Yesterday FCC released the above Report and Order amending its ex parte rules, a frequent topic in this blog.

Here are the basic results in this rulemaking:

• Ex parte notices will be required 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.
• If an oral ex parte presentation is limited to material already in the written record, the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number in the party’s written submission(s) where the matters discussed can be found. If an oral ex parte presentation includes new information, the notice must contain a summary of the new data and arguments presented.
• Notices for all ex parte presentations must include the name of the person(s) who made the ex parte presentation as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made.
• Notices of ex parte presentations made outside the Sunshine period must be filed within two business days of the presentation.

[Other changes affect ex parte presentation during the Sunshine period - the week prior to discussion at an open Commission meeting, if the rulemaking is not resolved on circulation as most now actually are. These changes will not be discussed here as they are less generally applicable.]

Your blogger’s comments in this rulemaking raised a number of issues, most of which did not fare well - but then again it is not clear if anyone fared any better except perhaps those who argued for the status quo. One proposal that made an impact was to require that ex parte complaints and their disposition be made public. In para. 66 the Commission agreed to do so ending the present “black chamber” practice.

My suggestion for increased enforcement penalties was acted on in a strange way. The R&O dismisses my suggestion that those found in repeated violation should be barred from oral ex parte presentations for a period. Apparently the Commission ignored the specific proposal that the penalty restriction only apply to oral presentations and thus rationalized that it would be inappropriate to ban a party from all participation:

Although it would certainly deter parties from violating the rules, routinely barring parties from further participation in Commission proceedings diminishes their ability to influence action from the Commission that would serve the public interest, and it would lessen the pool of knowledge and information on which to base our decisions.

They did agree to delegate authority to EB to levy fines in case of violations found by OGC.(para. 67) Is this the same EB that recently
let 2 different cellular jammer sellers off without any fine and did the same thing in 2009 for a GPS jammer seller? Is this the same OGC that hasn’t found a single ex parte violation in more than 30 years?

Finally, even though I am not a lawyer, I note that there is no legal reference in the R&O to where the Commission has jurisdiction to levy fines for this type of violation. The Commission’s legal authority for issuing fines stems from Sections 501 and 502 of the Communications Act. It is pretty clear that 501 doesn’t apply here and it is not obvious that 502 does either. (For nearly two decades FCC issued documents claiming that it could enforce the technical rules of Part 68 on CPE vendors while it actually lacked such legal authority. This might be a similar bluff.)

The Commission finally admitted in para. 71 that it is the only regulatory agency in the federal government that has implemented ex parte procedures requiring outside parties to document what was said - a basic conflict of interest. It rationalizes this unique position:

(O)ne agency’s procedural rules do not fit all, and we would be ill-advised to incorporate the ex parte rules of another agency without giving considerable thought to whether those rules would achieve the interests of administrative efficiency, procedural due process and transparency better than our own rules as amended today. From that perspective, we see no clear advantage to the suggestion by Marcus that Commission staff prepare and file ex parte notices. Other agencies may be differently situated to the extent their docket is primarily adjudicatory rather than rulemaking (e.g., the Federal Trade Commission). Also, staff summaries raise an issue of fairness. The complex legal and technical nature of the issues sometimes presented ex parte make it preferable for the parties arguing those issues to summarize them.

So FCC thinks it is the only regulatory agency with a predominantly rulemaking (vice adjudicatory, e.g. enforcement and license award) docket load?
Does FCC think that the docket load at FAA, EPA, and the Nuclear Regulatory Commission are less technical than theirs?
Did FCC consider that even if the staff summarized what was said they could include in the docket handouts from the private parties on esoteric technical issues? The real benefit of staff summaries is the people writing them do not have the incentive to cover up issues so people with other views are kept in the dark. Thus if the submitted handout fairly summarized what was discussed, the staff could simply affirmatively so state. They could also add other issues that came up and points that were not candidly summarized in the handout.