§  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) [Reserved]

   (13) 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) Oral presentations. A person who makes an oral ex parte
   presentation subject to this section shall submit to the Commission's
   Secretary a memorandum that lists all persons attending or otherwise
   participating in the meeting at which the ex parte presentation was
   made, and summarizes all data presented and arguments made during the
   oral ex parte presentation. 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. If the oral ex
   parte presentation consisted in whole or in part of the presentation of
   data or arguments already reflected in the presenter's written
   comments, memoranda or other filings in the proceeding, the presenter
   may provide citations to such data or arguments in his or her prior
   comments, memoranda, or other filings (specifying the relevant page
   and/or paragraph numbers where such data or arguments can be found) in
   lieu of summarizing them in the memorandum.

   Note to paragraph (b)(1): 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
   recording of the discussion as an alternative to a memorandum.
   Likewise, Commission staff in its discretion may file an ex parte
   summary of a multiparty meeting as an alternative to having each
   participant file a summary.

   (2) Written and oral presentations. A written ex parte presentation and
   a memorandum summarizing an oral ex parte presentation (and cover
   letter, if any) shall clearly identify the proceeding to which it
   relates, including the docket number, if any, and must be labeled as an
   ex parte presentation. Documents shown or given to Commission staff
   during ex parte meetings are deemed to be written ex parte
   presentations and, accordingly, must be filed consistent with the
   provisions of this section. Consistent with the requirements of § 1.49
   paragraphs (a) and (f), additional copies of all written ex parte
   presentations and notices of oral ex parte presentations, and any
   replies thereto, shall be mailed, e-mailed or transmitted by facsimile
   to the Commissioners or Commission employees who attended or otherwise
   participated in the presentation.

   (i) In proceedings governed by § 1.49(f) or for which the Commission has
   made available a method of electronic filing, written ex parte
   presentations and memoranda summarizing oral ex parte presentations,
   and all attachments thereto, shall, when feasible, be filed through the
   electronic comment filing system available for that proceeding, and
   shall be filed in a native format (e.g., .doc, .xml, .ppt, searchable
   .pdf). If electronic filing would present an undue hardship, the person
   filing must request an exemption from the electronic filing
   requirement, stating clearly the nature of the hardship, and submitting
   an original and one copy of the written ex parte presentation or
   memorandum summarizing an oral ex parte presentation to the Secretary,
   with a copy by mail or by electronic mail to the Commissioners or
   Commission employees who attended or otherwise participated in the
   presentation.

   (ii) Confidential Information. In cases where a filer believes that one
   or more of the documents or portions thereof to be filed should be
   withheld from public inspection, the filer should file electronically a
   request that the information not be routinely made available for public
   inspection pursuant to § 0.459 of this chapter. Accompanying any such
   request, the filer shall include in paper form a copy of the
   document(s) containing the confidential information, and also shall
   file electronically a copy of the same document(s) with the
   confidential information redacted. The redacted document shall be
   machine-readable whenever technically possible. Where the document to
   be filed electronically contains metadata that is confidential or
   protected from disclosure by a legal privilege (including, for example,
   the attorney-client privilege), the filer may remove such metadata from
   the document before filing it electronically.

   (iii) Filing dates outside the Sunshine period. Except as otherwise
   provided in paragraphs (b)(2)(iv) and (v) of this section, all written
   ex parte presentations and all summaries of oral ex parte presentations
   must be filed no later than two business days after the presentation.
   As set forth in § 1.4(e)(2), a "business day" shall not include a
   holiday (as defined in § 1.4(e)(1)). In addition, for purposes of
   computing time limits under the rules governing ex parte presentations,
   a "business day" shall include the full calendar day (i.e., from 12:00
   a.m. Eastern Time until 11:59:59 p.m. Eastern Time).
   Example: On Tuesday a party makes an ex parte presentation in a
   permit-but-disclose proceeding to a Commissioner. The second business
   day following the ex parte presentation is the following Thursday
   (absent an intervening holiday). The presenting party must file its ex
   parte notice before the end of the day (11:59:59 p.m.) on Thursday.
   Similarly, if an ex parte presentation is made on Friday, the second
   business day ordinarily would be the following Tuesday, and the ex
   parte notice must be filed no later than 11:59:59 p.m. on that Tuesday.

   (iv) Filing dates for presentations made on the day that the Sunshine
   notice is released. For presentations made on the day the Sunshine
   notice is released, any written ex parte presentation or memorandum
   summarizing an oral ex parte presentation required pursuant to § 1.1206
   or § 1.1208 must be submitted no later than the end of the next business
   day. Written replies, if any, shall be filed no later than two business
   days following the presentation, and shall be limited in scope to the
   specific issues and information presented in the ex parte filing to
   which they respond.
   Example: On Tuesday, a party makes an ex parte presentation in a
   permit-but-disclose proceeding to a Commissioner. That same day, the
   Commission's Secretary releases the Sunshine Agenda for the next
   Commission meeting and that proceeding appears on the Agenda. The
   Sunshine period begins as of Wednesday, and therefore the presenting
   party must file its ex parte notice by the end of the day (11:59:59
   p.m.) on Wednesday. A reply would be due by the end of the day
   (11:59:59 p.m.) on Thursday.

   (v) Filing dates during the Sunshine Period. If an ex parte
   presentation is made pursuant to an exception to the Sunshine period
   prohibition, the written ex parte presentation or memorandum
   summarizing an oral ex parte presentation required under this paragraph
   shall be submitted by the end of the same business day on which the ex
   parte presentation was made. The memorandum shall identify plainly on
   the first page the specific exemption in § 1.1203(a) on which the
   presenter relies, and shall also state the date and time at which any
   oral ex parte presentation was made. Written replies to permissible ex
   parte presentations made pursuant to an exception to the Sunshine
   period prohibition, if any, shall be filed no later than the next
   business day following the presentation, and shall be limited in scope
   to the specific issues and information presented in the ex parte filing
   to which they respond.
   Example: On Tuesday, the Commission's Secretary releases the Sunshine
   Agenda for the next Commission meeting, which triggers the beginning of
   the Sunshine period on Wednesday. On Thursday, a party makes an ex
   parte presentation to a Commissioner on a proceeding that appears on
   the Sunshine Agenda. That party must file an ex parte notice by the end
   of the day (11:59:59 p.m.) on Thursday. A reply would be due by the end
   of the day (11:59:59 p.m.) on Friday.

   (vi) If a notice of an oral ex parte presentation is incomplete or
   inaccurate, staff may request the filer to correct any inaccuracies or
   missing information. Failure by the filer to file a corrected
   memorandum in a timely fashion as set forth in paragraph (b) of this
   section, or any other evidence of substantial or repeated violations of
   the rules on ex parte contacts, should be reported to the General
   Counsel.

   (3) Notwithstanding paragraphs (b)(1) and (2) of this section,
   permit-but-disclose proceedings involving 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 written summaries of any such oral presentations and place them
   in the record in accordance with paragraph (b) of this section and also
   place any written presentations in the record in accordance with that
   paragraph.

   (4) Notice of ex parte presentations. The Commission's 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 generally should be released at least twice per week.

   Note 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.

   [ 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;  76 FR 24382 , May 2,
   2011;  78 FR 11112 , Feb. 15, 2013]

   

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