with the knowledge and consent of those whose interests they represent.

(f) Presentation. Any communication going to the merits or outcome of a proceeding.

NOTE: The term "presentation" is narrower than the general term "communication." For a discussion of the term "presentation," see 1 FCC 2d 49 (1965), at paragraphs 19-25; FCC 2d

(1980) (i.e., this order), at paragraphs 2, 39, 49 & nn.2, 21. (g) Ex parte presentation. (1) Any written presentation, made to decision-making personnel by another person, which is not served on the parties to the proceeding. See §§ 1.47 and 1.211.

NOTE: Comments and reply comments submitted in informal rule making proceedings pursuant to §§ 1.415 and 1.419 are not considered ex parte presentations even though they are not served on other parties.

(2) Any oral presentation, made to decisionmaking personnel by any other person, without advance notice to the parties to the proceeding and opportunity for them to be present.

(h) Non-restricted rule making proceeding. A proceeding of the type listed in § 1.1211.

(i) Professional employees. Lawyers, engineers, economists, accountants, and any other staff members having substantive input into a proceeding.

[30 FR 9271, July 24, 1965, as amended at 45 FR 45591, July 7, 1980]

§ 1.1203 Restricted adjudicative proceedings.

(a) All adjudicative proceedings, including the following, are "restricted" from the time they are designated for hearing until they are removed from hearing status, or have been decided by the Commission, and are no longer subject to reconsideration by the Commission or to review by any court:

(1) Any proceeding involving the issuance, renewal, modification or assignment of any instrument authorizing the construction or operation of radio facilities under Title III of the Communications Act of 1934, as amended.

(2) Any proceeding involving the transfer of control of a corporate licensee or permittee under section 310 of the Communications Act.

(3) Any revocation and/or cease and desist proceeding under section 312 of the Communications Act, unless and until the hearing is waived pursuant to the provisions of § 1.92.

(4) Any proceeding involving the issuance or suspension of an operator license or permit under section 303(1) or (m) of the Communications Act.

(5) Any proceeding conducted pursuant to the provisions of sections 206, 207, 212, 214(a) or 221(a) of the Communications Act.

(6) Any proceeding conducted pursuant to the provisions of section 201(c)(6), (7) or (9), or section 304(f), of the Communications Satellite Act of 1962.

(b) In the following circumstances, in addition, proceedings involving applications filed under section 308 of the Communications Act are "restrict

ed", as to interested persons, prior to their designation for hearing:

(1) Application proceedings are restricted as to interested persons from the day on which a petition to deny is filed. (See section 309(d) of the Communications Act.) If the petition is denied, the proceeding is restricted until the order disposing of the petition is no longer subject to reconsideration by the Commission or to review by any court. If the proceeding is designated for hearing, paragraph (a) of this section applies.

(2) Application proceedings are restricted as to interested persons from the day on which public notice of the filing of a mutually exclusive application is given. Prior to the day on which public notice is given, such proceedings are restricted as to any interested person having actual knowledge that a mutually exclusive application has been filed. If action is taken by the applicants (or any of them) looking toward removal of the conflict between the applications, the restrictions continue until such action has been approved by the Commission and the Commission's order with respect thereto is no longer subject to reconsideration by the Commission or to review by any court. See § 1.525. If the proceeding is designated for hearing paragraph (a) of this section applies. (i) Except as provided in paragraph (b)(2) of this section, the "Public Notices" issued at regular intervals listing all applications and major amendments thereto which have been tendered (or, in non-broadcast services, accepted) for filing shall constitute public notice of the filing of a mutually exclusive application. See §§ 1.564(c), 1.962(e) and 21.27(b) of this chapter.

(ii) Where there is doubt as to whether two applications are in fact mutually exclusive, or where the conflict between the applications does not clearly appear from such regularly issued "Public Notices", the Commission will endeavor to issue specific public notices stating that there is a possibility of conflict between the applications. In such circumstances, the specific public notice, rather than the regularly issued "Public Notices" of applications tendered (or accepted) for filing, shall constitute public notice for purposes of this section. (Such public notices are based on a preliminary review of the applications by the administrative staff and are accorded no significance in determining whether the applications should be designated for hearing.)

