2020-17266. Updating the Commission's Ex Parte Rules

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule.

SUMMARY:

In this document, the Commission begins a new proceeding to consider several updates to the Commission's ex parte rules. First, the Commission seeks comment on a proposal to exempt from its ex parte rules, in certain proceedings, government-to-government consultations between the Commission and federally recognized Tribal Nations. Second, the Commission seeks comment on a proposal to extend the exemption to its ex parte rules for communications with certain program administrators, such as the Universal Service Administrative Company, to include the Toll-Free Numbering Administrator and the Reassigned Numbers Database Administrator, and to clarify the conditions under which this exemption applies. Third, the Commission seeks comment on a proposal to require that all written ex parte presentations and written summaries of oral ex parte presentations (other than presentations that are permitted during the Sunshine period) be submitted before the Sunshine period begins and to require that replies to these ex parte presentations be filed within the first day of the Sunshine period.

DATES:

Comments due on or before October 2, 2020; reply comments due on or before November 2, 2020.

FOR FURTHER INFORMATION CONTACT:

Mr. Max Staloff of the Office of General Counsel, at [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking, GC Docket No. 20-221, FCC 20-92, adopted on July 8, 2020 and released on July 9, 2020. The full text of this document is available for public inspection by downloading the text from the Commission's website at https://www.fcc.gov/​document/​updating-commissions-ex-parte-rules. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to [e-mail] or calling the Commission's Consumer and Governmental Affairs Bureau at [phone] (voice), [phone] (TTY).

Synopsis

1. The Commission seeks comment on three proposals: (1) Exempting from Commission ex parte rules certain government-to-government consultations between Commission staff and leaders and official representatives of federally recognized Tribal Nations; (2) clarifying the ex parte exemption for the administrators of certain Commission programs and expanding that exemption to include the Toll-Free Numbering Administrator and the Reassigned Numbers Database Administrator; and (3) modifying the filing deadlines for presentations made shortly before the beginning of the Sunshine period and replies to those presentations as set forth in 47 CFR 1.1206(b)(2).

Exemption to Ex Parte Rules for Government-to-Government Tribal Consultations

2. The Commission's existing ex parte rules have no exemptions or provisions tailored to presentations to or from federally recognized Tribal Nations. Throughout this Notice of Proposed Rulemaking, “Tribes” or “Tribal Nations” mean those Nations, including Alaska Native Villages, that have been granted federal recognition. Thus, in a permit-but-disclose proceeding, written presentations and summaries of oral presentations between a Tribal representative and Commission staff must be filed as prescribed in the rules, unless an exemption applies. In a restricted proceeding, ex parte presentations are forbidden, and those presentations that are permitted must be filed or summarized in the record. In addition, the Sunshine period prohibitions apply fully to presentations to or from representatives of Tribal Nations.

3. Outside the Tribal context, the Commission has created exemptions from the ex parte rules for communications with particular parties where the circumstances require a greater degree of confidentiality than the rules would otherwise permit. Many of these exemptions are subject to conditions appropriate to the circumstances of each exemption. For example, presentations involving a military or foreign affairs function of the United States or classified security information are exempt from disclosure requirements and Sunshine restrictions without limitation. Presentations to or from an agency or branch of the Federal Government involving a matter of shared jurisdiction with the Commission are similarly exempt, but this exemption is subject to the condition that the Commission disclose any new factual information adduced from these presentations that it relies on its decision-making. In the case of presentations requested by the Commission or staff to clarify or adduce evidence or to resolve issues, any new information elicited must ordinarily be promptly disclosed, subject to certain exceptions. In yet another variant, if an exempt presentation is made that directly relates to an emergency in which the safety of life is endangered or substantial loss of property is threatened, the presentation or a summary must be promptly placed in the record and disclosed to other parties “as appropriate.”

