Goto Section: 1.1204 | 1.1208 | Table of Contents
FCC 1.1206
Revised as of October 1, 2006
Goto Year:2005 |
2007
Sec. 1.1206 Permit-but-disclose proceedings.
(a) Unless otherwise provided by the Commission or the staff pursuant to
Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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) A modification request filed pursuant to Sec. 64.1001 of this chapter;
(13) Applications by Bell Operating Companies to provide in-region,
interLATA services pursuant to Sec. 271(d) of the Communications Act; and
(14) Petitions for Commission preemption of authority to review
interconnection agreements under Sec. 252(e)(5) of the Communications Act and
petitions for preemption under Sec. 253 of the Communications Act.
Note 3 to paragraph (a): In a permit-but-disclose proceeding involving only
one “party,” as defined in Sec. 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) Written presentations. A person who makes a written ex parte
presentation subject to this section shall, no later than the next business
day after the presentation, submit two copies of the presentation to the
Commission's secretary under separate cover for inclusion in the public
record. The presentation (and cover letter) shall clearly identify the
proceeding to which it relates, including the docket number, if any, shall
indicate that two copies have been submitted to the Secretary, and must be
labeled as an ex parte presentation. If the presentation relates to more
than one proceeding, two copies shall be filed for each proceeding.
Alternatively, in rulemaking proceedings governed by Sec. 1.49(f), the person
making the presentation may file one copy of the presentation
electronically; no additional paper copies need to be filed.
(2) Oral presentations. A person who makes an oral ex parte presentation
subject to this section that presents data or arguments not already
reflected in that person's written comments, memoranda or other filings in
that proceeding shall, no later than the next business day after the
presentation, submit to the Commission's Secretary, an original and one copy
of a memorandum which summarizes the new data or arguments. Except in
proceedings subject to Sec. 1.49(f) in which pleadings are filed electronically,
a copy of the memorandum must also be submitted to the Commissioners or
Commission employees involved in the oral presentation. In proceedings
governed by Sec. 1.49(f), the person making the presentation may, alternatively,
electronically file one copy of the memorandum, which will be available to
Commissioners and Commission employees involved in the presentation through
the Commission's electronic comment filing system. 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. The
memorandum (and cover letter) shall clearly identify the proceeding to which
it relates, including the docket number, if any, shall indicate that an
original and one copy have been submitted to the Secretary or that one copy
has been filed electronically, and must be labeled as an ex parte
presentation. If the presentation relates to more than one proceeding, two
copies of the memorandum (or an original and one copy) shall be filed for
each proceeding.
Note 1 to paragraph (b): 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 tape recording of the
discussion as an alternative to a memorandum.
(3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, in
permit-but-disclose proceedings 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 a written summary of any such
oral presentations and place them in the record in accordance with paragraph
(b)(2) of this section and place any such written presentations in the
record in accordance with paragraph (b)(1) of this section.
(4) Notice of ex parte presentations. The Commission's Secretary or, in the
case of non-docketed proceedings, the relevant Bureau or Office shall place
in the public file or record of the proceeding written ex parte
presentations and memoranda reflecting oral ex parte presentations. The
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 should generally be released at least twice per week.
Note 2 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.
Note 3 to paragraph (b): As a matter of convenience, the Secretary may also
list on the referenced public notices materials, even if not ex parte
presentations, that are filed after the close of the reply comment period
or, if the matter is on reconsideration, the reconsideration reply comment
period.
[ 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]
Restricted Proceedings
Goto Section: 1.1204 | 1.1208
Goto Year: 2005 |
2007
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