Goto Section: 1.1203 | 1.1206 | Table of Contents
FCC 1.1204
Revised as of October 1, 2010
Goto Year:2009 |
2011
§ 1.1204 Exempt ex parte presentations and proceedings.
(a) Exempt ex parte presentations. The following types of presentations
are exempt from the prohibitions in restricted proceedings (§ 1.1208),
the disclosure requirements in permit-but-disclose proceedings
(§ 1.1206), and the prohibitions during the Sunshine Agenda period
prohibition (§ 1.1203):
(1) The presentation is authorized by statute or by the Commission's
rules to be made without service, see, e.g., § 1.333(d), or involves
the filing of required forms;
(2) The presentation is made by or to the General Counsel and his or
her staff and concerns judicial review of a matter that has been
decided by the Commission;
(3) The presentation directly relates to an emergency in which the
safety of life is endangered or substantial loss of property is
threatened, provided that, if not otherwise submitted for the record,
Commission staff promptly places the presentation or a summary of the
presentation in the record and discloses it to other parties as
appropriate.
(4) The presentation involves a military or foreign affairs function of
the United States or classified security information;
(5) The presentation is to or from an agency or branch of the Federal
Government or its staff and involves a matter over which that agency or
branch and the Commission share jurisdiction provided that, any new
factual information obtained through such a presentation that is relied
on by the Commission in its decision-making process will, if not
otherwise submitted for the record, be disclosed by the Commission no
later than at the time of the release of the Commission's decision;
(6) The presentation is to or from the United States Department of
Justice or Federal Trade Commission and involves a telecommunications
competition matter in a proceeding which has not been designated for
hearing and in which the relevant agency is not a party or commenter
(in an informal rulemaking or Joint board proceeding) provided that,
any new factual information obtained through such a presentation that
is relied on by the Commission in its decision-making process will be
disclosed by the Commission no later than at the time of the release of
the Commission's decision;
Note 1 to paragraph (a): Under paragraphs (a)(5) and (a)(6) of this
section, information will be relied on and disclosure will be made only
after advance coordination with the agency involved in order to ensure
that the agency involved retains control over the timing and extent of
any disclosure that may have an impact on that agency's jurisdictional
responsibilities. If the agency involved does not wish such information
to be disclosed, the Commission will not disclose it and will disregard
it in its decision-making process, unless it fits within another
exemption not requiring disclosure (e.g., foreign affairs). The fact
that an agency's views are disclosed under paragraphs (a)(5) and (a)(6)
does not preclude further discussions pursuant to, and in accordance
with, the exemption.
(7) The presentation is between Commission staff and an advisory
coordinating committee member with respect to the coordination of
frequency assignments to stations in the private land mobile services
or fixed services as authorized by 47 U.S.C. 332;
(8) The presentation is a written presentation made by a listener or
viewer of a broadcast station who is not a party under § 1.1202(d)(1),
and the presentation relates to a pending application that has not been
designated for hearing for a new or modified broadcast station or
license, for renewal of a broadcast station license or for assignment
or transfer of control of a broadcast permit or license;
(9) The presentation is made pursuant to an express or implied promise
of confidentiality to protect an individual from the possibility of
reprisal, or there is a reasonable expectation that disclosure would
endanger the life or physical safety of an individual;
(10) The presentation is requested by (or made with the advance
approval of) the Commission or staff for the clarification or adduction
of evidence, or for resolution of issues, including possible
settlement, subject to the following limitations:
(i) This exemption does not apply to restricted proceedings designated
for hearing;
(ii) In restricted proceedings not designated for hearing, any new
written information elicited from such request or a summary of any new
oral information elicited from such request shall promptly be served by
the person making the presentation on the other parties to the
proceeding. Information relating to how a proceeding should or could be
settled, as opposed to new information regarding the merits, shall not
be deemed to be new information for purposes of this section. The
Commission or its staff may waive the service requirement if service
would be too burdensome because the parties are numerous or because the
materials relating to such presentation are voluminous. If the service
requirement is waived, copies of the presentation or summary shall be
placed in the record of the proceeding and the Commission or its staff
shall issue a public notice which states that copies of the
presentation or summary are available for inspection. The Commission or
its staff may determine that service or public notice would interfere
with the effective conduct of an investigation and dispense with the
service and public notice requirements;
(iii) If the presentation is made in a proceeding subject to
permit-but-disclose requirements, disclosure of any new written
information elicited from such request or a summary of any new oral
information elicited from such request must be made in accordance with
the requirements of § 1.1206(b), provided, however, that the Commission
or its staff may determine that disclosure would interfere with the
effective conduct of an investigation and dispense with the disclosure
requirement. As in paragraph (a)(10)(ii) of this section, information
relating to how a proceeding should or could be settled, as opposed to
new information regarding the merits, shall not be deemed to be new
information for purposes of this section;
Note 2 to paragraph (a): If the Commission or its staff dispenses with
the service or notice requirement to avoid interference with an
investigation, a determination will be made in the discretion of the
Commission or its staff as to when and how disclosure should be made if
necessary. See Amendment of Subpart H, Part I, 2 FCC Rcd 6053, 6054
P:P:10-14 (1987).