4. The relationship between the United States Government and federally recognized Tribal Nations is unique. The Federal Government has a trust relationship with Indian Tribes, and this historic relationship requires the Federal Government to adhere to certain fiduciary standards in its dealings with Indian Tribes. Certain statutes also impose legal obligations on the Commission to consult with Tribal governments regarding categories of actions that could affect Tribal interests. In recognition of this relationship, the Commission has established a policy to consult with Tribal governments, to the extent practicable, prior to implementing any regulatory action or policy that will significantly or uniquely affect Tribal governments, their land and resources. The consultation process implies a frank exchange of information and views, with the goal of reaching common understandings to the extent practicable.

5. In light of this unique relationship and to facilitate consultation, the Commission proposes to adopt a new exemption for government-to-government consultations with federally recognized Tribal Nations that relate to permit-but-disclose proceedings. While the Commission encourages Tribal Nations and their representatives, like other parties, to file comments and reply comments that may be considered on the record in such proceedings, the Commission recognizes their interest in consulting on a government-to-government basis without concern about documenting such consultations on the rulemaking record in every case. Previously, the Commission has modified the ex parte rules on a case-by-case basis in rulemaking proceedings that have significantly or uniquely affected Tribal Nations to enable government-to-government consultation outside of the public record while also ensuring that any facts and arguments on which the Commission relies in its decision-making process are placed in the record. Based on the Commission's experience in these proceedings, the Commission proposes to codify this exemption for all permit-but-disclose proceedings. Specifically, under this proposed exemption, Commission staff and authorized representatives of Tribal governments could consult on a government-to-government basis without having to disclose the fact or content of their discussions through an ex parte filing in the record of any permit-but-disclose proceedings to which they relate. If, however, a Tribe were to wish the Commission to rely on views or materials presented during such consultations in its decision-making, it would need to disclose the relevant information in the record of the proceeding. If the Commission were to desire, on its own initiative, to rely on information presented during Tribal consultation, the Commission would coordinate with the Tribal government and obtain its consent to disclose such information. If such consent were denied, the Commission would forgo reliance on the information. Finally, new information could not be added to the record during the Sunshine period by a Tribal government (like any other party) unless requested or authorized by the Commission or its staff, or unless another exception were to apply.

6. The Commission seeks comment on this proposal. As an initial matter, the Commission seeks comment on whether codifying an exemption for all permit-but-disclose proceedings would be more efficient than continuing to modify the ex parte rules on a case-by-case basis. In particular, while not all rulemakings or other permit-but-disclose proceedings implicate issues that significantly or uniquely affect Tribal government interests, it is not always possible to predict in which proceedings such issues will arise. By proposing an exemption that would apply to all permit-but-disclose proceedings, the Commission aims to avoid the need to promulgate special procedures during the course of a proceeding when Tribal interests come to light such that government-to-government consultation is appropriate. Furthermore, the Commission is concerned that it may inhibit consultation, and impose burdens on both Tribal governments and Commission staff, if the parties must be concerned about whether anything said during potentially wide-ranging consultations might implicate issues in any permit-but-disclose proceeding. The Commission invites comment on whether an exemption applicable to all permit-but-disclose proceedings would appropriately and effectively avoid these harms. Are there offsetting considerations that counsel against applying this exemption to all permit-but-disclose proceedings? Are there any classes of rulemakings or other permit-but-disclose proceedings that should be excluded from the exemption, and if so, how can they be identified?

7. Consistent with Commission policy, the Commission proposes to limit the exemption to presentations in the course of consultation with leaders or authorized representatives of Tribal governments. Thus, it would not encompass presentations to or from an individual Tribal member, or an employee or official of a Tribally owned business, unless that person has been authorized by the Tribal government to represent its interests in the relevant matter. It also would not encompass a presentation to or from a Tribal government official that is not in the nature of consultation; i.e., involving a matter significantly or uniquely affecting the Tribal government, its land and resources. For example, it would not include a presentation by a Tribal leader regarding the leader's personal financial interests. The Commission seeks comment on whether these conditions appropriately and sufficiently limit the scope of the exemption to government-to-government consultation. Is further specificity needed in defining the scope of the exemption, and if so, how should the definition be refined?

