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FCC Revises Rules for Reporting Ex Parte Communications

May 2011

On Monday, May 2, 2011, the Federal Register published the Federal Communications Commission's (FCC) March 2011 Report and Order (R&O) and Further Notice of Proposed Rule Making (FNPRM) to amend its rules governing ex parte presentations made in rule making and other permit-but-disclose proceedings. The Federal Register publication of the R&O and FNPRM establishes the effective date of the new rules and the comment and reply dates for the FNPRM.

Barring further complications, the new ex parte rules adopted in the R&O will become effective on June 1, 2011.  In the R&O, the FCC generally expanded parties' obligations to file "ex parte notices" to describe meetings with FCC staff in rule making and permit-but-disclose proceedings.  Under the revised rules, ex parte notices must be filed in connection with all oral ex parte presentations in such proceedings. The revised requirement applies even if the ex parte presentation is limited to issues and arguments that are already contained in a proceeding's record. Under the new rules, ex parte notices must also contain a list of all individuals present at the presentation, as well as a complete description of the arguments made. However, arguments that are already in the record may be disclosed through a citation rather than a full summary.

Through the R&O, the Commission also implemented several technical changes to its ex parte rules.  The agency has mandated that parties file ex parte notices through the Commission's ECFS system in a searchable electronic format. (The FCC also revised its rule to accommodate ex parte notices that contain confidential information.)  In part because of the new electronic filing requirement, the Commission extended the deadlines to file ex parte notices. 

In the FNPRM, the Commission seeks comment on a proposal to require parties to provide enhanced disclosure about real parties-in-interest. Specifically, the FNPRM asks whether it is sufficient to apply enhanced disclosure obligations on ex parte filings or whether such a rule should be expanded to apply to all or certain categories of FCC proceedings. The item also solicits comments on how enhanced disclosure requirements would apply to different categories of entities. Finally, the FNPRM queries whether disclosure is appropriate in cases where the information is easily found among the Commission's records or on an entity's website. Comments must be filed by June 16, 2011, and reply comments must be filed by July 18, 2011.