The Federal Communications Commission (“Commission”) issued two orders in February 2011 revising its procedural rules in an effort to “increase the efficiency of Commission decision-making, modernize Commission procedures for the digital age, and enhance the openness and transparency of Commission proceedings for practitioners and the public.” The Commission also published a Further Notice of Proposed Rulemaking that seeks comment on whether it should adopt real-party-in-interest disclosure rules based on those that apply in many court proceedings.
The revised rules will become effective as of June 1, 2011. The revisions fall into four major categories:
Ex Parte Disclosure
In approaching reform of its ex parte rules, the Commission sought to increase the transparency of its actions while addressing two key problems:
(1) insufficient disclosure of ex parte presentations involving information and arguments already in the record; and
(2) lack of meaningful disclosure of ex parte presentations involving information and arguments new to the proceeding.
Required Disclosure — Under the new rules, in permit-but-disclose proceedings, parties must file notices for all oral ex parte presentations directed to the merits or outcome of a proceeding. Previously, the Commission’s rules required notice only if the presentation included new data or arguments.
The type of information presented dictates the content of the required disclosure:
The Commission did not change the policy that status inquiries made without expressing views on the merits or outcome of a proceeding are not “presentations” subject to the ex parte rules.
Sunshine Period — Current rules permit communications during the Sunshine Period if requested by or made with the advance approval of the Commission or staff for clarification or adduction of evidence or resolution of issues. The revised rules allow replies filed in response to a solicited ex parte notice during the Sunshine Period as long as they are limited to the specific issues raised in the ex parte notice including any new facts or data submitted.
The Sunshine Period commences the day (including business day, weekend and holidays) following release of the Sunshine Notice thereby giving commentators some opportunity to make submissions before the Sunshine Period begins.
Ex Parte Filing Deadlines — The Commission introduced new deadlines for the filing of ex parte notices. The date of the presentation and its relation to the Sunshine Period dictate the particular filing deadline. The new filing deadlines are:
Electronic Filing Requirements — Electronic copies of ex parte notices must be sent to all staff and commissioners present at the ex parte meeting. Filers may be asked to submit corrections or further information.
Notices must be submitted electronically in machine-readable format, such as Microsoft “.doc” format or non-copy protected, text searchable “.pdf” format for text filing, where feasible. PDF images created by scanning a paper document may not be submitted except in cases in which a word processing version of the document is not available. This rule parallels Administrative Order ECF-5(B) of the Court of Appeals for the District of Columbia Circuit which requires that electronically filed documents be in machine-readable and text-searchable formats. Metadata may be removed.
Appendices and attachments also must be submitted in machine-readable and text-searchable formats except where a word-processing version is not available. However, in parallel with Local Rule 5.4(e)(1)(A)-(C) of the District Court for the District of Columbia, parties may seek waivers of this format requirement for voluminous attachments exceeding 500 pages, material not in a format that readily permits electronic filing such as large maps, charts, videotapes, and similar material, or materials that are filed under seal. All such materials may be filed in paper form, but parties must seek a waiver when the filing is made.
Confidential information may continue to be submitted by paper filing but a redacted version must be filed electronically at the same time the paper filing is submitted. An exception to the electronic filing requirement will be made if the filing party can prove hardship.
Enforcement — The Commission also introduced changes meant to “facilitate stricter enforcement of the ex parte rules.” Under the new framework, the Office of General Counsel must refer any case in which a forfeiture or a citation may be warranted to the Enforcement Bureau (“EB”) who may, under delegated authority, levy fines. Should the EB ultimately determine forfeiture or citation is unwarranted, the General Counsel may still take appropriate action on the matter. In addition, the Commission will give public notice of the filing and disposition of ex parte complaints via the internet.
