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.