Ex Parte Communications During FCC Rulemaking

Opinion

Ex Parte Communications During FCC Rulemaking

Ex parte com m u n icatio n s by W hite House officials to Federal C om m unications C om m ission com m issioners that advocate positions on the FC C rulem aking proceeding to evaluate finan­ cial interest and syndication rules would be perm issible.

A ccording to FC C regulations, as interpreted by the FCC G eneral C ounsel, com m unications b y the W hite H ouse m u st be disclosed in the FC C rulem aking record if they are o f substantial significance and clearly intended to affect the ultim ate decision.

Although solicitation o f the view s o f W hite H ouse officials by FCC com m issioners would be perm issible and n eed not be included in the rulem aking record, any response by W hite H ouse officials to such a solicitation w ould be subject to the sam e disclosure requirem ents that apply to u n so licited com m unications.

January 14, 1991

Mem orandum Op in io n fo r th e De p u t y Co u n s e l to th e Pr e s i d e n t

This memorandum responds to your request that we answer certain ques­ tions regarding ex parte communications between White House officials and Commissioners of the Federal Communications Commission (“FCC”) in con­ nection with the FCC ’s ongoing rulemaking proceeding to evaluate its financial interest and syndication rules relating to television network in­ volvement in the programming marketplace. Specifically, you have asked (1) whether it is permissible for White House officials to contact FCC Com­ missioners to advocate a position on this rulemaking; (2) whether any such communications would be subject to FCC disclosure requirements; and (3) whether it would be permissible for FCC Commissioners to solicit the views of White House officials and whether any such communications would be subject to the FCC disclosure requirements.

We conclude that the communications by White House officials would be permissible and, according to FCC regulations, they must be disclosed in the FCC rulemaking record if they are of substantial significance and clearly intended to affect the ultimate decision. Solicitations of the views of White

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House officials by FCC Commissioners would be permissible and need not be included in the rulemaking record. Any response by White House offi­ cials to such a solicitation, however, would be subject to the same disclosure requirements that apply to unsolicited communications.

I.

We believe it is clearly permissible, as a matter of general administrative law, for White House officials, including senior members from the Council of Economic Advisors and officials from the Office of the Vice President, Office of Management and Budget, and Office o f White House Counsel, to contact FCC Commissioners to advocate a position on this rulemaking. This conclusion is compelled by Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), the leading ex parte contacts case under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706.

In Sierra Club, an Environmental Protection Agency (“EPA”) rulemaking was challenged as procedurally defective in a variety of ways, including that the decisionmaking was influenced by an “undocketed meeting . . . attended by the President, White House staff, other high ranking members of the Executive Branch, as well as EPA officials, and which concerned the issues and options presented by the rulemaking.” Id. at 404. In holding that the meeting was permissible and need not have been “docketed” (i.e., a sum­ mary placed in EPA’s rulemaking record),1 the D.C. Circuit Court of Appeals

recognize[d] the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently ab o u t ru les in the m aking, and their con trib u tio n s to policymaking considered. The executive power under our Con­ stitution, after all, is not shared — it rests exclusively with the President.

Id. at 405. The court not only concluded that “[t]he authority of the Presi­ dent to control and supervise executive policymaking is derived from the Constitution,” id. at 406, but added that

the desirability of such control is demonstrable from the prac­ tical realities of administrative rulemaking. Regulations such

1 The Sierra Club holding on “docketing” did not m odify the APA case law providing that purely factual and “conduit” (i.e.. from interested parties outside the government) information provided in the course o f such com m unications should be included in agency rulemaking records. See Contacts Be­ tween the Office o f M anagement and B udget and Executive Agencies Under Executive Order No. 12,291, 5 Op. O.L.C. 107 (1981).

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as those involved here demand a careful weighing of cost, environmental, and energy considerations. They also have broad implications for national economic policy. Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. An over-worked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House.

Id. (footnotes omitted).