Further Notice of Proposed Rulemaking — The Commission opened a Further Notice of Proposed Rulemaking on the issue of whether to require disclosure of “real parties-in-interest.” Ultimately, the Commission seeks a disclosure requirement that identifies the true party supporting or opposing a particular position without imposing undue burdens on the disclosing party. The Further Notice solicits comment on what type of disclosure rule would balance these interests. Comments are due on June 16, 2011; replies are due on July 18, 2011.
Other Changes in Procedure
Greater Transparency Through Expanded Use of Docketed Proceedings — The Commission loses “openness, transparency, and public participation” when it does not use docketed proceedings. Therefore, the Commission revised its rules to require all bureaus and offices—except the EB in limited circumstances—to assign docket numbers to all proceedings. The EB maintains an exemption allowing it to conduct investigative proceedings without assigning a docket number until it issues a Notice of Apparent Liability. At that point, the EB must assign a docket number to its investigation. For all other proceedings, only exceptional circumstances warrant a waiver of the docketing requirement.
The Commission granted its bureaus and offices flexibility while transitioning to the comprehensive docketing regime. During the transition period, the Commission will not require bureaus to docket proceedings if docketing:
Increased Use of Electronic Filing — The Commission introduced a transition to electronic filing similar to that applicable to ex parte notices. In the transition’s first phase, the Commission will require electronic filing, when feasible, in the following proceedings:
Electronic filing extends to confidential filings although additional procedures apply. In conjunction with the requirement for electronic filing, the Commission reduced its paper filing requirement to one original and one copy of each submission, unless otherwise required.
Reconsideration of Agency Decisions
Dismissal/Denial of Petitions for Reconsideration — The Commission delegated authority to bureaus and offices to dismiss or deny procedurally defective or repetitive petitions for reconsideration. In doing so, the Commission offered an illustrative, but non-exclusive, list of those petitions that “plainly [do] not warrant consideration by the full Commission.” The list includes petitions that:
Aggrieved parties may file an application for review of the dismissal or denial with the full Commission, a prerequisite for judicial review.
Reconsideration on the Commission’s Own Motion — The Commission redefined its authority to “set aside” on its own motion an action taken by it within 30 days from the date of public notice of such action. Specifically, the Commission explicitly granted itself the ability to modify, as well as set aside, the action.
Declaratory Rulings — Due to the complex issues often raised, the Commission amended the process by which it handles petitions for declaratory ruling. Such petitions will now undergo a process equivalent to that of a rulemaking. The bureau or office receiving the petition should seek comment via public notice. By default, the deadline for parties to file responsive pleadings to the petition is 30 days from the release date of the public notice. The default deadline for parties to file replies to the responsive pleadings is 15 days thereafter.
Termination of Dormant Proceedings — In recognition of the large number of open dockets, the Commission delegated authority to the Chief of the Consumer and Governmental Affairs Bureau (“CGB”) to terminate dormant proceedings. Prior to doing so, the Chief must consult with the relevant bureau or office and issue public notice of termination, thus allowing the public a reasonable opportunity to respond. Upon termination, any pending petition, motion, or other request for relief considered procedural in nature or that otherwise fails to address the merits of the proceeding is dismissed as moot. Aggrieved parties may petition for reconsideration with the CGB or apply for review with the full Commission.
Additional actions taken by the Commission include:
setting the effective date for a rule as 30 days after publication in the Federal Register when the Commission’s order neither specifies an effective date nor affirmatively defers the setting of an effective data, unless otherwise established by statute or Commission rule;
extending the statutory deadline for Commission action to the “next business day” when the deadline falls on a holiday, unless dictated otherwise by statute; and
defining the term “holiday” to include any day when “the Commission’s Headquarters are closed and not reopened prior to 5:30 p.m.” or—for filings made in paper format at or decisions issued by a non-Headquarters office—“a Commission office aside from Headquarters is closed.”
If you have any questions, or would like to discuss the potential impact of these new rules on your company, please do not hesitate to contact the following TMT lawyers:
This article was originally published by Bingham McCutchen LLP.