Violations of New FCC Ex Parte Rules Found

The new ex parte rules (CD Feb 4 p2) require most filings to be made two business days after a meeting and to state what was said, and not just the topics covered. Violations were said by those that made the filings to be unintentional. They didn’t result in any censures and don’t appear to have caused any formal complaints. Fans of the new ex parte rules who reviewed our findings said there’s enough flexibility in the rules that violations will be rare. But they and others criticized an FCC public notice released this week (CD Nov 30 p16) that asked about further expanding filing rules to require that all documents in rulemaking proceedings, including ex parte filings, contain all materials that are cited or links to them. The notice said the commission’s switch to electronic filing makes such a citation system possible, without proposing to adopt one or reaching any conclusions.

Three filings, in addition to the 11 we identified, didn’t appear to us to contain enough information about what was said during meetings with agency personnel on broadband deployment, legislation to limit the volume of TV ads and USF reform. Those who made the filings said they were adequate, either because the meetings were held at the behest of FCC staff or because no lobbying was done. Those don’t appear to be excepted from the rules, said Media Access Project Senior Vice President Andrew Schwartzman. In one case, FCC staff requested that an ex parte (http://goo.gl/vgVVl) on meetings about USF with aides to three FCC commissioners by Alaskan cable operator GCI be resubmitted with more detail. That was done the same day (http://goo.gl/vgVVl). “We had a request to supplement it, so we supplemented what we thought was already an adequate disclosure,” said telecom lawyer John Nakahata of Wiltshire & Grannis, who made the filing. Spot checks by the FCC Office of General Counsel (OGC) this summer and fall of ex parte filings found three that didn’t “summarize the substance of the presentation in the detail required” by the new rule or that don’t “provide citations to previous filings containing a summary of the data or arguments presented.” That’s according to letters (http://goo.gl/EbiEM) Associate General Counsel Joel Kaufman sent about filings on USF to USTelecom, the Texas Public Utility Commission and a consultant to rural phone companies. The USTelecom filing did explain at length what was discussed (http://goo.gl/PmHf0), although a follow-up filing went into much greater detail and ran an extra page (http://goo.gl/oBLHh).

The PUC (http://goo.gl/1ItAf) and consultant’s filings (http://goo.gl/eIGj0) lacked proper detail. All were supplemented within about a week of Kaufman’s letters, as he requested. Cheryl Parrino, the consultant, added a sentence saying the role of state commissions’ in USF reform was discussed (http://goo.gl/lb41Y), while the Texas PUC added several hundred words of detail about the Lifeline and Link Up programs for the poor to get discounted phone service (http://goo.gl/0jGhp).

The commission’s spot checks of filings, which the agency hasn’t much publicized beyond a webpage run by the OGC, ought to serve as a disincentive to all who visit the FCC to cut corners on their lobbying reports, said longtime communications attorneys who reviewed the letters. They include Schwartzman and Public Knowledge Legal Director Harold Feld. They and others including Free State Foundation President Randolph May, who used to work in the OGC and is a vocal foe of government regulation, said it’s good that the office is doing the checks. FCC General Counsel Austin Schlick said in May that enforcement of ex parte rules, with the new ones taking effect, was a priority (CD May 9 p2).

Schwartzman is “very glad that the OGC is living up to its promise to spot check the filings,” he said. “I would suggest that these letters be listed in the Daily Digest,” which serves as a summary of commission actions. Spot checks “are a really good practice,” said Feld. “It will only take a few of those before word gets around the communications bar that OGC and FCC staff are serious about enforcing the ex parte rules. Not because there is some terrible punishment, but simply because no one wants to be embarrassed by getting a public letter from FCC staff saying, in effect: ‘You didn’t do your homework right. Now come up to the blackboard and write it out for the whole class.'” The Media Access Project and Public Knowledge participated in a 2009 FCC workshop on ex parte rule reform.

Filings that violated ex parte rules covered meetings with all major bureaus and offices except for the International Bureau, our review found. The filings were made by some entities that don’t frequently file at the FCC, and may not be familiar with the rules.

Gamut of Issues

BISRelay reported a week and a half late (http://goo.gl/MI4Pi) on a meeting with officials in the Consumer & Governmental Affairs Bureau about a video relay service citation. “Like most VRS providers today, BIS VRS is forced to temporarily halt our offering of VRS services,” the company’s website said. The executive who made the filing had no comment. The Rainbow PUSH Coalition reported six days late on a meeting with Commissioner Robert McDowell on Lifeline and Link Up. The official who made the filing had no comment.

