Ex Parte Rules Expand to Cover All FCC Lobbying Meetings
The FCC expanded its ex parte rules to require filings be made in most active proceedings after any lobbying conversation with commissioners, their aides or other agency officials. An order approved by the commissioners and released late Wednesday largely stuck to a draft that circulated in October (CD Oct 29 p2) in also doubling the amount of time in which most ex parte filings can be made to two business days. That would have made on-time some of the recent late filings we found in our review, as many were made a day late. But advocates for ex parte reform focused on the order’s expansion of the ex parte rules.
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The filings must be made “for all oral ex parte presentations in permit-but-disclose proceedings, not just for those presentations that involve new information or arguments not already in the record,” the order said at http://xrl.us/big84b. The new rules require filings even when those lobbying the commission contend what was discussed covered no new ground. In such cases, “the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number” in a previous filing, the order said. “Transparency requires that interested parties, and the public, know that ex parte meetings are taking place, no matter whether old or new information is being discussed."
Citing what was covered won’t be a significant burden for those who lobby the regulator, the order said. “Any incremental effort a party expends in providing brief summaries or citations to what it has itself written is minimal, and more than outweighed by the degree to which this requirement will facilitate the ability of everyone else involved -- the Commission, staff, other parties, and the public -- to understand how the issues in permit-but-disclose proceedings are developed and refined.” Such summaries “must be sufficiently detailed that they would inform a person” not at the meeting “of the facts that were discussed, the arguments made, and the support offered for those arguments,” the commission said.
Ex parte notices must be submitted electronically in machine-readable format and a redacted version must be filed at the same time as the confidential information is made available on paper. Filers must electronically send their notices to all at the FCC who participated in a meeting or phone call, and where staff believe there are “substantial or repeated” rule violations, they should report them to the general counsel, the agency said. “To facilitate stricter enforcement of the ex parte rules, the Enforcement Bureau is authorized to levy forfeitures” for rule breakers, the FCC said. Meetings on a topic the day it’s part of a Sunshine Notice must be reported the next business day, and those starting the day after the period begins must be filed the same day.
At least 16 ex parte notices were filed late with the commission in the past three months, compared with seven we found in a two-and-a-half month period in August through October. Comcast’s purchase of control in NBC Universal from General Electric, a deal the commission approved in January, generated the most late filings, with six: Two from Bloomberg and one each from an alliance of small telecom groups, the National Association of Latino Independent Producers, SnagFilms and CoLours TV. Several other filings involved net neutrality and were made by Amazon.com and the Media Access Project (MAP), which reported on a meeting attended by representatives of Amazon.com, Dish Network, Netflix, Skype and nonprofit groups. Some late filers said they either made the submissions late because of an oversight or out of an abundance of caution, as with one of the Bloomberg documents, or that the filings covered no new ground.
"With two days to file, there should be greater compliance with the requirement for a more detailed information,” said MAP Senior Vice President Andrew Schwartzman, among the panelists at an ex parte workshop. “While I wish it had been issued earlier, I know this was something that the folks on the eighth floor wanted to think through fully, and this took some time,” he said of the new order. “It is unfortunate that these new rules were not in place during the consideration of the Comcast/NBCU transaction,” Schwartzman said. “This is a major advance in transparency. It will surely improve public confidence in the FCC’s actions."
The order makes “true improvements to the transparency and openness” of FCC work, said Commissioner Michael Copps, who circulated a rulemaking on the subject when he ran the agency. “I have seen far too many instances where ex parte filings simply reference that a meeting took place on a given date, without nearly enough detail on the arguments or data presented to allow the public or interested parties to meaningfully respond. No more.” A rulemaking notice asks about new rules on the disclosure of the financial interests represented at lobbying meetings, after commenters “had disparate views” both “for and against” a new rule, the agency said. “We agree that, although some interested parties may be knowledgeable about the identities of the ‘parties behind the parties'” who make filings, “other parties and the general pubic may not be,” the FCC said. Comments are due 45 days after the further notice appears in the Federal Register, replies in 75 days.