We reiterate the tentative conclusion in the Notice that stricter enforcement
of our ex parte rules complements the improvements to the rules we are
adopting today and reinforces their purpose in making our proceedings
more open and transparent to the public and fairer to
interested parties. -- R&O&FNPRM, Docket 10-43 2/2/11

On August 25, 2008, Marcus Spectrum Solutions filed a Petition for Review with FCC dealing with the rejection by OGC of a previous complaint complaint about MSTV’s apparent violation of the Commission’s ex parte rules.

905 days later, on February 16, 2011, the Commission released a Memorandum Opinion and Order (MO&O) denying the application for review. The MO&O was thus released 2 weeks after the Commission adopted changes to the ex parte rules in Docket 10-43 in the decision quoted at the top of this entry.

The start of this string of events was my October 13, 2006 letter to the FCC General Counsel. During the pendency of Docket 04-186, I noticed that MSTV was often late in their ex parte filings and often so cryptic that one did not know what was discussed. Having been away from FCC for 2 years and living overseas at the time, I wondered if maybe this had become common practice. A search through ECFS for major parties practicing before FCC quickly showed that MSTV was actually an outlier and that other corporations and trade associations were consistently compliant with the rules. So I pointed out to the then GC 16 MSTV filings that appeared to violate the rules.

The letter to OGC was answered on March 30, 2007, 168 days later. It informed me that OGC was “aware of no complaints against MSTV by other parties” - apparently indicating that my enumeration of 16 filings apparently in violation of the rules did not constitute a “complaint”. In dealing with subsequent clearly labeled complaints it became clear that OGC was repeating the FCC’s discredited approach to indecency complaints in the 1980s - a “shell game” approach where each complaint was dismissed for a technicality that failed to meet the threshold for Commission consideration.

Thus the appeal of the Commission of the 3rd OGC dismissal of a complaint. In the process of denying the review, the Commission is in denial about the fact that previous complaints were rejected for the following reasons that do not exist in either the rules or formal precedents:

· a requirement that only parties with standing in a proceeding can file complaints;
· an unspecified “statute of limitations” on the timeliness of complaints;
· a standard of compliance that is the practice of other parties in the same proceeding;
· attaching importance to the presence of multiple complaints; and
· a requirement that the complainant prove substantial harm.

Nevertheless, the Commission then dismisses the MSS request that MSTV receive a formal warning about previous violations by concluding “we agree with OGC that Marcus’s complaints have failed to demonstrate significant non-compliance with the ex parte rules by MSTV under the applicable standards.” (para. 23)

However, after all was said and done, MSTV has quietly moved into compliance with the ex parte rules! The last late ex parte filing by MSTV was 11 months ago! A review of their recent ex parte filings shows that this has been achieved in conjunction with making many presentations joint with NAB - which, in contrast to MSTV, has always had an immaculate record in this area - and by using Covington & Burling for most other ex parte filings.

So the record of the appeal is mixed: it established a precedent that “significant non-compliance” is necessary for even a formal warning but it did move MSTV into compliance. For better or for worse, it is also the first Commission action on ex parte enforcement in the 30+ years since FCC adopted its unique approach to dealing with ex parte meetings - something without a counterpart in all other federal agencies dealing with rulemakings.