SUPPLEMENTARY INFORMATION:
OMB Control Number:
3060–0430.
Title:
Section 1.1206, Permit-but-Disclose Proceedings.
Form Number:
N/A.
Type of Review:
Revision of a currently approved collection.
Respondents:
Individuals or households; Business or other for-profit; Not-for-profit institutions; Federal Government; and State, local, or tribal governments.
Number of Respondents and Responses:
11,500 respondents; 11,500 responses.
Estimated Time per Response:
45 minutes (0.75 hours).
Frequency of Response:
On occasion reporting requirements.
Obligation to Respond:
Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 4(i) and (j), 303(r), and 409 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i) and (j), 303(r), and 409.
Total Annual Burden:
25,875 hours.
Total Annual Cost:
$0.00.
Privacy Act Impact Assessment:
No impact(s).
Nature and Extent of Confidentiality:
Consistent with the Commission's rules on confidential treatment of submissions, under 47 CFR 0.459, a presenter may request confidential treatment of
ex parte
presentations. In addition, the Commission will permit parties to remove metadata containing confidential or privileged information, and the Commission will also not require parties to file electronically
ex parte
notices that contain confidential information. The Commission will, however, require a redacted version to be filed electronically at the same time the paper filing is submitted, and that the redacted version must be machine-readable whenever technically possible.
Needs and Uses:
The Commission's rules, under 47 CFR 1.1206, require that a public record be made of
ex parte
presentations (
i.e.,
written presentations not served on all parties to the proceeding or oral presentations as to which all parties have not been given notice and an opportunity to be present) to decision-making personnel in “permit-but-disclose” proceedings, such as notice-and-comment rulemakings and declaratory ruling proceedings.
On February 2, 2011, the FCC released a
Report and Order and Further Notice of Proposed Rulemaking,
GC Docket Number 10–43, FCC 11–11, which amended and reformed the Commission's rules on
ex parte
presentations (47 CFR 1.1206(b)(2)) made in the course of Commission rulemakings and other permit-but-disclose proceedings. The modifications to the existing rules adopted in this Report and Order require that parties file more descriptive summaries of their
ex parte
contacts, by ensuring that other parties and the public have an adequate opportunity to review and respond to information submitted
ex parte,
and by improving the FCC's oversight and enforcement of the
ex parte
rules. The modified
ex parte
rules provide as follows: (1)
Ex parte
notices will be required for all oral
ex parte
presentations in permit-but-disclose proceedings, not just for those presentations that involve new information or arguments not already in the record; (2) If an oral
ex parte
presentation is limited to material already in the written record, the notice must contain either a succinct summary of the matters discussed or a citation to the page or paragraph number in the party's written submission(s) where the matters discussed can be found; (3) Notices for all
ex parte
presentations must include the name of the person(s) who made the
ex parte
presentation as well as a list of all persons attending or otherwise participating in the meeting at which the presentation was made; (4) Notices of
ex parte
presentations made outside the Sunshine period must be filed within two business days of the presentation; (5) The Sunshine period will begin on the day (including business days, weekends, and holidays) after issuance of the Sunshine notice, rather than when the Sunshine Agenda is issued (as the current rules provide); (6) If an
ex parte
presentation is made on the day the Sunshine notice is released, an
ex parte
notice must be submitted by the next business day, and any reply would be due by the following business day. If a permissible
ex parte
presentation is made during the Sunshine period (under an exception to the Sunshine period prohibition), the
ex parte
notice is due by the end of the same day on which the presentation was made, and any reply would need to be filed by the next business day. Any reply must be in writing and limited to the issues raised in the
ex parte
notice to which the reply is directed; (7) Commissioners and agency staff may continue to request
ex parte
presentations during the Sunshine period, but these presentations should be limited to the specific information required by the Commission; (8)
Ex parte
notices must be submitted electronically in machine-readable format. PDF images created by scanning a paper document may not be submitted, except in cases in which a word-processing version of the document is not available. Confidential information may continue to be submitted by paper filing, but a redacted version must be filed electronically at the same time the paper filing is submitted. An exception to the electronic filing requirement will be made in cases in which the filing party claims hardship. The basis for the hardship claim must be substantiated in the
ex parte
filing; (9) To facilitate stricter enforcement of the
ex parte
rules, the Enforcement Bureau is authorized to levy forfeitures for
ex parte
rule violations; (10) Copies of electronically filed
ex parte
notices must also be sent electronically to all staff and Commissioners present at the
ex parte
meeting so as to enable them to review the notices for accuracy and completeness. Filers may be asked to submit corrections or further information as necessary for compliance with the rules; and (11) Minor conforming and clarifying rule changes proposed in the Notice are adopted. The only changes entailing increased information collection are the requirement that parties making permissible
ex parte
presentations in restricted proceedings file an
ex parte
notice, and that
ex parte
notices contain either a summary of the presentation or a reference to where the information can be found in the written record, and that
ex parte
notices list all persons attending the presentation.
The information is used by parties to permit-but-disclose proceedings, including interested members of the public, to respond to the arguments made and data offered in the presentations. The responses may then be used by the Commission in its decision-making. The availability of the
ex parte
materials ensures that the Commission's decisional processes are fair, impartial, and comport with the concept of due process in that all interested parties can know of and respond to the arguments made to the decision-making officials.
On May 10, 2011, the Commission published a notice in the
Federal Register
(76 FR 27048) announcing that it had sought OMB approval under the emergency processing provisions of the PRA for this information collection. OMB approved this collection as an emergency on May 16, 2011. With this 60-day notice, the Commission is beginning the regular PRA process seeking OMB approval for this collection for three years.
Federal Communications Commission.
Marlene H. Dortch,
Secretary, Office of the Secretary, Office of Managing Director.