1. Are there conflicting private claims to a valuable privilege?
   1. Yes
      1. Have there been ex parte communications, after the beginning of the comment phase, that were relied on?
         1. YEs
            1. WEre the communications disclosed?
            2. No
            3. Ex parte problem
            4. HBO: Ex parte problem because the rule would necessarily decide who would get certain broadcasting rights. Valuable privilege, communications not disclosed.
            5. Yes
            6. no ex parte problem
         2. no
            1. doesn't apply
   2. no
      1. the analysis doesn't apply
         1. ACT: there were not competing claims to a valuable privilege, just an org. that wanted a different standard.