Updating the Commission's Ex Parte Rules, 54523-54528 [2020-17266]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 171 (Wednesday, September 2, 2020)]
[Proposed Rules]
[Pages 54523-54528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17266]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 20-221; FCC 20-92; FRS 16967]


Updating the Commission's Ex Parte Rules

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission begins a new proceeding to 
consider several updates to the Commission's ex parte rules. First, the 
Commission seeks comment on a proposal to exempt from its ex parte 
rules, in certain proceedings, government-to-government consultations 
between the Commission and federally recognized Tribal Nations. Second, 
the Commission seeks comment on a proposal to extend the exemption to 
its ex parte rules for communications with certain program 
administrators, such as the Universal Service Administrative Company, 
to include the Toll-Free Numbering Administrator and the Reassigned 
Numbers Database Administrator, and to clarify the conditions under 
which this exemption applies. Third, the Commission seeks comment on a 
proposal to require that all written ex parte presentations and written 
summaries of oral ex parte presentations (other than presentations that 
are permitted during the Sunshine period) be submitted before the 
Sunshine period begins and to require that replies to these ex parte 
presentations be filed within the first day of the Sunshine period.

DATES: Comments due on or before October 2, 2020; reply comments due on 
or before November 2, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Max Staloff of the Office of 
General Counsel, at (202) 418-1764, or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, GC Docket No. 20-221, FCC 20-92, adopted on 
July 8, 2020 and released on July 9, 2020. The full text of this 
document is available for public inspection by downloading the text 
from the Commission's website at https://www.fcc.gov/document/updating-commissions-ex-parte-rules. Alternative formats are available for 
people with disabilities (Braille, large print, electronic files, audio 
format) by sending an email to [email protected] or calling the 
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. The Commission seeks comment on three proposals: (1) Exempting 
from Commission ex parte rules certain government-to-government 
consultations between Commission staff and leaders and official 
representatives of federally recognized Tribal Nations; (2) clarifying 
the ex parte exemption for the administrators of certain Commission 
programs and expanding that exemption to include the Toll-Free 
Numbering Administrator and the Reassigned Numbers Database 
Administrator; and (3) modifying the filing deadlines for presentations 
made shortly before the beginning of the Sunshine period and replies to 
those presentations as set forth in 47 CFR 1.1206(b)(2).

Exemption to Ex Parte Rules for Government-to-Government Tribal 
Consultations

    2. The Commission's existing ex parte rules have no exemptions or 
provisions tailored to presentations to or from federally recognized 
Tribal Nations. Throughout this Notice of Proposed Rulemaking, 
``Tribes'' or ``Tribal Nations'' mean those Nations, including Alaska 
Native Villages, that have been granted federal recognition. Thus, in a 
permit-but-disclose proceeding, written presentations and summaries of 
oral presentations between a Tribal representative and Commission staff 
must be filed as prescribed in the rules, unless an exemption applies. 
In a restricted proceeding, ex parte presentations are forbidden, and 
those presentations that are permitted must be filed or summarized in 
the record. In addition, the Sunshine period prohibitions apply fully 
to presentations to or from representatives of Tribal Nations.
    3. Outside the Tribal context, the Commission has created 
exemptions from the ex parte rules for communications with particular 
parties where the circumstances require a greater degree of 
confidentiality than the rules would otherwise permit. Many of these 
exemptions are subject to conditions appropriate to the circumstances 
of each exemption. For example, presentations involving a military or 
foreign affairs function of the United States or classified security 
information are exempt from disclosure requirements and Sunshine 
restrictions without limitation. Presentations to or from an agency or 
branch of the Federal Government involving a matter of shared 
jurisdiction with the Commission are similarly exempt, but this 
exemption is subject to the condition that the Commission disclose any 
new factual information adduced from these presentations that it relies 
on its decision-making. In the case of presentations requested by the 
Commission or staff to clarify or adduce evidence or to resolve issues, 
any new information elicited must ordinarily be promptly disclosed, 
subject to certain exceptions. In yet another variant, if an exempt 
presentation is made that directly relates to an emergency in which the 
safety of life is endangered or substantial loss of property is 
threatened, the presentation or a summary must be promptly placed in 
the record and disclosed to other parties ``as appropriate.''
    4. The relationship between the United States Government and 
federally recognized Tribal Nations is unique.

