47 CFR Section 1.1204(b) Note

§ 1.1203

47 CFR Ch. I (10–1–05 Edition)

Written submissions made only to the Chairman or individual Commissioners will not
confer party status.
NOTE 3 TO PARAGRAPH (d): The fact that a
person is deemed a party for purposes of this
subpart does not constitute a determination
that such person has satisfied any other
legal or procedural requirements, such as the
operative requirements for petitions to deny
or requirements as to timeliness. Nor does it
constitute a determination that such person
has any other procedural rights, such as the
right to intervene in hearing proceedings.
The Commission or the staff may also determine in particular instances that persons
who qualify as ‘‘parties’’ under § 1.1202(d)
should nevertheless not be deemed parties
for purposes of this subpart.
NOTE 4 TO PARAGRAPH (d): Individual listeners or viewers submitting comments regarding a pending broadcast application pursuant to § 1.1204(a)(8) will not become parties
simply by service of the comments. The
Media Bureau may, in its discretion, make
such a commenter a party, if doing so would
be conducive to the Commission’s consideration of the application or would otherwise
be appropriate.
NOTE 5 TO PARAGRAPH (d): A member of
Congress or his or her staff, or other agencies or branches of the federal government or
their staffs will not become a party by service of a written submission regarding a pending proceeding that has not been designated
for hearing unless the submission affirmatively seeks and warrants grant of party status.

(e) Matter designated for hearing. Any
matter that has been designated for
hearing before an administrative law
judge or which is otherwise designated
for hearing in accordance with procedures in 5 U.S.C. 554.
[62 FR 15854, Apr. 3, 1997, as amended at 64
FR 68947, Dec. 9, 1999; 64 FR 72571, Dec. 28,
1999; 65 FR 56261, Sept. 18, 2000; 67 FR 13224,
Mar. 21, 2002]

plies with any ex parte restrictions in
this subpart;
(3) The presentation occurs in the
course of a widely attended speech or
panel discussion and concerns a Commission action in an exempt or a permit-but-disclose proceeding that has
been adopted (not including private
presentations made on the site of a
widely attended speech or panel discussion); or
(4) The presentation is made by a
member of Congress or his or her staff,
or by other agencies or branches of the
Federal government or their staffs in a
proceeding exempt under § 1.1204 or subject to permit-but-disclose requirements under § 1.1206. If the presentation
is of substantial significance and clearly intended to affect the ultimate decision, the presentation (or, if oral, a
summary of the presentation) must be
placed in the record of the proceeding
by Commission staff or by the presenter in accordance with the procedures set forth in § 1.1206(b).
(b) The prohibition set forth in paragraph (a) of this section applies from
the release of a public notice that a
matter has been placed on the Sunshine Agenda until the Commission:
(1) Releases the text of a decision or
order relating to the matter;
(2) Issues a public notice stating that
the matter has been deleted from the
Sunshine Agenda; or
(3) Issues a public notice stating that
the matter has been returned to the
staff for further consideration, whichever occurs first.
[62 FR 15855, Apr. 3, 1997, as amended at 64
FR 68947, Dec. 9, 1999]

GENERAL EXEMPTIONS
SUNSHINE PERIOD PROHIBITION
§ 1.1203

§ 1.1204 Exempt ex parte presentations
and proceedings.

Sunshine period prohibition.

(a) With respect to any Commission
proceeding, all presentations to decisionmakers concerning matters listed
on a Sunshine Agenda, whether ex
parte or not, are prohibited during the
period prescribed in paragraph (b) of
this section unless:
(1) The presentation is exempt under
§ 1.1204(a);
(2) The presentation relates to settlement negotiations and otherwise com-

(a) Exempt ex parte presentations. The
following types of presentations are exempt from the prohibitions in restricted proceedings (§ 1.1208), the disclosure requirements in permit-but-disclose proceedings (§ 1.1206), and the prohibitions during the Sunshine Agenda
period prohibition (§ 1.1203):
(1) The presentation is authorized by
statute or by the Commission’s rules to
be made without service, see, e.g.,

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Federal Communications Commission

§ 1.1204

§ 1.333(d), or involves the filing of required forms;
(2) The presentation is made by or to
the General Counsel and his or her
staff and concerns judicial review of a
matter that has been decided by the
Commission;
(3) The presentation directly relates
to an emergency in which the safety of
life is endangered or substantial loss of
property is threatened, provided that,
if not otherwise submitted for the
record, Commission staff promptly
places the presentation or a summary
of the presentation in the record and
discloses it to other parties as appropriate.
(4) The presentation involves a military or foreign affairs function of the
United States or classified security information;
(5) The presentation is to or from an
agency or branch of the Federal Government or its staff and involves a
matter over which that agency or
branch and the Commission share jurisdiction provided that, any new factual information obtained through
such a presentation that is relied on by
the Commission in its decision-making
process will, if not otherwise submitted
for the record, be disclosed by the Commission no later than at the time of
the release of the Commission’s decision;
(6) The presentation is to or from the
United States Department of Justice or
Federal Trade Commission and involves a telecommunications competition matter in a proceeding which has
not been designated for hearing and in
which the relevant agency is not a
party or commenter (in an informal
rulemaking or Joint board proceeding)
provided that, any new factual information obtained through such a presentation that is relied on by the Commission in its decision-making process will
be disclosed by the Commission no
later than at the time of the release of
the Commission’s decision;

