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This page looks at regulations for the disclosure of ex parte communications.

Federal Communications Commission Ex Parte Regulations

FCC ex parte rules distinguish between three types of FCC proceedings: exempt proceedings where ex parte presentations can be made without limitation, permit-but-disclose proceedings where ex parte presentations to FCC decision-making personnel are allowed but subject to disclosure requirements, and restricted proceedings where ex parte presentations are not allowed at all. The rules governing ex parte communication are found in 47 CFR 1.1200 – 1.1216.

Permit-but-disclose proceedings have the most relevance when looking for a disclosure model for meetings between lobbyists and legislators. On the business day following an ex parte presentation covered by permit-but-disclose rules, two hard copies of written presentations or written summaries of oral presentations are required to be submitted to the FCC’s Secretary. Copies must also be sent to the FCC personnel to whom the presentations were made. In rulemaking proceedings, a single copy of the written presentation or summary may be submitted online. Written materials must include a cover letter clearly identifying the proceeding and the docket number. In addition to the presentation itself, any written materials provided to FCC personnel during the course of the presentation are considered part of the presentation and must be submitted accordingly. Short summaries that generally describe what was discussed in an oral presentation are not accepted. Acceptable summaries must thoroughly describe any new data and arguments. If oral presentations are in the form of a discussion at a widely attended meeting, disclosure requirements may be satisfied by the submission of a transcript or tape recording of the discussion rather than a written summary.

Note: if permit-but-disclosure presentations are made by Members of Congress, their staff, an agency or branch of government, or its staff, presentations are only considered ex parte if the presentations are of “substantial significance and clearly intended to affect the ultimate decision.” If such a presentations is considered ex parte it is subject to the same disclosure requirements as any other.

Ex parte written presentations and written summaries of ex parte oral presentations are placed in the public file or record of the proceedings. The FCC’s Secretary is required to issue a public notice listing any ex parte written presentations and written summaries of ex parte oral presentations received by the Secretary’s office relating to permit-but-disclose proceedings. These public notices are generally released twice a week. The FCC also has an online schedule (updated through Oct. 2010) of FCC communications with registered lobbyists. The information available includes the date of the contact, the docket number it was regarding, the lobbyist, their client, the required FCC summary, and the ex parte filing.

Securities and Exchange Commission Ex Parte Regulations

There is generally a broad prohibition against ex parte communications with federal agencies regarding formal agency proceedings as stated in 5 U.S.C. 557. This prohibition does not include speaking generally about a topic for background purposes, but does include any specific communication. The House Ethics Committee gives a nice summary of the general prohibitions. For the SEC in particular, ex parte communication is usually banned starting when a copy of an application for review is filed with the SEC and served on the self-regulatory organization. Ex parte presentations are only allowed in very specific circumstances and are not required to be disclosed if covered by those certain circumstances.

The SEC Rules of Practice address ex parte communications between commissioners in Rule 120, which states that the person presiding over an evidentiary hearing cannot engage in ex parte communications. Specifically, they cannot consult others on facts or issues, or be under the supervision of an employee involved in investigative or prosecuting on behalf of the Commission.

Ex parte communication rules for communication between the SEC and outside interests are covered in 17 CFR 200.110 – 200.114. These regulations state that any person outside the agency cannot make or knowingly cause to be made any ex parte communication to any member of the Commission regarding a current proceeding. The regulations also state the reverse: that Commission members and employees are prohibited from making or causing to be made any relevant ex parte communication.