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                            Before the
                FEDERAL COMMUNICATIONS COMMISSION
                      Washington, D.C. 20554


In the matter of                   )
                              )
Amendment of 47 C.F.R.  1.1200    )    GC Docket No. 95-21
et seq. Concerning Ex Parte        )
Presentations in Commission        )
Proceedings                        )
                         


                         REPORT AND ORDER

          Adopted:  March 13, 1997 ;  Released:  March 19, 1997


By the Commission:  




                        TABLE OF CONTENTS

                                                        Paragraph

I.  INTRODUCTION                                                1
II.  BACKGROUND                                                 4
III.  CLASSIFICATION OF PROCEEDINGS
     A.  General approach                                       6
     B.  Definition of a party                                 14
     C.  Restricted proceedings                                16
     D.  Exempt proceedings                                    27
     E.  Permit-but-disclose proceedings                       32
IV.  SUNSHINE PERIOD PROHIBITION                               36
V.  OTHER COMMISSION PROPOSALS
     A.  Notices of oral presentations in permit-but-disclose proceedings43
     B.  Duty to notify the Office of General Counsel of potential ex parte problems51
     C.  Treatment of electronic mail                          55
     D.  Public notice of ex parte presentations               57
     E.  Transfer of functions                                 59
VI.  ADDITIONAL CHANGES AND PROPOSALS FROM THE COMMENTERS        
     A.  Status of exempt presentations by government agencies and others60
     B.  Definition of ex parte presentations                  67
VII.  REGULATORY FLEXIBILITY CERTIFICATION                     71
VIII.  ORDERING CLAUSES                                        74


                         I.  INTRODUCTION

     1.  In this Report and Order, we amend our rules governing ex parte presentations in
proceedings before the Commission.  Ex parte presentations are communications directed to
the merits or outcome of a proceeding which, if written, are not served on the parties to the
proceeding or, if oral, are not preceded by notice to the parties and an opportunity for the
parties to be present.  The rules specify under what circumstances ex parte presentations are
permissible in Commission proceedings, under what circumstances they must be disclosed on
the record, and under what circumstances they are prohibited.  The ex parte rules do not
otherwise affect the rights of persons to participate as "parties" to a Commission proceeding. 
Most prominently, we simplify the method for determining which proceedings are "restricted"
under the ex parte rules and thereby subject to the prohibition on ex parte presentations.  We
also make an exemption to the Sunshine Period prohibition for widely attended speeches or
panel discussions in exempt or permit-but-disclose proceedings, transfer responsibility for
dealing with alleged ex parte violations from the Office of Managing Director to the Office of
General Counsel, and make various minor changes in the rules.   

     2.  We believe that the rules as amended, which are set forth in Appendix B, are
simpler and clearer, and thus more effective in ensuring fairness in Commission proceedings. 
The amendments will make it easier for persons to determine their status under the rules and
will provide more frequent reporting by the Commission of when ex parte presentations occur. 
We stress that the ex parte rules are important and that full compliance is expected.  See
generally Press Broadcasting Co. v. FCC, 59 F.3d 1365 (D.C. Cir. 1995).  

     3.  The new rules will become effective 30 days after publication in the Federal
Register and will then apply to all pending and new FCC proceedings, except for individual
pending proceedings where the Commission or the staff has issued an order, letter, or public
notice to govern the ex parte status of that individual pending proceeding.  Specific pending
proceedings within this exception will be governed by whatever ex parte rules the Commission
or the staff previously established for that proceeding.        

II.  BACKGROUND  

     4.  In the Notice of Proposed Rulemaking in this proceeding,  we proposed to revise
our ex parte rules to make them simpler and clearer.  Amendment of 47 C.F.R.  1.1200, 10
FCC Rcd 3240 (1995) (Notice).  In so doing, we sought to enhance the ability of the public to
communicate with the Commission in a manner that comports with fundamental fairness.  The
Notice proposed to simplify the system for classifying how ex parte presentations are treated in
various proceedings.  The Notice also proposed certain modifications in the Sunshine Period
prohibition contained in the rules and miscellaneous proposals for making the rules more
effective.  

     5.  We received seventeen comments and five reply comments in response to our
Notice, which are listed in Appendix A to this Report and Order.  Additionally, the Federal
Communications Bar Association (FCBA), on April 25, 1995, sponsored a seminar on our
proposals.  The seminar generated extensive discussion of matters raised in the Notice.  (An
audio recording of this seminar and written materials distributed during the seminar have been
placed in the record of this proceeding.)  Our examination of these comments has persuaded us
to depart from our proposals in some respects and, generally, to retain more of the existing
rules than we originally proposed.  In addition to the revisions specifically discussed below, we
have made some minor stylistic changes to enhance the clarity of certain provisions. 

               III.  CLASSIFICATION OF PROCEEDINGS

A.  General approach

     6.  Our principal proposal concerned the system for classifying proceedings as
restricted, permit-but-disclose (non-restricted), and exempt.  10 FCC Rcd at 3241-45  9-37.  
In restricted proceedings, ex parte presentations are generally prohibited.  In permit-but-
disclose proceedings, ex parte presentations are permissible, but generally must be disclosed. 
Such disclosure is accomplished by placing any written presentations in the record or, if the
presentation is oral, by placing in the record a memorandum containing any data or arguments
not already reflected by that person's written submissions in the proceeding.  Finally, in
exempt proceedings, ex parte presentations generally may be made without limitation.

     7.  In the Notice, we generally proposed to reduce significantly the category of
proceedings that would be classified as restricted.  We proposed to treat as restricted only
those proceedings in which ex parte communications are barred by the Administrative
Procedure Act.  Under the proposal, only proceedings designated for formal evidentiary
hearing and proceedings involving mutually exclusive applications to be decided by hearing
would be restricted.  The Commission reserved the right to restrict other proceedings on a
case-by-case basis.  We further proposed to limit the types of proceedings that would be
exempt to notice of inquiry proceedings and complaints not served on the subject of the
complaint.  (Formal complaints under 47 U.S.C.  208 and 47 C.F.R.  1.721 would,
however, be treated as permit-but-disclose proceedings.)   All other proceedings would be
subject to permit-but-disclose procedures. 

     8.  As discussed below, the commenters have persuaded us to depart from the proposals
contained in the Notice in several respects.  We believe that the approach we adopt here will
serve our primary goal of making it easier to determine the ex parte status of a proceeding.  At
the same time, the approach will ensure fundamental fairness in Commission proceedings and
minimize confusion among persons accustomed to our existing rules.   

     9.  Our primary proposal -- to treat most adjudications not designated for formal
hearing ("informal adjudications") as permit-but-disclose proceedings -- provoked considerable
controversy.  Under current rules, such proceedings are generally treated as restricted
proceedings as soon as more than one party is formally involved in the matter.  Some
commenters agreed with our proposal and with the analysis in the Notice that permit-but-
disclose procedures are adequate to preserve the fairness of these informal adjudicatory
proceedings and that more relaxed procedures would facilitate beneficial communication
between the Commission and the public.  
 
     10.  Other commenters, however, raised objections to the broad use of permit-but-
disclose procedures in adjudications. They contended that allowing ex parte presentations in
informal adjudications would foster the appearance that some parties have greater access to the
decisionmaker than others.  In addition, they expressed concern that -- in the case of oral
presentations -- disclosure procedures would neither fully reflect the presentation nor substitute
for an opportunity to be present and thus be unfair to a party.  They also warned that a permit-
but-disclose procedure would encourage the parties to jockey for the opportunity to have "the
last word," thereby undermining the orderliness of the pleading cycle in adjudicatory matters
and potentially causing delay.  The objectors further asserted that prohibiting ex parte
presentations is not a burden on the parties, whereas it would be burdensome for parties to
attempt to monitor the record for ex parte presentations.  Most of the parties addressing this
matter were especially opposed to treating proceedings involving formal section 208
complaints under 47 U.S.C.  208 and 47 C.F.R.  1.721 as permit-but-disclose proceedings.  


     11.  We have been persuaded by the concerns expressed by experienced practitioners
that our proposal would be disruptive in adjudicatory proceedings.  In addition, we do not wish
to adopt a policy that commenters believe would create the appearance of unfairness.  We have
therefore decided to continue to treat as restricted proceedings most informal (i.e., non-
hearing) adjudications.  Similarly, we will continue to treat proceedings involving broadcast
channel allotments as restricted.  
 
     12.  We continue to believe, however, that our ex parte rules will be simpler and more
effective if two of the three categories of proceedings contain shorter lists of covered
proceedings and the third category is a catch-all.  In light of the comments, we now believe
that the catch-all category should be the "restricted" category rather than the "permit-but-
disclose category.  To this end, we have simplified the lists of exempt and permit-but-disclose
proceedings and eliminated the list in the rules specifically setting forth all restricted
proceedings.  

     13.  Under the new rules, if a proceeding is not contained in the simple lists of exempt
and permit-but-disclose proceedings, everyone will be on  clear notice that it is restricted
unless and until its status is altered by the Commission or the staff.  Consistent with our
current practice, specification on a case-by-case basis would only be done in an appropriate
order, letter, or public notice, not orally.  We are amending  1.1200(a) to codify this practice.

