ex part enforcement at FCC, or lack thereof, has been a recurring topic here. We now have 3 basic eras of FCC practice in FCC enforcement of its ex parte rules.

1. 1978 - January 2011

   “Professional courtesy” combined with “holding telescope to the blind eye” approach. During this 33 year period FCC did not have a single written record of finding an ex parte violation. There is anecdotal evidence that some ex parte complaints were resolved with phone calls to violators and verbal warnings but no written public records exist. Naturally, some entities with little interest in transparency noticed this and saw it as a blank check to do whatever they wanted.

2. January 11, 2011 - August 3, 2011

   FCC starts more aggressive review of complaints with its 1/11/11 finding that Magnum Communications was guilty of a violation - the first EVER written finding of a violation.

3. August 3, 2011 ->

   FCC announces 3 findings of violations based on “a spot check of ex parte notices to assess compliance”. In this new era FCC not only finds violations but does not depend solely on complaints.

Imagine the surprise on August 3, 2011 when USTelecom, Public Utility Commission of Texas, and Parrino Strategic Consulting Group received similar letters saying based on a spot check they had been found to violate Section 1.1206(b)(1). Now there was no penalty or even a warning or probation, but they were told “Accordingly, we ask that you file a supplemental notice that complies with the rule within one week.”

As another sign of assertiveness, one July 28, 2011 FCC found that Christian Media, Inc. “violated the Commission’s ex parte rules by soliciting impermissible ex part letters from members of Congress in violation of 47 C.F.R. § §1.1208 and1.1210” and referred the matter to the Enforcement Bureau “to determine whether a forfeiture is warranted”. As stated previously, your blogger doubts that Title V of the Communications Act permits fines in the case of such violations. So my unsolicited “free legal advice” to Christian Media, Inc. is: don’t start liquidating assets now to pay for a possible fine.

But kudos to FCC/OGC for these major changes in ex part enforcement that will either increase compliance OR lead to the realization that there is a good reason why every other federal agency uses a different approach in dealing with ex parte presentations.

Tags: ex parte, enforcement