commercial, professional, legislative, or other interests of 
the membership. A third possible model is the Lobbying Disclosure Act 
(LDA). The LDA requires the disclosure of the registrant's clients and 
any organizations that contribute more than $5,000 in a quarterly 
period to the registrant's lobbying activities.
    29. We seek comment on these alternatives and, more generally, 
whether to require disclosure of this type in filings with the 
Commission. We ask parties to comment on whether one of the models 
described would suit this objective, or whether a combination of these 
models or a different model would be better. We recognize that greater 
disclosure might discourage some entities from participating in our 
proceedings. We seek comment on whether a disclosure rule could be 
fashioned in a way that would avoid discouraging participation in our 
proceedings while still providing more information about the relevant 
interests of the parties. We also seek comment on what, if any, 
disclosure requirements would be appropriate for individuals. We also 
ask parties to identify whether there are types of entities or 
proceedings to which any disclosure requirement should not apply.
    30. We recognize that the Commission currently requires some 
regulatees to submit certain ownership information. For example, 
commercial broadcaster licensees and entities that hold attributable 
interests in such licensees must file FCC Form 323 biennially, and also 
after various triggering events. Filers of Form 323 identify their 
ownership interest as well as any other entities or individuals that 
have an attributable ownership interest. The filed forms are available 
to the public online through the Consolidated Database System (CDBS). 
Similarly, licensees and license applicants for wireless services 
subject to competitive bidding must have an updated FCC Form 602 on 
file upon certain triggering events, which include applying for or 
renewing a license and requesting authority to transfer control of a 
license. Among other things, the filer must disclose the real party or 
parties in interest, including the identity and relationship of persons 
or entities directly or indirectly controlling the applicant. Filers 
also must disclose information regarding persons or entities that 
directly or indirectly hold a ten percent or greater ownership interest 
or general partnership interest in the filer. Information from Form 602 
is available to the public online through the Universal Licensing 
System (ULS).
    31. We seek comment on whether this ownership information 
appropriately could be referenced by a party in its ex parte filing or 
pleading to satisfy part or all of any disclosure requirements that the 
Commission may adopt. Are there other publicly available sources of 
similar information that appropriately could be referenced or attached 
in a similar way? We invite any other suggestions on how to improve the 
Commission's and the public's understanding of a party's interest in a 
proceeding.

E. Other Issues

    32. Sanctions and Enforcement. Even with perfect compliance with 
our existing rules, we tentatively believe our proposals would improve 
transparency by, for example, requiring disclosure of every ex parte 
presentation in permit-but-disclose proceedings, and requiring parties 
to identify or refer specifically to all data and arguments that they 
present. Above, however, we seek comment on whether stricter 
enforcement of our existing rules would lessen or eliminate the need 
for any of the changes to our rules that we propose in this Notice. In 
doing so, we do not suggest that the rule changes suggested here are a 
substitute for enforcement of the ex parte rules. Regardless of what 
amendments are adopted in this proceeding or when, we intend to place 
greater emphasis on enforcement against impermissible ex parte 
contacts. We will not hesitate to impose appropriate sanctions, 
including monetary forfeitures, for violations. In this regard, we seek 
comment on what types of sanctions should be deemed appropriate with 
respect to different types of ex parte violations, and, in particular, 
what sanctions would be appropriate for the filing of inadequate ex 
parte notices. We specifically seek comment on the extent to which 
prejudice to other parties should be a principal factor in determining 
the appropriate sanction and any other factors we should consider in 
determining what sanctions are appropriate. We also seek comment on 
whether all ex parte sanctions, including admonitions, should be 
publicly announced.
    33. New Media. The Commission is beginning to make use of new media 
technologies in some of its proceedings. For example, the Commission 
has three new Web sites that are dedicated to particular issues--
broadband.gov for the proceeding to create a National Broadband Plan, 
OpenInternet.gov for the proceeding to preserve and promote the open 
Internet, and reboot.fcc.gov to solicit and discuss ideas on general 
Commission reform. These Web sites and the Commission's more familiar 
Web site provide information about the Commission and its proceedings, 
but they also allow the public to comment on various issues through new 
media such as blogs, Facebook, and IdeaScale. Some of the issues on 
which the public provides input are the subjects of permit-but-disclose 
proceedings and are therefore subject to our ex parte rules. The 
Commission to date has modified its ex parte rules to accommodate the 
use of new media on a case-by-case basis pursuant to Sec.  1.1200(a). 
We expect to continue to do so as we and the public gain experience 
with the use of new media.
    34. We do not, at this time, propose specific rules regarding the 
ex parte implications of new media, but we welcome any comments on the 
issue. In particular, we are interested in comments as to whether and 
how we should account for any differences in access to these new media 
by different segments of the public, such as those whose homes or 
communities are not served by broadband or those who have not 
subscribed to broadband.
    35. Minor Changes. We seek comment on a number of additional 
proposed changes:
    36. First, we seek comment on eliminating Sec.  1.1202(d)(6) as it 
appears to be an exact duplicate of Sec.  1.1202(d)(5).
    37. Second, we seek comment on amending Sec.  1.1204(a)(6) 
regarding communications between the Department of Justice or Federal 
Trade Commission and this Commission to reflect that the matter be 
related to

