FCC Draft Notice Seeks More Informative Ex Partes

The item is seen by some inside and outside the commission as among efforts to make the FCC more open. Several public interest groups and other lobbying groups said they would like more detailed ex parte filings. But Commissioner Robert McDowell has questioned the need for new ex parte rules, saying the FCC need only do a better job of enforcing those already on the books, commission officials said.

Copps was the only FCC member who voted on the item, a commission official said. Efforts late in his chairmanship to get approval of the item, which circulated June 12, didn’t pan out, FCC officials said. They said they're waiting to hear from Chairman Julius Genachowski on the subject. Some officials and public interest group representatives expect that he'll support the proposal in concept but may take time to review it. A commission spokesman declined to comment.

With government openness “a big priority for the administration as a whole,” Benton Foundation analyst Kevin Taglang predicted “Chairman Genachowski will carry that ball to the FCC, and we think it would be a good start.” The foundation’s head sits on a commission advisory panel and heads a subcommittee working on openness.

“The biggest problem with the whole process is that there are no penalties and there is very little enforcement,” said Public Knowledge Legal Director Harold Feld. “The way the rules work at the moment is it is the responsibility of staff who get copies of the filed ex parte to respond to the party that filed an inadequate ex parte that ’this is inadequate, you need to supplement it.’ That just doesn’t happen.”

The draft item would require disclosure by ex parte filers of ownership interests they represent, commission officials said. It seeks comment on whether there should be more restrictions on ex partes filed during what’s called the sunshine period, when the commission can’t be lobbied on subjects set for votes at public meetings, an official said. The rulemaking notice notes that commission rules generally require ex partes to be more than one sentence and to list the substance of what lobbyists discussed with FCC members, their aides and other staffers, not just the topics touched on, commission officials said.

“The NPRM represents a real advance” because it “promotes transparency and helps give everybody a fair shot at knowing what’s being argued to decision makers,” said Media Access Project President Andrew Schwartzman, long a critic of ex partes. “It is a leveler that helps people with limited resources make sure that their views are not overwhelmed at the FCC by deep-pocketed opponents.” The American Cable Association “believes that having a process where parties file more detailed ex partes would be beneficial to the FCC’s overall policy making process,” said President Matt Polka.

The system needs to be fixed, Feld said. “There’s no consequence for sending in a very inadequate ex parte that doesn’t really comply with the rules even as they're written now.” It’s unclear whose responsibility at the FCC it is to decide whether an ex parte needs more detail when a lobbyist meets with several people at the commission, he said.

Chris Riley, Free Press policy counsel, also backed changes on ex partes. “We certainly would like to see more transparency,” Riley said. “Transparency is part of how the FCC should conduct all its operations. It’s a central component of how the Obama administration as a whole is trying to reform the government.” But Riley said he isn’t sure what changes the commission should make. “They're not the best set of rules the FCC has ever put out, but they already require next business day filings of summaries of any written presentations and summaries of any oral presentations,” he said.

Ex parte rules alone aren’t the problem, said Consumers Union analyst Joel Kelsey. He wants the FCC to offer easier access to ex parte filings online. “The ex parte process in and of itself is fine,” Kelsey said. “The ability to look at ex partes is not.” He said complaints some observers make about companies making key presentations at the FCC that influence policy, and then filing very limited ex parte letters not explaining their arguments, raise a larger issue. “That is part of the dynamic of the power that industry can assert over the agency, not part of the power or transparency that ex partes provide,” he said. “I would rather the commission back up, take a look at the entire record, consider arguments on both sides … rather than just meet with a few officials.”