Sec.  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 ( Sec. 1.1208), the
   disclosure requirements in permit-but-disclose proceedings ( Sec. 1.1206), and
   the prohibitions during the Sunshine Agenda period prohibition ( Sec. 1.1203):

   (1) The presentation is authorized by statute or by the Commission's rules
   to be made without service, see, e.g.,  Sec. 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 telecommunications competition
   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  Sec. 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
    Sec. 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  Sec. 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.

   (b) Exempt proceedings. Unless otherwise provided by the Commission or the
   staff pursuant to  Sec. 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  Sec. 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  Sec. 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
    Sec. 1.1206(a)(9));

   (5) An informal complaint proceeding under 47 U.S.C. 208 and  Sec. 1.717 of this
   chapter or 47 U.S.C. 255 and either  Sec.  Sec. 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  Sec. 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  Sec. 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]

Non-Restricted Proceedings