SpectrumTalk

Letter to FCC on ex parte Compliance Issues

October 13, 2006

Sam Feder, Esq.
General Counsel
Federal Communications Commission
445 12th St., SW
Washington, DC 20554 USA

Dear Mr. Feder,

I am writing you to express concern over the inconsistent compliance of commenting parties with the FCC’s ex parte rules. Over the past two decades, chairmen and commissioners have consistently said that the FCC should have fewer rules and enforce those that remain. At present, FCC has two basic filing requirements for parties that contact FCC staff on rulemakings:

• 47 CFR 1.1206(b)(1) requires that ex parte filings be made "no later than the next business day after the presentation".

• 47 CFR 1.1206(b)(2) states "More than a one or two sentence description of the views and arguments is generally required."
  

Let us consider two large broadcast trade associations: NAB and MSTV. NAB appears to consistently comply with both requirements, occasionally even filing on the same day as the meeting, while MSTV consistently fails to meet one or both of these requirements. Examples are shown in the attachment.

Typical MSTV discussions of the substance of a meeting are "We discussed interference issues relating to the placement of unlicensed devices in the television band" or “to discuss issues in the above referenced proceeding”.

By contrast, here are the discussions of meetings from two different recent NAB filings:

• During the meetings, we discussed the importance of Commission adoption of flexible service rules for the nascent in-band/on-channel digital radio service. We also emphasized the need for FCC authorization of supplemental audio channels and AM nighttime operations as necessary to the digital radio transition currently underway. NAB urged swift Commission action on these issues, as discussed in our filed comments in this proceeding. - http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518396642

• We stressed the need to prevent cable operators from stripping out portions of local broadcasters' free, over-the-air programming streams. We emphasized that advertiser supported broadcasting programming must obtain carriage to reach viewers and, thus, to be economically viable. Carriage would also serve the public interest because the viewers would be assured of access to broadcast multicast streams, including localprogramming. Finally, we confirmed that NAB continues to monitor the continued rollout of digital television, including multicast programming. NAB is willing to regularly share such information with the FCC. - http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359890
  

I have never attended law school, but I think that the minimum requirement of 47 CFR 1.1206(b)(2) is quite clear and when it says "More than a one or two sentence description of the views and arguments is generally required" a reasonable person would expect 1) at least 3 sentences, 2) some discussion of the party’s views, and 3) some discussion of the party’s arguments. Now perhaps if the meeting dealt solely with previously filed material then an explicit reference to that material might suffice. But if that is your interpretation it would be clearer for all involved if it was documented in either the rule or some other readily available material. The last available clarification of ex parte requirements, the 10/11/2000 Public Notice states,

• Where there is ambiguity about whether data or arguments are already in the public record, the spirit of our rules would counsel parties to briefly summarize the matters discussed at the meeting. http://www.fcc.gov/Bureaus/OGC/Public_Notices/2000/fcc00358.doc

Of course, it is hard to imagine that most ex parte meetings do not deviate from previously filed material.

The 2000 Public Notice reminded us of what the intent of these rules are”

• The Commission’s ex parte rules enhance participation in permit-but-disclose proceedings and protect the integrity of the Commission’s processes by ensuring the transparency of these proceedings.

I note that the Commission consistently advocates transparency for other countries as they develop their telecommunications regulatory schemes. As you may recall, while I worked at the Commission I had the opportunity to work for almost a year at the Japanese Ministry of Posts and Telecommunications and was able to observe an “opaque” system first hand. Having had this experience I can personally vouch for the superiority of the systems the FCC has selected. (Since that time, the Japanese system has improved in many ways.)

A search of the Commission’s web site indicates that there apparently have never been a sanction under 47 CFR 1.1216 (at least since the web site was created more than a decade ago) and that the Commission last issued a formal warning to a party about ex parte violations on March 7, 2002 . I also note that on the OGC ex parte page there is no information about enforcement of the rules or even to whom suspected violations should be reported.

My personal research seems to indicate that the FCC is the only federal regulatory agency relying on written ex parte filings from outside parties on their meetings with agency staff in rulemakings, as opposed to adjudicatory proceedings. This tentative conclusions is based on a CFR search on “ex parte” that only finds citations for other agencies dealings with adjudicatory proceedings, communications with staff at other agencies who indicate surprise at FCC’s procedure and indicate that they deal with ex parte meetings by writing memos for the public docket file themselves, and the presence in other agencies’ docket files of staff memos documenting meetings, e.g. http://dmses.dot.gov/docimages/pdf97/411551_web.pdf .

I note also that the present FCC ex parte filing requirement for outside parties has a basic disincentive for compliance: Generally the parties making a presentation to FCC staff would prefer that those holding conflicting viewpoints know as little about the meeting as possible and find out as late as possible. This is because timely knowledge lets those with opposing positions rebut promptly what was said, particularly if there were factual misstatements. The longer the original presentation remains in the minds of the FCC staff unchallenged, the more likely it is to be believed in the long run. Clearly the intent of the present rules is to encourage debate and minimize the potential for believing erroneous facts, but the present level of noncompliance and the apparent agency disinterest in enforcement may encourage parties to attempt noncompliance.

I recommend that the Commission either advise commenting parties that it intends to enforce the rules that are in place or that it clarify or modify the rules so that they are enforceable. The fact that two well respected and well funded broadcast trade associations have such a different interpretation of the rules, at the very least, shows confusion about what the rules are and your intent to enforce them.


Sincerely,

/s/

Michael J. Marcus

Attachment

Recent filings by NAB that appear to meet the letter and spirit of ex parte rules:

7/7/06 Docket 99-325
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518396642
6/15/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359890
6/14/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359823
6/9/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359495
6/8/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359466
6/9/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359465
6/7/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359098
6/6/06 Docket 98-120
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518358927
4/3/06 Docket 03-187
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518332696
10/25/05 Docket 05-24
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518173505


Recent MSTV filings that all appear to violate 47 CFR 1.1206(b)(1)
(except those marked with *) and all appear to violate 47 CFR 1.1206(b)(2):

http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510021
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510012
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518335029
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518188391
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516283268
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516282342
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510022
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518510015
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518462117
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518359759
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518357430
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518112428
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518007956
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518007951
*http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6517082137
*http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6516883681