SpectrumTalk

MSTV May Now Be in ex parte Compliance
for a
Record Breaking 156 Days!

Since it is the holiday season, we thought we would emphasize the positive. The last clear violation of the Commission's ex parte rules by MSTV was their 7/28/08 filing in Docket 98-120. (In that filing they "fuzzified" the date of the meeting by stating it was "Thursday". Since 7/28 was a Tuesday than the latest possible date of the meeting was 7/24 and thus they did not file "no later than the next business day" as required by 47 C.F. R. 1.1206(b)(1)) However, since FCC's General Counsel has an unwritten interpretation of the Commission Rules that it will not accept complaints about ex parte violations from anyone who is not a party to that proceeding, we have not notified them of this issue.

In the 156 days since then, MSTV has filed 43 ex parte filings, none of which directly appear to violate the rules - a new record for them! (They have filed nothing since Halloween - they must have had a great party that day!)

Now there are 2 gray cases so we are reluctant to be too definitive here:

On 10/28/08 MSTV filed a one pager on Docket 04-186 with the following substance:

"Based on press accounts we express concerns over two issues. We emphasized our interference concerns with placing 40 milliwatt unlicensed devices on the first adjacent channel. We also noted that there is no justification for proposing a process to approve devices that rely exclusively on sensing to avoid interference. No documents were exchanged or submitted."

One might question whether this meets the 1.1206(b)(2) requirement that

"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."

However, possible violations of this type are so common at FCC these days that there is nothing unusual here. The classic MSTV violations of recent years were much skimpier than this filing and were filed late - an issue not subjective in nature. Only a naive Carterite would think this filing did not meet the rule.

But then there is the case of the MSTV 10/9/08 filing in Dockets 04-186 and 02-380. This document oddly forgets to mention what date the meeting took place.* (However, the 5 paragraphs of content clearly is detailed enough.) We could, in theory, tell OGC about this since we are a party to one of these proceedings. However, we have been told by OGC in a 7/28/08 letter that "Accordingly, please be advised that future allegations may, if the facts warrant, be handled in a more summary manner". So clearly OGC, which has not taken any enforcement action in the ex parte area for at least a decade, doesn't want to hear from us on ex parte violations. (This matter is subject to Petition for Review pending before the Commission.)

So let's also assume in the holiday spirit that the 10/9/08 filing concerns a meeting that happened on the 8th or 9th and the omission of the date was an innocent oversight by hard pressed lobbyists and their prominent law firm fighting to defend TV station owners against the evils of Silicon Valley, thus giving MSTV a perfect record for the past 156 days.

Now MSTV members, used to the most aggressive macho representation before the FCC of any major party appearing there, may wonder why their trade association has become as wimpy as NAB - whose ex parte compliance record has been perfect for years. But we will leave that to the MSTV membership to work out with the MSTV staff.

SpectrumTalk just wants to thank MSTV on behalf of the public for its improved behavior and attention to ex parte rules and hopes it continues into the New Year.

Monday's Reforming the FCC conference in Washington will have a lot of discussion about the dismal state of ex parte compliance at FCC - at least in MSTV's case we have positive news and I will be sure to include it in my remarks.

* Seems oddly reminiscent of their 7/28/08 filing discussed above that "fuzzified" the date of the meeting.