Disclosing Ownership in Ex Parte Filings Raises First Amendment and Other Concerns
The FCC shouldn’t require those lobbying it to disclose their ownership as the agency seeks to further update ex parte filing rules, said the U.S. Chamber of Commerce, NAB and the Fixed Wireless Communications Coalition (FWCC). They sought exclusions if there are new rules for associations and coalitions, so such entities don’t need to list every member that participated in an issue. The Chamber was among those also raising constitutional concerns about more disclosure. Free Press and the Media Access Project backed additional ownership details. A rulemaking notice sought ways to collect additional information in ex parte filings, without overly burdening those making them (CD Feb 4 p2).
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Rules based on the Lobbying Disclosure Act, which the FCC asked about, “would be particularly inappropriate for agency proceedings, subjecting participants to unnecessary constraints that would ultimately decrease the flow of information to the Commission and limit political speech,” the Chamber said. The act has a “unique role in the legislative context, where Congress generally does not labor under any statutory procedural regime meant to ensure the integrity of its actions,” the group said. Rules based on the act would require the Chamber and other groups “to determine the pro-rata amount of funding that each of its members contributes toward FCC advocacy and, even more onerous, whether particular members ‘actively participate’ in the planning or control of the organization’s advocacy” to the agency, it said. The Chamber asked the regulator to “be mindful of the unique burdens” of further disclosure rules to groups like itself with membership that frequently changes.
Hidden conflicts of interest affect every major FCC proceeding, including AT&T’s plan to buy T-Mobile, said Free Press, a foe of that deal. “No individual or organization should be prevented or unnecessarily deterred from participating” in any matter, the nonprofit said. “Reasonable rules would require organizations with material conflicts to include clear and comprehensive disclosure statements describing their relationships with real parties-in-interest as part of any and all filings made in Commission proceedings. Such a disclosure requirement would significantly improve transparency without imposing undue burdens. Centralized or distributed publication of conflict information not included within individual filings would fall short on both these criteria."
Those getting “substantial contributions” for lobbying on a particular issue at the regulator should be listed in ex partes, the Media Access Project said. “A party should be required to disclose if it accepts a substantial contribution in exchange for agreeing to submit a filing in which the funding entity contributed to the substantive content.” What’s substantial depends on the size of the group, MAP said. It doesn’t seek to require all trade groups to disclose every contribution, only when “in the foreseeable instance where one or more members of the association make contributions other than ordinary dues for the primary purpose of advocacy on a particular matter.” The comments were posted Thursday and Friday in docket 10-43.
There’s no need to make coalitions name every member or funder, and instead the FCC can get details in “general terms” with “rules narrowly tailored so as not to infringe on coalitions’ constitutional rights to assemble and petition the government,” the FWCC said. It proposed a list of entities that make up a coalition, with not all members having to be included. FWCC also proposed a statement saying that all funds are provided by members, or that “significant” money comes from a particular industry. The U.S. Court of Appeals for the D.C. Circuit doesn’t make associations list every member, the NAB noted. “The D.C. Circuit thus supports NAB’s position that trade associations’ ex parte or other filings should not be required to list their members.”