[[Page 54524]]

The Federal Government has a trust relationship with Indian Tribes, and 
this historic relationship requires the Federal Government to adhere to 
certain fiduciary standards in its dealings with Indian Tribes. Certain 
statutes also impose legal obligations on the Commission to consult 
with Tribal governments regarding categories of actions that could 
affect Tribal interests. In recognition of this relationship, the 
Commission has established a policy to consult with Tribal governments, 
to the extent practicable, prior to implementing any regulatory action 
or policy that will significantly or uniquely affect Tribal 
governments, their land and resources. The consultation process implies 
a frank exchange of information and views, with the goal of reaching 
common understandings to the extent practicable.
    5. In light of this unique relationship and to facilitate 
consultation, the Commission proposes to adopt a new exemption for 
government-to-government consultations with federally recognized Tribal 
Nations that relate to permit-but-disclose proceedings. While the 
Commission encourages Tribal Nations and their representatives, like 
other parties, to file comments and reply comments that may be 
considered on the record in such proceedings, the Commission recognizes 
their interest in consulting on a government-to-government basis 
without concern about documenting such consultations on the rulemaking 
record in every case. Previously, the Commission has modified the ex 
parte rules on a case-by-case basis in rulemaking proceedings that have 
significantly or uniquely affected Tribal Nations to enable government-
to-government consultation outside of the public record while also 
ensuring that any facts and arguments on which the Commission relies in 
its decision-making process are placed in the record. Based on the 
Commission's experience in these proceedings, the Commission proposes 
to codify this exemption for all permit-but-disclose proceedings. 
Specifically, under this proposed exemption, Commission staff and 
authorized representatives of Tribal governments could consult on a 
government-to-government basis without having to disclose the fact or 
content of their discussions through an ex parte filing in the record 
of any permit-but-disclose proceedings to which they relate. If, 
however, a Tribe were to wish the Commission to rely on views or 
materials presented during such consultations in its decision-making, 
it would need to disclose the relevant information in the record of the 
proceeding. If the Commission were to desire, on its own initiative, to 
rely on information presented during Tribal consultation, the 
Commission would coordinate with the Tribal government and obtain its 
consent to disclose such information. If such consent were denied, the 
Commission would forgo reliance on the information. Finally, new 
information could not be added to the record during the Sunshine period 
by a Tribal government (like any other party) unless requested or 
authorized by the Commission or its staff, or unless another exception 
were to apply.
    6. The Commission seeks comment on this proposal. As an initial 
matter, the Commission seeks comment on whether codifying an exemption 
for all permit-but-disclose proceedings would be more efficient than 
continuing to modify the ex parte rules on a case-by-case basis. In 
particular, while not all rulemakings or other permit-but-disclose 
proceedings implicate issues that significantly or uniquely affect 
Tribal government interests, it is not always possible to predict in 
which proceedings such issues will arise. By proposing an exemption 
that would apply to all permit-but-disclose proceedings, the Commission 
aims to avoid the need to promulgate special procedures during the 
course of a proceeding when Tribal interests come to light such that 
government-to-government consultation is appropriate. Furthermore, the 
Commission is concerned that it may inhibit consultation, and impose 
burdens on both Tribal governments and Commission staff, if the parties 
must be concerned about whether anything said during potentially wide-
ranging consultations might implicate issues in any permit-but-disclose 
proceeding. The Commission invites comment on whether an exemption 
applicable to all permit-but-disclose proceedings would appropriately 
and effectively avoid these harms. Are there offsetting considerations 
that counsel against applying this exemption to all permit-but-disclose 
proceedings? Are there any classes of rulemakings or other permit-but-
disclose proceedings that should be excluded from the exemption, and if 
so, how can they be identified?
    7. Consistent with Commission policy, the Commission proposes to 
limit the exemption to presentations in the course of consultation with 
leaders or authorized representatives of Tribal governments. Thus, it 
would not encompass presentations to or from an individual Tribal 
member, or an employee or official of a Tribally owned business, unless 
that person has been authorized by the Tribal government to represent 
its interests in the relevant matter. It also would not encompass a 
presentation to or from a Tribal government official that is not in the 
nature of consultation; i.e., involving a matter significantly or 
uniquely affecting the Tribal government, its land and resources. For 
example, it would not include a presentation by a Tribal leader 
regarding the leader's personal financial interests. The Commission 
seeks comment on whether these conditions appropriately and 
sufficiently limit the scope of the exemption to government-to-
government consultation. Is further specificity needed in defining the 
scope of the exemption, and if so, how should the definition be 
refined?
    8. The Commission further seeks comment on the proposal that any 
information a Tribal government presents during an exempt consultation, 
including factual information, views, and arguments, would need to be 
disclosed on the record in order for the Commission to rely on that 
information when rendering a decision in any proceeding. The Commission 
believes this proposed disclosure requirement will ensure that 
Commission decisions are transparent and that all parties will have a 
reasonable opportunity to respond to information of decisional 
significance, as required under the Administrative Procedure Act, while 
preserving the ability of Tribal governments to consult with the 
Commission in confidence if they so choose. To the extent otherwise 
permitted under Commission rules, a Tribal Nation could submit 
confidential materials in the record with a request that they be 
withheld from public inspection. Does this proposed disclosure 
provision effectively advance both of these ends and, if not, what 
alternative would serve those ends better? In addition, the Commission 
proposes that if the Commission wishes on its own initiative to rely on 
information originally presented by a Tribal Nation during exempt 
consultation, the Commission would coordinate with the Tribal 
government before disclosing such information and would disregard any 
material it does not want disclosed. The Commission invites comment on 
this proposal.
    9. The Commission also seeks comment on the timing of disclosure. 
Under the exemption that the Commission proposes, outside of the 
Sunshine period, Tribal governments could submit information originally 
presented during an exempt consultation into the record at any time. 
Thus, a Tribe that delays submitting such information into the record 
(like

