TR Daily FCC Proposes Updates to Ex Parte Rules
Friday, July 10, 2020

FCC Proposes Updates to Ex Parte Rules

The FCC has proposed “several modest but important updates” to its rules governing ex parte communications about matters pending before the Commission, including exempting government-to-government consultations between the FCC and federally recognized tribal nations, exempting communications with the toll-free numbering administrator and the reassigned number database administrator, and requiring that “all written ex parte presentations and written summaries of oral ex parte communications (other than presentations that are permitted during the Sunshine period) be submitted before the Sunshine period begins and to require that replies to these ex parte presentations be filed within the first day of the Sunshine period.”

In a notice of proposed rulemaking (NPRM) adopted on Wednesday and released late yesterday in GC docket 20-221, the FCC noted that it last updated its ex parte rules in 2011. “While these updated rules have served the Commission well, nearly ten years of experience with them has revealed a few areas in which they could be improved,” it said.

Comments will be due 30 days after publication of the notice in the “Federal Register.” Replies will be due 15 days later.

Explaining the proposal regarding communications with tribal nations, the NPRM notes that the FCC “has created exemptions from the ex parte rules for communications with particular parties where the circumstances require a greater degree of confidentiality than the rules would otherwise permit. Many of these exemptions are subject to conditions appropriate to the circumstances of each exemption. For example, presentations involving a military or foreign affairs function of the United States or classified security information are exempt from disclosure requirements and Sunshine restrictions without limitation. Presentations to or from an agency or branch of the federal government involving a matter of shared jurisdiction with the Commission are similarly exempt, but this exemption is subject to the condition that the Commission disclose any new factual information adduced from these presentations that it relies on [in] its decision-making.”

It further notes that “[t]he relationship between the United States Government and federally recognized Tribal Nations is unique. The federal government has a trust relationship with Indian Tribes, and this historic relationship requires the federal government to adhere to certain fiduciary standards in its dealings with Indian Tribes. Certain statutes also impose legal obligations on the Commission to consult with Tribal governments regarding categories of actions that could affect Tribal interests. In recognition of this relationship, the Commission has established a policy to consult with Tribal governments, to the extent practicable, prior to implementing any regulatory action or policy that will significantly or uniquely affect Tribal governments, their land and resources. The consultation process implies a frank exchange of information and views, with the goal of reaching common understandings to the extent practicable.”

“In light of this unique relationship and to facilitate consultation, we propose to adopt a new exemption for government-to-government consultations with federally recognized Tribal Nations that relate to permit-but-disclose proceedings. While we encourage Tribal Nations and their representatives, like other parties, to file comments and reply comments that may be considered on the record in such proceedings, we recognize their interest in consulting on a government-to-government basis without concern about documenting such consultations on the rulemaking record in every case,” the NPRM says.

The NPRM also notes that the ex parte rules already contain exemptions from disclosure requirements for presentations to the administrators of certain agency programs, such as the Universal Service Administrative Co. and the TRS (telecommunications relay service) numbering administrator. It proposes extending that exemption to toll-free numbering administrator and the reassigned number database administrator.

Regarding the proposed requirements for written filings relative to the sunshine period, the NPRM explains, “As we have previously explained, the purpose of the Sunshine period is to provide decisionmakers ‘a “period of repose” during which they can be assured that they will be free from last minute interruptions and other external pressures, thereby promoting an atmosphere of calm deliberation.’ The prohibition also provides the Commissioners and staff a period to consider a fixed record, rather than continuing to analyze new data and arguments.

“Currently, however, the ex parte rules allow some ex parte presentations and replies to be submitted to the Commission after the ‘period of repose’ has begun; the Commission does not apply the Sunshine prohibition to the filing of a written ex parte presentation or a memorandum summarizing an oral ex parte presentation made on the day the Sunshine notice is released (which is the day before the Sunshine period begins). In those cases, the ex parte filing must be submitted no later than the end of the next business day, and replies are due 24 hours after that,” it adds. —Lynn Stanton, [email protected]

MainStory: FederalNews FCC

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