47 C.F.R. 1.1206(b)(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. (Emphasis added)

Previously we have written about our numerous complaints about MSTV’s past flagrant violation of the Commission’s ex parte rules (significantly more than any other party we are aware of), the FCC/OGC staff’s preference to dismiss such complaints out of hand in an apparently arbitrary and capricious manner, and our pending Petition for Review on this matter that has been pending in 8th Floor circulation since 02/25/2010. (In fairness to the OGC staffers involved, they may just be acting at the behest of political appointees.)

Curious readers might be wondering how MSTV is behaving during the pendency of this matter. Have they cleaned house and become perfectly in compliance as NAB has been for a long time? Or have they noticed that in the more than 3 years since these original complaints were filed that they have escaped all criticism, let alone any penalties?

The answer: A little of both as seen below.

MSTV has returned to somewhat near the mainstream of compliance, but not the letter perfect level of NAB. They now often file ex parte statements the same day as for the meeting as shown at left. Most filings are now made within the deadline of Section 1.1206(b)(2).








However, March was a bad month for these fabled protectors of the rights of large TV broadcasters against the advocates of broadband for all. In March all the following filings were late:

http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397659
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397641
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397663
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397644
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397654
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020397638

Is there at the very least a “by your leave” apology for these late filings, perhaps blaming a dog for eating some paper? Not that we can find so far.

Here are some other late MSTV filings within the past year:

http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352105
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352104
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020352103
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036571
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036570
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036569
http://fjallfoss.fcc.gov/ecfs/document/view?id=7020036568

[Note that some of these filings may be duplicates filed repeatedly. However, I do not believe that FCC Rules permits multiple late filings of the same document as a remedy for lateness. Indeed, multiple filings of the same document complicates the work of both the Commission and other parties unless they contain a correction of a previous error or omission. It is customary in FCC practice to state that is a filing is a correction of a previous filing. None of the above filings give any indication that they are corrections]

Thus out of 101 ex parte filings in the past year, a few joint with the letter perfect NAB, MSTV, the subject of a longstanding ex parte complaint, was apparently late on 13 -- even while their previous performance was under review at FCC. But since MSTV has never received as much as a warning note from the Commission staff on previous apparent violations, they probably have logically assumed that they are exempt from compliance. It is the clear Pavlovian conclusion from FCC behavior.

Thus it is interesting to read a 7/16/10 comment, actually a late filed comment, from the FCBA Access to Government Committee that says,

While the FCC should enforce its rules, including the ex parte rules, there is no demonstrated need for increased sanctions or a dedicated effort to enhanced enforcement. The FCC should be able to continue to address any violations within its existing remedies.

FCBA guys: It is clear that in the 30 years since the FCC adopted ex parte rules it has consistently shown zero interest in enforcing them. Can you point to any enforcement action FCC has ever taken?

The FCBA group also states

For instance, the NPRM asks for comment on requiring staff filings following ex parte presentations. In our experience, this would be burdensome to staff and would provide a disincentive for staff members to meet with the public. While staff members should be free to submit an ex parte notice, they should not be required to do so.

FCBA guys: Yes there are advantages of the unique system FCC has with respect to FCBA members getting quick appointments with FCC staff. But in this day of e-mail is that so important? Every other federal agency that does rulemaking uses an approach where the staff summarizes the ex parte meeting. If you want the current system to continue shouldn’t you help FCC increase its compliance with respect to your membership? Continued FCC tolerance of the few bad actors could ruin it for all! There appears to be a “code of silence” among the FCBA membership about ex parte complaints not withstanding the requirements of §1.1214

Sec. 1.1214 Disclosure of information concerning violations of this subpart.
Any party to a proceeding or any Commission employee who has substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed shall promptly advise the Office of General Counsel in writing of all the facts and circumstances which are known to him or her.(Emphasis added)

Does the FCBA leadership want us to believe that their their members in the past 30 years have never had “ substantial reason to believe that any violation of this subpart has been solicited, attempted, or committed”? I am willing to believe that compliance might be in the 90% range, but it isn’t perfect.


Related MSS filing in ex parte rulemaking (Docket 10-43)