(c) Cable television proceedings on a petition for special relief or an application for certificate of compliance are restricted as to interested persons from the day on which oppositions of objections are filed pursuant to § 76.7(d) or § 76.27 of this chapter. If the proceeding is terminated without hearing, the proceeding is restricted until the order terminating the proceeding is no longer subject to reconsideration by the Commission or to review by any court. If the proceeding is desig

nated for hearing, paragraph (a) of this section applies.

[30 FR 9271, July 24, 1965, as amended at 34 FR 8242, May 28, 1969; 43 FR 29561, July 10, 1978]

§ 1.1205 Decision-making Commission personnel (restricted adjudicative proceedings).

The following categories of persons are designated as decision-making Commission personnel in restricted adjudicative proceedings:

(a) The Commissioners and their personal office staffs.

(b) The Chief of the Office of Opinions and Review and his staff.

(c) The Review Board and its staff.

(d) The Chief Administrative Law Judge, the Administrative Law Judges, and the staff of the Office of Administrative Law Judges.

(e) The General Counsel and his staff. (f) The Chief Scientist and his staff.

(g) The Chief of the Office of Plans and Policy and his staff.

[40 FR 21958, May 20, 1975, as amended at 44 FR 39181, July 5, 1979]

§ 1.1207 Restricted rule making proceedings.

Except as otherwise ordered by the Commission, the following rule making proceedings are "restricted" from the day they are instituted until they have been decided by the Commission and are no longer subject to reconsideration by the Commission or review by any court:

(a) Any proceeding conducted pursuant to the provisions of sections 201(a), 204, 205, 213(a), 214(d), 221(c), or 222 of the Communications Act. (b) Any proceeding involving the establishment of "charges, classifications, practices, regulations, and other terms and conditions", or the allocation of available facilities and stations among users, conducted pursuant to the provisions of section 201(c)(2) of the Communications Satellite Act of 1962.

(c) Any rate making proceeding conducted pursuant to the provisions of section 201(c)(5) of the Communications Satellite Act of 1962.

(d) Any informal rule making proceeding which, in the Commission's judgment, involves "competing claims to a valuable privilege." Such proceedings will be deemed "restricted" from the date on which a notice of proposed rulemaking is issued. [30 FR 9271, July 24, 1965, as amended at 34 FR 8243, May 28, 1969; 39 FR 18280, May 24, 1974; 45 FR 45591, July 7, 1980]

§ 1.1209 Decision-making Commission personnel (restricted rule making proceedings).

The following categories of persons are designated as decision-making Commission personnel in restricted rule making proceedings:

(a) The Commissioners and their personal office staffs.

(b) The Chief of the Office of Opinions and Review and his staff.

(c) The Chief Administrative Law Judge, the Administrative Law Judges, and the staff of the Office of Administrative Law Judges.

(d) The Chief of the Common Carrier Bureau and his staff; Provided, however, That in any restricted rulemaking proceeding where the Commission directs a separated trial staff to participate, the Chief, Hearing and Legal Division of the Common Carrier Bureau shall be a party in the proceeding and he and his staff shall be non-decision-making personnel. In such cases the Chief of the Hearing and Legal Division and his staff will be separated from the Commission, the presiding Administrative Law Judge, the Office of the General Counsel, and the Chief and Deputy Chief and all division Chiefs of the Common Carrier Bureau, but are unrestricted in their access to all other Commission personnel.

NOTE: Notwithstanding the requirements of 1.1221 or any other provision of this chapter to the contrary, in restricted rulemaking proceedings, the Chief, Hearing and Legal Division and his staff shall be separated from decision-making personnel only to the extent indicated in this paragraph.

(e) The General Counsel and his staff. (f) The Chief Scientist and his staff.

(g) The Chief of the Cable Television Bureau and his staff when participating in proceedings involving service by common carriers to cable television systems.

(h) The Chief of the Office of Plans and Policy and his staff.

In a restricted informal rule making proceeding, the Commissioners and all professional employees of the agency who are involved in the proceeding are considered decision-making personnel.

[40 FR 47136, Oct. 8, 1975, as amended at 44 FR 39181, July 5, 1979; 45 FR 45591, July 7, 1980]

§ 1.1211. Non-restricted rule making proceedings.

Any informal rule making proceeding which, in the Commission's judgment, does not involve "competing claims to a valuable privilege" is a non-restricted rule making proceeding.

