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NTIA's Limited Exemption from FCC Ex Parte Rules

§ 1.1204 Exempt ex parte presentations and proceedings.
(a) Exempt ex parte presentations. The following types of presentations are exempt from the prohibitions in restricted proceedings …

(5) The presentation is to or from an agency or branch of the Federal Government or its staff and involves a matter over which that agency or branch and the Commission share jurisdiction provided that, any new factual information obtained through such a presentation that is relied on by the Commission in its decision-making process will, if not otherwise submitted for the record, be disclosed by the Commission no later than at the time of the release of the Commission's decision;

It is conventional wisdom, even among experienced communications attorneys, that NTIA is “exempt” from FCC’s ex parte rules. The FCC says the purpose of these rules is as follows

Our ex parte rules play an important role in protecting the fairness of the FCC's proceedings by assuring that FCC decisions are not influenced by impermissible off-the-record communications between decision-makers and others. At the same time, the rules are designed to ensure that the FCC has sufficient flexibility to obtain the information necessary for making expert decisions.

The actual rule involved, 47 C.F.R. 1.1204, is shown at the top of this post. The Commission reviewed and updated its ex parte rules recently in Docket 10-43 in which MSS commented with little impact.

However, the Commission recently reopened part of this issue when in para. 40 of the NPRM of ET Docket No. 13-115 dealing with “Federal Earth Stations Communicating with Non-Federal Fixed Satellite Service Space Stations and Federal Space Station Use of the 399.9-400.05 MHz” it asked

We invite comment on how we might continue to protect against harmful interference to or from Federal earth station operations in a manner that is consistent with the coordination practice as set forth in the MOU, while at the same time ensuring transparency, fairness, and integrity in the Commission’s decision making process.

MSS filed comments recently replying to this invitation and addressing 2 issues of ex parte practice by federal users regulated by NTIA pursuant to Section 305 and 902 of the Communications Act.

First, while the above quoted §1.1204 requires

“any new factual information obtained through such a presentation that is relied on by the Commission in its decision-making process will, if not otherwise submitted for the record, be disclosed by the Commission no later than at the time of the release of the Commission's decision;”

either NTIA is not being consistent in doing so or FCC and NTIA have a non obvious interpretation of this requirement. Usually NTIA complies with the letter of §1.1204 with an “11th hour” the day prior to the FCC’s decision. However, in the case of Docket 10-236, the revision of the FCC’s experimental license rules in Part 5, there is no filing from NTIA or any other federal agency on record. Since many bands covered by experimental licenses were bands shared with federal users and since the proposed new “program licenses” offered new interference issues with both federal and nonfederal incumbent users, it is very hard to believe that NTIA did not indicate some position to FCC.

Perhaps NTIA, with condoning behavior by FCC, has a nonobvious interpretation of §1.1204, perhaps as twisted as NSA’s interoperation of the Patriot Act and FISA. SpectrumTalk suggests that readers and commenters in Docket 13-115 ask NTIA how it actually interprets § 1.1204 and why there was no NTIA filing in Docket 10-236.

The MSS comments also pointed out the “NTIA ex parte loophole” that has been repeatedly discussed in this blog. This is the practice of private parties using NTIA staff to bypass the transparency provision so the ex parte rules and to send negative information to FCC via NTIA so the party on the opposite side does not find out in a timely way what the new issue is and is unable to rebut it quickly.

Your blogger saw this repeatedly drink the UWB rulemaking where cellular interests and GPS interests used NTIA as their covert pipeline to FCC decision makers. In an FCBA public forum at FCC at that time, then NTIA Administrator Gallagher even acknowledged that he would receive such ant-UWB allegation and immediately call a top FCC manager with them!

MSS raised this issue in Docket 10-43 comments. Oddly, the Report & Order in that proceeding mischaracterized the MSS comments as proposing to “delete” the provisions of §1.1204 that apply to NTIA and then dismissed the suggestion as a reductio ad absurdum - a cute debating trick. The issue is not whether NTIA should be allowed easier access to FCC on matters of common jurisdiction, but rather whether private parties should abuse this provision to keep information off the public record so it can not be rebutted.

MSS continues to urge that NTIA document in the FCC docket file all contact with private parties, other than government contractors, that are clearly intended to influence FCC proceedings subject to
ex parte rules.
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