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.

Tags: ex parte, enforcement

FCC has had ex parte rules on its books since the late 1970s. The Commission is unique among administrative agencies in the federal government in requiring outside parties to make filings about their ex parte meetings with Commission officials - as far as I can tell every other administrative agency in the federal government has its staff write up memos about such meetings and inserts them into the public record. Only FCC depends on filings by external parties who have mixed incentives with respect to transparency.

On June 1, 2011 major changes to the ex parte rules went into effect along with a promise of greater enforcement. As far as I can tell the only enforcement in the previous 30 + year was one letter sent from the former Cable Services Bureau. Never any action from the Office of General Counsel responsible for ex parte enforcement. A new FCC page on ex parte enforcement reveals a variety of actions in the past year.

In particular the document shown at the top of this post is the first actual finding of a violation EVER! There are 2 other admonitions as well as a referral to the Enforcement Bureau “ to determine whether a forfeiture is warranted”.

Never having attended law school your blogger is still convinced that the threat in the revised rules of fining ex parte violators was a bluff as the terms of Title V of the Comm Act dealing with fines do not permit them in such cases. I note that the R&O adopting the new rules gave no references to the authority for fines.

But, congratulations to OGC for taking the first steps in enforcement. Maybe after they try enforcing the rules they will learn how impractical they are and recommend using the process that the rest of the federal government has used for 30 years.

Tags: ex parte

Tags: ex parte

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.

• 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.

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.

(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.

Yesterday, more than a month after it was adopted by the Commission, the ex parte reform NPRM was finally published in the Federal Register. This has the effect of determining the comment period since it is always relative to FR publication:

This late publication raises two questions in view of the Commission’s stated interest in transparency:

1. Why did this important NPRM take so long to be published? Sometimes delays are due to unusual formatting problems such as tables, but that was not the case here.

2. Why doesn’t the Commission give a simple table with the actual due date of comments? OET used to publish such a table for its proceedings. Why does the public have to keep searching the for FR publication dates?

The key information on the comment dates is reprinted here for your convenience:

DATES:

“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.”

UPDATE