8. The Commission further seeks comment on the proposal that any information a Tribal government presents during an exempt consultation, including factual information, views, and arguments, would need to be disclosed on the record in order for the Commission to rely on that information when rendering a decision in any proceeding. The Commission believes this proposed disclosure requirement will ensure that Commission decisions are transparent and that all parties will have a reasonable opportunity to respond to information of decisional significance, as required under the Administrative Procedure Act, while preserving the ability of Tribal governments to consult with the Commission in confidence if they so choose. To the extent otherwise permitted under Commission rules, a Tribal Nation could submit confidential materials in the record with a request that they be withheld from public inspection. Does this proposed disclosure provision effectively advance both of these ends and, if not, what alternative would serve those ends better? In addition, the Commission proposes that if the Commission wishes on its own initiative to rely on information originally presented by a Tribal Nation during exempt consultation, the Commission would coordinate with the Tribal government before disclosing such information and would disregard any material it does not want disclosed. The Commission invites comment on this proposal.

9. The Commission also seeks comment on the timing of disclosure. Under the exemption that the Commission proposes, outside of the Sunshine period, Tribal governments could submit information originally presented during an exempt consultation into the record at any time. Thus, a Tribe that delays submitting such information into the record (like any party that chooses to wait until late in the process to make an ex parte presentation) would bear the risk of acting too late for the Commission to consider the information while affording other parties a reasonable opportunity to respond. To partially address this concern, the ex parte rules ordinarily require that a permissible written presentation, or a written summary of an oral presentation, be included in the record within a specified period of time after the presentation is made, usually two business days. Should the Commission similarly require that, in order to be considered, information must be submitted in the record within some time period after it is presented in consultation? If so, what should that time period be, and how might the Commission best administer the requirement given that the same information may be presented in multiple consultation sessions? Would such a requirement inhibit consultation by forcing Tribal governments to consider whether, by presenting information and views during consultation and not promptly submitting them in the record, they might preclude future consideration of such information and views as part of the Commission's decision-making process?

10. During the Sunshine period, however, the Commission proposes a different regime. Specifically, the Commission proposes that Commission officials and Tribal government representatives be permitted to continue consulting during the Sunshine period. However, unless another exemption applies, information presented during such consultation could be submitted into the record, and relied upon by the Commission, only if the Commission or its staff either requests its submission or approves its submission upon a Tribe's request. Similarly, information presented prior to the Sunshine period in the course of exempt consultation could be entered into the record during the Sunshine period only upon the Commission's request or with its approval. The Commission believes this proposal will advance both the Commission's policy of consulting with Tribal Nations regarding their interests and the policy underlying the Sunshine rules to afford a period of repose in the record before major decisions are made. The Commission seeks comment on this proposal. Would any other rule better balance the policy considerations underlying both government-to-government consultation and the Sunshine period?

11. The Commission does not propose to extend any exemption from the ex parte rules for presentations made in government-to-government consultation to restricted proceedings. The Commission recognizes that adjudications or other restricted proceedings may significantly affect the governments, land, and resources of individual Tribal Nations. For example, a contested licensing proceeding may overlap with consideration of the effects of an undertaking on a historic property of traditional religious and cultural importance to one or more Tribal Nations, which requires consultation under the National Historic Preservation Act. Nonetheless, the Commission believes that the nature of private party interests in many restricted proceedings, for example, license application proceedings, counsels against routinely permitting undisclosed consultations that may bear upon the issues in those proceedings. A Tribal Nation could request confidential treatment for material submitted into the record of a restricted proceeding to the extent permitted under Commission rules. The Commission seeks comment on this analysis. Is there any objectively identifiable subset of restricted proceedings for which the benefits of undisclosed consultation outweigh the potential for harm?