[[Page 14415]]

``communications'' generally rather than ``telecommunications,'' and to 
delete the word ``competition.'' We believe that referring to 
``communications'' rather than ``telecommunications,'' which is a 
defined term under the Act, would reflect more accurately the types of 
discussions that are intended to be exempt under this rule, and would 
avoid any appearance that we intend to limit the scope of the exemption 
to communications regarding ``telecommunications'' as defined in the 
Act, as opposed to, for example, cable services. We also propose to 
delete the word ``competition'' to reflect that communications between 
our agencies may touch on matters such as consumer protection or law 
enforcement, which may not be directly linked to competition. We seek 
comment on these proposals.
    38. Third, we propose to add the Pooling Administrator and the TRS 
Numbering Administrator to the list of entities in Sec.  1.1204(a)(12) 
with which communications are exempt from the ex parte rules. This 
would be consistent with the exemptions for other numbering 
administrators such as the North American Numbering Plan Administrator 
and the Number Portability Administrator. The Commission established 
the framework for selecting the national Pooling Administrator in 2000, 
and created the TRS Numbering Administrator in 2008; these proposed 
changes would bring the ex parte rules up to date with regard to these 
entities. We seek comment on these proposals.
    39. Fourth, we propose to delete from the list of permit-but-
disclose proceedings in Sec.  1.1206(a) Bell Operating Company 
applications under section 271 of the Act. All Bell Operating Companies 
have applied for and received authority under section 271 in all their 
relevant states. If for some reason in the future a Bell Operating 
Company were to reapply for authority under section 271, the staff 
could designate the proceeding as a permit-but-disclose proceeding 
under Sec.  1.1200(a). We seek comment on this proposal.
    40. Fifth, we propose to codify the practice whereby staff may at 
its discretion file an ex parte summary of a meeting attended by many 
parties, thereby relieving the parties of the obligation to file 
individually. This would be at the staff's option. We seek comment on 
this proposal.
    41. Sixth, we propose a change to our rules regarding oral 
presentations in restricted proceedings. Under our current rules, ex 
parte presentations are generally not permitted in restricted 
proceedings. An oral presentation is not ex parte, however, if it is 
made with advance notice to all the parties to the proceeding with an 
opportunity for them to be present. If a party makes a permissible oral 
presentation, our rules currently do not require the party to file a 
summary in the record of the proceeding. We propose to require a 
summary to the same extent as in permit-but-disclose proceedings. We 
believe that having a summary in the record of the proceeding would 
facilitate review of the record by Commission staff as well as the 
parties to the proceeding. A draft of a revised Sec.  1.1203(b) is 
provided. We seek comment on the proposal.
    42. Seventh, we propose to make it more plain that our rules 
already require that documents that are shown to or given to Commission 
staff during ex parte meetings are themselves written ex parte 
presentations and must be filed. A draft of a proposed clarification to 
Sec.  1.1206(b)(1) is provided. We seek comment on the proposed 
language.
    43. Eighth, we propose to clarify a point regarding inter-
governmental ex parte presentations that are permitted during the 
Sunshine period. Current Sec.  1.1203(a)(4) permits presentations from 
members of Congress, their staff, or other agencies or branches of the 
Federal government in exempt and permit-but-disclose proceedings during 
the Sunshine period, when most presentations are not permitted. The 
rule also states that significant presentations must be placed in the 
record consistent with Sec.  1.1206(b). Section 1.1204(b), however, 
provides that ex parte presentations in exempt proceedings need not be 
disclosed at all. To remedy this inconsistency, we propose to clarify 
in Sec.  1.1203(a)(4) that the requirement to disclose presentations 
that are made during the Sunshine period only applies to presentations 
made in permit-but-disclose proceedings. We seek comment on this 
proposal.
    44. Ninth, we propose to clarify that the Sunshine period 
prohibition does not affect parties' obligation to file a written ex 
parte presentation or memorandum summarizing an oral ex parte 
presentation for presentations that are made on the last day before the 
Sunshine period begins, even though new ex parte presentations are not 
permitted unless they are made pursuant to an exception to the 
prohibition on ex parte presentations. A proposed clarification to 
Sec.  1.1203 is provided.
    45. Finally, we propose in general to reorganize Sec.  1.1206 to 
make it clearer and easier to understand, and to make various 
conforming edits. A draft of a proposed improved Sec.  1.1206 is 
provided. We seek comment on these proposed changes.
    46. Other. We invite commenters to propose any other modifications 
to the ex parte rules that would enhance the transparency, fairness, 
and efficiency of the decisionmaking process.

