[Title 47 CFR 1]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[Title 47 - TELECOMMUNICATION]
[Chapter I - FEDERAL COMMUNICATIONS COMMISSION]
[Subchapter A - GENERAL]
[Part 1 - PRACTICE AND PROCEDURE]
[From the U.S. Government Printing Office]


47TELECOMMUNICATION12004-10-012004-10-01falsePRACTICE AND PROCEDURE1PART 1TELECOMMUNICATIONFEDERAL COMMUNICATIONS COMMISSIONGENERAL
PART 1_PRACTICE AND PROCEDURE--Table of Contents




            Subpart A_General Rules of Practice and Procedure

                                 General

Sec.
1.1 Proceedings before the Commission.
1.2 Declaratory rulings.
1.3 Suspension, amendment, or waiver of rules.
1.4 Computation of time.
1.5 Mailing address furnished by licensee.
1.6 Availability of station logs and records for Commission inspection.
1.7 Documents are filed upon receipt.
1.8 Withdrawal of papers.
1.10 Transcript of testimony; copies of documents submitted.
1.12 Notice to attorneys of Commission documents.
1.13 Filing of petitions for review and notices of appeals of Commission 
          orders.
1.14 Citation of Commission documents.
1.16 Unsworn declarations under penalty of perjury in lieu of 
          affidavits.
1.17 Truthful and accurate statements to the Commission.
1.18 Administrative Dispute Resolution.
1.19 Use of metric units required.

                  Parties, Practitioners, and Witnesses

1.21 Parties.
1.22 Authority for representation.
1.23 Persons who may be admitted to practice.
1.24 Censure, suspension, or disbarment of attorneys.
1.25 [Reserved]
1.26 Appearances.
1.27 Witnesses; right to counsel.
1.28-1.29 [Reserved]

                   Pleadings, Briefs, and Other Papers

1.41 Informal requests for Commission action.
1.42 Applications, reports, complaints; cross-reference.
1.43 Requests for stay; cross-reference.
1.44 Separate pleadings for different requests.
1.45 Pleadings; filing periods.
1.46 Motions for extension of time.
1.47 Service of documents and proof of service.
1.48 Length of pleadings.
1.49 Specifications as to pleadings and documents.
1.50 Specifications as to briefs.
1.51 Number of copies of pleadings, briefs and other papers.
1.52 Subscription and verification.
1.53 Separate pleadings for petitions for forbearance.

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                     General Application Procedures

1.61 Procedures for handling applications requiring special aeronautical 
          study.
1.62 Operation pending action on renewal application.
1.65 Substantial and significant changes in information furnished by 
          applicants to the Commission.
1.68 Action on application for license to cover construction permit.
1.77 Detailed application procedures; cross references.

                        Miscellaneous Proceedings

1.80 Forfeiture proceedings.
1.83 Applications for radio operator licenses.
1.85 Suspension of operator licenses.
1.87 Modification of license or construction permit on motion of the 
          Commission.
1.88 Predesignation pleading procedure.
1.89 Notice of violations.
1.91 Revocation and/or cease and desist proceedings; hearings.
1.92 Revocation and/or cease and desist proceedings; after waiver of 
          hearing.
1.93 Consent orders.
1.94 Consent order procedures.
1.95 Violation of consent orders.

   Reconsideration and Review of Actions Taken by the Commission and 
 Pursuant to Delegated Authority; Effective Dates and Finality Dates of 
                                 Actions

1.101 General provisions.
1.102 Effective dates of actions taken pursuant to delegated authority.
1.103 Effective dates of Commission actions; finality of Commission 
          actions.
1.104 Preserving the right of review; deferred consideration of 
          application for review.
1.106 Petitions for reconsideration.
1.108 Reconsideration on Commission's own motion.
1.110 Partial grants; rejection and designation for hearing.
1.113 Action modified or set aside by person, panel, or board.
1.115 Application for review of action taken pursuant to delegated 
          authority.
1.117 Review on motion of the Commission.
1.120 Protests of grants without hearing.

                      Subpart B_Hearing Proceedings

                                 General

1.201 Scope.
1.202 Official reporter; transcript.
1.203 The record.
1.204 Pleadings; definition.
1.205 Continuances and extensions.
1.207 Interlocutory matters, reconsideration and review; cross 
          references.
1.209 Identification of responsible officer in caption to pleading.
1.211 Service.

                         Participants and Issues

1.221 Notice of hearing; appearances.
1.223 Petitions to intervene.
1.224 Motion to proceed in forma pauperis.
1.225 Participation by non-parties; consideration of communications.
1.227 Consolidations.
1.229 Motions to enlarge, change, or delete issues.

                            Presiding Officer

1.241 Designation of presiding officer.
1.243 Authority of presiding officer.
1.244 Designation of a settlement judge.
1.245 Disqualification of presiding officer.

                          Prehearing Procedures

1.246 Admission of facts and genuineness of documents.
1.248 Prehearing conferences; hearing conferences.
1.249 Prehearing statement.

                    Hearing and Intermediate Decision

1.250 Discovery and preservation of evidence; cross-reference.
1.251 Summary decision.
1.253 Time and place of hearing.
1.254 Nature of the hearing; burden of proof.
1.255 Order of procedure.
1.258 Closing of the hearing.
1.260 Certification of transcript.
1.261 Corrections to transcript.
1.263 Proposed findings and conclusions.
1.264 Contents of findings of fact and conclusions.
1.267 Initial and recommended decisions.

                           Review Proceedings

1.271 Delegation of review function.
1.273 Waiver of initial or recommended decision.
1.274 Certification of the record to the Commission for initial or final 
          decision.
1.276 Appeal and review of initial decision.
1.277 Exceptions; oral arguments.
1.279 Limitation of matters to be reviewed.
1.282 Final decision of the Commission.

              Interlocutory Actions in Hearing Proceedings

1.291 General provisions.
1.294 Oppositions and replies.
1.296 Service.
1.297 Oral argument.
1.298 Rulings; time for action.

        Appeal and Reconsideration of Presiding Officer's Ruling

1.301 Appeal from presiding officer's interlocutory ruling; effective 
          date of ruling.
1.302 Appeal from presiding officer's final ruling; effective date of 
          ruling.

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               The Discovery and Preservation of Evidence

1.311 General.
1.313 Protective orders.
1.315 Depositions upon oral examination--notice and preliminary 
          procedure.
1.316 Depositions upon written interrogatories--notice and preliminary 
          procedure.
1.318 The taking of depositions.
1.319 Objections to the taking of depositions.
1.321 Use of depositions at the hearing.
1.323 Interrogatories to parties.
1.325 Discovery and production of documents and things for inspection, 
          copying, or photographing.

                                Subpenas

1.331 Who may sign and issue.
1.333 Requests for issuance of subpena.
1.334 Motions to quash.
1.335 Rulings.
1.336 Service of subpenas.
1.337 Return of service.
1.338 Subpena forms.
1.339 Witness fees.
1.340 Attendance of witness; disobedience.

                                Evidence

1.351 Rules of evidence.
1.352 Cumulative evidence.
1.353 Further evidence during hearing.
1.354 Documents containing matter not material.
1.355 Documents in foreign language.
1.356 Copies of exhibits.
1.357 Mechanical reproductions as evidence.
1.358 Tariffs as evidence.
1.359 Proof of official record; authentication of copy.
1.360 Proof of lack of record.
1.361 Other proof of official record.
1.362 Production of statements.
1.363 Introduction of statistical data.
1.364 Testimony by speakerphone.

                    Subpart C_Rulemaking Proceedings

                                 General

1.399 Scope.
1.400 Definitions.

                     Petitions and Related Pleadings

1.401 Petitions for rulemaking.
1.403 Notice and availability.
1.405 Responses to petitions; replies.
1.407 Action on petitions.

                         Rulemaking Proceedings

1.411 Commencement of rulemaking proceedings.
1.412 Notice of proposed rulemaking.
1.413 Content of notice.
1.415 Comments and replies.
1.419 Form of comments and replies; number of copies.
1.420 Additional procedures in proceedings for amendment of the FM or TV 
          Tables of Allotments.
1.421 Further notice of rulemaking.
1.423 Oral argument and other proceedings.
1.425 Commission action.
1.427 Effective date of rules.
1.429 Petition for reconsideration.

                                Inquiries

1.430 Proceedings on a notice of inquiry.

            Subpart D_Broadcast Applications and Proceedings

1.502 Emergency Broadcast Authorizations.

                       General Filing Requirements

1.511 Applications required.
1.512 Where to file; number of copies.
1.513 Who may sign applications.
1.514 Content of applications.
1.516 Specification of facilities.
1.517 Contingent applications.
1.518 Inconsistent or conflicting applications.
1.519 Repetitious applications.
1.520 Multiple applications.
1.522 Amendment of applications.
1.525 Agreements between parties for amendment or dismissal of, or 
          failure to prosecute, broadcast applications.
1.526 Records to be maintained locally for public inspection by 
          commercial applicants, permittees and licensees.
1.527 Records to be maintained locally for public inspection by 
          noncommercial educational applicants, permittees and 
          licensees.
1.531 Formal and informal applications.
1.533 Application forms for authority to construct a new station or make 
          changes in an existing station.
1.534 Application for extension of construction permit or for 
          construction permit to replace expired construction permit.
1.536 Application for license to cover construction permit.
1.538 Application for modification of license.
1.539 Application for renewal of license.
1.540 Application for voluntary assignment or transfer of control.
1.541 Application for involuntary assignment of license or transfer of 
          control.
1.542 Application for temporary authorization.
1.543 Application for renewal or modification of special service 
          authorization.
1.544 Application for broadcast station to conduct field strength 
          measurements and for experimental operation.
1.545 Application for permit to deliver programs to foreign countries.

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1.546 Application to determine operating power by direct measurement of 
          antenna power.
1.549 Requests for extension of authority to operate without required 
          monitors, indicating instruments, and EBS Attention Signal 
          devices.
1.550 Requests for new or modified call sign assignments.
1.561 Staff consideration of applications which receive action by the 
          Commission.
1.562 Staff consideration of applications which do not require action by 
          the Commission.
1.564 Acceptance of applications.
1.566 Defective applications.
1.568 Dismissal of applications.
1.570 AM broadcast station applications involving other North American 
          countries.
1.571 Processing AM broadcast station applications.
1.572 Processing TV broadcast and translator station applications.
1.573 Processing FM broadcast and translator station applications.
1.574 Processing of international broadcast station applications.
1.578 Amendments to applications for renewal, assignment or transfer of 
          control.
1.580 Local public notice of filing of broadcast applications.
1.584 Petitions to deny.
1.587 Procedure for filing informal applications.
1.591 Grants without hearing.
1.592 Conditional grant.
1.593 Designation for hearing.
1.594 Local public notice of designation for hearing.
1.597 Procedures on transfer and assignment applications.
1.598 Period of construction.
1.599 Forfeiture of construction permit.
1.601 Simultaneous modification and renewal of license.
1.603 Special waiver procedure relative to applications.
1.605 Retention of applications in hearing status after designation for 
          hearing.
1.612 Annual employment report.
1.613 Filing of contracts.
1.615 Ownership reports.

   Subpart E_Complaints, Applications, Tariffs, and Reports Involving 
                             Common Carriers

                                 General

1.701 Show cause orders.
1.703 Appearances.

                               Complaints

1.711 Formal or informal complaints.

                           informal complaints

1.716 Form.
1.717 Procedure.
1.718 Unsatisfied informal complaints; formal complaints relating back 
          to the filing dates of informal complaints.
1.719 Informal complaints filed pursuant to section 258.

                            Formal Complaints

1.720 General pleading requirements.
1.721 Format and content of complaints.
1.722 Damages.
1.723 Joinder of complainants and causes of action.
1.724 Answers.
1.725 Cross-complaints and counterclaims.
1.726 Replies.
1.727 Motions.
1.728 Formal complaints not stating a cause of action; defective 
          pleadings.
1.729 Discovery.
1.730 The Enforcement Bureau's Accelerated Docket.
1.731 Confidentiality of information produced or exchanged by the 
          parties.
1.732 Other required written submissions.
1.733 Status conference.
1.734 Specifications as to pleadings, briefs, and other documents; 
          subscription.
1.735 Copies; service; separate filings against multiple defendants.
1.736 Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).

                              Applications

1.741 Scope.
1.742 Place of filing, fees, and number of copies.
1.743 Who may sign applications.
1.744 Amendments.
1.745 Additional statements.
1.746 Defective applications.
1.747 Inconsistent or conflicting applications.
1.748 Dismissal of applications.
1.749 Action on application under delegated authority.

   Specific Types of Applications Under Title II of Communications Act

1.761 Cross reference.
1.763 Construction, extension, acquisition or operation of lines.
1.764 Discontinuance, reduction, or impairment of service.
1.767 Cable landing licenses.
1.768 Notification by and prior approval for submarine cable landing 
          licensees that are or propose to become affiliated with a 
          foreign carrier.

                                 Tariffs

1.771 Filing.
1.772 Application for special tariff permission.
1.773 Petitions for suspension or rejection of new tariff filings.

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1.774 Pricing flexibility.

    Contracts, Reports, and Requests Required to be Filed by Carriers

1.781 Requests for extension of filing time.

                                Contracts

1.783 Filing.

              Financial and Accounting Reports and Requests

1.785 Annual financial reports.
1.786 [Reserved]
1.787 Reports of proposed changes in depreciation rates.
1.788 Reports regarding pensions and benefits.
1.789 Reports regarding division of international telegraph 
          communication charges.
1.790 Reports relating to traffic by international carriers.
1.791 Reports and requests to be filed under part 32 of this chapter.
1.795 Reports regarding interstate rates of return.

                     Services and Facilities Reports

1.802 Reports relating to continuing authority to supplement facilities 
          or to provide temporary or emergency service.
1.803 Reports relating to reduction in temporary experimental service.
1.805 Reports relating to service by carriers engaged in public radio 
          service operations.

                          Miscellaneous Reports

1.811 Reports regarding amendments to charters, by-laws and partnership 
          agreements of carriers engaged in domestic public radio 
          services.
1.814 Reports regarding free service rendered the Government for 
          national defense.
1.815 Reports of annual employment.

                       Grants by Random Selection

1.821 Scope.
1.822 General selection procedures.
1.824 Random selection procedures for Multichannel Multipoint 
          Distribution Service and Multipoint Distribution Service H-
          Channel stations.

    Subpart F_Wireless Telecommunications Services Applications and 
                               Proceedings

                           Scope and Authority

1.901 Basis and purpose.
1.902 Scope.
1.903 Authorization required.
1.907 Definitions.

                 Application Requirements and Procedures

1.911 Station files.
1.913 Application and notification forms; electronic and manual filing.
1.915 General application requirements.
1.917 Who may sign applications.
1.919 Ownership information.
1.923 Content of applications.
1.924 Quiet zones.
1.925 Waivers.
1.926 Application processing; initial procedures.
1.927 Amendment of applications.
1.928 Frequency coordination, Canada.
1.929 Classification of filings as major or minor.
1.931 Application for special temporary authority.
1.933 Public notices.
1.934 Defective applications and dismissal.
1.935 Agreements to dismiss applications, amendments or pleadings.
1.937 Repetitious or conflicting applications.
1.939 Petitions to deny.
1.945 License grants.
1.946 Construction and coverage requirements.
1.947 Modification of licenses.
1.948 Assignment of authorization or transfer of control, notification 
          of consummation.
1.949 Application for renewal of license.
1.951 Duty to respond to official communications.
1.955 Termination of authorizations.
1.956 Settlement conferences.
1.957 Procedure with respect to amateur radio operator license.

                 Reports To Be Filed With the Commission

1.981 Reports, annual and semiannual.

   Subpart G_Schedule of Statutory Charges and Procedures for Payment

1.1101 Authority.
1.1102 Schedule of charges for applications and other filings in the 
          wireless telecommunications services.
1.1103 Schedule of charges for equipment approval, experimental radio 
          services, and international telecommunications settlement 
          services.
1.1104 Schedule of charges for applications and other filings for media 
          services.
1.1105 Schedule of charges for applications and other filings for the 
          wireline competition service.
1.1106 Schedule of charges for applications and other filings for the 
          enforcement service.
1.1107 Schedule of charges for applications and other filings for the 
          international service.
1.1108 Attachment of charges.

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1.1109 Payment of charges.
1.1110 Form of payment.
1.1111 Filing locations.
1.1112 Conditionality of Commission or staff authorizations.
1.1113 Return or refund of charges.
1.1114 General exemptions to charges.
1.1115 Adjustments to charges.
1.1116 Penalty for late or insufficient payments.
1.1117 Petitions and applications for review.
1.1118 Error claims.
1.1119 Billing procedures.
1.1151 Authority to prescribe and collect regulatory fees.
1.1152 Schedule of annual regulatory fees and filing locations for 
          wireless radio services.
1.1153 Schedule of annual regulatory fees and filing locations for mass 
          media services.
1.1154 Schedule of annual regulatory charges and filing locations for 
          common carrier services.
1.1155 Schedule of regulatory fees and filing locations for cable 
          television services.
1.1156 Schedule of regulatory fees and filing locations for 
          international services.
1.1157 Payment of charges for regulatory fees.
1.1158 Form of payment for regulatory.
1.1159 Filing locations and receipts for regulatory fees.
1.1160 Refunds of regulatory fees.
1.1161 Conditional license grants and delegated authorizations.
1.1162 General exemptions from regulatory fees.
1.1163 Adjustments to regulatory fees.
1.1164 Penalties for late or insufficient regulatory fee payments.
1.1165 Payment by cashier's check for regulatory fees.
1.1166 Waivers, reductions and deferrals of regulatory fees.
1.1167 Error claims related to regulatory fees.
1.1181 Authority to prescribe and collect fees for competitive bidding-
          related services and products.
1.1182 Schedule of fees for products and services provided by the 
          Commission in connection with competitive bidding procedures.

                    Subpart H_Ex Parte Communications

                                 General

1.1200 Introduction.
1.1202 Definitions.

                       Sunshine Period Prohibition

1.1203 Sunshine period prohibition.

                           General Exemptions

1.1204 Exempt ex parte presentations and proceedings.

                       Non-Restricted Proceedings

1.1206 Permit-but-disclose proceedings.

                         Restricted Proceedings

1.1208 Restricted proceedings.

              Prohibition on Solicitation of Presentations

1.1210 Prohibition on solicitation of presentations.

      Procedures for Handling of Prohibited Ex Parte Presentations

1.1212 Procedures for handling of prohibited ex parte presentations.
1.1214 Disclosure of information concerning violations of this subpart.

                                Sanctions

1.1216 Sanctions.

Subpart I_Procedures Implementing the National Environmental Policy Act 
                                 of 1969

1.1301 Basis and purpose.
1.1302 Cross-reference; Regulations of the Council on Environmental 
          Quality.
1.1303 Scope.
1.1304 Information and assistance.
1.1305 Actions which normally will have a significant impact upon the 
          environment, for which Environmental Impact Statements must be 
          prepared.
1.1306 Actions which are categorically excluded from environmental 
          processing.
1.1307 Actions that may have a significant environmental effect, for 
          which Environmental Assessments (EAs) must be prepared.
1.1308 Consideration of environmental assessments (EAs); findings of no 
          significant impact.
1.1309 Application amendments.
1.1310 Radiofrequency radiation exposure limits.
1.1311 Environmental information to be included in the environmental 
          assessment (EA).
1.1312 Facilities for which no preconstruction authorization is 
          required.
1.1313 Objections.
1.1314 Environmental impact statements (EISs).
1.1315 The Draft Environmental Impact Statement (DEIS); Comments.
1.1317 The Final Environmental Impact Statement (FEIS).
1.1319 Consideration of the environmental impact statements.

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             Subpart J_Pole Attachment Complaint Procedures

1.1401 Purpose.
1.1402 Definitions.
1.1403 Duty to provide access; modifications; notice of removal, 
          increase or modification; petition for temporary stay; and 
          cable operator notice.
1.1404 Complaint.
1.1405 File numbers.
1.1406 Dismissal of complaints.
1.1407 Response and reply.
1.1408 Number of copies and form of pleadings.
1.1409 Commission consideration of the complaint.
1.1410 Remedies.
1.1411 Meetings and hearings.
1.1412 Enforcement.
1.1413 Forfeiture.
1.1414 State certification.
1.1415 Other orders.
1.1416 Imputation of rates; modification costs.
1.1417 Allocation of Unusable Space Costs.
1.1418 Use of presumptions in calculating the space factor.

 Subpart K_Implementation of the Equal Access to Justice Act (EAJA) in 
                           Agency Proceedings

                           General Provisions

1.1501 Purpose of these rules.
1.1502 When the EAJA applies.
1.1503 Proceedings covered.
1.1504 Eligibility of applicants.
1.1505 Standards for awards.
1.1506 Allowable fees and expenses.
1.1507 Rulemaking on maximum rates for attorney fees.
1.1508 Awards against other agencies.

                  Information Required From Applicants

1.1511 Contents of application.
1.1512 Net worth exhibit.
1.1513 Documentation of fees and expenses.
1.1514 When an application may be filed.

                 Procedures for Considering Applications

1.1521 Filing and service of documents.
1.1522 Answer to application.
1.1523 Reply.
1.1524 Comments by other parties.
1.1525 Settlement.
1.1526 Further proceedings.
1.1527 Decision.
1.1528 Commission review.
1.1529 Judicial review.
1.1530 Payment of award.

      Subpart L_Random Selection Procedures for Mass Media Services

                           General Procedures

1.1601 Scope.
1.1602 Designation for random selection.
1.1603 Conduct of random selection.
1.1604 Post-selection hearings.
1.1621 Definitions.
1.1622 Preferences.
1.1623 Probability calculation.

         Subpart M_Cable Operations and Licensing System (COALS)

1.1701 Purpose.
1.1702 Scope.
1.1703 Definitions.
1.1704 Station files.
1.1705 Forms; electronic and manual filing.
1.1706 Content of filings.
1.1707 Acceptance of filings.

Subpart N_Enforcement of Nondiscrimination on the Basis of Disability In 
     Programs or Activities Conducted by the Federal Communications 
                               Commission

1.1801 Purpose.
1.1802 Applications.
1.1803 Definitions.
1.1805 Federal Communications Commission Section 504 Programs and 
          Activities Accessibility Handbook.
1.1810 Review of compliance.
1.1811 Notice.
1.1830 General prohibitions against discrimination.
1.1840 Employment.
1.1849 Program accessibility: Discrimination prohibited.
1.1850 Program accessibility: Existing facilities.
1.1851 Building accessibility: New construction and alterations.
1.1870 Compliance procedures.

          Subpart O_Collection of Claims Owed the United States

                           General Provisions

1.1901 Definitions and construction.
1.1902 Exceptions.
1.1903 Use of procedures.
1.1904 Conformance to law and regulations.
1.1905 Other procedures; collection of forfeiture penalties.
1.1906 Informal action.
1.1907 Return of property or collateral.
1.1908 Omissions not a defense.
1.1909 [Reserved]
1.1910 Effect of insufficient fee payments, delinquent debts, or 
          debarment.

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  Administrative Offset--Consumer Reporting Agencies--Contracting for 
                               Collection

1.1911 Demand for payment.
1.1912 Collection by administrative offset.
1.1913 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.
1.1914 Collection in installments.
1.1915 Exploration of compromise.
1.1916 Suspending or terminating collection action.
1.1917 Referrals to the Department of Justice and transfers of 
          delinquent debt to the Secretary of Treasury.
1.1918 Use of consumer reporting agencies.
1.1919 Contracting for collection services.
1.1920-1.1924 [Reserved]

                      Salary Offset-Individual Debt

1.1925 Purpose.
1.1926 Scope.
1.1927 Notification.
1.1928 Hearing.
1.1929 Deduction from employee's pay.
1.1930 Liquidation from final check or recovery from other payment.
1.1931 Non-waiver of rights by payments.
1.1932 Refunds.
1.1933 Interest, penalties and administrative costs.
1.1934 Recovery when the Commission is not creditor agency.
1.1935 Obtaining the services of a hearing official.
1.1936 Administrative Wage Garnishment.
1.1937-1.1939 [Reserved]

      Interest, Penalties, Administrative Costs and Other Sanctions

1.1940 Assessment.
1.1941 Exemptions.
1.1942 Other sanctions.
1.1943-1.1949 [Reserved]

              Cooperation With the Internal Revenue Service

1.1950 Reporting discharged debts to the Internal Revenue Service.
1.1951 Offset against tax refunds.
1.1952 Use and disclosure of mailing addresses.

           General Provisions Concerning Interagency Requests

1.1953 Interagency requests.

       Subpart P_Implementation of the Anti-Drug Abuse Act of 1988

1.2001 Purpose.
1.2002 Applicants required to submit information.
1.2003 Applications affected.

                Subpart Q_Competitive Bidding Proceedings

                           General Procedures

1.2101 Purpose.
1.2102 Eligibility of applications for competitive bidding.
1.2103 Competitive bidding design options.
1.2104 Competitive bidding mechanisms.
1.2105 Bidding application and certification procedures; prohibition of 
          collusion.
1.2106 Submission of upfront payments.
1.2107 Submission of down payment and filing of long-form applications.
1.2108 Procedures for filing petitions to deny against long-form 
          applications.
1.2109 License grant, denial, default, and disqualification.
1.2110 Designated entities.
1.2111 Assignment or transfer of control: unjust enrichment.
1.2112 Ownership disclosure requirements for applications.
1.2113 Construction prior to grant of application.

 Subpart R_Implementation of Section 4(g)(3) of the Communications Act: 
 Procedures Governing Acceptance of Unconditional Gifts, Donations and 
                                Bequests

1.3000 Purpose and scope.
1.3001 Definitions.
1.3002 Structural rules and prohibitions.
1.3003 Mandatory factors for evaluating conflicts of interest.
1.3004 Public disclosure and reporting requirements.

  Subpart S_Preemption of Restrictions That ``Impair'' the Ability to 
    Receive Television Broadcast Signals, Direct Broadcast Satellite 
   Services, or Multichannel Multipoint Distribution Services or the 
  Ability To Receive or Transmit Fixed Wireless Communications Signals

1.4000 Restrictions impairing reception of television broadcast signals, 
          direct broadcast satellite services or multichannel multipoint 
          distribution services.

              Subpart T_Exempt Telecommunications Companies

1.5000 Purpose.
1.5001 Definitions.
1.5002 Contents of application and procedure for filing.
1.5003 Effect of filing.
1.5004 Commission action.
1.5005 Notification of Commission action to the Securities and Exchange 
          Commission.

[[Page 101]]

1.5006 Procedure for notifying Commission of material change in facts.
1.5007 Comments.

 Subpart U_Implementation of Section 325(e) of the Communications Act: 
 Procedures Governing Complaints Filed by Television Broadcast Stations 
      Against Satellite Carriers for Retransmission Without Consent

1.6000 Purpose.
1.6001 Retransmission consent complaint procedures.
1.6002 Form and content.
1.6003 Service requirements.
1.6004 Answers.
1.6005 Exclusive defenses.
1.6006 Counting of violations.
1.6007 Burden of proof.
1.6008 Determinations.
1.6009 Relief.
1.6010 Reporting of remedial measures.
1.6011 Effective date.
1.6012 Sunset provisions.

Subpart V_Implementation of Section 706 of the Telecommunications Act of 
 1996; Commission Collection of Advanced Telecommunications Capability 
                                  Data

1.7000 Purpose.
1.7001 Scope and content of filed reports.
1.7002 Frequency of reports.

                    Subpart W_FCC Registration Number

1.8001 FCC Registration Number (FRN).
1.8002 Obtaining an FRN.
1.8003 Providing the FRN in commission filings.
1.8004 Penalty for failure to provide the FRN.

                       Subpart X_Spectrum Leasing

                           Scope and Authority

1.9001 Purpose and scope.
1.9003 Definitions.
1.9005 Included services.

                     General Policies and Procedures

1.9010 De facto control standard for spectrum leasing arrangements.
1.9020 Spectrum manager leasing arrangements.
1.9030 Long-term de facto transfer leasing arrangements.
1.9035 Short-term de facto transfer leasing arrangements.
1.9040 Contractual requirements applicable to spectrum leasing 
          arrangements.
1.9045 Requirements for spectrum leasing arrangements entered into by 
          licensees participating in the installment payment program.
1.9050 Who may sign spectrum leasing notifications and applications.
1.9055 Assignment of file numbers to spectrum leasing notifications and 
          applications.
1.9060 Amendments, waivers, and dismissals affecting spectrum leasing 
          notifications and applications.

              Subpart Y_International Bureau Filing System

1.10000 What is the purpose of these rules?
1.10001 Definitions.
1.10002 What happens if the rules conflict?
1.10003 When can I start operating?
1.10004 What am I allowed to do if I am approved?
1.10005 What is IBFS?
1.10006 Is electronic filing mandatory?
1.10007 What applications can I file electronically?
1.10008 What are IBFS file numbers?
1.10009 What are the steps for electronic filing?
1.10010 Do I need to send paper copies with my electronic applications?
1.10011 Who may sign applications?
1.10012 When can I file on IBFS?
1.10013 How do I check the status of my application after I file it?
1.10014 What happens after officially filing my application?
1.10015 Are there exceptions for emergency filings?
1.10016 How do I apply for special temporary authority?
1.10017 How can I submit additional information?
1.10018 May I amend my application?

Appendix A to Part 1--A Plan of Cooperative Procedure in Matters and 
          Cases Under the Provisions of Section 410 of the 
          Communications Act of 1934

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 
325(e).

    Editorial Note: Nomenclature changes to part 1 appear at 63 FR 
54077, Oct. 8, 1998.



            Subpart A_General Rules of Practice and Procedure

    Source: 28 FR 12415, Nov. 22, 1963, unless otherwise noted.

                                 General



Sec. 1.1  Proceedings before the Commission.

    The Commission may on its own motion or petition of any interested 
party hold such proceedings as it may deem

[[Page 102]]

necessary from time to time in connection with the investigation of any 
matter which it has power to investigate under the law, or for the 
purpose of obtaining information necessary or helpful in the 
determination of its policies, the carrying out of its duties or the 
formulation or amendment of its rules and regulations. For such purposes 
it may subpena witnesses and require the production of evidence. 
Procedures to be followed by the Commission shall, unless specifically 
prescribed in this part, be such as in the opinion of the Commission 
will best serve the purposes of such proceedings.

(Sec. 403, 48 Stat. 1094; 47 U.S.C. 403)



Sec. 1.2  Declaratory rulings.

    The Commission may, in accordance with section 5(d) of the 
Administrative Procedure Act, on motion or on its own motion issue a 
declaratory ruling terminating a controversy or removing uncertainty.

(5 U.S.C. 554)



Sec. 1.3  Suspension, amendment, or waiver of rules.

    The provisions of this chapter may be suspended, revoked, amended, 
or waived for good cause shown, in whole or in part, at any time by the 
Commission, subject to the provisions of the Administrative Procedure 
Act and the provisions of this chapter. Any provision of the rules may 
be waived by the Commission on its own motion or on petition if good 
cause therefor is shown.

    Cross Reference: See subpart C of this part for practice and 
procedure involving rulemaking.



Sec. 1.4  Computation of time.

    (a) Purpose. The purpose of this rule section is to detail the 
method for computing the amount of time within which persons or entities 
must act in response to deadlines established by the Commission. It also 
applies to computation of time for seeking both reconsideration and 
judicial review of Commission decisions.
    (b) General Rule--Computation of Beginning Date When Action is 
Initiated by Commission or Staff. Unless otherwise provided, the first 
day to be counted when a period of time begins with an action taken by 
the Commission, an Administrative Law Judge or by members of the 
Commission or its staff pursuant to delegated authority is the day after 
the day on which public notice of that action is given. See Sec. 1.4(b) 
(1)-(5) of this section. Unless otherwise provided, all Rules measuring 
time from the date of the issuance of a Commission document entitled 
``Public Notice'' shall be calculated in accordance with this section. 
See Sec. 1.4(b)(4) of this section for a description of the ``Public 
Notice'' document. Unless otherwise provided in Sec. 1.4 (g) and (h) of 
this section, it is immaterial whether the first day is a ``holiday.'' 
For purposes of this section, the term public notice means the date of 
any of the following events: See Sec. 1.4(e)(1) of this section for 
definition of ``holiday.''
    (1) For all documents in notice and comment and non-notice and 
comment rulemaking proceedings required by the Administrative Procedure 
Act, 5 U.S.C. 552, 553, to be published in the Federal Register, 
including summaries thereof, the date of publication in the Federal 
Register.
    Note to paragraph (b)(1):
    Licensing and other adjudicatory decisions with respect to specific 
parties that may be associated with or contained in rulemaking documents 
are governed by the provisions of Sec. 1.4(b)(2).

    Example 1: A document in a Commission rule making proceeding is 
published in the Federal Register on Wednesday, May 6, 1987. Public 
notice commences on Wednesday, May 6, 1987. The first day to be counted 
in computing the beginning date of a period of time for action in 
response to the document is Thursday, May 7, 1987, the ``day after the 
day'' of public notice.
    Example 2: Section 1.429(e) provides that when a petition for 
reconsideration is timely filed in proper form, public notice of its 
filing is published in the Federal Register. Section 1.429(f) provides 
that oppositions to a petition for reconsideration shall be filed within 
15 days after public notice of the petition's filing in the Federal 
Register. Public notice of the filing of a petition for reconsideration 
is published in the Federal Register on Wednesday, June 10, 1987. For 
purposes of computing the filing period for an opposition, the first day 
to be counted is Thursday, June 11, 1987, which is the day after the 
date of public notice. Therefore, oppositions to the reconsideration 
petition

[[Page 103]]

must be filed by Thursday, June 25, 1987, 15 days later.

    (2) For non-rulemaking documents released by the Commission or 
staff, including the Commission's section 271 determinations, 47 U.S.C. 
271, the release date.

    Example 3: The Chief, Mass Media Bureau, adopts an order on 
Thursday, April 2, 1987. The text of that order is not released to the 
public until Friday, April 3, 1987. Public notice of this decision is 
given on Friday, April 3, 1987. Saturday, April 4, 1987, is the first 
day to be counted in computing filing periods.

    (3) For rule makings of particular applicability, if the rule making 
document is to be published in the Federal Register and the Commission 
so states in its decision, the date of public notice will commence on 
the day of the Federal Register publication date. If the decision fails 
to specify Federal Register publication, the date of public notice will 
commence on the release date, even if the document is subsequently 
published in the Federal Register. See Declaratory Ruling, 51 FR 23059 
(June 25, 1986).

    Example 4: An order establishing an investigation of a tariff, and 
designating issues to be resolved in the investigation, is released on 
Wednesday, April 1, 1987, and is published in the Federal Register on 
Friday, April 10, 1987. If the decision itself specifies Federal 
Register publication, the date of public notice is Friday, April 10, 
1987. If this decision does not specify Federal Register publication, 
public notice occurs on Wednesday, April 1, 1987, and the first day to 
be counted in computing filing periods is Thursday, April 2, 1987.

    (4) If the full text of an action document is not to be released by 
the Commission, but a descriptive document entitled ``Public Notice'' 
describing the action is released, the date on which the descriptive 
``Public Notice'' is released.

    Example 5: At a public meeting the Commission considers an 
uncontested application to transfer control of a broadcast station. The 
Commission grants the application and does not plan to issue a full text 
of its decision on the uncontested matter. Five days after the meeting, 
a descriptive ``Public Notice'' announcing the action is publicly 
released. The date of public notice commences on the day of the release 
date.
    Example 6: A Public Notice of petitions for rule making filed with 
the Commission is released on Wednesday, September 2, 1987; public 
notice of these petitions is given on September 2, 1987. The first day 
to be counted in computing filing times is Thursday, September 3, 1987.

    (5) If a document is neither published in the Federal Register nor 
released, and if a descriptive document entitled ``Public Notice'' is 
not released, the date appearing on the document sent (e.g., mailed, 
telegraphed, etc.) to persons affected by the action.

    Example 7: A Bureau grants a license to an applicant, or issues a 
waiver for non-conforming operation to an existing licensee, and no 
``Public Notice'' announcing the action is released. The date of public 
notice commences on the day appearing on the license mailed to the 
applicant or appearing on the face of the letter granting the waiver 
mailed to the licensee.

    (c) General Rule--Computation of Beginning Date When Action is 
Initiated by Act, Event or Default. Commission procedures frequently 
require the computation of a period of time where the period begins with 
the occurrence of an act, event or default and terminates a specific 
number of days thereafter. Unless otherwise provided, the first day to 
be counted when a period of time begins with the occurrence of an act, 
event or default is the day after the day on which the act, event or 
default occurs.

    Example 8: Commission Rule Sec. 21.39(d) requires the filing of an 
application requesting consent to involuntary assignment or control of 
the permit or license within thirty days after the occurrence of the 
death or legal disability of the licensee or permittee. If a licensee 
passes away on Sunday, March 1, 1987, the first day to be counted 
pursuant to Sec. 1.4(c) is the day after the act or event. Therefore, 
Monday, March 2, 1987, is the first day of the thirty day period 
specified in Sec. 21.39(d).

    (d) General Rule--Computation of Terminal Date. Unless otherwise 
provided, when computing a period of time the last day of such period of 
time is included in the computation, and any action required must be 
taken on or before that day.

    Example 9: Paragraph 1.4(b)(1) of this section provides that 
``public notice'' in a notice and comment rule making proceeding

[[Page 104]]

begins on the day of Federal Register publication. Paragraph 1.4(b) of 
this section provides that the first day to be counted in computing a 
terminal date is the ``day after the day'' on which public notice 
occurs. Therefore, if the commission allows or requires an action to be 
taken 20 days after public notice in the Federal Register, the first day 
to be counted is the day after the date of the Federal Register 
publication. Accordingly, if the Federal Register document is published 
on Thursday, July 23, 1987, public notice is given on Thursday, July 23, 
and the first day to be counted in computing a 20 day period is Friday, 
July 24, 1987. The 20th day or terminal date upon which action must be 
taken is Wednesday, August 12, 1987.

    (e) Definitions for purposes of this section:
    (1) The term holiday means Saturday, Sunday, officially recognized 
Federal legal holidays and any other day on which the Commission's 
offices are closed and not reopened prior to 5:30 p.m. For example, a 
regularly scheduled Commission business day may become a holiday if its 
offices are closed prior to 5:30 p.m. due to adverse weather, emergency 
or other closing.

    Note: As of August 1987, officially recognized Federal legal 
holidays are New Year's Day, January 1; Martin Luther King's Birthday, 
third Monday in January; Washington's Birthday, third Monday in 
February; Memorial Day, last Monday in May; Independence Day, July 4; 
Labor Day, first Monday in September; Columbus Day, second Monday in 
October; Veterans Day, November 11; Thanksgiving Day, fourth Thursday in 
November; Christmas Day, December 25. If a legal holiday falls on 
Saturday or Sunday, the holiday is taken, respectively, on the preceding 
Friday or the following Monday. In addition, January 20, (Inauguration 
Day) following a Presidential election year is a legal holiday in the 
metropolitan Washington, DC area. If Inauguration Day falls on Sunday, 
the next succeeding day is a legal holiday. See 5 U.S.C. 6103; Executive 
Order No. 11582, 36 FR 2957 (Feb. 11, 1971). The determination of a 
``holiday'' will apply only to the specific Commission location(s) 
designated as on ``holiday'' on that particular day.

    (2) The term business day means all days, including days when the 
Commission opens later than the time specified in Rule Sec. 0.403, 
which are not ``holidays'' as defined above.
    (3) The term filing period means the number of days allowed or 
prescribed by statute, rule, order, notice or other Commission action 
for filing any document with the Commission. It does not include any 
additional days allowed for filing any document pursuant to paragraphs 
(g), (h) and (j) of this section.
    (4) The term filing date means the date upon which a document must 
be filed after all computations of time authorized by this section have 
been made.
    (f) Except as provided in Sec. 0.401(b) of this chapter, all 
petitions, pleadings, tariffs or other documents not required to be 
accompanied by a fee and which are hand-delivered must be tendered for 
filing in complete form, as directed by the Rules, with the Office of 
the Secretary before 7:00 p.m., at 445 12th St., SW., TW-A325, 
Washington, DC. The Secretary will determine whether a tendered document 
meets the pre-7:00 p.m. deadline. Documents filed electronically 
pursuant to Sec. 1.49(f) must be received by the Commission's 
electronic filing system before midnight. Applications, attachments and 
pleadings filed electronically in the Universal Licensing System (ULS) 
pursuant to Sec. 1.939(b) must be received before midnight on the 
filing date. Media Bureau applications and reports filed electronically 
pursuant to Sec. 73.3500 of this chapter must be received by the 
electronic filing system before midnight on the filing date.
    (g) Unless otherwise provided (e.g., Sec. Sec. 1.773 and 
76.1502(e)(1) of this chapter), if the filing period is less than 7 
days, intermediate holidays shall not be counted in determining the 
filing date.

    Example 10: A reply is required to be filed within 5 days after the 
filing of an opposition in a license application proceeding. The 
opposition is filed on Wednesday, June 10, 1987. The first day to be 
counted in computing the 5 day time period is Thursday, June 11, 1987. 
Saturday and Sunday are not counted because they are holidays. The 
document must be filed with the Commission on or before the following 
Wednesday, June 17, 1987.

    (h) If a document is required to be served upon other parties by 
statute or Commission regulation and the document is in fact served by 
mail (see Sec. 1.47(f)), and the filing period for a response is 10 
days or less, an additional 3 days (excluding holidays) will be allowed 
to all parties in the proceeding for filing a response. This paragraph 
(h)

[[Page 105]]

shall not apply to documents filed pursuant to Sec. 1.89, Sec. 
1.120(d), Sec. 1.315(b) or Sec. 1.316. For purposes of this paragraph 
(h) service by facsimile or by electronic means shall be deemed 
equivalent to hand delivery.

