Ex Parte Communications During

FCC Rulemaking

Ex parte com m unications by W hite House officials to Federal C om m unications Com m ission 

com m issioners that advocate positions on the FCC rulem aking proceeding to evaluate financial interest and syndication rules would be permissible.

According to FCC regulations, as interpreted by the FCC G eneral Counsel, com m unications by 

the W hite House m ust be disclosed in the FCC rulem aking record if they are o f substantial 

significance and clearly intended to affect the ultim ate decision.

Although solicitation o f the views o f W hite H ouse officials by FCC com m issioners would be 

perm issible and need not be included in the rulem aking record, any response by W hite 

House officials to such a solicitation would be subject to the same disclosure requirem ents 

that apply to unsolicited com m unications.

January 14, 1991

M e m o r a n d u m Op i n i o n f o r t h e De p u t y

C o u n s e l t o t h e Pr e s i d e n t

This memorandum responds to your request that we answer certain questions regarding ex parte communications between White House officials and 

Commissioners of the Federal Communications Commission (“FCC”) in connection with the FCC’s ongoing rulemaking proceeding to evaluate its 

financial interest and syndication rules relating to television network involvement in the programming marketplace. Specifically, you have asked 

(1) whether it is permissible for White House officials to contact FCC Commissioners to advocate a position on this rulemaking; (2) whether any such 

communications would be subject to FCC disclosure requirements; and (3) 

whether it would be permissible for FCC Commissioners to solicit the views 

of White House officials and whether any such communications would be 

subject to the FCC disclosure requirements.

We conclude that the communications by White House officials would be 

permissible and, according to FCC regulations, they must be disclosed in the 

FCC rulemaking record if they are of substantial significance and clearly 

intended to affect the ultimate decision. Solicitations of the views of White

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House officials by FCC Commissioners would be permissible and need not 

be included in the rulemaking record. Any response by White House officials to such a solicitation, however, would be subject to the same disclosure 

requirements that apply to unsolicited communications.

I.

We believe it is clearly permissible, as a matter of general administrative 

law, for White House officials, including senior members from the Council 

of Economic Advisors and officials from the Office of the Vice President, 

Office of Management and Budget, and Office of White House Counsel, to 

contact FCC Commissioners to advocate a position on this rulemaking. This 

conclusion is compelled by Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 

1981), the leading ex parte contacts case under the Administrative Procedure 

Act (“APA”), 5 U.S.C. §§ 551-559, 701-706.

In Sierra Club, an Environmental Protection Agency (“EPA”) rulemaking 

was challenged as procedurally defective in a variety of ways, including that 

the decisionmaking was influenced by an “undocketed meeting . . . attended 

by the President, White House staff, other high ranking members of the 

Executive Branch, as well as EPA officials, and which concerned the issues 

and options presented by the rulemaking.” Id. at 404. In holding that the 

meeting was permissible and need not have been “docketed” (i.e., a summary placed in EPA’s rulemaking record),1 the D.C. Circuit Court of Appeals

recognize[d] the basic need of the President and his White 

House staff to monitor the consistency of executive agency 

regulations with Administration policy. He and his White 

House advisers surely must be briefed fully and frequently 

about rules in the making, and their contributions to 

policymaking considered. The executive power under our Constitution, after all, is not shared — it rests exclusively with 

the President.

Id. at 405. The court not only concluded that “[t]he authority of the President to control and supervise executive policymaking is derived from the 

Constitution,” id. at 406, but added that

the desirability of such control is demonstrable from the practical realities of administrative rulemaking. Regulations such

1 The Sierra Club holding on “docketing” did not modify the APA case law providing that purely

factual and “conduit” (i.e.. from interested parties outside the government) information provided in the

course of such communications should be included in agency rulemaking records. See Contacts Between the Office o f Management and Budget and Executive Agencies Under Executive Order No. 12,291,

5 Op. O.L.C. 107 (1981).

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as those involved here demand a careful weighing of cost, 

environmental, and energy considerations. They also have 

broad implications for national economic policy. Our form of 

government simply could not function effectively or rationally 

if key executive policymakers were isolated from each other 

and from the Chief Executive. Single mission agencies do 

not always have the answers to complex regulatory problems.

An over-worked administrator exposed on a 24-hour basis to a 

dedicated but zealous staff needs to know the arguments and 

ideas of policymakers in other agencies as well as in the White 

House.

Id. (footnotes omitted).

