§ 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 paragraph (b) of this section:

   Note 1 to paragraph (a): In the case of petitions for declaratory ruling
   that seek Commission preemption of state or local regulatory authority and
   petitions for relief under 47 U.S.C. 332(c)(7)(B)(v), the petitioner must
   serve the original petition on any state or local government, the actions of
   which are specifically cited as a basis for requesting preemption. Service
   should be made on those bodies within the state or local governments that
   are legally authorized to accept service of legal documents in a civil
   context.  Such pleadings that are not served will be dismissed without
   consideration as a defective pleading and treated as a violation of the ex
   parte rules unless the Commission determines that the matter should be
   entertained by making it part of the record under § 1.1212(d) and the parties
   are so informed.

   (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 2 to paragraph (a): 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.

   (12) [Reserved]

   (13)  Petitions  for  Commission  preemption  of  authority  to review
   interconnection agreements under § 252(e)(5) of the Communications Act and
   petitions for preemption under § 253 of the Communications Act.

   Note 3 to paragraph (a): In a permit-but-disclose proceeding involving only
   one “party,” as defined in § 1.1202(d) of this section, the party and the
   Commission may freely make presentations to each other and need not comply
   with the disclosure requirements of paragraph (b) of this section.

   (b) The following disclosure requirements apply to ex parte presentations in
   permit but disclose proceedings:

   (1) Oral presentations. A person who makes an oral ex parte presentation
   subject  to  this section shall submit to the Commission's Secretary a
   memorandum that lists all persons attending or otherwise participating in
   the meeting at which the ex parte presentation was made, and summarizes all
   data presented and arguments made during the oral ex parte presentation.
   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. If the oral ex parte presentation consisted in whole or
   in part of the presentation of data or arguments already reflected in the
   presenter's written comments, memoranda or other filings in the proceeding,
   the presenter may provide citations to such data or arguments in his or her
   prior comments, memoranda, or other filings (specifying the relevant page
   and/or paragraph numbers where such data or arguments can be found) in lieu
   of summarizing them in the memorandum.

   Note to paragraph (b)(1): 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 recording of the
   discussion as an alternative to a memorandum. Likewise, Commission staff in
   its discretion may file an ex parte summary of a multiparty meeting as an
   alternative to having each participant file a summary.

   (2) Written and oral presentations. A written ex parte presentation and a
   memorandum summarizing an oral ex parte presentation (and cover letter, if
   any) shall clearly identify the proceeding to which it relates, including
   the docket number, if any, and must be labeled as an ex parte presentation.
   Documents shown or given to Commission staff during ex parte meetings are
   deemed to be written ex parte presentations and, accordingly, must be filed
   consistent  with  the  provisions of this section. Consistent with the
   requirements of § 1.49 paragraphs (a) and (f), additional copies of all
   written ex parte presentations and notices of oral ex parte presentations,
   and  any  replies thereto, shall be mailed, e-mailed or transmitted by
   facsimile to the Commissioners or Commission employees who attended or
   otherwise participated in the presentation.

   (i) In proceedings governed by § 1.49(f) or for which the Commission has made
   available a method of electronic filing, written ex parte presentations and
   memoranda summarizing oral ex parte presentations, and all attachments
   thereto, shall, when feasible, be filed through the electronic comment
   filing system available for that proceeding, and shall be filed in a native
   format (e.g., .doc, .xml, .ppt, searchable .pdf). If electronic filing would
   present an undue hardship, the person filing must request an exemption from
   the  electronic  filing requirement, stating clearly the nature of the
   hardship, and submitting an original and one copy of the written ex parte
   presentation or memorandum summarizing an oral ex parte presentation to the
   Secretary, with a copy by mail or by electronic mail to the Commissioners or
   Commission  employees  who  attended  or otherwise participated in the
   presentation.

   (ii) Confidential Information. In cases where a filer believes that one or
   more of the documents or portions thereof to be filed should be withheld
   from public inspection, the filer should file electronically a request that
   the  information not be routinely made available for public inspection
   pursuant to § 0.459 of this chapter. Accompanying any such request, the filer
   shall  include  in paper form a copy of the document(s) containing the
   confidential information, and also shall file electronically a copy of the
   same document(s) with the confidential information redacted. The redacted
   document shall be machine-readable whenever technically possible. Where the
   document to be filed electronically contains metadata that is confidential
   or protected from disclosure by a legal privilege (including, for example,
   the attorney-client privilege), the filer may remove such metadata from the
   document before filing it electronically.