    Example 11: A reply to an opposition for a petition for 
reconsideration must be filed within 7 days after the opposition is 
filed. 47 CFR 1.106(h). The rules require that the opposition be served 
on the person seeking reconsideration. 47 CFR 1.106(g). If the 
opposition is served on the party seeking reconsideration by mail and 
the opposition is filed with the Commission on Monday, November 9, 1987, 
the first day to be counted is Tuesday, November 10, 1987 (the day after 
the day on which the event occurred, Sec. 1.4(c)), and the seventh day 
is Monday, November 16. An additional 3 days (excluding holidays) is 
then added at the end of the 7 day period, and the reply must be filed 
no later than Thursday, November 19, 1987.
    Example 12: Assume that oppositions to a petition in a particular 
proceeding are due 10 days after the petition is filed and must be 
served on the parties to the proceeding. If the petition is filed on 
October 28, 1993, the last day of the filing period for oppositions is 
Sunday, November 7. If service is made by mail, the opposition is due 
three days after November 7, or Wednesday, November 10.

    (i) If both paragraphs (g) and (h) of this section are applicable, 
make the paragraph (g) computation before the paragraph (h) computation.

    Example 13: Section 1.45(b) requires the filing of replies to 
oppositions within five days after the time for filing oppositions has 
expired. If an opposition has been filed on the last day of the filing 
period (Friday, July 10, 1987), and was served on the replying party by 
mail, Sec. 1.4(i) of this section specifies that the paragraph (g) 
computation should be made before the paragraph (h) computation. 
Therefore, since the specified filing period is less than seven days, 
paragraph (g) is applied first. The first day of the filing period is 
Monday, July 13, 1987, and Friday, July 17, 1987 is the fifth day (the 
intervening weekend was not counted). Paragraph (h) is then applied to 
add three days for mailing (excluding holidays). That period begins on 
Monday, July 20, 1987. Therefore, Wednesday, July 22, 1987, is the date 
by which replies must be filed, since the intervening weekend is again 
not counted.

    (j) Unless otherwise provided (e.g. Sec. 76.1502(e) of this 
chapter) if, after making all the computations provided for in this 
section, the filing date falls on a holiday, the document shall be filed 
on the next business day. See paragraph (e)(1) of this section.

    Example 14: The filing date falls on Friday, December 25, 1987. The 
document is required to be filed on the next business day, which is 
Monday, December 28, 1987.

    (k) Where specific provisions of part 1 conflict with this section, 
those specific provisions of part 1 are controlling. See, 
e.g.,Sec. Sec. 1.45(d), 1.773(a)(3) and 1.773(b)(2). Additionally, 
where Sec. 76.1502(e) of this chapter conflicts with this section, 
those specific provisions of Sec. 76.1502 are controlling. See e.g. 47 
CFR 76.1502(e).

[52 FR 49159, Dec. 30, 1987; 53 FR 44196, Nov. 2, 1988, as amended at 56 
FR 40567, 40568, Aug. 15, 1991; 58 FR 17529, Apr. 5, 1993; 61 FR 11749, 
Mar. 22, 1996; 62 FR 26238, May 13, 1997; 63 FR 24124, May 1, 1998; 64 
FR 27201, May 19, 1999; 64 FR 60725, Nov. 8, 1999; 65 FR 46109, July 27, 
2000; 67 FR 13223, Mar. 21, 2002]



Sec. 1.5  Mailing address furnished by licensee.

    (a) Each licensee shall furnish the Commission with an address to be 
used by the Commission in serving documents or directing correspondence 
to that licensee. Unless any licensee advises the Commission to the 
contrary, the address contained in the licensee's most recent 
application will be used by the Commission for this purpose.
    (b) The licensee is responsible for making any arrangements which 
may be necessary in his particular circumstances to assure that 
Commission documents or correspondence delivered to this address will 
promptly reach him or some person authorized by him to act in his 
behalf.



Sec. 1.6  Availability of station logs and records for Commission inspection.

    (a) Station records and logs shall be made available for inspection 
or duplication at the request of the Commission or its representative. 
Such logs or records may be removed from the licensee's possession by a 
Commission representative or, upon request, shall be mailed by the 
licensee to the Commission by either registered mail, return receipt 
requested, or certified mail, return receipt requested. The return 
receipt shall be retained by the licensee as part of the station records 
until such records or logs are returned

[[Page 106]]

to the licensee. A receipt shall be furnished when the logs or records 
are removed from the licensee's possession by a Commission 
representative and this receipt shall be retained by the licensee as 
part of the station records until such records or logs are returned to 
the licensee. When the Commission has no further need for such records 
or logs, they shall be returned to the licensee. The provisions of this 
rule shall apply solely to those station logs and records which are 
required to be maintained by the provisions of this chapter.
    (b) Where records or logs are maintained as the official records of 
a recognized law enforcement agency and the removal of the records from 
the possession of the law enforcement agency will hinder its law 
enforcement activities, such records will not be removed pursuant to 
this section if the chief of the law enforcement agency promptly 
certifies in writing to the Federal Communications Commission that 
removal of the logs or records will hinder law enforcement activities of 
the agency, stating insofar as feasible the basis for his decision and 
the date when it can reasonably be expected that such records will be 
released to the Federal Communications Commission.



Sec. 1.7  Documents are filed upon receipt.

    Unless otherwise provided in this Title, by Public Notice, or by 
decision of the Commission or of the Commission's staff acting on 
delegated authority, pleadings and other documents are considered to be 
filed with the Commission upon their receipt at the location designated 
by the Commission.

[60 FR 16055, Mar. 29, 1995]



Sec. 1.8  Withdrawal of papers.

    The granting of a request to dismiss or withdraw an application or a 
pleading does not authorize the removal of such application or pleading 
from the Commission's records.



Sec. 1.10  Transcript of testimony; copies of documents submitted.

    In any matter pending before the Commission, any person submitting 
data or evidence, whether acting under compulsion or voluntarily, shall 
have the right to retain a copy thereof, or to procure a copy of any 
document submitted by him, or of any transcript made of his testimony, 
upon payment of the charges therefor to the person furnishing the same, 
which person may be designated by the Commission. The Commission itself 
shall not be responsible for furnishing the copies.

[29 FR 14406, Oct. 20, 1964]



Sec. 1.12  Notice to attorneys of Commission documents.

    In any matter pending before the Commission in which an attorney has 
appeared for, submitted a document on behalf of or been otherwise 
designated by a person, any notice or other written communication 
pertaining to that matter issued by the Commission and which is required 
or permitted to be furnished to the person will be communicated to the 
attorney, or to one of such attorneys if more than one is designated. If 
direct communication with the party is appropriate, a copy of such 
communication will be mailed to the attorney.

[29 FR 14406, Oct. 20, 1964]



Sec. 1.13  Filing of petitions for review and notices of appeals of 
Commission orders.

    (a)(1) This section pertains to each party filing a petition for 
review in any United States court of appeals of a Commission Order, 
pursuant to section 402(a) of the Communications Act, 47 U.S.C. 402(a), 
and 28 U.S.C. 2342(l), that wishes to avail itself of procedures 
established for selection of a court in the case of multiple appeals, 
pursuant to 28 U.S.C. 2112(a). Each such party shall, within ten days 
after the issuance of that order, file with the General Counsel in the 
Office of General Counsel, Room 8-A741, 445 12th Street, SW., 
Washington, DC 20554, a copy of its petition for review as filed and 
date-stamped by the court of appeals within which it was filed. Such 
copies of petitions for review must be filed by 5:30 p.m. Eastern Time 
on the tenth day of the filing period. A stamp indicating the time and 
date received by the Office of General Counsel will constitute

[[Page 107]]

proof of filing. Upon receipt of any copies of petitions for review, the 
Commission shall follow the procedures established in section 28 U.S.C. 
2112(a) to determine the court in which to file the record in that case.
    (2) Computation of time of the ten-day period for filing copies of 
petitions for review of a Commission order shall be governed by Sec. 
1.4 of the Commission's Rules, 47 CFR 1.4. The date of issuance of a 
Commission order for purposes of filing copies of petitions for review 
shall be the date of public notice as defined in Sec. 1.4(b), 47 CFR 
1.4(b).
    (b) Copies of notices of appeals filed pursuant to 47 U.S.C. 402(b) 
shall be served upon the General Counsel.

    Note: For administrative efficiency, the Commission requests that 
any petitioner seeking judicial review of Commission actions pursuant to 
47 U.S.C. 402(a) serve a copy of its petition on the General Counsel 
regardless of whether it wishes to avail itself of the procedures for 
multiple appeals set forth in 47 U.S.C. 2112(a).

[54 FR 12453, Mar. 27, 1989, as amended at 65 FR 14476, Mar. 17, 2000]



Sec. 1.14  Citation of Commission documents.

    The appropriate reference to the FCC Record shall be included as 
part of the citation to any document that has been printed in the 
Record. The citation should provide the volume, page number and year, in 
that order (e.g., 1 FCC Rcd. 1 (1986). Older documents may continue to 
be cited to the FCC Reports, first or second series, if they were 
printed in the Reports (e.g., 1 FCC 2d 1 (1965)).

[51 FR 45890, Dec. 23, 1986]



Sec. 1.16  Unsworn declarations under penalty of perjury in lieu of 
affidavits.

    Any document to be filed with the Federal Communications Commission 
and which is required by any law, rule or other regulation of the United 
States to be supported, evidenced, established or proved by a written 
sworn declaration, verification, certificate, statement, oath or 
affidavit by the person making the same, may be supported, evidenced, 
established or proved by the unsworn declaration, certification, 
verification, or statement in writing of such person, except that, such 
declaration shall not be used in connection with: (a) A deposition, (b) 
an oath of office, or (c) an oath required to be taken before a 
specified official other than a notary public. Such declaration shall be 
subscribed by the declarant as true under penalty of perjury, and dated, 
in substantially the following form:
    (1) If executed without the United States:

``I declare (or certify, verify, or state) under penalty of perjury 
under the laws of the United States of America that the foregoing is 
true and correct. Executed on (date).
                                                          (Signature)''.

    (2) If executed within the United States, its territories, 
possessions, or commonwealths:

``I declare (or certify, verify, or state) under penalty of perjury that 
the foregoing is true and correct. Executed on (date).
                                                          (Signature)''.

[48 FR 8074, Feb. 25, 1983]



Sec. 1.17  Truthful and accurate statements to the Commission.

    (a) In any investigatory or adjudicatory matter within the 
Commission's jurisdiction (including, but not limited to, any informal 
adjudication or informal investigation but excluding any declaratory 
ruling proceeding) and in any proceeding to amend the FM or Television 
Table of Allotments (with respect to expressions of interest) or any 
tariff proceeding, no person subject to this rule shall;
    (1) In any written or oral statement of fact, intentionally provide 
material factual information that is incorrect or intentionally omit 
material information that is necessary to prevent any material factual 
statement that is made from being incorrect or misleading; and
    (2) In any written statement of fact, provide material factual 
information that is incorrect or omit material information that is 
necessary to prevent any material factual statement that is made from 
being incorrect or misleading without a reasonable basis for believing 
that any such material factual statement is correct and not misleading.

[[Page 108]]

    (b) For purpose of paragraph (a) of this section, ``persons subject 
to this rule'' shall mean the following:
    (1) Any applicant for any Commission authorization;
    (2) Any holder of any Commission authorization, whether by 
application or by blanket authorization or other rule;
    (3) Any person performing without Commission authorization an 
activity that requires Commission authorization;
    (4) Any person that has received a citation or a letter of inquiry 
from the Commission or its staff, or is otherwise the subject of a 
Commission or staff investigation, including an informal investigation;
    (5) In a proceeding to amend the FM or Television Table of 
Allotments, any person filing an expression of interest; and
    (6) To the extent not already covered in this paragraph (b), any 
cable operator or common carrier.

[68 FR 15098, Mar. 28, 2003]



Sec. 1.18  Administrative Dispute Resolution.

    (a) The Commission has adopted an initial policy statement that 
supports and encourages the use of alternative dispute resolution 
procedures in its administrative proceedings and proceedings in which 
the Commission is a party, including the use of regulatory negotiation 
in Commission rulemaking matters, as authorized under the Administrative 
Dispute Resolution Act and Negotiated Rulemaking Act.
    (b) In accordance with the Commission's policy to encourage the 
fullest possible use of alternative dispute resolution procedures in its 
administrative proceedings, procedures contained in the Administrative 
Dispute Resolution Act, including the provisions dealing with 
confidentiality, shall also be applied in Commission alternative dispute 
resolution proceedings in which the Commission itself is not a party to 
the dispute.

[56 FR 51178, Oct. 10, 1991, as amended at 57 FR 32181, July 21, 1992]



Sec. 1.19  Use of metric units required.

    Where parenthesized English units accompany metric units throughout 
this chapter, and the two figures are not precisely equivalent, the 
metric unit shall be considered the sole requirement; except, however, 
that the use of metric paper sizes is not currently required, and 
compliance with the English unit shall be considered sufficient when the 
Commission form requests that data showing compliance with that 
particular standard be submitted in English units.

[58 FR 44893, Aug. 25, 1993]

                  Parties, Practitioners, and Witnesses



Sec. 1.21  Parties.

    (a) Any party may appear before the Commission and be heard in 
person or by attorney.
    (b) The appropriate Bureau Chief(s) of the Commission shall be 
deemed to be a party to every adjudicatory proceeding (as defined in the 
Administrative Procedure Act) without the necessity of being so named in 
the order designating the proceeding for hearing.
    (c) When, in any proceeding, a pleading is filed on behalf of either 
the General Counsel or the Chief Engineer, he shall thereafter be deemed 
a party to the proceeding.
    (d) Except as otherwise expressly provided in this chapter, a duly 
authorized corporate officer or employee may act for the corporation in 
any matter which has not been designated for an evidentiary hearing and, 
in the discretion of the presiding officer, may appear and be heard on 
behalf of the corporation in an evidentiary hearing proceeding.

[28 FR 12415, Nov. 22, 1963, as amended at 37 FR 8527, Apr. 28, 1972; 44 
FR 39180, July 5, 1979; 51 FR 12616, Apr. 14, 1986]



Sec. 1.22  Authority for representation.

    Any person, in a representative capacity, transacting business with 
the Commission, may be required to show his authority to act in such 
capacity.



Sec. 1.23  Persons who may be admitted to practice.

    (a) Any person who is a member in good standing of the bar of the 
Supreme Court of the United States or of the highest court of any state, 
territory or the District of Columbia, and

[[Page 109]]

who is not under any final order of any authority having power to 
suspend or disbar an attorney in the practice of law within any state, 
territory or the District of Columbia that suspends, enjoins, restrains, 
disbars, or otherwise restricts him or her in the practice of law, may 
represent others before the Commission.
    (b) When such member of the bar acting in a representative capacity 
appears in person or signs a paper in practice before the Commission, 
his personal appearance or signature shall constitute a representation 
to the Commission that, under the provisions of this chapter and the 
law, he is authorized and qualified to represent the particular party in 
whose behalf he acts. Further proof of authority to act in a 
representative capacity may be required.

[28 FR 12415, Nov. 22, 1963, as amended at 57 FR 38285, Aug. 24, 1992]



Sec. 1.24  Censure, suspension, or disbarment of attorneys.

    (a) The Commission may censure, suspend, or disbar any person who 
has practiced, is practicing or holding himself out as entitled to 
practice before it if it finds that such person:
    (1) Does not possess the qualifications required by Sec. 1.23;
    (2) Has failed to conform to standards of ethical conduct required 
of practitioners at the bar of any court of which he is a member;
    (3) Is lacking in character or professional integrity; and/or
    (4) Displays toward the Commission or any of its hearing officers 
conduct which, if displayed toward any court of the United States or any 
of its Territories or the District of Columbia, would be cause for 
censure, suspension, or disbarment.
    (b) Except as provided in paragraph (c) of this section, before any 
member of the bar of the Commission shall be censured, suspended, or 
disbarred, charges shall be preferred by the Commission against such 
practitioner, and he or she shall be afforded an opportunity to be heard 
thereon.
    (c) Upon receipt of official notice from any authority having power 
to suspend or disbar an attorney in the practice of law within any 
state, territory, or the District of Columbia which demonstrates that an 
attorney practicing before the Commission is subject to an order of 
final suspension (not merely temporary suspension pending further 
action) or disbarment by such authority, the Commission may, without any 
preliminary hearing, enter an order temporarily suspending the attorney 
from practice before it pending final disposition of a disciplinary 
proceeding brought pursuant to Sec. 1.24(a)(2), which shall afford such 
attorney an opportunity to be heard and directing the attorney to show 
cause within thirty days from the date of said order why identical 
discipline should not be imposed against such attorney by the 
Commission.
    (d) Allegations of attorney misconduct in Commission proceedings 
shall be referred under seal to the Office of General Counsel. Pending 
action by the General Counsel, the decision maker may proceed with the 
merits of the matter but in its decision may make findings concerning 
the attorney's conduct only if necessary to resolve questions concerning 
an applicant and may not reach any conclusions regarding the ethical 
ramifications of the attorney's conduct. The General Counsel will 
determine if the allegations are substantial, and, if so, shall 
immediately notify the attorney and direct him or her to respond to the 
allegations. No notice will be provided to other parties to the 
proceeding. The General Counsel will then determine what further 
measures are necessary to protect the integrity of the Commission's 
administrative process, including but not limited to one or more of the 
following:
    (1) Recommending to the Commission the institution of a proceeding 
under paragraph (a) of this section;
    (2) Referring the matter to the appropriate State, territorial, or 
District of Columbia bar; or
    (3) Consulting with the Department of Justice.

[28 FR 12415, Nov. 22, 1963, as amended at 57 FR 38285, Aug. 24, 1992; 
60 FR 53277, Oct. 13, 1995]

[[Page 110]]



Sec. 1.25  [Reserved]



Sec. 1.26  Appearances.

    Rules relating to appearances are set forth in Sec. Sec. 1.87, 
1.91, 1.221, and 1.703.



Sec. 1.27  Witnesses; right to counsel.

    Any individual compelled to appear in person in any Commission 
proceeding may be accompanied, represented, and advised by counsel as 
provided in this section. (Regulations as to persons seeking voluntarily 
to appear and give evidence are set forth in Sec. 1.225.)
    (a) Counsel may advise his client in confidence, either upon his own 
initiative or that of the witness, before, during, and after the 
conclusion of the proceeding.
    (b) Counsel for the witness will be permitted to make objections on 
the record, and to state briefly the basis for such objections, in 
connection with any examination of his client.
    (c) At the conclusion of the examination of his client, counsel may 
ask clarifying questions if in the judgment of the presiding officer 
such questioning is necessary or desirable in order to avoid ambiguity 
or incompleteness in the responses previously given.
    (d) Except as provided by paragraph (c) of this section, counsel for 
the witness may not examine or cross-examine any witness, or offer 
documentary evidence, unless authorized by the Commission to do so.

(5 U.S.C. 555)

[29 FR 12775, Sept. 10, 1964]



Sec. Sec. 1.28-1.29  [Reserved]

                   Pleadings, Briefs, and Other Papers



Sec. 1.41  Informal requests for Commission action.

    Except where formal procedures are required under the provisions of 
this chapter, requests for action may be submitted informally. Requests 
should set forth clearly and concisely the facts relied upon, the relief 
sought, the statutory and/or regulatory provisions (if any) pursuant to 
which the request is filed and under which relief is sought, and the 
interest of the person submitting the request. In application and 
licensing matters pertaining to the Wireless Radio Services, as defined 
in Sec. 1.904 of this part, such requests may also be sent 
electronically, via the ULS.

[28 FR 12415, Nov. 22, 1963, as amended at 63 FR 68919, Dec. 14, 1998]



Sec. 1.42  Applications, reports, complaints; cross-reference.

    (a) Rules governing applications and reports are contained in 
subparts D, E, and F of this part.
    (b) Special rules governing complaints against common carriers 
arising under the Communications Act are set forth in subpart E of this 
part.
    (c) Rules governing the FCC Registration Number (FRN) are contained 
in subpart W of this part.

[28 FR 12415, Nov. 22, 1963, as amended at 66 FR 47895, Sept. 14, 2001]



Sec. 1.43  Requests for stay; cross-reference.

    General rules relating to requests for stay of any order or decision 
are set forth in Sec. Sec. 1.41, 1.44(e), 1.45 (d) and (e), and 
1.298(a). See also Sec. Sec. 1.102, 1.106(n), and 1.115(h).



Sec. 1.44  Separate pleadings for different requests.

    (a) Requests requiring action by the Commission shall not be 
combined in a pleading with requests for action by an administrative law 
judge or by any person or persons acting pursuant to delegated 
authority.
    (b) Requests requiring action by an administrative law judge shall 
not be combined in a pleading with requests for action by the Commission 
or by any person or persons acting pursuant to delegated authority.
    (c) Requests requiring action by any person or persons pursuant to 
delegated authority shall not be combined in a pleading with requests 
for action by any other person or persons acting pursuant to delegated 
authority.
    (d) Pleadings which combine requests in a manner prohibited by 
paragraph (a), (b), or (c) of this section may be returned without 
consideration to the person who filed the pleading.
    (e) Any request to stay the effectiveness of any decision or order 
of the Commission shall be filed as a separate

[[Page 111]]

pleading. Any such request which is not filed as a separate pleading 
will not be considered by the Commission.

    Note: Matters which are acted on pursuant to delegated authority are 
set forth in subpart B of part 0 of this chapter. Matters acted on by 
the hearing examiner are set forth in Sec. 0.341.



Sec. 1.45  Pleadings; filing periods.

    Except as otherwise provided in this chapter, pleadings in 
Commission proceedings shall be filed in accordance with the provisions 
of this section. Pleadings associated with licenses, applications, 
waivers and other documents in the Wireless Radio Services may be filed 
via the ULS.
    (a) Petitions. Petitions to deny may be filed pursuant to Sec. 
1.939 of this part.
    (b) Oppositions. Oppositions to any motion, petition, or request may 
be filed within 10 days after the original pleading is filed.
    (c) Replies. The person who filed the original pleading may reply to 
oppositions within 5 days after the time for filing oppositions has 
expired. The reply shall be limited to matters raised in the 
oppositions, and the response to all such matters shall be set forth in 
a single pleading; separate replies to individual oppositions shall not 
be filed.
    (d) Requests for temporary relief; shorter filing periods. 
Oppositions to a request for stay of any order or to a request for other 
temporary relief shall be filed within 7 days after the request is 
filed. Replies to oppositions should not be filed and will not be 
considered. The provisions of Sec. 1.4(h) shall not apply in computing 
the filing date for oppositions to a request for stay or for other 
temporary relief.
    (e) Ex parte disposition of certain pleadings. As a matter of 
discretion, the Commission may rule ex parte upon requests for 
continuances and extensions of time, requests for permission to file 
pleadings in excess of the length prescribed in this chapter, and 
requests for temporary relief, without waiting for the filing of 
oppositions or replies.

    Note: Where specific provisions contained in part 1 conflict with 
this section, those specific provisions are controlling. See, in 
particular, Sec. Sec. 1.294(c), 1.298(a), and 1.773.

[28 FR 12415, Nov. 22, 1963, as amended at 33 FR 7153, May 15, 1968; 45 
FR 64190, Sept. 29, 1980; 54 FR 31032, July 26, 1989; 54 FR 37682, Sept. 
12, 1989; 63 FR 68919, Dec. 14, 1998]



Sec. 1.46  Motions for extension of time.

    (a) It is the policy of the Commission that extensions of time shall 
not be routinely granted.
    (b) Motions for extension of time in which to file responses to 
petitions for rulemaking, replies to such responses, comments filed in 
response to notice of proposed rulemaking, replies to such comments and 
other filings in rulemaking proceedings conducted under Subpart C of 
this part shall be filed at least 7 days before the filing date. If a 
timely motion is denied, the responses and comments, replies thereto, or 
other filings need not be filed until 2 business days after the 
Commission acts on the motion. In emergency situations, the Commission 
will consider a late-filed motion for a brief extension of time related 
to the duration of the emergency and will consider motions for 
acceptance of comments, reply comments or other filings made after the 
filing date.
    (c) If a motion for extension of time in which to make filings in 
proceedings other than notice and comment rule making proceedings is 
filed less than 7 days prior to the filing day, the party filing the 
motion shall (in addition to serving the motion on other parties) orally 
notify other parties and Commission staff personnel responsible for 
acting on the motion that the motion has been (or is being) filed.

[39 FR 43301, Dec. 12, 1974, as amended at 41 FR 9550, Mar. 5, 1976; 41 
FR 14871, Apr. 8, 1976; 42 FR 28887, June 6, 1977; 63 FR 24124, May 1, 
1998]



Sec. 1.47  Service of documents and proof of service.

    (a) Where the Commission or any person is required by statute or by 
the provisions of this chapter to serve any document upon any person, 
service shall (in the absence of specific provisions in this chapter to 
the contrary) be made in accordance with the provisions of this section.

[[Page 112]]

    (b) Where any person is required to serve any document filed with 
the Commission, service shall be made by that person or by his 
representative on or before the day on which the document is filed.
    (c) Commission counsel who formally participate in any proceeding 
shall be served in the same manner as other persons who participate in 
that proceeding. The filing of a document with the Commission does not 
constitute service upon Commission counsel.
    (d) Except in formal complaint proceedings against common carriers 
under Sec. Sec. 1.720 through 1.736, documents may be served upon a 
party, his attorney, or other duly constituted agent by delivering a 
copy or by mailing a copy to the last known address. See Sec. 1.736. 
Documents that are required to be served must be served in paper form, 
even if documents are filed in electronic form with the Commission, 
unless the party to be served agrees to accept service in some other 
form.
    (e) Delivery of a copy pursuant to this section means handing it to 
the party, his attorney, or other duly constituted agent; or leaving it 
with the clerk or other person in charge of the office of the person 
being served; or, if there is no one in charge of such office, leaving 
it in a conspicuous place therein; or, if such office is closed or the 
person to be served has no office, leaving it at his dwelling house or 
usual place of abode with some person of suitable age and discretion 
then residing therein.
    (f) Service by mail is complete upon mailing.
    (g) Proof of service, as provided in this section, shall be filed 
before action is taken. The proof of service shall show the time and 
manner of service, and may be by written acknowledgement of service, by 
certificate of the person effecting the service, or by other proof 
satisfactory to the Commission. Failure to make proof of service will 
not affect the validity of the service. The Commission may allow the 
proof to be amended or supplied at any time, unless to do so would 
result in material prejudice to a party.
    (h) Every common carrier subject to the Communications Act of 1934, 
as amended, shall designate an agent in the District of Columbia, and 
may designate additional agents if it so chooses, upon whom service of 
all notices, process, orders, decisions, and requirements of the 
Commission may be made for and on behalf of said carrier in any 
proceeding before the Commission. Such designation shall include, for 
both the carrier and its designated agents, a name, business address, 
telephone or voicemail number, facsimile number, and, if available, 
Internet e-mail address. The carrier shall additionally list any other 
names by which it is known or under which it does business, and, if the 
carrier is an affiliated company, the parent, holding, or management 
company. Within thirty (30) days of the commencement of provision of 
service, each carrier shall file such information with the Chief of the 
Enforcement Bureau's Market Disputes Resolution Division. Carriers may 
file a hard copy of the relevant portion of the Telecommunications 
Reporting Worksheet, as delineated by the Commission in the Federal 
Register, to satisfy this requirement. Each Telecommunications Reporting 
Worksheet filed annually by a common carrier must contain a name, 
business address, telephone or voicemail number, facsimile number, and, 
if available, Internet e-mail address for its designated agents, 
regardless of whether such information has been revised since the 
previous filing. Carriers must notify the Commission within one week of 
any changes in their designation information by filing revised portions 
of the Telecommunications Reporting Worksheet with the Chief of the 
Enforcement Bureau's Market Disputes Resolution Division. A paper copy 
of this designation list shall be maintained in the Office of the 
Secretary of the Commission. Service of any notice, process, orders, 
decisions or requirements of the Commission may be made upon such 
carrier by leaving a copy thereof with such designated agent at his 
office or usual place of residence. If a carrier fails to designate such 
an agent, service of any notice or other process in any proceeding 
before the Commission, or of any order, decision, or requirement of the 
Commission, may be made by posting such notice, process, order,

[[Page 113]]

requirement, or decision in the Office of the Secretary of the 
Commission.

[28 FR 12415, Nov. 22, 1963, as amended at 40 FR 55644, Dec. 1, 1975; 53 
FR 11852, Apr. 11, 1988; 63 FR 1035, Jan. 7, 1998; 63 FR 24124, May 1, 
1998; 64 FR 41330, July 30, 1999; 64 FR 60725, Nov. 8, 1999]



Sec. 1.48  Length of pleadings.

    (a) Affidavits, statements, tables of contents and summaries of 
filings, and other materials which are submitted with and factually 
support a pleading are not counted in determining the length of the 
pleading. If other materials are submitted with a pleading, they will be 
counted in determining its length; and if the length of the pleadings, 
as so computed, is greater than permitted by the provisions of this 
chapter, the pleading will be returned without consideration.
    (b) It is the policy of the Commission that requests for permission 
to file pleadings in excess of the length prescribed by the provisions 
of this chapter shall not be routinely granted. Where the filing period 
is 10 days or less, the request shall be made within 2 business days 
after the period begins to run. Where the period is more than 10 days, 
the request shall be filed at least 10 days before the filing date. (See 
Sec. 1.4.) If a timely request is made, the pleading need not be filed 
earlier than 2 business days after the Commission acts upon the request.

[41 FR 14871, Apr. 8, 1976, and 49 FR 40169, Oct. 15, 1984]



Sec. 1.49  Specifications as to pleadings and documents.

    (a) All pleadings and documents filed in paper form in any 
Commission proceeding shall be typewritten or prepared by mechanical 
processing methods, and shall be filed on A4 (21 cm. x 29.7 cm.) or on 
8\1/2\ x 11 inch (21.6 cm. x 27.9 cm.) paper with the margins set so 
that the printed material does not exceed 6 \1/2\ x 9\1/2\ inches (16.5 
cm. x 24.1 cm.). The printed material may be in any typeface of at least 
12-point (0.42333 cm. or \12/72\) in height. The body of the 
text must be double spaced with a minimum distance of \7/32\ of an inch 
(0.5556 cm.) between each line of text. Footnotes and long, indented 
quotations may be single spaced, but must be in type that is 12-point or 
larger in height, with at least \1/16\ of an inch (0.158 cm.) between 
each line of text. Counsel are cautioned against employing extended 
single spaced passages or excessive footnotes to evade prescribed 
pleading lengths. If single-spaced passages or footnotes are used in 
this manner the pleading will, at the discretion of the Commission, 
either be rejected as unacceptable for filing or dismissed with leave to 
be refiled in proper form. Pleadings may be printed on both sides of the 
paper. Pleadings that use only one side of the paper shall be stapled, 
or otherwise bound, in the upper left-hand corner; those using both 
sides of the paper shall be stapled twice, or otherwise bound, along the 
left-hand margin so that it opens like a book. The foregoing shall not 
apply to printed briefs specifically requested by the Commission, 
official publications, charted or maps, original documents (or 
admissible copies thereof) offered as exhibits, specially prepared 
exhibits, or if otherwise specifically provided. All copies shall be 
clearly legible.
    (b) Except as provided in paragraph (d) of this section, all 
pleadings and documents filed with the Commission, the length of which 
as computed under this chapter exceeds ten pages, shall include, as part 
of the pleading or document, a table of contents with page references.
    (c) Except as provided in paragraph (d) of this section, all 
pleadings and documents filed with the Commission, the length of which 
filings as computed under this chapter exceeds ten pages, shall include, 
as part of the pleading or document, a summary of the filing, suitably 
paragraphed, which should be a succinct, but accurate and clear 
condensation of the substance of the filing. It should not be a mere 
repetition of the headings under which the filing is arranged. For 
pleadings and documents exceeding ten but not twenty-five pages in 
length, the summary should seldom exceed one and never two pages; for 
pleadings and documents exceeding twenty-five pages in length, the 
summary should seldom exceed two and never five pages.
    (d) The requirements of paragraphs (b) and (c) of this section shall 
not apply to:

[[Page 114]]

    (1) Interrogatories or answers to interrogatories, and depositions;
    (2) FCC forms or applications;
    (3) Transcripts;
    (4) Contracts and reports;
    (5) Letters; or
    (6) Hearing exhibits, and exhibits or appendicies accompanying any 
document or pleading submitted to the Commission.
    (e) Petitions, pleadings, and other documents associated with 
licensing matters in the Wireless Radio Services may be filed 
electronically in ULS. See Sec. 22.6 for specifications.
    (f)(1) In the following types of proceedings, all pleadings, 
including permissible ex parte submissions, notices of ex parte 
presentations, comments, reply comments, and petitions for 
reconsideration and replies thereto, may be filed in electronic format:
    (i) General rulemaking proceedings other than broadcast allotment 
proceedings;
    (ii) Notice of inquiry proceedings; and
    (iii) Petition for rulemaking proceedings (except broadcast 
allotment proceedings).
    (2) For purposes of paragraphs (b) and (c) of this section, and any 
prescribed pleading lengths, the length of any document filed in 
electronic form shall be equal to the length of the document if printed 
out and formatted according to the specifications of paragraph (a) of 
this section, or shall be no more that 250 words per page.

    Note: The table of contents and the summary pages shall not be 
included in complying with any page limitation requirements as set forth 
by Commission rule.

[40 FR 19198, May 2, 1975, as amended at 47 FR 26393, June 18, 1982; 51 
FR 16322, May 2, 1986; 54 FR 31032, July 26, 1989; 58 FR 44893, Aug. 25, 
1993; 59 FR 37721, July 25, 1994; 63 FR 24125, May 1, 1998; 63 FR 68920, 
Dec. 14, 1998]



Sec. 1.50  Specifications as to briefs.

    The Commission's preference is for briefs that are either 
typewritten, prepared by other mechanical processing methods, or, in the 
case of matters in the Wireless Radio Services, composed electronically 
and sent via ULS. Printed briefs will be accepted only if specifically 
requested by the Commission. Typewritten, mechanically produced, or 
electronically transmitted briefs must conform to all of the applicable 
specifications for pleadings and documents set forth in Sec. 1.49.

[63 FR 68920, Dec. 14, 1998]



Sec. 1.51  Number of copies of pleadings, briefs and other papers.

    Except as otherwise specifically provided in the Commission's rules 
and regulations, the number of copies of pleadings, briefs, and other 
papers to be filed is as follows:
    (a) In hearing proceedings, the following number of copies shall be 
filed:
    (1) If the paper filed relates to a matter to be acted upon by the 
presiding officer or the Chief Administrative Law Judge, an original and 
6 copies shall be filed.
    (2) If the paper filed relates to matters to be acted on by the 
Commission, an original and 14 copies shall be filed.
    (3) If more than one person presided (is presiding) at the hearing 
an additional copy shall be filed for each such additional person.
    (b) In rulemaking proceedings which have not been designated for 
hearing, see section 1.419 of this chapter.
    (c) In matters other than rule making and hearing cases, the 
following number of copies shall be filed:
    (1) If the paper filed relates to matters to be acted on by the 
Commission, an original and 4 copies shall be filed. If the matter 
relates to Part 22 of the rules, see Sec. 22.6.
    (2) If the paper filed related to matters to be acted on by staff 
officials under delegated authority, an original and 4 copies shall be 
filed. If the matter relates to Part 22 of the rules, see Sec. 22.6.
    (d) Where statute or regulation provides for service by the 
Commission of papers filed with the Commission, an additional copy of 
such papers shall be filed for each person to be served.
    (e) The parties to any proceeding may, on notice, be required to 
file additional copies of any or all filings made in that proceeding.
    (f) For application and licensing matters involving the Wireless 
Radio Services, pleadings, briefs or other documents may be filed 
electronically in ULS, or if filed manually, one original and one copy 
of a pleading, brief or other document must be filed.

[[Page 115]]

    (g) Participants that file pleadings, briefs or other documents 
electronically in ULS need only submit one copy, so long as the 
submission conforms to any procedural or filing requirements established 
for formal electronic comments. (see Sec. 1.49)
    (h) Pleadings, briefs or other documents filed electronically in ULS 
by a party represented by an attorney shall include the name, street 
address, and telephone number of at least one attorney of record. 
Parties not represented by an attorney that file electronically in ULS 
shall provide their name, street address, and telephone number.

(Secs. 4, 303, 48 Stat., as amended, 1066, 1082; (47 U.S.C. 154, 303))

[40 FR 48136, Oct. 14, 1975, as amended at 41 FR 50399, Nov. 16, 1976; 
45 FR 64190, Sept. 29, 1980; 45 FR 79486, Dec. 1, 1980; 50 FR 26567, 
June 27, 1985; 54 FR 29037, July 11, 1989; 54 FR 31032, July 26, 1989; 
62 FR 4170, Jan. 29, 1997; 63 FR 24125, May 1, 1998; 63 FR 68920, Dec. 
14, 1998]



Sec. 1.52  Subscription and verification.

    The original of all petitions, motions, pleadings, briefs, and other 
documents filed by any party represented by counsel shall be signed by 
at least one attorney of record in his individual name, whose address 
shall be stated. A party who is not represented by an attorney shall 
sign and verify the document and state his address. Either the original 
document, the electronic reproduction of such original document 
containing the facsimile signature of the attorney or represented party, 
or, in the case of matters in the Wireless Radio Services, an electronic 
filing via ULS is acceptable for filing. If a facsimile or electronic 
reproduction of such original document is filed, the signatory shall 
retain the original until the Commission's decision is final and no 
longer subject to judicial review. If pursuant to Sec. 1.429(h) a 
document is filed electronically, a signature will be considered any 
symbol executed or adopted by the party with the intent that such symbol 
be a signature, including symbols formed by computer-generated 
electronic impulses. Except when otherwise specifically provided by rule 
or statute, documents signed by the attorney for a party need not be 
verified or accompanied by affidavit. The signature or electronic 
reproduction thereof by an attorney constitutes a certificate by him 
that he has read the document; that to the best of his knowledge, 
information, and belief there is good ground to support it; and that it 
is not interposed for delay. If the original of a document is not signed 
or is signed with intent to defeat the purpose of this section, or an 
electronic reproduction does not contain a facsimile signature, it may 
be stricken as sham and false, and the matter may proceed as though the 
document had not been filed. An attorney may be subjected to appropriate 
disciplinary action, pursuant to Sec. 1.24, for a willful violation of 
this section or if scandalous or indecent matter is inserted.

[63 FR 24125, May 1, 1998, as amended at 63 FR 68920, Dec. 14, 1998]



Sec. 1.53  Separate pleadings for petitions for forbearance.

    In order to be considered as a petition for forbearance subject to 
the one-year deadline set forth in 47 U.S.C. 160(c), any petition 
requesting that the Commission exercise its forbearance authority under 
47 U.S.C. 160 shall be filed as a separate pleading and shall be 
identified in the caption of such pleading as a petition for forbearance 
under 47 U.S.C. 160(c). Any request which is not in compliance with this 
rule is deemed not to constitute a petition pursuant to 47 U.S.C. 
160(c), and is not subject to the deadline set forth therein.

[65 FR 7460, Feb. 15, 2000]

                     General Application Procedures



Sec. 1.61  Procedures for handling applications requiring special 
aeronautical study.

    (a) Antenna Structure Registration is conducted by the Wireless 
Telecommunications Bureau as follows:
    (1) Each antenna structure owner that must notify the FAA of 
proposed construction using FAA Form 7460-1 shall, upon proposing new or 
modified construction, register that antenna structure with the Wireless 
Telecommunications Bureau using FCC Form 854.

[[Page 116]]

    (2) If an Environmental Assessment is required under Sec. 1.1307, 
the Bureau will address the environmental concerns prior to processing 
the registration.
    (3) If a final FAA determination of ``no hazard'' is not submitted 
along with FCC Form 854, processing of the registration may be delayed 
or disapproved.
    (4) If the owner of the antenna structure cannot file FCC Form 854 
because it is subject to a denial of Federal benefits under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. 862, the first licensee authorized to 
locate on the structure must register the structure using FCC Form 854, 
and provide a copy of the Antenna Structure Registration (FCC Form 854R) 
to the owner. The owner remains responsible for providing a copy of FCC 
Form 854R to all tenant licensees on the structure and for posting the 
registration number as required by Sec. 17.4(g) of this chapter.
    (5) Upon receipt of FCC Form 854, and attached final FAA 
determination of ``no hazard,'' the Bureau prescribes antenna structure 
painting and/or lighting specifications or other conditions in 
accordance with the FAA airspace recommendation and returns a completed 
Antenna Structure Registration (FCC Form 854R) to the registrant. If the 
proposed structure is disapproved the registrant is so advised.
    (b) Each operating Bureau or Office examines the applications for 
Commission authorization for which it is responsible to ensure 
compliance with FAA notification procedures as well as Commission 
Antenna Structure Registration as follows:
    (1) If Antenna Structure Registration is required, the operating 
Bureau reviews the application for the Antenna Structure Registration 
Number and proceeds as follows:
    (i) If the application contains the Antenna Structure Registration 
Number or if the applicant seeks a Cellular or PCS system authorization, 
the operating Bureau processes the application.
    (ii) If the application does not contain the Antenna Structure 
Registration Number, but the structure owner has already filed FCC Form 
854, the operating Bureau places the application on hold until 
Registration can be confirmed, so long as the owner exhibits due 
diligence in filing.
    (iii) If the application does not contain the Antenna Structure 
Registration Number, and the structure owner has not filed FCC Form 854, 
the operating Bureau notifies the applicant that FCC Form 854 must be 
filed and places the application on hold until Registration can be 
confirmed, so long as the owner exhibits due diligence in filing.
    (2) If Antenna Structure Registration is not required, the operating 
Bureau processes the application.
    (c) Where one or more antenna farm areas have been designated for a 
community or communities (see Sec. 17.9 of this chapter), an 
application proposing the erection of an antenna structure over 1,000 
feet in height above ground to serve such community or communities will 
not be accepted for filing unless:
    (1) It is proposed to locate the antenna structure in a designated 
antenna farm area, or
    (2) It is accompanied by a statement from the Federal Aviation 
Administration that the proposed structure will not constitute a menace 
to air navigation, or
    (3) It is accompanied by a request for waiver setting forth reasons 
sufficient, if true, to justify such a waiver.

