FCC Draft Adds Time to Make Ex Parte Filings, Requires Extra Details
Those lobbying the FCC would get more time to report most conversations in ex parte filings, which would need to have more details than some do now, under a draft order awaiting commissioner approval, agency officials said. They said the order sticks mainly sticks to what was proposed in a rulemaking notice on ex partes approved by commissioners in February. A twist is that the draft contains a rulemaking notice to seek further comment on the disclosure of financial ties to companies, groups and others lobbying the FCC, said agency officials. That subject isn’t now part of the draft order’s provisions, they said.
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The draft order and rulemaking is being considered by FCC members even as officials at the agency and at nonprofit groups that have sought changes to ex parte rules say they've seen fewer filings made after they're supposed to be and fewer documents that say little about the subject of the lobbying meeting. But some filings continue to say little about what was discussed and simply state that the subject of lobbying conversation was comments made previously. Under the draft rules, that wouldn’t be allowed, FCC officials said: Ex parte documents would be required to summarize what actually was discussed, even if the lobbying entity had filed similar comments. Ex partes that cover previously filed information would need to cite that information such as by providing page numbers, commission officials said.
The draft from the General Counsel’s Office doubles the amount of time allowed for making most ex partes, agency officials said. Most of the documents would need to be filed two business days after a conversation with commissioners, their aides or career FCC staffers occurred, up from the current one business day, agency officials said. They said lobbying on an item the day that the sunshine period starts on that rulemaking would need to be reported by the next business day. Ex parte reports detailing conversations made at the commission’s request after the start of the sunshine period would need to be filed the same day, agency officials said.
The draft also would require ex parte filings be made even when presentations are limited to oral communication and no paperwork, such as a handout, is given to FCC officials, commission officials said. It would require that ex parte reports list all participants at all meetings, they said. And it says the General Counsel’s office can refer violations of ex parte rules to the Enforcement Bureau for investigation and possible fines, they said. A short rulemaking notice asks about rules on financial disclosure, instead of their being adopted the ex parte order, agency officials said. It asks about what sort of disclosures should be made about the ownership of entities lobbying the commission or membership in groups speaking with the FCC, they said. FCC spokespeople had no comment on the draft items.
Late filings continue to be made to the FCC, though their number seems to have declined since our last review (CD Feb 18 p4). And some filings still list little or no detail of what was discussed, though they, too, seem fewer, officials at nonprofit groups seeking ex parte rule changes said. Our analysis of filings made over the past few months bears that out. We found seven ex partes filed late since mid-August, most one or two days overdue but one, from Monroe Electronics on emergency alert systems, 13 calendar days late. An executive at Monroe said that was an oversight. Other late filers said the same or declined to comment. By contrast, in the three-and-a-half months leading up to the February vote on the ex parte rulemaking notice, we found 45 late filings.
Other late-filed ex parte reports covered Comcast’s planned purchase of control in NBC Universal, with one made a day late by deal foe Allbritton Communications and another made three days late by Avail-TVN, also seeking deal curbs. A filing by the MPAA, made one day late, covered net neutrality, while one from Adtran made five days late was on FCC technical rules. The Broadcast Maximization Committee made a filing on repurposing TV channels 5 and 6 for radio usage a day late. Sirius XM made timely filings on meetings about a channel set-aside ordered by the commission as part of approving the deal that formed the company, but those documents said so little about what was discussed during the meetings that they caught the attention of commission staffers and industry officials alike. While such filings are OK under current FCC rules, the draft ex parte changes would ban them, officials inside and outside the commission said.
Officials at nonprofit groups seeking ex parte rule changes agreed they hadn’t seen any filings recently that gave others participating in the same proceeding less time to lobby the FCC before it acted on a rulemaking. “I think that people have been anticipating this order and recognizing that this FCC cares more about ex partes than past FCCs,” said Policy Counsel Chris Riley of Free Press. “Major deviations from these rules will not slip under the rug."
Late filings no longer seem a problem, and more filings are substantive, Riley said. “We are all trying harder to take better notes and put more substantive disclosures in our ex partes.” Senior Vice President Andrew Schwartzman of the Media Access Project has found in the rulemakings he follows that “the actual filing has marginally improved in recent months, but I still see a lot of plainly inadequate descriptions of the subject matter of the meetings,” he said. “I'm still seeing a lot of them,” he said, though he’s noticed fewer late filings.