12. To be clear, although the Commission is not proposing any general exemption applicable to restricted proceedings, Commission staff would retain flexibility in specific proceedings to modify the applicable ex parte rules in the public interest. For example, staff could designate an otherwise restricted proceeding as permit-but-disclose. Under the exemption that the Commission proposes, such designation would both enable Commission staff to engage in dialogue with Tribal governments and other entities without inviting other parties to be present, subject to disclosure, and allow undisclosed consultation with Tribal governments, provided the Commission does not rely in rendering its decisions on any undisclosed information presented. Alternatively, or in addition, members of the Office of Native Affairs and Policy, or other Commission staff, could be designated as non-decisionmakers in any proceeding. This designation would allow the separated staff to communicate with Tribal government representatives outside of the ex parte restrictions, but they would not be able to have ex parte communications with decision-making staff except as otherwise permitted.

13. The Commission believes that given the unique nature of each restricted proceeding, it will be most efficient for staff to continue modifying the ex parte rules as needed on a case-by-case basis. The Commission seeks comment on this tentative conclusion and on whether the Commission should instead promulgate rules or guidelines. For example, should any class of proceedings that is currently restricted be presumptively designated permit-but-disclose so as to facilitate government-to-government consultation? Should the Commission designate the Office of Native Affairs and Policy as presumptively separated staff in restricted proceedings, or some subset of restricted proceedings, so that they can speak off the record with Tribal Nations but cannot communicate with decision-making staff except to the extent permitted under the ex parte rules? Instead of ex ante rules, should the Commission issue guidelines to inform staff in exercising their discretion whether to modify the ex parte rules for any particular restricted proceeding?

14. Finally, the Commission recognizes that Commission rules governing Tribal consultation and Tribal participation in Commission proceedings themselves significantly or uniquely affect Tribal governments, their land and resources. The Commission therefore directs the Office of Native Affairs and Policy, Consumer and Governmental Affairs Bureau, to arrange opportunities for consultation appropriate to the nature and circumstances of this proceeding. In addition, to facilitate consultation, the Commission modifies the ex parte rules for this proceeding as described in the Procedural Matters section of this document.

Exemption for Presentations Between Commission Staff and Program Administrators

15. The Commission also seeks comment on two proposed revisions to 47 CFR 1.1204(a)(12). That section currently classifies as exempt presentations between Commission staff and the interstate telecommunications relay services fund administrator, the North American Numbering Plan Administrator, the Universal Service Administrative Company, the Local Number Portability Administrator, the TRS Numbering Administrator, and the Pooling Administrator relating to their administrative functions. The exemption permits the various administrators to engage in the frequent and close communications with Commission staff necessary to exercise their administrative functions efficiently.

16. The Commission proposes that the exemption be expanded to include the Toll-Free Numbering Administrator and the Reassigned Numbers Database Administrator. The relationship between the Toll-Free Numbering Administrator and the Commission in the administration of the Toll-Free Number Database is substantially the same as that of the other administrators to the Commission in the performance of their administrative responsibilities. Likewise, the relationship between the Reassigned Numbers Database Administrator and the Commission in the administration of the Reassigned Numbers Database is substantially the same as that of the other administrators to the Commission in the performance of their administrative responsibilities. Accordingly, the Commission believes that presentations involving the Toll-Free Numbering Administrator and Reassigned Numbers Database Administrator should be treated the same as those involving the other administrators. The Commission proposes to amend section 1.1204(a)(12) accordingly, and the Commission seeks comment on this proposal. Should the Toll-Free Numbering Administrator and the Reassigned Number Database Administrator be included among those subject to the exemption? Are there other administrators that should also be included?

17. As a related matter, in reviewing § 1.1204(a)(12), the Commission notes an anomaly. As applied to five of the six administrators covered, the exemption is categorical. However, § 1.1204(a)(12)(iv) applies only if the Local Number Portability Administrator “has not filed comments or otherwise participated in the proceeding.”