IV. Procedural Matters

    47. Ex Parte Presentations. The rulemaking this NPRM initiates 
shall be treated as a ``permit-but-disclose'' proceeding in accordance 
with the Commission's ex parte rules. Persons making oral ex parte 
presentations are reminded that memoranda summarizing the presentations 
must contain summaries of the substance of the presentations and not 
merely a listing of the subjects discussed. More than a one- or two-
sentence description of the views and arguments presented generally is 
required. Other requirements pertaining to oral and written 
presentations are set forth in Sec.  1.1206(b) of the Commission's 
rules.
    48. Accessible Formats: To request materials in accessible formats 
for people with disabilities (Braille, large print, electronic files, 
audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & 
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(tty).
    49. Regulatory Flexibility Act. Our action does not require notice 
and comment, and therefore falls outside of the Regulatory Flexibility 
Act of 1980, as amended. We will send a copy of this Notice of Proposed 
Rulemaking to the Chief Counsel of Advocacy of the SBA.
    50. Paperwork Reduction Act. This proceeding may result in new 
information collection requirements. The Commission, as part of its 
continuing effort to reduce paperwork burdens, invites the general 
public and the Office of Management and Budget (OMB) to comment on the 
information collection requirements contained in this document, as 
required by the Paperwork Reduction Act of 1995. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, we seek specific 
comment on how we might ``further reduce the information collection 
burden for small business concerns with fewer than 25 employees.''

V. Ordering Clauses

    51. Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), and 303(r), that notice is hereby given of the proposed 
regulatory changes described

[[Page 14416]]

above, and that comment is sought on these proposals.
    52. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Government employees, 
Lawyers, Penalties, Reporting and recordkeeping requirements, 
Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 1 to read as 
follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority:  15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 303(r), and 309.


Sec.  1.202  [Amended]

    2. Section 1.1202 is amended by removing paragraph (d)(6).
    3. Section 1.1203 is amended by revising paragraphs (a)(4) and (b) 
introductory text, and adding a new paragraph (c) to read as follows:


Sec.  1.1203  Sunshine period prohibition.

