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New ex parte Rules Now in Effect

On June 1, the FCC’s new ex parte rules when into effect. ex parte reform has been a recurring topic here and it is gratifying to see that many of the ideas explored here were adopted, although some suggestions were ignored for reasons that are hard to explain.

In honor of the effective date, the Commission released a 72 minute video, linked to the above photo of an FCBA workshop on the new rules that clearly explains them.

The Commission has never taken any enforcement action in this area in more than 30 years! The new rules are more practical and GC Schlick promises enforcement action. However, he also talks about the delegation of authority to EB to issue NALs/fines for violations. While fines sound appealing, the R&O adopting the new rules never really explains how such fines are within the FCC’s jurisdiction. In particular, fines are authorized by Section 501 and 502 of the Communications Act. 501 deals with things required or prohibited by the Act and 502 deals with “rules ...made or imposed by the Commission under authority of this chapter”. Never having attended law school, I never the less doubt if a violation of these particular rules fits into either category. I recall that for years FCC threatened fines for violations of Part 68 when it clearly had no legal authority to do so.

So we will see if FCC follows up on its promise to start enforcement. And if they do so we may soon see a legal test of whether fines are a valid weapon here.
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