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:

   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  Sec. 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
    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 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
    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.

   (12) A modification request filed pursuant to  Sec. 64.1001 of this chapter;

   (13)  Applications  by  Bell Operating Companies to provide in-region,
   interLATA services pursuant to  Sec. 271(d) of the Communications Act; and

   (14)  Petitions  for  Commission  preemption  of  authority  to review
   interconnection agreements under  Sec. 252(e)(5) of the Communications Act and
   petitions for preemption under  Sec. 253 of the Communications Act.

   Note 3 to paragraph(a): In a permit-but-disclose proceeding involving only
   one “party,” as defined in  Sec. 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  Sec. 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  Sec. 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  Sec. 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.

   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, as amended at  63 FR 24126 , May 1, 1998;  64 FR 68948 , Dec. 9, 1999;  66 FR 3501 , Jan. 16, 2001]

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