involved does not wish such information to
be disclosed, the Commission will not disclose it and will disregard it in its decisionmaking process, unless it fits within another
exemption not requiring disclosure (e.g., foreign affairs). The fact that an agency’s views
are disclosed under paragraphs (a)(5) and
(a)(6) does not preclude further discussions
pursuant to, and in accordance with, the exemption.

NOTE 1 TO PARAGRAPH (a): Under paragraphs (a)(5) and (a)(6) of this section, information will be relied on and disclosure will
be made only after advance coordination
with the agency involved in order to ensure
that the agency involved retains control
over the timing and extent of any disclosure
that may have an impact on that agency’s
jurisdictional responsibilities. If the agency

(7) The presentation is between Commission staff and an advisory coordinating committee member with respect
to the coordination of frequency assignments to stations in the private
land mobile services or fixed services
as authorized by 47 U.S.C. 332;
(8) The presentation is a written
presentation made by a listener or
viewer of a broadcast station who is
not a party under § 1.1202(d)(1), and the
presentation relates to a pending application that has not been designated for
hearing for a new or modified broadcast station or license, for renewal of a
broadcast station license or for assignment or transfer of control of a broadcast permit or license;
(9) The presentation is made pursuant to an express or implied promise of
confidentiality to protect an individual
from the possibility of reprisal, or
there is a reasonable expectation that
disclosure would endanger the life or
physical safety of an individual;
(10) The presentation is requested by
(or made with the advance approval of)
the Commission or staff for the clarification or adduction of evidence, or
for resolution of issues, including possible settlement, subject to the following limitations:
(i) This exemption does not apply to
restricted proceedings designated for
hearing;
(ii) In restricted proceedings not designated for hearing, any new written
information elicited from such request
or a summary of any new oral information elicited from such request shall
promptly be served by the person making the presentation on the other parties to the proceeding. Information relating to how a proceeding should or
could be settled, as opposed to new information regarding the merits, shall
not be deemed to be new information
for purposes of this section. The Commission or its staff may waive the service requirement if service would be too

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§ 1.1204

47 CFR Ch. I (10–1–05 Edition)

burdensome because the parties are numerous or because the materials relating to such presentation are voluminous. If the service requirement is
waived, copies of the presentation or
summary shall be placed in the record
of the proceeding and the Commission
or its staff shall issue a public notice
which states that copies of the presentation or summary are available for inspection. The Commission or its staff
may determine that service or public
notice would interfere with the effective conduct of an investigation and
dispense with the service and public
notice requirements;
(iii) If the presentation is made in a
proceeding subject to permit-but-disclose requirements, disclosure of any
new written information elicited from
such request or a summary of any new
oral information elicited from such request must be made in accordance with
the requirements of § 1.1206(b), provided, however, that the Commission
or its staff may determine that disclosure would interfere with the effective
conduct of an investigation and dispense with the disclosure requirement.
As in paragraph (a)(10)(ii) of this section, information relating to how a
proceeding should or could be settled,
as opposed to new information regarding the merits, shall not be deemed to
be new information for purposes of this
section;
NOTE 2 TO PARAGRAPH (a): If the Commission or its staff dispenses with the service or
notice requirement to avoid interference
with an investigation, a determination will
be made in the discretion of the Commission
or its staff as to when and how disclosure
should be made if necessary. See Amendment
of Subpart H, Part I, 2 FCC Rcd 6053, 6054 ¶¶ 10–
14 (1987).

(iv) If the presentation is made in a
proceeding subject to the Sunshine period prohibition, disclosure must be
made in accordance with the requirements of § 1.1206(b) or by other adequate means of notice that the Commission deems appropriate;
(v) In situations where new information regarding the merits is disclosed
during settlement discussions, and the
Commission or staff intends that the
product of the settlement discussions
will be disclosed to the other parties or
the public for comment before any ac-