Just as the court found in Sierra Club that it was permissible under the APA for the President and other White House officials to meet with EPA officials in an effort to influence the results of an EPA rulemaking, we believe it is permissible for White House officials to contact FCC Commis­ sioners in an effort to influence the results of an FCC rulemaking. The constitutional and administrative rationales set forth in Sierra Club are fully applicable to the FCC rulemaking on financial interest and syndication rules.2 Sierra Club makes it clear that, in addition to the general requirements of the APA, any more specific statutory requirements must be considered. Id. at 406-07. The only such requirements that we are aware of that might apply in the present situation are those contained in the laws and regulations governing FCC proceedings. The FCC’s notice of proposed rulemaking ex­ pressly states that the FCC has determined that ex parte communications are permissible in this rulemaking proceeding. See 55 Fed. Reg. 11,222, 11,223 (1990) (“After June 13, 1990, the proceeding will become a non-restricted proceeding, in which ex parte presentations will be permissible, subject to the disclosure requirements set forth in the Commission’s rules.”) The FCC’s ex parte communication regulations, 47 C.F.R. Subpart H, apply by their terms to ex parte communications from any person outside the FCC, ex­ pressly including presentations from government officials. See 47 C.F.R. §

2Sierra Club is not distinguishable on the basis th at the FC C , un lik e the EPA , m ight be v ie w ed as an “ in d e p e n d en t agency." Sierra Club is the leading con stru ctio n o f the APA o n ex parte c o n ta c ts d uring ru lem ak in g , and the APA clearly applies equally to the FC C and the EPA. See 5 U .S.C. § 551 (1). T h u s, the Sierra Club rationale concerning “the practical realities o f a d m in istrative ru lem aking,” 657 F.2d at 4 0 6 , applies fully to all agency rulem aking, w hether done by a p u rely executive o r “ ind ep en d en t" agency. Indeed, the only ex cep tio n to its holdings on W hite H ouse co n tacts that Sierra Club sp ec ifica lly id e n ti­ fies is w here the co n tacts “directly co ncern the o utcom e o f ad ju d icatio n s or q u a si-ad ju d ica to ry p ro c e e d ­ in g s,” thus im plying that all ru lem ak in g is covered by the m ain holding Id. a t 407. M oreover, w h a t­ e v e r the c o n stitu tio n ality o f restricting the rem oval o f the heads o f “ in dependent ag en c ie s," there is no d o u b t that the P resid en t has the constitutional au th o rity to in fo rm (directly o r through h is staff) an "in d e p e n d en t ag en cy " o f the A d m in istratio n 's p rogram , in an effort to c o o rdinate p o lic y w ithin the ex ecu tiv e b ranch. See Morrison v. Olson. 487 U .S. 654 (1988). A ccordingly, the P resid e n t retains a u th o rity to attem pt to influence rulem aking decisions by “in d ep en d en t a g en c ie s” in the w a y s e ndorsed in Sierra Club.

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1.1206(a)(l)-(3) note 1 (“[P]resentations from members of Congress or their staff or from other agencies or branches of the Federal Government or their staff that are o f substantial significance and clearly intended to affect the ultimate decision shall be treated as ex parte presentations . . . Accordingly, we conclude that ex parte communications by White House officials in connec­ tion with this rulemaking are permissible under the FCC ex parte regulations.

Although ex parte communications to FCC Commissioners by White House officials are thus legally permissible, we note the current White House policy guidance applicable to contacts with independent regulatory agencies like the FCC. See Memorandum for White House Staff, from C. Boyden Gray, Counsel to the President, R e: Prohibited Contacts with Agencies. That guidance states:

As a general rule, no member of the staff should make an ex p a rte contact with a regulatory agency in regard to any par­ ticular matter pending before that agency, regardless o f whether the proceedings are deemed to be rulemaking or adjudicative, when such a contact may imply preferential treatment or the use o f influence on the decision-making process.

. . . White House staff members should avoid even the mere appearance of interest or influence — and the easiest way to do so is to avoid discussing matters pending before the inde­ pendent regulatory agencies with interested parties and avoid making ex parte contacts with agency personnel. Should an occasion arise . . . where it appears necessary [for White House staff] to discuss general policy matters with the staff of an independent regulatory agency, to avoid any appearance of impropriety, [the W hite House staff individual] should first consult with the Office of the Counsel to the President to determine whether such contact would be appropriate under the circumstances.

Id. at 1-2.

II.

You have also asked whether, if ex parte communications to FCC Com­ missioners by White House officials are permissible, the communications must be publically disclosed: i.e., included in the FCC’s rulemaking record. Although Sierra Club makes it clear that such disclosure is not required as a m atter of general administrative law, see 657 F.2d at 404-08, the FCC regu­ lations on ex parte com munications provide for disclosure o f certain

