(9) A proceeding involving a request for information filed pursuant to the Freedom of Information Act, 5 U.S.C. 552, upon the filing of a formal opposition to the request or, in a proceeding where the requested information is the subject of a request for confidentiality, upon the filing of the FOIA request.

(10) A proceeding before a Joint Board or a proceeding before the Commission involving a recommendation from a Joint Board unless the proceeding is specifically classified as an adjudicative proceeding.

NOTE: Unless otherwise ordered by the Commission, Joint Boards shall have the authority to modify the ex parte rules as necessary in a particular proceeding to promote fair and efficient decisionmaking.

[52 FR 21052, June 4, 1987, as amended at 52 FR 37460, Oct. 7, 1987; 54 FR 29038, July 11, 1989]

RESTRICTED PROCEEDINGS $1.1208 Restricted proceedings.

(a) Unless exempted under §1.1204(b), ex parte presentations are prohibited in restricted proceedings. The prohibition continues in effect until the proceeding has been decided or a settlement or agreement by the parties has been approved by the Commission and such decision or approval is no longer subject to reconsideration by the Commission or to review by any court.

(b) No person shall make an ex parte presentation in a proceeding that could become restricted even though the proceeding is not restricted at the time if: (1) That person intends to file a mutually exclusive application which would cause the proceeding to become restricted; or

(2) That person intends to file an opposition, complaint, or objection which would cause the proceeding to become restricted.

NOTE: The prohibition in §1.1208(b)(2) is inapplicable to complaint proceedings under section 208 of the Communications Act.

(c) Unless governed by $1.1204 or §1.1206, the following are restricted proceedings:

(1)(i) Any proceeding specified in paragraph (c)(1)(ii) of this section is restricted from the day on which any of the following has occurred:

SUNSHINE PERIOD PROHIBITION

$1.1203 Sunshine period prohibition.

(a) Unless exempted under §1.1204(b), the making of any presentation, whether ex parte or not, to decisionmaking personnel concerning matters listed on the Sunshine Agenda is prohibited during the Sunshine Agenda period. See §1.1202(f).

(b) The prohibition on presentations in §1.1203(a) above shall not apply to responses to ex parte presentations that are requested under §1.1204(b)(7) or to presentations regarding settlement agreements. The disclosure requirement set forth in §1.1204(b)(7) Note will apply.

(c) The prohibition in §1.1203(a) above shall not apply to presentations (not otherwise exempted under §1.1204(b)) made by members of Congress or their staff or by other agencies or branches of the Federal Government or their staff in non-restricted proceedings under §1.1206(b), exempt proceedings under §1.1204(a)(2) (not involving the allotment of a channel in the radio broadcast or television broadcast services), or exempt proceedings under §1.1204(4)-(11).

NOTE: Unless otherwise exempted under §1.1204, presentations under §1.1203(c) that are of substantial significance and clearly intended to affect the ultimate decision, shall be placed (if oral, a written summary of the presentation) in the record of the proceeding by Commission staff or in accordance with the procedures set forth in §1.1206(a)(1)(3).

[52 FR 21052, June 4, 1987, as amended at 52 FR 37459, Oct. 7, 1987; 53 FR 44196, Nov. 2, 1988; 54 FR 29038, July 11, 1989]

GENERAL EXEMPTIONS

§ 1.1204 General exemptions.

(a) Proceedings in which no ex parte restrictions apply. Subject to the provisions of §1.1203 (Sunshine Period Prohibition), §1.1206 (Non-Restricted Proceedings, and §1.1208(b) (Restricted Proceedings), there are no ex parte restraints or disclosure requirements in the following types of proceedings:

(1) An adjudicative proceeding as defined in §1.1202(d) or other proceeding specified in §1.1208(c)(1)(ii) unless it

(i) Is formally opposed or involves a formal complaint (see §1.1202(e)); or

NOTE: In proceedings exempted by §1.1204(a)(1) or (a)(2)(i), oral ex parte communications are permissible, but only between the Commission and the formal party involved or his representative. Any informal objectors (whether their objections are oral or written) are subject to ex parte procedures set forth in §1.1208 barring oral ex parte contacts except where confidentiality is necessary to protect these persons from possible reprisals. Oral communications between Commission staff and advisory coordinating committee members with respect to coordination of assignment of frequencies in the private land mobile services and fixed services authorized under section 331 of the Communications Act are not prohibited.

(3) A request for information which is filed pursuant to the Freedom of Information Act, 5 U.S.C. 552, unless it is formally opposed and where the requested information is not the subject of a request for confidentiality.

(4) A notice of inquiry proceeding unless the Commission states otherwise, see §1.1206(b)(2).

(5) A proceeding involving an informal complaint against a carrier under section 208 of the Communications Act (see $1.711 of the Rules) unless it has been designated for hearing.

(6) A tariff proceeding under section 203, 204, or 205 of the Communications Act unless it has been set for investigation, (see §1.1206(b)(6). This exemption from the ex parte requirements shall also extend to requests for waiver or for special permission directly associated with a particular tariff filing made pursuant to these sections of the the Act, unless the Commission states otherwise.

(7) A proceeding conducted pursuant to section 220(b) of the Communications Act for prescription of common carrier depreciation rates prior to release of a public notice of specific proposed depreciation rates for a carrier or carriers.

(8) A petition or request for declaratory ruling unless a formal opposition has been filed.

(9) A rule making proceeding conducted pursuant to section 201(a), 213(a), 221(c) or 222 of the Communications Act or section 201(c)(2) or 201(c)(5) of the Communications Satellite Act of 1962, unless the proceeding has been formally opposed or has been set for investigation by the Commission.

(10) A proceeding under section 221(a) of the Communications Act unless a formal request for hearing has been made by an entity specified in that section.