    (a) * * *
    (4) The presentation is made by a member of Congress or his or her 
staff, or by other agencies or branches of the Federal government or 
their staffs in a proceeding exempt under Sec.  1.1204 or subject to 
permit-but-disclose requirements under Sec.  1.1206. If this 
presentation is of substantial significance and clearly intended to 
affect the ultimate decision, and is made in a permit-but-disclose 
proceeding, the presentation (or, if oral, a summary of the 
presentation) must be placed in the record of the proceedings by 
Commission staff or by the presenter in accordance with the procedures 
set forth in Sec.  1.1206(b).
    (b) The prohibition set forth in paragraph (a) of this section 
applies beginning at midnight following the release of a public notice 
that a matter has been placed on the Sunshine Agenda until the 
Commission:
* * * * *
    (c) Nothing in this section prevents a party from submitting a 
written ex parte presentation or a memorandum summarizing an oral ex 
parte presentation on the first business day of the Sunshine period 
prohibition to the extent that Sec.  1.1206 or Sec.  1.1208 requires 
submission of such a presentation or memorandum to reflect an ex parte 
presentation that was made on the last day before the beginning of the 
Sunshine period.
    4. Section 1.1204 is amended by revising paragraphs (a)(6), 
(a)(12)(iii), and (a)(12)(iv), and adding new paragraphs (a)(12)(v) and 
(a)(12)(vi) to read as follows:


Sec.  1.1204  Exempt ex parte presentations and proceedings.

    (a) * * *
    (6) The presentation is to or from the United States Department of 
Justice or Federal Trade Commission and involves a communications 
matter in a proceeding which has not been designated for hearing and in 
which the relevant agency is not a party or commenter (in an informal 
rulemaking or Joint board proceeding) provided that, any new factual 
information obtained through such a presentation that is relied on by 
the Commission in its decisionmaking process will be disclosed by the 
Commission no later than at the time of the release of the Commission's 
decision;
* * * * *
    (12) * * *
    (iii) The Universal Service Administrative Company relating to the 
administration of universal service support mechanisms pursuant to 47 
U.S.C. 254;
    (iv) The Number Portability Administrator relating to the 
administration of local number portability pursuant to 47 U.S.C. 
251(b)(2) and (e); provided that the relevant administrator has not 
filed comments or otherwise participated as a party in the proceeding;
    (v) The TRS Numbering Administrator relating to the administration 
of the TRS numbering directory pursuant to 47 U.S.C. 225 and 47 U.S.C. 
251(e); or
    (vi) The Pooling Administrator relating to the administration of 
thousands-block number pooling pursuant to 47 U.S.C. 251(e).
* * * * *
    5. Section 1.1206 is amended by revising paragraph (a)(12), 
removing paragraph (a)(13), redesignating paragraph (a)(14) as (a)(13) 
(Note 3 to paragraph (a) remains unchanged), and revising paragraph (b) 
to read as follows:


Sec.  1.1206  Permit-but-disclose proceedings.

    (a) * * *
    (12) A modification request filed pursuant to Sec.  64.1001 of this 
chapter; and
* * * * *
    (b) The following disclosure requirements apply to ex parte 
presentations in permit-but-disclose proceedings:
    (1) Written presentations. A person who makes a written ex parte 
presentation subject to this section, including giving or showing a 
document to Commission staff, shall, 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) shall clearly 
identify the proceeding to which it relates, including the docket 
number, if any, shall indicate that an original and one copy have been 
submitted to the Secretary or that one copy has been filed 
electronically, and must be labeled as an ex parte presentation. If the 
presentation relates to more than one proceeding, two copies (or an 
original and one copy, or one copy if filed electronically) shall be 
filed for each proceeding.
    (2) Oral presentations.
    (i) A person who makes an oral ex parte presentation subject to 
this section shall submit a memorandum that summarizes all data 
presented and arguments made during the oral ex parte presentation. If 
the oral ex parte presentation consisted in whole or in part of the 
presentation of data or arguments already reflected in that person's 
written comments, memoranda or other filings in the proceeding, the 
person who made such presentation may provide citations to such data or 
arguments in that person's prior comments, memoranda, or other filings 
in lieu of summarizing them in the memorandum. Memoranda must contain a 
summary of the substance of the ex parte presentation and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
The memorandum (and cover letter, if any) shall clearly identify the 
proceeding to which it relates, including the docket number, if any, 
shall indicate that an original and one copy have been submitted to the 
Secretary or that one copy has been filed electronically, 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, or one copy if filed electronically) shall be filed for 
each proceeding.


[[Page 14417]]


    Note 1 to paragraph (b): Where, for example, presentations occur 
in the form of discussion at a widely attended meeting, 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 recording of the discussion as an alternative to a 
memorandum.