    Note: By Commission Order (FCC 65-455), 30 FR 7419, June 5, 1965, 
the Commission issued the following policy statement concerning the 
height of radio and television antenna towers:
``We have concluded that this objective can best be achieved by adopting 
the following policy: Applications for antenna towers higher than 2,000 
feet above ground will be presumed to be inconsistent with the public 
interest, and the applicant will have a burden of overcoming that strong 
presumption. The applicant must accompany its application with a 
detailed showing directed to meeting this burden. Only in the 
exceptional case, where the Commission concludes that a clear and 
compelling showing has been made that there are public interest reasons 
requiring a tower higher than 2,000 feet above ground, and after the 
parties have complied with applicable FAA procedures, and full 
Commission coordination with FAA on the question of menace to air 
navigation, will a grant be made. Applicants and parties in interest 
will,

[[Page 117]]

of course, be afforded their statutory hearing rights.''

[28 FR 12415, Nov. 22, 1963, as amended at 32 FR 8813, June 21, 1967; 32 
FR 20860, Dec. 28, 1967; 34 FR 6481, Apr. 15, 1969; 45 FR 55201, Aug. 
19, 1980; 58 FR 13021, Mar. 9, 1993, 61 FR 4361, Feb. 6, 1996]



Sec. 1.62  Operation pending action on renewal application.

    (a)(1) Where there is pending before the Commission at the time of 
expiration of license any proper and timely application for renewal of 
license with respect to any activity of a continuing nature, in 
accordance with the provisions of section 9(b) of the Administrative 
Procedure Act, such license shall continue in effect without further 
action by the Commission until such time as the Commission shall make a 
final determination with respect to the renewal application. No 
operation by any licensee under this section shall be construed as a 
finding by the Commission that the operation will serve the public 
interest, convenience, or necessity, nor shall such operation in any way 
affect or limit the action of the Commission with respect to any pending 
application or proceeding.
    (2) A licensee operating by virtue of this paragraph shall, after 
the date of expiration specified in the license, post, in addition to 
the original license, any acknowledgment received from the Commission 
that the renewal application has been accepted for filing or a signed 
copy of the application for renewal of license which has been submitted 
by the licensee, or in services other than broadcast and common carrier, 
a statement certifying that the licensee has mailed or filed a renewal 
application, specifying the date of mailing or filing.
    (b) Where there is pending before the Commission at the time of 
expiration of license any proper and timely application for renewal or 
extension of the term of a license with respect to any activity not of a 
continuing nature, the Commission may in its discretion grant a 
temporary extension of such license pending determination of such 
application. No such temporary extension shall be construed as a finding 
by the Commission that the operation of any radio station thereunder 
will serve the public interest, convenience, or necessity beyond the 
express terms of such temporary extension of license, nor shall such 
temporary extension in any way affect or limit the action of the 
Commission with respect to any pending application or proceeding.
    (c) Except where an instrument of authorization clearly states on 
its face that it relates to an activity not of a continuing nature, or 
where the non-continuing nature is otherwise clearly apparent upon the 
face of the authorization, all licenses issued by the Commission shall 
be deemed to be related to an activity of a continuing nature.

(5 U.S.C. 558)



Sec. 1.65  Substantial and significant changes in information furnished by 
applicants to the Commission.

    (a) Each applicant is responsible for the continuing accuracy and 
completeness of information furnished in a pending application or in 
Commission proceedings involving a pending application. Whenever the 
information furnished in the pending application is no longer 
substantially accurate and complete in all significant respects, the 
applicant shall as promptly as possible and in any event within 30 days, 
unless good cause is shown, amend or request the amendment of his 
application so as to furnish such additional or corrected information as 
may be appropriate. Whenever there has been a substantial change as to 
any other matter which may be of decisional significance in a Commission 
proceeding involving the pending application, the applicant shall as 
promptly as possible and in any event within 30 days, unless good cause 
is shown, submit a statement furnishing such additional or corrected 
information as may be appropriate, which shall be served upon parties of 
record in accordance with Sec. 1.47. Where the matter is before any 
court for review, statements and requests to amend shall in addition be 
served upon the Commission's General Counsel. For the purposes of this 
section, an application is ``pending'' before the Commission from the 
time it is accepted for filing by the Commission until a Commission 
grant or denial of the application is no longer subject to 
reconsideration by the Commission or to review by any court.

[[Page 118]]

    (b) Applications in ITFS and broadcast services subject to 
competitive bidding will be subject to the provisions of Sec. Sec. 
1.2105(b), 73.5002 and 73.3522 regarding the modification of their 
applications.
    (c) All broadcast permittees and licensees must report annually to 
the Commission any adverse finding or adverse final action taken by any 
court or administrative body that involves conduct bearing on the 
permittee's or licensee's character qualifications and that would be 
reportable in connection with an application for renewal as reflected in 
the renewal form. If a report is required by this paragraph(s), it shall 
be filed on the anniversary of the date that the licensee's renewal 
application is required to be filed, except that licensees owning 
multiple stations with different anniversary dates need file only one 
report per year on the anniversary of their choice, provided that their 
reports are not more than one year apart. Permittees and licensees bear 
the obligation to make diligent, good faith efforts to become 
knowledgeable of any such reportable adjudicated misconduct.

    Note: The terms adverse finding and adverse final action as used in 
paragraph (c) of this section include adjudications made by an ultimate 
trier of fact, whether a government agency or court, but do not include 
factual determinations which are subject to review de novo unless the 
time for taking such review has expired under the relevant procedural 
rules. The pendency of an appeal of an adverse finding or adverse final 
action does not relieve a permittee or licensee from its obligation to 
report the finding or action.

[48 FR 27200, June 13, 1983, as amended at 55 FR 23084, June 6, 1990; 56 
FR 25635, June 5, 1991; 56 FR 44009, Sept. 6, 1991; 57 FR 47412, Oct. 
16, 1992; 63 FR 48622, Sept. 11, 1998]



Sec. 1.68  Action on application for license to cover construction permit.

    (a) An application for license by the lawful holder of a 
construction permit will be granted without hearing where the 
Commission, upon examination of such application, finds that all the 
terms, conditions, and obligations set forth in the application and 
permit have been fully met, and that no cause or circumstance arising or 
first coming to the knowledge of the Commission since the granting of 
the permit would, in the judgment of the Commission, make the operation 
of such station against the public interest.
    (b) In the event the Commission is unable to make the findings in 
paragraph (a) of this section, the Commission will designate the 
application for hearing upon specified issues.

(Sec. 319, 48 Stat. 1089, as amended; 47 U.S.C. 319)



Sec. 1.77  Detailed application procedures; cross references.

    The application procedures set forth in Sec. Sec. 1.61 through 1.68 
are general in nature. Applicants should also refer to the Commission 
rules regarding the payment of statutory charges (subpart G of this 
part) and the use of the FCC Registration Number (FRN) (see subpart W of 
this part). More detailed procedures are set forth in this chapter as 
follows:
    (a) Rules governing applications for authorizations in the Broadcast 
Radio Services are set forth in subpart D of this part.
    (b) Rules governing applications for authorizations in the Common 
Carrier Radio Services are set forth in subpart E of this part.
    (c) Rules governing applications for authorizations in the Private 
Radio Services are set forth in subpart F of this part.
    (d) Rules governing applications for authorizations in the 
Experimental Radio Services (other than broadcast) are set forth in part 
5 of this chapter.
    (e) Rules governing applications for authorizations in the Domestic 
Public Radio Services are set forth in part 21 of this chapter.
    (f) Rules governing applications for authorizations in the 
Industrial, Scientific, and Medical Service are set forth in part 18 of 
this chapter.
    (g) Rules governing applications for certification of equipment are 
set forth in part 2, subpart J, of this chapter.
    (h) Rules governing applications for commercial radio operator 
licenses are set forth in part 13 of this chapter.
    (i) Rules governing applications for authorizations in the Common 
Carrier and Private Radio terrestrial microwave services and Local 
Multipoint

[[Page 119]]

Distribution Services are set out in part 101 of this chapter.

[28 FR 12415, Nov. 22, 1963, as amended at 44 FR 39180, July 5, 1979; 47 
FR 53378, Nov. 26, 1982; 61 FR 26670, May 28, 1996; 62 FR 23162, Apr. 
29, 1997; 63 FR 36596, July 7, 1998; 66 FR 47895, Sept. 14, 2001]

                        Miscellaneous Proceedings



Sec. 1.80  Forfeiture proceedings.

    (a) Persons against whom and violations for which a forfeiture may 
be assessed. A forfeiture penalty may be assessed against any person 
found to have:
    (1) Willfully or repeatedly failed to comply substantially with the 
terms and conditions of any license, permit, certificate, or other 
instrument of authorization issued by the Commission;
    (2) Willfully or repeatedly failed to comply with any of the 
provisions of the Communications Act of 1934, as amended; or of any 
rule, regulation or order issued by the Commission under that Act or 
under any treaty, convention, or other agreement to which the United 
States is a party and which is binding on the United States;
    (3) Violated any provision of section 317(c) or 508(a) of the 
Communications Act; or
    (4) Violated any provision of section 1304, 1343, or 1464 of Title 
18, United States Code.


A forfeiture penalty assessed under this section is in addition to any 
other penalty provided for by the Communications Act, except that the 
penalties provided for in paragraphs (b)(1), (b)(2) and (b)(3) of this 
section shall not apply to conduct which is subject to a forfeiture 
penalty under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d), 
223(b), 362(a), 362(b), 386(a), 386(b), 503(b), 506, and 634 of the 
Communications Act. The remaining provisions of this section are 
applicable to such conduct.
    (b) Limits on the amount of forfeiture assessed. (1) If the violator 
is a broadcast station licensee or permittee, a cable television 
operator, or an applicant for any broadcast or cable television operator 
license, permit, certificate, or other instrument of authorization 
issued by the Commission, except as otherwise noted in this paragraph, 
the forfeiture penalty under this section shall not exceed $32,500 for 
each violation or each day of a continuing violation, except that the 
amount assessed for any continuing violation shall not exceed a total of 
$325,000 for any single act or failure to act described in paragraph (a) 
of this section. There is no limit on forfeiture assessments for EEO 
violations by cable operators that occur after notification by the 
Commission of a potential violation. See section 634(f)(2) of the 
Communications Act.
    (2) If the violator is a common carrier subject to the provisions of 
the Communications Act or an applicant for any common carrier license, 
permit, certificate, or other instrument of authorization issued by the 
Commission, the amount of any forfeiture penalty determined under this 
section shall not exceed $130,000 for each violation or each day of a 
continuing violation, except that the amount assessed for any continuing 
violation shall not exceed a total of $1,325,000 for any single act or 
failure to act described in paragraph (a) of this section.
    (3) In any case not covered in paragraphs (b)(1) or (b)(2) of this 
section, the amount of any forfeiture penalty determined under this 
section shall not exceed $11,000 for each violation or each day of a 
continuing violation, except that the amount assessed for any continuing 
violation shall not exceed a total of $97,500 for any single act or 
failure to act described in paragraph (a) of this section.
    (4) Factors considered in determining the amount of the forfeiture 
penalty. In determining the amount of the forfeiture penalty, the 
Commission or its designee will take into account the nature, 
circumstances, extent and gravity of the violations and, with respect to 
the violator, the degree of culpability, any history of prior offenses, 
ability to pay, and such other matters as justice may require.

    Note to paragraph (b)(4):


                  Guidelines for Assessing Forfeitures

    The Commission and its staff may use these guidelines in particular 
cases. The Commission and its staff retain the discretion to issue a 
higher or lower forfeiture

[[Page 120]]

than provided in the guidelines, to issue no forfeiture at all, or to 
apply alternative or additional sanctions as permitted by the statute. 
The forfeiture ceiling per violation or per day for a continuing 
violation stated in section 503 of the Communications Act and the 
Commission's rules are described in Sec. 1.80(b)(5)(iii). These 
statutory maxima became effective September 7, 2004. Forfeitures issued 
under other sections of the Act are dealt with separately in section III 
of this note.

           Section I. Base Amounts for Section 503 Forfeitures

------------------------------------------------------------------------
                                                               Violation
                         Forfeitures                             Amount
------------------------------------------------------------------------
Misrepresentation/lack of candor.............................      (\1\)
Construction and/or operation without an instrument of           $10,000
 authorization for the service...............................
Failure to comply with prescribed lighting and/or marking....     10,000
Violation of public file rules...............................     10,000
Violation of political rules: reasonable access, lowest unit       9,000
 charge, equal opportunity, and discrimination...............
Unauthorized substantial transfer of control.................      8,000
Violation of children's television commercialization or            8,000
 programming requirements....................................
Violations of rules relating to distress and safety                8,000
 frequencies.................................................
False distress communications................................      8,000
EAS equipment not installed or operational...................      8,000
Alien ownership violation....................................      8,000
Failure to permit inspection.................................      7,000
Transmission of indecent/obscene materials...................      7,000
Interference.................................................      7,000
Importation or marketing of unauthorized equipment...........      7,000
Exceeding of authorized antenna height.......................      5,000
Fraud by wire, radio or television...........................      5,000
Unauthorized discontinuance of service.......................      5,000
Use of unauthorized equipment................................      5,000
Exceeding power limits.......................................      4,000
Failure to respond to Commission communications..............      4,000
Violation of sponsorship ID requirements.....................      4,000
Unauthorized emissions.......................................      4,000
Using unauthorized frequency.................................      4,000
Failure to engage in required frequency coordination.........      4,000
Construction or operation at unauthorized location...........      4,000
Violation of requirements pertaining to broadcasting of            4,000
 lotteries or contests.......................................
Violation of transmitter control and metering requirements...      3,000
Failure to file required forms or information................      3,000
Failure to make required measurements or conduct required          2,000
 monitoring..................................................
Failure to provide station ID................................      1,000
Unauthorized pro forma transfer of control...................      1,000
Failure to maintain required records.........................      1,000
------------------------------------------------------------------------
\1\ Statutory Maximum for each Service.

                    Violations Unique to the Service

------------------------------------------------------------------------
              Violation                   Services affected      Amount
------------------------------------------------------------------------
Unauthorized conversion of long        Common Carrier.........   $40,000
 distance telephone service.
Violation of operator services         Common Carrier.........     7,000
 requirements.
Violation of pay-per-call              Common Carrier.........     7,000
 requirements.
Failure to implement rate reduction    Cable..................     7,500
 or refund order.
Violation of cable program access      Cable..................     7,500
 rules.
Violation of cable leased access       Cable..................     7,500
 rules.
Violation of cable cross-ownership     Cable..................     7,500
 rules.
Violation of cable broadcast carriage  Cable..................     7,500
 rules.
Violation of pole attachment rules...  Cable..................     7,500
Failure to maintain directional        Broadcast..............     7,000
 pattern within prescribed parameters.
Violation of main studio rule........  Broadcast..............     7,000
Violation of broadcast hoax rule.....  Broadcast..............     7,000
AM tower fencing.....................  Broadcast..............     7,000
Broadcasting telephone conversations   Broadcast..............     4,000
 without authorization.
Violation of enhanced underwriting     Broadcast..............     2,000
 requirements.
------------------------------------------------------------------------

       Section II. Adjustment Criteria for Section 503 Forfeitures

                       Upward Adjustment Criteria

    (1) Egregious misconduct.
    (2) Ability to pay/relative disincentive.
    (3) Intentional violation.
    (4) Substantial harm.
    (5) Prior violations of any FCC requirements.
    (6) Substantial economic gain.
    (7) Repeated or continuous violation.

                      Downward Adjustment Criteria

    (1) Minor violation.
    (2) Good faith or voluntary disclosure.
    (3) History of overall compliance.
    (4) Inability to pay.

   Section III. Non-Section 503 Forfeitures That Are Affected by the 
                       Downward Adjustment Factors

    Unlike section 503 of the Act, which establishes maximum forfeiture 
amounts, other sections of the Act, with one exception, state prescribed 
amounts of forfeitures for violations of the relevant section. These 
amounts are then subject to mitigation or remission under section 504 of 
the Act. The one exception is section 223 of the Act, which provides a 
maximum forfeiture per day. For convenience, the Commission will treat 
this amount as if it were a prescribed base amount, subject to downward 
adjustments. The following amounts are adjusted for inflation pursuant 
to the Debt Collection Improvement Act of 1996 (DCIA), 28 U.S.C. 2461.

[[Page 121]]

These non-section 503 forfeitures may be adjusted downward using the 
``Downward Adjustment Criteria'' shown for section 503 forfeitures in 
section II of this note.

------------------------------------------------------------------------
                  Violation                      Statutory amount ($)
------------------------------------------------------------------------
Sec. 202(c) Common Carrier Discrimination...  $8,600 430/day.
Sec. 203(e) Common Carrier Tariffs..........  8,600 430/day.
Sec. 205(b) Common Carrier Prescriptions....  18,200.
Sec. 214(d) Common Carrier Line Extensions..  1,320/day.
Sec. 219(b) Common Carrier Reports..........  1,320.
Sec. 220(d) Common Carrier Records &          8,600/day.
 Accounts.
Sec. 364(a) Forfeitures (Ships).............  6,500 (owner).
Sec. 364(b) Forfeitures (Ships).............  1,100 (vessel master).
Sec. 386(a) Forfeitures (Ships).............  6,500/day (owner).
Sec. 386(b) Forfeitures (Ships).............  1,100 (vessel master).
Sec. 634 Cable EEO..........................  550/day.
------------------------------------------------------------------------


    (5) Inflation adjustments to the maximum forfeiture amount. (i) 
Pursuant to the Debt Collection Improvement Act of 1996, Public Law 104-
134 (110 Stat. 1321-358), which amends the Federal Civil Monetary 
Penalty Inflation Adjustment Act of 1990, Public Law 101-410 (104 Stat. 
890; 28 U.S.C. 2461 note), the statutory maximum amount of a forfeiture 
penalty assessed under this section shall be adjusted for inflation at 
least once every four years using the method specified in the statute. 
This is to be done by determining the `cost-of-living adjustment', which 
is the percentage (if any) by which the CPI for June of the preceding 
year exceeds the CPI for June of the year the forfeiture amount was last 
set or adjusted. The inflation adjustment is determined by multiplying 
the cost-of-living adjustment by the statutory maximum amount. Round off 
this result using the rules in paragraph (b)(5)(ii) of this section. Add 
the rounded result to the statutory maximum forfeiture penalty amount. 
The sum is the statutory maximum amount, adjusted for inflation.
    (ii) The rounding rules are as follows:
    (A) Round increase to the nearest multiple of $10 if the penalty is 
from $0 to $100;
    (B) Round increase to the nearest multiple of $100 if the penalty is 
from $101 to $1,000;
    (C) Round increase to the nearest multiple of $1,000 if the penalty 
is from $1,001 to $10,000;
    (D) Round increase to the nearest multiple of $5,000 if the penalty 
is from $10,001 to $100,000;
    (E) Round increase to the nearest multiple of $10,000 if the penalty 
is from $100,001 to $200,000; or
    (F) Round increase to the nearest multiple of $25,000 if the penalty 
is over $200,001.
    (iii) The application of the inflation adjustments required by the 
DCIA, 28 U.S.C. 2461, results in the following adjusted statutory 
maximum forfeitures authorized by the Communications Act:

------------------------------------------------------------------------
                                                               Maximum
                                                               penalty
                     U.S. Code citation                       after DCIA
                                                              adjustment
                                                                 ($)
------------------------------------------------------------------------
47 U.S.C. 202(c)...........................................       $8,600
                                                                     430
47 U.S.C. 203(e)...........................................        8,600
                                                                     430
47 U.S.C. 205(b)...........................................       18,200
47 U.S.C. 214(d)...........................................        1,320
47 U.S.C 219(b)............................................        1,320
47 U.S.C. 220(d)...........................................        8,600
47 U.S.C. 362(a)...........................................        6,500
47 U.S.C. 362(b)...........................................        1,100
47 U.S.C. 386(a)...........................................        6,500
47 U.S.C. 386(b)...........................................        1,100
47 U.S.C. 503(b)(2)(A).....................................       32,500
                                                                 325,000
47 U.S.C. 503(b)(2)(B).....................................      130,000
                                                               1,325,000
47 U.S.C. 503(b)(2)(C).....................................       11,000
                                                                  97,500
47 U.S.C. 507(a)...........................................          650
47 U.S.C. 507(b)...........................................           10
47 U.S.C. 554..............................................          550
------------------------------------------------------------------------

    Note to paragraph (b)(5):
    Pursuant to Public Law 104-134, the first inflation adjustment 
cannot exceed 10 percent of the statutory maximum amount.
    (c) Limits on the time when a proceeding may be initiated. (1) In 
the case of a broadcast station, no forfeiture penalty shall be imposed 
if the violation occurred more than 1 year prior to the issuance of the 
appropriate notice or prior to the date of commencement of the current 
license term, whichever is earlier. For purposes of this paragraph, 
``date of commencement of the current license term'' means the date of 
commencement of the last term of license for which the licensee has been 
granted a license by the Commission. A separate license term shall not 
be deemed to have commenced as a result

[[Page 122]]

of continuing a license in effect under section 307(c) pending decision 
on an application for renewal of the license.
    (2) In the case of a forfeiture imposed against a carrier under 
sections 202(c), 203(e), and 220(d), no forfeiture will be imposed if 
the violation occurred more than 5 years prior to the issuance of a 
notice of apparent liability.
    (3) In all other cases, no penalty shall be imposed if the violation 
occurred more than 1 year prior to the date on which the appropriate 
notice is issued.
    (d) Preliminary procedure in some cases; citations. No forfeiture 
penalty shall be imposed upon any person under this section, if such 
person does not hold a license, permit, certificate, or other 
authorization issued by the Commission, and if such person is not an 
applicant for a license, permit, certificate, or other authorization 
issued by the Commission, unless, prior to the issuance of the 
appropriate notice, such person: (1) Is sent a citation reciting the 
violation charged; (2) is given a reasonable opportunity (usually 30 
days) to request a personal interview with a Commission official, at the 
field office which is nearest to such person's place of residence; and 
(3) subsequently engages in conduct of the type described in the 
citation. However, a forfeiture penalty may be imposed, if such person 
is engaged in (and the violation relates to) activities for which a 
license, permit, certificate, or other authorization is required or if 
such person is a cable television operator, or in the case of violations 
of section 303(q), if the person involved is a nonlicensee tower owner 
who has previously received notice of the obligations imposed by section 
303(q) from the Commission or the permittee or licensee who uses that 
tower. Paragraph (c) of this section does not limit the issuance of 
citations. When the requirements of this paragraph have been satisfied 
with respect to a particular violation by a particular person, a 
forfeiture penalty may be imposed upon such person for conduct of the 
type described in the citation without issuance of an additional 
citation.
    (e) Alternative procedures. In the discretion of the Commission, a 
forfeiture proceeding may be initiated either: (1) By issuing a notice 
of apparent liability, in accordance with paragraph (f) of this section, 
or (2) a notice of opportunity for hearing, in accordance with paragraph 
(g).
    (f) Notice of apparent liability. Before imposing a forfeiture 
penalty under the provisions of this paragraph, the Commission or its 
designee will issue a written notice of apparent liability.
    (1) Content of notice. The notice of apparent liability will:
    (i) Identify each specific provision, term, or condition of any act, 
rule, regulation, order, treaty, convention, or other agreement, 
license, permit, certificate, or instrument of authorization which the 
respondent has apparently violated or with which he has failed to 
comply,
    (ii) Set forth the nature of the act or omission charged against the 
respondent and the facts upon which such charge is based,
    (iii) State the date(s) on which such conduct occurred, and
    (iv) Specify the amount of the apparent forfeiture penalty.
    (2) Delivery. The notice of apparent liability will be sent to the 
respondent, by certified mail, at his last known address (see Sec. 
1.5).
    (3) Response. The respondent will be afforded a reasonable period of 
time (usually 30 days from the date of the notice) to show, in writing, 
why a forfeiture penalty should not be imposed or should be reduced, or 
to pay the forfeiture. Any showing as to why the forfeiture should not 
be imposed or should be reduced shall include a detailed factual 
statement and such documentation and affidavits as may be pertinent.
    (4) Forfeiture order. If the proposed forfeiture penalty is not paid 
in full in response to the notice of apparent liability, the Commission, 
upon considering all relevant information available to it, will issue an 
order canceling or reducing the proposed forfeiture or requiring that it 
be paid in full and stating the date by which the forfeiture must be 
paid.
    (5) Judicial enforcement of forfeiture order. If the forfeiture is 
not paid, the case will be referred to the Department of Justice for 
collection under section 504(a) of the Communications Act.

[[Page 123]]

    (g) Notice of opportunity for hearing. The procedures set out in 
this paragraph will ordinarily be followed only when a hearing is being 
held for some reason other than the assessment of a forfeiture (such as, 
to determine whether a renewal application should be granted) and a 
forfeiture is to be considered as an alternative or in addition to any 
other Commission action. However, these procedures may be followed 
whenever the Commission, in its discretion, determines that they will 
better serve the ends of justice.
    (1) Before imposing a forfeiture penalty under the provisions of 
this paragraph, the Commission will issue a notice of opportunity for 
hearing. The hearing will be a full evidentiary hearing before an 
administrative law judge, conducted under procedures set out in subpart 
B of this part, including procedures for appeal and review of initial 
decisions. A final Commission order assessing a forfeiture under the 
provisions of this paragraph is subject to judicial review under section 
402(a) of the Communications Act.
    (2) If, after a forfeiture penalty is imposed and not appealed or 
after a court enters final judgment in favor of the Commission, the 
forfeiture is not paid, the Commission will refer the matter to the 
Department of Justice for collection. In an action to recover the 
forfeiture, the validity and appropriateness of the order imposing the 
forfeiture are not subject to review.
    (3) Where the possible assessment of a forfeiture is an issue in a 
hearing case to determine which pending application should be granted, 
and the applicant facing a potential forfeiture is dismissed pursuant to 
a settlement agreement or otherwise, and the presiding judge has not 
made a determination on the forfeiture issue, the order of dismissal 
shall be forwarded to the attention of the full Commission. Within the 
time provided by Sec. 1.117, the Commission may, on its own motion, 
proceed with a determination of whether a forfeiture against the 
dismissing applicant is warranted. If the Commission so proceeds, it 
will provide the applicant with a reasonable opportunity to respond to 
the forfeiture issue (see paragraph (f)(3) of this section) and make a 
determination under the procedures outlined in paragraph (f) of this 
section.
    (h) Payment. The forfeiture should be paid by check or money order 
drawn to the order of the Federal Communications Commission. The 
Commission does not accept responsibility for cash payments sent through 
the mails. The check or money order should be mailed to: Federal 
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
    (i) Remission and mitigation. In its discretion, the Commission, or 
its designee, may remit or reduce any forfeiture imposed under this 
section. After issuance of a forfeiture order, any request that it do so 
shall be submitted as a petition for reconsideration pursuant to Sec. 
1.106.
    (j) Effective date. Amendments to paragraph (b) of this section 
implementing Pub. L. No. 101-239 are effective December 19, 1989.

[43 FR 49308, Oct. 23, 1978, as amended at 48 FR 15631, Apr. 12, 1983; 
50 FR 40855, Oct. 7, 1985; 55 FR 25605, June 22, 1990; 56 FR 25638, June 
5, 1991; 57 FR 23161, June 2, 1992; 57 FR 47006, Oct. 14, 1992; 57 FR 
48333, Oct. 23, 1992; 58 FR 6896, Feb. 3, 1993; 58 FR 27473, May 10, 
1993; 62 FR 4918, Feb. 3, 1997; 62 FR 43475, Aug. 14, 1997; 63 FR 26992, 
May 15, 1998; 65 FR 60868, Oct. 13, 2000; 69 FR 47789, Aug. 6, 2004]



Sec. 1.83  Applications for radio operator licenses.

    (a) Application filing procedures for amateur radio operator 
licenses are set forth in part 97 of this chapter.
    (b) Application filing procedures for commercial radio operator 
licenses are set forth in part 13 of this chapter. Detailed information 
about application forms, filing procedures, and where to file 
applications for commercial radio operator licenses is contained in the 
bulletin ``Commercial Radio Operator Licenses and Permits.'' This 
bulletin is available from the Commission's Forms Distribution Center by 
calling 1-800-418-FORM (3676).

[47 FR 53378, Nov. 26, 1982, as amended at 58 FR 13021, Mar. 9, 1993; 63 
FR 68920, Dec. 14, 1998]



Sec. 1.85  Suspension of operator licenses.

    Whenever grounds exist for suspension of an operator license, as 
provided in Sec. 303(m) of the Communications Act,

[[Page 124]]

the Chief of the Wireless Telecommunications Bureau, with respect to 
amateur and commercial radio operator licenses, may issue an order 
suspending the operator license. No order of suspension of any 
operator's license shall take effect until 15 days' notice in writing of 
the cause for the proposed suspension has been given to the operator 
licensee, who may make written application to the Commission at any time 
within the said 15 days for a hearing upon such order. The notice to the 
operator licensee shall not be effective until actually received by him, 
and from that time he shall have 15 days in which to mail the said 
application. In the event that physical conditions prevent mailing of 
the application before the expiration of the 15-day period, the 
application shall then be mailed as soon as possible thereafter, 
accompanied by a satisfactory explanation of the delay. Upon receipt by 
the Commission of such application for hearing, said order of suspension 
shall be designated for hearing by the Chief, Wireless 
Telecommunications Bureau and said suspension shall be held in abeyance 
until the conclusion of the hearing. Upon the conclusion of said 
hearing, the Commission may affirm, modify, or revoke said order of 
suspension. If the license is ordered suspended, the operator shall send 
his operator license to the Licensing and Technical Analysis Branch, 
Public Safety and Private Wireless Division, Wireless Telecommunications 
Bureau, in Washington, DC, on or before the effective date of the order, 
or, if the effective date has passed at the time notice is received, the 
license shall be sent to the Commission forthwith.

[63 FR 68920, Dec. 14, 1998]



Sec. 1.87  Modification of license or construction permit on motion of the 
Commission.

    (a) Whenever it appears that a station license or construction 
permit should be modified, the Commission shall notify the licensee or 
permittee in writing of the proposed action and reasons therefor, and 
afford the licensee or permittee at least thirty days to protest such 
proposed order of modification, except that, where safety of life or 
property is involved, the Commission may by order provide a shorter 
period of time.
    (b) The notification required in paragraph (a) of this section may 
be effectuated by a notice of proposed rule making in regard to a 
modification or addition of an FM or television channel to the Table of 
Allotments (Sec. Sec. 73.202 and 73.504) or Table of Assignments (Sec. 
73.606). The Commission shall send a copy of any such notice of proposed 
rule making to the affected licensee or permittee by certified mail, 
return receipt requested.
    (c) Any other licensee or permittee who believes that its license or 
permit would be modified by the proposed action may also protest the 
proposed action before its effective date.
    (d) Any protest filed pursuant to this section shall be subject to 
the requirements of section 309 of the Communications Act of 1934, as 
amended, for petitions to deny.
    (e) In any case where a hearing is conducted pursuant to the 
provisions of this section, both the burden of proceeding with the 
introduction of evidence and the burden of proof shall be upon the 
Commission except that, with respect to any issue that pertains to the 
question of whether the proposed action would modify the license or 
permit of a person filing a protest pursuant to paragraph (c) of this 
section, such burdens shall be as described by the Commission.
    (f) In order to utilize the right to a hearing and the opportunity 
to appear and give evidence upon the issues specified in any hearing 
order, the licensee or permittee, in person or by attorney, shall, 
within the period of time as may be specified in the hearing order, file 
with the Commission a written statement stating that he or she will 
appear at the hearing and present evidence on the matters specified in 
the hearing order.
    (g) The right to file a protest or have a hearing shall, unless good 
cause is shown in a petition to be filed not later than 5 days before 
the lapse of time specified in paragraph (a) or (f) of this section, be 
deemed waived:
    (1) In case of failure to timely file the protest as required by 
paragraph (a) of this section or a written statement as

[[Page 125]]

required by paragraph (f) of this section.
    (2) In case of filing a written statement provided for in paragraph 
(f) of this section but failing to appear at the hearing, either in 
person or by counsel.
    (h) Where the right to file a protest or have a hearing is waived, 
the licensee or permittee will be deemed to have consented to the 
modification as proposed and a final decision may be issued by the 
Commission accordingly. Irrespective of any waiver as provided for in 
paragraph (g) of this section or failure by the licensee or permittee to 
raise a substantial and material question of fact concerning the 
proposed modification in his protest, the Commission may, on its own 
motion, designate the proposed modification for hearing in accordance 
with this section.
    (i) Any order of modification issued pursuant to this section shall 
include a statement of the findings and the grounds and reasons 
therefor, shall specify the effective date of the modification, and 
shall be served on the licensee or permittee.

[52 FR 22654, June 15, 1987]



Sec. 1.88  Predesignation pleading procedure.

    In cases where an investigation is being conducted by the Commission 
in connection with the operation of a broadcast station or a pending 
application for renewal of a broadcast license, the licensee may file a 
written statement to the Commission setting forth its views regarding 
the matters under investigation; the staff, in its discretion, may in 
writing, advise such licensee of the general nature of the 
investigation, and advise the licensee of its opportunity to submit such 
a statement to the staff. Any filing by the licensee will be forwarded 
to the Commission in conjunction with any staff memorandum recommending 
that the Commission take action as a result of the invesigation. Nothing 
in this rule shall supersede the application of our ex parte rules to 
situations described in Sec. 1.1203 of these rules.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; (47 U.S.C. 
154, 303, 307))

[45 FR 65597, Oct. 3, 1980]



Sec. 1.89  Notice of violations.

    (a) Except in cases of willfulness or those in which public health, 
interest, or safety requires otherwise, any person who holds a license, 
permit or other authorization appearing to have violated any provision 
of the Communications Act or any provision of this chapter will, before 
revocation, suspension, or cease and desist proceedings are instituted, 
be served with a written notice calling these facts to his or her 
attention and requesting a statement concerning the matter. FCC Form 793 
may be used for this purpose. The Notice of Violation may be combined 
with a Notice of Apparent Liability to Monetary Forfeiture. In such 
event, notwithstanding the Notice of Violation, the provisions of Sec. 
1.80 apply and not those of Sec. 1.89.
    (b) Within 10 days from receipt of notice or such other period as 
may be specified, the recipient shall send a written answer, in 
duplicate, directly to the Commission office originating the official 
notice. If an answer cannot be sent or an acknowledgment cannot be made 
within such 10-day period by reason of illness or other unavoidable 
circumstance, acknowledgment and answer shall be made at the earliest 
practicable date with a satisfactory explanation of the delay.
    (c) The answer to each notice shall be complete in itself and shall 
not be abbreviated by reference to other communications or answers to 
other notices. In every instance the answer shall contain a statement of 
action taken to correct the condition or omission complained of and to 
preclude its recurrence. In addition:
    (1) If the notice relates to violations that may be due to the 
physical or electrical characteristics of transmitting apparatus and any 
new apparatus is to be installed, the answer shall state the date such 
apparatus was ordered, the name of the manufacturer, and the promised 
date of delivery. If the installation of such apparatus requires a 
construction permit, the file number of the application shall be given, 
or if a file number has not been assigned by the Commission, such 
identification shall be given as will permit ready identification of the 
application.

[[Page 126]]

    (2) If the notice of violation relates to lack of attention to or 
improper operation of the transmitter, the name and license number of 
the operator in charge (where applicable) shall be given.

[48 FR 24890, June 3, 1983]



Sec. 1.91  Revocation and/or cease and desist proceedings; hearings.

    (a) If it appears that a station license or construction permit 
should be revoked and/or that a cease and desist order should be issued, 
the Commission will issue an order directing the person to show cause 
why an order of revocation and/or a cease and desist order, as the facts 
may warrant, should not be issued.
    (b) An order to show cause why an order of revocation and/or a cease 
and desist order should not be issued will contain a statement of the 
matters with respect to which the Commission is inquiring and will call 
upon the person to whom it is directed (the respondent) to appear before 
the Commission at a hearing, at a time and place stated in the order, 
but not less than thirty days after the receipt of such order, and given 
evidence upon the matters specified in the order to show cause. However, 
if safety of life or property is involved, the order to show cause may 
specify a hearing date less than thirty days from the receipt of such 
order.
    (c) To avail himself of such opportunity for hearing, the 
respondent, personally or by his attorney, shall file with the 
Commission, within thirty days of the service of the order or such 
shorter period as may be specified therein, a written appearance stating 
that he will appear at the hearing and present evidence on the matters 
specified in the order. The Commission in its discretion may accept a 
late appearance. However, an appearance tendered after the specified 
time has expired will not be accepted unless accompanied by a petition 
stating with particularity the facts and reasons relied on to justify 
such late filing. Such petition for acceptance of late appearance will 
be granted only if the Commission determines that the facts and reasons 
stated therein constitute good cause for failure to file on time.
    (d) Hearings on the matters specified in such orders to show cause 
shall accord with the practice and procedure prescribed in this subpart 
and subpart B of this part, with the following exceptions: (1) In all 
such revocation and/or cease and desist hearings, the burden of 
proceeding with the introduction of evidence and the burden of proof 
shall be upon the Commission; and (2) the Commission may specify in a 
show cause order, when the circumstances of the proceeding require 
expedition, a time less than that prescribed in Sec. Sec. 1.276 and 
1.277 within which the initial decision in the proceeding shall become 
effective, exceptions to such initial decision must be filed, parties 
must file requests for oral argument, and parties must file notice of 
intention to participate in oral argument.
    (e) Correction of or promise to correct the conditions or matters 
complained of in a show cause order shall not preclude the issuance of a 
cease and desist order. Corrections or promises to correct the 
conditions or matters complained of, and the past record of the 
licensee, may, however, be considered in determining whether a 
revocation and/or a cease and desist order should be issued.
    (f) Any order of revocation and/or cease and desist order issued 
after hearing pursuant to this section shall include a statement of 
findings and the grounds therefor, shall specify the effective date of 
the order, and shall be served on the person to whom such order is 
directed.

(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)



Sec. 1.92  Revocation and/or cease and desist proceedings; after waiver of 
hearing.

    (a) After the issuance of an order to show cause, pursuant to Sec. 
1.91, calling upon a person to appear at a hearing before the 
Commission, the occurrence of any one of the following events or 
circumstances will constitute a waiver of such hearing and the 
proceeding thereafter will be conducted in accordance with the 
provisions of this section.

[[Page 127]]

    (1) The respondent fails to file a timely written appearance as 
prescribed in Sec. 1.91(c) indicating that he will appear at a hearing 
and present evidence on the matters specified in the order.
    (2) The respondent, having filed a timely written appearance as 
prescribed in Sec. 1.91(c), fails in fact to appear in person or by his 
attorney at the time and place of the duly scheduled hearing.
    (3) The respondent files with the Commission, within the time 
specified for a written appearance in Sec. 1.91(c), a written statement 
expressly waiving his rights to a hearing.
    (b) When a hearing is waived under the provisions of paragraph (a) 
(1) or (3) of this section, a written statement signed by the respondent 
denying or seeking to mitigate or justify the circumstances or conduct 
complained of in the order to show cause may be submitted within the 
time specified in Sec. 1.91(c). The Commission in its discretion may 
accept a late statement. However, a statement tendered after the 
specified time has expired will not be accepted unless accompanied by a 
petition stating with particularity the facts and reasons relied on to 
justify such late filing. Such petitions for acceptance of a late 
statement will be granted only if the Commission determines that the 
facts and reasons stated therein constitute good cause for failure to 
file on time.
    (c) Whenever a hearing is waived by the occurrence of any of the 
events or circumstances listed in paragraph (a) of this section, the 
Chief Administrative Law Judge (or the presiding officer if one has been 
designated) shall, at the earliest practicable date, issue an order 
reciting the events or circumstances constituting a waiver of hearing, 
terminating the hearing proceeding, and certifying the case to the 
Commission. Such order shall be served upon the respondent.
    (d) After a hearing proceeding has been terminated pursuant to 
paragraph (c) of this section, the Commission will act upon the matters 
specified in the order to show cause in the regular course of business. 
The Commission will determine on the basis of all the information 
available to it from any source, including such further proceedings as 
may be warranted, if a revocation order and/or a cease and desist order 
should issue, and if so, will issue such order. Otherwise, the 
Commission will issue an order dismissing the proceeding. All orders 
specified in this paragraph will include a statement of the findings of 
the Commission and the grounds and reasons therefor, will specify the 
effective date thereof, and will be served upon the respondent.
    (e) Corrections or promise to correct the conditions or matters 
complained of in a show cause order shall not preclude the issuance of a 
cease and desist order. Corrections or promises to correct the 
conditions or matters complained of, and the past record of the 
licensee, may, however, be considered in determining whether a 
revocation and/or a cease and desist order should be issued.

(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)

[28 FR 12415, Nov. 22, 1963, as amended at 29 FR 6443, May 16, 1964; 37 
FR 19372, Sept. 20, 1972]



Sec. 1.93  Consent orders.

    (a) As used in this subpart, a ``consent order'' is a formal decree 
accepting an agreement between a party to an adjudicatory hearing 
proceeding held to determine whether that party has violated statutes or 
Commission rules or policies and the appropriate operating Bureau, with 
regard to such party's future compliance with such statutes, rules or 
policies, and disposing of all issues on which the proceeding was 
designated for hearing. The order is issued by the officer designated to 
preside at the hearing or (if no officer has been designated) by the 
Chief Administrative Law Judge.
    (b) Where the interests of timely enforcement or compliance, the 
nature of the proceeding, and the public interest permit, the 
Commission, by its operating Bureaus, may negotiate a consent order with 
a party to secure future compliance with the law in exchange for prompt 
disposition of a matter subject to administrative adjudicative 
proceedings. Consent orders may not be negotiated with respect to 
matters which involve a party's basic statutory

[[Page 128]]

qualifications to hold a license (see 47 U.S.C. 308 and 309).

[41 FR 14871, Apr. 8, 1976]



Sec. 1.94  Consent order procedures.