The National Translator Association made two late filings about meetings with Wireless Bureau Chief Rick Kaplan and Media Bureau Chief Bill Lake (http://goo.gl/tawTk) and with aides to Chairman Julius Genachowski and Commissioner Michael Copps (http://goo.gl/tawTk) about the FCC’s order to require low-power TV stations to go all-digital. “It is what it is,” said lawyer George Bosari of Bosari & Paxson, who made the filings.

Major companies and groups too made late filings, or ones with little detail, our review found. Motorola Mobility made one a day late on the 21st Century Communications and Video Accessibility Act (http://goo.gl/ecKLB), while the Coalition of Organizations for Accessible Technology made one almost two weeks late (http://goo.gl/9RBtd) also on commission implementation of that law. Akamai made a filing a week late about broadband speed tests. “Please excuse the delayed filing of this letter, due to travel commitments,” it said (http://goo.gl/txLYP).

Cablevision’s filing a day late on USF (http://goo.gl/yhvw9) wasn’t submitted by the end of the day the meeting was held, during the so-called sunshine period before an order changing the fund to pay for broadband was approved by commissioners. The mistake was “inadvertent” and the oversight was made moot because the USF order was approved the next day, negating the opportunity for someone else to respond to the filing, the document said. Two filings (http://goo.gl/Oj1Gc and http://goo.gl/znrjG) on spectrum from the Advanced TV Systems Committee appeared to have been filed almost three months late, reporting June 23 on meetings they said occurred March 25. But the March date was a typo, and the meetings took place June 21, said ATSC President Mark Richer and another meeting participant, which would mean it wasn’t filed late. Continued late filings are disappointing to advocates of disclosure. The two business days that are allowed — doubled from the old rules — are adequate time to make the reports, said Schwartzman, Feld and Campaign Legal Center Policy Director Meredith McGehee. That doubling of time “really ought to be enough,” Feld said. “At a minimum, the commission ought to have some kind of warning process and penalties for repeat offenders.” McGehee, who continues to hope that FCC staff and not those who lobby the commission will file ex partes, nonetheless noted that other agencies she visits have fewer requirements. At the Federal Election Commission and elsewhere, the process is “not nearly as formalized,” she said. At the FCC, “all in all, it works pretty well,” she said.

Fewer Late Filings

Fewer ex parte filings are made late now than in the recent past, and the trend has been improving over the years. Our last review of ex parte filings, covering three months late last year, found seven that were tardy (CD Oct 29/10 p2). That’s one more than we found in the period from June 1-Nov. 30 this year that was twice as long as the time covered by the last review. During just three and a half months in late 2009 and early 2010, at least 45 lobbying filings were tardy (CD Feb 16/10 p4). Yet “late filings represent a challenge,” one the FCC “needs to figure out how to address,” said Feld. “Anyone can make a mistake. I put the Cablevision late file in the category [of] ’still getting used to the new rules’ kind of delay. On the other hand, practitioners need to prioritize filing ex parte notices and treat them as important. “

The FCC’s spot checks ought to cut down or eliminate entirely filings that don’t say what was said during lobbying meetings, said those who advocate for more disclosure. May believes “compliance with the new ex parte rules is pretty high overall,” he said: “It is always easy to pick out some outliers when there are hundreds, if not thousands, of these ex partes filed in some weeks.” He has “no problem” with the OGC’s checks, since such enforcement is the responsibility of the commission. OGC enforcement -- and the attention it brings to those who don’t follow ex parte rules -- are “particularly important” in Feld’s view, “because we are dealing with culture change,” he said. “People have been writing short, uninformative ex partes for years. It’s what most people did, and was considered good practice. It was also easy, because you just copied what others had done. Now, the communications bar has to get used to a new way of doing things, so it is important for staff and OGC to push."

Some had explanations for short filings that each devoted one sentence to what was discussed. The Independent Telephone and Telecom Alliance spoke about ways to adhere to the CALM Act to keep a lid on the volume of TV ads (http://goo.gl/SjTrD). During two conversations with a CGB official, “ITTA did not advocate any position with respect to such proposals, and arguably, no ex parte notice was required given the nature of each discussion as a status inquiry rather than a presentation on the merits,” said Vice President Micah Caldwell, who made the filing. “My communication with the staff was to request information regarding the status of a proceeding and not to advocate a particular position.”