    (ii) The memorandum required to be submitted to the Secretary under 
this subpart must be submitted no later than the next business day 
after the presentation. In proceedings governed by Sec.  1.49(f) or for 
which the Commission has made available a method of electronic filing, 
the memorandum shall, when feasible, be filed through the electronic 
comment filing system available for that proceeding. In other 
proceedings or if filing through the electronic comment filing system 
would present an undue hardship, an original and one copy must be 
submitted to the Secretary and also sent on paper or via electronic 
mail to the Commissioners and Commission employees involved in the 
presentation.
    (iii) If the memorandum summarizing an oral presentation required 
to be submitted under this subpart results from an oral ex parte 
presentation that is made pursuant to an exception to the Sunshine 
period prohibition, the memorandum shall be submitted through the 
Commission's electronic comment filing system, and shall be submitted 
within four hours of the presentation to which it relates. The 
memorandum shall also identify plainly on the first page the specific 
exception in Sec.  1.1203(a) on which the presenter relies. The 
memorandum shall also state the date and time at which the oral ex 
parte presentation was made.
    (3) Electronic Filing and Native Formats. In proceedings governed 
by Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, shall, when feasible, be filed electronically, and shall be 
filed in native formats (i.e., .doc, .xml, .ppt, searchable .pdf). In 
cases where a filer believes that the document to be filed should be 
withheld from public inspection, the filer should file electronically a 
request that the information not be made routinely available for public 
inspection pursuant to Sec.  0.459, and a copy of the document with 
such confidential information redacted. The filer should submit the 
original unredacted document to the Secretary as directed in Sec.  
0.459.
    (4) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, 
in permit-but-disclose proceedings presentations made by Members of 
Congress or their staffs or by an agency or branch of the Federal 
Government or its staff shall be treated as ex parte presentations only 
if the presentations are of substantial significance and clearly 
intended to affect the ultimate decision. The Commission staff shall 
prepare a written summary of any such oral presentation and place it in 
the record in accordance with paragraph (b)(2) of this section and 
place any such written presentation in the record in accordance with 
paragraph (b)(1) of this section.
    (5) Notice of ex parte presentations. The Commission's Secretary 
or, in the case of non-docketed proceedings, the relevant Bureau or 
Office shall place in the public file or record of the proceeding 
written ex parte presentations and memoranda reflecting oral ex parte 
presentations. The Secretary shall issue a public notice listing any 
written ex parte presentations or written summaries of oral ex parte 
presentations received by his or her office relating to any permit-but-
disclose proceeding. Such public notices should generally be released 
at least twice per week.

    Note 2 to paragraph (b): Interested persons should be aware that 
some ex parte filings, for example, those not filed in accordance 
with the requirements of this paragraph (b), might not be placed on 
the referenced public notice. All ex parte presentations and 
memoranda filed under this section will be available for public 
inspection in the public file or record of the proceeding, and 
parties wishing to ensure awareness of all filings should review the 
public file or record.


    Note 3 to paragraph (b): As a matter of convenience, the 
Secretary may also list on the referenced public notices materials, 
even if not ex parte presentations, that are filed after the close 
of the reply comment period or, if the matter is on reconsideration, 
the reconsideration reply comment period.

    6. Section 1.1208 is revised to read as follows:


Sec.  1.1208  Restricted proceedings.

    Unless otherwise provided by the Commission or its staff pursuant 
to Sec.  1.1200(a) of this section, ex parte presentations (other than 
ex parte presentations exempt under Sec.  1.1204(a)) to or from 
Commission decision-making personnel are prohibited in all proceedings 
not listed as exempt in Sec.  1.1204(b) or permit-but-disclose in Sec.  
1.1206(a) until the proceeding is no longer subject to administrative 
reconsideration or review or judicial review. Proceedings in which ex 
parte presentations are prohibited, referred to as ``restricted'' 
proceedings, include, but are not limited to, all proceedings that have 
been designated for hearing, proceedings involving amendments to the 
broadcast table of allotments, applications for authority under Title 
III of the Communications Act, and all waiver proceedings (except for 
those directly associated with tariff filings). A party making an oral 
presentation in a restricted proceeding, on a non-ex parte basis, must 
file a summary of the presentation in