Earlier today, the FCC wrapped up a seminar on complying with its new ex parte rules, which govern the public disclosures that must be made following a meeting with FCC personnel. The new rules are designed to increase the transparency of the FCC’s decision-making process, and go into effect in a few short weeks (June 1, 2011). Unfortunately, the price of increased transparency is more paperwork and the risk of being assessed fines by the Enforcement Bureau, which has been granted authority to police the new rules and issue fines to those who run afoul of them.
Fortunately, the FCC’s General Counsel, Austin Schlick, indicated at the seminar that while the Enforcement Bureau now has the authority to levy fines for ex parte violations, the FCC will not use its new ex parte rules as an administrative “speed trap” to generate revenue from fines. While his statement is not binding on the FCC, it does provide some comfort to those unfamiliar with the process and requirements for conducting meetings with the FCC that inadvertent errors won’t necessarily be costly ones.
A complete copy of the order establishing the new rules can be found here, but some of the more noteworthy changes include:
- Under the new rules, all ex parte notice letters must be filed electronically with the FCC in machine-readable format (e.g., DOC, PPT or searchable-PDF files). There are a number of exceptions to this rule, including for hardship and documents containing confidential information.
- All presentations will require ex parte filings, even those in which parties merely reiterate arguments or data already in the record. Such ex parte filings must provide details regarding the facts that were discussed, the arguments made, and the support offered for those arguments during the presentation. Alternatively, parties may provide detailed citations to prior filings containing that information.
- Because of these added complexities, the filing deadline for submitting an ex parte notice will now be two full business days after the presentation (rather than one). However, during the “Sunshine Period” prior to an FCC vote, the notice must be filed on the same business day in which the presentation is made.
On a related note, the FCC this week published in the Federal Register a request for comments establishing the comment deadlines for those wishing to provide input on when and how real parties-in-interest must be disclosed in ex parte filings. A copy of the request for comments can be found here.
In particular, the FCC is interested in whether disclosure requirements should apply to other types of filings in addition to ex parte notices, whether disclosures should be made in only some or all types of FCC proceedings, whether different disclosure requirements should be applicable to different types of entities (such as trade associations or non-profit groups), and whether a party should be deemed to have made adequate disclosure if its filing references information appearing on the Internet or available from the FCC’s databases. Comments are due by June 16, 2011 and Reply Comments are due by July 18, 2011.