[45 FR 45591, July 7, 1980]

§ 1.1213 Decision-making Commission personnel (nonrestricted rule making proceedings).

In a non-restricted rule making proceeding, the Commissioners and all professional employees of the agency who are involved in the proceeding are considered decision-making personnel.

[45 FR 45591, July 7, 1980]

PROHIBITED PRESENTATIONS

§ 1.1221 Presentations prohibited in restricted proceedings which have been designated for hearing. Except as provided in § 1.1227, the following presentations are prohibited in restricted proceedings which have been designated for hearing:

(a) Oral presentations. Persons outside the Commission and non-decision-making Commission personnel shall not, directly or indirectly, make or attempt to make any oral ex parte presentation.

(b) Written presentations. Interested persons and non-decision-making Commission personnel shall not, directly or indirectly, make or attempt to make any written ex parte presentation.

§ 1.1223 Presentations prohibited in restricted adjudicative proceedings prior to their designation for hearing.

(a) As provided in § 1.1203(b), certain application proceedings are "restricted" following the submission of a petition to deny or public notice of the filing of a mutually exclusive application. Except as provided in § 1.1227, no interested person shall, directly or indirectly, make or attempt to make any oral or written ex parte presentation to decisionmaking Commission personnel concerning such a proceeding. Nor, in the absence of public notice, shall such an ex parte presentation be made, directly or indirectly, by an interested person having actual knowledge that a mutually exclusive application has been filed.

(b) As provided in § 1.1203(c), certain cable television proceedings are "restricted" following the submission of an opposition to a petition for special relief or an objection to an application for a certificate of compliance. Except as provided in § 1.1227, no interested person shall, directly or indirectly, make or attempt to make any oral or written ex parte presentation to decisionmaking Commission personnel concerning such a proceed

ing.

[43 FR 29561, July 10, 1978]

§ 1.1225 Solicitation of ex parte presentations.

(a) No person shall solicit or encourage others to make any presentation which he is himself prohibited from making under the provisions of this subpart.

(b) Except as provided in § 1.1227, decisionmaking personnel shall not make or cause to be made, solicit or encourage ex parte presentations from any person, and shall not entertain ex parte presentations which are made to them.

[30 FR 9271, July 24, 1965, as amended at 42 FR 12869, Mar. 7, 1977]

§ 1.1227 Permissible ex parte communications.

The following communications shall not be considered to be ex parte presentations prohibited by the provisions of this subpart:

(a) Ex parte communications authorized by statute or by the Commission's rules. (See, for example, §1.333(d).) However, pleadings which are required to be served but which may be ruled on ex parte do not fall within this category. (See, for example, §§ 1.296 and 1.298(a); such pleadings may not be submitted ex parte.)

(b) Such ex parte communications initiated by the staff of the Common Carrier Bureau or the Cable Television Bureau as may be necessary for the adduction of record evidence in restricted rulemaking proceedings.

(c) Any communication made by or to the General Counsel or his staff concerning judicial review of any matter which has been decided by the Commission.

(d) Any communication from an agency of the Federal Government involving classified security information.

(e) Any request for information solely with respect to the status of a restricted proceeding. (Interested persons, however, are prohibited from directly or indirectly soliciting ex parte status inquiries.)

(f) Any communication between decisionmaking and non-decision-making Commission personnel prior to the designation of a restricted proceeding for hearing.

[30 FR 9271, July 24, 1965, as amended at 36 FR 19440, Oct. 6, 1971]

§ 1.1229 Presentations prohibited in restricted informal rule making proceedings.

Except as provided in § 1.1227, once a notice of proposed rule making has been issued in a restricted informal rule making proceeding, persons outside the Commission are prohibited from directly or indirectly making or attempting to make any written or oral ex parte presentation until the proceeding has been decided by the Commission and is no longer subject to reconsideration by the Commission or review by any court.

[45 FR 45592, July 7, 1980]

§ 1.1231 Presentations in non-restricted informal rule making proceedings.

(a) Except as provided in § 1.1227, once a notice of proposed rule making has been issued in a nonrestricted informal rule making proceeding, ex parte presentations are prohibited between the time a draft order proposing a substantive disposition of any such proceeding is placed on the Commission's Sunshine Agenda and the time the Commission acts on that draft order, and either releases a final order or returns the matter to the staff for further consideration.