[[Page 54525]]

any party that chooses to wait until late in the process to make an ex 
parte presentation) would bear the risk of acting too late for the 
Commission to consider the information while affording other parties a 
reasonable opportunity to respond. To partially address this concern, 
the ex parte rules ordinarily require that a permissible written 
presentation, or a written summary of an oral presentation, be included 
in the record within a specified period of time after the presentation 
is made, usually two business days. Should the Commission similarly 
require that, in order to be considered, information must be submitted 
in the record within some time period after it is presented in 
consultation? If so, what should that time period be, and how might the 
Commission best administer the requirement given that the same 
information may be presented in multiple consultation sessions? Would 
such a requirement inhibit consultation by forcing Tribal governments 
to consider whether, by presenting information and views during 
consultation and not promptly submitting them in the record, they might 
preclude future consideration of such information and views as part of 
the Commission's decision-making process?
    10. During the Sunshine period, however, the Commission proposes a 
different regime. Specifically, the Commission proposes that Commission 
officials and Tribal government representatives be permitted to 
continue consulting during the Sunshine period. However, unless another 
exemption applies, information presented during such consultation could 
be submitted into the record, and relied upon by the Commission, only 
if the Commission or its staff either requests its submission or 
approves its submission upon a Tribe's request. Similarly, information 
presented prior to the Sunshine period in the course of exempt 
consultation could be entered into the record during the Sunshine 
period only upon the Commission's request or with its approval. The 
Commission believes this proposal will advance both the Commission's 
policy of consulting with Tribal Nations regarding their interests and 
the policy underlying the Sunshine rules to afford a period of repose 
in the record before major decisions are made. The Commission seeks 
comment on this proposal. Would any other rule better balance the 
policy considerations underlying both government-to-government 
consultation and the Sunshine period?
    11. The Commission does not propose to extend any exemption from 
the ex parte rules for presentations made in government-to-government 
consultation to restricted proceedings. The Commission recognizes that 
adjudications or other restricted proceedings may significantly affect 
the governments, land, and resources of individual Tribal Nations. For 
example, a contested licensing proceeding may overlap with 
consideration of the effects of an undertaking on a historic property 
of traditional religious and cultural importance to one or more Tribal 
Nations, which requires consultation under the National Historic 
Preservation Act. Nonetheless, the Commission believes that the nature 
of private party interests in many restricted proceedings, for example, 
license application proceedings, counsels against routinely permitting 
undisclosed consultations that may bear upon the issues in those 
proceedings. A Tribal Nation could request confidential treatment for 
material submitted into the record of a restricted proceeding to the 
extent permitted under Commission rules. The Commission seeks comment 
on this analysis. Is there any objectively identifiable subset of 
restricted proceedings for which the benefits of undisclosed 
consultation outweigh the potential for harm?
    12. To be clear, although the Commission is not proposing any 
general exemption applicable to restricted proceedings, Commission 
staff would retain flexibility in specific proceedings to modify the 
applicable ex parte rules in the public interest. For example, staff 
could designate an otherwise restricted proceeding as permit-but-
disclose. Under the exemption that the Commission proposes, such 
designation would both enable Commission staff to engage in dialogue 
with Tribal governments and other entities without inviting other 
parties to be present, subject to disclosure, and allow undisclosed 
consultation with Tribal governments, provided the Commission does not 
rely in rendering its decisions on any undisclosed information 
presented. Alternatively, or in addition, members of the Office of 
Native Affairs and Policy, or other Commission staff, could be 
designated as non-decisionmakers in any proceeding. This designation 
would allow the separated staff to communicate with Tribal government 
representatives outside of the ex parte restrictions, but they would 
not be able to have ex parte communications with decision-making staff 
except as otherwise permitted.
    13. The Commission believes that given the unique nature of each 
restricted proceeding, it will be most efficient for staff to continue 
modifying the ex parte rules as needed on a case-by-case basis. The 
Commission seeks comment on this tentative conclusion and on whether 
the Commission should instead promulgate rules or guidelines. For 
example, should any class of proceedings that is currently restricted 
be presumptively designated permit-but-disclose so as to facilitate 
government-to-government consultation? Should the Commission designate 
the Office of Native Affairs and Policy as presumptively separated 
staff in restricted proceedings, or some subset of restricted 
proceedings, so that they can speak off the record with Tribal Nations 
but cannot communicate with decision-making staff except to the extent 
permitted under the ex parte rules? Instead of ex ante rules, should 
the Commission issue guidelines to inform staff in exercising their 
discretion whether to modify the ex parte rules for any particular 
restricted proceeding?
    14. Finally, the Commission recognizes that Commission rules 
governing Tribal consultation and Tribal participation in Commission 
proceedings themselves significantly or uniquely affect Tribal 
governments, their land and resources. The Commission therefore directs 
the Office of Native Affairs and Policy, Consumer and Governmental 
Affairs Bureau, to arrange opportunities for consultation appropriate 
to the nature and circumstances of this proceeding. In addition, to 
facilitate consultation, the Commission modifies the ex parte rules for 
this proceeding as described in the Procedural Matters section of this 
document.