18. The Commission can think of no reason to treat one administrator differently from the others and attributes the discrepancy to an apparent oversight. When the Commission enacted the first four subsections of the rules, the Commission intended the caveat to apply to all the administrators. Consistent with this intent, the caveat was drafted to apply to “the relevant administrator” and was apparently intended to follow, but not to be part of, what was then the final subsection of § 1.1204(a)(12). Subsequently, however, when the final two administrators were added, the caveat was not moved to the end of the subsection, making it appear that the caveat applied only to the Local Number Portability Administrator.

19. The Commission believes that applying the caveat to all the administrators would both effectuate the Commission's original intent and constitute sound policy. It is consistent with the overall philosophy of the ex parte rules to distinguish between situations in which an administrator is acting as a consultant or co-decisionmaker and situations in which the administrator is acting as a party. Except where there is an overriding reason to do so, the ex parte rules generally do not treat presentations involving a party as exempt. The Commission therefore proposes to revise the rule to make clear that the caveat is applicable to all the administrators. The Commission seeks comment on this proposal. Should the exclusion from the exemption for filing comments or otherwise participating as a party be applied to all administrators? Alternatively, should the exclusion be eliminated? Is there any reason to treat one administrator differently from another?

Amendment to Commission's Sunshine Period Ex Parte Rules

20. A Sunshine Agenda or Sunshine notice is typically released seven days before a Commission meeting and lists the items that will be presented to the Commission. The period between the release of the Sunshine Agenda and the Commission meeting is intended to provide decision-makers a “period of repose” during which they can consider the upcoming items free from outside interruptions. Although the Commission intended to establish a week-long “period of repose,” the existing rules do not in fact ensure a week-long period without changes to the record. Generally, the Commission prohibits ex parte communications made during the Sunshine period. As an exception to the rule, however, the Commission does not apply the Sunshine prohibition to the filing of a written ex parte presentation or a memorandum summarizing an oral ex parte presentation made on the day the Sunshine notice is released. In those cases, the ex parte filing must be submitted no later than the end of the next business day, and replies are due 24 hours after that. For example, assume a party makes an ex parte presentation in a permit-but-disclose proceeding to a Commissioner on a Friday. That same day, the Commission's Secretary releases the Sunshine Agenda for the next Commission meeting and that proceeding appears on the Agenda. The Sunshine period begins as of Saturday, and therefore the presenting party must file its ex parte notice by the end of the day (11:59:59 p.m.) on Monday, the next business day. Importantly, an entity making an ex parte presentation two days before the start of Sunshine would also have to submit its ex parte notice by the end of the day that the Sunshine period begins. Using the example from the text above, if an ex parte presentation is made on a Thursday and the Sunshine period begins Saturday, the ex parte notice would have to be submitted by 11:59:59 p.m. on Monday. In either event, a reply would be due by the end of the day (11:59:59 p.m.) on Tuesday. Importantly, if an ex parte notice is filed at 11:59:59 p.m. on Tuesday, it will not be available to Commission staff and the public until early Wednesday morning.

21. Given that filings vital to the proceeding may not be available to Commission staff and the public until well into the “period of repose,” the Commission and its staff have periodically encountered challenges fully evaluating all relevant filings in the limited time before a Commission meeting. Similarly, the Commission expects that the effective shortening of the period of repose may limit the ability of members of the public fully to evaluate the record. As a result, the Commission proposes to require parties to file ex parte notices of all presentations, other than presentations permissibly made during the Sunshine period pursuant to some other exception, before the Sunshine period begins, with replies due 24 hours after that. Applying the prior example to the proposed rule change, consider that a party makes an ex parte presentation in a permit-but-disclose proceeding to a Commissioner on a Friday. That same day, the Commission's Secretary releases the Sunshine Agenda for the next Commission meeting and that proceeding appears on the Agenda. The Sunshine period begins as of Saturday, and therefore the presenting party must file its ex parte notice by the end of the day (11:59:59 p.m.) on Friday. A reply would be due by the end of the day (11:59:59 p.m.) on Monday. Because the dates of Commission Open Meetings are publicly available, and because the Sunshine notice is routinely released seven days before the Commission meeting, the Commission expects parties will know ahead of time whether their ex parte meetings will fall on the date before the Sunshine period is due to begin, and thus have foreknowledge that their ex parte notices would be due at the end of that day. Furthermore, given the Commission's practice of announcing the tentative agenda and releasing draft items three weeks before the meeting date, parties should have ample time to prepare their arguments and schedule meetings earlier than the last permissible date if they choose to do so.