    (a) Negotiations leading to a consent order may be initiated by the 
operating Bureau or by a party whose possible violations are issues in 
the proceeding. Negotiations may be initiated at any time after 
designation of a proceeding for hearing. If negotiations are initiated 
the presiding officer shall be notified. Parties shall be prepared at 
the initial prehearing conference to state whether they are at that time 
willing to enter negotiations. See Sec. 1.248(c)(7). If either party is 
unwilling to enter negotiations, the hearing proceeding shall proceed. 
If the parties agree to enter negotiations, they will be afforded an 
appropriate opportunity to negotiate before the hearing is commenced.
    (b) Other parties to the proceeding are entitled, but are not 
required, to participate in the negotiations, and may join in any 
agreement which is reached.
    (c) Every agreement shall contain the following:
    (1) An admission of all jurisdictional facts;
    (2) A waiver of the usual procedures for preparation and review of 
an initial decision;
    (3) A waiver of the right of judicial review or otherwise to 
challenge or contest the validity of the consent order;
    (4) A statement that the designation order may be used in construing 
the consent order;
    (5) A statement that the agreement shall become a part of the record 
of the proceeding only if the consent order is signed by the presiding 
officer and the time for review has passed without rejection of the 
order by the Commission;
    (6) A statement that the agreement is for purposes of settlement 
only and that its signing does not constitute an admission by any party 
of any violation of law, rules or policy (see 18 U.S.C. 6002); and
    (7) A draft order for signature of the presiding officer resolving 
by consent, and for the future, all issues specified in the designation 
order.
    (d) If agreement is reached, it shall be submitted to the presiding 
officer or Chief Administrative Law Judge, as the case may be, who shall 
either sign the order, reject the agreement, or suggest to the parties 
that negotiations continue on such portion of the agreement as he 
considers unsatisfactory or on matters not reached in the agreement. If 
he rejects the agreement, the hearing shall proceed. If he suggests 
further negotiations, the hearing will proceed or negotiations will 
continue, depending on the wishes of parties to the agreement. If he 
signs the consent order, he shall close the record.
    (e) Any party to the proceeding who has not joined in any agreement 
which is reached may appeal the consent order under Sec. 1.302, and the 
Commission may review the agreement on its own motion under the 
provisions of that section. If the Commission rejects the consent order, 
the proceeding will be remanded for further proceedings. If the 
Commission does not reject the consent order, it shall be entered in the 
record as a final order and is subject to judicial review on the 
initiative only of parties to the proceeding who did not join in the 
agreement. The Commission may revise the agreement and consent order. In 
that event, private parties to the agreement may either accept the 
revision or withdraw from the agreement. If the party whose possible 
violations are issues in the proceeding withdraws from the agreement, 
the consent order will not be issued or made a part of the record, and 
the proceeding will be remanded for further proceedings.
    (f) The provisions of this section shall not alter any existing 
procedure for informal settlement of any matter prior to designation for 
hearing (see, e.g., 47 U.S.C. 208) or for summary decision after 
designation for hearing.
    (g) Consent orders, pleadings relating thereto, and Commission 
orders with respect thereto shall be served on parties to the 
proceeding. Public notice will be given of orders issued by an 
administrative law judge, the Chief Administrative Law Judge, or the 
Commission. Negotiating papers constitute work product, are available to 
parties participating in negotiations, but are

[[Page 129]]

not routinely available for public inspection.

[41 FR 14871, Apr. 8, 1976]



Sec. 1.95  Violation of consent orders.

    Violation of a consent order shall subject the consenting party to 
any and all sanctions which could have been imposed in the proceeding 
resulting in the consent order if all of the issues in that proceeding 
had been decided against the consenting party and to any further 
sanctions for violation noted as agreed upon in the consent order. The 
Commission shall have the burden of showing that the consent order has 
been violated in some (but not in every) respect. Violation of the 
consent order and the sanctions to be imposed shall be the only issues 
considered in a proceeding concerning such an alleged violation.

[41 FR 14871, Apr. 8, 1976]

   Reconsideration and Review of Actions Taken by the Commission and 
 Pursuant to Delegated Authority; Effective Dates and Finality Dates of 
                                 Actions



Sec. 1.101  General provisions.

    Under section 5(c) of the Communications Act of 1934, as amended, 
the Commission is authorized, by rule or order, to delegate certain of 
its functions to a panel of commissioners, an individual commissioner, 
an employee board, or an individual employee. Section 0.201(a) of this 
chapter describes in general terms the basic categories of delegations 
which are made by the Commission. Subpart B of part 0 of this chapter 
sets forth all delegations which have been made by rule. Sections 1.102 
through 1.120 set forth procedural rules governing reconsideration and 
review of actions taken pursuant to authority delegated under section 
5(c) of the Communications Act, and reconsideration of actions taken by 
the Commission. As used in Sec. Sec. 1.102 through 1.117, the term 
designated authority means any person, panel, or board which has been 
authorized by rule or order to exercise authority under section 5(c) of 
the Communications Act.

[28 FR 12415, Nov. 22, 1963, as amended at 62 FR 4170, Jan. 29, 1997]



Sec. 1.102  Effective dates of actions taken pursuant to delegated authority.

    (a) Final actions following review of an initial decision. (1) Final 
decisions of a commissioner, or panel of commissioners following review 
of an initial decision shall be effective 40 days after public release 
of the full text of such final decision.
    (2) If a petition for reconsideration of such final decision is 
filed, the effect of the decision is stayed until 40 days after release 
of the final order disposing of the petition.
    (3) If an application for review of such final decision is filed, or 
if the Commission on its own motion orders the record of the proceeding 
before it for review, the effect of the decision is stayed until the 
Commission's review of the proceeding has been completed.
    (b) Non-hearing and interlocutory actions. (1) Non-hearing or 
interlocutory actions taken pursuant to delegated authority shall, 
unless otherwise ordered by the designated authority, be effective upon 
release of the document containing the full text of such action, or in 
the event such a document is not released, upon release of a public 
notice announcing the action in question.
    (2) If a petition for reconsideration of a non-hearing action is 
filed, the designated authority may in its discretion stay the effect of 
its action pending disposition of the petition for reconsideration. 
Petitions for reconsideration of interlocutory actions will not be 
entertained.
    (3) If an application for review of a non-hearing or interlocutory 
action is filed, or if the Commission reviews the action on its own 
motion, the Commission may in its discretion stay the effect of any such 
action until its review of the matters at issue has been completed.

[28 FR 12415, Nov. 22, 1963, as amended at 62 FR 4170, Jan. 29, 1997]



Sec. 1.103  Effective dates of Commission actions; finality of Commission actions.

    (a) Unless otherwise specified by law or Commission rule (e.g. 
Sec. Sec. 1.102 and 1.427), the effective date of any Commission action 
shall be the date of public notice of such action as that latter date is 
defined in Sec. 1.4(b) of these rules:

[[Page 130]]

Provided, That the Commission may, on its own motion or on motion by any 
party, designate an effective date that is either earlier or later in 
time than the date of public notice of such action. The designation of 
an earlier or later effective date shall have no effect on any pleading 
periods.
    (b) Notwithstanding any determinations made under paragraph (a) of 
this section, Commission action shall be deemed final, for purposes of 
seeking reconsideration at the Commission or judicial review, on the 
date of public notice as defined in Sec. 1.4(b) of these rules.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[46 FR 18556, Mar. 25, 1981]



Sec. 1.104  Preserving the right of review; deferred consideration of 
application for review.

    (a) The provisions of this section apply to all final actions taken 
pursuant to delegated authority, including final actions taken by 
members of the Commission's staff on nonhearing matters. They do not 
apply to interlocutory actions of the Chief Administrative Law Judge in 
hearing proceedings, or to hearing designation orders issued under 
delegated authority. See Sec. Sec. 0.351, 1.106(a) and 1.115(e).
    (b) Any person desiring Commission consideration of a final action 
taken pursuant to delegated authority shall file either a petition for 
reconsideration or an application for review (but not both) within 30 
days from the date of public notice of such action, as that date is 
defined in Sec. 1.4(b) of these rules. The petition for reconsideration 
will be acted on by the designated authority or referred by such 
authority to the Commission: Provided, That a petition for 
reconsideration of an order designating a matter for hearing will in all 
cases be referred to the Commission. The application for review will in 
all cases be acted upon by the Commission.

    Note: In those cases where the Commission does not intend to release 
a document containing the full text of its action, it will state that 
fact in the public notice announcing its action.

    (c) If in any matter one party files a petition for reconsideration 
and a second party files an application for review, the Commission will 
withhold action on the application for review until final action has 
been taken on the petition for reconsideration.
    (d) Any person who has filed a petition for reconsideration may file 
an application for review within 30 days from the date of public notice 
of such action, as that date is defined in Sec. 1.4(b) of these rules. 
If a petition for reconsideration has been filed, any person who has 
filed an application for review may: (1) Withdraw his application for 
review, or (2) substitute an amended application therefor.

    Note: In those cases where the Commission does not intend to release 
a document containing the full text of its action, it will state that 
fact in the public notice announcing its action.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[28 FR 12415, Nov. 22, 1963, as amended at 41 FR 14871, Apr. 8, 1976; 44 
FR 60294, Oct. 19, 1979; 46 FR 18556, Mar. 25, 1981; 62 FR 4170, Jan. 
29, 1997]



Sec. 1.106  Petitions for reconsideration.

    (a)(1) Petitions requesting reconsideration of a final Commission 
action will be acted on by the Commission. Petitions requesting 
reconsideration of other final actions taken pursuant to delegated 
authority will be acted on by the designated authority or referred by 
such authority to the Commission. A petition for reconsideration of an 
order designating a case for hearing will be entertained if, and insofar 
as, the petition relates to an adverse ruling with respect to 
petitioner's participation in the proceeding. Petitions for 
reconsideration of other interlocutory actions will not be entertained. 
(For provisions governing reconsideration of Commission action in notice 
and comment rule making proceedings, see Sec. 1.429. This Sec. 1.106 
does not govern reconsideration of such actions.)
    (2) Within the period allowed for filing a petition for 
reconsideration, any party to the proceeding may request the presiding 
officer to certify to the Commission the question as to whether, on 
policy in effect at the time of

[[Page 131]]

designation or adopted since designation, and undisputed facts, a 
hearing should be held. If the presiding officer finds that there is 
substantial doubt, on established policy and undisputed facts, that a 
hearing should be held, he will certify the policy question to the 
Commission with a statement to that effect. No appeal may be filed from 
an order denying such a request. See also, Sec. Sec. 1.229 and 1.251.
    (b)(1) Subject to the limitations set forth in paragraph (b)(2) of 
this section, any party to the proceeding, or any other person whose 
interests are adversely affected by any action taken by the Commission 
or by the designated authority, may file a petition requesting 
reconsideration of the action taken. If the petition is filed by a 
person who is not a party to the proceeding, it shall state with 
particularity the manner in which the person's interests are adversely 
affected by the action taken, and shall show good reason why it was not 
possible for him to participate in the earlier stages of the proceeding.
    (2) Where the Commission has denied an application for review, a 
petition for reconsideration will be entertained only if one or more of 
the following circumstances is present:
    (i) The petition relies on facts which relate to events which have 
occurred or circumstances which have changed since the last opportunity 
to present such matters; or
    (ii) The petition relies on facts unknown to petitioner until after 
his last opportunity to present such matters which could not, through 
the exercise of ordinary diligence, have been learned prior to such 
opportunity.
    (3) A petition for reconsideration of an order denying an 
application for review which fails to rely on new facts or changed 
circumstances may be dismissed by the staff as repetitious.
    (c) A petition for reconsideration which relies on facts not 
previously presented to the Commission or to the designated authority 
may be granted only under the following circumstances:
    (1) The facts fall within one or more of the categories set forth in 
Sec. 1.106(b)(2); or
    (2) The Commission or the designated authority determines that 
consideration of the facts relied on is required in the public interest.
    (d)(1) The petition shall state with particularity the respects in 
which petitioner believes the action taken by the Commission or the 
designated authority should be changed. The petition shall state 
specifically the form or relief sought and, subject to this requirement, 
may contain alternative requests.
    (2) The petition for reconsideration shall also, where appropriate, 
cite the findings of fact and/or conclusions of law which petitioner 
believes to be erroneous, and shall state with particularity the 
respects in which he believes such findings and conclusions should be 
changed. The petition may request that additional findings of fact and 
conclusions of law be made.
    (e) Where a petition for reconsideration is based upon a claim of 
electrical interference, under appropriate rules in this chapter, to an 
existing station or a station for which a construction permit is 
outstanding, such petition, in addition to meeting the other 
requirements of this section, must be accompanied by an affidavit of a 
qualified radio engineer. Such affidavit shall show, either by following 
the procedures set forth in this chapter for determining interference in 
the absence of measurements, or by actual measurements made in 
accordance with the methods prescribed in this chapter, that electrical 
interference will be caused to the station within its normally protected 
contour.
    (f) The petition for reconsideration and any supplement thereto 
shall be filed within 30 days from the date of public notice of the 
final Commission action, as that date is defined in Sec. 1.4(b) of 
these rules, and shall be served upon parties to the proceeding. The 
petition for reconsideration shall not exceed 25 double spaced 
typewritten pages. No supplement or addition to a petition for 
reconsideration which has not been acted upon by the Commission or by 
the designated authority, filed after expiration of the 30 day period, 
will be considered except upon leave granted upon a separate pleading 
for leave to

[[Page 132]]

file, which shall state the grounds therefor.
    (g) Oppositions to a petition for reconsideration shall be filed 
within 10 days after the petition is filed, and shall be served upon 
petitioner and parties to the proceeding. Oppositions shall not exceed 
25 double spaced typewritten pages.
    (h) Petitioner may reply to oppositions within seven days after the 
last day for filing oppositions, and any such reply shall be served upon 
parties to the proceeding. Replies shall not exceed 10 double spaced 
typewritten pages, and shall be limited to matters raised in the 
opposition.
    (i) Petitions for reconsideration, oppositions, and replies shall 
conform to the requirements of Sec. Sec. 1.49, 1.51, and 1.52 and shall 
be submitted to the Secretary, Federal Communications Commission, 
Washington, D.C., 20554.
    (j) The Commission or designated authority may grant the petition 
for reconsideration in whole or in part or may deny the petition. Its 
order will contain a concise statement of the reasons for the action 
taken. Where the petition for reconsideration relates to an instrument 
of authorization granted without hearing, the Commission or designated 
authority will take such action within 90 days after the petition is 
filed.
    (k)(1) If the Commission or the designated authority grants the 
petition for reconsideration in whole or in part, it may, in its 
decision:
    (i) Simultaneously reverse or modify the order from which 
reconsideration is sought;
    (ii) Remand the matter to a bureau or other Commission personnel for 
such further proceedings, including rehearing, as may be appropriate; or
    (iii) Order such other proceedings as may be necessary or 
appropriate.
    (2) If the Commission or designated authority initiates further 
proceedings, a ruling on the merits of the matter will be deferred 
pending completion of such proceedings. Following completion of such 
further proceedings, the Commission or designated authority may affirm, 
reverse, or modify its original order, or it may set aside the order and 
remand the matter for such further proceedings, including rehearing, as 
may be appropriate.
    (3) Any order disposing of a petition for reconsideration which 
reverses or modifies the original order is subject to the same 
provisions with respect to reconsideration as the original order. In no 
event, however, shall a ruling which denies a petition for 
reconsideration be considered a modification of the original order. A 
petition for reconsideration of an order which has been previously 
denied on reconsideration may be dismissed by the staff as repetitious.

    Note: For purposes of this section, the word ``order'' refers to 
that portion of its action wherein the Commission announces its 
judgment. This should be distinguished from the ``memorandum opinion'' 
or other material which often accompany and explain the order.

    (l) No evidence other than newly discovered evidence, evidence which 
has become available only since the original taking of evidence, or 
evidence which the Commission or the designated authority believes 
should have been taken in the original proceeding shall be taken on any 
rehearing ordered pursuant to the provisions of this section.
    (m) The filing of a petition for reconsideration is not a condition 
precedent to judicial review of any action taken by the Commission or by 
the designated authority, except where the person seeking such review 
was not a party to the proceeding resulting in the action, or relies on 
questions of fact or law upon which the Commission or designated 
authority has been afforded no opportunity to pass. (See Sec. 
1.115(c).) Persons in those categories who meet the requirements of this 
section may qualify to seek judicial review by filing a petition for 
reconsideration.
    (n) Without special order of the Commission, the filing of a 
petition for reconsideration shall not excuse any person from complying 
with or obeying any decision, order, or requirement of the Commission, 
or operate in any manner to stay or postpone the enforcement thereof. 
However, upon good cause shown, the Commission will stay the 
effectiveness of its order or requirement pending a decision on the

[[Page 133]]

petition for reconsideration. (This paragraph applies only to actions of 
the Commission en banc. For provisions applicable to actions under 
delegated authority, see Sec. 1.102.)
    (o) Petitions for reconsideration of licensing actions, as well as 
oppositions and replies thereto, that are filed with respect to the 
Wireless Radio Services, may be filed electronically via ULS.

(Secs. 4, 303, 307, 405, 48 Stat., as amended, 1066, 1082, 1083, 1095; 
47 U.S.C. 154, 303, 307, 405)

[28 FR 12415, Nov. 22, 1963, as amended at 37 FR 7507, Apr. 15, 1972; 41 
FR 1287, Jan. 7, 1976; 44 FR 60294, Oct. 19, 1979; 46 FR 18556, Mar. 25, 
1981; 62 FR 4170, Jan. 29, 1997; 63 FR 68920, Dec. 14, 1998]



Sec. 1.108  Reconsideration on Commission's own motion.

    The Commission may, on its own motion, set aside any action made or 
taken by it within 30 days from the date of public notice of such 
action, as that date is defined in Sec. 1.4(b) of these rules.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[28 FR 12415, Nov. 22, 1963, as amended at 46 FR 18556, Mar. 25, 1981]



Sec. 1.110  Partial grants; rejection and designation for hearing.

    Where the Commission without a hearing grants any application in 
part, or with any privileges, terms, or conditions other than those 
requested, or subject to any interference that may result to a station 
if designated application or applications are subsequently granted, the 
action of the Commission shall be considered as a grant of such 
application unless the applicant shall, within 30 days from the date on 
which such grant is made or from its effective date if a later date is 
specified, file with the Commission a written request rejecting the 
grant as made. Upon receipt of such request, the Commission will vacate 
its original action upon the application and set the application for 
hearing in the same manner as other applications are set for hearing.



Sec. 1.113  Action modified or set aside by person, panel, or board.

    (a) Within 30 days after public notice has been given of any action 
taken pursuant to delegated authority, the person, panel, or board 
taking the action may modify or set it aside on its own motion.
    (b) Within 60 days after notice of any sanction imposed under 
delegated authority has been served on the person affected, the person, 
panel, or board which imposed the sanction may modify or set it aside on 
its own motion.
    (c) Petitions for reconsideration and applications for review shall 
be directed to the actions as thus modified, and the time for filing 
such pleadings shall be computed from the date upon which public notice 
of the modified action is given or notice of the modified sanction is 
served on the person affected.



Sec. 1.115  Application for review of action taken pursuant to delegated 
authority.

    (a) Any person aggrieved by any action taken pursuant to delegated 
authority may file an application requesting review of that action by 
the Commission. Any person filing an application for review who has not 
previously participated in the proceeding shall include with his 
application a statement describing with particularity the manner in 
which he is aggrieved by the action taken and showing good reason why it 
was not possible for him to participate in the earlier stages of the 
proceeding. Any application for review which fails to make an adequate 
showing in this respect will be dismissed.
    (b)(1) The application for review shall concisely and plainly state 
the questions presented for review with reference, where appropriate, to 
the findings of fact or conclusions of law.
    (2) Except as provided in paragraph (b)(5) of this section, the 
application for review shall specify with particularity, from among the 
following, the factor(s) which warrant Commission consideration of the 
questions presented:
    (i) The action taken pursuant to delegated authority is in conflict 
with statute, regulation, case precedent, or established Commission 
policy.
    (ii) The action involves a question of law or policy which has not 
previously been resolved by the Commission.

[[Page 134]]

    (iii) The action involves application of a precedent or policy which 
should be overturned or revised.
    (iv) An erroneous finding as to an important or material question of 
fact.
    (v) Prejudicial procedural error.
    (3) The application for review shall state with particularity the 
respects in which the action taken by the designated authority should be 
changed.
    (4) The application for review shall state the form of relief sought 
and, subject to this requirement, may contain alternative requests.
    (c) No application for review will be granted if it relies on 
questions of fact or law upon which the designated authority has been 
afforded no opportunity to pass.

    Note: Subject to the requirements of Sec. 1.106, new questions of 
fact or law may be presented to the designated authority in a petition 
for reconsideration.

    (d) Except as provided in paragraph (e) of this section, the 
application for review and any supplemental thereto shall be filed 
within 30 days of public notice of such action, as that date is defined 
in section 1.4(b). Opposition to the application shall be filed within 
15 days after the application for review is filed. Except as provided in 
paragraph (e)(3) of this section, replies to oppositions shall be filed 
within 10 days after the opposition is filed and shall be limited to 
matters raised in the opposition.
    (e)(1) Applications for review of interlocutory rulings made by the 
Chief Administrative Law Judge (see Sec. 0.351) shall be deferred until 
the time when exceptions are filed unless the Chief Judge certifies the 
matter to the Commission for review. A matter shall be certified to the 
Commission only if the Chief Judge determines that it presents a new or 
novel question of law or policy and that the ruling is such that error 
would be likely to require remand should the appeal be deferred and 
raised as an exception. The request to certify the matter to the 
Commission shall be filed within 5 days after the ruling is made. The 
applicaton for review shall be filed within 5 days after the order 
certifying the matter to the Commission is released or such ruling is 
made. Oppositions shall be filed within 5 days after the application is 
filed. Replies to oppositions shall be filed only if they are requested 
by the Commission. Replies (if allowed) shall be filed within 5 days 
after they are requested. A ruling certifying or not certifying a matter 
to the Commission is final: Provided, however, That the Commission may, 
on its own motion, dismiss the application for review on the ground that 
objections to the ruling should be deferred and raised as an exception.
    (2) The failure to file an application for review of an 
interlocutory ruling made by the Chief Administrative Law Judge or the 
denial of such application by the Commission, shall not preclude any 
party entitled to file exceptions to the initial decision from 
requesting review of the ruling at the time when exceptions are filed. 
Such requests will be considered in the same manner as exceptions are 
considered.
    (3) Applications for review of a hearing designation order issued 
under delegated authority shall be deferred until exceptions to the 
initial decision in the case are filed, unless the presiding 
Administrative Law Judge certifies such an application for review to the 
Commission. A matter shall be certified to the Commission only if the 
presiding Administrative Law Judge determines that the matter involves a 
controlling question of law as to which there is substantial ground for 
difference of opinion and that immediate consideration of the question 
would materially expedite the ultimate resolution of the litigation. A 
ruling refusing to certify a matter to the Commission is not appealable. 
In addition, the Commission may dismiss, without stating reasons, an 
application for review that has been certified, and direct that the 
objections to the hearing designation order be deferred and raised when 
exceptions in the initial decision in the case are filed. A request to 
certify a matter to the Commission shall be filed with the presiding 
Administrative Law Judge within 5 days after the designation order is 
released. Any application for review authorized by the Administrative 
Law Judge shall be filed within 5 days after the order certifying the 
matter to the Commission is released or such a ruling is made. 
Oppositions shall be filed within 5 days after the

[[Page 135]]

application for review is filed. Replies to oppositions shall be filed 
only if they are requested by the Commission. Replies (if allowed) shall 
be filed within 5 days after they are requested.
    (4) Applications for review of final staff decisions issued on 
delegated authority in formal complaint proceedings on the Enforcement 
Bureau's Accelerated Docket (see, e.g., Sec. 1.730) shall be filed 
within 15 days of public notice of the decision, as that date is defined 
in Sec. 1.4(b). These applications for review oppositions and replies 
in Accelerated Docket proceedings shall be served on parties to the 
proceeding by hand or facsimile transmission.
    (f) Applications for review, oppositions, and replies shall conform 
to the requirements of Sec. Sec. 1.49, 1.51, and 1.52, and shall be 
submitted to the Secretary, Federal Communications Commission, 
Washington, DC 20554. Except as provided below, applications for review 
and oppositions thereto shall not exceed 25 double-space typewritten 
pages. Applications for review of interlocutory actions in hearing 
proceedings (including designation orders) and oppositions thereto shall 
not exceed 5 double-spaced typewritten pages. When permitted (see 
paragraph (e)(3) of this section), reply pleadings shall not exceed 5 
double-spaced typewritten pages. The application for review shall be 
served upon the parties to the proceeding. Oppositions to the 
application for review shall be served on the person seeking review and 
on parties to the proceeding. When permitted (see paragraph (e)(3) of 
this section), replies to the opposition(s) to the application for 
review shall be served on the person(s) opposing the application for 
review and on parties to the proceeding.
    (g) The Commission may grant the application for review in whole or 
in part, or it may deny the application with or without specifying 
reasons therefor. A petition requesting reconsideration of a ruling 
which denies an application for review will be entertained only if one 
or more of the following circumstances is present:
    (1) The petition relies on facts which related to events which have 
occurred or circumstances which have changed since the last opportunity 
to present such matters; or
    (2) The petition relies on facts unknown to petitioner until after 
his last opportunity to present such matters which could not, through 
the exercise of ordinary diligence, have been learned prior to such 
opportunity.
    (h)(1) If the Commission grants the application for review in whole 
or in part, it may, in its decision:
    (i) Simultaneously reverse or modify the order from which review is 
sought;
    (ii) Remand the matter to the designated authority for 
reconsideration in accordance with its instructions, and, if an 
evidentiary hearing has been held, the remand may be to the person(s) 
who conducted the hearing; or
    (iii) Order such other proceedings, including briefs and oral 
argument, as may be necessary or appropriate.
    (2) In the event the Commission orders further proceedings, it may 
stay the effect of the order from which review is sought. (See Sec. 
1.102.) Following the completion of such further proceedings the 
Commission may affirm, reverse or modify the order from which review is 
sought, or it may set aside the order and remand the matter to the 
designated authority for reconsideration in accordance with its 
instructions. If an evidentiary hearing has been held, the Commission 
may remand the matter to the person(s) who conducted the hearing for 
rehearing on such issues and in accordance with such instructions as may 
be appropriate.

    Note: For purposes of this section, the word ``order'' refers to 
that portion of its action wherein the Commission announces its 
judgment. This should be distinguished from the ``memorandum opinion'' 
or other material which often accompany and explain the order.

    (i) An order of the Commission which reverses or modifies the action 
taken pursuant to delegated authority is subject to the same provisions 
with respect to reconsideration as an original order of the Commission. 
In no event, however, shall a ruling which denies an application for 
review be considered a modification of the action taken pursuant to 
delegated authority.
    (j) No evidence other than newly discovered evidence, evidence which 
has become available only since the original taking of evidence, or 
evidence

[[Page 136]]

which the Commission believes should have been taken in the original 
proceeding shall be taken on any rehearing ordered pursuant to the 
provisions of this section.
    (k) The filing of an application for review shall be a condition 
precedent to judicial review of any action taken pursuant to delegated 
authority.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[28 FR 12415, Nov. 22, 1963, as amended at 41 FR 14871, Apr. 8, 1976; 44 
FR 60295, Oct. 19, 1979; 46 FR 18556, Mar. 25, 1981; 48 FR 12719, Mar. 
28, 1983; 50 FR 39000, Sept. 26, 1985; 54 FR 40392, Oct. 2, 1989; 55 FR 
36641, Sept. 6, 1990; 57 FR 19387, May 6, 1992; 62 FR 4170, Jan. 29, 
1997; 63 FR 41446, Aug. 4, 1998; 67 FR 13223, Mar. 21, 2002]



Sec. 1.117  Review on motion of the Commission.

    (a) Within 40 days after public notice is given of any action taken 
pursuant to delegated authority, the Commission may on its own motion 
order the record of the proceeding before it for review.
    (b) If the Commission reviews the proceeding on its own motion, it 
may order such further procedure as may be useful to it in its review of 
the action taken pursuant to delegated authority.
    (c) With or without such further procedure, the Commission may 
either affirm, reverse, modify, or set aside the action taken, or remand 
the proceeding to the designated authority for reconsideration in 
accordance with its instructions. If an evidentiary hearing has been 
held, the Commission may remand the proceeding to the person(s) who 
conducted the hearing for rehearing on such issues and in accordance 
with such instructions as may be appropriate. An order of the Commission 
which reverses or modifies the action taken pursuant to delegated 
authority, or remands the matter for further proceedings, is subject to 
the same provisions with respect to reconsideration as an original 
action of the Commission.



Sec. 1.120  Protests of grants without hearing.

    (a) The provisions of this section shall not be applicable to any 
application: (1) Filed on or after December 12, 1960; (2) filed before 
December 12, 1960, but substantially amended (as defined in the 
applicable provisions of this chapter) on or after that date; or (3) 
filed before December 12, 1960, and not thereafter substantially 
amended, but with respect to which the rules in this chapter provide an 
opportunity for petitions to deny to be filed under section 309 of the 
Communications Act, as amended. See Sec. Sec. 1.580 and 1.962.
    (b) Where any instrument of authorization for a radio station, other 
than a license pursuant to a construction permit, has been granted 
without a hearing, any party in interest may file a protest directed to 
such grant and request a hearing on the application granted. Such 
protest shall be signed by the protestant and subscribed to under oath. 
Such protest must be filed with the Commission within 30 days after 
release of the document containing the full text of such action, or in 
case such a document is not released, after release of a ``Public 
Notice'' announcing the action in question and must separately set 
forth:
    (1) Such allegations of fact as will show the protestant to be a 
party in interest, i.e., a person aggrieved or whose interests are 
adversely affected by the Commission's authorization, protest of which 
is sought. Each such allegation of fact shall be separately stated.
    (2) Facts indicating the reasons why the grant was improperly made 
or would otherwise not be in the public interest. Each such reason shall 
be separately stated, and facts in support thereof shall be specified in 
detail and shall not include general non-specific conclusory arguments 
and allegations.
    (3) The specific issues upon which protestant wishes a hearing to be 
held, which issues must relate directly to a matter specified with 
particularity as part of paragraph (b)(2) of this section.
    (c) Arguments and citations of authority may be set forth in a brief 
accompanying the protest but must be excluded from the protest itself.
    (d) Oppositions to protests and briefs in support thereof shall 
contain all material, including that pertinent to the determination 
referred to in paragraph (i) of this section, deemed appropriate to the 
Commission's resolution of the

[[Page 137]]

protest. Such oppositions and supporting briefs must be filed within 10 
days after the filing of such protest, and any replies to such 
oppositions must be filed within 5 days after the filing of the 
oppositions.
    (e) Protests, oppositions, and replies shall be filed with the 
Commission in original and 14 copies and shall be accompanied by proof 
of service upon the grantee or the protestant, as the case may be, and/
or their respective attorneys.
    (f) The Commission may upon consideration of a protest direct either 
the protestant or grantee or both to submit further statements of fact 
under oath relating to the matters raised in the protest.
    (g) Within 30 days from the date of the filing of the protest, the 
Commission will enter findings as to whether such protest meets the 
requirements set forth in paragraphs (b) (1) and (2) of this section. If 
the Commission finds that one of these requirements is not met, it will 
dismiss the protest. If the Commission finds that these requirements are 
met, it will designate the application in question for hearing. As to 
issues which the Commission believes present no grounds for setting 
aside the grant, even if the facts alleged were to be proven, the 
Commission may designate such issues for oral argument only. The other 
issues will be designated for evidentiary hearing except that the 
Commission may redraft the issues in accordance with the facts or 
substantive matters alleged in the protest and may also specify such 
additional issues as it deems desirable. In any evidentiary hearing 
subsequently held upon issues specified by the Commission, upon its own 
initiative or adopted by it, both the burden of proceeding with the 
introduction of evidence and the burden of proof shall be upon the 
grantee. With respect to issues resulting from facts set forth in the 
protest and not adopted or specified by the Commission on its own 
motion, both the burden of proceeding with the introduction of evidence 
and the burden of proof shall be upon the protestant.
    (h) The procedure in such protest hearing shall be governed by the 
provisions of subpart B of this part, except as otherwise provided in 
this section.
    (i) Pending hearing and decision, the effective date of the 
Commission's action to which protest is made shall be postponed to the 
effective date of the Commission's decision after hearing, unless the 
authorization involved is necessary to the maintenance or conduct of an 
existing service or unless the Commission affirmatively finds that the 
public interest requires that the grant remain in effect, in which event 
the Commission shall authorize the applicant to utilize the facilities 
or authorization in question pending the Commission's decision after 
hearing.

(Sec. 7, 66 Stat. 715, as amended. See, in particular, sec. 4 (a) and 
(d), 74 Stat. 889, 892; 47 U.S.C. 309)

[28 FR 12415, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963]



                      Subpart B_Hearing Proceedings

    Source: 28 FR 12425, Nov. 22, 1963, unless otherwise noted.

                                 General



Sec. 1.201  Scope.

    This subpart shall be applicable to the following cases which have 
been designated for hearing:
    (a) Adjudication (as defined by the Administrative Procedure Act); 
and
    (b) Rule making proceedings which are required by law to be made on 
the record after opportunity for a Commission hearing.

    Note: For special provisions relating to AM broadcast station 
applications involving other North American countries see Sec. 73.3570.

[28 FR 12425, Nov. 22, 1963, as amended at 51 FR 32088, Sept. 9, 1986]



Sec. 1.202  Official reporter; transcript.

    The Commission will designate from time to time an official reporter 
for the recording and transcribing of hearing proceedings. The 
transcript of the testimony taken, or argument had, at any hearing will 
not be furnished by the Commission, but will be open to inspection under 
Sec. 0.453(a)(1) of this chapter. Copies of such transcript, if 
desired, may be obtained from the official

[[Page 138]]

reporter upon payment of the charges therefor.

(5 U.S.C. 556)

[32 FR 20861, Dec. 28, 1967]



Sec. 1.203  The record.

    The transcript of testimony and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the exclusive 
record for decision. Where any decision rests on official notice of a 
material fact not appearing in the record, any party shall on timely 
request be afforded an opportunity to show the contrary.

(5 U.S.C. 556)



Sec. 1.204  Pleadings; definition.

    As used in this subpart, the term pleading means any written notice, 
motion, petition, request, opposition, reply, brief, proposed findings, 
exceptions, memorandum of law, or other paper filed with the Commission 
in a hearing proceeding. It does not include exhibits or documents 
offered in evidence. See Sec. 1.356.

[29 FR 8219, June 30, 1964]



Sec. 1.205  Continuances and extensions.

    Continuances of any proceeding or hearing and extensions of time for 
making any filing or performing any act required or allowed to be done 
within a specified time may be granted by the Commission or the 
presiding officer upon motion for good cause shown, unless the time for 
performance or filing is limited by statute.



Sec. 1.207  Interlocutory matters, reconsideration and review; cross 
references.

    (a) Rules governing interlocutory pleadings in hearing proceedings 
are set forth in Sec. Sec. 1.291 through 1.298.
    (b) Rules governing appeal from rulings made by the presiding 
officer are set forth as Sec. Sec. 1.301 and 1.302.
    (c) Rules governing the reconsideration and review of actions taken 
pursuant to delegated authority, and the reconsideration of actions 
taken by the Commission, are set forth in Sec. Sec. 1.101 through 
1.120.

[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 6443, May 16, 1964; 36 
FR 19439, Oct. 6, 1971]



Sec. 1.209  Identification of responsible officer in caption to pleading.

    Each pleading filed in a hearing proceeding shall indicate in its 
caption whether it is to be acted upon by the Commission, the Chief 
Administrative Law Judge, or the presiding officer. If it is to be acted 
upon by the presiding officer, he shall be identified by name.

[29 FR 8219, June 30, 1964, as amended at 37 FR 19372, Sept. 20, 1972; 
62 FR 4171, Jan. 29, 1997]



Sec. 1.211  Service.

    Except as otherwise expressly provided in this chapter, all 
pleadings filed in a hearing proceeding shall be served upon all other 
counsel in the proceeding or, if a party is not represented by counsel, 
then upon such party. All such papers shall be accompanied by proof of 
service. For provisions governing the manner of service, see Sec. 1.47.

[29 FR 8219, June 30, 1964]

                         Participants and Issues



Sec. 1.221  Notice of hearing; appearances.

    (a) Upon designation of an application for hearing, the Commission 
issues an order containing the following:
    (1) A statement as to the reasons for the Commission's action.
    (2) A statement as to the matters of fact and law involved, and the 
issues upon which the application will be heard.
    (3) A statement as to the time, place, and nature of the hearing. 
(If the time and place are not specified, the order will indicate that 
the time and place will be specified at a later date.)
    (4) A statement as to the legal authority and jurisdiction under 
which the hearing is to be held.
    (b) The order designating an application for hearing is mailed to 
the applicant by the Reference Information Center of the Consumer and 
Governmental

[[Page 139]]

Affairs Bureau and this order or a summary thereof is published in the 
Federal Register. Reasonable notice of hearing will be given to the 
parties in all proceedings; and, whenever possible, the Commission will 
give at least 60 days notice of comparative hearings.
    (c) In order to avail himself of the opportunity to be heard, the 
applicant, in person or by his attorney, shall, within 20 days of the 
mailing of the notice of designation for hearing by the Reference 
Information Center of the Consumer and Governmental Affairs Bureau, file 
with the Commission, in triplicate, a written appearance stating that he 
will appear of the date fixed for hearing and present evidence on the 
issues specified in the order. Where an applicant fails to file such a 
written appearance within the time specified, or has not filed prior to 
the expiration of that time a petition to dismiss without prejudice, or 
a petition to accept, for good cause shown, such written appearance 
beyond expiration of said 20 days, the application will be dismissed 
with prejudice for failure to prosecute.
    (d) The Commission will on its own motion name as parties to the 
hearing any person found to be a party in interest.
    (e) In order to avail himself of the opportunity to be heard, any 
person named as a party pursuant to paragraph (d) of this section shall, 
within 20 days of the mailing of the notice of his designation as a 
party, file with the Commission, in person or by attorney, a written 
appearance in triplicate, stating that he will appear at the hearing. 
Any person so named who fails to file this written statement within the 
time specified, shall, unless good cause for such failure is shown, 
forfeit his hearing rights.
    (f)(1) A fee must accompany each written appearance filed with the 
Commission in certain cases designated for hearing. See subpart G, part 
1 for the amount due. Except as provided in paragraph (g) of this 
section, the fee must accompany each written appearance at the time of 
its filing and must be in conformance with the requirements of subpart G 
of the rules. A written appearance that does not contain the proper fee, 
or is not accompanied by a deferral request as per Sec. 1.1115 of the 
rules, shall be dismissed and returned to the applicant by the fee 
processing staff. The presiding judge will be notified of this action 
and may dismiss the applicant with prejudice for failure to prosecute if 
the written appearance is not resubmitted with the correct fee within 
the original 20 day filing period.

    Note: If the parties file a settlement agreement prior to filing the 
Notice of Appearance or simultaneously with it, the hearing fee need not 
accompany the Notice of Appearance. In filing the Notice of Appearance, 
the applicant should clearly indicate that a settlement agreement has 
been filed. (The fact that there are ongoing negotiations that may lead 
to a settlement does not affect the requirement to pay the fee.) If a 
settlement agreement is not effectuated, the Presiding Judge will 
require immediate payment of the fee.

    (2) When a fee is required to accompany a written appearance as 
described in paragraph (f)(1) of this section, the written appearance 
must also contain FCC Registration Number (FRN) in conformance with 
subpart W of this part. The presiding judge will notify the party filing 
the appearance of the omitted FRN and dismiss the applicant with 
prejudice for failure to prosecute if the written appearance is not 
resubmitted with the FRN within ten (10) business days of the date of 
notification.
    (g) In comparative broadcast proceedings involving applicants for 
new facilities, where the hearing fee was paid before designation of the 
applications for hearing as required by the Public Notice described at 
Sec. 73.3571(c), Sec. 73.3572(d), or Sec. 73.3573(g) of this chapter, 
a hearing fee payment should not be made with the filing of the Notice 
of Appearance.

(5 U.S.C. 554. Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)

[28 12424, Nov. 22, 1963, as amended at 51 FR 19347, May 29, 1986; 52 FR 
5288, Feb. 20, 1987; 55 FR 19154, May 8, 1990; 56 FR 25638, June 5, 
1991; 64 FR 60725, Nov. 8, 1999; 66 FR 47895, Sept. 14, 2001; 67 FR 
13223, Mar. 21, 2002]



Sec. 1.223  Petitions to intervene.

    (a) Where, in cases involving applications for construction permits 
and station licenses, or modifications or renewals thereof, the 
Commission has failed to notify and name as a party to

[[Page 140]]

the hearing any person who qualifies as a party in interest, such person 
may acquire the status of a party by filing, under oath and not more 
than 30 days after the publication in the Federal Register of the 
hearing issues or any substantial amendment thereto, a petition for 
intervention showing the basis of its interest. Where such person's 
interest is based upon a claim that a grant of the application would 
cause objectionable interference under applicable provisions of this 
chapter to such person as a licensee or permittee of an existing or 
authorized station, the petition to intervene must be accompanied by an 
affidavit of a qualified radio engineer which shall show, either by 
following the procedures prescribed in this chapter for determining 
interference in the absence of measurements or by actual measurements 
made in accordance with the methods prescribed in this chapter, the 
extent of such interference. Where the person's status as a party in 
interest is established, the petition to intervene will be granted.
    (b) Any other person desiring to participate as a party in any 
hearing may file a petition for leave to intervene not later than 30 
days after the publication in the Federal Register of the full text or a 
summary of the order designating an application for hearing or any 
substantial amendment thereto. The petition must set forth the interest 
of petitioner in the proceedings, must show how such petitioner's 
participation will assist the Commission in the determination of the 
issues in question, must set forth any proposed issues in addition to 
those already designated for hearing, and must be accompanied by the 
affidavit of a person with knowledge as to the facts set forth in the 
petition. The presiding officer, in his discretion, may grant or deny 
such petition or may permit intervention by such persons limited to a 
particular stage of the proceeding.
    (c) Any person desiring to file a petition for leave to intervene 
later than 30 days after the publication in the Federal Register of the 
full text or a summary of the order designating an application for 
hearing or any substantial amendment thereto shall set forth the 
interest of petitioner in the proceeding, show how such petitioner's 
participation will assist the Commission in the determination of the 
issues in question, must set forth any proposed issues in addition to 
those already designated for hearing, and must set forth reasons why it 
was not possible to file a petition within the time prescribed by 
paragraphs (a) and (b) of this section. Such petition shall be 
accompanied by the affidavit of a person with knowledge of the facts set 
forth in the petition, and where petitioner claims that a grant of the 
application would cause objectionable interference under applicable 
provisions of this chapter, the petition to intervene must be 
accompanied by the affidavit of a qualified radio engineer showing the 
extent of such alleged interference according to the methods prescribed 
in paragraph (a) of this section. If, in the opinion of the presiding 
officer, good cause is shown for the delay in filing, he may in his 
discretion grant such petition or may permit intervention limited to 
particular issues or to a particular stage of the proceeding.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)

[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 7821, June 19, 1964; 41 
FR 14872, Apr. 8, 1976; 51 FR 19347, May 29, 1986]



Sec. 1.224  Motion to proceed in forma pauperis.

