FCC Overhauls Ex Parte and Certain Procedural Rules

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;
• docket management;
• reconsideration of agency decisions; and
• miscellaneous revisions

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:

• If the ex parte presentation involves new information or arguments, the notice must provide a summary of sufficient detail to inform a non-attendee of “the facts that were discussed, the arguments made, and the support offered for those arguments.”
• Alternatively, if the presentation involves only material already in the written record, the disclosing party must provide either a brief summary of the argument or a citation to the relevant page or paragraph in the written material.
• Notices for all ex parte presentations must include the name of the person(s) who made the ex parte presentations as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made.

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:

• two business days after the ex parte presentation for presentations occurring outside the Sunshine Period;
• one business day after the ex parte presentation for presentations occurring on the day the Sunshine Notice is released;
• by the end of the same day for permitted presentations occurring during the Sunshine Period; and
• all replies to ex parte presentations occurring from the release of the Sunshine Notice through the end of the Sunshine Period must be filed no later than the next business day following the filing of the ex parte notice. The party must limit the reply to the particular issues raised in the ex parte notice and submit it in writing with copies provided to each staff member or Commissioner who received the original presentation.

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:

• raises technical difficulties or imposes undue burdens on the Commission and its staff;
• would be of limited utility;
• would not enhance public accessibility; or
• would not be in the public interest.

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:

• newly filed Section 208 formal common carrier complaints and newly filed Section 224 pole attachment complaints before the EB;
• customer proprietary network information proceedings;
• Cable Special Relief petitions;
• proceedings involving Over-the-Air Reception Devices; and
• certain certifications for common carriers.

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:

• omit information required by the Commission’s rules or otherwise fail to comply with procedural requirements;
• fail to identify any material error, omission, or reason warranting reconsideration or fail to state with particularity the respects in which the petitioner believes the action taken should be changed;
• rely upon arguments fully considered and rejected by the Commission within the same proceeding;
• relate to matters outside the scope of the order for which reconsideration has been requested;
• rely upon facts or arguments that could have been presented previously to the Commission or its staff but were not;
• relate to an order for which the Commission denied reconsideration on similar grounds; and
• were untimely filed.

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:

Catherine Wang, Partner
catherine.wang@bingham.com
202.373.6037