B.  Definition of a party 

     14.  Under the amended rules, the key to determining whether ex parte obligations
apply in restricted and permit-but-disclose proceedings is to refer to the definition of a party in
new section 1.1202(d).  If a "party" exists, as defined in that section, any presentations to the
Commission regarding the proceeding would be constrained by the necessity of service or
notice to that party in restricted proceedings (or compliance with permit-but-disclose
requirements where applicable).  The new definition of a party largely tracks the substantive
requirements of the existing ex parte rules by defining a party to include:  (1) any person who
files an application, waiver request, petition, motion, request for a declaratory ruling, or other
filing seeking affirmative relief (including a Freedom of Information Act request), and any
person who files a written submission referencing and regarding such pending filing which is
served on the filer, or, in the case of an application, any person filing a mutually exclusive
application; (2) any person who files a complaint which is served on the subject of the
complaint or which is a formal complaint under 47 U.S.C.  208 and  1.721 of our rules, and
the person who is the subject of such a complaint; (3) any person who files a petition to revoke
a license or other authorization or a petition for an order to show cause and the licensee or
entity who is the subject of the petition; (4) the subject of an order to show cause, hearing
designation order, notice of apparent liability, or similar notice or order, or petition for such
notice or order, or any other person who has otherwise been given formal party status in a
proceeding; and (5) in a rulemaking proceeding (other than a broadcast allotment proceeding)
or a proceeding before a Joint Board or before the Commission to consider the
recommendation of a Joint Board, the general public.  To be deemed a party, a person must
make the relevant filing with the Secretary, the relevant Bureau or Office, or the Commission
as a whole.  Written submissions made only to the Chairman or an individual Commissioner
will not confer party status since such filings do not demonstrate the requisite intent or
formality for party status.  See  1.1202(d)(1) Note 2.   
     15.  The new rules provide several examples of how the rules apply in specific contexts
involving restricted proceedings (see subsection C, below, regarding restricted proceedings). 
See  1.1208, Note 1 Examples.  Specifically, for example, after the filing of an uncontested
application or waiver request, the applicant or other filer would be the sole party to the
proceeding.  The filer would have no other party to serve with or provide an opportunity to be
present at any presentations to the Commission, and such presentations would therefore not be
"ex parte presentations" and would not be prohibited.  On the other hand, in the example
given, because the filer is a party, a third person who wished to make a presentation to the
Commission concerning the application or waiver request would have to serve the filer or
provide the filer with an opportunity to be present.  Further, once the proceeding involved
additional "parties" (e.g., an opponent of the filer who served the opposition on the filer), the
filer and other parties would have to serve each other or give each other an opportunity be
present.  The format of the rules has thus been made shorter and simpler but, in substance, the
ex parte restrictions that apply are generally unchanged.  

C.  Restricted proceedings

     16.  As under the existing rules, our new rules provide that, in restricted proceedings, 
ex parte presentations are prohibited.  Consistent with the above discussion, we conclude that
it is unnecessary to include an extensive list of the specific types of proceedings that are
restricted in our rules, however.  Because this will be the "catch-all" category under our new
rules, we believe that such a list might cause undue confusion.   
 
     17.  To simplify matters, our new rules regarding restricted proceedings eliminate the
need to determine whether a filing in restricted proceedings is a "formal opposition" or a
"formal complaint."  Currently, the rules define a formal opposition or complaint as a 
pleading opposing the grant of a particular application, waiver request, petition for special
relief or other request for Commission action, or a pleading in the nature of a complaint (other
than a section 208 complaint), which meets the following requirements: (1) the caption and text
of a pleading make it unmistakably clear that the pleading is intended to be a formal opposition
or formal complaint; (2) the pleading is served upon the other parties to the proceeding or, in
the case of a complaint, upon the person subject to the complaint;  and (3) the pleading is filed
within the time period, if any, prescribed for such a pleading.  

     18.  In our experience, the timeliness and formality requirements of the definition of a
formal opposition or formal complaint have led to unnecessary complexity.  Accordingly, we
will no longer tie our ex parte requirements to the designation of a pleading, but, as discussed
in subsection B, above, to the "party" status.   In the new definition of a party, we provide that
a person attains party status and becomes entitled to protection from ex parte presentations by
other parties simply upon the filing of a written submission served on an existing party.  See 
1.1202(d)(1), (2).  Thus, so long as a submission is served, party status (and hence the right to
receive service and to be present for oral presentations in a restricted proceeding) occurs
regardless of whether a person's submission would be considered "formal" under the existing
rules or whether the submission is timely.  The new definition of a party expressly notes,
however, that identifying a person as a "party" for purposes of the ex parte rules does not
constitute a determination that such person has satisfied any other legal or procedural
requirements (e.g., timeliness or standing) to be a party for other purposes.  See  1.1202(d)
Note.  


     19.  A special provision applies in the Mass Media context.  The Commission's rules
require broadcast stations to invite listeners and viewers to submit comments when the
Commission is considering new or modified broadcast station license applications or
applications for renewals or transfers of such licenses.  See 47 C.F.R.  73.3580.  It would be
inconsistent with the spirit of this requirement to take any action that might discourage such
informal comments from viewers or listeners or otherwise overly formalize the process. 
Accordingly, we make clear that unlike other written submissions about applications (which,
under our amended rules, must be served on the applicant and any other parties) comments
from individual viewers or listeners regarding a pending broadcast application need not be
served on the applicant.  See  1.1204(a)(8).  Such informal comments will, of course, be
placed in the record regarding the application.  We also make clear that the individual viewers
or listeners filing such informal comments would not become "parties" simply by service of the
comments.  When, however, participation as a party by individual viewers or listeners filing
such comments would be conducive to the Commission's consideration of the application or
would otherwise be appropriate, e.g., the individual has filed a formal petition to deny under
Section 309, the Mass Media Bureau will promptly afford the commenter party status.   See 
1.1202(d) Note 4.

     20.  We shall also treat as restricted all complaint proceedings except for informal
complaints under 47 U.S.C.  208 and 47 C.F.R.  1.716, which we will continue to treat as
exempt, and cable rate complaints under 47 U.S.C.  543(c), which we will treat as exempt or
permit-but-disclose proceedings depending on the circumstances.  See paragraphs 24, 28, and
35, supra.  In formal complaints filed under 47 U.S.C.  208 and 47 C.F.R.  1.721, parties
will include the complainant and target.  In all other complaint proceedings, we will treat as
parties the complainant and the subject of the complaint where the complaint shows that the
complainant has served it on the subject.  If the complaint has not been served, neither the
complainant nor the target will be deemed a party.  See  1.1202(d)(2). 
 
     21.  Under the existing rules, 47 C.F.R.  1.1208(c)(B), formal  208 complaints are
restricted, but informal  208 complaints are exempt.  In the Notice, we proposed to apply
permit-but-disclose requirements to formal  208 complaints and all informal complaints that
are served on the subject of the complaint.  10 FCC Rcd at 3244  29.  Several commenters
opposed our proposal to no longer treat informal  208 complaints as exempt proceedings. 
These commenters argue that typically the large volume of complaints against common carriers
received by the Commission are expeditiously resolved without prejudice to the complainant
through informal discussions with the carrier involved.  The commenters allege that permit-
but-disclose procedures would hinder this process.  Moreover, they maintain that most
complainants are unfamiliar with the Commission's common carrier complaint rules and do not
realize that serving their complaint could have ex parte consequences.  

     22.  Our rules specifically provide that we will informally mediate informal  208
complaints.  47 C.F.R.  1.717.  Only if no satisfactory resolution can be reached in this
manner is the filing of a  formal  208 complaint and the initiation of formal processes
warranted.  47 C.F.R.  1.718.  In recognition of the explicit distinction between informal and
formal processes in common carrier complaint proceedings, we will continue to treat informal
complaints as exempt and formal complaints as restricted.  Except for cable rate complaints
(see paragraph 35,  infra), the Commission has no rules establishing objective distinctions
between formal and informal complaints.  For example, in the cable area, complaints may be
filed through a petition for special relief, which by rule "may be submitted informally, by
letter . . . ."  47 C.F.R.  76.7(b).  Moreover, we are concerned that those complainants who
take the trouble to serve the subject of their complaints in these areas where no objective
requisites are established for formal complaints may have a continuing interest in being
informed of the complaints' progress that would be prejudiced by ex parte presentations. 
Accordingly, complainants in such proceedings who serve their complaint on its subject will be
treated as parties under our ex parte rules.  We will not permit ex parte presentations in such
situations if the complaint shows that the complainant served it on the subject of the complaint. 


     23.  Our new rules eliminate an anomaly under our existing rules whereby technically
the subject of a petition to revoke does not become a party and entitled to the protection of the
ex parte rules until it formally opposes the petition to revoke.  In our definition of a party, we
expressly distinguish a complaint from a petition to revoke a license.  Under the amended
rules, the subject of  a petition to revoke a license would be a party entitled to service, and,
hence, the petitioner would be in violation of our ex parte rules if the licensee were not served. 
See  1.1202(d)(3).  
  
     24.  In the Notice, we observed that a proceeding becomes restricted if it involves
mutually exclusive applications, but, under existing practice, we treat mutually exclusive
"short-form" applications subject to competitive bidding as exempt proceedings until the "long-
form" is filed and formally opposed or unless restricted for some other reason (e.g., a waiver
request).   10 FCC Rcd at 3244 n.15, citing Public Notice, 9 FCC Rcd 6760 (1994).  As a
consequence, prior to the point where long-form applications are filed and formally opposed,
mutually exclusive applicants in auction proceedings may freely communicate with the
Commission concerning their applications, so long as the application has not become subject to
ex parte restrictions for some other reason, e.g., the applicant has filed a waiver request that
has been formally opposed.  We shall now codify this existing practice in our rules by adding a
note to the definition of party in  1.1202(d).  Because the applications are not going to be
compared against each other, we see no prejudice to other applicants to permit ex parte
presentations under those circumstances.  Hence, such applicants are not required, in the
absence of other circumstances that might trigger ex parte restrictions (e.g., requests for
waiver), to serve other applicants or to otherwise comply with ex parte restrictions when they
communicate with the Commission concerning their own applications.  We will also extend
this practice to applications subject to lotteries.  Given the similarities  between proceedings
involving competitive bidding and those involving lotteries, we believe that the two types of
proceedings should be treated the same way for purposes of the ex parte rules.

     25.  To the extent that there has apparently been some confusion, we take this
opportunity to emphasize that all waiver proceedings are restricted, unless there is an order,
letter, or public notice to the contrary.  While the Commission or the staff has discretion under
 1.1200(a) to conclude that certain waiver proceedings involve broad policy issues more than
the rights of specific parties and therefore make such proceedings permit-but-disclose, all
waiver proceedings -- except for those associated with a particular tariff filing -- are restricted
in the absence of such action.  Requests for waiver or for special relief associated with
particular tariff filings have the same ex parte status as does the tariff filing itself.   

     26.  Finally, in new  1.1202(e), to avoid any possible ambiguity, we codify our
existing interpretation that a matter designated for hearing is any matter that has been
designated for hearing before an administrative law judge or which is otherwise designated for
a hearing conducted in accordance with 5 U.S.C.  554.                 

D.  Exempt proceedings   
        
     27.  We shall continue to exempt certain proceedings from ex parte restrictions, and,
for the most part, our rules regarding exempt proceedings will remain unchanged.  Thus,
under the amended rules, exempt proceedings will continue to include notice of inquiry
proceedings (see  1.1204(b)(1)) and informal  208 complaint proceedings.  Analogously, we
will treat cable rate complaints not filed on the standard complaint form required by 47 C.F.R.
 76.951 (FCC Form 329) as exempt.  As with the requirements of formal  208 complaints,
the requirement that cable rate complaints be filed on a specific form establishes a clear
requisite for "formal" cable rate complaints.  Given the choice of such complainants not to use
the required form, we do not believe that any degree of formality for such proceedings is
appropriate under our ex parte rules.  See  1.1204(b)(6).  See also  paragraph 35, infra.  As
under the current rules, however, the Commission may decide on case-by-case basis that a
particular inquiry contemplates the immediate adoption of a binding policy statement.  Under
these circumstances, it would be appropriate to treat the inquiry like a permit-but-disclose
rulemaking.  

