Sec. 1.1206  Permit-but-disclose proceedings.

    (a) Unless otherwise provided by the Commission or the staff 
pursuant to Sec. 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 
Sec. 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:
    (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 Sec. 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 
Sec. 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 Sec. 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 
Sec. 1.1208);
    (7) A proceeding involving a request for information filed pursuant 
to the Freedom of Information Act;

    Note 1 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 Sec. 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.

    Note 2 to paragraph (a): In a permit-but-disclose proceeding 
involving only one ``party,'' as defined in Sec. 1.1202(d) of this 
subpart, 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

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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.
    (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, with 
copies to the Commissioners or Commission employees involved in the oral 
presentation, an original and one copy of a memorandum which summarizes 
the new data or arguments. 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, 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.

    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.

    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, in 
permit-but-disclose 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 or, if the matter is on reconsideration, the reconsideration 
reply comment period.

[ 62 FR 15856 , Apr. 3, 1997]

                         Restricted Proceedings