AstroTurf ® Filings Condemn AstroTurf ® Filings

Posted on July 20, 2011 by Mitchell Lazarus

Group that decries hidden interests keeps its true interests well hidden.

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. No, not about the debt-limit debate, although that also strains our tolerance. We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” which they generally are. In the past, they offered a way to put useful technical and policy information before the FCC staff. With the advent of electronic filing, the ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. (AstroTurf ® is a registered trademark, even if the registration doesn't cover this particular use of the term.)

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

 Dear FCC Chairman Julius Genachowski,

Big corporations are now in the business of paying off non-profits and front groups to get them to mouth industry propaganda in letters to the FCC.

In a practice known as “astroturfing” groups claiming to represent the public receive considerable sums of money from corporations that have a stake in the outcome of FCC rule makings. In return, they send comments and letters to the FCC that repeat their benefactors’ talking points, sometimes word-for-word.

As a result, the public’s voice often gets drowned out by industry echo chambers. I strongly believe that ordinary citizens have the right to know which groups are taking money, and who's really behind their astroturfing.

I urge the FCC to pass rules that shed light on this practice, by requiring organizations to disclose conflicts of interest when submitting comments and other filings to the Commission.

A reasonable view, you might say. Certainly well within the mainstream of the proceeding.

But think about it. Unless you believe in massive coincidence, some organization must have coordinated these 200+ identical filings. The filings don’t say what organization that is. The same people who “repeat their benefactors’ talking points,” in urging the FCC to “pass rules that . . . requir[e] organizations to disclose conflicts of interest” decline to say what organization they represent.

Even by Washington standards, this is a staggering display of hypocrisy. Either that, or someone with an ironic sense of humor has far too much free time. But intentional humor is in desperately short supply in Washington, these days. We’d like to be wrong – but if hypocrisy and humor are the only choices, we’ll bet on hypocrisy every time.
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Ex Parte Follow-Up Paperwork Requirements Expanded

Posted on May 2, 2011 by Davina Sashkin

Additional proposals for increased reporting after ex parte meetings out for comment

Folks trying to get their way at the Commission routinely engage in what we professionals refer to as “ex parte” contacts – which usually consist of face-to-face, one-on-one meetings with Commissioners or Commission staff. Such meetings theoretically provide an up close and personal opportunity for the outside party to pitch its side of some issue to the regulators.

Ex parte meetings can be useful, but they also can be problematic from the perspective of due process and fairness. The term “ex parte”, after all, derives from the Latin for “one-sided”. If the issue which the private party is pitching in the meetings is contested, what are the chances that the other side of that issue will be fairly and accurately presented? (Non-FCC illustration: how would you feel if you found out that your soon-to-be-ex-spouse had had a private tête-à-tête with the judge presiding over your hotly-contested divorce case?)

In order to assure itself maximum access to potentially useful information (through, e.g., ex parte contacts) while still preserving at least the illusion of fairness and openness in the decision-making, the Commission has crafted a number of rules to govern the ex parte process. Those rules prohibit ex parte contacts in certain types of proceedings; in other types, such contacts are permitted as long as the private party follows up the meeting by submitting a notice summarizing the gist of the meeting (including any written materials that might have been handed out during the meeting). That notice is then placed in the FCC’s public files so that, theoretically, anyone with an interest in the proceeding at issue will be alerted to the meeting.

As happens periodically, the Commission has now adopted new rules clarifying, and expanding, the post-ex parte disclosure requirements.  Although the Commission announced the new rules back in February, they aren’t scheduled to take effect until June 1. (A couple of the changes involve “information collections” and, as a result, won’t be effective until approved by the Office of Management and Budget.) Additionally, the Commission has proposed further changes to those requirements.

The purpose behind the notice requirement, of course, is to encourage transparent governance. Unfortunately, the notice process has not always yielded true transparency. Historically, parties have not been required to list all the participants in the meetings, and if the presentation simply reiterated arguments or information previously presented in filed comments or another document, the rules didn’t specifically require any notice at all.

No more. The FCC has expanded the notice requirement to include written notices of all lobbying meetings – regardless of whether any new arguments or information are presented. Where similar positions have been advocated to the Commission in prior filings, parties must file written ex parte notices that, at minimum, summarize the arguments made in the meeting or cite to the pages or paragraphs of such prior filings where the information can be found. Of course, as before, any new arguments and data presented orally must also be summarized in the written ex parte notice.

Notices for all ex parte presentations must now include the name of the person(s) who made the ex parte presentation as well as a list of all persons attending (both FCC staff and outside attendees). The rules are modified to require parties send copies of ex parte notices to each meeting participant (copies sent to FCC staff and Commissioners present at the meeting must be sent electronically).