(b) At all other times in non-restricted informal rule making proceedings, ex parte presentations are permitted. However, once a notice of proposed rulemaking has been issued, the following procedures must be observed (except with respect to communications permitted under § 1.1227) until the proceeding has been decided by the Commission and is no longer subject to reconsideration by the Commission or review by any court:

(1) Written ex parte presentations initiated by persons outside the Commission. No interested person may submit a written ex parte presentation to a Commissioner or Commission staff

member unless that person also submits a copy of that presentation under separate cover to the Commission's Secretary for inclusion in the public record. The presentation must indicate on its face that a copy has been submitted to the Secretary, and must indicate by docket number the particular proceeding(s) to which it relates.

(2) Oral ex parte presentations initiated by persons outside the Commission. No interested person may present data or arguments in an oral ex parte presentation which are not already reflected either in written comments previously submitted in the relevant proceeding, or in a written memorandum submitted to the Secretary (with a copy to the Commissioner or staff member involved) on the day of the presentation. (3) Ex parte presentations initiated by persons within the Commission; spontaneous ex parte presentations. A Commissioner or professional employee of the agency who initiates an ex parte presentation or is involved in a spontaneous ex parte presentation must insure that any significant data or arguments presented thereby are reflected in the public record before the Commission issues a final order in the relevant proceeding.

(4) Notice. The Commission will give notice of written ex parte presentations and of memoranda reflecting oral ex parte presentations. It will not give separate notice of oral presentations the substance of which are already reflected in written comments filed pursuant to § 1.415. However, it will publish lists containing the dates of all meetings between Commissioners and persons outside the agency in which ex parte presentations are made.

(5) Opportunity to respond. Responses to written or oral ex parte presentations may be made at any time except when prohibited by paragraph (a) of this section. Responses should not raise new matters and are subject to the same procedures as initial presentations.

[45 FR 45592, July 7, 1980]

PROCEDURES FOR HANDLING EX PARTE
COMMUNICATIONS

§ 1.1241 Written ex parte communications.

(a) To the extent possible, written exparte communications not authorized under § 1.1227 will be forwarded to the Executive Director rather than to the addressee.

(b) Unauthorized written ex parte communications which reach decision-making Commission personnel will be forwarded by them to the Executive Director. If the circumstances in which an unauthorized written ex parte presentation is made are not apparent from the presentation itself, a statement describing those circumstances shall be submitted to the Executive Director with the presentation.

(c) Unauthorized written ex parte communications, and all statements and correspondence per

taining thereto, will be placed in a public file, which will be associated with, but not made a part of, the file or record of the restricted proceeding to which the communication pertains. Prior to designation for hearing, no such communication, statement or correspondence shall be considered, without disclosure, in determining the merits of a restricted proceeding. After designation for hearing, no such materials shall be considered in determining the merits of a restricted proceeding unless they are made a part of the record of that proceeding.

(d)(1) If, in the judgment of the Executive Director, any unauthorized written ex parte presentation forwarded to him is prohibited by § 1.1221(b) or § 1.1223; or if in his judgment the presentation was solicited or encouraged in violation of § 1.1225; or if in his judgment the presentation should, for any other reason, be brought specifically to the attention of the parties, the Executive Director will serve copies of the presentation, together with copies of any statement describing the circumstances in which it was made, upon the parties to the proceeding.

(2) If the written presentation is voluminous or the parties numerous, or if other circumstances satisfy the Executive Director that service of the presentation would be unduly burdensome, he may (in lieu of service) notify the parties to the proceeding that the presentation has been made and that it is available for public inspection.

(e) A copy of any statement describing the circumstances in which any unauthorized written ex parte presentation was submitted will be forwarded to the person who submitted the presentation. Within 10 days after the statement is mailed to him, the person who submitted the presentation may himself file with the Executive Director a notarized statement with regard to these circumstances, which the Executive Director (if he deems service appropriate) may serve upon parties to the proceeding.

(f) The procedures outlined in paragraphs (a)– (e) of this section will also apply in non-restricted informal rulemaking proceedings.

[30 FR 9271, July 24, 1965, as amended at 45 FR 45592, July 7, 1980]

§ 1.1243 Oral ex parte communications.

