Ex Parte Rule Enforcement ‘New Focus’ for FCC, Schlick Says
Look for stepped-up FCC enforcement of its ex parte rules, on which the first significant revision since 1997 takes effect June 1 (CD May 3 p5), commission officials said Friday. They said the revamp requiring filings to be made anytime agency officials are lobbied, and for more specific ex partes disclosures to be made, is part of making the agency more transparent. Those ex parte rules approved by commissioners in February needing Office of Management and Budget approval should get that OK soon, said Deputy General Counsel Julie Veach at an FCC and FCBA tutorial. The green light should come in time for those rules too to take effect June 1, she said. Other parts of the new rules don’t need OMB approval.
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Improving ex parte practices “includes strengthened enforcement,” said FCC General Counsel Austin Schlick. “I don’t know the true state of past noncompliance” with previous ex parte rules, but “there is a general perception that under the old rules, the reporting requirements were not always diligently followed,” he said. The message the regulator was trying to send is that by “improving the rules, by expanding the reporting requirements, that will be accompanied by a new focus on enforcement,” Schlick said.
The General Counsel’s office can refer ex parte matters to the Enforcement Bureau for investigation, if rules may have been violated, Veach said in response to a later question on enforcement. “It will be an internal, informal referral, saying ‘we think you should look at this,’ and then the Enforcement Bureau will proceed.” She was asked by panelist David Solomon, a former Enforcement Bureau chief who’s now a communications lawyer at Wilkinson Barker, if there would be a “pre-decision” that filers accused of breaking the rules would need to “argue against.” Her reply: “I don’t think so."
There have been a series of internal FCC meetings to find areas ripe for getting dockets, so the proceedings can be more easily tracked by the public, Associate Chief Bill Cline of the Consumer & Governmental Affairs Bureau said. He discussed how the commission is dealing with an order also approved by commissioners in February, aiming to speed up the closing of old dockets and the creation of new ones for even routine matters. “We've actually had a series of meetings with the bureaus and offices identifying areas for which we can expand the docket process” and “some of them are listed” in the recent order, Cline said.
Dockets will eventually get electronically transmitted copies of news releases, orders and other paperwork generated by the commission, instead of those documents being scanned. In practice, such scanned documents can be harder to read than ones that are electronically transmitted, and they can’t always be searched by keyword. “I don’t have a specific time frame, it is an IT effort, but it is not a huge level of effort,” to make the transition, Cline said. “We hope this year you will see those changes happen, so “they will be electronic in the record, so that you can keyword search it,” he said. Proceedings that are closed by staffers, under the new order, still will be accessible electronically so that previously made filings and orders can be seen, Cline said: Closing a docket “just simply means that it’s time to move on, let’s close them, and not allow any other comment in those.”