(11) A proceeding under section 214(a) of the Communications Act unless a formal opposition has been filed or the proceeding has been designated for hearing.

NOTE: In proceedings exempted by §1.1204 (a)(3), (a)(8), (a)(9), (a)(10), or (a)(11), oral ex parte communications without disclosure pursuant to §1.1206 are permissible, but only between the Commission and the formal party involved or his representative. Any informal objectors (whether their objections are oral or written) are subject to ex parte procedures set forth in §1.1206 requiring disclosure of such communications except where confidentiality is necessary to protect these persons from possible reprisals.

(b) Exempt Ex Parte Presentations. The following types of ex parte presentations are exempt from the prohibitions and requirements in §1.1206 (nonrestricted proceedings) and §1.1208 (restricted proceedings) as follows:

(1) The presentation is authorized by statute or by the Commission's Rules, see, e.g., §1.333(d).

(2) The presentation is made by or to the General Counsel or his or her staff and concerns judicial review of a matter which has been decided by the Commission.

(3) The presentation directly relates to an emergency in which the safety of life is endangered or substantial loss of property is involved; provided however, that if the presentation is oral, a written summary of the presentation shall be filed within a reasonable period of time thereafter.

(4) The presentation involves a military or foreign affairs function of the

United States or classified security information.

(5) The presentation is to or from an agency or branch of the Federal Government or its staff and involves a matter over which that agency or branch and the Commission share jurisdiction.

(6) The presentation is between Commission staff and an advisory coordinating committee member with respect to the coordination of frequency assignments to stations in the private land mobile services or fixed services as authorized by section 331 of the Communications Act.

(7) The presentation is requested by the Commission or staff for the clarification or adduction of evidence or for resolution of issues, and the proceeding is a restricted proceeding which has not been designated for hearing, a nonrestricted proceeding or an exempt proceeding.

NOTE: In a restricted proceeding, any new written information elicited from such a request and a summary of any new oral information shall be served by the person making the presentation upon the other parties to the proceeding. Where such service would be unduly burdensome because parties to the proceeding are numerous or because the materials relating to the presentation are voluminous, the Commission may waive such service by issuing a public notice which states that copies of the presentation and/or materials relating to it are available for public inspection and by including copies of the presentation and/or materials relating to it in the record of the proceeding. Where the Commission determines that such service of public notice, prior to designation of a matter for hearing, would interfere with the effective conduct of an investigation, it may dispense with such service or public notice. In a non-restricted proceeding, any new information elicited from such a request shall be disclosed in accordance with the procedures set forth in §1.1206. Except as otherwise provided above, any new information received during the Sunshine period shall be fully disclosed in accordance with the above procedures or by other adequate means of notice the Commission deems appropriate.

[52 FR 21052, June 4, 1987, as amended at 52 FR 37460, Oct. 7, 1987; 53 FR 26597, July 14, 1988; 54 FR 29038, July 11, 1989]

NON-RESTRICTED PROCEEDINGS

$1.1206 Non-restricted proceedings; ex parte presentations generally permissible but subject to disclosure.

(a) Except as provided during the Sunshine Agenda period (see §1.1203), ex parte presentations are permissible in non-restricted proceedings if the following disclosure requirements are met:

(1) Written ex parte presentations made by persons outside the Commission. Any person who makes or submits a written ex parte presentation shall provide on the same day it is submitted two copies of same under separate cover to the Commission's Secretary for inclusion in the public record. The presentation (as well as any transmittal letter) must clearly indicate on its face the docket number of the particular proceeding(s) to which it relates and the fact that two copies of it have been submitted to the Secretary, and must be labeled or captioned as an ex parte presentation.

(2) Oral ex parte presentations made by persons outside the Commission. Any person who in making an oral ex parte presentation presents data or arguments not already reflected in that person's written comments, memoranda, or other previous filings in that proceeding shall provide on the day of the oral presentation an original and one copy of a written memorandum to the Secretary (with a copy to the Commissioner or staff member involved) which summarizes the data and arguments. The memorandum (as well as any transmittal letter) must clearly indicate on its face the docket number of the particular proceeding and the fact that an original and one copy of it have been submitted to the Secretary, and must be labeled or captioned as an ex parte presentation.

(3) Ex parte presentations requested by persons within the Commission and spontaneous ex parte presentations. A decision making person who requests an ex parte presentation should advise the person making the presentation that the presentation must be reflected in the public record before the Commission issues a final order in the relevant proceeding. Any person who makes a presentation under this paragraph shall comply with the requirements of

paragraph (a)(1) or paragraph (a)(2), whichever is applicable.

NOTE 1: Unless otherwise exempted under Section 1.1204, presentations from members of Congress or their staff or from other agencies or branches of the Federal Government or their staff that are of substantial significance and clearly intended to affect the ultimate decision shall be treated as ex parte presentations and placed (if oral, a written summary of the presentation shall be prepared and placed) in the record of the proceeding by Commission staff or in accordance with the procedures set forth in Section 1.1206(a)(1)(3).

NOTE 2: Where a written ex parte presentation (or memorandum summarizing an oral ex parte presentation) relates to more than one proceeding, two copies (or an original and one copy) shall be filed for each separate proceeding.

(4) Notice of ex parte presentations. The Commission's Secretary 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 office during the preceding week relating to any non-restricted proceeding.

NOTE 1: Interested persons should be aware that some ex parte filings, for example, those not filed in accordance with the requirements of ths subsection, 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 2: 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.

(5) The procedures outlined above continue in effect (except as otherwise provided under §1.1204) until the proceeding has been decided by the Commission and is no longer subject to reconsideration by the Commission or review by any court.

(b) Unless otherwise ordered by the Commission, a non-restricted proceeding includes the following: