by. Thomas Patterson
A Federal Communications Commission administrator telephones an expert affiliated with an industry likely to be affected by a forthcoming agency regulation. The expert answers questions concerning data contained in the record which the administrator is reviewing prior to issuing the regulation. This ex parte conversation is quickly forgotten when the Commission promulgates its rule. Subsequently, a party disliking the new rule learns of the phone call and brings it to the attention of the reviewing court. Is the newly promulgated rule valid? The United States Court of Appeals for the District of Columbia held in Home Box Office v. FCC that the innocuous phone call would vitiate the agency’s rule. In other words, any court confronted with this situation must strike the rule and remand the case to the agency. This case focused consideration once again on one of the most difficult questions in administrative law: whether an agency should permit ex parte communications in an informal rulemaking proceeding.
In 1972 the FCC initiated informal rulemaking proceedings on the regulation of Cablecast and Subscription broadcast television stations. In compliance with section 553 of the Administrative Procedure Act, public notice of the proposed rulemaking was given and comments were requested to be made within two weeks. At various times before, during, and after this defined period, almost all of the interested parties made ex parte contacts with various members and staff of the FCC.13 Several of these contacts occurred during crucial periods of the decision-making process and ostensibly influenced the final result. The FCC issued four rules regulating and limiting the programming of Cablecast and Subscription television stations. The rules made no mention of the ex parte contacts or any information obtained privately. Home Box Office Co. and others adversely affected successfully challenged the FCC action.16 The court found that the rules violated
the First Amendment, exceeded the scope of FCC authority, and were arbitrary and capricious. However, an additional basis of decision, if not limited, could have greater precedential significance and greater impact on the operations of the FCC and other administrative agencies. Ex parte communications, according to the D.C. Circuit Court, violated fundamental notions of fairness and frustrated judicial review. Accordingly, such contacts should be prohibited once notice of the proposed rulemaking is issued, and should be recorded and publicly reported if they do occur. A concurring opinion supported the ban on ex parte contacts in this and other limited circumstances.
This Note will examine the court’s decision on the subject of ex parte communications and will discuss its potential impact on the informal rulemaking process. It will include an explanation of informal rulemaking and the relative importance and dangers of ex parte contacts and an analysis of the court’s opinion from the perspective of prior case law. Finally, this Note will point out inadequacies in the approaches offered by the Home Box Office decision and will suggest an alternative method of dealing with the ex parte contacts question.
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