Exemption for Presentations Between Commission Staff and Program 
Administrators

    15. The Commission also seeks comment on two proposed revisions to 
47 CFR 1.1204(a)(12). That section currently classifies as exempt 
presentations between Commission staff and the interstate 
telecommunications relay services fund administrator, the North 
American Numbering Plan Administrator, the Universal Service 
Administrative Company, the Local Number Portability Administrator, the 
TRS Numbering Administrator, and the Pooling Administrator relating to 
their administrative functions. The exemption permits the various 
administrators to engage in the frequent and close communications with 
Commission staff necessary to exercise

[[Page 54526]]

their administrative functions efficiently.
    16. The Commission proposes that the exemption be expanded to 
include the Toll-Free Numbering Administrator and the Reassigned 
Numbers Database Administrator. The relationship between the Toll-Free 
Numbering Administrator and the Commission in the administration of the 
Toll-Free Number Database is substantially the same as that of the 
other administrators to the Commission in the performance of their 
administrative responsibilities. Likewise, the relationship between the 
Reassigned Numbers Database Administrator and the Commission in the 
administration of the Reassigned Numbers Database is substantially the 
same as that of the other administrators to the Commission in the 
performance of their administrative responsibilities. Accordingly, the 
Commission believes that presentations involving the Toll-Free 
Numbering Administrator and Reassigned Numbers Database Administrator 
should be treated the same as those involving the other administrators. 
The Commission proposes to amend section 1.1204(a)(12) accordingly, and 
the Commission seeks comment on this proposal. Should the Toll-Free 
Numbering Administrator and the Reassigned Number Database 
Administrator be included among those subject to the exemption? Are 
there other administrators that should also be included?
    17. As a related matter, in reviewing Sec.  1.1204(a)(12), the 
Commission notes an anomaly. As applied to five of the six 
administrators covered, the exemption is categorical. However, Sec.  
1.1204(a)(12)(iv) applies only if the Local Number Portability 
Administrator ``has not filed comments or otherwise participated in the 
proceeding.''
    18. The Commission can think of no reason to treat one 
administrator differently from the others and attributes the 
discrepancy to an apparent oversight. When the Commission enacted the 
first four subsections of the rules, the Commission intended the caveat 
to apply to all the administrators. Consistent with this intent, the 
caveat was drafted to apply to ``the relevant administrator'' and was 
apparently intended to follow, but not to be part of, what was then the 
final subsection of Sec.  1.1204(a)(12). Subsequently, however, when 
the final two administrators were added, the caveat was not moved to 
the end of the subsection, making it appear that the caveat applied 
only to the Local Number Portability Administrator.
    19. The Commission believes that applying the caveat to all the 
administrators would both effectuate the Commission's original intent 
and constitute sound policy. It is consistent with the overall 
philosophy of the ex parte rules to distinguish between situations in 
which an administrator is acting as a consultant or co-decisionmaker 
and situations in which the administrator is acting as a party. Except 
where there is an overriding reason to do so, the ex parte rules 
generally do not treat presentations involving a party as exempt. The 
Commission therefore proposes to revise the rule to make clear that the 
caveat is applicable to all the administrators. The Commission seeks 
comment on this proposal. Should the exclusion from the exemption for 
filing comments or otherwise participating as a party be applied to all 
administrators? Alternatively, should the exclusion be eliminated? Is 
there any reason to treat one administrator differently from another?

