During informal rulemaking at the Federal Communications Commission, industry lobbyists met with Commission staff and the meeting was not recorded in the rulemaking record. Are those communications prohibited ex parte communications?

During informal rulemaking at the Federal Communications Commission, industry lobbyists met with Commission staff and the meeting was not recorded in the rulemaking record. Are those communications prohibited ex parte communications?

• A. Yes, because meetings occurred at the Commission offices.
• B. Yes, because staff should have refused to engage in any ex parte discussion.
• C. No, because the location of the meetings matters.
• D. No, because informal rulemaking ex parte restrictions do not apply.

Answer: (D)

In admin law, ex parte restrictions hinge on whether the proceeding is formal or informal rulemaking. Informal rulemaking is the typical notice-and-comment process, where agencies invite public input and build a record from submissions, hearings, and comments. In this context, there isn’t a blanket prohibition on ex parte communications with staff. The meeting between industry lobbyists and Commission staff, even if not recorded, does not violate a general ex parte ban because informal rulemaking isn’t subject to the same trial-like limits as formal proceedings. The idea behind ex parte restrictions is to prevent unseen influence in proceedings that have an evidentiary hearing and a formal record. In informal rulemaking, the emphasis is on obtaining broad input and considering it in the rulemaking process, and there isn’t a per se prohibition on such communications. If the proceeding were formal—such as a formal adjudication or a rulemaking process explicitly treated as formal—then ex parte communications would be restricted and would require disclosure and recording. So, the scenario fits with informal rulemaking, where those communications are not prohibited ex parte communications, making the chosen answer correct.

In admin law, ex parte restrictions hinge on whether the proceeding is formal or informal rulemaking. Informal rulemaking is the typical notice-and-comment process, where agencies invite public input and build a record from submissions, hearings, and comments. In this context, there isn’t a blanket prohibition on ex parte communications with staff. The meeting between industry lobbyists and Commission staff, even if not recorded, does not violate a general ex parte ban because informal rulemaking isn’t subject to the same trial-like limits as formal proceedings.

The idea behind ex parte restrictions is to prevent unseen influence in proceedings that have an evidentiary hearing and a formal record. In informal rulemaking, the emphasis is on obtaining broad input and considering it in the rulemaking process, and there isn’t a per se prohibition on such communications. If the proceeding were formal—such as a formal adjudication or a rulemaking process explicitly treated as formal—then ex parte communications would be restricted and would require disclosure and recording.

So, the scenario fits with informal rulemaking, where those communications are not prohibited ex parte communications, making the chosen answer correct.