(iv) If the presentation is made in a proceeding subject to the
Sunshine period prohibition, disclosure must be made in accordance with
the requirements of § 1.1206(b) or by other adequate means of notice
that the Commission deems appropriate;
(v) In situations where new information regarding the merits is
disclosed during settlement discussions, and the Commission or staff
intends that the product of the settlement discussions will be
disclosed to the other parties or the public for comment before any
action is taken, the Commission or staff in its discretion may defer
disclosure of such new information until comment is sought on the
settlement proposal or the settlement discussions are terminated.
(11) The presentation is an oral presentation in a restricted
proceeding not designated for hearing requesting action by a particular
date or giving reasons that a proceeding should be expedited other than
the need to avoid administrative delay. A detailed summary of the
presentation shall promptly be filed in the record and served by the
person making the presentation on the other parties to the proceeding,
who may respond in support or opposition to the request for expedition,
including by oral ex parte presentation, subject to the same service
requirement.
(12) The presentation is between Commission staff and:
(i) The administrator of the interstate telecommunications relay
services fund relating to administration of the telecommunications
relay services fund pursuant to 47 U.S.C. 225;
(ii) The North American Numbering Plan Administrator or the North
American Numbering Plan Billing and Collection Agent relating to the
administration of the North American Numbering Plan pursuant to 47
U.S.C. 251(e);
(iii) The Universal Service Administrative Company relating to the
administration of universal service support mechanisms pursuant to 47
U.S.C. 254; or
(iv) The Number Portability Administrator relating to the
administration of local number portability pursuant to 47 U.S.C.
251(b)(2) and (e); provided that the relevant administrator has not
filed comments or otherwise participated as a party in the proceeding.
(b) Exempt proceedings. Unless otherwise provided by the Commission or
the staff pursuant to § 1.1200(a), ex parte presentations to or from
Commission decision-making personnel are permissible and need not be
disclosed with respect to the following proceedings, which are referred
to as "exempt" proceedings:
(1) A notice of inquiry proceeding;
(2) A petition for rulemaking, except for a petition requesting the
allotment of a broadcast channel (see also § 1.1206(a)(1)), or other
request that the Commission modify its rules, issue a policy statement
or issue an interpretive rule, or establish a Joint Board;
(3) A tariff proceeding (including directly associated waiver requests
or requests for special permission) prior to it being set for
investigation (see also § 1.1206(a)(4));
(4) A proceeding relating to prescription of common carrier
depreciation rates under section 220(b) of the Communications Act prior
to release of a public notice of specific proposed depreciation rates
(see also § 1.1206(a)(9));
(5) An informal complaint proceeding under 47 U.S.C. 208 and § 1.717 of
this chapter or 47 U.S.C. 255 and either § § 6.17 or 7.17 of this
chapter; and
(6) A complaint against a cable operator regarding its rates that is
not filed on the standard complaint form required by § 76.951 of this
chapter (FCC Form 329).
Notes 1-3 to paragraph (b): [Reserved]
Note 4 to paragraph (b): In the case of petitions for rulemaking that
seek Commission preemption of state or local regulatory authority, 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.
[ 62 FR 15855 , Apr. 3, 1997, as amended at 64 FR 63251 , Nov. 19, 1999;
64 FR 68948 , Dec. 9, 1999]
Non-Restricted Proceedings
Goto Section: 1.1203 | 1.1206
Goto Year: 2009 |
2011
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