Amendment to Commission's Sunshine Period Ex Parte Rules

    20. A Sunshine Agenda or Sunshine notice is typically released 
seven days before a Commission meeting and lists the items that will be 
presented to the Commission. The period between the release of the 
Sunshine Agenda and the Commission meeting is intended to provide 
decision-makers a ``period of repose'' during which they can consider 
the upcoming items free from outside interruptions. Although the 
Commission intended to establish a week-long ``period of repose,'' the 
existing rules do not in fact ensure a week-long period without changes 
to the record. Generally, the Commission prohibits ex parte 
communications made during the Sunshine period. As an exception to the 
rule, however, the Commission does not apply the Sunshine prohibition 
to the filing of a written ex parte presentation or a memorandum 
summarizing an oral ex parte presentation made on the day the Sunshine 
notice is released. In those cases, the ex parte filing must be 
submitted no later than the end of the next business day, and replies 
are due 24 hours after that. For example, assume a party makes an ex 
parte presentation in a permit-but-disclose proceeding to a 
Commissioner on a Friday. That same day, the Commission's Secretary 
releases the Sunshine Agenda for the next Commission meeting and that 
proceeding appears on the Agenda. The Sunshine period begins as of 
Saturday, and therefore the presenting party must file its ex parte 
notice by the end of the day (11:59:59 p.m.) on Monday, the next 
business day. Importantly, an entity making an ex parte presentation 
two days before the start of Sunshine would also have to submit its ex 
parte notice by the end of the day that the Sunshine period begins. 
Using the example from the text above, if an ex parte presentation is 
made on a Thursday and the Sunshine period begins Saturday, the ex 
parte notice would have to be submitted by 11:59:59 p.m. on Monday. In 
either event, a reply would be due by the end of the day (11:59:59 
p.m.) on Tuesday. Importantly, if an ex parte notice is filed at 
11:59:59 p.m. on Tuesday, it will not be available to Commission staff 
and the public until early Wednesday morning.
    21. Given that filings vital to the proceeding may not be available 
to Commission staff and the public until well into the ``period of 
repose,'' the Commission and its staff have periodically encountered 
challenges fully evaluating all relevant filings in the limited time 
before a Commission meeting. Similarly, the Commission expects that the 
effective shortening of the period of repose may limit the ability of 
members of the public fully to evaluate the record. As a result, the 
Commission proposes to require parties to file ex parte notices of all 
presentations, other than presentations permissibly made during the 
Sunshine period pursuant to some other exception, before the Sunshine 
period begins, with replies due 24 hours after that. Applying the prior 
example to the proposed rule change, consider that a party makes an ex 
parte presentation in a permit-but-disclose proceeding to a 
Commissioner on a Friday. That same day, the Commission's Secretary 
releases the Sunshine Agenda for the next Commission meeting and that 
proceeding appears on the Agenda. The Sunshine period begins as of 
Saturday, and therefore the presenting party must file its ex parte 
notice by the end of the day (11:59:59 p.m.) on Friday. A reply would 
be due by the end of the day (11:59:59 p.m.) on Monday. Because the 
dates of Commission Open Meetings are publicly available, and because 
the Sunshine notice is routinely released seven days before the 
Commission meeting, the Commission expects parties will know ahead of 
time whether their ex parte meetings will fall on the date before the 
Sunshine period is due to begin, and thus have foreknowledge that their 
ex parte notices would be due at the end of that day. Furthermore, 
given the Commission's practice of announcing the tentative agenda and 
releasing draft items three weeks before the meeting date, parties 
should have ample time to prepare their arguments and schedule meetings 
earlier than the