    (a) A motion to proceed in forma pauperis may be filed by an 
individual, a corporation, and unincorporated entity, an association or 
other similar group, if the moving party is either of the following:
    (1) A respondent in a revocation proceeding, or a renewal applicant, 
who cannot carry on his livelihood without the radio license at stake in 
the proceeding; or
    (2) An intervenor in a hearing proceeding who is in a position to 
introduce testimony which is of probable decisional significance, on a 
matter of substantial public interest importance, which cannot, or 
apparently will not, be introduced by other parties to the proceeding, 
and who is not seeking personal financial gain.
    (b) In the case of a licensee, the motion to proceed in forma 
pauperis shall

[[Page 141]]

contain specific allegations of fact sufficient to show that the moving 
party is eligible under paragraph (a) of this section and that he 
cannot, because of his poverty, pay the expenses of litigation and still 
be able to provide himself and his dependents with the necessities of 
life. Such allegations of fact shall be supported by affidavit of a 
person or persons with personal knowledge thereof. The information 
submitted shall detail the income and assets of the individual and his 
financial obligations and responsibilities, and shall contain an 
estimate of the cost of participation in the proceeding. Personal 
financial information may be submitted to the presiding officer in 
confidence.
    (c)(1) In the case of an individual intervenor, the motion to 
proceed in forma pauperis shall contain specific allegations of fact 
sufficient to show that he is eligible under paragraph (a) of this 
section and that he has dedicated financial resources to sustain his 
participation which are reasonable in light of his personal resources 
and other demands upon them but are inadequate for effective 
participation in the proceeding. Such allegations of fact shall be 
supported by affidavit of a person or persons with personal knowledge 
thereof. The information submitted shall detail the income and assets of 
the individual and his immediate family and his financial obligations 
and responsibilities, and shall contain an estimate of the cost of 
participation. Personal financial information may be submitted to the 
presiding officer in confidence.
    (2) In the case of an intervening group, the motion to proceed in 
forma pauperis shall contain specific allegations of fact sufficient to 
show that the moving party is eligible under paragraph (a) of this 
section and that it cannot pay the expenses of litigation and still be 
able to carry out the activities and purposes for which it was 
organized. Such allegations of fact shall be supported by affidavit of 
the President and Treasurer of the group, and/or by other persons having 
personal knowledge thereof. The information submitted shall include a 
copy of the corporate charter or other documents that describe the 
activities and purposes of the organization; a current balance sheet and 
profit and loss statement; facts showing, under all the circumstances, 
that it would not be reasonable to expect added resources of individuals 
composing the group to be pooled to meet the expenses of participating 
in the proceeding; and an estimate of the cost of participation. 
Personal financial information pertaining to members of the group may be 
submitted to the presiding officer in confidence.
    (d) If the motion is granted, the presiding officer may direct that 
a free copy of the transcript of testimony be made available to the 
moving party and may relax the rules of procedure in any manner which 
will ease his financial burden, is fair to other parties to the 
proceeding, and does not involve the payment of appropriated funds to a 
party.

[41 FR 53021, Dec. 3, 1976]



Sec. 1.225  Participation by non-parties; consideration of communications.

    (a) Any person who wishes to appear and give evidence on any matter 
and who so advises the Secretary, will be notified by the Secretary if 
that matter is designated for hearing. In the case of requests bearing 
more than one signature, notice of hearing will be given to the person 
first signing unless the request indicates that such notice should be 
sent to someone other than such person.
    (b) No person shall be precluded from giving any relevant, material, 
and competent testimony at a hearing because he lacks a sufficient 
interest to justify his intervention as a party in the matter.
    (c) When a hearing is held, no communication will be considered in 
determining the merits of any matter unless it has been received into 
evidence. The admissibility of any communication shall be governed by 
the applicable rules of evidence, and no communication shall be 
admissible on the basis of a stipulation unless Commission counsel as 
well as counsel for all of the parties shall join in such stipulation.



Sec. 1.227  Consolidations.

    (a) The Commission, upon motion or upon its own motion, will, where 
such action will best conduce to the proper

[[Page 142]]

dispatch of business and to the ends of justice, consolidate for 
hearing:
    (1) Any cases which involve the same applicant or involve 
substantially the same issues, or
    (2) Any applications which present conflicting claims, except where 
a random selection process is used.
    (b)(1) In broadcast cases, except as provided in paragraph (b)(5) of 
this section, and except as otherwise provided in Sec. 1.1601, et seq., 
no application will be consolidated for hearing with a previously filed 
application or applications unless such application, or such application 
as amended, if amended so as to require a new file number, is 
substantially complete and tendered for filing by the close of business 
on the day preceding the day designated by Public Notice as the day any 
one of the previously filed applications is available and ready for 
processing.
    (2) In other than broadcast, common carrier, and safety and special 
radio services cases, any application that is mutually exclusive with 
another application or applications already designated for hearing will 
be consolidated for hearing with such other application or applications 
only if the later application in question has been filed within 5 days 
after public notice has been given in the Federal Register of the 
Commission's order which first designated for hearing the prior 
application or applications with which such application is in conflict.
    (3) Common carrier cases: (i) General rule. Where an application is 
mutually exclusive with a previously filed application, the second 
application will be entitled to comparative consideration with the first 
or entitled to be included in a random selection process, only if the 
second has been properly filed at least one day before the Commission 
takes action on the first application. Specifically, the later filed 
application must have been received by the Commission, in a condition 
acceptable for filing, before the close of business on the day prior to 
the grant date or designation date of the earlier filed application.
    (ii) Domestic public fixed and public mobile. See Rule Sec. 21.31 
of this chapter for the requirements as to mutually exclusive 
applications. See also Rule Sec. 21.23 of this chapter for the 
requirements as to amendments of applications.
    (iii) Public coast stations (Maritime mobile service). See paragraph 
(b)(4) of this section.
    (4) This paragraph applies when mutually exclusive applications 
subject to section 309(b) of the Communications Act and not subject to 
competitive bidding procedures pursuant to Sec. 1.2102 of this chapter 
are filed in the Private Radio Services, or when there are more such 
applications for initial licenses than can be accommodated on available 
frequencies. Except for applications filed under part 101, subparts H 
and O, Private Operational Fixed Microwave Service, and applications for 
high seas public coast stations (see Sec. Sec. 80.122(b)(1) (first 
sentence), 80.357, 80.361, 80.363(a)(2), 80.371(a), (b), and (d), and 
80.374 of this chapter) mutual exclusivity will occur if the later 
application or applications are received by the Commission's offices in 
Gettysburg, PA (or Pittsburgh, PA for applications requiring the fees 
set forth at part 1, subpart G of the rules) in a condition acceptable 
for filing within 30 days after the release date of public notice 
listing the first prior filed application (with which subsequent 
applications are in conflict) as having been accepted for filing or 
within such other period as specified by the Commission. For 
applications in the Private Operational Fixed Microwave Service, mutual 
exclusivity will occur if two or more acceptable applications that are 
in conflict are filed on the same day. Applications for high seas public 
coast stations will be processed on a first come, first served basis, 
with the first acceptable application cutting off the filing rights of 
subsequent, conflicting applications. Applications for high seas public 
coast stations received on the same day will be treated as 
simultaneously filed and, if granting more than one would result in 
harmful interference, must be resolved through settlement or technical 
amendment.
    (5) Any mutually exclusive application filed after the date 
prescribed in paragraph (b)(1), (b)(2), (b)(3), or (b)(4)

[[Page 143]]

of this section will be dismissed without prejudice and will be eligible 
for refiling only after a final decision is rendered by the Commission 
with respect to the prior application or applications or after such 
application or applications are dismissed or removed from the hearing 
docket.
    (6) An application which is mutually exclusive with an application 
for renewal of license of a broadcast station filed on or before May 1, 
1995 will be designated for comparative hearing with such license 
renewal application if it is substantially complete and tendered for 
filing no later than the date prescribed in Sec. 73.3516(e).

[28 FR 12425, Nov. 22, 1963, as amended at 34 FR 7966, May 21, 1969; 37 
FR 13983, July 15, 1972; 38 FR 26202, Sept. 19, 1973; 48 FR 27200, June 
13, 1983; 48 FR 34039, July 27, 1983; 52 FR 10229, Mar. 31, 1987; 55 FR 
46008, Oct. 31, 1990; 55 FR 46513, Nov. 5, 1990; 61 FR 18291, Apr. 25, 
1996; 67 FR 34851, May 16, 2002; 67 FR 48563, July 25, 2002]



Sec. 1.229  Motions to enlarge, change, or delete issues.

    (a) A motion to enlarge, change or delete the issues may be filed by 
any party to a hearing. Except as provided for in paragraph (b) of this 
section, such motions must be filed within 15 days after the full text 
or a summary of the order designating the case for hearing has been 
published in the Federal Register.
    (b)(1) In comparative broadcast proceedings involving applicants for 
only new facilities, such motions shall be filed within 30 days of the 
release of the designation order, except that persons not named as 
parties to the proceeding in the designation order may file such motions 
with their petitions to intervene up to 30 days after publication of the 
full text or a summary of the designation order in the Federal Register. 
(See Sec. 1.223 of this part).
    (2) In comparative broadcast proceedings involving renewal 
applicants, such motions shall be filed within 30 days after publication 
of the full text or a summary of the designation order in the Federal 
Register.
    (3) Any person desiring to file a motion to modify the issues after 
the expiration of periods specified in paragraphs (a), (b)(1), and 
(b)(2), of this section, shall set forth the reason why it was not 
possible to file the motion within the prescribed period. Except as 
provided in paragraph (c) of this section, the motion will be granted 
only if good cause is shown for the delay in filing. Motions for 
modifications of issues which are based on new facts or newly discovered 
facts shall be filed within 15 days after such facts are discovered by 
the moving party.
    (c) In the absence of good cause for late filing of a motion to 
modify the issues, the motion to enlarge will be considered fully on its 
merits if (and only if) initial examination of the motion demonstrates 
that it raises a question of probable decisional significance and such 
substantial public interest importance as to warrant consideration in 
spite of its untimely filing.
    (d) Such motions, opposition thereto, and replies to oppositions 
shall contain specific allegations of fact sufficient to support the 
action requested. Such allegations of fact, except for those of which 
official notice may be taken, shall be supported by affidavits of a 
person or persons having personal knowledge thereof. The failure to file 
an opposition or a reply will not necessarily be construed as an 
admission of any fact or argument contained in a pleading.
    (e) In comparative broadcast proceedings involving applicants for 
only new facilities, in addition to the showing with respect to the 
requested issue modification described in paragraph (d) of this section, 
the party requesting the enlargement of issues against an applicant in 
the proceeding shall identify those documents the moving party wishes to 
have produced and any other discovery procedures the moving party wishes 
to employ in the event the requested issue is added to the proceeding.
    (1) In the event the motion to enlarge issues is granted, the 
Commission or delegated authority acting on the motion will also rule on 
the additional discovery requests, and, if granted, such additional 
discovery will be scheduled to be completed within 30 days of the action 
on the motion.
    (2) The moving party may file supplemental discovery requests on the 
basis of information provided in responsive pleadings or discovered as a 
result of

[[Page 144]]

initial discovery on the enlarged issue. The grant or denial of any such 
supplemental requests and the timing of the completion of such 
supplemental discovery are subject to the discretion of the presiding 
judge.
    (3) The 30-day time limit for completion of discovery on enlarged 
issues shall not apply where the persons subject to such additional 
discovery are not parties to the proceeding. In such case, additional 
time will be required to afford such persons adequate notice of the 
discovery procedures being employed.
    (f) In any case in which the presiding judge or the Commission 
grants a motion to enlarge the issues to inquire into allegations that 
an applicant made misrepresentations to the Commission or engaged in 
other misconduct during the application process, the enlarged issues 
include notice that, after hearings on the enlarged issue and upon a 
finding that the alleged misconduct occurred and warrants such penalty, 
in addition to or in lieu of denying the application, the applicant may 
be liable for a forfeiture of up to the maximum statutory amount. See 47 
U.S.C. 503(b)(2)(A).

[41 FR 14872, Apr. 8, 1976, as amended at 44 FR 34947, June 18, 1979; 51 
FR 19347, May 29, 1986; 56 FR 792, Jan. 9, 1991; 56 FR 25639, June 5, 
1991; 62 FR 4171, Jan. 29, 1997]

                            Presiding Officer



Sec. 1.241  Designation of presiding officer.

    (a) Hearings will be conducted by the Commission, by one or more 
commissioners, or by a law judge designated pursuant to section 11 of 
the Administrative Procedure Act. If a presiding officer becomes 
unavailable to the Commission prior to the taking of testimony another 
presiding officer will be designated.
    (b) Unless the Commission determines that due and timely execution 
of its functions requires otherwise, presiding officers shall be 
designated, and notice thereof released to the public, at least 10 days 
prior to the date set for hearing.

(5 U.S.C. 556)



Sec. 1.243  Authority of presiding officer.

    From the time he is designated to preside until issuance of his 
decision or the transfer of the proceeding to the Commission or to 
another presiding officer the presiding officer shall have such 
authority as is vested in him by law and by the provisions of this 
chapter, including authority to:
    (a) Administer oaths and affirmations;
    (b) Issue subpenas;
    (c) Examine witnesses;
    (d) Rule upon questions of evidence;
    (e) Take or cause depositions to be taken;
    (f) Regulate the course of the hearing, maintain decorum, and 
exclude from the hearing any person engaging in contemptuous conduct or 
otherwise disrupting the proceedings;
    (g) Require the filing of memoranda of law and the presentation of 
oral argument with respect to any question of law upon which he is 
required to rule during the course of the hearing;
    (h) Hold conferences for the settlement or simplification of the 
issues by consent of the parties;
    (i) Dispose of procedural requests or similar matters, as provided 
for in Sec. 0.341 of this chapter;
    (j) Take actions and make decisions in conformity with the 
Administrative Procedure Act;
    (k) Act on motions to enlarge, modify or delete the hearing issues; 
and
    (l) Act on motions to proceed in forma pauperis pursuant to Sec. 
1.224.

(5 U.S.C. 556)

[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 53022, Dec. 3, 1976]



Sec. 1.244  Designation of a settlement judge.

    (a) In broadcast comparative cases involving applicants for only new 
facilities, the applicants may request the appointment of a settlement 
judge to facilitate the resolution of the case by settlement.
    (b) Where all applicants in the case agree that such procedures may 
be beneficial, such requests may be filed with the presiding judge no 
later than 15 days prior to the date scheduled by the presiding judge 
for the commencement of hearings. The presiding judge shall

[[Page 145]]

suspend the procedural dates in the case and forward the request to the 
Chief Administrative Law Judge for action.
    (c) If, in the discretion of the Chief Administrative Law Judge, it 
appears that the appointment of a settlement judge will facilitate the 
settlement of the case, the Chief Judge will appoint a ``neutral'' as 
defined in 5 U.S.C. 581 and 583(a) to act as the settlement judge.
    (1) The parties may request the appointment of a settlement judge of 
their own choosing so long as that person is a ``neutral'' as defined in 
5 U.S.C. 581.
    (2) The appointment of a settlement judge in a particular case is 
subject to the approval of all the applicants in the proceeding. See 5 
U.S.C. 583(b).
    (3) The Commission's Administrative Law Judges are eligible to act 
as settlement judges, except that an Administrative Law Judge will not 
be appointed as a settlement judge in any case in which the 
Administrative Law Judge also acts as the presiding officer.
    (4) Other members of the Commission's staff who qualify as neutrals 
may be appointed as settlement judges, except that staff members whose 
duties include drafting, review, and/or recommendations in adjudicatory 
matters pending before the Commission shall not be appointed as 
settlement judges.
    (d) The settlement judge shall have the authority to require 
applicants to submit their Standardized Integration Statements and/or 
their written direct cases for review. The settlement judge may also 
meet with the applicants and/or their counsel, individually and/or at 
joint conferences, to discuss their cases and the cases of their 
competitors. All such meetings will be off-the-record, and the 
settlement judge may express an opinion as to the relative comparative 
standing of the applicants and recommend possible means to resolve the 
proceeding by settlement. The proceedings before the settlement judge 
shall be subject to the confidentiality provisions of 5 U.S.C. 574. 
Moreover, no statements, offers of settlement, representations or 
concessions of the parties or opinions expressed by the settlement judge 
will be admissible as evidence in any Commission licensing proceeding.

[56 FR 793, Jan. 9, 1991, as amended at 62 FR 4171, Jan. 29, 1997]



Sec. 1.245  Disqualification of presiding officer.

    (a) In the event that a presiding officer deems himself disqualified 
and desires to withdraw from the case, he shall notify the Commission of 
his withdrawal at least 7 days prior to the date set for hearing.
    (b) Any party may request the presiding officer to withdraw on the 
grounds of personal bias or other disqualification.
    (1) The person seeking disqualification shall file with the 
presiding officer an affidavit setting forth in detail the facts alleged 
to constitute grounds for disqualification. Such affidavit shall be 
filed not later than 5 days before the commencement of the hearing 
unless, for good cause shown, additional time is necessary.
    (2) The presiding officer may file a response to the affidavit; and 
if he believes himself not disqualified, shall so rule and proceed with 
the hearing.
    (3) The person seeking disqualification may appeal a ruling of 
disqualification, and, in that event, shall do so at the time the ruling 
is made. Unless an appeal of the ruling is filed at this time, the right 
to request withdrawal of the presiding officer shall be deemed waived.
    (4) If an appeal of the ruling is filed, the presiding officer shall 
certify the question, together with the affidavit and any response filed 
in connection therewith, to the Commission. The hearing shall be 
suspended pending a ruling on the question by the Commission.
    (5) The Commission may rule on the question without hearing, or it 
may require testimony or argument on the issues raised.
    (6) The affidavit, response, testimony or argument thereon, and the 
Commission's decision shall be part of the record in the case.

(5 U.S.C. 556)

[28 FR 12425, Nov. 22, 1963, as amended at 55 FR 36641, Sept. 6, 1990; 
62 FR 4171, Jan. 29, 1997]

[[Page 146]]

                          Prehearing Procedures



Sec. 1.246  Admission of facts and genuineness of documents.

    (a) Within 20 days after the time for filing a notice of appearance 
has expired; or within 20 days after the release of an order adding 
parties to the proceeding (see Sec. Sec. 1.223 and 1.227) or changing 
the issues (see Sec. 1.229); or within such shorter or longer time as 
the presiding officer may allow on motion or notice, a party may serve 
upon any other party a written request for the admission by the latter 
of the genuineness of any relevant documents identified in and exhibited 
by a clear copy with the request or of the truth of any relevant matters 
of fact set forth in the request.
    (b) Each of the matters of which an admission is requested shall be 
deemed admitted unless, within a period designated in the request, not 
less than 10 days after service thereof, or within such shorter or 
longer time as the presiding officer may allow on motion or notice, the 
party to whom the request is directed serves upon the party requesting 
the admission either: (1) A sworn statement denying specifically the 
matters of which an admission is requested or setting forth in detail 
the reasons why he cannot truthfully admit or deny those matters, or (2) 
written objections on the ground that some or all of the requested 
admissions are privileged or irrelevant or that the request is otherwise 
improper in whole or in part. If written objections to a part of the 
request are made, the remainder of the request shall be answered within 
the period designated in the request. A denial shall fairly meet the 
substance of the requested admission, and when good faith requires that 
a party deny only a part or a qualification of a matter of which an 
admission is requested, he shall specify so much of it as is true and 
deny only the remainder.
    (c) A copy of the request and of any answer shall be served by the 
party filing on all other parties to the proceeding and upon the 
presiding officer.
    (d) Written objections to the requested admissions may be ruled upon 
by the presiding officer without additional pleadings.

[33 FR 463, Jan. 12, 1968, as amended at 35 FR 17333, Nov. 11, 1970]



Sec. 1.248  Prehearing conferences; hearing conferences.

    (a) The Commission, on its own initiative or at the request of any 
party, may direct the parties or their attorneys to appear at a 
specified time and place for a conference prior to a hearing, or to 
submit suggestions in writing, for the purpose of considering, among 
other things, the matters set forth in paragraph (c) of this section. 
The initial prehearing conference shall be scheduled 30 days after the 
effective date of the order designating a case for hearing, unless good 
cause is shown for scheduling such conference at a later date.
    (b)(1) The presiding officer (or the Commission or a panel of 
commissioners in a case over which it presides), on his own initiative 
or at the request of any party, may direct the parties or their 
attorneys to appear at a specified time and place for a conference prior 
to or during the course of a hearing, or to submit suggestions in 
writing, for the purpose of considering any of the matters set forth in 
paragraph (c) of this section. The initial prehearing conference shall 
be scheduled 30 days after the effective date of the order designating a 
case for hearing, unless good cause is shown for scheduling such 
conference at a later date.
    (2) Except as circumstances otherwise require, the presiding officer 
shall allow a reasonable period prior to commencement of the hearing for 
the orderly completion of all prehearing procedures, including 
discovery, and for the submission and disposition of all prehearing 
motions. Where the circumstances so warrant, the presiding officer 
shall, promptly after the hearing is ordered, call a preliminary 
prehearing conference, to inquire into the use of available procedures 
contemplated by the parties and the time required for their completion, 
to formulate a schedule for their completion, and to set a date for 
commencement of the hearing.

[[Page 147]]

    (c) In conferences held, or in suggestions submitted, pursuant to 
paragraphs (a) and (b) of this section, the following matters, among 
others, may be considered:
    (1) The necessity or desirability of simplification, clarification, 
amplification, or limitation of the issues;
    (2) The admission of facts and of the genuineness of documents (see 
Sec. 1.246), and the possibility of stipulating with respect to facts;
    (3) The procedure at the hearing;
    (4) The limitation of the number of witnesses;
    (5) In cases arising under Title II of the Communications Act, the 
necessity or desirability of amending the pleadings and offers of 
settlement or proposals of adjustment; and
    (6) In cases involving comparative broadcast applications:
    (i) Narrowing the issues or the areas of inquiry and proof at the 
hearing;
    (ii) [Reserved]
    (iii) Reports and letters relating to surveys or contacts;
    (iv) Assumptions regarding the availability of equipment;
    (v) Network programming;
    (vi) Assumptions regarding the availability of networks proposed;
    (vii) Offers of letters in general;
    (viii) The method of handling evidence relating to the past 
cooperation of existing stations owned and/or operated by the applicants 
with organizations in the area;
    (ix) Proof of contracts, agreements, or understandings reduced to 
writing;
    (x) Stipulations;
    (xi) Need for depositions;
    (xii) The numbering of exhibits;
    (xiii) The order or offer of proof with relationship to docket 
number;
    (xiv) The date for the formal hearing; and
    (xv) Such other matters as may expedite the conduct of the hearing.
    (7) In proceedings in which consent agreements may be negotiated 
(see Sec. 1.93), the parties shall be prepared to state at the initial 
prehearing conference whether they are at that time willing to enter 
negotiations leading to a consent agreement.
    (d) This paragraph applies to broadcast proceedings only.
    (1) At the prehearing conference prescribed by this section, the 
parties to the proceeding shall be prepared to discuss the advisability 
of reducing any or all phases of their affirmative direct cases to 
written form.
    (2) In hearings involving applications for new, improved and changed 
facilities and in comparative hearings involving only applications for 
new facilities, where it appears that it will contribute significantly 
to the disposition of the proceeding for the parties to submit all or 
any portion of their affirmative direct cases in writing, the presiding 
officer may, in his discretion, require them to do so.
    (3) In other broadcast proceedings, where it appears that it will 
contribute significantly to the disposition of the proceeding for the 
parties to submit all or any portion of their affirmative direct cases 
in writing, it is the policy of the Commission to encourage them to do 
so. However, the phase or phases of the proceeding to be submitted in 
writing, the dates for the exchange of the written material, and other 
limitations upon the effect of adopting the written case procedure (such 
as whether material ruled out as incompetent may be restored by other 
competent testimony) is to be left to agreement of the parties as 
approved by the presiding officer.
    (4) In broadcast comparative cases involving applicants for only new 
facilities, oral testimony and cross examination will be permitted only 
where, in the discretion of the presiding judge, material issues of 
decisional fact cannot be resolved without oral evidentiary hearing 
procedures or the public interest otherwise requires oral evidentiary 
proceedings.
    (e) An official transcript of all conferences shall be made.
    (f) The presiding officer may, upon the written request of a party 
or parties, approve the use of a speakerphone as a means of attendance 
at a prehearing conference if such use is found to conduce to the proper 
dispatch of business and the ends of justice.

[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 463, Jan. 12, 1968; 36 
FR 14133, July 30, 1971; 37 FR 7507, Apr. 15, 1972; 41 FR 14873, Apr. 8, 
1976; 43 FR 33251, July 31, 1978; 56 FR 793, Jan. 9, 1991]

[[Page 148]]



Sec. 1.249  Prehearing statement.

    Immediately upon convening the formal hearing in any proceeding, the 
presiding officer shall enter upon the record a statement reciting all 
actions taken at the prehearing conferences, and incorporating into the 
record all of the stipulations and agreements of the parties which are 
approved by him, and any special rules which he may deem necessary to 
govern the course of the proceeding.

[28 FR 12425, Nov. 22, 1963. Redesignated at 33 FR 463, Jan. 12, 1968]

                    Hearing and Intermediate Decision



Sec. 1.250  Discovery and preservation of evidence; cross-reference.

    For provisions relating to prehearing discovery and preservation of 
admissible evidence, see Sec. Sec. 1.311 through 1.325.

[33 FR 463, Jan. 12, 1968]



Sec. 1.251  Summary decision.

    (a)(1) Any party to an adjudicatory proceeding may move for summary 
decision of all or any of the issues set for hearing. The motion shall 
be filed at least 20 days prior to the date set for commencement of the 
hearing. The party filing the motion may not rest upon mere allegations 
or denials but must show, by affidavit or by other materials subject to 
consideration by the presiding officer, that there is no genuine issue 
of material fact for determination at the hearing.
    (2) With the permission of the presiding officer, or upon his 
invitation, a motion for summary decision may be filed at any time 
before or after the commencement of the hearing. No appeal from an order 
granting or denying a request for permission to file a motion for 
summary decision shall be allowed. If the presiding officer authorizes a 
motion for summary decision after the commencement of the hearing, 
proposed findings of fact and conclusions of law on those issues which 
the moving party believes can be resolved shall be attached to the 
motion, and any other party may file findings of fact and conclusions of 
law as an attachment to pleadings filed by him pursuant to paragraph (b) 
of this section.
    (b) Within 14 days after a motion for summary decision is filed, any 
other party to the proceeding may file an opposition or a countermotion 
for summary decision. A party opposing the motion may not rest upon mere 
allegations or denials but must show, by affidavit or by other materials 
subject to consideration by the presiding officer, that there is a 
genuine issue of material fact for determination at the hearing, that he 
cannot, for good cause, present by affidavit or otherwise facts 
essential to justify his opposition, or that summary decision is 
otherwise inappropriate.
    (c) Affidavits shall be made on personal knowledge, shall set forth 
such facts as would be admissible in evidence, and shall show 
affirmatively that the affiant is competent to testify to the matters 
stated therein.
    (d) The presiding officer may, in his discretion, set the matter for 
argument and call for the submission of proposed findings, conclusions, 
briefs or memoranda of law. The presiding officer, giving appropriate 
weight to the nature of the proceeding, the issue or issues, the proof, 
and to the need for cross-examination, may grant a motion for summary 
decision to the extent that the pleadings, affidavits, materials 
obtained by discovery or otherwise, admissions, or matters officially 
noticed, show that there is no genuine issue as to any material fact and 
that a party is otherwise entitled to summary decision. If it appears 
from the affidavits of a party opposing the motion that he cannot, for 
good cause shown, present by affidavit or otherwise facts essential to 
justify his opposition, the presiding officer may deny the motion, may 
order a continuance to permit affidavits to be obtained or discovery to 
be had, or make such other order as is just.
    (e) If all of the issues (or a dispositive issue) are determined on 
a motion for summary decision no hearing (or further hearing) will be 
held. The presiding officer will issue a Summary Decision, which is 
subject to appeal or review in the same manner as an Initial Decision. 
See Sec. Sec. 1.271 through 1.282. If some of the issues only 
(including no dispositive issue) are decided on a motion for summary 
decision, or if the

[[Page 149]]

motion is denied, the presiding officer will issue a memorandum opinion 
and order, interlocutory in character, and the hearing will proceed on 
the remaining issues. Appeal from interlocutory rulings is governed by 
Sec. 1.301.
    (f) The presiding officer may take any action deemed necessary to 
assure that summary decision procedures are not abused. He may rule in 
advance of a motion that the proceeding is not appropriate for summary 
decision, and may take such other measures as are necessary to prevent 
any unwarranted delay.
    (1) Should it appear to the satisfaction of the presiding officer 
that a motion for summary decision has been presented in bad faith or 
solely for the purpose of delay, or that such a motion is patently 
frivolous, he will enter a determination to that effect upon the record.
    (2) If, on making such determination, the presiding officer 
concludes that the facts warrant disciplinary action against an 
attorney, he will certify the matter to the Commission with his findings 
and recommendations, for consideration under Sec. 1.24.
    (3) If, on making such determination, the presiding officer 
concludes that the facts warrant a finding of bad faith on the part of a 
party to the proceeding, he will certify the matter to the Commission, 
with his findings and recommendations, for a determination as to whether 
the facts warrant addition of an issue as to the character 
qualifications of that party.

[37 FR 7507, Apr. 15, 1972, as amended at 42 FR 56508, Oct. 26, 1977]



Sec. 1.253  Time and place of hearing.

    (a) The Commission will specify the day on which and the place at 
which any hearing is to commence.
    (b) The presiding officer will specify the days on which subsequent 
hearing sessions are to be held.
    (c) If the Commission specifies that a hearing is to commence in the 
District of Columbia, it shall be moved therefrom only by order of the 
Commission.
    (d) If the Commission specifies that a hearing is to commence at a 
field location, all appropriate proceedings will be completed at such 
location before the hearing is moved therefrom. When such proceedings 
are completed, the presiding officer may move the hearing from the field 
location specified to another appropriate field location or to the 
District of Columbia.



Sec. 1.254  Nature of the hearing; burden of proof.

    Any hearing upon an application shall be a full hearing in which the 
applicant and all other parties in interest shall be permitted to 
participate but in which both the burden of proceeding with the 
introduction of evidence upon any issue specified by the Commission, as 
well as the burden of proof upon all such issues, shall be upon the 
applicant except as otherwise provided in the order of designation.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)



Sec. 1.255  Order of procedure.

    (a) At hearings on a formal complaint or petition or in a proceeding 
for any instrument of authorization which the Commission is empowered to 
issue, the complainant, petitioner, or applicant, as the case may be, 
shall, unless the Commission otherwise orders, open and close. At 
hearings on protests, the protestant opens and closes the proceedings in 
case the issues are not specifically adopted by the Commission; 
otherwise the grantee does so. At hearings on orders to show cause, to 
cease and desist, to revoke or modify a station license under sections 
312 and 316 of the Communications Act, or other like proceedings 
instituted by the Commission, the Commission shall open and close.
    (b) At all hearings under Title II of the Communications Act, other 
than hearings on formal complaints, petitions, or applications, the 
respondent shall open and close unless otherwise specified by the 
Commission.
    (c) In all other cases, the Commission or presiding officer shall 
designate the order of presentation. Intervenors shall follow the party 
in whose behalf intervention is made, and in all cases where the 
intervention is not in support of an

[[Page 150]]

original party, the Commission or presiding officer shall designate at 
what stage such intervenors shall be heard.

[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 463, Jan. 12, 1968]



Sec. 1.258  Closing of the hearing.

    The record of hearing shall be closed by an announcement to that 
effect at the hearing by the presiding officer when the taking of 
testimony has been concluded. In the discretion of the presiding 
officer, the record may be closed as of a future specified date in order 
to permit the admission into the record of exhibits to be prepared: 
Provided, The parties to the proceeding stipulate on the record that 
they waive the opportunity to cross-examine or present evidence with 
respect to such exhibits. The record in any hearing which has been 
adjourned may not be closed by such officer prior to the day on which 
the hearing is to resume, except upon 10 days' notice to all parties to 
the proceeding.



Sec. 1.260  Certification of transcript.

    After the close of the hearing, the complete transcript of 
testimony, together with all exhibits, shall be certified as to identity 
by the presiding officer and filed in the office of the Secretary of the 
Commission. Notice of such certification shall be served on all parties 
to the proceedings.



Sec. 1.261  Corrections to transcript.

    At any time during the course of the proceeding, or as directed by 
the presiding officer, but not later than 10 days after the date of 
notice of certification of the transcript, any party to the proceeding 
may file with the presiding officer a motion requesting the correction 
of the transcript, which motion shall be accompanied by proof of service 
thereof upon all other parties to the proceeding. Within 5 days after 
the filing of such a motion, other parties may file a pleading in 
support of or in opposition to such motion. Thereafter, the presiding 
officer shall, by order, specify the corrections to be made in the 
transcript, and a copy of the order shall be served upon all parties and 
made a part of the record. The presiding officer, on his own initiative, 
may specify corrections to be made in the transcript on 5 days' notice.

[40 FR 51441, Nov. 5, 1975]



Sec. 1.263  Proposed findings and conclusions.

    (a) Each party to the proceeding may file proposed findings of fact 
and conclusions, briefs, or memoranda of law: Provided, however, That 
the presiding officer may direct any party other than Commission counsel 
to file proposed findings of fact and conclusions, briefs, or memoranda 
of law. Such proposed findings of fact, conclusions, briefs, and 
memoranda of law shall be filed within 20 days after the record is 
closed, unless additional time is allowed.
    (b) All pleadings and other papers filed pursuant to this section 
shall be accompanied by proof of service thereof upon all other counsel 
in the proceeding; if a party is not represented by counsel, proof of 
service upon such party shall be made.
    (c) In the absence of a showing of good cause therefor, the failure 
to file proposed findings of fact, conclusions, briefs, or memoranda of 
law, when directed to do so, may be deemed a waiver of the right to 
participate further in the proceeding.

(5 U.S.C. 557)



Sec. 1.264  Contents of findings of fact and conclusions.

    Proposed findings of fact shall be set forth in serially numbered 
paragraphs and shall set out in detail and with particularity all basic 
evidentiary facts developed on the record (with appropriate citations to 
the transcript of record or exhibit relied on for each evidentiary fact) 
supporting the conclusions proposed by the party filing same. Proposed 
conclusions shall be separately stated. Proposed findings of fact and 
conclusions submitted by a person other than an applicant may be limited 
to those issues in connection with the hearing which affect the 
interests of such person.

(5 U.S.C. 557)



Sec. 1.267  Initial and recommended decisions.

    (a) Except as provided in this paragraph, in Sec. Sec. 1.94, 1.251 
and 1.274, or

[[Page 151]]

where the proceeding is terminated on motion (see Sec. 1.302), the 
presiding officer shall prepare an initial (or recommended) decision, 
which shall be transmitted to the Secretary of the Commission. In the 
case of rate making proceedings conducted under sections 201-205 of the 
Communications Act, the presumption shall be that the presiding officer 
shall prepare an initial or recommended decision. The Secretary will 
make the decision public immediately and file it in the docket of the 
case.
    (b) Each initial and recommended decision shall contain findings of 
fact and conclusions, as well as the reasons or basis therefor, upon all 
the material issues of fact, law, or discretion presented on the record; 
each initial decision shall also contain the appropriate rule or order, 
and the sanction, relief or denial thereof; and each recommended 
decision shall contain recommendations as to what disposition of the 
case should be made by the Commission. Each initial decision will show 
the date upon which it will become effective in accordance with the 
rules in this part in the absence of exceptions, appeal, or review.
    (c) The authority of the Presiding Officer over the proceedings 
shall cease when he has filed his Initial or Recommended Decision, or if 
it is a case in which he is to file no decision, when he has certified 
the case for decision: Provided, however, That he shall retain limited 
jurisdiction over the proceeding for the purpose of effecting 
certification of the transcript and corrections to the transcript, as 
provided in Sec. Sec. 1.260 and 1.261, respectively, and for the 
purpose of ruling initially on applications for awards of fees and 
expenses under the Equal Access to Justice Act.

(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409, 5 U.S.C. 557; secs. 
4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083: 47 U.S.C. 154, 303, 
307)

[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976; 47 
FR 3786, Jan. 27, 1982]

                           Review Proceedings



Sec. 1.271  Delegation of review function.

    The Commission may direct, by order or rule, that its review 
function in a case or category of cases be performed by a commissioner, 
or a panel of commissioners, in which event the commissioner or panel 
shall exercise the authority and perform the functions which would 
otherwise have been performed by the Commission under Sec. Sec. 1.273 
through 1.282.

    Note: To provide for an orderly completion of cases, exceptions and 
related pleadings filed after March 1, 1996, shall be directed to the 
Commission and will not be acted upon by the Review Board.

[62 FR 4171, Jan. 29, 1997]



Sec. 1.273  Waiver of initial or recommended decision.

    At the conclusion of the hearing or within 20 days thereafter, all 
parties to the proceeding may agree to waive an initial or recommended 
decision, and may request that the Commission issue a final decision or 
order in the case. If the Commission has directed that its review 
function in the case be performed by a commissioner, a panel of 
commissioners, the request shall be directed to the appropriate review 
authority. The Commission or such review authority may in its discretion 
grant the request, in whole or in part, if such action will best conduce 
to the proper dispatch of business and to the ends of justice.

[28 FR 12425, Nov. 22, 1963, as amended at 62 FR 4171, Jan. 29, 1997]



Sec. 1.274  Certification of the record to the Commission for initial or 
final decision.

    (a) Where the presiding officer is available to the Commission, and 
where the Commission finds upon the record that due and timely execution 
of its functions imperatively and unavoidably so requires, the 
Commission may direct that the record in a pending proceeding be 
certified to it for initial or final decision. Unless the Commission 
finds that due and timely execution of its functions imperatively and 
unavoidably requires that no recommended decision be issued, the 
presiding officer will prepare and file a recommended decision, which 
will be released with the Commission's initial or final decision.
    (b) Where the presiding officer becomes unavailable to the 
Commission

[[Page 152]]

after the taking of testimony has been concluded, the Commission may 
direct that the record in a pending proceeding be certified to it for 
initial or final decision. In that event, the record shall be certified 
to the Commission by the Chief Administrative Law Judge.
    (c)(1) Where the presiding officer becomes unavailable to the 
Commission after the taking of evidence has commenced but before it has 
been concluded, the Commission may order a rehearing before another 
presiding officer designated in accordance with Sec. 1.241.
    (2) Upon a finding that due and timely execution of its functions 
imperatively and unavoidably so requires, the Commission may (as an 
alternative) order that the hearing be continued by another presiding 
officer designated in accordance with Sec. 1.241 or by the Commission 
itself. In that event, the officer continuing the hearing shall, upon 
completion of the hearing, certify the proceeding to the Commission for 
an initial or final decision. Unless the Commission finds upon the 
record that due and timely execution of its functions imperatively and 
unavoidably requires that no recommended decision be issued, the officer 
continuing the hearing shall prepare and file a recommended decision to 
be released with the Commission's initial or final decision. If all the 
parties expressly consent, and if the Commission does not order 
otherwise, the officer continuing the hearing may prepare an initial 
decision.

(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)



Sec. 1.276  Appeal and review of initial decision.

    (a)(1) Within 30 days after the date on which public release of the 
full text of an initial decision is made, or such other time as the 
Commission may specify, any of the parties may appeal to the Commission 
by filing exceptions to the initial decision, and such decision shall 
not become effective and shall then be reviewed by the Commission, 
whether or not such exceptions may thereafter be withdrawn. It is the 
Commission's policy that extensions of time for filing exceptions shall 
not be routinely granted.
    (2) Exceptions shall be consolidated with the argument in a 
supporting brief and shall not be submitted separately. As used in this 
subpart, the term exceptions means the document consolidating the 
exceptions and supporting brief. The brief shall contain (i) a table of 
contents, (ii) a table of citations, (iii) a concise statement of the 
case, (iv) a statement of the questions of law presented, and (v) the 
argument, presenting clearly the points of fact and law relied upon in 
support of the position taken on each question, with specific reference 
to the record and all legal or other materials relied on.
    (b) The Commission may on its own initiative provide, by order 
adopted not later than 20 days after the time for filing exceptions 
expires, that an initial decision shall not become final, and that it 
shall be further reviewed or considered by the Commission.
    (c) In any case in which an initial decision is subject to review in 
accordance with paragraph (a) or (b) of this section, the Commission 
may, on its own initiative or upon appropriate requests by a party, take 
any one or more of the following actions:
    (1) Hear oral argument on the exceptions;
    (2) Require the filing of briefs;
    (3) Prior to or after oral argument or the filing of exceptions or 
briefs, reopen the record and/or remand the proceedings to the presiding 
officer to take further testimony or evidence;
    (4) Prior to or after oral argument or the filing of exceptions or 
briefs, remand the proceedings to the presiding officer to make further 
findings or conclusions; and
    (5) Prior to or after oral argument or the filing of exceptions or 
briefs, issue, or cause to be issued by the presiding officer, a 
supplemental initial decision.
    (d) No initial decision shall become effective before 50 days after 
public release of the full text thereof is made unless otherwise ordered 
by the Commission. The timely filing of exceptions, the further review 
or consideration of an initial decision on the Commission's initiative, 
or the taking of action by the Commission under paragraph (c) of this 
section shall stay the effectiveness of the initial decision until the 
Commission's review thereof

[[Page 153]]

has been completed. If the effective date of an initial decision falls 
within any further time allowed for the filing of exceptions, it shall 
be postponed automatically until 30 days after time for filing 
exceptions has expired.
    (e) If no exceptions are filed, and the Commission has not ordered 
the review of an initial decision on its initiative, or has not taken 
action under paragraph (c) of this section, the initial decision shall 
become effective, an appropriate notation to that effect shall be 
entered in the docket of the case, and a ``Public Notice'' thereof shall 
be given by the Commission. The provisions of Sec. 1.108 shall not 
apply to such public notices.
    (f) When any party fails to file exceptions within the specified 
time to an initial decision which proposes to deny its application, such 
party shall be deemed to have no interest in further prosecution of its 
application, and its application may be dismissed with prejudice for 
failure to prosecute.

