DA 04-3040

Released: September 23, 2004

GENERAL COUNSEL EMPHASIZES THE PUBLIC'S RESPONSIBILITIES IN\
PERMIT-BUT-DISCLOSE PROCEEDINGS

We emphasize once again the responsibilities that members of the public
have when participating in proceedings classified as permit-but-disclose
under the ex parte rules. [See]{.underline} [Public Notice]{.underline},
15 FCC Rcd 19945 (2000). These proceedings include most
notice-and-comment rulemakings as well as other major proceedings, such
as many mergers, that are classified as permit-but-disclose on a
case-by-case basis. In such proceedings, written and oral ex parte
presentations are permissible provided that the persons making the
presentations comply with the disclosure requirements of 47 C.F.R. §
1.1206(b). The disclosure requirements include the following:

-   Any written material shown to Commission personnel during the course
    of a meeting, even if the materials are not left with the staff, are
    deemed written presentations and must be filed in accordance with
    the rule governing written presentations. [See]{.underline} 47
    C.F.R. §§ 1.1202(a), 1.1206(b)(1).

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-   Persons orally presenting data or arguments not already reflected in
    their written submissions in the proceeding must file summaries of
    the new data or arguments. The summaries must describe the substance
    of the new data or arguments and not merely list the subjects
    discussed. Summaries must disclose a party's requests, positions,
    and reasoning so that opposing parties are able to fully respond.
    Where there is ambiguity about whether data or arguments are already
    in the public record, the spirit of our rules would counsel parties
    to summarize the matters discussed at the meeting. [See]{.underline}
    47 C.F.R. § 1.1206(b)(2).

-   Status inquiries must be disclosed if they: (1) state or imply a
    view as to the merits or outcome of a proceeding, (2) state why
    timing is important to a particular party or indicate a date by
    which a proceeding should be resolved, or (3) otherwise address the
    merits or outcome or influence the timing of a proceeding. A status
    inquiry merely expressing concern about administrative delay or
    expressing concern that a proceeding be resolved expeditiously need
    not be disclosed. [See]{.underline} 47 C.F.R. § 1.1202(a).

-   The duty to ensure the adequacy of ex parte notices filed under 47
    C.F.R. § 1.1206(b)(2) rests with the person making the presentation.
    Staff members have the discretion to request supplemental filings if
    they believe that the original filing is inadequate, but the
    obligation to file a sufficient notice must be satisfied regardless
    of possible requests by the staff.

-   Violations of the ex parte rules may result in a person's
    disqualification from participating in a proceeding, or in other
    sanctions, such as a forfeiture. [See]{.underline} 47 C.F.R. §
    1.1216.

The Commission's ex parte rules enhance participation in
permit-but-disclose proceedings and protect the integrity of the
Commission's processes by ensuring the transparency of these
proceedings.

Action by the General Counsel.

-FCC-