     28.  We have decided to depart from our proposal in the Notice, and we now conclude
that petitions for rulemaking (except in a broadcast allotment proceeding, which we have
treated and will continue to treat as restricted) should continue to be treated as exemptproceedings, as under the current rules.  See  1.1204(b)(2).  Like a notice of inquiry, a
petition for rulemaking initiates a process that is tentative and preliminary to the consideration
of a proposed rule.  Therefore, it is desirable to permit the maximum degree of free
discussion, and there is no danger of prejudicing interested persons.  

     29.  The proposal contained in the Notice also had the effect of applying permit-but-
disclose requirements in tariff proceedings even before they were set for investigation. 
Currently, such proceedings are exempt from ex parte restrictions.  Only one commenter
agreed with this proposal, arguing that permit-but-disclose procedures are necessary to protect
the rights of those objecting to tariff filings.  Several commenters, however, strongly urged
that tariff proceedings should remain exempt, as under current policy, until they are set for
investigation.  These commenters contend that there is an overriding need for the flexibility
provided by informal discussions between the carrier and the Common Carrier Bureau staff to
clarify complex technical issues involved in tariff filings in a timely, cost-effective fashion.  

     30.  We agree with the commenters that, prior to an investigation, the tariff review
process was not intended to be a formal adversarial process or to result in a final decision and
that investigatory and complaint procedures are the appropriate means of resolving issues that
cannot be dealt with informally on an ex parte basis.  We also agree that the current practice
worked well and has not raised problems of fairness.  In view of the comments, which are
consistent with our own experience, we conclude that the existing practice of treating pre-
investigation tariff proceedings -- including associated requests for waiver and for special relief
-- as exempt should not be changed.  See  1.1204(b)(3).  

     31.  Finally, because of our new rule defining a "party," discussed above at paragraphs
14-15, and because some listings of exempt proceedings appear unnecessary in order to
determine the proper classification and may be confusing, some provisions of the existing rules
for exempt proceedings (and associated rules) have been deleted.  See existing  1.1204(a)(1)
(unopposed adjudication), (a)(3) (unopposed FOIA request), (a)(8) (unopposed request for
declaratory ruling), (a)(9) (certain rulemakings), (a)(10) (section 221(a) proceeding), (a)(11)
(section 214(a) proceeding).      

E.  Permit-but-disclose proceedings  

     32.  We now turn to the applicability of permit-but-disclose procedures in Commission
proceedings.  As a preliminary matter, we note that in our Notice, we proposed using the term
"permit-but-disclose" to replace the existing term "non-restricted" because it is more
descriptive.  10 FCC Rcd at 3242  13.  The FCBA supported this change, and we adopt it.  

     33.  As a general matter, we see no reason to change the treatment of most permit-but-
disclose proceedings as we have encountered no difficulties or objections.  Accordingly, the
following proceedings will continue to be treated as permit-but-disclose: (1) declaratory ruling
proceedings; (2) proceedings under 47 U.S.C.  214(a) that do not involve applications under
Title III of the Communications Act; and (3) Freedom of Information Act requests.  As under
current practice, however, the Commission may decide on a case-by-case basis that because a
petition for declaratory relief predominately concerns the rights of particular parties, it should
be treated as restricted, and may so modify treatment of the proceeding.  Applications for a
Cable Landing Act license are similar to  214 applications (and often filed in conjunction
therewith), and the new rules also expressly subject them to permit-but-disclose procedures,
again provided that no Title III applications are involved.
   
     34.  One commenter urged that informal notice-and-comment rulemakings, (i.e.,
virtually all Commission rulemakings other than broadcast allotment rulemakings) which are
currently permit-but-disclose proceedings, should be treated as restricted proceedings.  Sprint
argued that rulemakings have as great an impact on parties as adjudications and that the same
elements of procedural fairness are involved.  We have decided, however, to adhere to our
long-standing practice of treating rulemakings (other than broadcast allotment proceedings) as
permit-but-disclose after the issuance of a notice of proposed rulemaking.  As participants at
the FCBA seminar (supra) pointed out, rulemakings, unlike adjudications, often involve a need
for continuing contact between the Commission and the public to develop policy issues. 
Further, we are confident that a  permit-but-disclose procedure in rulemakings gives interested
persons fair notice of presentations made to the Commission and ensures the development of a
complete record.  In this regard, we find that proceedings involving the issuance of policy
statements, interpretive rules, and rules issued without notice and comment are substantially
similar to those involving the notice-and-comment rulemaking, and we shall add an express
provision to the rules treating them as subject to permit-but-disclose procedures once they are
issued.  See  1.1206(a)(2). 

     35.  Consistent with the general treatment of rulemakings, we will continue to treat the
following common carrier proceedings as permit-but-disclose: (1) tariff investigations which
have been set for investigation under 47 U.S.C.   204; (2) proceedings conducted pursuant to
47 U.S.C.  220(b) for prescription of common carrier depreciation rates (upon release of a
public notice of specific proposed depreciation rates); and (3) proceedings to prescribe a rate of
return under 47 U.S.C.  205.  Additionally, we will continue to treat proceedings before a
Joint Board or before the Commission involving a recommendation from a Joint Board as
permit-but-disclose.  Proceedings involving cable rate complaints under 47 C.F.R.  543(c)
and filed on the required form (FCC form 329) will also be treated as permit-but-disclose. 
These proceedings resemble tariff investigations and involve a broad examination of industry
rate structures and levels.  Our experience indicates that, as in a tariff investigations, informal
discussions with Commission staff, subject to disclosure, are useful in resolving the relevant
issues.  We also note that, at the time when cable rate complaints were restricted, the
Commission provided for modified ex parte procedures upon request of cable operators in
situations where general discussions would implicate specific pending cable rate proceedings. 
See Modification of Ex Parte Procedures in Certain Cable Rate Proceedings, 9 FCC Rcd 7812
(1994).  We affirm that those procedures remain available and that the staff remains free to
exercise its discretion under section 1.1200(a) to modify ex parte procedures in cable rate
proceedings by letter, order, public notice, or letter as appropriate to serve the public interest. 
In light of our new definition of party, we have modified some of the language included in the
 1.1206(b) list of permit-but-disclose proceedings.  We have also eliminated existing
subsections that appear unnecessary to determining classification of proceedings and may be
confusing.  See  1.1206(b)(5), (b)(6) Note.  

                 IV.  SUNSHINE PERIOD PROHIBITION

     36.  Our Notice also proposed modifications in the Sunshine Period prohibition, which
imposes additional restrictions on communications regarding matters pending before the
Commission for consideration at a Commission meeting.  10 FCC Rcd at 3245-46  38-43. 
The Sunshine Agenda period is defined as beginning with release of a public notice listing a
matter for consideration at a Commission meeting (the Sunshine Agenda) and ending with (1)
the release of the text of a decision or order dealing with the matter, (2) issuance of a public
notice that the matter has been deleted from the agenda, or (3) issuance of a public notice that
the matter has been returned to the staff for further consideration.  During this entire period,
presentations, whether ex parte or not, are prohibited, unless requested by the Commission or
its staff or coming within other enumerated exemptions.  47 C.F.R.  1.1202(f), 1.1203.  

     37.  We proposed first that a prohibition on presentations analogous to the Sunshine
Period prohibition should apply to items considered on circulation rather than at an open
Commission meeting.  In the circulation process, copies of an item are distributed to the
Commissioners, who vote by registering their vote on an electronic system or, in some
instances, by noting a paper vote sheet.  Under our proposal, the prohibition would apply from
the time the adoption of the item was announced in a news release until the text of the decision
or order was released.  

     38.  The commenters generally supported this proposal.  However, because of some
internal changes we have made to the circulation process, we now believe that we need
notextend the Sunshine Period prohibition to circulation items.  We have adopted new
procedures to ensure that the texts of circulation items are released promptly after adoption of
the item.  See News Release, "FCC to Implement New Guidelines to Improve the Decision-
Making Process" (Jun. 19, 1995).  As a result, most circulation items are released within a
week of adoption.  Thus, there should be little or no period of time during which contact with
the Commission needs to be limited.     

     39.  One commenter, Comsultants, proposed that a more general prohibition on contact
with the Commission should be in effect during the circulation process, which it states, the
Commission has used with increasing frequency in recent years as an alternative to acting on
items at Commission meetings.  Comsultants suggests that circulation items should be treated
more analogously to meeting items and that when an item goes on circulation the Commission
should issue a public notice cutting off presentations either immediately or by a date certain. 
We shall not adopt Comsultants' proposal.  We do not believe that such a rule is necessary.  

     40.  Our second proposal was to exempt from the Sunshine Period prohibition the
discussion of recently adopted items at widely attended meetings or symposia.  The
commenters also supported this proposal.  They agreed with our reasoning that the discussion
of recently adopted items in public forums was not disruptive or unfair.  They also agreed that
it would be undesirable to chill such public discussion or effectively preclude Commission
personnel from attending.  

     41.  Several parties expressed a concern that the exemption should apply only to true
public discussion.  They contend that the exemption should not apply to private
communications to Commission personnel made on the site of a public address or symposium. 
We agree that the spirit of the exemption would be undermined if the meeting or symposium
were not open to broad segments of the public or industry.  We think that the new rules'
language referring to "widely attended" speech or panel discussions captures this requirement. 
See  1.1203(a)(3).  On a related matter, we codify in our rules our existing interpretation that
statements made by decisonmakers that are limited to providing publicly available information
and facts about pending proceedings are not presentations .  See Amendment of Subpart H,
Part 1 of the Commission's Rules and Regulations, 2 FCC Rcd 3011, 3013  13 (1987); 
1.1202(a). 