(Sec. 40, 48 Stat. 1096, as amended; 47 U.S.C. 409)

[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976]



Sec. 1.277  Exceptions; oral arguments.

    (a) The consolidated supporting brief and exceptions to the initial 
decision (see Sec. 1.276(a)(2)), including rulings upon motions or 
objections, shall point out with particularity alleged material errors 
in the decision or ruling and shall contain specific references to the 
page or pages of the transcript of hearing, exhibit or order if any on 
which the exception is based. Any objection not saved by exception filed 
pursuant to this section is waived.
    (b) Within the period of time allowed in Sec. 1.276(a) for the 
filing of exceptions, any party may file a brief in support of an 
initial decision, in whole or in part, which may contain exceptions and 
which shall be similar in form to the brief in support of exceptions 
(see Sec. 1.276(a)(2)).
    (c) Except by special permission, the consolidated brief and 
exceptions will not be accepted if the exceptions and argument exceed 25 
double-spaced typewritten pages in length. (The table of contents and 
table of citations are not counted in the 25 page limit; however, all 
other contents of and attachments to the brief are counted.) Within 10 
days, or such other time as the Commission or delegated authority may 
specify, after the time for filing exceptions has expired, any other 
party may file a reply brief, which shall not exceed 25 double spaced 
typewritten pages and shall contain a table of contents and a table of 
citations. If exceptions have been filed, any party may request oral 
argument not later than five days after the time for filing replies to 
the exceptions has expired. The Commission or delegated authority, in 
its discretion, will grant oral argument by order only in cases where 
such oral presentations will assist in the resolution of the issues 
presented. Within five days after release of an order designating an 
initial decision for oral argument, as provided in paragraph (d) of this 
section, any party who wishes to participate in oral argument shall file 
a written notice of intention to appear and participate in oral 
argument. Failure to file a written notice shall constitute a waiver of 
the opportunity to participate.
    (d) Each order scheduling a case for oral argument will contain the 
allotment of time for each party for oral argument before the 
Commission. The Commission will grant, in its discretion, upon good 
cause shown, an extension of such time upon petition by a party, which 
petition must be filed within 5 days after issuance of said order for 
oral argument.
    (e) Within 10 days after a transcript of oral argument has been 
filed in the office of the Secretary of the Commission, any party who 
participated in the oral argument may file with the Commission a motion 
requesting correction of the transcript, which motion shall be 
accompanied by proof of service thereof upon all other parties who 
participated in the oral argument. Within 5 days after the filing of 
such a motion, other parties may file a pleading in support of or in 
opposition to such motion. Thereafter, the officer who presided at the 
oral argument shall, by order, specify the corrections to be made in the 
transcript, and a copy of the order shall be served upon all parties to 
the proceeding. The officer who presided at the oral argument may, on

[[Page 154]]

his own initiative, by order, specify corrections to be made in the 
transcript on 5 days notice of the proposed corrections to all parties 
who participated in the oral argument.
    (f) Any commissioner who is not present at oral argument and who is 
otherwise authorized to participate in a final decision may participate 
in making that decision after reading the transcript of oral argument.

(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)

[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976; 41 
FR 34259, Aug. 13, 1976; 44 FR 12426, Mar. 7, 1979; 56 FR 793, Jan. 9, 
1991; 62 FR 4171, Jan. 29, 1997]



Sec. 1.279  Limitation of matters to be reviewed.

    Upon review of any initial decision, the Commission may, in its 
discretion, limit the issues to be reviewed to those findings and 
conclusions to which exceptions have been filed, or to those findings 
and conclusions specified in the Commission's order of review issued 
pursuant to Sec. 1.276(b).



Sec. 1.282  Final decision of the Commission.

    (a) After opportunity has been afforded for the filing of proposed 
findings of fact and conclusions, exceptions, supporting statements, 
briefs, and for the holding of oral argument as provided in this 
subpart, the Commission will issue a final decision in each case in 
which an initial decision has not become final.
    (b) The final decision shall contain:
    (1) Findings of fact and conclusions, as well as the reasons or 
basis therefor, upon all the material issues of fact, law or discretion 
presented on the record;
    (2) Rulings on each relevant and material exception filed; the 
Commission will deny irrelevant exceptions, or those which are not of 
decisional significance, without a specific statement of reasons 
prescribed by paragraph (b)(1) of this section; and
    (3) The appropriate rule or oder and the sanction, relief or denial 
thereof.

(Sec. 8(b), 60 Stat. 2422; 5 U.S.C. 1007(b))

[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976]

              Interlocutory Actions in Hearing Proceedings



Sec. 1.291  General provisions.

    (a)(1) The Commission acts on petitions to amend, modify, enlarge or 
delete the issues in hearing proceedings which involve rule making 
matters exclusively. It also acts on interlocutory pleadings filed in 
matters or proceedings which are before the Commission.
    (2) The Chief Administrative Law Judge acts on those interlocutory 
matters listed in Sec. 0.351 of this chapter.
    (3) All other interlocutory matters in hearing proceedings are acted 
on by the presiding officer. See Sec. Sec. 0.218 and 0.341 of this 
chapter.
    (4) Each interlocutory pleading shall indicate in its caption 
whether the pleading is to be acted upon by the Commission, the Chief 
Administrative Law Judge, or the presiding officer. If the pleading is 
to be acted upon by the presiding officer, he shall be identified by 
name.
    (b) All interlocutory pleadings shall be submitted in accordance 
with the provisions of Sec. Sec. 1.4, 1.44, 1.47, 1.48, 1.49, and 1.52.
    (c)(1) Procedural rules governing interlocutory pleadings are set 
forth in Sec. Sec. 1.294-1.298.
    (2) Rules governing appeal from, and reconsideration of, 
interlocutory rulings made by the presiding officer are set forth in 
Sec. Sec. 1.301 and 1.303.
    (3) Rules governing the review of interlocutory rulings made by the 
Chief Administrative Law Judge are set forth in Sec. Sec. 1.101, 
1.102(b), 1.115, and 1.117. Petitions requesting reconsideration of an 
interlocutory ruling made by the Commission, or the Chief Administrative 
Law Judge will not be entertained. See, however, Sec. 1.113.
    (d) No initial decision shall become effective under Sec. 1.276(e) 
until all interlocutory matters pending before the Commission in the 
proceeding at the time the initial decision is issued have been disposed 
of and the time allowed

[[Page 155]]

for appeal from interlocutory rulings of the presiding officer has 
expired.

(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as 
amended; 47 CFR 0.61 and 0.283)

[29 FR 6443, May 16, 1964, as amended at 29 FR 12773, Sept. 10, 1964; 37 
FR 19372, Sept. 20, 1972; 41 FR 14873, Apr. 8, 1976; 49 FR 4381, Feb. 6, 
1984; 62 FR 4171, Jan. 29, 1997]



Sec. 1.294  Oppositions and replies.

    (a) Any party to a hearing may file an opposition to an 
interlocutory request filed in that proceeding.
    (b) Except as provided in paragraph (c) of this section, oppositions 
shall be filed within 4 days after the original pleading is filed, and 
replies to oppositions will not be entertained. See, however, Sec. 
1.732.
    (c) Oppositions to pleadings in the following categories shall be 
filed within 10 days after the pleading is filed. Replies to such 
oppositions shall be filed within 5 days after the opposition is filed, 
and shall be limited to matters raised in the opposition.
    (1) Petitions to amend, modify, enlarge, or delete the issues upon 
which the hearing was ordered.
    (2) [Reserved]
    (3) Petitions by adverse parties requesting dismissal of an 
application.
    (4) Joint requests for approval of agreements filed pursuant to 
Sec. 1.525.
    (d) Additional pleadings may be filed only if specifically requested 
or authorized by the person(s) who is to make the ruling.

[29 FR 6444, May 16, 1964, as amended at 39 FR 10909, Mar. 22, 1974]



Sec. 1.296  Service.

    No pleading filed pursuant to Sec. 1.51 or Sec. 1.294 will be 
considered unless it is accompanied by proof of service upon the parties 
to the proceeding.

(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as 
amended; 47 CFR 0.61 and 0.283)

[49 FR 4381, Feb. 6, 1984, as amended at 62 FR 4171, Jan. 29, 1997]



Sec. 1.297  Oral argument.

    Oral argument with respect to any contested interlocutory matter 
will be held when, in the opinion of the person(s) who is to make the 
ruling, the ends of justice will be best served thereby. Timely notice 
will be given of the date, time, and place of any such oral argument.

[29 FR 6444, May 16, 1964]



Sec. 1.298  Rulings; time for action.

    (a) Unless it is found that irreparable injury would thereby be 
caused one of the parties, or that the public interest requires 
otherwise, or unless all parties have consented to the contrary, 
consideration of interlocutory requests will be withheld until the time 
for filing oppositions (and replies, if replies are allowed) has 
expired. As a matter of discretion, however, requests for continuances 
and extensions of time, requests for permission to file pleadings in 
excess of the length prescribed in this chapter, and requests for 
temporary relief may be ruled upon ex parte without waiting for the 
filing of responsive pleadings.
    (b) In the discretion of the presiding officer, rulings on 
interlocutory matters may be made orally at the hearing. The presiding 
officer may, in his discretion, state his reasons on the record or 
subsequently issue a written statement of the reasons for his ruling, 
either separately or as part of the initial decision.

[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 6444, May 16, 1964; 41 
FR 14874, Apr. 8, 1976]

        Appeal and Reconsideration of Presiding Officer's Ruling



Sec. 1.301  Appeal from presiding officer's interlocutory ruling; effective 
date of ruling.

    (a) Interlocutory rulings which are appealable as a matter of right. 
Rulings listed in this paragraph are appealable as a matter of right. An 
appeal from such a ruling may not be deferred and raised as an exception 
to the initial decision.
    (1) If the presiding officer's ruling denies or terminates the right 
of any person to participate as a party to a hearing proceeding, such 
person, as a matter of right, may file an appeal from that ruling.
    (2) If the presiding officer's ruling requires testimony or the 
production of documents, over objection based on a

[[Page 156]]

claim of privilege, the ruling on the claim of privilege is appealable 
as a matter of right.
    (3) If the presiding officer's ruling denies a motion to disqualify 
the presiding judge, the ruling is appealable as a matter of right.
    (4) Rulings granting a joint request filed under Sec. 1.525 without 
terminating the proceeding are appealable by any party as a matter of 
right.
    (5) A ruling removing counsel from the hearing is appealable as a 
matter of right, by counsel on his own behalf or by his client. (In the 
event of such ruling, the presiding officer will adjourn the hearing for 
such period as is reasonably necessary for the client to secure new 
counsel and for counsel to familiarize himself with the case).
    (b) Other interlocutory rulings. Except as provided in paragraph (a) 
of this section, appeals from interlocutory rulings of the presiding 
officer shall be filed only if allowed by the presiding officer. Any 
party desiring to file an appeal shall first file a request for 
permission to file appeal. The request shall be filed within 5 days 
after the order is released or (if no written order) after the ruling is 
made. Pleadings responsive to the request shall be filed only if they 
are requested by the presiding officer. The request shall contain a 
showing that the appeal presents a new or novel question of law or 
policy and that the ruling is such that error would be likely to require 
remand should the appeal be deferred and raised as an exception. The 
presiding officer shall determine whether the showing is such as to 
justify an interlocutory appeal and, in accordance with his 
determination, will either allow or disallow the appeal or modify the 
ruling. If the presiding officer allows or disallows the appeal, his 
ruling is final: Provided, however, That the Commission may, on its own 
motion, dismiss an appeal allowed by the presiding officer on the ground 
that objection to the ruling should be deferred and raised as an 
exception. In the discretion of the presiding officer, the request for 
permission to file appeal may be made orally, on the record of the 
proceeding. The request may be disposed of orally.
    (1) If an appeal is not allowed, or is dismissed by the Commission, 
or if permission to file an appeal is not requested, objection to the 
ruling may be raised on review of the initial decision.
    (2) If an appeal is allowed and is considered on its merits, the 
disposition on appeal is final. Objection to the ruling or to the action 
on appeal may not be raised on review of the initial decision.
    (3) If the presiding officer modifies the ruling, any party 
adversely affected by the modified ruling may file a request for 
permission to file appeal, pursuant to the provisions of this paragraph.
    (c) Procedures, effective date. (1) Unless the presiding officer 
orders otherwise, rulings made by him shall be effective when the order 
is released or (if no written order) when the ruling is made. The 
Commission may stay the effect of any ruling which comes before it for 
consideration on appeal.
    (2) Appeals filed under paragraph (a) of this section shall be filed 
within 5 days after the order is released or (if no written order) after 
the ruling is made. Appeals filed under paragraph (b) of this section 
shall be filed within 5 days after the appeal is allowed.
    (3) The appeal shall conform with the specifications set out in 
Sec. 1.49 and shall be subscribed and verified as provided in Sec. 
1.52.
    (4) The appeal shall be served on parties to the proceeding (see 
Sec. Sec. 1.47 and 1.211), and shall be filed with the Secretary, 
Federal Communications Commission, Washington, D.C. 20554.
    (5) The appeal shall not exceed 5 double-spaced typewritten pages.
    (6) Appeals are acted on by the Commission.
    (7) Oppositions and replies shall be served and filed in the same 
manner as appeals and shall be served on appellant if he is not a party 
to the proceeding. Oppositions shall be filed within 5 days after the 
appeal is filed. Replies shall not be permitted, unless the Commission 
specifically requests them. Oppositions shall not exceed 5

[[Page 157]]

double-spaced typewritten pages. Replies shall not exceed 5 double-
spaced typewritten pages.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[35 FR 17333, Nov. 11, 1970, as amended at 40 FR 39509, Aug. 28, 1975; 
41 FR 14874, Apr. 8, 1976; 41 FR 28789, July 13, 1976; 46 FR 58682, Dec. 
3, 1981; 55 FR 36641, Sept. 6, 1990; 62 FR 4171, Jan. 29, 1997]



Sec. 1.302  Appeal from presiding officer's final ruling; effective date 
of ruling.

    (a) If the presiding officer's ruling terminates a hearing 
proceeding, any party to the proceeding, as a matter of right, may file 
an appeal from that ruling within 30 days after the ruling is released.
    (b) Any party who desires to preserve the right to appeal shall file 
a notice of appeal within 10 days after the ruling is released. If a 
notice of appeal is not filed within 10 days, the ruling shall be 
effective 30 days after the ruling is released and within this period, 
may be reviewed by the Commission on its own motion. If an appeal is not 
filed following notice of appeal, the ruling shall be effective 50 days 
after the day of its release and, within this period, may be reviewed by 
the Commission on its own motion. If an appeal is filed, or if the 
Commission reviews the ruling on its own motion, the effect of the 
ruling is further stayed pending the completion of proceedings on appeal 
or review.
    (c) The appeal shall conform with the specifications set out in 
Sec. 1.49 and shall be subscribed and verified as provided in Sec. 
1.52.
    (d) The appeal shall be served on parties to the proceeding (see 
Sec. Sec. 1.47 and 1.211), and shall be filed with the Secretary, 
Federal Communications Commission, Washington, D.C. 20554.
    (e) The appeal shall not exceed 25 double-spaced typewritten pages.
    (f) The Commission will act on the appeal.
    (g) Oppositions and replies shall be filed and served in the same 
manner as the appeal. Oppositions to an appeal shall be filed within 15 
days after the appeal is filed. Replies to oppositions shall be filed 
within 10 days after the opposition is filed and shall be limited to 
matters raised in the oppositions. Oppositions shall not exceed 25 
double-spaced typewritten pages. Replies shall not exceed 10 double-
spaced typewritten pages.

[35 FR 17333, Nov. 11, 1970, as amended at 36 FR 7423, Apr. 20, 1971; 62 
FR 4171, Jan. 29, 1997]

               The Discovery and Preservation of Evidence

    Authority: Sections 1.311 through 1.325 are issued under secs. 4, 
303, 409, 48 Stat., as amended, 1066, 1082, 1096; 47 U.S.C. 154, 303, 
409, 5 U.S.C. 552.



Sec. 1.311  General.

    Sections 1.311 through 1.325 provide for taking the deposition of 
any person (including a party), for interrogatories to parties, and for 
orders to parties relating to the production of documents and things and 
for entry upon real property. These procedures may be used for the 
discovery of relevant facts, for the production and preservation of 
evidence for use at the hearing, or for both purposes.
    (a) Applicability. For purposes of discovery, these proecdures may 
be used in any case of adjudication (as defined in the Administrative 
Procedure Act) which has been designated for hearing. For the 
preservation of evidence, they may be used in any case which has been 
designated for hearing and is conducted under the provisions of this 
subpart (see Sec. 1.201).
    (b) Scope of examination. Persons and parties may be examined 
regarding any matter, not privileged, which is relevant to the hearing 
issues, including the existence, description, nature, custody, condition 
and location of any books, documents, or other tangible things and the 
identity and location of persons having knowledge of relevant facts. It 
is not ground for objection to use of these procedures that the 
testimony will be inadmissible at the hearing if the testimony sought 
appears reasonably calculated to lead to the discovery of admissible 
evidence. The use of these procedures against the Commission is subject 
to the following additional limitations:
    (1) The informer's privilege shall encompass information which may 
lead

[[Page 158]]

to the disclosure of an informer's identity.
    (2) Commission personnel may not be questioned by deposition for the 
purposes of discovery except on special order of the Commission, but may 
be questioned by written interrogatories under Sec. 1.323. 
Interrogatories shall be served on the appropriate Bureau Chief (see 
Sec. 1.21(b)). They will be answered and signed by those personnel with 
knowledge of the facts. The answers will be served by the Secretary of 
the Commission upon parties to the proceeding.
    (3) Commission records are not subject to discovery under Sec. 
1.325. The inspection of Commission records is governed by the Freedom 
of Information Act, as amended, and by Sec. Sec. 0.451 through 0.467 of 
this chapter. Commission employees may be questioned by written 
interrogatories regarding the existence, nature, description, custody, 
condition and location of Commission records, but may not be questioned 
concerning their contents unless the records are available (or are made 
available) for inspection under Sec. Sec. 0.451 through 0.467. See 
Sec. 0.451(b)(5) of this chapter.
    (4) Subject to paragraphs (b) (1) through (3) of this section, 
Commission personnel may be questioned generally by written 
interrogatories regarding the existence, description, nature, custody, 
condition and location of relevant documents and things and regarding 
the identity and location of persons having knowledge of relevant facts, 
and may otherwise only be examined regarding facts of the case as to 
which they have direct personal knowledge.
    (c) Schedule for use of the procedures. (1) In comparative broadcast 
proceedings involving applicants for only new facilities, discovery 
commences with the release of the hearing designation order, and, in 
routine cases, the discovery phase of the proceeding will be conducted 
in a manner intended to conclude that portion of the case within 90 days 
of the release of the designation order.
    (2) In all other proceedings, except as provided by special order of 
the presiding officer, discovery may be initiated before or after the 
prehearing conference provided for in Sec. 1.248 of this part.
    (3) In all proceedings, the presiding officer may at any time order 
the parties or their attorneys to appear at a conference to consider the 
proper use of these procedures, the time to be allowed for such use, 
and/or to hear agrument and render a ruling on disputes that arise under 
these rules.
    (d) Who shall act. Actions provided for in Sec. Sec. 1.311 through 
1.325 will, in most cases, be taken by the officer designated to preside 
at the hearing (see Sec. 1.241). If the proceeding, or a particular 
matter to which the action relates, is before the Commission, a 
commissioner or panel of commissioners, or the Chief Administrative Law 
Judge, the action will be taken by such officer or body. The term 
presiding officer, as used in Sec. Sec. 1.311 through 1.325 shall be 
understood to refer to the appropriate officer or body. See Sec. Sec. 
0.341, 0.351, 0.365, and 1.271 of this chapter.
    (e) Stipulations regarding the taking of depositions. If all of the 
parties so stipulate in writing and if there is no interference to the 
conduct of the proceeding, depositions may be taken before any person, 
at any time (subject to the limitation below) or place, upon any notice 
and in any manner, and when so taken may be used like other depositions. 
An original and one copy of the stipulation shall be filed with the 
Secretary of the Commission, and a copy of the stipulation shall be 
served on the presiding officer, at least 3 days before the scheduled 
taking of the deposition.

[33 FR 463, Jan. 12, 1968, as amended at 40 FR 39509, Aug. 28, 1975; 47 
FR 51873, Nov. 18, 1982; 56 FR 794, Jan. 9, 1991; 62 FR 4171, Jan. 29, 
1997]



Sec. 1.313  Protective orders.

    The use of the procedures set forth in Sec. Sec. 1.311 through 
1.325 of this part is subject to control by the presiding officer, who 
may issue any order consistent with the provisions of those sections 
which is appropriate and just for the purpose of protecting parties and 
deponents or of providing for the proper conduct of the proceeding. 
Whenever doing so would be conducive to the efficient and expeditious 
conduct of the proceeding, the presiding officer may

[[Page 159]]

convene a conference to hear argument and issue a ruling on any disputes 
that may arise under these rules. The ruling, whether written or 
delivered on the record at a conference, may specify any measures, 
including the following to assure proper conduct of the proceeding or to 
protect any party or deponent from annoyance, expense, embarassment or 
oppression:
    (a) That depositions shall not be taken or that interrogatories 
shall not be answered.
    (b) That certain matters shall not be inquired into.
    (c) That the scope of the examination or interrogatories shall be 
limited to certain matters.
    (d) That depositions may be taken only at some designated time or 
place, or before an officer, other than that stated in the notice.
    (e) That depositions may be taken only by written interrogatories or 
only upon oral examination.
    (f) That, after being sealed, the deposition shall be opened only by 
order of the presiding officer.

[33 FR 463, Jan. 12, 1968, as amended at 56 FR 794, Jan. 9, 1991]



Sec. 1.315  Depositions upon oral examination--notice and preliminary 
procedure.

    (a) Notice. A party to a hearing proceeding desiring to take the 
deposition of any person upon oral examination shall give a minimum of 
21 days notice in writing to every other party, to the person to be 
examined, and to the presiding officer. An original and three copies of 
the notice shall be filed with the Secretary of the Commission. Related 
pleadings shall be served and filed in the same manner. The notice shall 
contain the following information:
    (1) The name and address of each person to be examined, if known, 
and if the name is not known, a general description sufficient to 
identify him or the particular class or group to which he belongs.
    (2) The time and place for taking the deposition of each person to 
be examined, and the name or descriptive title and address of the 
officer before whom the deposition is to be taken.
    (3) The matters upon which each person will be examined. See Sec. 
1.319.
    (b) Responsive pleadings. (1) Within 7 days after service of the 
notice to take depositions, a motion opposing the taking of depositions 
may be filed by any party to the proceeding or by the person to be 
examined. See Sec. 1.319(a).
    (2) Within 14 days after service of the notice to take depositions, 
a response to the opposition motion may be filed by any party to the 
proceeding.
    (3) Additional pleadings should not be filed and will not be 
considered.
    (4) The computation of time provisions set forth in Sec. 1.4(g) 
shall not apply to pleadings filed under the provisions of this 
paragraph.
    (c) Protective order. On an opposition motion filed under paragraph 
(b) of this section, or on his own motion, the presiding officer may 
issue a protective order. See Sec. 1.313. A protective order issued by 
the presiding officer on his own motion may be issued at any time prior 
to the date specified in the notice for the taking of depositions.
    (d) Authority to take depositions. (1) If an opposition motion is 
not filed within 7 days after service of the notice to take depositions, 
and if the presiding officer does not on his own motion issue a 
protective order prior to the time specified in the notice for the 
taking of depositions, the depositions described in the notice may be 
taken. An order for the taking of depositions is not required.
    (2) If an opposition motion is filed, the depositions described in 
the notice shall not be taken until the presiding officer has acted on 
that motion. If the presiding officer authorizes the taking of 
depositions, he may specify a time, place or officer for taking them 
different from that specified in the notice to take depositions.
    (3) If the presiding officer issues a protective order, the 
depositions described in the notice may be taken (if at all) only in 
accordance with the provisions of that order.
    (e) Broadcast comparative proceedings involving applicants for only 
new facilities. In these cases, the 21-day advance notice provision of 
paragraph (a) of this section shall be inapplicable to depositions of 
active and passive owners of applicants in the proceeding. All

[[Page 160]]

applicants in such proceedings should be prepared to make their active 
and passive owners available for depositions during the period 
commencing with the deadline for filing notices of appearance and ending 
90 days after the release of the designation order, if such depositions 
are requested by a party to the proceeding. All such depositions will be 
conducted in Washington, DC or in the community of license of the 
proposed station, at the deponent's option, unless all parties agree to 
some other location.

[33 FR 10571, July 25, 1968, as amended at 56 FR 794, Jan. 9, 1991]



Sec. 1.316  Depositions upon written interrogatories--notice and 
preliminary procedure.

    (a) Service of interrogatories; notice. A party to the hearing 
proceeding desiring to take the deposition of any person upon written 
interrogatories shall serve the interrogatories upon every other party 
and shall give a minimum of 35 days notice in writing to every other 
party and to the person to be examined. An original and three copies of 
the interrogatories and the notice (and of all related pleadings) shall 
be filed with the Secretary of the Commission. A copy of the 
interrogatories and the notice (and of all related pleadings) shall be 
served on the presiding officer. The notice shall contain the following 
information:
    (1) The name and address of each person to be examined, if known, 
and if the name is not known, a general description sufficient to 
identify him or the particular class or group to which he belongs.
    (2) The time and place for taking the deposition of each person to 
be examined, and the name or descriptive title and address of the 
officer before whom the deposition is to be taken.
    (3) The matters upon which each person will be examined. See Sec. 
1.319.
    (b) Additional interrogatories. Within 7 days after the filing and 
service of the original interrogatories, any other party to the 
proceeding may, in the same manner, file and serve additional 
interrogatories to be asked of the same witness at the same time and 
place, with notice to the witness of any additional matters upon which 
he will be examined.
    (c) Cross interrogatories. Within 14 days after the filing and 
service of the original interrogatories, any party to the proceeding 
may, in the same manner, file and serve cross interrogatories, which 
shall be limited to matters raised in the original or in the additional 
interrogatories.
    (d) Responsive pleadings. (1) Within 21 days after service of the 
original interrogatories, any party to the proceeding may move to limit 
or suppress any original, additional or cross interrogatory, and the 
person to be examined may file a motion opposing the taking of 
depositions. See Sec. 1.319(a).
    (2) Within 28 days after service of the original interrogatories, a 
response to a motion to limit or suppress any interrogatory or to a 
motion opposing the taking of depositions may be filed by any party to 
the proceeding.
    (3) Additional pleadings should not be filed and will not be 
considered.
    (e) Protective order. On a motion to limit or suppress or an 
opposition motion filed under paragraph (d) of this section, or on his 
own motion, the presiding officer may issue a protective order. See 
Sec. 1.313. A protective order issued by the presiding officer on his 
own motion may be issued at any time prior to the date specified in the 
notice for the taking of depositions.
    (f) Authority to take depositions. (1) If an opposition motion is 
not filed within 21 days after service of the notice to take 
depositions, and if the presiding officer does not on his own motion 
issue a protective order prior to the time specified in the notice for 
the taking of depositions, the depositions described in the notice may 
be taken. An order for the taking of depositions is not required.
    (2) If an opposition motion is filed, the depositions described in 
the notice shall not be taken until the presiding officer has acted on 
that motion. If the presiding officer authorizes the taking of 
depositions, he may specify a time, place or officer for taking them 
different from that specified in the notice to take depositions.
    (3) If the presiding officer issues a protective order, the 
depositions described in the notice may be taken (if

[[Page 161]]

at all) only in accordance with the provisions of that order.

    Note: The computation of time provisions of Sec. 1.4(g) shall not 
apply to interrogatories and pleadings filed under the provisions of 
this section.

[33 FR 10571, July 25, 1968]



Sec. 1.318  The taking of depositions.

    (a) Persons before whom depositions may be taken. Depositions shall 
be taken before any judge of any court of the United States; any U.S. 
Commissioner; any clerk of a district court; any chancellor, justice or 
judge of a supreme or superior court; the mayor or chief magistrate of a 
city; any judge of a county court, or court of common pleas of any of 
the United States; any notary public, not being of counsel or attorney 
to any party, nor interested in the event of the proceeding; or 
presiding officers, as provided in Sec. 1.243.
    (b) Attendance of witnesses. The attendance of witnesses at the 
taking of depositions may be compelled by the use of subpena as provided 
in Sec. Sec. 1.331 through 1.340.
    (c) Oath; transcript. The officer before whom the deposition is to 
be taken shall administer an oath or affirmation to the witness and 
shall personally, or by someone acting under his direction and in his 
presence record the testimony of the witness. The testimony may be taken 
stenographically or, upon approval by the presiding officer, testimony 
may be taken through the use of telephonically or electronically 
recorded methods, including videotape. In the event these latter methods 
are used for the deposition, the parties may agree to the waiver of the 
provisions of paragraphs (e) and (f) as appropriate and as approved by 
the presiding officer.
    (d) Examination. (1) In the taking of depositions upon oral 
examination, the parties may proceed with examination and cross-
examination of deponents as permitted at the hearing. In lieu of 
participating in the oral examination, parties served with the notice to 
take depositions may transmit written interrogatories to the officer 
designated in the notice, who shall propound them to the witness and 
record the answers verbatim.
    (2) In the taking of depositions upon written interrogatories, the 
party who served the original interrogatories shall transmit copies of 
all interrogatories to the officer designated in the notice, who shall 
propound them to the witness and record the answers verbatim.
    (e) Submission of deposition to witness; changes; signing. When the 
testimony is fully transcribed, the deposition of each witness shall be 
submitted to him for examination and shall be read to or by him, unless 
such examination and reading are waiver by the witness and by the 
parties. Any changes in form or substance which the witness desires to 
make shall be entered upon the deposition by the officer with a 
statement of the reasons given by the witness for making them. The 
deposition shall then be signed by the witness, unless the parties by 
stipulation waive the signing, or the witness is ill, cannot be found, 
or refuses to sign. If the deposition is not signed by the witness, the 
officer shall sign it and state on the record the fact of the waiver, 
the illness or absence of the witness, or of his refusal to sign, 
together with the reason (if any) given therefor; and the deposition may 
then be used as fully as though signed, unless upon a motion to 
suppress, the presiding officer holds that the reason given for the 
refusal to sign requires rejection of the deposition in whole or in 
part.
    (f) Certification of deposition and filing by officer; copies. The 
officer shall certify on the deposition that the witness was duly sworn 
by him, that the deposition is a true record of the testimony given by 
the witness, and that said officer is not of counsel or attorney to 
either of the parties, nor interested in the event of the proceeding or 
investigation. He shall then securely seal the deposition in an envelope 
endorsed with the title of the action and marked ``Deposition of (here 
insert name of witness)'' and shall promptly send the original and two 
copies of the deposition and of all exhibits, together with the notice 
and any interrogatories received by him, by certified mail to the 
Secretary of the Commission.

[33 FR 463, Jan. 12, 1968, as amended at 47 FR 51873, Nov. 18, 1982]

[[Page 162]]



Sec. 1.319  Objections to the taking of depositions.

    (a) Objections to be made by motion prior to the taking of 
depositions. If there is objection to the substance of any interrogatory 
or to examination on any matter clearly covered by the notice to take 
depositions, the objection shall be made in a motion opposing the taking 
of depositions or in a motion to limit or suppress the interrogatory as 
provided in Sec. Sec. 1.315(b) and 1.316(d) and shall not be made at 
the taking of the deposition.
    (b) Objections to be made at the taking of depositions. Errors and 
irregularities occurring at the oral examination in the manner of taking 
the deposition, in the form of the questions or answers, in the oath or 
affirmation, or in the conduct of parties, and errors of any kind which 
might be obviated, removed, or cured if promptly presented, are waived 
unless reasonable objection thereto is made at the taking of the 
deposition. If such objection is made, counsel shall, if possible, agree 
upon the measures required to obviate, remove, or cure such errors. The 
measures agreed upon shall be taken. If agreement cannot be reached, the 
objection shall be noted on the deposition by the officer taking it, and 
the testimony objected to shall be taken subject to the objection.
    (c) Additional objections which may be made at the taking of 
depositions. Objection may be made at the taking of depositions on the 
ground of relevancy or privilege, if the notice to take depositions does 
not clearly indicate that the witness is to be examined on the matters 
to which the objection relates. See paragraph (a) of this section. 
Objection may also be made on the ground that the examination is being 
conducted in such manner as to unreasonably annoy, embarrass, or oppress 
a deponent or party.
    (1) When there is objection to a line of questioning, as permitted 
by this paragraph, counsel shall, if possible, reach agreement among 
themselves regarding the proper limits of the examination.
    (2) If counsel cannot agree on the proper limits of the examination 
the taking of depositions shall continue on matters not objected to and 
counsel shall, within 24 hours, either jointly or individually, 
telegraph statements of their positions to the presiding officer, 
together with the telephone numbers at which they and the officer taking 
the depositions can be reached, or shall otherwise jointly confer with 
the presiding officer. If individual statements are submitted, copies 
shall be provided to all counsel participating in the taking of 
depositions.
    (3) The presiding officer shall promptly rule upon the question 
presented or take such other action as may be appropriate under Sec. 
1.313, and shall give notice of his ruling, by telephone, to counsel who 
submitted statements and to the officer taking the depositions. The 
presiding officer shall thereafter reduce his ruling to writing.
    (4) The taking of depositions shall continue in accordance with the 
presiding officer's ruling. Such rulings are not subject to appeal.

[33 FR 463, Jan. 12, 1968]



Sec. 1.321  Use of depositions at the hearing.

    (a) No inference concerning the admissibility of a deposition in 
evidence shall be drawn because of favorable action on the notice to 
take depositions.
    (b) Except as provided in this paragraph and in Sec. 1.319, 
objection may be made at the hearing to receiving in evidence any 
deposition or part thereof for any reason which would require the 
exclusion of the evidence if the witness were then present and 
testifying.
    (1) Objections to the competency of a witness, or the competency, 
relevancy or materiality of testimony are waived by failure to make them 
before or during the taking of depositions if (and only if) the ground 
of the objection is one which might have been obviated or removed if 
presented at that time.
    (2) Objection on the ground of privilege is waived by failure to 
make it before or during the taking of depositions.
    (c) A party shall not be deemed to make a person his own witness for 
any purpose by taking his deposition. The introduction in evidence of 
the deposition or any part thereof for any purpose other than that of 
contradicting or impeaching the deponent makes the

[[Page 163]]

deponent the witness of the party introducing the deposition, but this 
shall not apply to the use by an adverse party of a deposition as 
described in paragraph (d)(2) of this section. At the hearing any party 
may rebut any relevant evidence contained in a deposition whether 
introduced by him or by any other party.
    (d) At the hearing (or in a pleading), any part or all of a 
deposition, so far as admissible, may be used against any party who was 
present or represented at the taking of the deposition or who had due 
notice thereof, in accordance with any one of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of deponent as a witness.
    (2) The deposition of a party or of any one who at the time of 
taking the deposition was an officer, director, or managing agent of a 
public or private corporation, partnership or association which is a 
party may be used by an adverse party for any purpose.
    (3) To the extent that the affirmative direct case of a party is 
made in writing pursuant to Sec. 1.248(d), the deposition of any 
witness, whether or not a party, may be used by any party for any 
purpose, provided the witness is made available for cross-examination. 
In all cases, the deposition of a witness, whether or not a party, may 
be used by any party for any purpose if the presiding officer finds: (i) 
That the witness is dead; or (ii) that the witness is out of the United 
States, unless it appears that the absence of the witness was procured 
by the party offering the deposition; or (iii) that the witness is 
unable to attend or testify because of age, sickness, infirmity, or 
imprisonment; or (iv) upon application and notice, that such exceptional 
circumstances exist as to make it desirable in the interest of justice 
and with due regard to the importance of presenting the testimony of 
witnesses orally in open hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce all of it which is 
relevant to the part introduced, and any party may introduce any other 
parts.
    (5) Substitution of parties does not affect the right to use 
depositions previously taken; and, when an action in any hearing has 
been dismissed and another action involving the same subject matter is 
afterward brought between the same parties or their representatives or 
successors in interest, all depositions lawfully taken and duly filed in 
the former action may be used in the latter as if originally taken 
therefor.

[33 FR 463, Jan. 12, 1968, as amended at 41 FR 14874, Apr. 8, 1976]



Sec. 1.323  Interrogatories to parties.

    (a) Interrogatories. Any party may serve upon any other party 
written interrogatories to be answered in writing by the party served 
or, if the party served is a public or private corporation or a 
partnership or association, by any officer or agent, who shall furnish 
such information as is available to the party. A copy of the 
interrogatories shall be served upon all parties to the proceeding. An 
original and three copies of the interrogatories, answers, and all 
related pleadings shall be filed with the Secretary of the Commission. A 
copy of the interrogatories, answers and all related pleadings shall be 
served on the presiding officer.
    (1) Except as otherwise provided in a protective order, the number 
of interrogatories or sets of interrogatories is not limited.
    (2) Except as provided in such an order, interrogatories may be 
served after a deposition has been taken, and a deposition may be sought 
after interrogatories have been answered.
    (b) Answers and objections. Each interrogatory shall be answered 
separately and fully in writing under oath or affirmation, unless it is 
objected to, in which event the reasons for objection shall be stated in 
lieu of an answer. The answers shall be signed by the person making 
them, and the objections by the attorney making them. The party upon 
whom the interrogatories were served shall serve a copy of the answers 
and objections upon all parties to the proceeding within 14 days after 
service of the interrogatories, or within such shorter or longer period 
as the

[[Page 164]]

presiding officer may allow. Answers may be used in the same manner as 
depositions of a party (see Sec. 1.321(d)).
    (c) Motion to compel an answer. Any party to the proceeding may, 
within 7 days, move for an order with respect to any objection or other 
failure to answer an interrogatory. For purposes of this paragraph, an 
evasive or incomplete answer is a failure to answer; and if the motion 
is based on the assertion that the answer is evasive or incomplete, it 
shall contain a statement as to the scope and detail of an answer which 
would be considered responsive and complete. The party upon whom the 
interrogatories were served may file a response within 7 days after the 
motion is filed, to which he may append an answer or an amended answer. 
Additional pleadings should not be submitted and will not be considered.
    (d) Action by the presiding officer. If the presiding officer 
determines that an objection is not justified, he shall order that the 
answer be served. If an interrogatory has not been answered, the 
presiding officer may rule that the right to object has been waived and 
may order that an answer be served. If an answer does not comply fully 
with the requirements of this section, the presiding officer may order 
that an amended answer be served, may specify the scope and detail of 
the matters to be covered by the amended answer, and may specify any 
appropriate procedural consequences (including adverse findings of fact 
and dismissal with prejudice) which will follow from the failure to make 
a full and responsive answer. If a full and responsive answer is not 
made, the presiding officer may issue an order invoking any of the 
procedural consequences specified in the order to compel an answer.
    (e) Appeal. As order to compel an answer is not subject to appeal.

[33 FR 10572, July 25, 1968, as amended at 35 FR 17334, Nov. 11, 1970]



Sec. 1.325  Discovery and production of documents and things for inspection, 
copying, or photographing.

    (a) A party to a Commission proceeding may request any other party 
except the Commission to produce and permit inspection and copying or 
photographing, by or on behalf of the requesting party, of any 
designated documents, papers, books, accounts, letters, photographs, 
objects, or tangible things which constitute or contain evidence within 
the scope of the examination permitted by Sec. 1.311(b) of this part 
and which are in his possession, custody, or control or to permit entry 
upon designated land or other property in his possession or control for 
purposes of inspecting, measuring, surveying, or photographing the 
property or any designated object or operation thereon within the scope 
of the examination permitted by Sec. 1.311(b) of this part.
    (1) Such requests need not be filed with the presiding officer, but 
copies of the request shall be served on all other parties to the 
proceeding.
    (2) The party against whom the request was made must, within 10 
days, comply with the request or object to the request, claiming a 
privilege or raising other proper objections. If the request is not 
complied with in whole or in part, the requesting party may file a 
motion to compel production of documents or access to property with the 
presiding officer. A motion to compel must be accompanied by a copy of 
the original request and the responding party's objection or claim of 
privilege. Motions to compel must be filed within five business days of 
the objection or claim of privilege.
    (3) In resolving any disputes involving the production of documents 
or access to property, the presiding officer may direct that the 
materials objected to be presented to him for in camera inspection.
    (b) Any party seeking the production of Commission records should 
proceed under Sec. 0.460 or Sec. 0.461 of this chapter. See Sec. Sec. 
0.451 through 0.467.
    (c) In comparative broadcast proceedings involving applicants for 
only new facilities, all applicants will serve the materials listed in 
the Standard Document Production Order and the Standardized Integration 
Statement on all other parties in the case that have filed Notices of 
Appearance. The exchange of these materials must be accomplished within 
five days after the date established for filing notices of appearance 
(see Sec. 1.221).