Just as the court found in Sierra Club that it was permissible under the 

APA for the President and other White House officials to meet with EPA 

officials in an effort to influence the results of an EPA rulemaking, we 

believe it is permissible for White House officials to contact FCC Commissioners in an effort to influence the results of an FCC rulemaking. The 

constitutional and administrative rationales set forth in Sierra Club are fully 

applicable to the FCC rulemaking on financial interest and syndication rules.2

Sierra Club makes it clear that, in addition to the general requirements of 

the APA, any more specific statutory requirements must be considered. Id.

at 406-07. The only such requirements that we are aware of that might 

apply in the present situation are those contained in the laws and regulations 

governing FCC proceedings. The FCC’s notice of proposed rulemaking expressly states that the FCC has determined that ex parte communications are 

permissible in this rulemaking proceeding. See 55 Fed. Reg. 11,222, 11,223 

(1990) (“After June 13, 1990, the proceeding will become a non-restricted 

proceeding, in which ex parte presentations will be permissible, subject to 

the disclosure requirements set forth in the Commission’s rules.”) The FCC’s 

ex parte communication regulations, 47 C.F.R. Subpart H, apply by their 

terms to ex parte communications from any person outside the FCC, expressly including presentations from government officials. See 47 C.F.R. §

2Sierra Club is not distinguishable on the basis that the FCC, unlike the EPA, might be view ed as an 

“ independent agency." Sierra Club is the leading construction o f the APA on ex parte contacts during 

rulem aking, and the APA clearly applies equally to the FCC and the EPA. See 5 U.S.C. § 551 (1). Thus, 

the Sierra Club rationale concerning “the practical realities of adm inistrative rulem aking,” 657 F.2d at 

406, applies fully to all agency rulem aking, whether done by a purely executive or “independent" agency. 

Indeed, the only exception to its holdings on W hite H ouse contacts that Sierra Club specifically identifies is w here the contacts “directly concern the outcom e of adjudications or quasi-adjudicatory proceedings,” thus im plying that all rulem aking is covered by the m ain holding Id. at 407. M oreover, w hate v er the constitutionality o f restricting the rem oval of the heads o f “independent agencies," there is no 

doubt that the President has the constitutional authority to inform (directly or through his staff) an 

"independent agency" o f the A dm inistration's program , in an effort to coordinate policy within the 

executive branch. See Morrison v. Olson. 487 U.S. 654 (1988). A ccordingly, the President retains 

authority to attem pt to influence rulem aking decisions by “independent agencies” in the w ays endorsed 

in Sierra Club.

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1.1206(a)(l)-(3) note 1 (“[P]resentations from members of Congress or their 

staff or from other agencies or branches of the Federal Government or their 

staff that are of substantial significance and clearly intended to affect the 

ultimate decision shall be treated as ex parte presentations . . . Accordingly, 

we conclude that ex parte communications by White House officials in connection with this rulemaking are permissible under the FCC ex parte regulations.

Although ex parte communications to FCC Commissioners by White House 

officials are thus legally permissible, we note the current White House policy 

guidance applicable to contacts with independent regulatory agencies like 

the FCC. See Memorandum for White House Staff, from C. Boyden Gray, 

Counsel to the President, Re: Prohibited Contacts with Agencies. That 

guidance states:

As a general rule, no member of the staff should make an ex

parte contact with a regulatory agency in regard to any particular matter pending before that agency, regardless of whether 

the proceedings are deemed to be rulemaking or adjudicative, 

when such a contact may imply preferential treatment or the 

use of influence on the decision-making process.

. . . White House staff members should avoid even the mere 

appearance of interest or influence — and the easiest way to 

do so is to avoid discussing matters pending before the independent regulatory agencies with interested parties and avoid 

making ex parte contacts with agency personnel. Should an 

occasion arise . .. where it appears necessary [for White House 

staff] to discuss general policy matters with the staff of an 

independent regulatory agency, to avoid any appearance of 

impropriety, [the White House staff individual] should first 

consult with the Office of the Counsel to the President to 

determine whether such contact would be appropriate under 

the circumstances.

Id. at 1-2.

II.

You have also asked whether, if ex parte communications to FCC Commissioners by White House officials are permissible, the communications 

must be publically disclosed: i.e., included in the FCC’s rulemaking record. 

Although Sierra Club makes it clear that such disclosure is not required as a 

matter of general administrative law, see 657 F.2d at 404-08, the FCC regulations on ex parte communications provide for disclosure of certain

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communications of that nature. We have consulted the FCC General Counsel’s 

Office to ascertain the FCC’s interpretation of its regulations.3 The following discussion is based on that interpretation.4

As noted above, the FCC’s notice of proposed rulemaking states that “ex

parte presentations will be permissible” in this proceeding, “subject to the 

disclosure requirements set forth in the Commission’s rules.” 55 Fed. Reg. 

at 11,223. This statement is consistent with the FCC regulations, which 

provide that all informal rulemaking proceedings, except proceedings on 

allotment of specific radio or television channels, are “non-restricted proceedings,” see 47 C.F.R. § 1.1206(b)(1), in which “ex parte presentations are 

permissible . . . if [certain enumerated] disclosure requirements are met.” 