22. The Commission seeks comment on this proposal. For example, will ensuring a more complete “period of repose” better enable Commission staff and the public to evaluate the record and the relevant issues, thereby leading to better and more informed decisions? What steps, if any, should the Commission take to ensure that parties making presentations to the Commission on the day before the Sunshine period begins are aware that they must file their ex parte notices in a timely manner? Will requiring that ex parte notices be submitted before the Sunshine period begins be unduly burdensome for parties meeting with the Commission? Assuming this rule is adopted, if a party fails to submit an ex parte notice by the required time, should the party be sanctioned by the Commission or should its notice not be included in the record?

Procedural Matters

23. Paperwork Reduction Act Analysis.— This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

24. Regulatory Flexibility Act. This proposed action would amend a procedural rule for which notice and comment are not required under the Administrative Procedure Act, and it therefore falls outside of the Regulatory Flexibility Act of 1980, as amended.

25. Filing Requirements.—Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/​ecfs/​.
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/​document/​fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
• During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

26. People with Disabilities.—To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [e-mail] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

27. Availability of Documents.—Comments, reply comments, and ex parte submissions will be publicly available online via ECFS.

28. Ex Parte Presentations.—This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

29. In light of the Commission's trust relationship with Tribal Nations and the Commission's commitment to engage in government-to-government consultation with them, the Commission finds the public interest requires a limited modification of the ex parte rules in this proceeding. Tribal Nations, like other interested parties, should file comments, reply comments, and ex parte presentations in the record to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process consistent with the requirements of the Administrative Procedure Act. However, at the option of the Tribe, ex parte presentations made during consultations by elected and appointed leaders and duly appointed representatives of federally recognized Indian Tribes and Alaska Native Villages to Commission decision makers shall be exempt from the rules requiring disclosure in permit-but-disclose proceedings and exempt from the prohibitions during the Sunshine Agenda period. To be clear, while the Commission recognizes consultation is critically important, we emphasize that the Commission will rely in its decision-making only on those presentations that are placed in the public record for this proceeding.

Ordering Clauses

30. It is ordered, pursuant to the authority found in sections 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), and 303(r), that this Notice of Proposed Rulemaking is hereby adopted.

Lists of Subjects in 47 CFR Part 1

• Administrative practice and procedure

Federal Communications Commission

Marlene Dortch,

Secretary.

Proposed Rules

For the reasons discussed, the Federal Communications Commission proposes to amend 47 CFR part 1 as follows:

PART 1—PRACTICE AND PROCEDURE

1. The authority citation for part 1 is revised to read as follows:

Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, and 1455.

2. Section 1.1204 is amended by revising paragraphs (a)(12) introductory text and (a)(12)(iii) through (vi), and adding paragraphs (a)(12)(vii) and (viii), and (a)(13) to read as follows:

§ 1.1204

Exempt ex parte presentations and proceedings.

(a) * * *

(12) The presentation is between Commission staff and any of the following administrators relating to the following subjects, provided that the relevant administrator has not filed comments or otherwise participated as a party in the proceeding:

* * * * *

(iii) The Universal Service Administrative Company relating to the administration of universal service support mechanisms pursuant to 47 U.S.C. 254;

(iv) The Local Number Portability Administrator relating to the administration of local number portability pursuant to 47 U.S.C. 251(b)(2) and (e);

(v) The TRS Numbering Administrator relating to the administration of the TRS numbering directory pursuant to 47 U.S.C. 225 and 47 U.S.C. 251(e);

(vi) The Pooling Administrator relating to the administration of thousands-block number pooling pursuant to 47 U.S.C. 251(e);

(vii) The Toll-Free Numbering Administrator relating to the administration of Toll-Free Number Database pursuant to 47 U.S.C. 251(e); or

(viii) The Reassigned Numbers Database Administrator relating to administration of the Reassigned Numbers Database pursuant to [47 CFR 64.1200(l) and (m)].

