FCC Expected to Press for Greater Detail in Ex Parte Filings

Acting Chairman Michael Copps has called for greater detail in ex partes, so observers can understand what has taken place in meetings between lobbyists and FCC officials. But it’s unclear what Copps can do to deal with the problem while he’s chairman.

“The ex parte process at the FCC has become a joke,” said Kevin Werbach, who was on the Obama transition team. “In recent years, parties have been able to file vague descriptions that subvert the whole purpose of the ex parte regime. Given President Obama’s commitment to openness and transparency, I expect the FCC to significantly raise expectations for ex parte filings… The FCC should make its decisions based on a public record. Under this administration, I think you'll see an FCC that takes that obligation seriously.” Art Brodsky, a Public Knowledge spokesman, said, “It was a subject we talked about at our FCC reform conference in January, so we're pleased that it is getting more attention.”

The FCC’s “Web site will get much more accessible, much more real time,” a wireless-industry lawyer said. “They'll make regularly electronically accessible the kind of thing you'd have to call up and get from a legal advisor before … When that includes more substantive ex parte rules, I don’t know.”

Many an ex parte has said only that previous filings were discussed with commissioners or aides, the lawyer said. “People use that safe harbor to hide a tremendous amount of advocacy. Take universal service. You go in. You talk about universal service. You raise a lot of new things. You say bad things about your competitors. Then you say we had an ex parte meeting and everything we talked about was in our filed comments. That doesn’t help anybody.”

A former FCC official said, “The ex-parte rules themselves don’t match up with what people are doing in both directions. Sometimes people are under-reporting and sometimes they're over-reporting… The time it matters is when someone is cutting a deal … I think coming after Kevin [Martin], there'll be a push for everyone to be more open.”

The substance of ex parte filings “seems to have degenerated over the years,” said former FCC lawyer Jonathan Askin, associate professor at Brooklyn Law School. An extreme example was a BellSouth filing about five years ago on unbundling rules, he said. The meeting was “excruciatingly big,” and Askin suspected that the company might be trying to make substantive changes to the FCC’s UNE Triennial Review Order, but BellSouth’s ex parte was one sentence, he said. Askin, then working with the Association for Local Telecommunications Services, submitted a response ex parte saying “something to the effect of ‘I spoke about what I think BellSouth spoke about according to its ex parte.'”

Ex partes are supposed to be substantive, but a loophole allows filers to write short, Askin said. If a company has already filed substantive comments, it’s allowed to merely cite them in its ex parte, he said. That would be fine, he said, except that instead of referring to a page number of a specific filing, many ex parte filings say only that the company made arguments consistent with previous filings.

Still, industry isn’t completely to blame for vague ex partes, Askin said. FCC rules allow only 24 hours to file an ex parte notice on a meeting, he noted. That’s enough time for big companies with legions of Washington-based lawyers to write something lengthy, but not for groups from out of town that might be traveling much of the time before the deadline, he said. A better procedure might be to require the first notice within 24 and then a substantive followup, he said.

The FCC could harness Web technology to improve its ex parte process, said Jerry Brito of the Mercatus Center at George Mason University. He recommended making digital audio recordings of meetings and posting them online as MP3 files. Taping meetings would be easy and would result in much greater transparency, he said. The difficulty is that sound files aren’t searchable, making it tougher for FCC staff or others who might want to replay only specific parts of a meeting, he said. But a number of startup companies are working on automatic audio-to-text transcription services, Brito said.

“Transparency and openness are critical and under the Obama Administration will be expected,” said an attorney who represents small carriers. “Copps has made this abundantly clear when he first took charge and I expect this to permeate the entire FCC.” A wireless industry attorney said “it would be logical for a Commission that is trying to promote openness in government to require more-detailed summaries of discussions. And the Commission itself should do more to be sure that oral ex partes are not permitted in licensing proceedings where adverse parties have filed timely petitions.”

“I think we are headed to a new era on all these fronts -- more details, fewer meetings, new emphasis on [the importance] of written and legal arguments,” said a former FCC official.

Stricter FCC ex parte requirements surfaced recently in a public notice seeking comment on the FCC’s role in carrying out the economic stimulus law. “Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed,” said the notice. “More than a one or two sentence description of the views and arguments presented generally is required.” The provision is specific to that proceeding, an FCC spokesman said.