[[Page 54527]]

last permissible date if they choose to do so.
    22. The Commission seeks comment on this proposal. For example, 
will ensuring a more complete ``period of repose'' better enable 
Commission staff and the public to evaluate the record and the relevant 
issues, thereby leading to better and more informed decisions? What 
steps, if any, should the Commission take to ensure that parties making 
presentations to the Commission on the day before the Sunshine period 
begins are aware that they must file their ex parte notices in a timely 
manner? Will requiring that ex parte notices be submitted before the 
Sunshine period begins be unduly burdensome for parties meeting with 
the Commission? Assuming this rule is adopted, if a party fails to 
submit an ex parte notice by the required time, should the party be 
sanctioned by the Commission or should its notice not be included in 
the record?

Procedural Matters

    23. Paperwork Reduction Act Analysis.--This document does not 
contain proposed information collection(s) subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4).
    24. Regulatory Flexibility Act. This proposed action would amend a 
procedural rule for which notice and comment are not required under the 
Administrative Procedure Act, and it therefore falls outside of the 
Regulatory Flexibility Act of 1980, as amended.
    25. Filing Requirements.--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 the 
Commission's Electronic Comment Filing System (ECFS). See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    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.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
     During the time the Commission's building is closed to the 
general public and until further notice, if more than one docket or 
rulemaking number appears in the caption of a proceeding, paper filers 
need not submit two additional copies for each additional docket or 
rulemaking number; an original and one copy are sufficient.
    26. People with Disabilities.--To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
    27. Availability of Documents.--Comments, reply comments, and ex 
parte submissions will be publicly available online via ECFS.
    28. Ex Parte Presentations.--This proceeding shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 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, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    29. In light of the Commission's trust relationship with Tribal 
Nations and the Commission's commitment to engage in government-to-
government consultation with them, the Commission finds the public 
interest requires a limited modification of the ex parte rules in this 
proceeding. Tribal Nations, like other interested parties, should file 
comments, reply comments, and ex parte presentations in the record to 
put facts and arguments before the Commission in a manner such that 
they may be relied upon in the decision-making process consistent with 
the requirements of the Administrative Procedure Act. However, at the 
option of the Tribe, ex parte presentations made during consultations 
by elected and appointed leaders and duly appointed representatives of 
federally recognized Indian Tribes and Alaska Native Villages to 
Commission decision makers shall be exempt from the rules requiring 
disclosure in permit-but-disclose proceedings and exempt from the 
prohibitions during the Sunshine Agenda period. To be clear, while the 
Commission recognizes consultation is critically important, we 
emphasize that the Commission will rely in its decision-making only on 
those presentations that are placed in the public record for this 
proceeding.

[[Page 54528]]

Ordering Clauses

    30. It is ordered, pursuant to the authority found in 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 this Notice of Proposed 
Rulemaking is hereby adopted.

Lists of Subjects in 47 CFR Part 1

    Administrative practice and procedure.


Federal Communications Commission
Marlene Dortch,
Secretary.

Proposed Rules

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

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 is revised to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 
225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, and 1455.

0
2. Section 1.1204 is amended by revising paragraphs (a)(12) 
introductory text and (a)(12)(iii) through (vi), and adding paragraphs 
(a)(12)(vii) and (viii), and (a)(13) to read as follows:


Sec.  1.1204  Exempt ex parte presentations and proceedings.

