SpectrumTalk

Transparency at FCC: The NTIA Ex Parte Loophole

FCC is very proud of its transparency, the fact that it functions in a "goldfish bowl" where anyone can see what inputs it receives and how it justifies its decisions based on those inputs in its decision documents. Indeed, in dealing with foreign counterparts in "newly emerging democracies" FCC makes a big point of the benefits of transparency. The FCC (like all other US administraive agencies) has rules, codified in Subpart H of Part 1 of its Rules, called ex parte rules that require those contacting FCC about a pending rulemaking to document in writing who that talked with and what was discussed. These rules are generally complied with, although the level of detailed in such filings sometimes complies with neither the letter or spirit of the Rules. (Media Access Project has a good description of the ex parte rules that is a lot easier to understand than the official FCC explanation.)

However, there is an amusing loophole to this transparency that is not well known. Check out Section 1.1204(a)

a) Exempt ex parte presentations. The following types of
presentations are exempt from the prohibitions in restricted proceedings
(Sec. 1.1208), the disclosure requirements in permit-but-disclose
proceedings (Sec. 1.1206), and the prohibitions during the Sunshine
Agenda period prohibition (Sec. 1.1203):
...
(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;

If you can get another federal agency that has overlapping jurisdiction with
FCC to make your point then you can avoid making your issue public and you
can influence FCC at the same time.  Why don't you want to make your
point public?  Because if those who disagree with your goal see what
your argument is they may be able to rebut it with facts.  As previously
discussed, the commissioners and their assistants have little technical
or even technical industry background sothey have trouble being selective
about technical viewpoints they receive.

OK, but is there an agency that meets the test of section 1.1204(a)(5) that
would be willing to do this?  Yes.  NTIA - the National Telecommunications
and Information Administration which controls federal government use
of the spectrum under delegation from the President's parallel authority
to the FCC.  If the proposed rule affects spectrum allocated to or shared
by the federal government then FCC can talk with NTIA off the public
record in all the "smoke filled rooms" it wants to.  The only requirement
is that these discussions must be mentioned in the final decision,
sometimes this is done by a public filing by NTIA
on the day the decision is adopted.

In order to use this loophole, you just contact NTIA with an
explanation, real or imagined,about how an FCC proposal
will adversely affect some federal government user.  Usually
NTIA will take the bait and contact FCC and pass on the concern
- often without independent review.

Is this real?  In 2002, Michael Gallagher, then Assistant
Secretary of Commerce and head of NTIA, a person who did
an outstanding job during his term at NTIA, appeared at
a public forum at FCC on spectrum issues.  I asked him
about this issue.  He candidly replied that he didn't see
it as a problem since if he is contacted by a private party
about an FCC rulemaking and its possible impact on government
users he "immediately contacts Julie Knapp" (Deputy Chief
of the Office of Engineering and Technology,FCC and
presently de facto acting chief of OET).  Thus Mike
Gallagher acknowledged that such outside pressure on
NTIA is immediately passed on to FCC without a word
on the public record.  Q.E.D.

"It is better to light a candle than to curse the darkness"
-- Eleanor Roosevelt

I have brought up this issue at meetings of the
Federal Communications Bar Association, the
lawyers that practice before the FCC, and received
no support from others who practice before FCC.
I suspect that some practicing lawyers view this
loophole as a little "trade secret".  FCC seems
uninterested since the practices meets the
letter of existing laws and regulations.  So I am
disclosing it here in the hope that if it becomes better
known and used frequently, this abuse of the spirit of
transparency will get more attention and will
be shut down.

An alternative?  I suggest that NTIA voluntarily
disclose to the public allinformation it receives
from private parties (other than government
contractors performing work that was contracted
for) that is intended to influence an FCC rulemaking
at the same time they pass
the information to FCC.

Your views?