     42.  Our proposal contemplated that, although widely attended meetings would be
exempted from the Sunshine Period prohibition to the extent indicated, they would still be
subject to applicable permit-but-disclose requirements.  The FCBA proposes that we go further
and completely exempt from permit-but-disclose requirements any presentations made at public
meetings or symposia.  FCBA Comments at 9-10.  In our view, this proposal goes too far. 
Public meetings can be powerful tools for advocacy, at least as effective as written comments. 
We note, for example, that the record in this rulemaking proceeding would not have been
complete if it did not reflect presentations made at the FCBA seminar, which was attended by
Commission personnel.  We therefore endorse the procedure used by the FCBA in this
proceeding of submitting a tape or transcript of the meeting as an alternative means of
satisfying the permit-but-disclose requirement in lieu of submitting a memorandum
summarizing the content of the presentations required to be disclosed under the rules.  Because
this is an effective and efficient means of giving notice, we find that the use of this procedure
is an appropriate option in this situation, where the preparation of a memorandum might be
cumbersome.  Our new rules incorporate this option.  See  1.1206(b)(2) Note.  

                 V.  OTHER COMMISSION PROPOSALS  

A.  Notices of oral presentations in permit-but-disclose proceedings

     43.  In the Notice, we expressed concern that the disclosure requirement in permit-but-
disclose proceedings might not be fully effective.  Under the current rules, memoranda
describing oral presentations that are required to be filed in permit-but-disclose proceedings
("notifications") must disclose data and arguments not already reflected in that party's earlier
submissions in the proceeding.  We were concerned that persons who believe that their
presentations contain no new data or arguments either file no notification or one that is sketchy
and unrevealing.  We therefore proposed that all notifications should summarize the entire
content of the presentation, even if the data and arguments were not new.

     44.  The commenters were divided over this proposal.  Several of the commenters
supported the idea that, even if the claims were previously made in written submissions, more
complete disclosure is needed to apprise parties of the claims made to the Commission by their
opponents and to give them a fair opportunity to respond.  On the other hand several other
commenters argued that reiterating arguments already reflected in written submissions would
generate burdensome and unnecessary paperwork duplicating the earlier submissions.  
  
     45.  Upon reflection, we find it undesirable to create such a significant new
requirement for those dealing with the Commission.  We do not find it is necessary for parties
to create additional paperwork which merely reflects submissions already filed; thus, no filing
need be made of presentations concerning previously filed submissions.  Amendment of
Subpart H, Part 1, 2 FCC Rcd 3011, 3032 n.48 (1987).  We do, however, find it appropriate
to insist on strict enforcement of the existing notification requirement as to new data and
arguments, both to ensure that parties receive fair notice of arguments made to the Commission
and to ensure that a complete record is compiled.  Thus, we again

          emphasize that written memoranda which reflect oral ex partepresentations should, at a minimum, contain a summary of the
          substance of the ex parte presentation.  Compliance under the
          rules will require more than merely a listing of the subjects
          discussed and generally more than a one or two sentence
          description of the views and arguments presented.  

Id. at 3021  79.   Moreover, as under our current definitions, any written material shown to
the Commission in the course of the oral presentation (as well as any attachments to any
written presentations) should also be filed.  We now make this aspect of our definition of
presentation more explicit in the rules.  

     46.  The Notice further proposed that, if a Commission employee receiving an oral ex
parte presentation believes that the notice filed by a person making the presentation is
deficient, the employee may request the filing of a supplemental memorandum.  10 FCC Rcd
at 3246  45.  One commenter expressed concern that the definition of "deficiency" is very
subjective and that the requirement should not be interpreted to require unduly burdensome
notifications.  

     47.  We have decided not to adopt the proposed rule.  On reflection, it appears
unnecessary. The duty to ensure the adequacy of notifications rests with the person making ex
parte presentations.  While the staff remains free, as under current practice, to request
supplemental ex parte notices, the obligation to file a sufficient notice must be satisfied
regardless of possible requests by the staff.  In addition, we note that if an ex parte notice does
not summarize new data or arguments the ex parte rules would have been violated and any
Commission employee (or party) is obligated under the current rules to report the violation. 
See  1.1214.
  
     48.  Finally, Bell Atlantic also suggests that parties should not have to report
discussions of hypothetical scenarios or "trial balloons" of potential compromises by parties or
Commission staff.  Bell Atlantic contends that these discussions need not be reported
because, being merely hypothetical, they do not reflect any public position.  We do not agree
with this reasoning.  As Bell Atlantic indicates, such discussions are integral to the resolution
of proceedings.  But parties to Commission proceedings are not entitled to have a public
position and a different, private position before the Commission.  The disclosure of such
matters is therefore central to the purposes of the ex parte rules.  

     49.  In connection with our proposal to require more detailed notifications, we also
proposed to extend the deadline for filing notification from the day of the oral presentation to
three days afterwards.  10 FCC Rcd at 3246  45.  Although we do not adopt our proposal for
more detailed notifications, we continue to believe that a longer filing period is justified.  In
our view, a longer period will enable filers to prepare notices that more accurately and fully
reflect the content of the presentation.  Experience indicates that the present requirement
encourages people to prepare the notice before the meeting and that sometimes the notice is not
modified to reflect the presentation as actually made.  

     50.  Some commenters contended that notices could be prepared in advance and easily
revised in less than three days to take into account unexpected nuances in the presentation. 
They further contended that increasing the filIng period would exacerbate delays in the
issuance of public notices reflecting the presentations and would increase the risk that a party
would be cut off by a Sunshine notice before being able to respond to a presentation.  This is
a valid concern.  However, it is difficult to conceive that a summary prepared before a meeting
can accurately and fully summarize what was actually said during a meeting.  Because we see
valid concerns on both sides of this issue, we believe that a middle course is appropriate.  We
will therefore provide that notification should be filed no later than the next business day after
the presentation.  See  1.1206(b)(2).  

B.  Duty to notify the Office of General Counsel of potential ex parte problems

     51.  In the Notice, we expressed concern that cases may arise in which improper
presentations occur because a person privately resolves doubts about the propriety of a
presentation without alerting the staff and it is ultimately concluded that the person's rationale
is erroneous.  10 FCC Rcd at 3246  46-47.  We proposed that persons with reason to believe
that a situation raises an ex parte question must alert the Office of General Counsel of this
circumstance before engaging in ex parte contacts.  This proposal would codify a statement in
Rainbow Broadcasting Co., 9 FCC Rcd 2839, 2846  35 & n.34 (1994), remanded on other
grounds sub nom. Press Broadcasting Co. v. FCC, 59 F.3d 1365 (D.C. Cir. 1995), that
persons communicating with the Commission have such a duty. 

     52.  The commenters split in their response to this proposal.  Some favored it on the
grounds that it would help avoid inadvertent ex parte violations and assist in clarifying the
rules.  Other commenters argued that the proposal would infringe on the role of private
counsel in interpreting the rules and would burden both private parties and the Commission's
staff with a constant need to consult the Office of General Counsel.

     53.  We believe that the commenters opposed to the proposal have pointed out genuine
difficulties in its application.  We do not wish to unduly interfere with the good faith judgment
of private counsel in advising their clients and in deciding when to voluntarily seek
Commission guidance, which the existing rules already encourage.  Nor do we wish to burden
either private parties or the staff with a requirement of constant consultation.  In analyzing our
proposal further, we find ourselves unable to define clearly the point at which a duty to consult
exists, and we find it more appropriate to rely on the deterrent effect of the sanctions that are
available when parties and their counsel fail to exercise caution.  Additionally, we hope that
the clarifications in this Report and Order will reduce the problem of uncertainty in
interpreting the rules.  We therefore shall not adopt our proposed rule and are modifying the
statement in Rainbow indicating that such a duty to disclose exists.  We do, of course, continue
to encourage persons with questions about the ex parte rules to seek guidance from the Office
of General Counsel.  See  1.1200(b).  And, as under current practice, following the advice of
their counsel will not insulate parties from possible sanctions for rule violations.  

     54.  One commenter also argued that disqualification should not be a sanction for
violation of the ex parte rules because a fine is a sufficient remedy.  MCI Comments at 14. 
We disagree.  Although a fine may indeed be adequate in many instances, some ex parte
violations may be egregious, and disqualification may be the only remedy sufficient to preserve
the integrity of the Commission's processes.  See also 5 U.S.C.  557(d)(1)(D) (authorizing
agencies to require a person making unlawful ex parte communications in hearing proceedings
"to show cause why his claim or interest in the proceeding should not be dismissed . . . ."). 
As a related matter, we have revised the rules to specify that, when a Commission employee
reports an oral presentation believed to be prohibited, the report should contain a "full" (as
opposed to "brief") summary of the substance of the presentation.  See  1.1212(b)(4).  This
will help ensure that the Commission has the full facts before it in considering possible
sanctions.    

C. Treatment of electronic mail

     55.  Consistent with our existing practice, our Notice proposed to treat relevant
electronic communications to the Commission, such as those made by Internet electronic mail,
the same as written ex parte presentations.  10 FCC Rcd at 3241 n.5.  Thus, in permit-but-
disclose proceedings, copies of such presentations would have to be filed in accordance with
procedures specified for written presentations.  Two commenters urged that hard copies of
such presentations should be available for public inspection.  SBC Comments at 5-6; Sprint
Reply at 6.  They noted that not everyone has access to the Internet and that electronic
communications should not be a means of evading ex parte disclosure requirements.  They
suggested that the Commission print out such electronic mail and place it on public notice. 
Two other commenters objected to a requirement for filing or down-loading hard copies of   
electronic mail presentations. They asserted that such a requirement would negate the
efficiency of electronic communication, and put an undue burden on those making
presentations and on the staff.  

     56.  We agree with SBC and Sprint that it is important that electronic communications
be available for public inspection and copying, particularly for those that do not have access to
the Internet.  In this regard, the General Counsel has previously addressed the ex parte
treatment of Internet electronic mail.  See Public Notice, Application of Ex Parte Rules to
Internet E-Mail, 9 FCC Rcd 7348 (Gen. Counsel 1994).  The public notice indicated that
communications by electronic mail would be treated like other written ex parte presentations. 
Such presentations are thus prohibited in restricted proceedings unless they are also sent to all
parties to the proceeding.  With respect to permit-but-disclose proceedings, the Public Noticeindicated that two hard copies of such presentations should be submitted to the Commission's
Secretary, as provided by the rules.  We agree that electronic mail is subject to the same ex
parte rules as other written presentations.  We note, however, that it may be more feasible to
place voluminous electronic mail in the record in the form of a computer disk than in paper
form.  We will deem materials put in the record in this manner in compliance with the rules. 
In addition, we note that currently not all of those sending electronic mail regarding permit-
but-disclose proceedings have submitted the required two hard copies of their presentations.  In
those situations, consistent with the intent of the Public Notice, the Commission's staff has
assumed responsibility for down-loading electronic mail for inclusion in the record to the
extent that the senders have not already done so.  This treatment of electronic mail has not
proved unduly burdensome at this time, and, although we encourage the submission of the
prescribed hard copies, we will continue not to enforce that requirement, unless we learn that it
has resulted in an excessive burden on the staff. 
  
