[Federal Register Volume 63, Number 135 (Wednesday, July 15, 1998)]
[Proposed Rules]
[Pages 38142-38143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18837]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[GC Docket No. 98-73; FCC 98-98]


Permit-But-Disclose Proceedings

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes to amend its regulations concerning ex 
parte presentations as applied to Joint Board proceedings and 
proceedings before the Commission involving a recommendation from a 
Joint Board. In such proceedings, the Commission proposes to require 
disclosure of presentations by state commissions, their members, and 
their staffs to Joint Boards and the FCC only if the presentations are 
of substantial significance and clearly intended to affect the ultimate 
decision. The intended effect of this proposal is to facilitate 
communications by the states in Joint Board proceedings.

DATES: Comments must be filed on or before August 14, 1998; reply 
comments must be filed on or before August 31, 1998.

ADDRESSES: Federal Communications Commission, Room 610, 1919 M Street 
NW., Washington DC 20554.

FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General 
Counsel (202) 418-1720.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), GC Docket No. 98-73, adopted on June 26, 
1998, and released June 30, 1998. The full text of the NPRM is 
available for inspection and copying during normal business hours in 
the FCC Reference Center (Room 239), 1919 M Street NW., Washington, DC. 
The complete text may also be purchased from the Commission's copy 
contractor, International Transcription Service, Inc., 1231 20th 
Street, Washington, DC 20036, telephone (202) 857-3800.

Summary of Further Notice of Proposed Rule Making

    1. The provisions of the Communications Act recognize the strong 
public interest in the cooperation of the FCC and the states in 
deciding questions relating to common carriers. Section 410(c) of the 
Act, 47 U.S.C. 410(c), requires the establishment of Federal-State 
Joint Boards with respect to any matter concerning jurisdictional 
separations of common carrier property, and, with the exception of 
adjudications designated for hearing, allows the Commission to refer to 
a Joint Board any other matter relating to common carrier 
communications of joint federal-state concern. See also 47 U.S.C. 
410(a). Joint Boards are empowered to issue recommended decisions for 
review and action by the Commission. They have played a key role in 
deciding crucial public policy issues regarding common carriers.
    2. Joint Boards are subject to the Commission's ex parte rules (47 
CFR 1.1200 et seq.), which are intended to ensure fairness in 
Commission proceedings. See generally, Report and Order in GC Docket 
No. 95-21, 62 FR 15852 (April 3, 1997), 12 FCC Rcd 7348 (1997), pet. 
recon. pending. Under these rules, Joint Board proceedings and

[[Page 38143]]

proceedings before the Commission involving a recommendation from a 
Joint Board are classified as ``permit-but-disclose.'' 47 CFR 
1.1206(a)(8). Ex parte presentations to decisionmakers are permissible 
but must be disclosed on the record in accordance with the procedures 
set forth in the rules. 47 CFR 1.1206(a). Accordingly, all persons, 
including the states, must file copies of written ex parte 
presentations <SUP>1</SUP> to Joint Boards or the Commission for 
inclusion in the record and must file memoranda of new arguments or 
data contained in oral ex parte presentations.<SUP>2</SUP>
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    \1\ 47 CFR 1.1206(b)(1). Written ex parte presentations are 
written communications directed to the merits or outcome of a 
proceeding that are not served on all parties to the proceeding. 47 
CFR 1.1202(b)(1).
    \2\ 47 CFR 1.1206(b)(2). Oral ex parte presentations are oral 
communications directed to the merits or outcome of a proceeding 
that are made without giving advance notice to the parties and an 
opportunity for them to be present. 47 CFR 1.1202(b)(2).
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    3. The Commission believes that the public interest served by this 
joint federal-state decisionmaking would be further enhanced by 
allowing appropriate persons from individual states somewhat more 
freedom to communicate informally with the Joint Board and the 
Commission. Specifically, as with Congress and the Executive Branch, 
the Commission proposes that presentations from state commissions, 
their members, and their staffs in Joint Board proceedings only be 
required to be disclosed if they are of substantial significance and 
clearly intended to affect the ultimate decision. This will allow the 
states a greater opportunity, for example, to discuss issues informally 
with the Commission and state Joint Board members and staff and thus 
will lead to a deeper, more vigorous level of federal-state 
cooperation. These states may also elect to participate in the process 
by filing formal comments, but the proceedings involved are policy-
oriented rulemakings, rather than the kind of adjudicatory proceedings 
in which the significance of party status would be more pronounced.
    4. The Commission therefore invites the states and other interested 
persons to comment on the following question: should the ex parte rules 
for Joint Board proceedings and proceedings before the Commission 
involving a recommendation from a Joint Board be modified to provide 
that those presentations made by states to Joint Boards or the 
Commission (or their respective staffs) must be disclosed only if they 
are of substantial significance and clearly intended to affect the 
ultimate decision?

Initial Regulatory Flexibility Certification

    5. Section 603 of the Regulatory Flexibility Act, as amended, 
requires a final regulatory flexibility analysis in a notice and 
comment rulemaking proceeding unless we certify that ``the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' 5 U.S.C. 605(b). We believe 
that the rule we propose today will not have a significant economic 
impact on a substantial number of small entities.
    6. As noted above, our purpose in proposing to modify the ex parte 
rules is to facilitate the participation of states in Joint Board 
proceedings and proceedings before the Commission involving a 
recommendation from a Joint Board. The proposed rule does not impose 
any additional compliance burden on persons dealing with the 
Commission, including small entities. The new rule would reduce the 
reporting requirements applicable to the states under the current rules 
and would not otherwise affect the rights of persons participating in 
Commission proceedings. There is no reason to believe that operation of 
the new rule would impose any costs on parties to Commission 
proceedings.
    7. Accordingly, we certify, pursuant to section 605(b) of the 
Regulatory Flexibility Act, as amended by the Contract with America 
Advancement Act of 1996 (CWAAA), Pub. L. 104-121, 110 Stat. 847 (1996), 
that the rules will not have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b). The Commission 
shall send a copy of this Notice of Proposed rulemaking, including this 
certification, to the Chief Counsel for Advocacy of the SBA. 5 U.S.C. 
605(b).

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Radio, Telecommunications, 
Television.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations is proposed 
to be amended as follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise 
noted.

    2. Section 1.1206 is amended by revising paragraph (a)(8) and 
paragraph (b)(3) to read as follows:


Sec. 1.1206  Permit-but-disclose proceedings.

    (a) * * *
    (8) A proceeding before a Joint Board, a proceeding before the 
Commission involving a recommendation from a Joint Board or a 
proceeding before the Commission involving further actions that may be 
required in any such proceeding;
    (b) * * *
    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, 
in permit-but-disclose proceedings presentations made by members of 
Congress or their staffs or by an agency or branch of the Federal 
Government or its staff shall be treated as ex parte presentations only 
if the presentations are of substantial significance and clearly 
intended to affect the ultimate decision. In proceedings before a Joint 
Board, proceedings before the Commission involving a recommendation 
from a Joint Board or proceedings before the Commission involving 
further actions that may be required in any such proceeding, 
presentations from a state commission, one or more of its members or 
its staff regarding the proceeding shall be treated as ex parte 
presentations only if the presentations are of substantial significance 
and clearly intended to affect the ultimate decision. The Commission 
staff shall prepare a written summary of such oral presentations 
covered by this subparagraph and place them in the record in accordance 
with paragraph (b)(2) of this section and place such written 
presentations covered by this subparagraph in the record in accordance 
with paragraph (b)(1) of this section.
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[FR Doc. 98-18837 Filed 7-14-98; 8:45 am]
BILLING CODE 6712-01-P