47 CFR Section 1.1206(a) Note 1

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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§ 1.1206

47 CFR Ch. I (10–1–05 Edition)

(7) A proceeding involving a request
for information filed pursuant to the
Freedom of Information Act;
NOTE 2 TO PARAGRAPH (a): Where the requested information is the subject of a request for confidentiality, the person filing
the request for confidentiality shall be
deemed a party.

(8) A proceeding before a Joint Board
or a proceeding before the Commission
involving a recommendation from a
Joint Board;
(9) A proceeding conducted pursuant
to section 220(b) of the Communications Act for prescription of common
carrier depreciation rates upon release
of a public notice of specific proposed
depreciation
rates
(see
also
§ 1.1204(b)(4));
(10) A proceeding to prescribe a rate
of return for common carriers under
section 205 of the Communications Act;
and
(11) A cable rate complaint proceeding pursuant to section 623(c) of
the Communications Act where the
complaint is filed on FCC Form 329.
(12) A modification request filed pursuant to § 64.1001 of this chapter;
(13) Applications by Bell Operating
Companies
to
provide
in-region,
interLATA services pursuant to § 271(d)
of the Communications Act; and
(14) Petitions for Commission preemption of authority to review interconnection agreements under § 252(e)(5)
of the Communications Act and petitions for preemption under § 253 of the
Communications Act.
NOTE 3 TO PARAGRAPH (a): In a permit-butdisclose proceeding involving only one
‘‘party,’’ as defined in § 1.1202(d) of this section, the party and the Commission may
freely make presentations to each other and
need not comply with the disclosure requirements of paragraph (b) of this section.

(b) The following disclosure requirements apply to ex parte presentations
in permit but disclose proceedings:
(1) Written presentations. A person
who makes a written ex parte presentation subject to this section shall, no
later than the next business day after
the presentation, submit two copies of
the presentation to the Commission’s
secretary under separate cover for inclusion in the public record. The presentation (and cover letter) shall clearly identify the proceeding to which it

relates, including the docket number,
if any, shall indicate that two copies
have been submitted to the Secretary,
and must be labeled as an ex parte
presentation. If the presentation relates to more than one proceeding, two
copies shall be filed for each proceeding. Alternatively, in rulemaking
proceedings governed by § 1.49(f), the
person making the presentation may
file one copy of the presentation electronically; no additional paper copies
need to be filed.
(2) Oral presentations. A person who
makes an oral ex parte presentation
subject to this section that presents
data or arguments not already reflected in that person’s written comments, memoranda or other filings in
that proceeding shall, no later than the
next business day after the presentation, submit to the Commission’s
Secretary, an original and one copy of
a memorandum which summarizes the
new data or arguments. Except in proceedings subject to § 1.49(f) in which
pleadings are filed electronically, a
copy of the memorandum must also be
submitted to the Commissioners or
Commission employees involved in the
oral presentation. In proceedings governed by § 1.49(f), the person making
the presentation may, alternatively,
electronically file one copy of the
memorandum, which will be available
to Commissioners and Commission employees involved in the presentation
through the Commission’s electronic
comment filing system. Memoranda
must contain a summary of the substance of the ex parte presentation and
not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. The memorandum (and cover
letter) shall clearly identify the proceeding to which it relates, including
the docket number, if any, shall indicate that an original and one copy have
been submitted to the Secretary or
that one copy has been filed electronically, and must be labeled as an ex
parte presentation. If the presentation
relates to more than one proceeding,
two copies of the memorandum (or an
original and one copy) shall be filed for
each proceeding.

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Federal Communications Commission

§ 1.1208

NOTE 1 TO PARAGRAPH (b): Where, for example, presentations occur in the form of discussion at a widely attended meeting, preparation of a memorandum as specified in the
rule might be cumbersome. Under these circumstances, the rule may be satisfied by
submitting a transcript or tape recording of
the discussion as an alternative to a memorandum.

or, if the matter is on reconsideration, the
reconsideration reply comment period.

(3) Notwithstanding paragraphs (b)(1)
and (b)(2) of this section, in permit-butdisclose
proceedings
presentations
made by members of Congress or their
staffs or by an agency or branch of the
Federal Government or its staff shall
be treated as ex parte presentations
only if the presentations are of substantial significance and clearly intended to affect the ultimate decision.
The Commission staff shall prepare a
written summary of any such oral presentations and place them in the record
in accordance with paragraph (b)(2) of
this section and place any such written
presentations in the record in accordance with paragraph (b)(1) of this section.
(4) Notice of ex parte presentations. The
Commission’s Secretary or, in the case
of non-docketed proceedings, the relevant Bureau or Office shall place in
the public file or record of the proceeding written ex parte presentations
and memoranda reflecting oral ex parte
presentations. The Secretary shall
issue a public notice listing any written ex parte presentations or written
summaries of oral ex parte presentations received by his or her office relating to any permit-but-disclose proceeding. Such public notices should
generally be released at least twice per
week.
NOTE 2 TO PARAGRAPH (b): Interested persons should be aware that some ex parte filings, for example, those not filed in accordance with the requirements of this paragraph
(b), might not be placed on the referenced
public notice. All ex parte presentations and
memoranda filed under this section will be
available for public inspection in the public
file or record of the proceeding, and parties
wishing to ensure awareness of all filings
should review the public file or record.
NOTE 3 TO PARAGRAPH (b): As a matter of
convenience, the Secretary may also list on
the referenced public notices materials, even
if not ex parte presentations, that are filed
after the close of the reply comment period

[62 FR 15856, Apr. 3, 1997, as amended at 63
FR 24126, May 1, 1998; 64 FR 68948, Dec. 9,
1999; 66 FR 3501, Jan. 16, 2001]

RESTRICTED PROCEEDINGS
§ 1.1208 Restricted proceedings.
Unless otherwise provided by the
Commission or its staff pursuant to
§ 1.1200(a) of this section, ex parte presentations (other than ex parte presentations exempt under § 1.1204(a) of this
section) to or from Commission decision-making personnel are prohibited
in all proceedings not listed as exempt
in § 1.1204(b) or permit-but-disclose in
§ 1.1206(a) of this section until the proceeding is no longer subject to administrative reconsideration or review or
judicial review. Proceedings in which
ex parte presentations are prohibited,
referred to as ‘‘restricted’’ proceedings,
include, but are not limited to, all proceedings that have been designated for
hearing, proceedings involving amendments to the broadcast table of allotments, applications for authority
under Title III of the Communications
Act, and all waiver proceedings (except
for those directly associated with tariff
filings).
NOTE 1 TO § 1.1208: In a restricted proceeding involving only one ‘‘party,’’ as defined in § 1.1202(d), the party and the Commission may freely make presentations to
each other because there is no other party to
be served or with a right to have an opportunity to be present. See § 1.1202(b). Therefore, to determine whether presentations are
permissible in a restricted proceeding without service or notice and an opportunity for
other parties to be present the definition of
a ‘‘party’’ should be consulted.
Examples:
After
the
filing
of
an
uncontested application or waiver request,
the applicant or other filer would be the sole
party to the proceeding. The filer would have
no other party to serve with or give notice of
any presentations to the Commission, and
such presentations would therefore not be
‘‘ex parte presentations’’ as defined by
§ 1.1202(b) and would not be prohibited. On
the other hand, in the example given, because the filer is a party, a third person who
wished to make a presentation to the Commission concerning the application or waiver
request would have to serve or notice the
filer. Further, once the proceeding involved
additional ‘‘parties’’ as defined by § 1.1202(d)
(e.g., an opponent of the filer who served the

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