D.  Public notice of ex parte presentations

     57.  Under the current rules, the Commission's Secretary issues a weekly public notice
listing ex parte presentations.  Several commenters complained that notices of ex parte
presentations often do not appear on this list until two or three weeks after the presentation. 
They assert that this impairs the ability of parties to respond to presentations in a timely
fashion and urge that up-to-date notices should be issued more frequently  -- even daily.

     58.  We agree with the commenters that it would be desirable to improve the timeliness
of the public notices.  To this end, we will provide in the rules that the public notices generally
be issued at least twice a week rather than once a week. 

E.  Transfer of functions

     59.  We proposed to transfer the responsibility of dealing with alleged ex parte
violations from the Office of the Managing Director to the Office of the General Counsel.  10
FCC Rcd at 3246  48.  The commenters uniformly agreed that enforcement of the ex parte
rules was an appropriate responsibility of the Office of General Counsel.  We shall adopt this
proposal.  The Office of the Managing Director (or the Secretary) will, however, retain
ministerial functions such as placing (or forwarding to the responsible Bureau or Office for
placement) materials in the public record or associated files and issuing public notices of
permissible ex parte presentations in permit-but-disclose proceedings.

    VI.  ADDITIONAL CHANGES AND PROPOSALS FROM THE COMMENTERS

A.  Status of exempt presentations by government agencies and others

     60.  Under the current rules, certain kinds of presentations are treated as exempt
regardless of the type of proceeding involved.  See existing  1.1204(b).   Several commenters
argued that we should no longer exempt presentations to or from the Department of Justice or
the Federal Trade Commission involving matters which may affect competition in the
telecommunications industry.  The commenters argue that these government agencies are
independent of the FCC and that parties before the Commission have as much right to notice of
what these agencies say to the Commission as they do with respect to anyone else who
communicates with the Commission about a pending proceeding.  Most of these commenters
also object to the exemption for presentations involving another branch of the government
concerning matters of shared jurisdiction and believe that such communications should be
placed in the record of the proceeding.  The National Telecommunications and Information
Administration (NTIA) has expressed its views on this issue as well.  NTIA, however, does
not object to a disclosure requirement along the lines discussed below.  

     61.  At the outset, we note that the text of the existing exemption for presentations to or
from the Department of Justice and the Federal Trade Commission relating to competition in
the telecommunications industry that was contained in our Notice inadvertently omitted certain
existing disclosure requirements in that provision.  The exemption currently provides that any
new factual information obtained through such a presentation and relied on by the Commission
will be disclosed by the Commission no later than the issuance of the Commission's decision. 
Because the omission of that provision was inadvertent, the rules we adopt herein restore that
language.   This being the case, we continue to believe that under the narrow circumstances
delimited by the exemption the exemption furthers the public interest by facilitating inter-
agency coordination that leads to more effective, expedited, and consistent enforcement of the
laws relating to telecommunications competition.  See Amendment of the Commission's Ex
Parte Rules, 9 FCC Rcd 6108 (1994).  These advantages would be lost if the Commission were
not permitted to consult freely with the Department of Justice and the Federal Trade
Commission in order to coordinate regulatory efforts even though we do not technically share
jurisdiction with these agencies.  The existing requirement that the Commission disclose new
factual information relied on by the Commission affords protection to the parties which, in
these circumstances, reasonably accommodates both the governmental and private interests at
stake.
  
     62.  We also agree with BellSouth that it would be appropriate to include similar
disclosure requirements in the current exemption for presentations from another agency
concerning matters of shared jurisdiction.  We shall therefore amend the rules accordingly. 
We point out, however, that such communications, for example, from NTIA concerning
spectrum allocation matters, could involve military or classified security information.  Any
such information would be exempt from disclosure.  See 47 C.F.R.  1.1204(a)(5) (exempting
presentations that involve military or foreign affairs function or classified security
information).  Moreover, we recognize that communications between the FCC and, for
example, NTIA, may involve matters that are predecisional with respect to that agency or
otherwise privileged or sensitive.  Accordingly, we will codify our current informal practice
and provide that information will be relied on and disclosure will be made of presentations
under the shared jurisdiction exemption only after advance coordination with the other agency. 
We believe that such coordination is proper to ensure that the other agency retains control over
the timing and extent of any disclosure that may have an impact on that agency's jurisdictional
responsibilities.  If the agency involved does not wish such information to be disclosed, we
will not disclose it and will disregard it in our decision-making process, unless it fits within
another exemption not requiring disclosure (e.g., foreign affairs).  We will also apply this
approach to the Department of Justice/Federal Trade Commission exemption.  We note that,
under both exemptions, the fact that the other agency has its views otherwise disclosed on the
record will not preclude further discussions pursuant to, and in accordance with, the
exemption.  As an additional matter, we believe that a more complete disclosure requirement
should be adopted with respect to exempt presentations which relate to emergencies, and we do
so.

     63.  We also clarify the exemptions in two respects regarding the disclosure of new
information contained in presentations requested by the Commission.  Consistent with the
current rules, in restricted proceedings not designated for hearing, any person making a
presentation requested by the Commission must serve any new information presented on other
parties to the proceeding.  And, in permit-but-disclose proceedings, any such new information
must be disclosed in the record.  We wish to make clear that, consistent with existing
interpretation, see New York Telephone Co., 6 FCC Rcd 3303, 3305  20-21 (1991), aff'd
sub nom. New York State Department of Law v. FCC, 984 F.2d 1209 (D.C. 1993), such new
information does not include information relating to how a proceeding could or should be
settled, as opposed to decided on the merits.  See  1.1204(a)(10)(ii) & (iii).   We will also
clarify that ex parte presentations made with the advance approval of the Commission or the
staff fall within the scope of this exemption.  We see no basis to distinguish, for example,
between situations where the staff requests a party to submit an ex parte settlement proposal
and those where a party requests and receives advance permission from the staff to submit an
ex parte settlement proposal.  Indeed, in some circumstances, the staff already treats
presentations in the latter category as within the exemption.  

     64.  In order to encourage the efficacy of settlement discussions, we will also make one
other change in the rules.  Any new information going to the merits that is presented in
settlement discussions must be promptly disclosed, regardless of whether the proceeding is
restricted or permit-but-disclose.  (We are amending the rules to so provide in the case of
restricted proceedings; the rules already so provide for permit-but-disclose proceedings
through the cross-reference to section 1.1206 disclosure requirements.)  In some
circumstances, such prompt disclosures may hinder settlement discussions and not be necessary
as a matter of fairness to other parties.  Specifically, in those situations where the Commission
or the staff intends that the product of settlement discussions will be disclosed to the other
parties or the public for comment before any action is taken, the Commission or the staff in its
discretion may defer disclosure of any new information going to the merits that is presented
during the settlement discussions until comment is sought on the settlement proposal or the
settlement discussions are terminated.  See  1.1204(a)(10)(v).  This is a workable approach
that the Commission has already used in certain circumstances under the existing rules.  

     65.  Also with respect to presentations requested by the Commission, we have added
language to reflect an existing practice.  The rules provide that the Commission may dispense
with the service or disclosure requirements in connection with presentations requested by the
Commission if they would interfere with the effective conduct of an investigation.  Our
practice, as we now incorporate into the rules, is that a determination will be made in the
Commission's discretion as to when and how disclosure will be made if necessary.  See 
1.1204(a)(10)(ii) Note; Amendment of Subpart H, Part 1, 2 FCC Rcd 6053, 6054  10-14
(1987). 

     66.  Finally, we have revised the rules to clarify the language of the exemption for the
filing of presentations authorized by statute or rule and to add to the exemption the filing of
required forms.  See  1.1202(a).   

  B.  Definition of ex parte presentations

     67.  One commenter proposed to clarify the definition of ex parte presentations to
provide that ex parte presentations should not include: (1) status inquiries to the Commission
that do not involve the merits of a particular matter submitted for a determination by the
Commission; (2) requests for interpretations of existing rules or procedures; (3) inquiries
regarding administrative procedures; and (4) inquiries from the Commission to a person or
entity that involve information available to the general public or necessary for the Commission
to evaluate an uncontested application or issue.  

     68.  The existing rules already exclude from the definition of presentations status
inquiries not involving the merits of a proceeding, with certain qualifications that we continue
to deem appropriate in order to ensure that a status inquiry does not in fact become a
presentation on the merits.   1.1202(a) and Note.  Similarly, although presentations
encompass both substantive and procedural issues that go to the merits of a proceeding, the
Commission has already made clear that inquiries to Commission staff regarding compliance
with procedural requirements (such as service and timeliness requirements) would not
implicate ex parte restrictions unless they were directed to matters at issue in a particular
proceeding.  See Amendment of Subpart H, Part 1, 2 FCC Rcd 3011, 3013  15 (1987).  We
are amending the rules to make this explicit in the rule itself.  Also, the rules make clear that
communications between the Commission and the filer of an uncontested application or other
request for action would not fall within the definition of ex parte presentations because there
would be no other parties to be served or notified.  See  1.1202(b); 1.1206(a) Note; 1.1208,
Note.  Moreover, presentations requested by the Commission or its staff for the clarification or
adduction of evidence are generally exempt from ex parte restrictions subject to certain
disclosure requirements.   1.1204(a)(10).  We see no reason why someone who provides
generally available information to the Commission at the Commission request should not have
to disclose this fact; other parties have a right to know that such information is now being
considered in the proceeding.  Accordingly, we believe that the existing rules and the
amendments adopted herein provide sufficient clarity regarding these issues.

     69.  As a related matter, the FCBA proposed that permit-but-disclose procedures could
be applied in restricted proceedings with respect to certain presentations relating to the need
for expedition.  Such presentations include requests for action by a date certain and requests
which refer to matters other than the need to resolve administrative delay as a basis for
expedition.  Because the FCBA considers this class of presentations to be less "egregious" than
others, it proposed that permit-but-disclose treatment would be appropriate rather than the
current prohibition of such ex parte presentations.  

