Ex Parte Rule Compliance Varies, FCC Reviewers Finding

The eight industry and consumer-group panelists generally agreed existing rules are good and none wanted the commission to discourage oral presentations in favor of written submissions, but they differed on whether rules are always followed. “It seems we have some consensus that the rules are good,” said Mary Beth Richards, special counsel to Chairman Julius Genachowski for FCC reform. One area to address is how blogs should fit in with ex parte rules, said commission and industry panelists.

Despite orders and public notices on compliance, “the concern remains that some summaries do not adequately disclose all new facts and arguments presented,” so openness is “shortchanged,” said Kaufman. “Our experience with the ex parte rules suggests that it may be time to consider whether stricter enforcement and/or amendments to our ex parte rules are needed to better achieve the objectives of the rules.” Potential remedies include requiring ex partes be made after all lobbying meetings even if no new information is discussed, or having commission staff review documents for completeness, he said. The latter option could “take a serious toll on the ability of the commission to do its work expeditiously,” he said.

FCC reviewers also discussed how the agency can use new media, Kaufman said. “These issues present a number of novel questions” including whether blog posts should be part of the existing electronic filing system or be a separate part of the record, he added. There are “a host of issues pertaining to anonymous blog postings” and whether the regulator should answer them. “The commission has been taking a lead role among federal regulatory agencies in considering how to craft workable rules to include new media in the rulemaking process … but we realize that certain issues will become even more complex” if blogs are used in more proceedings. “How do you deal with calls to the FCC?” asked President Amy Mehlman of Mehlman Capitol Strategies. “How do you record those? Are those different than e-mails?” CEO John Muleta of M2Z discouraged anonymous blog posts.

Another issue is whether to require those who seek to influence the commission to disclose who owns a significant stake in them or pays a substantial part of their budget, Kaufman said. That issue was part of a rulemaking notice on the rules circulated in June when Commissioner Michael Copps was interim chairman (CD July 15 p5). “Based on the input that we've gotten today, there will probably be a revised version of the” notice circulated by Genachowski’s office, Kaufman said. President Andy Schwartzman of the Media Access Project believes “if someone is being paid to make a representation, that real party should be identified,” he said.

Better enforcement of existing rules is needed, some panelists said. “None of these incentives are going to be worthwhile unless there is enforcement” beyond the FCC asking violators to “'please don’t do that anymore,” said attorney Jef Pearlman of Public Knowledge. “There does need to be strong enforcement. … Hopefully it will not be used very often, if ever.” One- or two-sentence filings are OK when that’s all that was covered in a meeting, General Counsel Jane Mago of the NAB said. “There’s not immediate evidence that a problem is present.” David Solomon of Wilkinson Barker wondered whether repealing the ban on ex parte discussions during the Sunshine Period before FCC meetings is needed: “The commissioners are not deciding things in isolation.”