Other changes: the FCC has now made electronic filing of ex parte notices mandatory (except in special hardship cases). These notices must be in machine-readable PDF format (no scanned images!). Confidential material can be submitted on paper, but a redacted version must be uploaded to ECFS. Folks have also been given an extra day to file most notices (two business days following the meeting instead of one), but expedited filing is still the rule in cases where presentations are made in or close to the “sunshine period” (i.e., the period immediately before a Commission decision).

The new rules are designed to bring additional clarity and order to procedures for ex partes around the sunshine period. The changes are:

  • The sunshine period will now commence on the day after the FCC announces that period – not the moment it is announced. This one day rule is literal – weekends and holidays are included.
  • Parties making an ex parte presentation on the day the sunshine period is announced will have until the close of business the next day to file the written notice, instead of the usual two business days.
  • During the sunshine period, the FCC will permit the filing of written ex parte comments (but not meetings) in response to notices of meetings that occurred on the day the sunshine period was announced. Those comments must be filed one business day after the meeting notice is filed, and may not raise issues beyond those in the notice.
  • Notices of ex parte meetings that occur during the sunshine period must be summarized and filed before 11:59 p.m. of the day of the meeting. Written replies will also be permitted to such notices, and must be filed no later than one business day after the meeting notice.

While these changes are noteworthy, it’s also important to focus on several aspects of the rules that have not been changed. Settlement discussion meetings requested by Commission staff in adjudications or rulemakings will remain outside the ex parte notice filing requirement. Also, while the Commission had considered revising the ex parte treatment of comments posted to the FCC’s various social media outlets (its blogs, Twitter, and Facebook page), no ex parte notice requirements have been adopted for such communications, at least for now.

Finally, the Commission has asked for comments on whether to require disclosure of real parties-in-interest in connection with ex parte notices. Among the questions raised: should advocacy groups have to reveal who is funding their FCC lobbying efforts? Should companies be required to identify their parent companies and affiliated interests, especially communications interests? 

The rule changes which have been adopted will take effect on June 1, 2011. Comments on the additional proposals are due by June 16, 2011; reply comments are due by July 18. If you want to comment on the Paperwork Reduction Act aspects of the proposals, you have until July 1, 2011.
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Striving For Perfection

Posted on February 11, 2011 by Harry Cole

A week or so ago the FCC released a Report and Order and Further Notice of Proposed Rulemaking (R&O) addressing changes in its ex parte rules – an area so arcane that even we here at CommLawBlog have refrained from blogging about it so far. The R&O is a healthy 37-page item, complete with a detailed table of contents that looked like this when it was originally issued:

But now the Commission’s General Counsel has issued a one-page Erratum, the sole stated purpose of which is to “correct[ ] the paragraph numbers listed in the Table of Contents of the R&O.” The corrected version is reproduced below:

We’re glad they took the time to get that all straightened out  . . .

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Calendar Update

Posted on March 25, 2010 by FHH Law

Procedural fine-tuning, ex parte NPRM comment deadlines set

Two months ago we reported on a couple of Notices of Proposed Rulemaking in which the FCC was looking to fine-tune aspects of its procedural rules and its ex parte rules. Those NPRMs have now appeared in the Federal Register – the procedural rules NPRM here, the ex parte NPRM here. Those publications in turn establish the deadlines for comments and reply comments on the Commission’s proposals. Comments in both proceedings are due by May 10, 2010, reply comments by June 8, 2010.

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FCC Fine-Tunes Procedural Rules

Posted on February 23, 2010 by Mitchell Lazarus

Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

  • allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
  • allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
  • expand the use of electronic filing and notification;
  • close some of the 3,000+ dockets that have become inactive;
  • split overly large dockets; and
  • clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

An ex parte presentation is one made to the FCC staff or Commissioners advocating a particular outcome, in the absence of parties who seek other outcomes.  It can be written or oral.  These are permitted in some kinds of proceedings, but not others.  In some kinds of proceedings that permit them, a party presenting new information must disclose it in a public filing, so that opponents have a chance to respond.

The rules are sometimes abused by parties who either fail to make a disclosure, or omit important information.  Some lawyers (none of us here) make an art form of crafting ex parte statements that arguably comply with the rules, yet mislead the opposition.

In its second NPRM addressing the ex parte rules, the FCC proposes to require:

  • disclosure of all oral ex parte presentations, whether or not they communicated new information;
  • a summary of any new information;
  • either a summary of old information presented, or citations to prior filings that contain it;
  • electronic filing of the above, possibly in machine-readable formats; and
  • a statement of the nature of a party’s interest, possibly including funding from other parties.

The FCC also considers the relatively rare but important problem of filings made just before or during the “sunshine period,” the seven days immediately prior to an FCC meeting during which ex parte presentations on agenda items are severely limited.

Finally, the FCC asks what kinds of sanctions should apply to ex parte violations.

Comments on each NPRM will be due 45 days after it is published in the Federal Register; reply comments will be due 30 days later. But don’t worry. We will pay attention to the fine points so you don’t have to.
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