Readers may recall that FCC ex parte rules and their enforcement have been a recurring topic here. FCC has a unique ex parte procedure among the scores of federal agencies, both independent commissions and Executive Branch agencies, that issue regulations.

• Only FCC requires the outside party to file a summary of any face-to-face meeting/telephone call/ and any written documents such as e-mail and depends solely on that filing to document the exchange of information. (Note that some outside parties may see an advantage to “game” the system by delaying or obfuscating public disclosure of points they make to FCC officials
• All other agencies use their staff to summarize the interaction although they include any documents that were presented.

Thus the timely filing of a valid description of the interaction is necessary to fulfill the transparency goals of the FCC’s ex parte rules.

Until January 11, 2011 FCC had never even sent an official violation notice to any outside party for a violation of these rules! All violations were handled informally “between gentlemen” with no public disclosure. Indeed, outside complaints were almost always dismissed also without public disclosure.

The ex parte rule update was adopted on February 1, 2011 and became effective June 1, 2011. In adopting the new procedures the Commission stated:

We will, however, amend our rules to require that the General Counsel refer any case in which a forfeiture or a citation may be warranted to the Enforcement Bureau for disposition and we will delegate authority to the Enforcement Bureau to levy fines for violations of the ex parte rules. In the event the Enforcement Bureau ultimately determines that a forfeiture or a citation is not warranted, the General Counsel will take appropriate action on the matter.

The Docket 10-43 Report & Order gave no legal citation on how the FCC has authority to levy such forfeitures, which your blogger believes exceeds the statutory provisions of Title V of the Communications Act - but, heck, he’s not a lawyer. But it was curious that there was no sign of any such a forfeiture until yesterday.



Over a year ago, FCC sent a letter to the Alaska Railroad Corporation, which is owned by the State of Alaska, stating it had violated the ex parte rules because an employee had sent an e-mail with attachments to an FCC staffer dealing with a rulemaking and both failed to file a copy in the docket and again failed to do so when asked by the FCC staffer. The letter referred the issue to eh FCC’s Enforcement Bureau for “possible action”. Your blogger was curious about this when there was nothing on the public record 9 months later and filed a FOIA request. The request was greeted with quibbling from FCC about his eligibility for FOIA requests without charge and at one point FCC/OGC stated that 9 hours of GS-15 time was needed to comply with this FOIA request! However, in order to simplify and resolve this issue quickly your blogger agreed to narrow the scope of the request and today received a “Valentine’s Day present” of the Consent Decree shown above, dated February 14, 2013.

In the Consent Decree, Alaska Railroad agrees to a 2.5 page “compliance plan” (p. 4-7) and “a voluntary contribution to the United States Treasury in the amount of ten thousand dollars ($10,000)”. Now Alaska Railroad is not a major participant in FCC proceedings, indeed it has not filed anything in ECFS during the past 10 years. Either they are the most wanton violator of ex parte rules or they are a “country bumpkin” outside of the Beltway who rarely deals with any FCC issue. But I guess they were an easy target without a major FCBA member representing them. (While your blogger was an FCC employee, he dealt with such occasional problems of the uninformed without proper representation by simply forwarding the communication that wasn’t filed to the Secretary’s Office and asking that it be filed.) The “compliance plan” doesn’t seem very relevant for such a regulatee that rarely interacts with FCC, but hopefully it will set a precedent for more mainstream players.

So a precedent has been set for fines and compliance plans in case of violations. Someday FCC will lock horns with a violator who will litigate whether Title V provides for such types of fines, but until then parties may find it cheaper to just pay $10,000 if FCC asks. The compliance plan looks like a good idea and if the former AMST was still around I would suggest that its should have such a plan, but MST has been absorbed by NAB which was a clean ex parte record.

Tags: ex parte, enforcement