    (a) * * *
    (12) The presentation is between Commission staff and any of the 
following administrators relating to the following subjects, provided 
that the relevant administrator has not filed comments or otherwise 
participated as a party in the proceeding:
* * * * *
    (iii) The Universal Service Administrative Company relating to the 
administration of universal service support mechanisms pursuant to 47 
U.S.C. 254;
    (iv) The Local Number Portability Administrator relating to the 
administration of local number portability pursuant to 47 U.S.C. 
251(b)(2) and (e);
    (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);
    (vi) The Pooling Administrator relating to the administration of 
thousands-block number pooling pursuant to 47 U.S.C. 251(e);
    (vii) The Toll-Free Numbering Administrator relating to the 
administration of Toll-Free Number Database pursuant to 47 U.S.C. 
251(e); or
    (viii) The Reassigned Numbers Database Administrator relating to 
administration of the Reassigned Numbers Database pursuant to [47 CFR 
64.1200(l) and (m)].
    (13)(i) The presentation is in a permit-but-disclose proceeding and 
is made in the course of government-to-government consultation between 
a representative of the Commission and an elected or appointed leader 
or duly authorized representative of the government of a federally 
recognized Tribal Nation, provided that the Commission may not rely in 
its decision-making process on any such presentation that is not 
disclosed in the record, either by the Tribal government or by the 
Commission after coordination pursuant to paragraph (a)(13)(iii) of 
this section.
    (ii) A presentation made pursuant to paragraph (a)(13) of this 
section may be disclosed on the record during the period of the 
Sunshine Agenda prohibition, and relied upon by the Commission, only at 
the request of or with the advance approval of the Commission pursuant 
to paragraph (a)(10) of this section, unless permitted under another 
exception.
    (iii) The Commission will disclose a presentation made under 
paragraph (a)(13) of this section or information obtained through such 
a presentation only after advance coordination with the Tribal 
government involved in order to ensure that the Tribal government 
involved retains control over the timing and extent of any disclosure 
that may have an impact on that Tribal government's jurisdictional 
responsibilities. If the Tribal government involved does not wish such 
presentation or information to be disclosed, the Commission will not 
disclose it and will disregard it in its decision-making process, 
unless it fits within another exemption not requiring disclosure. The 
fact that a Tribal government's views are disclosed under paragraph 
(a)(13) of this section does not preclude further discussions pursuant 
to, and in accordance with, the exception.
* * * * *
0
3. Section 1.1206 is amended by revising paragraphs (b)(2) introductory 
text and (b)(2)(iv) to read as follows:


Sec.  1.1206  Permit-but-disclose proceedings.

* * * * *
    (b) * * *
    (2) Written and oral presentations. A written ex parte presentation 
and a memorandum summarizing an oral ex parte presentation (and cover 
letter, if any) shall clearly identify the proceeding to which it 
relates, including the docket number, if any, and must be labeled as an 
ex parte presentation. Documents shown or given to Commission staff 
during ex parte meetings are deemed to be written ex parte 
presentations and, accordingly, must be filed consistent with the 
provisions of this section. Consistent with the requirements of Sec.  
1.49 paragraphs (a) and (f), additional copies of all written ex parte 
presentations and notices of oral ex parte presentations, and any 
replies thereto, shall be mailed, emailed or transmitted by facsimile 
to the Commissioners or Commission employees who attended or otherwise 
participated in the presentation.
* * * * *
    (iv) Filing dates for presentations made on the day that the 
Sunshine notice is released and the day before Sunshine notice is 
released. For presentations made on the day the Sunshine notice is 
released and the day before Sunshine notice is released, any written ex 
parte presentation or memorandum summarizing an oral ex parte 
presentation required pursuant to Sec.  1.1206 or 1.1208 must be 
submitted before the day that the Sunshine period begins. Written 
replies, if any, shall be filed no later than the end of the day that 
the Sunshine period begins, and shall be limited in scope to the 
specific issues and information presented in the ex parte filing to 
which they respond.

    Example 1: On Tuesday, a party makes an ex parte presentation in 
a permit-but-disclose proceeding to a Commissioner. That same day, 
the Commission's Secretary releases the Sunshine Agenda for the next 
Commission meeting and that proceeding appears on the Agenda. The 
Sunshine period begins as of Wednesday, and therefore the presenting 
party must file its ex parte notice by the end of the day (11:59:59 
p.m.) on Tuesday. A reply would be due by the end of the day 
(11:59:59 p.m.) on Wednesday.
    Example 2: On Monday, a party makes an ex parte presentation in 
a permit-but-disclose proceeding to a Commissioner. On Tuesday, the 
Commission's Secretary releases the Sunshine Agenda for the next 
Commission meeting and that proceeding appears on the Agenda. The 
Sunshine period begins as of Wednesday, and therefore the presenting 
party must file its ex parte notice by the end of the day (11:59:59 
p.m.) on Tuesday. A reply would be due by the end of the day 
(11:59:59 p.m.) on Wednesday.
[FR Doc. 2020-17266 Filed 9-1-20; 8:45 am]
BILLING CODE 6712-01-P