[[Page 165]]

    (1) Standard Document Production Order. The following documents must 
be produced or objected to on grounds of privilege (Unless otherwise 
directed by the presiding officer, copies of these documents should not 
be filed with the presiding officer):
    (i) All formation and organizational documents, including articles 
of incorporation, by laws, partnership agreements, voting rights, 
proxies, and any amendments to the foregoing documents;
    (ii) All minutes of meetings relating to the application;
    (iii) All documents relating to the rights or plans of persons or 
entities to purchase an interest in the applicant or of current owners 
to alineate their interests;
    (iv) All documents relating to pledges, mortgages, security 
interests, or other encumbrances of any kind with respect to the 
applicant;
    (v) All bank letters and other financing documents with the dollar 
amounts unexpurgated;
    (vi) All documents relating to the applicant's proposed transmitter 
site;
    (vii) All documents relating to communications by proposed 
integrated principals with respect to their proposed participation in 
the management of the station and the disposition of their current 
employment;
    (viii) All documents relating to prior integration pledges made by 
principals who propose to be integrated into the management of the 
station at issue;
    (ix) All documents relating to communications by and between 
principals of the applicant concerning the application, including 
communications between active and passive principals;
    (x) Representative documents relating to enhancement credits and 
preferences sought by the applicant's principals for local residence, 
civic participation, past broadcast experience, minority/female status, 
and the like;
    (xi) All documents relating to commitments to divest other media 
interests; and
    (xii) All documents that identify or describe the principals who are 
responsible for completing the application, arranging financing, 
obtaining the applicant's transmitter site, publishing the required 
notices, establishing the local public inspection file, and retaining 
lawyers, engineers, and other professionals.
    (2) Standardized Integration Statement. On the same day that 
documents are exchanged pursuant to the Standardized Document Production 
Order, the following information must also be provided by all applicants 
(Copies of this statement should be filed with the presiding officer and 
served on all parties to the proceeding that have filed Notices of 
Appearance):
    (i) The ownership structure of the applicant, i.e., whether it is a 
partnership, limited partnership, or a corporation (if a corporation, 
indicate whether it has voting and non-voting stock);
    (ii) The ownership percentage of each owner;
    (iii) The identity of the owners who will work at the proposed 
station, what titles and duties they will have, how many hours they will 
work per week, and how they will reconcile any current business 
interests or employment with that commitment to the station;
    (iv) All other media interests held by the persons identified under 
paragraph (c)(2)(ii), of this section;
    (v) Whether the integrated owners will claim credit for minority or 
female ownership and if so, specifically on what basis;
    (vi) Whether the integrated owners will claim credit for local 
residence and civic involvement in the city of license or service area 
and if so, specifically on what basis (including a detailed chronology 
of past residence and a description of civic activities and their 
duration);
    (vii) Whether the integrated owners will claim credit for previous 
broadcast experience and if so, provide a detailed list of the stations 
they worked at, the titles and duties they had, and the years in which 
they were so employed; and
    (viii) Whether the applicant will claim a daytimer preference and if 
so, specifically on what basis.
    (3) Supplemental document production. Parties may request additional 
relevant documents, not called for in the Standard Document Production 
Order, at any time after the release of the designation order. 
Supplemental requests

[[Page 166]]

for documents based on materials exchanged pursuant to the Standardized 
Document Production Order and Standardized Integration Statement must be 
filed no later than ten days after those standardized exchanges. Other 
supplemental document requests must be filed no later than ten days 
after receipt of the information on which those requests are based. 
Supplemental document requests will be handled under the procedures 
established in paragraph (a) of this section. To facilitate the 
resolution of disputes concerning the production of documents, the 
presiding officer may convene a pre-hearing conference to hear argument 
on and dispose of any such disputes.

[33 FR 463, Jan. 12, 1968, as amended at 40 FR 39509, Aug. 28, 1975; 56 
FR 794, Jan. 9, 1991; 56 FR 25639, June 5, 1991]

                                Subpenas

    Authority: Sections 1.331 and 1.333 through 1.340 are issued under 
sec. 409, 48 Stat. 1096; 47 U.S.C. 409.



Sec. 1.331  Who may sign and issue.

    Subpenas requiring the attendance and testimony of witnesses, and 
subpenas requiring the production of any books, papers, schedules of 
charges, contracts, agreements, and documents relating to any matter 
under investigation or hearing, may be signed and issued as follows:
    (a) Hearings before the Commission en banc, an individual 
commissioner, or a panel of commissioners: By any commissioner 
participating in the conduct of the hearing.
    (b) Hearings before an administrative law judge: By the 
administrative law judge or, in his absence, by the Chief Administrative 
Law Judge.



Sec. 1.333  Requests for issuance of subpena.

    (a) Unless submitted on the record while a hearing is in progress, 
requests for a subpena ad testificandum shall be submitted in writing.
    (b) Requests for a subpena duces tecum shall be submitted in 
writing, duly subscribed and verified, and shall specify with 
particularity the books, papers, and documents desired and the facts 
expected to be proved thereby. Where the subpena duces tecum request is 
directed to a nonparty to the proceeding, the presiding officer may 
issue the same, upon request, without an accompanying subpena to enforce 
a notice to take depositions, provided for in paragraph (e) of this 
section, where it appears that the testimony of said person is not 
required in connection with the subpena duces tecum.
    (c) All requests for subpenas shall be supported by a showing of the 
general relevance and materiality of the evidence sought.
    (d) Requests for subpenas shall be submitted in triplicate, but need 
not be served on the parties to the proceeding.
    (e) Requests for issuance of a subpena ad testificandum to enforce a 
notice to take depositions shall be submitted in writing. Such requests 
may be submitted with the notice or at a later date. The request shall 
not be granted until the period for the filing of motions opposing the 
taking of depositions has expired or, if a motion has been filed, until 
that motion has been acted on. Regardless of the time when the subpena 
request is submitted, it need not be accompanied by a showing that 
relevant and material evidence will be adduced, but merely that the 
person will be examined regarding a nonprivileged matter which is 
relevant to the hearing issues. The subpena request may ask that a 
subpena duces tecum be contemporaneously issued commanding the person to 
whom it is directed to produce designated books, papers, documents, or 
tangible things which constitute or contain evidence relating to any of 
the matters within the scope of the examination permitted by Sec. 
1.311(b) but in that event the subpena request will be subject to the 
provisions of Sec. 1.313 and paragraph (b) of this section.
    (f) Requests for issuance of a subpena duces tecum to enforce an 
order for the production of documents and things for inspection and 
copying under Sec. 1.325 may be submitted with the motion requesting 
the issuance of such an order. Regardless of the time when the subpena 
request is submitted, it need not be accompanied by a showing that 
relevant and material evidence will be adduced, but merely that the 
documents

[[Page 167]]

and things to be examined contain nonprivileged matter which is relevant 
to the subject matter of the proceeding.

[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 466, Jan. 12, 1968; 47 
FR 51873, Nov. 18, 1982]



Sec. 1.334  Motions to quash.

    Any person against whom a subpena is directed may file a motion to 
quash or limit the subpena, setting forth the reasons why the subpena 
should not be complied with or why it should be limited in scope.



Sec. 1.335  Rulings.

    Prompt notice, including a brief statement of the reasons therefor, 
will be given of the denial, in whole or in part, of a request for 
subpena or of a motion to quash.



Sec. 1.336  Service of subpenas.

    (a) A subpena may be served by a United States marshal or his 
deputy, by Commission personnel, or by any person who is not a party to 
the proceeding and is not less than 18 years of age.
    (b) Service of a subpena upon the person named therein shall be made 
by exhibiting the original subpena to him, by reading the original 
subpena to him if he is unable to read, by delivering the duplicate 
subpena to him, and by tendering to him the fees for one day's 
attendance at the proceeding to which he is summoned and the mileage 
allowed by law. If the subpena is issued on behalf of the United States 
or an officer or agency thereof, attendance fees and mileage need not be 
tendered.



Sec. 1.337  Return of service.

    (a) If service of the subpena is made by a person other than a 
United States marshal or his deputy such person shall make affidavit 
thereof, stating the date, time, and manner of service.
    (b) In case of failure to make service, the reasons for the failure 
shall be stated on the original subpena by the person who attempted to 
make service.
    (c) The original subpena, bearing or accompanied by the required 
return affidavit or statement, shall be returned forthwith to the 
Secretary of the Commission or, if so directed on the subpena, to the 
official before whom the person named in the subpena is required to 
appear.



Sec. 1.338  Subpena forms.

    (a) Subpena forms, marked ``Original'', ``Duplicate'', and 
``Triplicate'', and bearing the Commission's seal, may be obtained from 
the Commission's Dockets Division. These forms are to be completed and 
submitted with any request for issuance of a subpena.
    (b) If the request for issuance of a subpena is granted, the 
``Original'' and ``Duplicate'' copies of the subpena are returned to the 
person who submitted the request. The ``Triplicate'' copy is retained 
for the Commission's files.
    (c) The ``Original'' copy of the subpena includes a form for proof 
of service. This form is to be executed by the person who effects 
service and returned by him to the Secretary of the Commission or, if so 
directed on the subpena, to the official before whom the person named in 
the subpena is required to appear.
    (d) The ``Duplicate'' copy of the subpena shall be served upon the 
person named therein and retained by him. This copy should be presented 
in support of any claim for witness fees or mileage allowances for 
testimony on behalf of the Commission.



Sec. 1.339  Witness fees.

    Witnesses who are subpenaed and respond thereto are entitled to the 
same fees, including mileage, as are paid for like service in the courts 
of the United States. Fees shall be paid by the party at whose instance 
the testimony is taken.



Sec. 1.340  Attendance of witness; disobedience.

    The attendance of witnesses and the production of documentary 
evidence may be required from any place in the United States at any 
designated place of hearing. In case of disobedience to a subpena, the 
Commission or any party to a proceeding before the Commission may invoke 
the aid of any court of the United States in requiring the attendance 
and testimony of witnesses and the production of documentary evidence.

[[Page 168]]

                                Evidence



Sec. 1.351  Rules of evidence.

    Except as otherwise provided in this subpart, the rules of evidence 
governing civil proceedings in matters not involving trial by jury in 
the courts of the United States shall govern formal hearings. Such rules 
may be relaxed if the ends of justice will be better served by so doing.



Sec. 1.352  Cumulative evidence.

    The introduction of cumulative evidence shall be avoided, and the 
number of witnesses that may be heard in behalf of a party on any issue 
may be limited.



Sec. 1.353  Further evidence during hearing.

    At any stage of a hearing, the presiding officer may call for 
further evidence upon any issue and may require such evidence to be 
submitted by any party to the proceeding.



Sec. 1.354  Documents containing matter not material.

    If material and relevant matter offered in evidence is embraced in a 
document containing other matter not material or relevant, and not 
intended to be put in evidence, such document will not be received, but 
the party offering the same shall present to other counsel, and to the 
presiding officer, the original document, together with true copies of 
such material and relevant matter taken therefrom, as it is desired to 
introduce. Upon presentation of such matter, material and relevant, in 
proper form, it may be received in evidence, and become a part of the 
record. Other counsel will be afforded an opportunity to introduce in 
evidence, in like manner, other portions of such document if found to be 
material and relevant.



Sec. 1.355  Documents in foreign language.

    Every document, exhibit, or other paper written in a language other 
than English, which shall be filed in any proceeding, or in response to 
any order, shall be filed in the language in which it is written 
together with an English translation thereof duly verified under oath to 
be a true translation. Each copy of every such document, exhibit, or 
other paper filed shall be accompanied by a separate copy of the 
translation.



Sec. 1.356  Copies of exhibits.

    No document or exhibit, or part thereof, shall be received as, or 
admitted in, evidence unless offered in duplicate. In addition, when 
exhibits of a documentary character are to be offered in evidence, 
copies shall be furnished to other counsel unless the presiding officer 
otherwise directs.



Sec. 1.357  Mechanical reproductions as evidence.

    Unless offered for the sole purpose of attempting to prove or 
demonstrate sound effect, mechanical or physical reproductions of sound 
waves shall not be admitted in evidence. Any party desiring to offer any 
matter alleged to be contained therein or thereupon shall have such 
matter typewritten on paper of the size prescribed by Sec. 1.49, and 
the same shall be identified and offered in duplicate in the same manner 
as other exhibits.



Sec. 1.358  Tariffs as evidence.

    In case any matter contained in a tariff schedule on file with the 
Commission is offered in evidence, such tariff schedule need not be 
produced or marked for identification, but the matter so offered shall 
be specified with particularity (tariff and page number) in such manner 
as to be readily identified, and may be received in evidence by 
reference subject to check with the original tariff schedules on file.



Sec. 1.359  Proof of official record; authentication of copy.

    An official record or entry therein, when admissible for any 
purpose, may be evidenced by an official publication thereof or by a 
copy attested by the officer having legal custody of the record, or by 
his deputy, and accompanied with a certificate that such officer has the 
custody. If the office in which the record is kept is within the United 
States or within a territory or insular possession subject to the 
dominion of the United States, the certificate may be made by the judge 
of a

[[Page 169]]

court of record of the district or political subdivision in which the 
record is kept, authenticated by the seal of the court, or may be made 
by any public officer having a seal of office having official duties in 
the district or political subdivision in which the record is kept, 
authenticated by the seal of his office. If the office in which the 
record is kept is in a foreign state or country, the certificate may be 
made by a secretary of embassy or legation, consul general, consul, vice 
consul, or consular agent, or by any officer in the foreign service of 
the United States stationed in the foreign state or country in which the 
record is kept, and authenticated by the seal of his office.



Sec. 1.360  Proof of lack of record.

    The absence of an official record or entry of a specified tenor in 
an official record may be evidenced by a written statement signed by an 
officer, or by his deputy, who would have custody of the official 
record, if it existed, that after diligent search no record or entry of 
a specified tenor is found to exist in the records of his office, 
accompanied by a certificate as provided in Sec. 1.359. Such statement 
and certificate are admissible as evidence that the records of his 
office contain no such record or entry.



Sec. 1.361  Other proof of official record.

    Sections 1.359 and 1.360 do not prevent the proof of official 
records or of entry or lack of entry therein by any method authorized by 
any applicable statute or by the rules of evidence at common law.



Sec. 1.362  Production of statements.

    After a witness is called and has given direct testimony in a 
hearing, and before he is excused, any party may move for the production 
of any statement of such witness, or part thereof, pertaining to his 
direct testimony, in possession of the party calling the witness, if 
such statement has been reduced to writing and signed or otherwise 
approved or adopted by the witness. Such motion shall be directed to the 
presiding officer. If the party declines to furnish the statement, the 
testimony of the witness pertaining to the requested statement shall be 
stricken.

[33 FR 466, Jan. 12, 1968]



Sec. 1.363  Introduction of statistical data.

    (a) All statistical studies, offered in evidence in common carrier 
hearing proceedings, including but not limited to sample surveys, 
econometric analyses, and experiments, and those parts of other studies 
involving statistical methodology shall be described in a summary 
statement, with supplementary details added in appendices so as to give 
a comprehensive delineation of the assumptions made, the study plan 
utilized and the procedures undertaken. In the case of sample surveys, 
there shall be a clear description of the survey design, including the 
definition of the universe under study, the sampling frame, and the 
sampling units; an explanation of the method of selecting the sample and 
the characteristics measured or counted. In the case of econometric 
investigations, the econometric model shall be completely described and 
the reasons given for each assumption and statistical specification. The 
effects on the final results of changes in the assumptions should be 
made clear. When alternative models and variables have been employed, a 
record shall be kept of these alternative studies, so as to be available 
upon request. In the case of experimental analyses, a clear and complete 
description of the experimental design shall be set forth, including a 
specification of the controlled conditions and how the controls were 
realized. In addition, the methods of making observations and the 
adjustments, if any, to observed data shall be described. In the case of 
every kind of statistical study, the following items shall be set forth 
clearly: The formulas used for statistical estimates, standard errors 
and test statistics, the description of statistical tests, plus all 
related computations, computer programs and final results. Summary 
descriptions of input data shall be submitted. Upon request, the actual 
input data shall be made available.
    (b) In the case of all studies and analyses offered in evidence in 
common carrier hearing proceedings, other than the kinds described in 
paragraph (a) of

[[Page 170]]

this section, there shall be a clear statement of the study plan, all 
relevant assumptions and a description of the techniques of data 
collection, estimation and/or testing. In addition, there shall be a 
clear statement of the facts and judgments upon which conclusions are 
based and a statement of the relative weights given to the various 
factors in arriving at each conclusion, together with an indication of 
the alternative courses of action considered. Lists of input data shall 
be made available upon request.

[35 FR 16254, Oct. 16, 1970]



Sec. 1.364  Testimony by speakerphone.

    (a) If all parties to the proceeding consent and the presiding 
officer approves, the testimony of a witness may be taken by 
speakerphone.
    (b) Documents used by the witness shall be made available to counsel 
by the party calling the witness in advance of the speakerphone 
testimony. The taking of testimony by speakerphone shall be subject to 
such other ground rules as the parties may agree upon.

[43 FR 33251, July 31, 1978]



                    Subpart C_Rulemaking Proceedings

    Authority: 5 U.S.C. 553.

    Source: 28 FR 12432, Nov. 22, 1963, unless otherwise noted.

                                 General



Sec. 1.399  Scope.

    This subpart shall be applicable to notice and comment rulemakings 
proceedings conducted under 5 U.S.C. 553, and shall have no application 
to formal rulemaking (or rate making) proceedings unless the Commission 
directs that it shall govern the conduct of a particular proceeding.

[42 FR 25735, May 19, 1977]



Sec. 1.400  Definitions.

    As used in this subpart, the term party refers to any person who 
participates in a proceeding by the timely filing of a petition for rule 
making, comments on a notice of proposed rule making, a petition for 
reconsideration, or responsive pleadings in the manner prescribed by 
this subpart. The term does not include those who submit letters, 
telegrams or other informal materials.

[41 FR 1287, Jan. 7, 1976]

                     Petitions and Related Pleadings



Sec. 1.401  Petitions for rulemaking.

    (a) Any interested person may petition for the issuance, amendment 
or repeal of a rule or regulation.
    (b) The petition for rulemaking shall conform to the requirements of 
Sec. Sec. 1.49, 1.52 and 1.419(b) (or Sec. 1.420(e), if applicable), 
and shall be submitted or addressed to the Secretary, Federal 
Communications Commission, Washington, DC 20554, or (except in broadcast 
allotment proceedings) may be submitted electronically.
    (c) The petition shall set forth the text or substance of the 
proposed rule, amendment, or rule to be repealed, together with all 
facts, views, arguments and data deemed to support the action requested, 
and shall indicate how the interests of petitioner will be affected.
    (d) Petitions for amendment of the FM Table of Assignments (Sec. 
73.202 of this chapter) or the Television Table of Assignments (Sec. 
73.606) shall be served by petitioner on any Commission licensee or 
permittee whose channel assignment would be changed by grant of the 
petition. The petition shall be accompanied by a certificate of service 
on such licensees or permittees. A draft Notice of Proposed Rule Making 
may be submitted with a petition for amendment of the FM or Television 
Table of Assignments.
    (e) Petitions which are moot, premature, repetitive, frivolous, or 
which plainly do not warrant consideration by the Commission may be 
denied or dismissed without prejudice to the petitioner.

[28 FR 12432, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963; 
40 FR 53391, Nov. 18, 1975; 45 FR 42621, June 25, 1980; 63 FR 24125, May 
1, 1998]

[[Page 171]]



Sec. 1.403  Notice and availability.

    All petitions for rule making (other than petitions to amend the FM, 
Television, and Air-Ground Tables of Assignments) meeting the 
requirements of Sec. 1.401 will be given a file number and, promptly 
thereafter, a ``Public Notice'' will be issued (by means of a Commission 
release entitled ``Petitions for Rule Making Filed'') as to the 
petition, file number, nature of the proposal, and date of filing, 
Petitions for rule making are available at the Commission's Reference 
Information Center, 445 12th Street, SW, Washington, DC and may also be 
available electronically over the Internet at http://www.fcc.gov/.

[67 FR 13223, Mar. 21, 2002]



Sec. 1.405  Responses to petitions; replies.

    Except for petitions to amend the FM Television or Air-Ground Tables 
of Assignments:
    (a) Any interested person may file a statement in support of or in 
opposition to a petition for rule making prior to Commission action on 
the petition but not later than 30 days after ``Public Notice'', as 
provided for in Sec. 1.403, is given of the filing of such a petition. 
Such a statement shall be accompanied by proof of service upon the 
petitioner on or prior to the date of filing in conformity with Sec. 
1.47 and shall conform in other aspects with the requirements of 
Sec. Sec. 1.49, 1.52, and 1.419(b).
    (b) Any interested person may file a reply to statements in support 
of or in opposition to a petition for rule making prior to Commission 
action on the petition but not later than 15 days after the filing of 
such a statement. Such a reply shall be accompanied by proof of service 
upon the party or parties filing the statement or statements to which 
the reply is directed on or prior to the date of filing in conformity 
with Sec. 1.47 and shall conform in other aspects with the requirements 
of Sec. Sec. 1.49, 1.52, and 1.419(b).
    (c) No additional pleadings may be filed unless specifically 
requested by the Commission or authorized by it.
    (d) The Commission may act on a petition for rule making at any time 
after the deadline for the filing of replies to statements in support of 
or in opposition to the petition. Statements in support of or in 
opposition to a petition for rule making, and replies thereto, shall not 
be filed after Commission action.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[28 FR 12413, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963; 
45 FR 42621, June 25, 1980; 46 FR 60404, Dec. 9, 1981]



Sec. 1.407  Action on petitions.

    If the Commission determines that the petition discloses sufficient 
reasons in support of the action requested to justify the institution of 
a rulemaking proceeding, and notice and public procedure thereon are 
required or deemed desirable by the Commission, an appropriate notice of 
proposed rule making will be issued. In those cases where notice and 
public procedure thereon are not required, the Commission may issue a 
final order amending the rules. In all other cases the petition for rule 
making will be denied and the petitioner will be notified of the 
Commission's action with the grounds therefor.

                         Rulemaking Proceedings



Sec. 1.411  Commencement of rulemaking proceedings.

    Rulemaking proceedings are commenced by the Commission, either on it 
own motion or on the basis of a petition for rulemaking. See Sec. Sec. 
1.401-1.407.



Sec. 1.412  Notice of proposed rulemaking.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
prior notice of proposed rulemaking will be given.
    (1) Notice is ordinarily given by publication of a ``Notice of 
Proposed Rule Making'' in the Federal Register. A summary of the full 
decision adopted by the Commission constitutes a ``Notice of Proposed 
Rulemaking'' for purposes of Federal Register publication.
    (2) If all persons subject to the proposed rules are named, the 
proposal may (in lieu of publication) be personally served upon those 
persons.
    (3) If all persons subject to the proposed rules are named and have 
actual notice of the proposal as a matter of law, further prior notice 
of proposed rulemaking is not required.

[[Page 172]]

    (b) Rule changes (including adoption, amendment, or repeal of a rule 
or rules) relating to the following matters will ordinarily be adopted 
without prior notice:
    (1) Any military, naval, or foreign affairs function of the United 
States.
    (2) Any matter relating to Commission management or personnel or to 
public property, loans, grants, benefits, or contracts.
    (3) Interpretative rules.
    (4) General statements of policy.
    (5) Rules of Commission organization, procedure, or practice.
    (c) Rule changes may in addition be adopted without prior notice in 
any situation in which the Commission for good cause finds that notice 
and public procedure are impracticable, unnecessary, or contrary to the 
public interest. The finding of good cause and a statement of the basis 
for that finding are in such situations published with the rule changes.
    (d) In addition to the notice provisions of paragraph (a) of this 
section, the Commission, before prescribing any requirements as to 
accounts, records, or memoranda to be kept by carriers, will notify the 
appropriate State agencies having jurisdiction over any carrier involved 
of the proposed requirements.

[28 FR 12432, Nov. 22, 1963, as amended at 51 FR 7445, Mar. 4, 1986]



Sec. 1.413  Content of notice.

    A notice of the proposed issuance, amendment, or repeal of a rule 
will include the following:
    (a) A statement of the time, nature and place of any public 
rulemaking proceeding to be held.
    (b) Reference to the authority under which the issuance, amendment 
or repeal of a rule is proposed.
    (c) Either the terms or substance of the proposed rule or a 
description of the subjects and issues involved.
    (d) The docket number assigned to the proceeding.
    (e) A statement of the time for filing comments and replies thereto.



Sec. 1.415  Comments and replies.

    (a) After notice of proposed rulemaking is issued, the Commission 
will afford interested persons an opportunity to participate in the 
rulemaking proceeding through submission of written data, views, or 
arguments, with or without opportunity to present the same orally in any 
manner.
    (b) A reasonable time will be provided for submission of comments in 
support of or in opposition to proposed rules, and the time provided 
will be specified in the notice of proposed rulemaking.
    (c) A reasonable time will be provided for filing comments in reply 
to the original comments, and the time provided will be specified in the 
notice of proposed rulemaking.
    (d) No additional comments may be filed unless specifically 
requested or authorized by the Commission.

    Note: In some (but not all) rulemaking proceedings, interested 
persons may also communicate with the Commission and its staff on an ex 
parte basis, provided certain procedures are followed. See Sec. Sec. 
1.420 and 1.1200 et seq. See also ---- FCC 2d ---- (1980) (i.e., this 
order).

    (e) For time limits for filing motions for extension of time for 
filing responses to petitions for rulemaking, replies to such responses, 
comments filed in response to notices of proposed rulemaking, replies to 
such comments, see Sec. 1.46(b).

[28 FR 12432, Nov. 22, 1963, as amended at 42 FR 28888, June 6, 1977; 45 
FR 45591, July 7, 1980; 52 FR 37460, Oct. 7, 1987]



Sec. 1.419  Form of comments and replies; number of copies.

    (a) Comments, replies, and other documents filed in a rulemaking 
proceeding shall conform to the requirements of Sec. 1.49.
    (b) An original and 4 copies of all comments, briefs and other 
documents filed in a rulemaking proceeding shall be furnished the 
Commission. The distribution of such copies shall be as follows:

Secretary (original and 1).......................................      2
Bureau...........................................................      2
Reference Information Center.....................................      1
                                                                  ------
      Total......................................................      5
 

    Participants filing the required 5 copies who also wish each 
Commissioner to have a personal copy of the comments may file an 
additional 5 copies.

[[Page 173]]

The distribution of such copies shall be as follows:

Commissioners....................................................      5
Secretary........................................................      2
Bureau...........................................................      2
Reference Information Center.....................................      1
                                                                  ------
      Total......................................................     10
 

    However, members of the general public who wish to express their 
interest by participating informally in a rulemaking proceeding may do 
so by submitting an original and one copy of their comments, without 
regard to form, provided only that the Docket Number is specified in the 
heading. Informal comments filed after close of the reply comment 
period, or, if on reconsideration, the reconsideration reply comment 
period, should be labeled ``ex parte'' pursuant to section 1.1206(a) of 
this chapter. Letters submitted to Commissioners or Commission staff 
will be treated in the same way as informal comments, as set forth 
above. Also such informal participants who wish the responsible members 
of the staff and the Commissioners to have personal copies may file an 
additional 7 copies. The distribution of such copies shall be as 
follows:

Commissioners....................................................      5
Secretary........................................................      2
Bureau...........................................................      2
                                                                  ------
      Total......................................................      9
 

    (c) Any person desiring to file identical documents in more than one 
docketed rulemaking proceeding shall furnish the Commission two 
additional copies of any such document for each additional docket. This 
requirement does not apply if the proceedings have been consolidated.
    (d) Participants that file comments and replies in electronic form 
need only submit one copy of those comments, so long as the submission 
conforms to any procedural or filing requirements established for formal 
electronic comments.
    (e) Comments and replies and other documents filed in electronic 
form by a party represented by an attorney shall include the name and 
mailing address of at least one attorney of record. Parties not 
represented by an attorney that file comments and replies and other 
documents in electronic form shall provide their name and mailing 
address.

[28 FR 12432, Nov. 22, 1963, as amended at 41 FR 50399, Nov. 16, 1976; 
50 FR 26567, June 27, 1985; 54 FR 29037, July 11, 1989; 63 FR 24125, May 
1, 1998; 63 FR 56091, Oct. 21, 1998; 67 FR 13223, Mar. 21, 2002]



Sec. 1.420  Additional procedures in proceedings for amendment of the FM 
or TV Tables of Allotments.

    (a) Comments filed in proceedings for amendment of the FM Table of 
Allotments (Sec. 73.202 of this chapter) or the Television Table of 
Allotments (Sec. 73.606 of this chapter) which are initiated on a 
petition for rule making shall be served on petitioner by the person who 
files the comments.
    (b) Reply comments filed in proceedings for amendment of the FM or 
Television Tables of Allotments shall be served on the person(s) who 
filed the comments to which the reply is directed.
    (c) Such comments and reply comments shall be accompanied by a 
certificate of service.
    (d) Counterproposals shall be advanced in initial comments only and 
will not be considered if they are advanced in reply comments.
    (e) An original and 4 copies of all petitions for rulemaking, 
comments, reply comments, and other pleadings shall be filed with the 
Commission.
    (f) Petitions for reconsideration and responsive pleadings shall be 
served on parties to the proceeding and on any licensee or permittee 
whose authorization may be modified to specify operation on a different 
channel, and shall be accompanied by a certificate of service.
    (g) The Commission may modify the license or permit of an FM station 
to another class of channel or of a UHF TV station to a VHF channel in 
the same community in the course of the rule making proceeding to amend 
Sec. 73.202(b), Sec. 73.504(a) or Sec. 73.606(b) if any of the 
following conditions are met:
    (1) There is no other timely filed expression of interest, or
    (2) If another interest in the proposed channel is timely filed an 
additional equivalent class of channel is also allotted, assigned or 
available for application, or

[[Page 174]]

    (3) With respect to FM, the modification of license or permit would 
occur on a mutually exclusive higher class adjacent or co-channel.

    Note 1 to paragraph (g):
    In certain situations, a licensee or permittee may seek an adjacent, 
intermediate frequency or co-channel upgrade by application. See Sec. 
73.203(b) of this chapter.
    Note 2 to paragraph (g):
    The reclassification of a Class C station in accordance with the 
procedure set forth in Note 4 to Sec. 73.3573 may be initiated through 
the filing of an original petition for amendment of the FM Table of 
Allotments. The Commission will notify the affected Class C station 
licensee of the proposed reclassification by issuing a notice of 
proposed rule making, except that where a triggering petition proposes 
an amendment or amendments to the FM Table of Allotments in addition to 
the proposed reclassification, the Commission will issue an order to 
show cause as set forth in Note 4 to Sec. 73.3573, and a notice of 
proposed rule making will be issued only after the reclassification 
issue is resolved. Triggering petitions will be dismissed upon the 
filing, rather than the grant, of an acceptable construction permit 
application to increase antenna height to at least 451 meters HAAT by a 
subject Class C station.

    (h) Where licensees (or permittees) of television broadcast stations 
jointly petition to amend Sec. 73.606(b) and to exchange channels, and 
where one of the licensees (or permittees) operates on a commercial 
channel while the other operates on a reserved noncommercial educational 
channel within the same band, and the stations serve substantially the 
same market, then the Commission may amend Sec. 73.606(b) and modify 
the licenses (or permits) of the petitioners to specify operation on the 
appropriate channels upon a finding that such action will promote the 
public interest, convenience, and necessity.

    Note 1 to paragraph (h):
    Licensees and permittees operating Class A FM stations who seek to 
upgrade their facilities to Class B1, B, C3, C2, C1, or C on Channel 
221, and whose proposed 1 mV/m signal contours would overlap the Grade B 
contour of a television station operating on Channel 6 must meet a 
particularly heavy burden by demonstrating that grants of their upgrade 
requests are in the public interest. In this regard, the Commission will 
examine the record in rule making proceedings to determine the 
availability of existing and potential non-commercial education service.

    (i) In the course of the rule making proceeding to amend Sec. 
73.202(b) or Sec. 73.606(b), the Commission may modify the license or 
permit of an FM or television broadcast station to specify a new 
community of license where the amended allotment would be mutually 
exclusive with the licensee's or permittee's present assignment.
    (j) Whenever an expression of interest in applying for, 
constructing, and operating a station has been filed in a proceeding to 
amend the FM or TV Table of Allotments, and the filing party seeks to 
dismiss or withdraw the expression of interest, either unilaterally or 
in exchange for financial consideration, that party must file with the 
Commission a request for approval of the dismissal or withdrawal, a copy 
of any written agreement related to the dismissal or withdrawal, and an 
affidavit setting forth:
    (1) A certification that neither the party withdrawing its interest 
nor its principals has received or will receive any money or other 
consideration in excess of legitimate and prudent expenses in exchange 
for the dismissal or withdrawal of the expression of interest;
    (2) The exact nature and amount of any consideration received or 
promised;
    (3) An itemized accounting of the expenses for which it seeks 
reimbursement; and
    (4) The terms of any oral agreement related to the dismissal or 
withdrawal of the expression of interest.
    (5) In addition, within 5 days of a party's request for approval, 
each remaining party to any written or oral agreement must submit an 
affidavit setting forth:
    (i) A certification that neither it nor its principals has paid or 
will pay money or other consideration in excess of the legitimate and 
prudent expenses of the party withdrawing its expression of interest; 
and

[[Page 175]]

    (ii) The terms of any oral agreement relating to the dismissal or 
withdrawal of the expression of interest.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[39 FR 44022, Dec. 20, 1974, as amended at 40 FR 53391, Nov. 18, 1975; 
41 FR 1287, Jan. 7, 1976; 51 FR 15629, Apr. 25, 1986; 51 FR 20291, June 
4, 1986; 52 FR 8260, Mar. 17, 1987; 52 FR 25866, July 9, 1987; 54 FR 
16366, Apr. 24, 1989; 54 FR 26201, June 22, 1989; 55 FR 28914, July 16, 
1990; 58 FR 38535, July 19, 1993; 59 FR 59503, Nov. 17, 1994; 61 FR 
43472, Aug. 23, 1996; 65 FR 79776, Dec. 20, 2000]



Sec. 1.421  Further notice of rulemaking.

    In any rulemaking proceeding where the Commission deems it 
warranted, a further notice of proposed rulemaking will be issued with 
opportunity for parties of record and other interested persons to submit 
comments in conformity with Sec. Sec. 1.415 and 1.419.



Sec. 1.423  Oral argument and other proceedings.

    In any rulemaking where the Commission determines that an oral 
argument, hearing or any other type of proceeding is warranted, notice 
of the time, place and nature of such proceeding will be published in 
the Federal Register.

[58 FR 66300, Dec. 20, 1993]



Sec. 1.425  Commission action.

    The Commission will consider all relevant comments and material of 
record before taking final action in a rulemaking proceeding and will 
issue a decision incorporating its finding and a brief statement of the 
reasons therefor.



Sec. 1.427  Effective date of rules.

    (a) Any rule issued by the Commission will be made effective not 
less than 30 days from the time it is published in the Federal Register 
except as otherwise specified in paragraphs (b) and (c) of this section.
    (b) For good cause found and published with the rule, any rule 
issued by the Commission may be made effective within less than 30 days 
from the time it is published in the Federal Register. Rules involving 
any military, naval or foreign affairs function of the United States; 
matters relating to agency management or personnel, public property, 
loans, grants, benefits or contracts; rules granting or recognizing 
exemption or relieving restriction; rules of organization, procedure or 
practice; or interpretative rules; and statements of policy may be made 
effective without regard to the 30-day requirement.
    (c) In cases of alterations by the Commission in the required manner 
or form of keeping accounts by carriers, notice will be served upon 
affected carriers not less than 6 months prior to the effective date of 
such alterations.



Sec. 1.429  Petition for reconsideration.

    (a) Any interested person may petition for reconsideration of a 
final action in a proceeding conducted under this subpart (see 
Sec. Sec. 1.407 and 1.425). Where the action was taken by the 
Commission, the petition will be acted on by the Commission. Where 
action was taken by a staff official under delegated authority, the 
petition may be acted on by the staff official or referred to the 
Commission for action.

    Note: The staff has been authorized to act on rulemaking proceedings 
described in Sec. 1.420 and is authorized to make editorial changes in 
the rules (see Sec. 0.231(d)).

    (b) A petition for reconsideration which relies on facts which have 
not previously been presented to the Commission will be granted only 
under the following circumstances:
    (1) The facts relied on relate to events which have occurred or 
circumstances which have changed since the last opportunity to present 
them to the Commission;
    (2) The facts relied on were unknown to petitioner until after his 
last opportunity to present them to the Commission, and he could not 
through the exercise of ordinary diligence have learned of the facts in 
question prior to such opportunity; or
    (3) The Commission determines that consideration of the facts relied 
on is required in the public interest.
    (c) The petition for reconsideration shall state with particularity 
the respects in which petitioner believes the action taken should be 
changed.
    (d) The petition for reconsideration and any supplement thereto 
shall be filed within 30 days from the date of public notice of such 
action, as that

[[Page 176]]

date is defined in Sec. 1.4(b). No supplement to a petition for 
reconsideration filed after expiration of the 30 day period will be 
considered, except upon leave granted pursuant to a separate pleading 
stating the grounds for acceptance of the supplement. The petition for 
reconsideration shall not exceed 25 double-spaced typewritten pages. See 
also Sec. 1.49(f).
    (e) Except as provided in Sec. 1.420(f), petitions for 
reconsideration need not be served on parties to the proceeding. 
(However, where the number of parties is relatively small, the 
Commission encourages the service of petitions for reconsideration and 
other pleadings, and agreements among parties to exchange copies of 
pleadings. See also Sec. 1.47(d) regarding electronic service of 
documents.) When a petition for reconsideration is timely filed in 
proper form, public notice of its filing is published in the Federal 
Register. The time for filing oppositions to the petition runs from the 
date of public notice. See Sec. 1.4(b).
    (f) Oppositions to a petition for reconsideration shall be filed 
within 15 days after the date of public notice of the petition's filing 
and need be served only on the person who filed the petition. See also 
Sec. 1.49(d). Oppositions shall not exceed 25 double-spaced typewritten 
pages. See Sec. 1.49(f).
    (g) Replies to an opposition shall be filed within 10 days after the 
time for filing oppositions has expired and need be served only on the 
person who filed the opposition. Replies shall not exceed 10 double-
spaced typewritten pages. See also Sec. Sec. 1.49(d) and 1.49(f).
    (h) Petitions for reconsideration, oppositions and replies shall 
conform to the requirements of Sec. Sec. 1.49 and 1.52, except that 
they need not be verified. Except as provided in Sec. 1.420(e), an 
original and 11 copies shall be submitted to the Secretary, Federal 
Communications Commission, Washington, D.C. 20554. Parties filing in 
electronic form need only submit one copy.
    (i) The Commission may grant the petition for reconsideration in 
whole or in part or may deny the petition. Its order will contain a 
concise statement of the reasons for the action taken. Any order 
disposing of a petition for reconsideration which modifies rules adopted 
by the original order is, to the extent of such modification, subject to 
reconsideration in the same manner as the original order. Except in such 
circumstance, a second petition for reconsideration may be dismissed by 
the staff as repetitious.
    (j) The filing of a petition for reconsideration is not a condition 
precedent to judicial review of any action taken by the Commission, 
except where the person seeking such review was not a party to the 
proceeding resulting in the action or relies on questions of fact or law 
upon which the Commission has been afforded no opportunity to pass. 
Subject to the provisions of paragraph (b) of this section, such a 
person may qualify to seek judicial review by filing a petition for 
reconsideration.
    (k) Without special order of the Commission, the filing of a 
petition for reconsideration shall not excuse any person from complying 
with any rule or operate in any manner to stay or postpone its 
enforcement. However, upon good cause shown, the Commission will stay 
the effective date of a rule pending a decision on a petition for 
reconsideration. See, however, Sec. 1.420(f).

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 
154, 303, 307)

[41 FR 1287, Jan. 7, 1976, as amended at 44 FR 5436, Jan. 26, 1979; 46 
FR 18556, Mar. 25, 1981; 52 FR 49161, Dec. 30, 1987; 63 FR 24126, May 1, 
1998]

                                Inquiries



Sec. 1.430  Proceedings on a notice of inquiry.

    The provisions of this subpart also govern proceedings commenced by 
issuing a ``Notice of Inquiry,'' except that such proceedings do not 
result in the adoption of rules, and Notices of Inquiry are not required 
to be published in the Federal Register.

[51 FR 7445, Mar. 4, 1986]



            Subpart D_Broadcast Applications and Proceedings

    Source: 44 FR 38483, July 2, 1979, unless otherwise noted.

[[Page 177]]



Sec. 1.502  Emergency Broadcast Authorizations.

    See Sec. 73.913.

                       General Filing Requirements



Sec. 1.511  Applications required.

    See Sec. 73.3511.



Sec. 1.512  Where to file; number of copies.

    See Sec. 73.3512.



Sec. 1.513  Who may sign applications.

    See Sec. 73.3513.



Sec. 1.514  Content of applications.

    See Sec. 73.3514.



Sec. 1.516  Specification of facilities.

    See Sec. 73.3516.



Sec. 1.517  Contingent applications.

    See Sec. 73.3517.



Sec. 1.518  Inconsistent or conflicting applications.

    See Sec. 73.3518.



Sec. 1.519  Repetitious applications.

    See Sec. 73.3519.



Sec. 1.520  Multiple applications.

    See Sec. 73.3520.



Sec. 1.522  Amendment of applications.

    See Sec. 73.3522.



Sec. 1.525  Agreements between parties for amendment or dismissal of, 
or failure to prosecute, broadcast applications.

    See Sec. 73.3525.



Sec. 1.526  Records to be maintained locally for public inspection by 
commercial applicants, permittees and licensees.

    See Sec. 73.3526.



Sec. 1.527  Records to be maintained locally for public inspection by 
noncommercial educational applicants, permittees and licensees.

