§  1.1206   Permit-but-disclose proceedings.

   (a) Unless otherwise provided by the Commission or the staff pursuant
   to § 1.1200(a), until the proceeding is no longer subject to
   administrative reconsideration or review or to judicial review, ex
   parte presentations (other than ex parte presentations exempt under
   § 1.1204(a)) to or from Commission decision-making personnel are
   permissible in the following proceedings, which are referred to as
   permit-but-disclose proceedings, provided that ex parte presentations
   to Commission decision-making personnel are disclosed pursuant to
   paragraph (b) of this section:

   Note 1 to paragraph(a): In the case of petitions for declaratory ruling
   that seek Commission preemption of state or local regulatory authority
   and petitions for relief under 47 U.S.C. 332(c)(7)(B)(v), the
   petitioner must serve the original petition on any state or local
   government, the actions of which are specifically cited as a basis for
   requesting preemption. Service should be made on those bodies within
   the state or local governments that are legally authorized to accept
   service of legal documents in a civil context. Such pleadings that are
   not served will be dismissed without consideration as a defective
   pleading and treated as a violation of the ex parte rules unless the
   Commission determines that the matter should be entertained by making
   it part of the record under § 1.1212(d) and the parties are so informed.

   (1) An informal rulemaking proceeding conducted under section 553 of
   the Administrative Procedure Act other than a proceeding for the
   allotment of a broadcast channel, upon release of a Notice of Proposed
   Rulemaking (see also § 1.1204(b)(2));

   (2) A proceeding involving a rule change, policy statement or
   interpretive rule adopted without a Notice of Proposed Rule Making upon
   release of the order adopting the rule change, policy statement or
   interpretive rule;

   (3) A declaratory ruling proceeding;

   (4) A tariff proceeding which has been set for investigation under
   section 204 or 205 of the Communications Act (including directly
   associated waiver requests or requests for special permission) (see
   also § 1.1204(b)(4));

   (5) Unless designated for hearing, a proceeding under section 214(a) of
   the Communications Act that does not also involve applications under
   Title III of the Communications Act (see also § 1.1208);

   (6) Unless designated for hearing, a proceeding involving an
   application for a Cable Landing Act license that does not also involve
   applications under Title III of the Communications Act (see also
   § 1.1208);

   (7) A proceeding involving a request for information filed pursuant to
   the Freedom of Information Act;

   Note 2 to paragraph(a): Where the requested information is the subject
   of a request for confidentiality, the person filing the request for
   confidentiality shall be deemed a party.

   (8) A proceeding before a Joint Board or a proceeding before the
   Commission involving a recommendation from a Joint Board;

   (9) A proceeding conducted pursuant to section 220(b) of the
   Communications Act for prescription of common carrier depreciation
   rates upon release of a public notice of specific proposed depreciation
   rates (see also § 1.1204(b)(4));

   (10) A proceeding to prescribe a rate of return for common carriers
   under section 205 of the Communications Act; and

   (11) A cable rate complaint proceeding pursuant to section 623(c) of
   the Communications Act where the complaint is filed on FCC Form 329.

   (12) A modification request filed pursuant to § 64.1001 of this chapter;

   (13) Applications by Bell Operating Companies to provide in-region,
   interLATA services pursuant to § 271(d) of the Communications Act; and

   (14) Petitions for Commission preemption of authority to review
   interconnection agreements under § 252(e)(5) of the Communications Act
   and petitions for preemption under § 253 of the Communications Act.

   Note 3 to paragraph(a): In a permit-but-disclose proceeding involving
   only one “party,” as defined in § 1.1202(d) of this section, the party
   and the Commission may freely make presentations to each other and need
   not comply with the disclosure requirements of paragraph (b) of this
   section.