tion is taken, the Commission or staff
in its discretion may defer disclosure
of such new information until comment is sought on the settlement proposal or the settlement discussions are
terminated.
(11) The presentation is an oral presentation in a restricted proceeding not
designated for hearing requesting action by a particular date or giving reasons that a proceeding should be expedited other than the need to avoid administrative delay. A detailed summary of the presentation shall promptly be filed in the record and served by
the person making the presentation on
the other parties to the proceeding,
who may respond in support or opposition to the request for expedition, including by oral ex parte presentation,
subject to the same service requirement.
(12) The presentation is between
Commission staff and:
(i) The administrator of the interstate telecommunications relay services fund relating to administration of
the telecommunications relay services
fund pursuant to 47 U.S.C. 225;
(ii) The North American Numbering
Plan Administrator or the North
American Numbering Plan Billing and
Collection Agent relating to the administration of the North American
Numbering Plan pursuant to 47 U.S.C.
251(e);
(iii) The Universal Service Administrative Company relating to the administration of universal service support mechanisms pursuant to 47 U.S.C.
254; or
(iv) The Number Portability Administrator relating to the administration
of local number portability pursuant to
47 U.S.C. 251(b)(2) and (e); provided that
the relevant administrator has not
filed comments or otherwise participated as a party in the proceeding.
(b) Exempt proceedings. Unless otherwise provided by the Commission or
the staff pursuant to § 1.1200(a), ex parte
presentations to or from Commission
decision-making personnel are permissible and need not be disclosed with respect to the following proceedings,
which are referred to as ‘‘exempt’’ proceedings:
(1) A notice of inquiry proceeding;

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Federal Communications Commission

§ 1.1206

(2) A petition for rulemaking, except
for a petition requesting the allotment
of a broadcast channel (see also
§ 1.1206(a)(1)), or other request that the
Commission modify its rules, issue a
policy statement or issue an interpretive rule, or establish a Joint Board;
(3) A tariff proceeding (including directly associated waiver requests or requests for special permission) prior to
it being set for investigation (see also
§ 1.1206(a)(4));
(4) A proceeding relating to prescription of common carrier depreciation
rates under section 220(b) of the Communications Act prior to release of a
public notice of specific proposed depreciation rates (see also § 1.1206(a)(9));
(5) An informal complaint proceeding
under 47 U.S.C. 208 and § 1.717 of this
chapter or 47 U.S.C. 255 and either
§§ 6.17 or 7.17 of this chapter; and
(6) A complaint against a cable operator regarding its rates that is not
filed on the standard complaint form
required by § 76.951 of this chapter (FCC
Form 329).

§ 1.1204(a)) to or from Commission decision-making personnel are permissible
in the following proceedings, which are
referred to as permit-but-disclose proceedings, provided that ex parte presentations to Commission decision-making personnel are disclosed pursuant to
paragraph (b) of this section:

NOTES 1–3 TO PARAGRAPH (b): [Reserved]
NOTE 4 TO PARAGRAPH (b): In the case of petitions for rulemaking that seek Commission
preemption of state or local regulatory authority, the petitioner must serve the original petition on any state or local government, the actions of which are specifically
cited as a basis for requesting preemption.
Service should be made on those bodies within the state or local governments that are legally authorized to accept service of legal
documents in a civil context. Such pleadings
that are not served will be dismissed without
consideration as a defective pleading and
treated as a violation of the ex parte rules
unless the Commission determines that the
matter should be entertained by making it
part of the record under § 1.1212(d) and the
parties are so informed.
[62 FR 15855, Apr. 3, 1997, as amended at 64
FR 63251, Nov. 19, 1999; 64 FR 68948, Dec. 9,
1999]

NON-RESTRICTED PROCEEDINGS
§ 1.1206 Permit-but-disclose
proceedings.
(a) Unless otherwise provided by the
Commission or the staff pursuant to
§ 1.1200(a), until the proceeding is no
longer subject to administrative reconsideration or review or to judicial review, ex parte presentations (other than
ex parte presentations exempt under

NOTE 1 TO PARAGRAPH (a): In the case of petitions for declaratory ruling that seek Commission preemption of state or local regulatory authority and petitions for relief
under 47 U.S.C. 332(c)(7)(B)(v), the petitioner
must serve the original petition on any state
or local government, the actions of which
are specifically cited as a basis for requesting preemption. Service should be made on
those bodies within the state or local governments that are legally authorized to accept
service of legal documents in a civil context.
Such pleadings that are not served will be
dismissed without consideration as a defective pleading and treated as a violation of
the ex parte rules unless the Commission determines that the matter should be entertained by making it part of the record under
§ 1.1212(d) and the parties are so informed.

(1) An informal rulemaking proceeding conducted under section 553 of
the Administrative Procedure Act
other than a proceeding for the allotment of a broadcast channel, upon release of a Notice of Proposed Rulemaking (see also § 1.1204(b)(2));
(2) A proceeding involving a rule
change, policy statement or interpretive rule adopted without a Notice of
Proposed Rule Making upon release of
the order adopting the rule change,
policy statement or interpretive rule;
(3) A declaratory ruling proceeding;
(4) A tariff proceeding which has been
set for investigation under section 204
or 205 of the Communications Act (including directly associated waiver requests or requests for special permission) (see also § 1.1204(b)(4));
(5) Unless designated for hearing, a
proceeding under section 214(a) of the
Communications Act that does not also
involve applications under Title III of
the Communications Act (see also
§ 1.1208);
(6) Unless designated for hearing, a
proceeding involving an application for
a Cable Landing Act license that does
not also involve applications under
Title III of the Communications Act
(see also § 1.1208);

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