It’s ex parte time as FCC pins "permit-but-disclose" label on application!!

Earlier this month we posted a piece about the ION/Urban Television “assignment” application which proposes the sale of a bunch of secondary digital TV streams – but not the primary streams associated with them – from ION Media Networks to Urban Television LLC, a company controlled by media mogul Robert Johnson.  We have nothing new to report about the proposal itself, but we do have some news about the FCC’s processing of that proposal. 

The Commission has announced that the application will be treated as a “permit-but-disclose” proceeding.  This means that interested parties may communicate with FCC staffers on an ex parte basis – i.e., on a “one-sided”, or one-on-one, basis, away from the prying eyes of other interested parties.

Ordinarily, assignment applications (and  other major applications, for that matter) are treated as “restricted proceedings” under the Commission’s ex parte rules. Under those rules, if anybody wants to communicate with people at the Commission about a restricted proceeding, that communication has to be in writing with copies served on all other parties.  (While oral communications are at least theoretically possible, they may be made only if all other parties are present to hear the communication – a requirement which tends to put a damper on such things as a practical matter.)  The idea is that everybody with an interest in the proceeding should know what everybody else is telling the Commission.

When an otherwise restricted proceeding is accorded “permit-but-disclose” status, one-sided communications with FCC staff – including phone calls and in-person meetings – are fair game.  The only proviso is that the party making such ex parte communications must file a summary of the communication with the Commission; that summary then gets placed in the public file, available for anybody who happens to run across it.

While the after-the-fact written summary approach may seem a reasonable accommodation likely to keep everybody posted as to the flow of information into the Commission, experience suggests that such summaries may not be completely effective for that purpose.  While Commission rules require more, often such summaries seem a bit sparse, content-wise.  And even those that seem to provide a reasonably detailed description of what was actually said do not fully communicate the “feel” of the conversation.  Tone of voice, facial expressions, body language, seemingly offhand banter or comments are lost in the usually terse summary, and yet such factors can be as important as, or even more important than, the bland information set out in the summary.

The trouble is, of course, that since the only description you’re getting is from the folks who were in on the conversation/meeting, you have no way to dispute the accuracy of the summary.  This provides opportunities for some to engage in considerably more forceful lobbying than might otherwise be possible.  The Commission’s “permit-but-disclose” designation certainly does nothing to discourage any interested party, whether for or against the proposal, from trying to work some behind-the-scenes magic.

According to the Commission, classifying a proceeding as “permit-but-disclose” “permit[s] broader public participation.”  We’re not really sure why that would be so, since enabling one-on-one tête-à- têtes between (a) FCC officials and (b) advocates for only one side of the debate would ordinarily seem to limit, rather than expand, “public participation”.  But that’s the Commission’s story, and it’s sticking to it.

The fact that the ION/Urban application has been accorded permit-but-disclose status suggests that things may start to heat up at the Portals.  It’s possible that Chairman Martin sees the ION/Urban application as his last chance to require the cable industry to carry all (or most) digital streams in the post-DTV transition universe.  Commissioners Copps and Adelstein, long-time supporters of diversity (including increases in minority presence in the media), may see the ION/Urban deal as a step in the right direction, even if Urban’s owner, Robert Johnson, may not represent the type of grass-roots local programmers Copps/Adelstein might prefer. In any event, things may be getting interesting. Anyone with an interest in the proposal should be sure to keep an eye on notices of ex parte contacts in the Commission’s Daily Digest.

By the way, the current deadline for comments remains December 26, but it’s hard to imagine that the FCC is going to slam the door all that tight. We shall see.