§  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 communications
   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
   ¶¶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;

   (v) The TRS Numbering Administrator relating to the administration of
   the TRS numbering directory pursuant to 47 U.S.C. 225 and 47 U.S.C.
   251(e); or

   (vi) The Pooling Administrator relating to the administration of
   thousands-block number pooling pursuant to 47 U.S.C. 251(e).

   (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;  76 FR 24381 , May 2, 2011]

   

Non-Restricted Proceedings