(a) If an unauthorized oral ex parte presentation is made to decision-making Commission personnel, they will advise the person making the presentation that it is prohibited and terminate the discussion of such matters.

(b) If an unauthorized ex parte presentation has in fact been made, the person to whom the presentation was made shall forward to the Executive Director a statement containing such of the following information as is known to him: (1) The name of the restricted proceeding.

(2) The name and address of the person making the presentation and his relationship (if any) to the parties to the proceeding or their attorneys.

(3) The date and time of the presentation, its duration, and the circumstances (telephone, personal interview, casual meeting, etc.) under which it was made.

(4) A brief statement as to the substance of the matters discussed.

(5) Whether the person making the presentation persisted in doing so after having been advised that the presentation is prohibited.

(6) The date and time at which the statement was prepared.

(c) All statements submitted to the Executive Director pursuant to the provisions of this section, and all correspondence pertaining thereto, will be placed in a public file, which will be associated with, but not made part of, the file or record of the restricted proceeding to which the presentation pertains. Prior to designation for hearing, no such presentation, statement or correspondence shall be considered, without disclosure, in determining the merits of a restricted proceeding. After designation for hearing, no such materials shall be considered in determining the merits of a restricted proceeding unless they are made a part of the record of that proceeding.

(d) All statements submitted to the Executive Director pursuant to the provisions of this section shall be served by the Executive Director on the parties to the proceeding. If the parties are numerous, or if other circumstances satisfy the Executive Director that service of the statement would be unduly burdensome, he may (in lieu of service) notify the parties to the proceeding that the presentation has been made and that a statement with respect to it is available for public inspection.

(e) The Executive Director will forward to the person who made the presentation a copy of the statement prepared by the person to whom the presentation was made. Within 10 days after that statement is mailed to him, the person who made the presentation may himself file with the Executive Director a notarized statement with respect to the substance of the presentation and the circumstances in which it was made, which the Executive Director (if he deems service appropriate) may serve upon parties to the proceeding.

(f) The procedures oulined in paragraphs (a)– (e) of this section will also apply in non-restricted informal rulemaking proceedings.

[30 FR 9271, July 24, 1965, as amended at 45 FR 45592, July 7, 1980]

§ 1.1245 Disclosure of information concerning ex parte presentations.

Any party to a restricted proceeding or a nonrestricted informal rulemaking proceeding who has substantial reason to believe that an unauthorized ex parte presentation has been solicited, attempted or made, or who has information re

(a) Parties. (1) Upon notice and hearing, any party to a restricted proceeding who directly or indirectly makes any unauthorized ex parte presentation, who encourages or solicits others to make any such presentation, or who fails to advise the Executive Director of the facts and circumstances concerning an unauthorized ex parte presentation (see § 1.1245), may be disqualified from further participation in that proceeding. Such alternative or additional sanctions as may be appropriate may be imposed.

(2) To the extent consistent with the interests of justice and the public, a party who has made an ex parte presentation may be required to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected.

(b) Commission personnel. Violations of the provisions of this subpart by Commission personnel will be disposed of in accordance with the procedures set forth in Administrative Order No. 10 and the penalties therein specified.

(c) Other persons. Such sanctions as may be appropriate under the circumstances will be imposed upon other persons who violate the provisions of this subpart.

(d) The sanctions outlined in paragraphs (a)(1), (b), and (c) of this section will also apply in nonrestricted informal rulemaking proceedings. The sanction outlined in paragraph (a)(2) of this section will not apply in non-restricted informal rulemaking proceedings.

[30 FR 9271, July 24, 1965, as amended at 42 FR 12869, Mar. 7, 1977; 45 FR 45592, July 7, 1980]

Subpart I-Procedures Implementing the National Environmental Policy Act of 1969

SOURCE: 39 FR 43843, Dec. 19, 1974, unless otherwise noted.

§ 1.1301 Basis and purpose.

The provisions of this subpart implement the National Environmental Policy Act of 1969, 42 U.S.C. 4321-4347.

§1.1303 Scope.

The provisions of this subpart apply to all major Commission actions authorizing the construction of communications facilities (see §§ 1.1305 and 1.1311(c)). The Commission will, in addition, invoke and implement the environmental impact statement process before taking a posi