FCC Announces Workshop
on ex parte Reform

Faithful readers may recall that ex parte reform has been a recurring issue in this blog. (A B C D) No doubt as a response to this grass roots campaign, the Commission announced yesterday a workshop Wednesday on ex parte reform that will be simulcast over the web. I hope you watch it, or better yet, come and ask questions.

Washington, D.C. --The Federal Communications Commission will hold a staff workshop on October 28, 2009 to explore possible revisions to the Commission’s ex parte rules and processes to enhance the transparency of the Commission’s actions while at the same time maximizing the exchange of information between the public and the Commission.

This workshop follows an internal study of the current ex parte rules by Commission staff which identified a number of areas in which the current rules might be improved or updated. The workshop will also explore new issues posed by the increasing use of Internet-based media of communication and expression, such as blogs.

The workshop participants consist of practicing attorneys as well as representatives of companies, trade associations, and public interest groups, all of whom have substantial experience with the ex parte rules. The panelists will provide their perspectives on the successes and shortcomings of the current rules and suggest alternatives to better balance the goals of fairness, openness, and efficiency. A moderating panel of senior FCC staff will direct the panel discussions and pose questions.

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.

Marcus Spectrum Solutions Files Petition Asking FCC to Pay More Attention to ex parte Violations

“I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced. Based on personal experience, I know that the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity.” -- Remarks of Commissioner Kathleen Q. Abernathy, Market Reform: A Tool for Achieving Universal Access Panel, ITU Global Symposium for Regulators. Geneva, Switzerland, December 8, 2003

A petition recently filed by your blogger's consulting operation asks the full FCC to review a decision by its Office of General Counsel (OGC) rejecting several ex parte complaints that dealt with late filed documents that also appeared to lack the detail about an oral meeting required by the FCC's ex parte rules:

"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."
-- 47 CFR 1.1206(b)(2) 

Careful readers will recall that this issue started with a posting here almost 2 years ago in October 2006. The posting was the text of a letter to OGC pointing out that while NAB has a meticulous record of detailed timely filings of oral contact with FCC on ongoing rulemakings, MSTV appeared to be a serial violator of the 47 CFR 1.1206(b)(2) requirements with respect to both timeliness and detail. OGC finally got around to answering this letter more than 5 months later without addressing the specifics of the 16 MSTV filings listed that appeared to violate the rules. A later OGC letter explained the absence of any statement on these specific allegations stating,

“We understood your October 13, 2006 letter to express general concern about the enforcement of ex parte rules, with the particular meetings cited merely being examples.”

OGC has now rejected several subsequent ex parte complaints dealing with different later MSTV filings on grounds such as,

• an undocumented requirement that only parties with standing in a proceeding can file complaints,
• that there is an unspecified “statute of limitations” on the timeliness of complaints,
• that the standard of compliance is the practice of other parties in the same proceeding,
• that the presence of multiple complaints is important, and
• that the complainant must prove substantial harm.

Perhaps these would be good policies, perhaps not. In any case they are policies that are embodied neither in the Commission’s regulations nor in its past decisions (let alone court decisions) nor even in advisory information on its website.

It is amusing to note that on the very day OGC both rejected the MSS complaint and discouraged MSS from filing future ones, MSTV made a late filing in CS Docket No. 98-120 in which they took the unusual step of "fuzzifying" the date of the actual meeting by referring to it as "Thursday" and not giving the actual date.

As far as I can tell, the last time FCC has even chastised anyone on late filed somments was in 2002. There is no evidence I can find that FCC has ever taken action under §1.1216 to punish in any way any party for repeated violations of ex parte rules. While the vast majority of ex parte filings at FCC are compliant, repeated violations by one party that escape even a warning letter may, in the words of Comm. Abernathy, send "the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity."

Readers are encouraged to form their own opinions of the issue here and contact FCC with their own thoughts. At present no docket number has been established for this issue and it is not anticipated that public comment will be requested. This also means that there is no online access via ECFS for information on this proceeding. However, I will post links to any documents I receive. Alternatively, readers may just respond to this posting on the link below.

Procedurally, the MSS petition is now a "restricted proceeding" and the rules of 47 CFR 1.1208 apply. In the off chance that FCC might enforce this section more than it enforces §1206, those communicating to FCC on this issue are advised to serve MSTV per §1208.
===============
ECFS-like Log of Documents on Petition

MSS Petition of 8/25/08
MSTV Opposition to Petition for Review 9/9/08
(Does not include several attachments that are past MSTV filings that are said to comply with rules)
MSS Reply to Opposition 9/16/08

GAO Report
on
FCC Secrecy:


Some Parties Get More Information
than Others

Today GAO released a new report on FCC. In an FCC with unprecedented levels of secrecy and where the staff is held back from normal dialog with the public that was considered normal for decades, the "right people" on the outside still get access. It is just the public and the "wrong" people who can't get information.

As a regulatory agency, FCC is routinely lobbied by stakeholders with a vested interest in the issues FCC regulates. It is critical that FCC maintain an environment in which all stakeholders have an equal opportunity to participate in the rulemaking process and that the process is perceived as
fair and transparent. Situations where some, but not all, stakeholders
know what FCC is considering for an upcoming vote undermine the
fairness and transparency of the process and constitute a violation of
FCC’s rules. Since the success of lobbying for a particular issue can be
highly dependent on whether an issue is being actively considered, FCC
staff who disclose nonpublic information about when an issue will be
considered could be providing an advantage to some stakeholders,
allowing them to time their lobbying efforts to maximize their impact. As a
result, FCC may not hear from all sides of the issue during an important
part of the rulemaking process. This imbalance of information is not the
intended result of the Communications Act, and it runs contrary to the
principles of transparency and equal opportunity for participation
established by law and to FCC’s own rules that govern rulemaking.

House telecom subcommittee Chairman Edward Markey (D-Mass.), was quoted in RCRNews as saying,

“The FCC has a duty to be above-board in developing and implementing its rules,” said Markey. “When the ‘corporate insiders’ and ‘K-Street’ crowd have the inside track on decisions critical to telecommunications, media, broadband or wireless policy, then the public and consumers are at an inherent disadvantage. Both the law and the public interest require that rulemaking decisions adhere to principles of openness and objectivity.”

An FCC spokeman was quoted by RCRnews as saying,

“The commission actively reaches out and works with consumer and public-interest groups, not only industry. We have always been very open and transparent about what is on circulation and we are exploring ways in which we can make our processes even more open and transparent.”

I suppose FCC could try to redouble its attempts at secrecy and muzzling the staff - whihc is having a terrible impact on morale. (I note that the GAO home page proudly notes that it is one of the "best places to work in the Federal Government" - the survey that the FCC dodged.) Chairman Martin, my suggestion is to improve dialog with the public and industry and let the sun shine in. If a little sunshine is good, more is better. I heard today that staffers are now formally forbidden to talk to commissioners without the Chairman's approval. Maybe I am naive, but why?

Some agencies give employees the formal right to communicate with top management about matter that concern them. Frankly, if you give such a right to FCC employees you will have fewer leaks - although everyone knows most press leaks have always come from the "8th floor".

Of course, the report did not pick up on the recurring ex parte violation problems that were previously reported here and have yet to be addressed. No ex parte enforcement in several years? Not even a warning letter?

NY Times coverage
Washington Post coverage