(13)(i) The presentation is in a permit-but-disclose proceeding and is made in the course of government-to-government consultation between a representative of the Commission and an elected or appointed leader or duly authorized representative of the government of a federally recognized Tribal Nation, provided that the Commission may not rely in its decision-making process on any such presentation that is not disclosed in the record, either by the Tribal government or by the Commission after coordination pursuant to paragraph (a)(13)(iii) of this section.

(ii) A presentation made pursuant to paragraph (a)(13) of this section may be disclosed on the record during the period of the Sunshine Agenda prohibition, and relied upon by the Commission, only at the request of or with the advance approval of the Commission pursuant to paragraph (a)(10) of this section, unless permitted under another exception.

(iii) The Commission will disclose a presentation made under paragraph (a)(13) of this section or information obtained through such a presentation only after advance coordination with the Tribal government involved in order to ensure that the Tribal government involved retains control over the timing and extent of any disclosure that may have an impact on that Tribal government's jurisdictional responsibilities. If the Tribal government involved does not wish such presentation or information to be disclosed, the Commission will not disclose it and will disregard it in its decision-making process, unless it fits within another exemption not requiring disclosure. The fact that a Tribal government's views are disclosed under paragraph (a)(13) of this section does not preclude further discussions pursuant to, and in accordance with, the exception.

* * * * *

3. Section 1.1206 is amended by revising paragraphs (b)(2) introductory text and (b)(2)(iv) to read as follows:

§ 1.1206

Permit-but-disclose proceedings.

* * * * *

(b) * * *

(2) Written and oral presentations. A written ex parte presentation and a memorandum summarizing an oral ex parte presentation (and cover letter, if any) shall clearly identify the proceeding to which it relates, including the docket number, if any, and must be labeled as an ex parte presentation. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and, accordingly, must be filed consistent with the provisions of this section. Consistent with the requirements of § 1.49 paragraphs (a) and (f), additional copies of all written ex parte presentations and notices of oral ex parte presentations, and any replies thereto, shall be mailed, emailed or transmitted by facsimile to the Commissioners or Commission employees who attended or otherwise participated in the presentation.

* * * * *

(iv) Filing dates for presentations made on the day that the Sunshine notice is released and the day before Sunshine notice is released. For presentations made on the day the Sunshine notice is released and the day before Sunshine notice is released, any written ex parte presentation or memorandum summarizing an oral ex parte presentation required pursuant to § 1.1206 or 1.1208 must be submitted before the day that the Sunshine period begins. Written replies, if any, shall be filed no later than the end of the day that the Sunshine period begins, and shall be limited in scope to the specific issues and information presented in the ex parte filing to which they respond.

Example 1: On Tuesday, a party makes an ex parte presentation in a permit-but-disclose proceeding to a Commissioner. That same day, the Commission's Secretary releases the Sunshine Agenda for the next Commission meeting and that proceeding appears on the Agenda. The Sunshine period begins as of Wednesday, and therefore the presenting party must file its ex parte notice by the end of the day (11:59:59 p.m.) on Tuesday. A reply would be due by the end of the day (11:59:59 p.m.) on Wednesday.

Example 2: On Monday, a party makes an ex parte presentation in a permit-but-disclose proceeding to a Commissioner. On Tuesday, the Commission's Secretary releases the Sunshine Agenda for the next Commission meeting and that proceeding appears on the Agenda. The Sunshine period begins as of Wednesday, and therefore the presenting party must file its ex parte notice by the end of the day (11:59:59 p.m.) on Tuesday. A reply would be due by the end of the day (11:59:59 p.m.) on Wednesday.