FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON
OFFICE OF
THE CHAIRMAN
September 17, 2014
The Honorable Dean Heller
United States Senate
Washington, D.C. 20510
Dear Senator Heller:
Thank you for your recent letter regarding the Commission's narrowly constructed ex
parte rule that exempts from required disclosure a "presentation [that] is made pursuant to an
express or implied promise of confidentiality to protect an individual from the possibility of
reprisal." I appreciate your interest in this matter and welcome the opportunity to clarify the
application of this rule -47 CFR Sec. 1.1 204(a)(9) - in Commission proceedings.
To begin, I fully endorse the core principles you describe: "Public orders issued by the
FCC must be able to stand on its own merit. When orders that have significant impact on the
industry are crafted based on information provided in secret and go unchallenged, I believe it can
undermine the effectiveness of that order."
I agree completely. That is why the Commission, in accord with the Administrative
Procedure Act and applicable precedent, uses only information that is placed on the record when
it renders a decision on whether to allow a transaction to proceed, with or without conditions.
That is why the Commission strongly encourages broad public participation in its processes; so
that the public can help build a comprehensive record (which includes information appropriately
covered by a protective order). Doing so ensures that Commission decisions are supported by
record evidence of all available facts.
At the same time, and as you also recognize, the rule 1.1 204(a)(9), which has been in
effect since at least 1997, exists for a reason: To provide a limited opportunity for entities who
seek confidentiality "due to fear of possible reprisal or retribution." Indeed, this rule is only one
of the ways that the Commission may appropriately be presented with information that is not
placed in the public record. For example, applicants often visit the Commission after a
transaction has been announced but before the release of a public notice initiating the ex parte
process, in order to provide Commission staff with an initial understanding of the proposed
transaction. The case law discussed below explains another situation in which the Commission
has found it useful to have access to information that was held elsewhere in government but not
included in the record before the Commission.
The Honorable Dean Heller
Page 2
The courts have recognized that the Commission has flexibility in determining how best
to conduct its review and analyze proposed transactions. In SBC Communications Inc. v. FCC,
56 F.3d 1484 (D.C. Cir. 1995), which concerned a challenge to the Commission's identification
of documents to be placed in the record of a merger proceeding, the Court explained that '[tJhe
Commission is filly capable of determining which documents are relevant to its decision
making". 56 F.3d at 1496. This decision was again cited in Consumer Federation ofAmerica i
FC 348 F.3d 1009 (D.C. Circuit 2003), when the Commission reviewed a commercial
document that it then decided not to place in the administrative record; a decision that was
upheld by the D.C. Circuit, which rejected a petition for review challenging the Commission's
decision.
As I have explained, this rule does not permit the Commission to rely on that information
when it makes a decision on the merits. It could be used, however, to help the Commission
formulate appropriate questions to applicants or other parties; questions (and subsequent
responses) which could be placed on the record. Alternatively, it could be used as a means of
encouraging persons or entities to put their information on the record.
In sum, the processes used by the Commission are designed to serve the public interest by
encouraging participation in Commission processes, by investing with the Commission staff the
ability to obtain information it needs to do its job, and by ensuring that Commission decisions
rest solely on information that is part of the public record.
Thank you again for making me aware of your interest and for the opportunity to clarify
the Commission's approach on this matter.
Sincerely,
Tom Wheeler