   (iii) Filing dates outside the Sunshine period. Except as otherwise provided
   in paragraphs (b)(2)(iv) and (v) of this section, all written ex parte
   presentations and all summaries of oral ex parte presentations must be filed
   no later than two business days after the presentation. As set forth in
   § 1.4(e)(2), a “business day” shall not include a holiday (as defined in
   § 1.4(e)(1)). In addition, for purposes of computing time limits under the
   rules governing ex parte presentations, a “business day” shall include the
   full calendar day (i.e., from 12:00 a.m. Eastern Time until 11:59:59 p.m.
   Eastern Time).
   Example:  On  Tuesday  a  party  makes  an  ex parte presentation in a
   permit-but-disclose proceeding to a Commissioner. The second business day
   following the ex parte presentation is the following Thursday (absent an
   intervening holiday). The presenting party must file its ex parte notice
   before the end of the day (11:59:59 p.m.) on Thursday. Similarly, if an ex
   parte presentation is made on Friday, the second business day ordinarily
   would be the following Tuesday, and the ex parte notice must be filed no
   later than 11:59:59 p.m. on that Tuesday.

   (iv) Filing dates for presentations made on the day that the Sunshine notice
   is  released. For presentations made on the day the Sunshine notice is
   released, any written ex parte presentation or memorandum summarizing an
   oral ex parte presentation required pursuant to § 1.1206 or § 1.1208 must be
   submitted no later than the end of the next business day. Written replies,
   if  any,  shall be filed no later than two business days following the
   presentation, and shall be limited in scope to the specific issues and
   information presented in the ex parte filing to which they respond.
   Example:  On  Tuesday,  a  party  makes  an ex parte presentation in a
   permit-but-disclose  proceeding  to a Commissioner. That same day, the
   Commission's Secretary releases the Sunshine Agenda for the next Commission
   meeting and that proceeding appears on the Agenda. The Sunshine period
   begins as of Wednesday, and therefore the presenting party must file its ex
   parte notice by the end of the day (11:59:59 p.m.) on Wednesday. A reply
   would be due by the end of the day (11:59:59 p.m.) on Thursday.

   (v) Filing dates during the Sunshine Period. If an ex parte presentation is
   made  pursuant to an exception to the Sunshine period prohibition, the
   written ex parte presentation or memorandum summarizing an oral ex parte
   presentation required under this paragraph shall be submitted by the end of
   the same business day on which the ex parte presentation was made. The
   memorandum shall identify plainly on the first page the specific exemption
   in § 1.1203(a) on which the presenter relies, and shall also state the date
   and time at which any oral ex parte presentation was made. Written replies
   to permissible ex parte presentations made pursuant to an exception to the
   Sunshine period prohibition, if any, shall be filed no later than the next
   business day following the presentation, and shall be limited in scope to
   the specific issues and information presented in the ex parte filing to
   which they respond.
   Example: On Tuesday, the Commission's Secretary releases the Sunshine Agenda
   for  the  next Commission meeting, which triggers the beginning of the
   Sunshine  period  on Wednesday. On Thursday, a party makes an ex parte
   presentation to a Commissioner on a proceeding that appears on the Sunshine
   Agenda.  That party must file an ex parte notice by the end of the day
   (11:59:59 p.m.) on Thursday. A reply would be due by the end of the day
   (11:59:59 p.m.) on Friday.

   (vi)  If  a  notice  of an oral ex parte presentation is incomplete or
   inaccurate, staff may request the filer to correct any inaccuracies or
   missing information. Failure by the filer to file a corrected memorandum in
   a timely fashion as set forth in paragraph (b) of this section, or any other
   evidence of substantial or repeated violations of the rules on ex parte
   contacts, should be reported to the General Counsel.

   (3)  Notwithstanding  paragraphs  (b)(1)  and  (2)  of  this  section,
   permit-but-disclose proceedings involving 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 written summaries
   of any such oral presentations and place them in the record in accordance
   with paragraph (b) of this section and also place any written presentations
   in the record in accordance with that paragraph.

   (4) Notice of ex parte presentations. The Commission's 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
   generally should be released at least twice per week.

   Note to paragraph (b): Interested persons should be aware that some ex parte
   filings, for example, those not filed in accordance with the requirements of
   this paragraph (b), 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.

   [ 62 FR 15856 , Apr. 3, 1997, as amended at  63 FR 24126 , May 1, 1998;  64 FR 68948 , Dec. 9, 1999;  66 FR 3501 , Jan. 16, 2001;  76 FR 24382 , May 2, 2011;  78 FR 11112 , Feb. 15, 2013]

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Restricted Proceedings

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