   (b) The following disclosure requirements apply to ex parte
   presentations in permit but disclose proceedings:

   (1) Written presentations. A person who makes a written ex parte
   presentation subject to this section shall, no later than the next
   business day after the presentation, submit two copies of the
   presentation to the Commission's secretary under separate cover for
   inclusion in the public record. The presentation (and cover letter)
   shall clearly identify the proceeding to which it relates, including
   the docket number, if any, shall indicate that two copies have been
   submitted to the Secretary, and must be labeled as an ex parte
   presentation. If the presentation relates to more than one proceeding,
   two copies shall be filed for each proceeding. Alternatively, in
   rulemaking proceedings governed by § 1.49(f), the person making the
   presentation may file one copy of the presentation electronically; no
   additional paper copies need to be filed.

   (2) Oral presentations. A person who makes an oral ex parte
   presentation subject to this section that presents data or arguments
   not already reflected in that person's written comments, memoranda or
   other filings in that proceeding shall, no later than the next business
   day after the presentation, submit to the Commission's Secretary, an
   original and one copy of a memorandum which summarizes the new data or
   arguments. Except in proceedings subject to § 1.49(f) in which pleadings
   are filed electronically, a copy of the memorandum must also be
   submitted to the Commissioners or Commission employees involved in the
   oral presentation. In proceedings governed by § 1.49(f), the person
   making the presentation may, alternatively, electronically file one
   copy of the memorandum, which will be available to Commissioners and
   Commission employees involved in the presentation through the
   Commission's electronic comment filing system. Memoranda must contain a
   summary of the substance of the ex parte presentation and not merely a
   listing of the subjects discussed. More than a one or two sentence
   description of the views and arguments presented is generally required.
   The memorandum (and cover letter) shall clearly identify the proceeding
   to which it relates, including the docket number, if any, shall
   indicate that an original and one copy have been submitted to the
   Secretary or that one copy has been filed electronically, and must be
   labeled as an ex parte presentation. If the presentation relates to
   more than one proceeding, two copies of the memorandum (or an original
   and one copy) shall be filed for each proceeding.

   Note 1 to paragraph(b): Where, for example, presentations occur in the
   form of discussion at a widely attended meeting, preparation of a
   memorandum as specified in the rule might be cumbersome. Under these
   circumstances, the rule may be satisfied by submitting a transcript or
   tape recording of the discussion as an alternative to a memorandum.

   (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, in
   permit-but-disclose proceedings presentations made by members of
   Congress or their staffs or by an agency or branch of the Federal
   Government or its staff shall be treated as ex parte presentations only
   if the presentations are of substantial significance and clearly
   intended to affect the ultimate decision. The Commission staff shall
   prepare a written summary of any such oral presentations and place them
   in the record in accordance with paragraph (b)(2) of this section and
   place any such written presentations in the record in accordance with
   paragraph (b)(1) of this section.

   (4) Notice of ex parte presentations. The Commission's Secretary or, in
   the case of non-docketed proceedings, the relevant Bureau or Office
   shall place in the public file or record of the proceeding written ex
   parte presentations and memoranda reflecting oral ex parte
   presentations. The Secretary shall issue a public notice listing any
   written ex parte presentations or written summaries of oral ex parte
   presentations received by his or her office relating to any
   permit-but-disclose proceeding. Such public notices should generally be
   released at least twice per week.

   Note 2 to paragraph(b): Interested persons should be aware that some ex
   parte filings, for example, those not filed in accordance with the
   requirements of this paragraph (b), might not be placed on the
   referenced public notice. All ex parte presentations and memoranda
   filed under this section will be available for public inspection in the
   public file or record of the proceeding, and parties wishing to ensure
   awareness of all filings should review the public file or record.

   Note 3 to paragraph(b): As a matter of convenience, the Secretary may
   also list on the referenced public notices materials, even if not ex
   parte presentations, that are filed after the close of the reply
   comment period or, if the matter is on reconsideration, the
   reconsideration reply comment period.

   [ 62 FR 15856 , Apr. 3, 1997, as amended at  63 FR 24126 , May 1, 1998;  64 FR 68948 , Dec. 9, 1999;  66 FR 3501 , Jan. 16, 2001]

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