47 C.F.R. § 1.1206(a). The regulations specify which communications during a non-restricted proceeding from government sources outside the FCC 

should be viewed as ex parte communications that must be included in the 

rulemaking record:

Unless otherwise exempted under Section 1.1204, presentations from members of Congress or their staff or from other 

agencies or branches of the Federal Government or their staff 

that are of substantial significance and clearly intended to affect the ultim ate decision shall be treated as ex p a rte

presentations and placed (if oral, a written summary of the 

presentation shall be prepared and placed) in the record of the 

proceeding by Commission staff or in accordance with the 

procedures set forth in Section 1.1206(a)(l)-(3).

47 C.F.R. § 1.1206(a)(l)-(3) note 1. Thus, unless otherwise exempted under 

section 1.1204(b), all ex parte communications from government officials or 

employees that “are of substantial significance and clearly intended to affect 

the ultimate decision” must be placed in the rulemaking record. If the 

communications are oral, they may be placed in the record either by the 

means of a written summary prepared by Commission staff or by a written 

memorandum submitted by the ex parte “communicator” on the day of the 

communication. 47 C.F.R. § 1.1206(a).

Accordingly, the FCC regulations require the placement in the FCC 

rulemaking record of a memorandum summarizing any ex parte communication by a White House official to an FCC Commissioner in which the White 

House official advocates a position on this rulemaking, so long as the communication is “of substantial significance and clearly intended to affect the

3 We consulted D avid H. Solom on, Assistant G eneral Counsel, A dm inistrative Law D ivision.

4 We do not address in this m em orandum the authority of the President to direct the FC C to change its 

regulations.

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ultimate decision.” The regulations apply by their terms to all parts of the 

government and make no exception for communications from White House 

officials. Nor would any of the section 1.1204(b) exemptions appear to be 

applicable. In particular, the FCC does not believe that exemption (5) is 

available. See 47 C.F.R. § 1.1204(b)(5) (exempting presentations “to or 

from an agency or branch of the Federal Government or its staff [that] involved a matter over which that agency or branch and the Commission 

share jurisdiction”). In the view of the FCC General Counsel’s Office, the 

exemption for agencies that “share jurisdiction” pertains only to other federal agencies that exercise statutory authority that overlaps with the FCC’s 

authority; it is not addressed to a government entity that might supervise the 

FCC. Accordingly, the White House does not, within the meaning of the 

exemption, “share jurisdiction” with the FCC over financial interest and 

syndication rules. We believe that the FCC’s interpretation of exemption (5) 

is reasonable.

in.

Finally, you have asked whether it would be permissible for an FCC Commissioner to solicit the views of White House officials and whether any such 

solicitation would be subject to the FCC disclosure requirements. We are 

unaware of any statutory or regulatory provisions that would prohibit such a 

solicitation or require that it be included in the rulemaking record. The 

conclusions reached above regarding Sierra Club should apply equally to a 

solicitation by an FCC Commissioner, because nothing in the court’s rationale suggested that the protection of ex parte White House communications 

should be “one-way”: i.e., protecting communications by White House officials' but not to them.

Moreover, nothing in the FCC regulations would preclude such a solicitation (indeed, the regulations contemplate solicitatigns, see 47 C.F.R. 

§ 1.1206(a)(3)) or require that it be docketed. The FCC General Counsel’s 

Office has advised us that solicitations are permissible and whether they are 

recorded in the rulemaking record is discretionary. Any communication by 

a White House official in response to a solicitation, however, would be subje c t to d isclosure under the same standards governing unsolicited 

communications. See 47 C.F.R. §§ 1.1204(b) note, 1.1206(a)(3), 1.1206(a)(1)- 

(3) note 1.

CONCLUSION

Ex parte communications by White House officials to FCC Commissioners that advocate positions on the ongoing FCC rulemaking proceeding to 

evaluate financial interest and syndication rules would be permissible. According to FCC regulations, as interpreted by the FCC General Counsel’s 

Office, such communications must be disclosed in the FCC rulemaking record

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if they are of substantial significance and clearly intended to affect the ultimate decision. Solicitations of the views of White House officials by FCC 

Commissioners would be permissible and need not be included in the 

rulemaking record. Any response by White House officials to such a solicitation, however, would be subject to the same disclosure requirements that 

apply to unsolicited communications.

JOHN O. MCGINNIS 

Deputy Assistant Attorney General

Office of Legal Counsel

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