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.