USTelecom reported speaking with Josh Gottheimer, the Genachowski aide who’s overseeing broadband deployment efforts, to talk about pilot programs to boost adoption. A commission official asked for the meeting (http://goo.gl/kCM0Z), an association spokeswoman said. “The ex parte is accurate as to what was discussed -- exploration of broadband adoption pilot programs.” A filing (http://goo.gl/yNU5h) on a meeting on retrans Insight Communications CEO Michael Willner attended with Lake had one sentence on what was discussed: “The current state of their retransmission consent negotiations with broadcasters whose existing agreements expire December 31, 2011, particularly with Sinclair Broadcasting."

Rules Don’t Need Changing

There doesn’t appear to be a need to change FCC rules governing all filings, as the agency asked about in the public notice late Tuesday, said good-governance experts and other longtime communications lawyers. Rather, some of them sought enforcement of existing rules. The notice (http://goo.gl/kQote) mentioned that including URLs to or entire documents that are cited in filings could make it easier for people to reference them. “In some proceedings, particularly large and complicated rulemakings, staff may analyze materials that parties have not submitted in the record, including materials such as state statutes, academic articles, blog posts, and company financial reports,” the notice said. It mentioned that FCC staff added such citations in the USF proceeding, while in the proceeding on net neutrality rules that were adopted last December staff added the full text of FCC papers, transcripts from the agency’s workshops and the like. “In both proceedings, however, a small number of commenters voiced concern that such submissions, toward the end of the proceeding, might not serve their intended purpose of promoting transparent decision-making and might, indeed, limit opportunities for meaningful responsive comment,” the notice said.

The burdens of what the notice asks about could be larger than the benefits to the public, said all longtime communications lawyers and good-governance experts we asked. “We seek comment on requiring parties to submit full copies of any materials cited in their pleadings or ex parte submissions,” since the switch to electronic filings makes that a “more viable” possibility, the notice said. It noted the commission has been steadily improving procedures, including changes to ex parte rules. The agency thinks “the public notice provides the right forum for engaging in those issues as we seek to determine if there are further improvements in addition to the many improvements we've made over the last couple of years” to commission processes, said a senior official. Agency officials declined to speak on the record.

October’s vote for the USF order let the FCC “catch our breath and take a look at the processes generally,” the senior agency official noted. Filings was “one area where we thought there might be benefit in soliciting input on further improvements,” the official said: “We are always looking for ways to improve here.” The agency hopes to get comments on the notice “from a lot of people,” the official said.

The notice seemed timed to address concerns from Republicans on Capitol Hill about what some legislators called document dumps by the FCC in the run-up to the votes on USF and net neutrality, said communications lawyers including Howard Weiss of Fletcher Heald. “I assume the purpose of this was to make the Hill happy, because they've been criticized for not being accessible enough and not being transparent enough,” he said of the agency. “It doesn’t seem like people are clamoring for this” otherwise, Weiss said. He used to help run the FCBA’s Access to Government Committee.

What the FCC asks about seems “a bit onerous,” said McGehee. “What anyone who files should be prepared to do is if you cite something, the FCC staff should be able to turn to you and say ‘produce it,’ and upon request you can produce it, and include the URL,” she said. “To say you have to include it all is a little bit overboard. At the same time, I can see from a staff level that they don’t want to go chasing after this” paperwork, she continued. Such new requirements “would be way too burdensome,” May said. It would be “costly for the commission to require parties to include all cited material in their filings,” he said. “The commission should encourage parties to include URLs when they are available, and it can say it will give less weight to authorities cited that are not readily available to the agency and to the public. But it should not go further than that."

The agency’s goals with the public notice “are laudable,” said communications lawyer Davina Sashkin, also of Fletcher Heald and current co-chairman of the FCBA access committee. “But as is obvious from the myriad questions raised in the request for comments, the devil is really in the details of implementation,” said Sashkin, who said she was speaking only for herself: “I think a lot of practitioners and parties before the FCC would value having ready access to cited materials -- it would certainly go a long way toward increasing transparency and informed decision-making. But at the same time, a requirement to include electronic copies of every document might actually discourage some debate where a party does not have the rights or means to reproduce the documentary evidence needed to accompany the filing. Even where a method seems to avoid that issue by being easy and simple, the implementation is difficult: For example, where a party provides third-party URLs for cited materials, is the filing party responsible for updating the docket when the URL changes? I imagine that many clients and fellow members of the bar would be in favor a policy which requests and encourages full disclosure of cited materials, but ... an enforceable requirement would be burdensome both for the FCC in implementation and enforcement, and burdensome for robust public participation.”