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communications of that nature. We have consulted the FCC General Counsel’s Office to ascertain the FCC’s interpretation of its regulations.3 The follow­ ing discussion is based on that interpretation.4 As noted above, the FCC’s notice of proposed rulemaking states that “ex parte presentations will be permissible” in this proceeding, “subject to the disclosure requirements set forth in the Commission’s rules.” 55 Fed. Reg. at 11,223. This statement is consistent with the FCC regulations, which provide that all informal rulemaking proceedings, except proceedings on allotment of specific radio or television channels, are “non-restricted pro­ ceedings,” see 47 C.F.R. § 1.1206(b)(1), in which “ex parte presentations are permissible . . . if [certain enumerated] disclosure requirements are met.” 47 C.F.R. § 1.1206(a). The regulations specify which communications dur­ ing a non-restricted proceeding from government sources outside the FCC should be viewed as ex parte communications that must be included in the rulemaking record:

Unless otherwise exempted under Section 1.1204, presenta­ tions 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 af­ fect the ultim ate decision shall be treated as ex p a r te 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)(l)-(3).

47 C.F.R. § 1.1206(a)(l)-(3) note 1. Thus, unless otherwise exempted under section 1.1204(b), all ex parte communications from government officials or employees that “are of substantial significance and clearly intended to affect the ultimate decision” must be placed in the rulemaking record. If the communications are oral, they may be placed in the record either by the means of a written summary prepared by Commission staff or by a written memorandum submitted by the ex parte “communicator” on the day of the communication. 47 C.F.R. § 1.1206(a).

Accordingly, the FCC regulations require the placement in the FCC rulemaking record of a memorandum summarizing any ex parte communica­ tion by a White House official to an FCC Commissioner in which the White House official advocates a position on this rulemaking, so long as the com­ munication is “of substantial significance and clearly intended to affect the

3 We con su lted D avid H . Solom on, A ssistant G eneral C ounsel, A d m inistrative Law D ivision. 4 We d o not ad d ress in th is m em orandum the au th o rity o f the P resident to d ire c t the FC C to change its regulations.

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ultim ate decision.” The regulations apply by their terms to all parts of the government and make no exception for communications from White House officials. Nor would any o f the section 1.1204(b) exemptions appear to be applicable. In particular, the FCC does not believe that exemption (5) is available. See 47 C.F.R. § 1.1204(b)(5) (exempting presentations “to or from an agency or branch of the Federal Government or its staff [that] in­ volved a matter over which that agency or branch and the Commission share jurisdiction”). In the view of the FCC General Counsel’s Office, the exemption for agencies that “share jurisdiction” pertains only to other fed­ eral agencies that exercise statutory authority that overlaps with the FCC’s authority; it is not addressed to a government entity that might supervise the FCC. Accordingly, the White House does not, within the meaning of the exemption, “share jurisdiction” with the FCC over financial interest and syndication rules. We believe that the FCC’s interpretation of exemption (5) is reasonable.

in .

Finally, you have asked whether it would be permissible for an FCC Com­ m issioner to solicit the views of White House officials and whether any such solicitation would be subject to the FCC disclosure requirements. We are unaware of any statutory or regulatory provisions that would prohibit such a solicitation or require that it be included in the rulemaking record. The conclusions reached above regarding Sierra Club should apply equally to a solicitation by an FCC Commissioner, because nothing in the court’s ratio­ nale suggested that the protection of ex parte White House communications should be “one-way” : i.e., protecting communications by White House offi­ cials' but not to them.

M oreover, nothing in the FCC regulations would preclude such a so­ licitation (indeed, the regulations contemplate solicitatigns, see 47 C.F.R. § 1.1206(a)(3)) or require that it be docketed. The FCC General Counsel’s Office has advised us that solicitations are permissible and whether they are recorded in the rulemaking record is discretionary. Any communication by a W hite House official in response to a solicitation, however, would be sub­ je c t to d isc lo su re under the sam e standards governing un so licited communications. See 47 C.F.R. §§ 1.1204(b) note, 1.1206(a)(3), 1.1206(a)(1)- (3) note 1.

CONCLUSION

Ex parte communications by White House officials to FCC Commission­ ers that advocate positions on the ongoing FCC rulemaking proceeding to evaluate financial interest and syndication rules would be permissible. Ac­ cording to FCC regulations, as interpreted by the FCC General Counsel’s Office, such communications must be disclosed in the FCC rulemaking record

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if they are of substantial significance and clearly intended to affect the ulti­ mate decision. Solicitations of the views of White House officials by FCC Commissioners would be permissible and need not be included in the rulemaking record. Any response by White House officials to such a solici­ tation, however, would be subject to the same disclosure requirements that apply to unsolicited communications.

JOHN O. MCGINNIS

Deputy Assistant Attorney General Office o f Legal Counsel