     70.  We are persuaded that there may well be circumstances in which the need to seek
expedition in a particular restricted proceeding is sufficiently urgent to justify giving parties an
opportunity to make oral ex parte presentations on this subject.  Nevertheless, such situations
pose some risk of prejudice to other parties, and we do not believe that permit-but-disclose
procedures provide adequate protection.  Consequently, we will treat such presentations
consistently with other presentations permitted in restricted proceedings.  See  1.1204(a)(10). 
Parties to restricted proceedings -- whether designated for hearing or not -- may make oral
presentations requesting action by a date certain or giving reasons for expedition other than the
need to avoid administrative delay.  They may not, of course, address the merits or outcome of
the proceeding in any other respect.  They must promptly file a detailed summary of the
presentation in the record and serve it on the other parties (see paragraph 45, above, regarding
the need for detail).  To ensure fairness, the other parties will then have the opportunity to
respond in support or opposition to the request for expedition, including by oral ex parte
presentation, subject to the same service requirement and the same prohibition on otherwise
addressing the merits or outcome of the proceeding.        
  
           VII.  REGULATORY FLEXIBILITY CERTIFICATION  

     71.  The NPRM incorporated an Initial Regulatory Flexibility Analysis (IFRA) of the
proposed rules pursuant to 5 U.S.C.  605.  No comments were received in direct response to
the IFRA.  Section 604 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 rules we adopt today will
not have a significant economic impact on a substantial number of small entities.

     72.  As noted above, our purpose in revising the ex parte rules is to simplify and clarify
them.  The modifications do not impose any additional compliance burden on persons dealing
with the Commission including small entities.  The revised rules clarify the situations in which
ex parte presentations are permissible, when they must be reported on the record, and when
they are prohibited, without significantly changing the current rules substantively.  The revised
rules do not otherwise affect the rights of persons to participate as parties in Commission
proceedings.  There is no reason to believe that operation of the revised rules will impose any
costs on parties in particular proceedings subject to those rules, beyond those costs incurred
under our former rules.  Rather, we anticipate that the revisions will serve to make the rules
easier to comply with and more effective for small entities as well as others.  By increasing the
frequency with which the Commission issues reports of ex parte presentations, the amended
rules will make it easier for small entities and others to determine when ex parte presentations
have occurred.     

     73.       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. No. 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 Report and Order, including this certification, to the
Chief Counsel for Advocacy of the SBA.  5 U.S.C.  605(b).  A copy of this certification will
also be published in the Federal Register.  Id.

                    VIII.  ORDERING CLAUSES   

     74.  ACCORDINGLY, IT IS ORDERED, That pursuant to sections 4(i), 4(j), 303(r),
and 409 of the Communications Act, 47 U.S.C.  154(i), 154(j), 303(r), 409, 47 C.F.R. Part
1 IS AMENDED as set forth below effective 60 days after publication in the Federal Register.

     75.  Further information on this proceeding may be obtained by contacting David
Senzel, Office of General Counsel at (202) 418-1760.



                         FEDERAL COMMUNICATIONS COMMISSION



                         William F. Caton 
                         Acting Secretary
                            APPENDIX A

The following comments were filed:

1.   Advanced Cordless Technologies, Inc. (Advanced Cordless).
2.   Ameritech Operating Companies (Ameritech)
3.   AT&T Corporation (AT&T)
4.   The Bell Atlantic Telephone Companies (Bell Atlantic)
5.   BellSouth Corporation and BellSouth Telecommunications, Inc. (BellSouth)
6.   Comsultants, Inc. (Comsultants)
7.   The Federal Communications Bar Association (FCBA)
8.   GTE Service Corporation (GTE)
9.   MCI Telecommunications Corporation (MCI)
10.  The Nynex Telephone Companies (NYNEX) 
11.  Pacific Bell and Nevada Bell (Pac Bell)
12.  Press Broadcasting Company, Inc. (Press)
13.  Rochester Telephone Corp. (Rochester)
14.  SBC Communications, Inc. (SBC)
15.  Sprint Corporation (Sprint)
16.  Symbol Technologies, Inc. (Symbol)
17.  US West Communications, Inc. (US West)

The following reply comments were filed:

1.   AT&T   
2.   BellSouth
3.   MCI
4.   Pac Bell
5.   Sprint


                            APPENDIX B

Part 0 of Title 47 of the Code of Federal Regulations is amended to read as follows:

     1.  The authority citation for Part 0 continues to read as follows:

AUTHORITY:  Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225, unless otherwise
noted.  

     2.  Section 0.11(a)(9) is amended to read as follows:

 0.11 Functions of the Office.

     (a) * * * * * 

          (9)  In consultation with the General Counsel, approve waivers of the
applicability of the conflict of interest statutes pursuant to 18 U.S.C. 205 and 208, or initiate
necessary actions where other resolutions of conflicts of interest are called for.

     3.  New section 0.41(o) is added to read as follows:

 0.41 Functions of the Office. * * * * *  

     (o)  To serve as the principal operating office on ex parte matters involving restricted
proceedings.  To review and dispose of all ex parte communications received from the public
and others.

     4.  New section 0.251(h) is added to read as follows:

 0.251  Authority delegated. * * * * * 

     (h) The General Counsel is delegated authority to issue rulings on whether violations of
the ex parte rules have occurred.   

Part I of Title 47 of the Code of Federal Regulations is amended to read as follows:

     5.  The authority citation for Part I continues to read as follows:

AUTHORITY:  47 U.S.C. 151, 154, 303, and 309(j) unless otherwise noted.  

     6.  Sections 1.1200 to 1.1216 are amended by deleting the existing sections and
amending them to read as follows:


 1.1200 Introduction.

     (a) Purpose.  To ensure the fairness and integrity of its decision-making, the
Commission has prescribed rules to regulate ex parte presentations in Commission
proceedings.  These rules specify "exempt" proceedings, in which ex parte presentations may
be made freely ( 1.1204(b)), "permit-but-disclose" proceedings, in which ex parte
presentations to Commission decision-making personnel are permissible but subject to certain
disclosure requirements ( 1.1206), and "restricted" proceedings in which ex parte
presentations to and from Commission decision-making personnel are generally prohibited (
1.1208).  In all proceedings, a certain period ("the Sunshine Agenda period") is designated in
which all presentations to Commission decision-making personnel are prohibited ( 1.1203). 
The limitations on ex parte presentations described above are subject to certain general
exceptions set forth in  1.1204(a).  Where the public interest so requires in a particular
proceeding, the Commission and its staff retain the discretion to modify the applicable ex parte
rules by order, letter, or public notice.  Joint Boards may modify the ex parte rules in
proceedings before them.   

     (b) Inquiries concerning the propriety of ex parte presentations should be directed to the
Office of General Counsel.

 1.1202 Definitions.

For the purposes of this subpart, the following definitions apply:

     (a) Presentation.  A communication directed to the merits or outcome of a proceeding,
including any attachments to a written communication or documents shown in connection with
an oral presentation directed to the merits or outcome of a proceeding.  Excluded from this
term are communications which are inadvertently or casually made, inquiries concerning
compliance with procedural requirements if the procedural matter is not an area of controversy
in the proceeding, statements made by decisionmakers that are limited to providing publicly
available information about pending proceedings, and inquiries relating solely to the status of a
proceeding, including inquiries as to the approximate time that action in a proceeding may be
taken.  However, a status inquiry which states or implies a view as to the merits or outcome of
the proceeding or a preference for a particular party, which states why timing is important to a
particular party or indicates a view as to the date by which a proceeding should be resolved, or
which otherwise is intended to address the merits or outcome or to influence the timing of a
proceeding is a presentation.

Note:  A communication expressing concern about administrative delay or expressing concern
that a proceeding be resolved expeditiously will be treated as a permissible status inquiry so
long as no reason is given as to why the proceeding should be expedited other than the need to
resolve administrative delay, no view is expressed as to the merits or outcome of the
proceeding, and no view is expressed as to a date by which the proceeding should be resolved. 
A presentation by a party in a restricted proceeding requesting action by a particular date or
giving reasons that a proceeding should be expedited other than the need to avoid
administrative delay (and responsive presentations by other parties) may be made on an ex
parte basis subject to the provisions of  1.1204(a)(11). 

     (b) Ex parte presentation.  Any presentation which:

          (1) if written, is not served on the parties to the proceeding; or

          (2) if oral, is made without advance notice to the parties and without opportunity
for them to be present.

Note: Written communications include electronic submissions transmitted in the form of texts,
such as by Internet electronic mail.

     (c) Decision-making personnel.  Any member, officer, or employee of the Commission,
or, in the case of a Joint Board, its members or their staffs, who is or may reasonably be
expected to be involved in formulating a decision, rule, or order in a proceeding.  Any person
who has been made a party to a proceeding or who otherwise has been excluded from the
decisional process shall not be treated as a decision-maker with respect to that proceeding. 
Thus, any person designated as part of a separate trial staff shall not be considered a decision-
making person in the designated proceeding.  Unseparated Bureau or Office staff shall be
considered decision-making personnel with respect to decisions, rules, and orders in which
their Bureau or Office participates in enacting, preparing, or reviewing.

     (d) Party.  Unless otherwise ordered by the Commission, the following persons are
parties:

     (1) any person who files an application, waiver request, petition, motion, request for a
declaratory ruling, or other filing seeking affirmative relief (including a Freedom of
Information Act request), and any person (other than an individual viewer or listener filing
comments regarding a pending broadcast application) filing a written submission referencing
and regarding such pending filing which is served on the filer, or, in the case of an application,
any person filing a mutually exclusive application;

Note 1:  Persons who file mutually exclusive applications for services that the Commission has
announced will be subject to competitive bidding or lotteries shall not be deemed parties with
respect to each others' applications merely because their applications are mutually exclusive. 
Therefore, such applicants may make presentations to the Commission about their own
applications provided that no one has become a party with respect to their application by other
means, e.g., by filing a petition or other opposition against the applicant or an associated
waiver request, if the petition or opposition has been served on the applicant. 
   
     (2) any person who files a complaint which shows that the complainant has served it on
the subject of the complaint or which is a formal complaint under 47 U.S.C.  208 and  1.721
of this Chapter, and the person who is the subject of such a complaint that shows service or is
a formal complaint under 47 U.S.C.  208 and  1.721 of this Chapter; 

     (3)  any person who files a petition to revoke a license or other authorization or who
files a petition for an order to show cause and the licensee or other entity that is the subject of
the petition;

     (4)  the subject of an order to show cause, hearing designation order, notice of apparent
liability, or similar notice or order, or petition for such notice or order;

     (5) any other person who has otherwise been given formal party status in a proceeding;
and

     (6) in an informal rulemaking proceeding conducted under section 553 of the
Administrative Procedure Act (other than a proceeding for the allotment of a broadcast
channel) or a proceeding before a Joint Board or before the Commission to consider the
recommendation of a Joint Board, members of the general public after the issuance of a notice
of proposed rulemaking or other order as provided under  1.1206(a)(1) or (2).

Note 2:  To be deemed a party, a person must make the relevant filing with the Secretary, the
relevant Bureau or Office, or the Commission as a whole.  Written submissions made only to
the Chairman or individual Commissioners will not confer party status.

Note 3:  The fact that a person is deemed a party for purposes of this subpart does not
constitute a determination that such person has satisfied any other legal or procedural
requirements, such as the operative requirements for petitions to deny or requirements as to
timeliness.  Nor does it constitute a determination that such person has any other procedural
rights, such as the right to intervene in hearing proceedings.  The Commission or the staff may
also determine in particular instances that persons who qualify as "parties" under  1.1202(d)
should nevertheless not be deemed parties for purposes of this subpart.

Note 4:  Individual listeners or viewers submitting comments regarding a pending broadcast
application pursuant to  1.1204(a)(8) will not become parties simply by service of the
comments .  The Mass Media Bureau may, in its discretion, make such a commenter a party, if
doing so would be conducive to the Commission's consideration of the application or would
otherwise be appropriate.  
  
     (e) Matter designated for hearing.  Any matter that has been designated for hearing
before an administrative law judge or which is otherwise designated for hearing in accordance
with procedures in 5 U.S.C.  554.
     
 1.1203 Sunshine period prohibition.

     (a) With respect to any Commission proceeding, all presentations to decision-makers
concerning matters listed on a Sunshine Agenda, whether ex parte or not, are prohibited during
the period prescribed in subsection (b) unless:

     (1) The presentation is exempt under  1.1204(a); 

     (2) The presentation relates to settlement negotiations and otherwise complies with any
ex parte restrictions in this subpart; 

     (3) The presentation occurs in the course of a widely attended speech or panel
discussion and concerns a Commission action in an exempt or a permit-but-disclose proceeding
that has been adopted (not including private presentations made on the site of a widely attended
speech or panel discussion); or
  
     (4) The presentation is made by a member of Congress or his or her staff, or by other
agencies or branches of the federal government or their staffs in a proceeding exempt under 
1.1204 or subject to permit-but-disclose requirements under  1.1206.  If the presentation is of
substantial significance and clearly intended to affect the ultimate decision, the presentation
(or, if oral, a summary of the presentation) must be placed in the record of the proceeding by
Commission staff or by the presenter in accordance with the procedures set forth in 
1.1206(b).

     (b) The prohibition set forth in subsection (a) applies from the release of a public notice
that a matter has been placed on the Sunshine Agenda until the Commission:

     (1) Releases the text of a decision or order relating to the matter;

     (2) Issues a public notice stating that the matter has been deleted from the Sunshine
Agenda; or

     (3) Issues a public notice stating that the matter has been returned to the staff for further
consideration, whichever occurs first.

 1.1204 Exempt ex parte presentations and proceedings.

     (a) Exempt ex parte presentations.  The following types of presentations are exempt
from the prohibitions in restricted proceedings ( 1.1208), the disclosure requirements in
permit-but-disclose proceedings ( 1.1206), and the prohibitions during the Sunshine Agenda
and circulation period prohibition ( 1.1203):

     (1) The presentation is authorized by statute or by the Commission's rules to be made
without service, see, e.g.,  1.333(d), or involves the filing of required forms;

     (2) The presentation is made by or to the General Counsel and his or her staff and
concerns judicial review of a matter that has been decided by the Commission;

     (3) The presentation directly relates to an emergency in which the safety of life is
endangered or substantial loss of property is threatened, provided that, if not otherwise
submitted for the record, Commission staff promptly places the presentation or a summary of
the presentation in the record and discloses it to other parties as appropriate.  

     (4) The presentation involves a military or foreign affairs function of the United States
or classified security information;

     (5) The presentation is to or from an agency or branch of the Federal Government or its
staff and involves a matter over which that agency or branch and the Commission share
jurisdiction provided that, any new factual information obtained through such a presentation
that is relied on by the Commission in its decision-making process will, if not otherwise
submitted for the record, be disclosed by the Commission no later than at the time of the
release of the Commission's decision;
  
     (6) The presentation is to or from the United States Department of Justice or Federal
Trade Commission and involves a telecommunications competition matter in a proceeding
which has not been designated for hearing and in which the relevant agency is not a party
provided that, any new factual information obtained through such a presentation that is relied
on by the Commission in its decision-making process will be disclosed by the Commission no
later than at the time of the release of the Commission's decision;

     Note:  Under subsections (5) and (6), information will be relied on and disclosure will
be made only after advance coordination with the agency involved in order to ensure that the
agency involved retains control over the timing and extent of any disclosure that may have an
impact on that agency's jurisdictional responsibilities.  If the agency involved does not wish
such information to be disclosed, the Commission will not disclose it and will disregard it in its
decision-making process, unless it fits within another exemption not requiring disclosure (e.g.,
foreign affairs).  The fact that an agency's views are disclosed under these subsections does not
preclude further discussions pursuant to, and in accordance with, the exemption.  

     (7) The presentation is between Commission staff and an advisory coordinating
committee member with respect to the coordination of frequency assignments to stations in the
private land mobile services or fixed services as authorized by 47 U.S.C.  332;

     (8) The presentation is a written presentation made by a listener or viewer of a
broadcast station who is not a party under  1.1202(d)(1), and the presentation relates to a
pending application that has not been designated for hearing for a new or modified broadcast
station or license, for renewal of a broadcast station license or for assignment or transfer of
control of a broadcast permit or license; 

     (9)  Confidentiality is necessary to protect persons making ex parte presentations from
possible reprisals; or 

     (10) The presentation is requested by (or made with the advance approval of) the
Commission or staff for the clarification or adduction of evidence, or for resolution of issues,
including possible settlement, subject to the following limitations:

     (i) this exemption does not apply to restricted proceedings designated for hearing;

     (ii) in restricted proceedings not designated for hearing, any new written information
elicited from such request or a summary of any new oral information elicited from such request
shall promptly be served by the person making the presentation on the other parties to the
proceeding.  Information relating to how a proceeding should or could be settled, as opposed
to new information regarding the merits, shall not be deemed to be new information for
purposes of this section.  The Commission or its staff may waive the service requirement if
service would be too burdensome because the parties are numerous or because the materials
relating to such presentation are voluminous.  If the service requirement is waived, copies of
the presentation or summary shall be placed in the record of the proceeding and the
Commission or its staff shall issue a public notice which states that copies of the presentation
or summary are available for inspection.  The Commission or its staff may determine that
service or public notice would interfere with the effective conduct of an investigation and
dispense with the service and public notice requirements; 

     (iii) if the presentation is made in a proceeding subject to permit-but-disclose
requirements, disclosure must be made in accordance with the requirements of  1.1206(b),
provided, however, that the Commission or its staff may determine that disclosure would
interfere with the effective conduct of an investigation and dispense with the disclosure
requirement.  As in sec (ii), information relating to how a proceeding should or could be
settled, as opposed to new information regarding the merits, shall not be deemed to be new
information for purposes of this section;

Note:  If the Commission or its staff dispenses with the service or notice requirement to avoid
interference with an investigation, a determination will be made in the discretion of the
Commission or its staff as to when and how disclosure should be made if necessary.  SeeAmendment of Subpart H, Part I, 2 FCC Rcd 6053, 6054  10-14 (1987).

     (iv) if the presentation is made in a proceeding subject to the Sunshine period
prohibition, disclosure must be made in accordance with the requirements of  1.1206(b) or by
other adequate means of notice that the Commission deems appropriate;

     (v) in situations where new information regarding the merits is disclosed during
settlement discussions, and the Commission or staff intends that the product of the settlement
discussions will be disclosed to the other parties or the public for comment before any action is
taken, the Commission or staff in its discretion may defer disclosure of such new information
until comment is sought on the settlement proposal or the settlement discussions are
terminated.

     (11)  The presentation is an oral presentation in a restricted proceeding requesting
action by a particular date or giving reasons that a proceeding should be expedited other than
the need to avoid administrative delay.  A summary of the presentation shall promptly be filed
in the record and served by the person making the presentation on the other parties to the
proceeding, who may respond in support or opposition to the request for expedition, including
by oral ex parte presentation, subject to the same service requirement.    

     (b) Exempt proceedings.  Unless otherwise provided by the Commission or the staff
pursuant to  1.1200(a), ex parte presentations to or from Commission decision-making
personnel are permissible and need not be disclosed with respect to the following proceedings,
which are referred to as "exempt" proceedings:

     (1) a notice of inquiry proceeding;

     (2) a petition for rulemaking, except for a petition requesting the allotment of a
broadcast channel (see also  1.1206(a)(1)), or other request that the Commission modify its
rules, issue a policy statement or issue an interpretive rule, or establish a Joint Board;

     (3) a tariff proceeding (including directly associated waiver requests or requests for
special permission) prior to it being set for investigation (see also  1.1206(a)(4)); 

     (4) a proceeding relating to prescription of common carrier depreciation rates under
section 220(b) of the Communications Act prior to release of a public notice of specific
proposed depreciation rates (see also  1.1206(a)(9)); 

     (5) an informal complaint proceeding under 47 U.S.C.  208 and 47 C.F.R.  1.717;
and  

     (6) a complaint against a cable operator regarding its rates that is not filed on the
standard complaint form required by 47 C.F.R.  76.951 (FCC Form 329).


       1.1206 Permit-but-disclose proceedings.


     (a) Unless otherwise provided by the Commission or the staff pursuant to  1.1200(a),
until the proceeding is no longer subject to administrative reconsideration or review or to
judicial review, ex parte presentations (other than ex parte presentations exempt under 
1.1204(a)) to or from Commission decision-making personnel are permissible in the following
proceedings, which are referred to as permit-but-disclose proceedings, provided that ex parte
presentations to Commission decision-making personnel are disclosed pursuant to subsection
(b): 

     (1) an informal rulemaking proceeding conducted under section 553 of the
Administrative Procedure Act other than a proceeding for the allotment of a broadcast channel,
upon release of a Notice of Proposed Rulemaking (see also  1.1204(b)(2));

     (2) a proceeding involving a rule change, policy statement or interpretive rule adopted
without a Notice of Proposed Rule Making upon release of the order adopting the rule change,
policy statement or interpretive rule;

     (3) a declaratory ruling proceeding;

     (4) a tariff proceeding which has been set for investigation under section 204 or 205 of
the Communications Act (including directly associated waiver requests or requests for special
permission) (see also  1.1204(b)(4));

     (5) unless designated for hearing, a proceeding under section 214(a) of the
Communications Act that does not also involve applications under Title III of the
Communications Act (see also  1.1208);

     (6) unless designated for hearing, a proceeding involving an application for a Cable
Landing Act license that does not also involve applications under Title III of the
Communications Act (see also  1.1208);

     (7) a proceeding involving a request for information filed pursuant to the Freedom of
Information Act;

     Note:  Where the requested information is the subject of a request for
     confidentiality, the person filing the request for confidentiality shall be deemed a
     party.

     (8) a proceeding before a Joint Board or a proceeding before the Commission involving
a recommendation from a Joint Board;
     
     (9) a proceeding conducted pursuant to section 220(b) of the Communications Act for
prescription of common carrier depreciation rates upon release of a public notice of specific
proposed depreciation rates (see also  1.1204(b)(4)); 

     (10) a proceeding to prescribe a rate of return for common carriers under section 205 of
the Communications Act; and

     (11) a cable rate complaint proceeding pursuant to section 623(c) of the
Communications Act where the complaint is filed on FCC Form 329.

     Note: In a permit-but-disclose proceeding involving only one "party," as defined in 
1.1202(d) of this subpart, the party and the Commission may freely make presentations to each
other and need not comply with the disclosure requirements of subsection 1.1206(b).  

     (b) The following disclosure requirements apply to ex parte presentations in permit but
disclose proceedings:

     (1) Written presentations.  A person who makes a written ex parte presentation subject
to this section shall, no later than the next business day after the presentation, submit two
copies of the presentation to the Commission's secretary under separate cover for inclusion in
the public record.  The presentation (and cover letter) shall clearly identify the proceeding to
which it relates, including the docket number, if any, shall indicate that two copies have been
submitted to the Secretary, and must be labeled as an ex parte presentation.  If the presentation
relates to more than one proceeding, two copies shall be filed for each proceeding. 

     (2) Oral presentations.  A person who makes an oral ex parte presentation subject to
this section that presents data or arguments not already reflected in that person's written
comments, memoranda or other filings in that proceeding shall, no later than the next business
day after the presentation, submit to the Commission's Secretary, with copies to the
Commissioners or Commission employees involved in the oral presentation, an original and
one copy of a memorandum which summarizes the new data or arguments.  Memoranda must
contain a summary of the substance of the ex parte presentation and not merely a listing of the
subjects discussed.  More than a one or two sentence description of the views and arguments
presented is generally required.  The memorandum (and cover letter) shall clearly identify the
proceeding to which it relates, including the docket number, if any, shall indicate that an
original and one copy have been submitted to the Secretary, and must be labeled as an ex parte
presentation.  If the presentation relates to more than one proceeding, two copies of the
memorandum (or an original and one copy) shall be filed for each proceeding.

     Note: Where, for example, presentations occur in the form of discussion at a widely
attended meeting, preparation of a memorandum as specified in the rule might be cumbersome. 
Under these circumstances, the rule may be satisfied by submitting a transcript or tape
recording of the discussion as an alternative to a memorandum.    

     (3) Notwithstanding subsections (1) and (2) above, 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. 
The Commission staff shall prepare a written summary of any such oral presentations and place
them in the record in accordance with subsection (2) and place any such written presentations
in the record in accordance with subsection (1).

     (4) Notice of ex parte presentations.  The Commission's Secretary or, in the case of
non-docketed proceedings, the relevant Bureau or Office shall place in the public file or record
of the proceeding written ex parte presentations and memoranda reflecting oral ex parte
presentations.  The Secretary shall issue a public notice listing any written ex parte
presentations or written summaries of oral ex parte presentations received by his or her office
relating to any permit-but-disclose proceeding.  Such public notices should generally be
released at least twice per week.

     Note 1: Interested persons should be aware that some ex parte filings, for example,
those not filed in accordance with the requirements of the subsection, might not be placed on
the referenced public notice.  All ex parte presentations and memoranda filed under this section
will be available for public inspection in the public file or record of the proceeding, and parties
wishing to ensure awareness of all filings should review the public file or record.

     Note 2: As a matter of convenience, the Secretary may also list on the referenced public
notices materials, even if not ex parte presentations, that are filed after the close of the reply
comment period or, if the matter is on reconsideration, the reconsideration reply comment
period.

 1.1208 Restricted proceedings.  

     Unless otherwise provided by the Commission or its staff pursuant to  1.1200(a), ex
parte presentations (other than ex parte presentations exempt under  1.1204 (a)) are prohibited
in all proceedings not listed as exempt in  1.1204(b) or permit-but-disclose in  1.1206(a)
until the proceeding is no longer subject to administrative reconsideration or review or judicial
review.  Proceedings in which ex parte presentations are prohibited, referred to as "restricted"
proceedings, include, but are not limited to, all proceedings that have been designated for
hearing, proceedings involving amendments to the broadcast table of allotments, applications
for authority under Title III of the Communications Act, and all waiver proceedings (except for
those directly associated with tariff filings).

     Note 1: In a restricted proceeding involving only one "party," as defined in  1.1202(d)
of this subpart, the party and the Commission may freely make presentations to each other
because there is no other party to be served or with a right to have an opportunity to be
present.  See  1.1202(b).  Therefore, to determine whether presentations are permissible in a
restricted proceeding without service or notice and an opportunity for other parties to be
present the definition of a "party" should be consulted.

Examples:  After the filing of an uncontested application or waiver request, the applicant or
other filer would be the sole party to the proceeding.  The filer would have no other party to
serve with or give notice of any presentations to the Commission, and such presentations
would therefore not be "ex parte presentations" as defined by   1.1202(b) and would not be
prohibited.  On the other hand, in the example given, because the filer is a party, a third
person who wished to make a presentation to the Commission concerning the application or
waiver request would have to serve or notice the filer.  Further, once the proceeding involved
additional "parties" as defined by  1.1202(d) (e.g., an opponent of the filer who served the
opposition on the filer), the filer and other parties would have to serve or notice all other
parties. 

     Note 2: Consistent with  1.1200(a), the Commission or its staff may determine that a
restricted proceeding not designated for hearing involves primarily issues of broadly applicable
policy rather than the rights and responsibilities of specific parties and specify that the
proceeding will be conducted in accordance with the provisions of  1.1206 governing permit-
but-disclose proceedings.

 1.1210 Prohibition on solicitation of presentations. 

     No person shall solicit or encourage others to make any presentation which he or she is
prohibited from making under the provisions of this subpart.

 1.1212 Procedures for handling of prohibited ex parte presentations.

     (a) Commission personnel who believe that an oral presentation which is being made to
them or is about to be made to them is prohibited shall promptly advise the person initiating
the presentation that it is prohibited and shall terminate the discussion.

     (b) Commission personnel who receive oral ex parte presentations which they believe
are prohibited shall forward to the Office of General Counsel a statement containing the
following information:

     (1) The name of the proceeding.

     (2) The name and address of the person making the presentation and that person's
relationship (if any) to the parties to the proceeding.

     (3) The date and time of the presentation, its duration, and the circumstances under
which it was made.

     (4) A full summary of the substance of the presentation.

     (5) Whether the person making the presentation persisted in doing so after being
advised that the presentation was prohibited.

     (6) The date and time that the statement was prepared.

     (c) Commission personnel who receive written ex parte presentations which they
believe are prohibited shall forward them to the Office of General Counsel.  If the
circumstances in which the presentation was made are not apparent from the presentation itself,
a statement describing those circumstances shall be submitted to the Office of General Counsel
with the presentation.  

     (d) Prohibited written ex parte presentations and all documentation relating to
prohibited written and oral ex parte presentations shall be placed in a public file which shall be
associated with but not made part of the record of the proceeding to which the presentations
pertain.  Such materials may be considered in determining the merits of a restricted proceeding
only if they are made part of the record and the parties are so informed.

     (e) If the General Counsel determines that an ex parte presentation or presentation
during the Sunshine period is prohibited by this subpart, he or she shall notify the parties to the
proceeding that a prohibited presentation has occurred and shall serve on the parties copies of
the presentation (if written) and any statements describing the circumstances of the
presentation.  Service by the General Counsel shall not be deemed to cure any violation of the
rules against prohibited ex parte presentations.

     (f) If the General Counsel determines that service on the parties would be unduly
burdensome because the parties to the proceeding are numerous, he or she may issue a public
notice in lieu of service.  The public notice shall state that a prohibited presentation has been
made and may also state that the presentation and related materials are available for public
inspection.


     (g) The General Counsel shall forward a copy of any statement describing the
circumstances in which the prohibited ex parte presentation was made to the person who made
the presentation.  Within ten days thereafter, the person who made the presentation may file
with the General Counsel a sworn declaration regarding the presentation and the circumstances
in which it was made.  The General Counsel may serve copies of the sworn declaration on the
parties to the proceeding.

     (h) Where a restricted proceeding precipitates a substantial amount of correspondence
from the general public, the above procedures will not be followed with respect to such
correspondence.  The correspondence will be placed in a public file and be made available for
public inspection.
  
 1.1214 Disclosure of information concerning violations of this subpart.

     Any party to a proceeding or any Commission employee who has substantial reason to
believe that any violation of this subpart has been solicited, attempted, or committed shall
promptly advise the Office of General Counsel in writing of all the facts and circumstances
which are known to him or her.

 1.1216 Sanctions.

     (a) Parties.  Upon notice and hearing, any party to a proceeding who directly or
indirectly violates or causes the violation of any provision of this subpart, or who fails to
report the facts and circumstances concerning any such violation as required by this subpart,
may be disqualified from further participation in that proceeding.  In proceedings other than a
rulemaking, a party who has violated or caused the violation of any provision of this subpart
may be required to show cause why his or her claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected.  In any proceeding, such
alternative or additional sanctions as may be appropriate may also be imposed.
  
     (b) Commission personnel.  Commission personnel who violate provisions of this
subpart may be subject to appropriate disciplinary or other remedial action as provided in Part
19.

     (c) Other persons. Such sanctions as may be appropriate under the circumstances shall
be imposed upon other persons who violate the provisions of this subpart.