    See Sec. 73.3527.



Sec. 1.531  Formal and informal applications.

    See Sec. 73.3511.



Sec. 1.533  Application forms for authority to construct a new station 
or make changes in an existing station.

    See Sec. 73.3533.



Sec. 1.534  Application for extension of construction permit or for 
construction permit to replace expired construction permit.

    See Sec. 73.3534.



Sec. 1.536  Application for license to cover construction permit.

    See Sec. 73.3536.



Sec. 1.538  Application for modification of license.

    See Sec. 73.3538.



Sec. 1.539  Application for renewal of license.

    See Sec. 73.3539.



Sec. 1.540  Application for voluntary assignment or transfer of control.

    See Sec. 73.3540.



Sec. 1.541  Application for involuntary assignment of license or transfer 
of control.

    See Sec. 73.3541.



Sec. 1.542  Application for temporary authorization.

    See Sec. 73.3542.



Sec. 1.543  Application for renewal or modification of special service 
authorization.

    See Sec. 73.3543.



Sec. 1.544  Application for broadcast station to conduct field strength 
measurements and for experimental operation.

    See Sec. Sec. 73.157 and 73.1510.



Sec. 1.545  Application for permit to deliver programs to foreign countries.

    See Sec. 73.3545.



Sec. 1.546  Application to determine operating power by direct measurement 
of antenna power.

    See Sec. 73.45.

[[Page 178]]



Sec. 1.549  Requests for extension of authority to operate without required 
monitors, indicating instruments, and EBS Attention Signal devices.

    See Sec. 73.3549.



Sec. 1.550  Requests for new or modified call sign assignments.

    See Sec. 73.3550.



Sec. 1.561  Staff consideration of applications which receive action by the 
Commission.

    See Sec. 73.3561.



Sec. 1.562  Staff consideration of applications which do not require action 
by the Commission.

    See Sec. 73.3562.



Sec. 1.564  Acceptance of applications.

    See Sec. 73.3564.



Sec. 1.566  Defective applications.

    See Sec. 73.3566.



Sec. 1.568  Dismissal of applications.

    See Sec. 73.3568.



Sec. 1.570  AM broadcast station applications involving other North American countries.

    See Sec. 73.3570.



Sec. 1.571  Processing AM broadcast station applications.

    See Sec. 73.3571.



Sec. 1.572  Processing TV broadcast and translator station applications.

    See Sec. 73.3572.



Sec. 1.573  Processing FM broadcast and translator station applications.

    See Sec. 73.3573.



Sec. 1.574  Processing of international broadcast station applications.

    See Sec. 73.3574.



Sec. 1.578  Amendments to applications for renewal, assignment or transfer of 
control.

    See Sec. 73.3578.



Sec. 1.580  Local public notice of filing of broadcast applications.

    See Sec. 73.3580.



Sec. 1.584  Petitions to deny.

    See Sec. 73.3584.



Sec. 1.587  Procedure for filing informal applications.

    See Sec. 73.3587.



Sec. 1.591  Grants without hearing.

    See Sec. 73.3591.



Sec. 1.592  Conditional grant.

    See Sec. 73.3592.



Sec. 1.593  Designation for hearing.

    See Sec. 73.3593.



Sec. 1.594  Local public notice of designation for hearing.

    See Sec. 73.3594.



Sec. 1.597  Procedures on transfer and assignment applications.

    See Sec. 73.3597.



Sec. 1.598  Period of construction.

    See Sec. 73.3598.



Sec. 1.599  Forfeiture of construction permit.

    See Sec. 73.3599.



Sec. 1.601  Simultaneous modification and renewal of license.

    See Sec. 73.3601.



Sec. 1.603  Special waiver procedure relative to applications.

    See Sec. 73.3603.



Sec. 1.605  Retention of applications in hearing status after designation 
for hearing.

    See Sec. 73.3605.



Sec. 1.612  Annual employment report.

    See Sec. 73.3612.



Sec. 1.613  Filing of contracts.

    See Sec. 73.3613.



Sec. 1.615  Ownership reports.

    See Sec. 73.3615.

[[Page 179]]



   Subpart E_Complaints, Applications, Tariffs, and Reports Involving 
                             Common Carriers

    Source: 28 FR 12450, Nov. 22, 1963, unless otherwise noted.

                                 General



Sec. 1.701  Show cause orders.

    (a) The Commission may commence any proceeding within its 
jurisdiction against any common carrier by serving upon the carrier an 
order to show cause. The order shall contain a statement of the 
particulars and matters concerning which the Commission is inquiring and 
the reasons for such action, and will call upon the carrier to appear 
before the Commission at a place and time therein stated and give 
evidence upon the matters specified in the order.
    (b) Any carrier upon whom an order has been served under this 
section shall file its answer within the time specified in the order. 
Such answer shall specifically and completely respond to all allegations 
and matters contained in the show cause order.
    (c) All papers filed by a carrier in a proceeding under this section 
shall conform with the specifications of Sec. Sec. 1.49 and 1.50 and 
the subscription and verification requirements of Sec. 1.52.

[28 FR 12450, Nov. 22, 1963, as amended at 36 FR 7423, Apr. 20, 1971]



Sec. 1.703  Appearances.

    (a) Hearings. Except as otherwise required by Sec. 1.221 regarding 
application proceedings, by Sec. 1.91 regarding proceedings instituted 
under section 312 of the Communications Act of 1934, as amended, or by 
Commission order in any proceeding, no written statement indicating 
intent to appear need be filed in advance of actual appearance at any 
hearing by any person or his attorney.
    (b) Oral arguments. Within 5 days after release of an order 
designating an initial decision for oral argument or within such other 
time as may be specified in the order, any party who wishes to 
participate in the oral argument shall file a written statement 
indicating that he will appear and participate. Within such time as may 
be specified in an order designating any other matter for oral argument, 
any person wishing to participate in the The Commission will advise him 
whether he may participate. (See Sec. 1.277 for penalties for failure 
to file appearance statements in proceedings involving oral arguments on 
initial decisions.)
    (c) Commission counsel. The requirement of paragraph (b) of this 
section shall not apply to counsel representing the Commission or the 
Chief of the Enforcement Bureau.

[28 FR 12450, Nov. 22, 1963, as amended at 67 FR 13223, Mar. 21, 2002]

                               Complaints



Sec. 1.711  Formal or informal complaints.

    Complaints filed against carriers under section 208 of the 
Communications Act may be either formal or informal.

                           Informal Complaints



Sec. 1.716  Form.

    An informal complaint shall be in writing and should contain: (a) 
The name, address and telephone number of the complaint, (b) the name of 
the carrier against which the complaint is made, (c) a complete 
statement of the facts tending to show that such carrier did or omitted 
to do anything in contravention of the Communications Act, and (d) the 
specific relief of satisfaction sought.

[51 FR 16039, Apr. 30, 1986]



Sec. 1.717  Procedure.

    The Commission will forward informal complaints to the appropriate 
carrier for investigation. The carrier will, within such time as may be 
prescribed, advise the Commission in writing, with a copy to the 
complainant, of its satisfaction of the complaint or of its refusal or 
inability to do so. Where there are clear indications from the carrier's 
report or from other communications with the parties that the complaint 
has been satisfied, the Commission may, in its discretion, consider a 
complaint proceeding to be closed, without response to the complainant. 
In all other cases, the Commission will contact the complainant 
regarding its review and

[[Page 180]]

disposition of the matters raised. If the complainant is not satisfied 
by the carrier's response and the Commission's disposition, it may file 
a formal complaint in accordance with Sec. 1.721 of this part.

[51 FR 16039, Apr. 30, 1986]



Sec. 1.718  Unsatisfied informal complaints; formal complaints relating 
back to the filing dates of informal complaints.

    When an informal complaint has not been satisfied pursuant to Sec. 
1.717, the complainant may file a formal complaint with this Commission 
in the form specified in Sec. 1.721. Such filing will be deemed to 
relate back to the filing date of the informal complaint: Provided, That 
the formal complaint: (a) Is filed within 6 months from the date of the 
carrier's report, (b) makes reference to the date of the informal 
complaint, and (c) is based on the same cause of action as the informal 
complaint. If no formal complaint is filed within the 6-month period, 
the complainant will be deemed to have abandoned the unsatisfied 
informal complaint.

[51 FR 16040, Apr. 30, 1986]



Sec. 1.719  Informal complaints filed pursuant to section 258.

    (a) Notwithstanding the requirements of Sec. Sec. 1.716 through 
1.718, the following procedures shall apply to complaints alleging that 
a carrier has violated section 258 of the Communications Act of 1934, as 
amended by the Telecommunications Act of 1996, by making an unauthorized 
change of a subscriber's preferred carrier, as defined by Sec. 
64.1100(e) of this chapter.
    (b) Form. The complaint shall be in writing, and should contain: The 
complainant's name, address, telephone number and e-mail address (if the 
complainant has one); the name of both the allegedly unauthorized 
carrier, as defined by Sec. 64.1100(d) of this chapter, and authorized 
carrier, as defined by Sec. 64.1100(c) of this chapter; a complete 
statement of the facts (including any documentation) tending to show 
that such carrier engaged in an unauthorized change of the subscriber's 
preferred carrier; a statement of whether the complainant has paid any 
disputed charges to the allegedly unauthorized carrier; and the specific 
relief sought.
    (c) Procedure. The Commission will resolve slamming complaints under 
the definitions and procedures established in Sec. Sec. 64.1100 through 
64.1190 of this chapter. The Commission will issue a written (or 
electronic) order informing the complainant, the unauthorized carrier, 
and the authorized carrier of its finding, and ordering the appropriate 
remedy, if any, as defined by Sec. Sec. 64.1160 through 64.1170 of this 
chapter.
    (d) Unsatisfied Informal Complaints Involving Unauthorized Changes 
of a Subscriber's Preferred Carrier; Formal Complaints Relating Back to 
the Filing Dates of Informal Complaints. If the complainant is 
unsatisfied with the resolution of a complaint under this section, the 
complainant may file a formal complaint with the Commission in the form 
specified in Sec. 1.721. Such filing will be deemed to relate back to 
the filing date of the informal complaint filed under this section, so 
long as the informal complaint complied with the requirements of 
paragraph (b) of this section and provided that: The formal complaint is 
filed within 45 days from the date an order resolving the informal 
complaint filed under this section is mailed or delivered electronically 
to the complainant; makes reference to both the informal complaint 
number assigned to and the initial date of filing the informal complaint 
filed under this section; and is based on the same cause of action as 
the informal complaint filed under this section. If no formal complaint 
is filed within the 45-day period, the complainant will be deemed to 
have abandoned its right to bring a formal complaint regarding the cause 
of action at issue.

[65 FR 47690, Aug. 3, 2000]

                            Formal Complaints



Sec. 1.720  General pleading requirements.

    Formal complaint proceedings are generally resolved on a written 
record consisting of a complaint, answer, and joint statement of 
stipulated facts, disputed facts and key legal issues, along with all 
associated affidavits, exhibits and other attachments. Commission 
proceedings may also require or permit other written submissions such as

[[Page 181]]

briefs, written interrogatories, and other supplementary documents or 
pleadings. Those formal complaint proceedings handled on the Enforcement 
Bureau's Accelerated Docket are subject to pleading and procedural rules 
that differ in some respects from the general rules for formal complaint 
proceedings.
    (a) Pleadings must be clear, concise, and explicit. All matters 
concerning a claim, defense or requested remedy, including damages, 
should be pleaded fully and with specificity.
    (b) Pleadings must contain facts which, if true, are sufficient to 
constitute a violation of the Act or Commission order or regulation, or 
a defense to such alleged violation.
    (c) Facts must be supported by relevant documentation or affidavit.
    (d) Legal arguments must be supported by appropriate judicial, 
Commission, or statutory authority.
    (e) Opposing authorities must be distinguished.
    (f) Copies must be provided of all non-Commission authorities relied 
upon which are not routinely available in national reporting systems, 
such as unpublished decisions or slip opinions of courts or 
administrative agencies.
    (g) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending complaint proceeding. Information submitted, as well as relevant 
legal authorities, must be current and updated as necessary and in a 
timely manner at any time before a decision is rendered on the merits of 
the complaint.
    (h) Specific reference shall be made to any tariff provision relied 
on in support of a claim or defense. Copies of relevant tariffs or 
relevant portions of tariffs that are referred to or relied upon in a 
complaint, answer, or other pleading shall be appended to such 
complaint, answer, or other pleading.
    (i) All statements purporting to summarize or explain Commission 
orders or policies must cite, in standard legal form, the Commission 
ruling upon which such statements are based.
    (j) Pleadings shall identify the name, address, telephone number, 
and facsimile transmission number for either the filing party's attorney 
or, where a party is not represented by an attorney, the filing party.

[53 FR 11852, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993; 
63 FR 1035, Jan. 7, 1998; 63 FR 41446, Aug. 4, 1998; 64 FR 60725, Nov. 
8, 1999]



Sec. 1.721  Format and content of complaints.

    (a) Subject to paragraph (e) of this section governing supplemental 
complaints filed pursuant to Sec. 1.722, and paragraph (f) of this 
section governing Accelerated Docket proceedings, a formal complaint 
shall contain:
    (1) The name of each complainant and defendant;
    (2) The occupation, address and telephone number of each complainant 
and, to the extent known, each defendant;
    (3) The name, address, and telephone number of complainant's 
attorney, if represented by counsel;
    (4) Citation to the section of the Communications Act and/or order 
and/or regulation of the Commission alleged to have been violated.
    (5) A complete statement of facts which, if proven true, would 
constitute such a violation. All material facts must be supported, 
pursuant to the requirements of Sec. 1.720(c) and paragraph (a)(11) of 
this section, by relevant affidavits and documentation, including copies 
of relevant written agreements, offers, counter-offers, denials, or 
other related correspondence. The statement of facts shall include a 
detailed explanation of the manner and time period in which a defendant 
has allegedly violated the Act, Commission order, or Commission rule in 
question, including a full identification or description of the 
communications, transmissions, services, or other carrier conduct 
complained of and the nature of any injury allegedly sustained by the 
complainant. Assertions based on information and belief are expressly 
prohibited unless made in good faith and accompanied by an affidavit 
explaining the basis for the plaintiff's belief and why the complainant 
could not reasonably ascertain the facts from the defendant or any other 
source;

[[Page 182]]

    (6) Proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the 
complaint;
    (7) The relief sought, including recovery of damages and the amount 
of damages claimed, if known;
    (8) Certification that the complainant has, in good faith, discussed 
or attempted to discuss the possibility of settlement with each 
defendant prior to the filing of the formal complaint. Such 
certification shall include a statement that, prior to the filing of the 
complaint, the complainant mailed a certified letter outlining the 
allegations that form the basis of the complaint it anticipated filing 
with the Commission to the defendant carrier or one of the defendant's 
registered agents for service of process that invited a response within 
a reasonable period of time and a brief summary of all additional steps 
taken to resolve the dispute prior to the filing of the formal 
complaint. If no additional steps were taken, such certificate shall 
state the reason(s) why the complainant believed such steps would be 
fruitless;
    (9) Whether a separate action has been filed with the Commission, 
any court, or other government agency that is based on the same claim or 
same set of facts, in whole or in part, or whether the complaint seeks 
prospective relief identical to the relief proposed or at issue in a 
notice-and-comment proceeding that is concurrently before the 
Commission;
    (10) An information designation containing:
    (i) The name, address, and position of each individual believed to 
have firsthand knowledge of the facts alleged with particularity in the 
complaint, along with a description of the facts within any such 
individual's knowledge;
    (ii) A description of all documents, data compilations and tangible 
things in the complainant's possession, custody, or control, that are 
relevant to the facts alleged with particularity in the complaint. Such 
description shall include for each document:
    (A) The date it was prepared, mailed, transmitted, or otherwise 
disseminated;
    (B) The author, preparer, or other source;
    (C) The recipient(s) or intended recipient(s);
    (D) Its physical location; and
    (E) A description of its relevance to the matters contained in the 
complaint; and
    (iii) A complete description of the manner in which the complainant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and information;
    (11) Copies of all affidavits, documents, data compilations and 
tangible things in the complainant's possession, custody, or control, 
upon which the complainant relies or intends to rely to support the 
facts alleged and legal arguments made in the complaint;
    (12) A completed Formal Complaint Intake Form;
    (13) A declaration, under penalty of perjury, by the complainant or 
complainant's counsel describing the amount, method, and date of the 
complainant's payment of the filing fee required under Sec. 1.1106 and 
the complainant's 10-digit FCC Registration Number, if any;
    (14) A certificate of service; and
    (15) A FCC Registration Number is required under Part 1, Subpart W. 
Submission of a complaint without the FCC Registration Number as 
required by Part 1, subpart W will result in dismissal of the complaint.
    (b) The following format may be used in cases to which it is 
applicable, with such modifications as the circumstances may render 
necessary:

   Before the Federal Communications Commission, Washington, DC 20554

    In the matter of

________________________________________________________________________
Complainant,

 v.

________________________________________________________________________
Defendant.

File No. (To be inserted by the Enforcement Bureau)

[[Page 183]]

                                Complaint

To: The Commission.
    The complainant (here insert full name of each complainant and, if a 
corporation, the corporate title of such complainant) shows that:
    1. (Here state occupation, post office address, and telephone number 
of each complainant).
    2. (Here insert the name, occupation and, to the extent known, 
address and telephone number of defendants).
    3. (Here insert fully and clearly the specific act or thing 
complained of, together with such facts as are necessary to give a full 
understanding of the matter, including relevant legal and documentary 
support).
    Wherefore, complainant asks (here state specifically the relief 
desired).

________________________________________________________________________
(Date)

________________________________________________________________________
(Name of each complainant)

________________________________________________________________________

(Name, address, and telephone number of attorney, if any)

    (c) Where the complaint is filed pursuant to Sec. 47 U.S.C. Sec. 
271(d)(6)(B), the complainant shall clearly indicate whether or not it 
is willing to waive the ninety-day resolution deadline contained within 
47 U.S.C. 271(d)(6)(B), in accordance with the requirements of Sec. 
1.736.
    (d) The complainant may petition the staff, pursuant to Sec. 1.3, 
for a waiver of any of the requirements of this section. Such waiver may 
be granted for good cause shown.
    (e) Supplemental complaints. (1) Supplemental complaints filed 
pursuant to Sec. 1.722 shall conform to the requirements set out in 
this section and Sec. 1.720, except that the requirements in Sec. Sec. 
1.720(b), 1.721(a)(4), (a) (5), (a)(8), (9), (a)(12), and (a)(13) shall 
not apply to such supplemental complaints;
    (2) In addition, supplemental complaints filed pursuant to Sec. 
1.722 shall contain a complete statement of facts which, if proven true, 
would support complainant's calculation of damages for each category of 
damages for which recovery is sought. All material facts must be 
supported, pursuant to the requirements of Sec. 1.720(c) and paragraph 
(a)(11) of this section, by relevant affidavits and other documentation. 
The statement of facts shall include a detailed explanation of the 
matters relied upon, including a full identification or description of 
the communications, transmissions, services, or other matters relevant 
to the calculation of damages and the nature of any injury allegedly 
sustained by the complainant. Assertions based on information and belief 
are expressly prohibited unless made in good faith and accompanied by an 
affidavit explaining the basis for the complainant's belief and why the 
complainant could not reasonably ascertain the facts from the defendant 
or any other source;
    (3) Supplemental complaints filed pursuant to Sec. 1.722 shall 
contain a certification that the complainant has, in good faith, 
discussed or attempted to discuss the possibility of settlement with 
respect to damages for which recovery is sought with each defendant 
prior to the filing of the supplemental complaint. Such certification 
shall include a statement that, no later than 30 days after the release 
of the liability order, the complainant mailed a certified letter to the 
primary individual who represented the defendant carrier during the 
initial complaint proceeding outlining the allegations that form the 
basis of the supplemental complaint it anticipates filing with the 
Commission and inviting a response from the carrier within a reasonable 
period of time. The certification shall also contain a brief summary of 
all additional steps taken to resolve the dispute prior to the filing of 
the supplemental complaint. If no additional steps were taken, such 
certification shall state the reason(s) why the complainant believed 
such steps would be fruitless.
    (f) Complaints on the Accelerated Docket. For the purpose of this 
paragraph (e), the term document also shall include data compilations 
and tangible things.
    (1) Formal complaints that have been accepted onto the Accelerated 
Docket shall conform to the requirements set out in this section with 
the following listed exceptions:
    (i) The requirement in Sec. 1.720(c) and paragraphs (a)(5) and 
(a)(11) of this section that factual assertions be supported by 
affidavit shall not apply to complaints on the Accelerated Docket. 
Nevertheless, allegations of material

[[Page 184]]

fact, whether based on personal knowledge or information and belief, 
that cannot be supported by documentation remain subject to the 
provisions of Sec. 1.52.
    (ii) Complaints on the Accelerated Docket are not required to 
include proposed findings of fact, conclusions of law, and legal 
analysis relevant to the claims and arguments set forth in the 
complaint, as required in paragraph (a)(6) of this section. 
Nevertheless, complaints on the Accelerated Docket shall fully set out 
the facts and legal theories on which the complainant premises its 
claims.
    (iii) In light of the requirement for staff-supervised settlement 
negotiations in Sec. 1.730(b), complaints on the Accelerated Docket are 
not required to include a certification that the complainant has 
discussed or attempted to discuss the possibility of settlement with 
each defendant, as required in paragraph (a)(8) of this section.
    (iv) In light of the automatic document production required in Sec. 
1.729(i)(1), complaints on the Accelerated Docket are not required to 
include a description of all relevant documents in the complainant's 
possession, custody or control, as required in paragraph (a)(10)(ii) of 
this section.
    (v) Complaints on the Accelerated Docket are not required to provide 
the description, required in paragraph (a)(10)(iii) of this section, of 
the manner in which the complainant identified persons with knowledge 
of, and documents relevant to, the dispute.
    (2) Formal complaints that have been accepted onto the Accelerated 
Docket will comply with the following requirements in addition to those 
requirements generally applicable in formal complaint proceedings:
    (i) As required in Sec. 1.729(i)(1), complaints on the Accelerated 
Docket shall be accompanied, when served on defendants, by copies of 
documents, within the complainant's possession, custody or control, that 
are likely to bear significantly on the issues raised in the complaint. 
Unless otherwise directed, these documents shall not be filed with the 
Commission.
    (ii) Complaints on the Accelerated Docket will bear the following 
notation in bold typeface above the normal caption on the first page: 
``Accelerated Docket Proceeding: Answer Due Within Ten Days of Service 
Date.''

[53 FR 11853, Apr. 11, 1988, as amended at 63 FR 1035, Jan. 7, 1998; 63 
FR 41446, Aug. 4, 1998; 64 FR 60725, Nov. 8, 1999; 66 FR 16616, Mar. 27, 
2001; 66 FR 47895, Sept. 14, 2001; 69 FR 41130, July 7, 2004]



Sec. 1.722  Damages.

    (a) If a complainant wishes to recover damages, the complaint must 
contain a clear and unequivocal request for damages.
    (b) If a complainant wishes a determination of damages to be made in 
the same proceeding as the determinations of liability and prospective 
relief, the complaint must contain the allegations and information 
required by paragraph (h) of this section.
    (c) Notwithstanding paragraph (b) of this section, in any proceeding 
to which no statutory deadline applies, if the Commission decides that a 
determination of damages would best be made in a proceeding that is 
separate from and subsequent to the proceeding in which the 
determinations of liability and prospective relief are made, the 
Commission may at any time order that the initial proceeding will 
determine only liability and prospective relief, and that a separate, 
subsequent proceeding initiated in accordance with paragraph (e) of this 
section will determine damages.
    (d) If a complainant wishes a determination of damages to be made in 
a proceeding that is separate from and subsequent to the proceeding in 
which the determinations of liability and prospective relief are made, 
the complainant must:
    (1) Comply with paragraph (a) of this section, and
    (2) State clearly and unequivocally that the complainant wishes a 
determination of damages to be made in a proceeding that is separate 
from and subsequent to the proceeding in which the determinations of 
liability and prospective relief will be made.
    (e) If a complainant proceeds pursuant to paragraph (d) of this 
section, or if the Commission invokes its authority under paragraph (c) 
of this section,

[[Page 185]]

the complainant may initiate a separate proceeding to obtain a 
determination of damages by filing a supplemental complaint that 
complies with Sec. 1.721(e) and paragraph (h) of this section within 
sixty days after public notice (as defined in Sec. 1.4(b) of this 
chapter) of a decision that contains a finding of liability on the 
merits of the original complaint.
    (f) If a complainant files a supplemental complaint for damages in 
accordance with paragraph (e) of this section, the supplemental 
complaint shall be deemed, for statutory limitations purposes, to relate 
back to the date of the original complaint.
    (g) Where a complainant chooses to seek the recovery of damages upon 
a supplemental complaint in accordance with the requirements of 
paragraph (e) of this section, the Commission will resolve the separate, 
preceding liability complaint within any applicable complaint resolution 
deadlines contained in the Act.
    (h) In all cases in which recovery of damages is sought, it shall be 
the responsibility of the complainant to include, within either the 
complaint or supplemental complaint for damages filed in accordance with 
paragraph (e) of this section, either:
    (1) A computation of each and every category of damages for which 
recovery is sought, along with an identification of all relevant 
documents and materials or such other evidence to be used by the 
complainant to determine the amount of such damages; or
    (2) An explanation of:
    (i) The information not in the possession of the complaining party 
that is necessary to develop a detailed computation of damages;
    (ii) Why such information is unavailable to the complaining party;
    (iii) The factual basis the complainant has for believing that such 
evidence of; damages exists;
    (iv) A detailed outline of the methodology that would be used to 
create a computation of damages with such evidence.
    (i) Where a complainant files a supplemental complaint for damages 
in accordance with paragraph (e) of this section, the following 
procedures may apply:
    (1) Issues concerning the amount, if any, of damages may be either 
designated by the Enforcement Bureau for hearing before, or, if the 
parties agree, submitted for mediation to, a Commission Administrative 
Law Judge. Such Administrative Law Judge shall be chosen in the 
following manner:
    (i) By agreement of the parties and the Chief Administrative Law 
Judge; or
    (ii) In the absence of such agreement, the Chief Administrative Law 
Judge shall designate the Administrative Law Judge.
    (2) The Commission may, in its discretion, order the defendant 
either to post a bond for, or deposit into an interest bearing escrow 
account, a sum equal to the amount of damages which the Commission 
finds, upon preliminary investigation, is likely to be ordered after the 
issue of damages is fully litigated, or some lesser sum which may be 
appropriate, provided the Commission finds that the grant of this relief 
is favored on balance upon consideration of the following factors:
    (i) The complainant's potential irreparable injury in the absence of 
such deposit;
    (ii) The extent to which damages can be accurately calculated;
    (iii) The balance of the hardships between the complainant and the 
defendant; and
    (iv) Whether public interest considerations favor the posting of the 
bond or ordering of the deposit.
    (3) The Commission may, in its discretion, suspend ongoing damages 
proceedings for fourteen days, to provide the parties with a time within 
which to pursue settlement negotiations and/or alternative dispute 
resolution procedures.
    (4) The Commission may, in its discretion, end adjudication of 
damages with a determination of the sufficiency of a damages computation 
method or formula. No such method or formula shall contain a provision 
to offset any claim of the defendant against the complainant. The 
parties shall negotiate in good faith to reach an agreement on the exact 
amount of damages pursuant to the Commission-mandated method or formula. 
Within thirty days of the release date of the damages

[[Page 186]]

order, parties shall submit jointly to the Commission either:
    (i) A statement detailing the parties' agreement as to the amount of 
damages;
    (ii) A statement that the parties are continuing to negotiate in 
good faith and a request that the parties be given an extension of time 
to continue negotiations; or
    (iii) A statement detailing the bases for the continuing dispute and 
the reasons why no agreement can be reached.
    (j) Except where otherwise indicated, the rules governing initial 
formal complaint proceedings govern supplemental formal complaint 
proceedings, as well.

[66 FR 16616, Mar. 27, 2001]



Sec. 1.723  Joinder of complainants and causes of action.

    (a) Two or more complainants may join in one complaint if their 
respective causes of action are against the same defendant and concern 
substantially the same facts and alleged violation of the Communications 
Act.
    (b) Two or more grounds of complaint involving the same principle, 
subject, or statement of facts may be included in one complaint, but 
should be separately stated and numbered.

[53 FR 11853, Apr. 11, 1988]



Sec. 1.724  Answers.

    (a) Subject to paragraph (k) of this section governing Accelerated 
Docket proceedings, any carrier upon which a copy of a formal complaint 
is served shall answer such complaint in the manner prescribed under 
this section within twenty days of service of the formal complaint by 
the complainant, unless otherwise directed by the Commission.
    (b) The answer shall advise the complainant and the Commission fully 
and completely of the nature of any defense, and shall respond 
specifically to all material allegations of the complaint. Every effort 
shall be made to narrow the issues in the answer. The defendant shall 
state concisely its defense to each claim asserted, admit or deny the 
averments on which the complainant relies, and state in detail the basis 
for admitting or denying such averment. General denials are prohibited. 
Denials based on information and belief are expressly prohibited unless 
made in good faith and accompanied by an affidavit explaining the basis 
for the defendant's belief and why the defendant could not reasonably 
ascertain the facts from the complainant or any other source. If the 
defendant is without knowledge or information sufficient to form a 
belief as to the truth of an averment, the defendant shall so state and 
this has the effect of a denial. When a defendant intends in good faith 
to deny only part of an averment, the defendant shall specify so much of 
it as is true and shall deny only the remainder. The defendant may deny 
the allegations of the complaint as specific denials of either 
designated averments or paragraphs.
    (c) The answer shall contain proposed findings of fact, conclusions 
of law, and legal analysis relevant to the claims and arguments set 
forth in the answer.
    (d) Averments in a complaint or supplemental complaint filed 
pursuant to Sec. 1.722 are deemed to be admitted when not denied in the 
answer.
    (e) Affirmative defenses to allegations contained in the complaint 
shall be specifically captioned as such and presented separately from 
any denials made in accordance with paragraph (c) of this section.
    (f) The answer shall include an information designation containing:
    (1) The name, address, and position of each individual believed to 
have firsthand knowledge of the facts alleged with particularity in the 
answer, along with a description of the facts within any such 
individual's knowledge;
    (2) A description of all documents, data compilations and tangible 
things in the defendant's possession, custody, or control, that are 
relevant to the facts alleged with particularity in the answer. Such 
description shall include for each document:
    (i) The date it was prepared, mailed, transmitted, or otherwise 
disseminated;
    (ii) The author, preparer, or other source;
    (iii) The recipient(s) or intended recipient(s);
    (iv) Its physical location; and

[[Page 187]]

    (v) A description of its relevance to the matters in dispute.
    (3) A complete description of the manner in which the defendant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and information;
    (g) The answer shall attach copies of all affidavits, documents, 
data compilations and tangible things in the defendant's possession, 
custody, or control, upon which the defendant relies or intends to rely 
to support the facts alleged and legal arguments made in the answer.
    (h) The answer shall contain certification that the defendant has, 
in good faith, discussed or attempted to discuss, the possibility of 
settlement with the complainant prior to the filing of the formal 
complaint. Such certification shall include a brief summary of all steps 
taken to resolve the dispute prior to the filing of the formal 
complaint. If no such steps were taken, such certificate shall state the 
reason(s) why the defendant believed such steps would be fruitless;
    (i) Where the complaint is filed pursuant to 47 U.S.C. 271(d)(6)(B), 
the defendant shall clearly indicate its willingness to waive the 90-day 
resolution deadline contained within 47 U.S.C. 271(d)(6)(B), in 
accordance with the requirements of Sec. 1.736.
    (j) The defendant may petition the staff, pursuant to Sec. 1.3, for 
a waiver of any of the requirements of this section. Such waiver may be 
granted for good cause shown.
    (k) Accelerated Docket Proceedings. For the purpose of this 
paragraph (k), the term document also shall include data compilations 
and tangible things.
    (1) Any party named as a defendant in an Accelerated Docket formal 
complaint shall answer such complaint in the manner prescribed under 
this section within ten days of service of the complaint by the 
complainant, unless otherwise directed by the Commission. Except as set 
forth in this paragraph (k), answers in Accelerated Docket proceedings 
shall comply with the requirements of this section.
    (2) The requirement in Sec. 1.720(c) and paragraph (g) of this 
section that factual assertions be supported by affidavit shall not 
apply to answers in Accelerated Docket proceedings. Nevertheless, 
allegations of material fact, whether based on personal knowledge or 
information and belief, that cannot be supported by documentation remain 
subject to the provisions of Sec. 1.52.
    (3) Answers on the Accelerated Docket are not required to include 
proposed findings of fact, conclusions of law, and legal analysis 
relevant to the defenses and arguments set forth in the answer, as 
required in paragraph (c) of this section. Nevertheless, answers on the 
Accelerated Docket shall fully set out the facts and legal theories on 
which the defendant premises its defenses.
    (4) In light of the requirement for staff-supervised settlement 
negotiations required in Sec. 1.730(b), answers on the Accelerated 
Docket are not required to include a certification that the defendant 
has discussed, or attempted to discuss, the possibility of settlement 
with the complainant, as required in paragraph (h) of this section.
    (5) As required in Sec. 1.729(i)(1), answers on the Accelerated 
Docket shall be accompanied, when served on complainants, by copies of 
documents, within the defendant's possession, custody or control, that 
are likely to bear significantly on the issues raised in the proceeding. 
Unless otherwise directed, these documents shall not be filed with the 
Commission. In light of this automatic document production requirement, 
answers on the Accelerated Docket are not required to include a 
description of all relevant documents in the defendant's possession, 
custody or control, as required in paragraph (f)(2) of this section.
    (6) Answers on the Accelerated Docket are not required to provide 
the description, required in paragraph (f)(3) of this section, of the 
manner in which the defendant identified persons with knowledge of, and 
documents relevant to, the dispute.
    (7) In Accelerated Docket proceedings, the defendant, as required in

[[Page 188]]

Sec. 1.729(i)(1), shall serve, contemporaneously with its answer, the 
complainant(s) with copies of documents, within the defendant's 
possession, custody or control, that are likely to bear significantly on 
the issues raised in the complaint and/or the answer.

[53 FR 11853, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993; 
63 FR 1037, Jan. 7, 1998; 63 FR 41446, Aug. 4, 1998; 66 FR 16617, Mar. 
27, 2001]



Sec. 1.725  Cross-complaints and counterclaims.

    Cross-complaints seeking any relief within the jurisdiction of the 
Commission against any carrier that is a party (complainant or 
defendant) to that proceeding are expressly prohibited. Any claim that 
might otherwise meet the requirements of a cross-complaint may be filed 
as a separate complaint in accordance with Sec. Sec. 1.720 through 
1.736. For purposes of this subpart, the term ``cross-complaint'' shall 
include counterclaims.

[63 FR 1037, Jan. 7, 1998]



Sec. 1.726  Replies.

    (a) Subject to paragraph (g) of this section governing Accelerated 
Docket proceedings, within three days after service of an answer 
containing affirmative defenses presented in accordance with the 
requirements of Sec. 1.724(e), a complainant may file and serve a reply 
containing statements of relevant, material facts and legal arguments 
that shall be responsive to only those specific factual allegations and 
legal arguments made by the defendant in support of its affirmative 
defenses. Replies which contain other allegations or arguments will not 
be accepted or considered by the Commission.
    (b) Failure to reply to an affirmative defense shall be deemed an 
admission of such affirmative defense and of any facts supporting such 
affirmative defense that are not specifically contradicted in the 
complaint.
    (c) The reply shall contain proposed findings of fact, conclusions 
of law, and legal analysis relevant to the claims and arguments set 
forth in the reply.
    (d) The reply shall include an information designation containing:
    (1) The name, address and position of each individual believed to 
have firsthand knowledge about the facts alleged with particularity in 
the reply, along with a description of the facts within any such 
individual's knowledge.
    (2) A description of all documents, data compilations and tangible 
things in the complainant's possession, custody, or control that are 
relevant to the facts alleged with particularity in the reply. Such 
description shall include for each document:
    (i) The date prepared, mailed, transmitted, or otherwise 
disseminated;
    (ii) The author, preparer, or other source;
    (iii) The recipient(s) or intended recipient(s);
    (iv) Its physical location; and
    (v) A description of its relevance to the matters in dispute.
    (3) A complete description of the manner in which the complainant 
identified all persons with information and designated all documents, 
data compilations and tangible things as being relevant to the dispute, 
including, but not limited to, identifying the individual(s) that 
conducted the information search and the criteria used to identify such 
persons, documents, data compilations, tangible things, and information;
    (e) The reply shall attach copies of all affidavits, documents, data 
compilations and tangible things in the complainant's possession, 
custody, or control upon which the complainant relies or intends to rely 
to support the facts alleged and legal arguments made in the reply.
    (f) The complainant may petition the staff, pursuant to Sec. 1.3, 
for a waiver of any of the requirements of this section. Such waiver may 
be granted for good cause shown.
    (g) Accelerated Docket Proceedings. For the purpose of this 
paragraph (g), the term document also shall include data compilations 
and tangible things.
    (1) The filing of a separate pleading to reply to affirmative 
defenses is not permitted in Accelerated Docket proceedings. 
Complainants in such proceedings may include, in the Sec. 1.733(i)(4) 
pre-status-conference filing, those statements that otherwise would have 
been the subject of a reply.
    (2) In Accelerated Docket proceedings, the failure to reply, in the

[[Page 189]]

pre-status-conference filing, to an affirmative defense shall be deemed 
an admission of such affirmative defense and of any facts supporting 
such affirmative defense that are not specifically contradicted in the 
complaint.
    (3) If a complainant replies to an affirmative defense in its Sec. 
1.733(i)(4), pre-status-conference filing, it shall include in that 
filing the information, required by paragraph (d)(1) of this section, 
identifying individuals with firsthand knowledge of the facts alleged in 
the reply.
    (4) An Accelerated Docket complainant that replies to an affirmative 
defense in its Sec. 1.733(i)(4), pre-status-conference filing also 
shall serve on the defendant, at the same time as that filing, those 
documents in the complainant's possession, custody or control that were 
not previously produced to the defendant and that are likely to bear 
significantly on the issues raised in the reply. Such a complainant is 
not required to comply with the remainder of the requirements in 
paragraphs (d) and (e) of this section.

[63 FR 1037, Jan. 7, 1998, as amended at 63 FR 41447, Aug. 4, 1998; 66 
FR 16617, Mar. 27, 2001]



Sec. 1.727  Motions.

    (a) A request to the Commission for an order shall be by written 
motion, stating with particularity the grounds and authority therefor, 
and setting forth the relief or order sought.
    (b) All dispositive motions shall contain proposed findings of fact 
and conclusions of law, with supporting legal analysis, relevant to the 
contents of the pleading. Motions to compel discovery must contain a 
certification by the moving party that a good faith attempt to resolve 
the dispute was made prior to filing the motion. All facts relied upon 
in motions must be supported by documentation or affidavits pursuant to 
the requirements of Sec. 1.720(c), except for those facts of which 
official notice may be taken.
    (c) The moving party shall provide a proposed order for adoption, 
which appropriately incorporates the basis therefor, including proposed 
findings of fact and conclusions of law relevant to the pleading. The 
proposed order shall be clearly marked as a ``Proposed Order.'' The 
proposed order shall be submitted both as a hard copy and on computer 
disk in accordance with the requirements of Sec. 1.734(d). Where 
appropriate, the proposed order format should conform to that of a 
reported FCC order.
    (d) Oppositions to any motion shall be accompanied by a proposed 
order for adoption, which appropriately incorporates the basis therefor, 
including proposed findings of fact and conclusions of law relevant to 
the pleading. The proposed order shall be clearly captioned as a 
``Proposed Order.'' The proposed order shall be submitted both as a hard 
copy and on computer disk in accordance with the requirements of Sec. 
1.734(d). Where appropriate, the proposed order format should conform to 
that of a reported FCC order.
    (e) Oppositions to motions may be filed and served within five 
business days after the motion is filed and served and not after. 
Oppositions shall be limited to the specific issues and allegations 
contained in such motion; when a motion is incorporated in an answer to 
a complaint, the opposition to such motion shall not address any issues 
presented in the answer that are not also specifically raised in the 
motion. Failure to oppose any motion may constitute grounds for granting 
of the motion.
    (f) No reply may be filed to an opposition to a motion.
    (g) Motions seeking an order that the allegations in the complaint 
be made more definite and certain are prohibited.
    (h) Amendments or supplements to complaints to add new claims or 
requests for relief are prohibited. Parties are responsible, however, 
for the continuing accuracy and completeness of all information and 
supporting authority furnished in a pending complaint proceeding as 
required under Sec. 1.720(g).

[53 FR 11854, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993; 
63 FR 1036, Jan. 7, 1998; 63 FR 41447, Aug. 4, 1998]



Sec. 1.728  Formal complaints not stating a cause of action; defective 
pleadings.

    (a) Any document purporting to be a formal complaint which does not 
state a cause of action under the Communications Act will be dismissed. 
In such

[[Page 190]]

case, any amendment or supplement to such document will be considered a 
new filing which must be made within the statutory periods of 
limitations of actions contained in section 415 of the Communications 
Act.
    (b) Any other pleading filed in a formal complaint proceeding not in 
conformity with the requirements of the applicable rules in this part 
may be deemed defective. In such case the Commission may strike the 
pleading or request that specified defects be corrected and that proper 
pleadings be filed with the Commission and served on all parties within 
a prescribed time as a condition to being made a part of the record in 
the proceeding.

[53 FR 11854, Apr. 11, 1988]



Sec. 1.729  Discovery.

    (a) Subject to paragraph (i) of this section governing Accelerated 
Docket proceedings, a complainant may file with the Commission and serve 
on a defendant, concurrently with its complaint, a request for up to ten 
written interrogatories. A defendant may file with the Commission and 
serve on a complainant, during the period starting with the service of 
the complaint and ending with the service of its answer, a request for 
up to ten written interrogatories. A complainant may file with the 
Commission and serve on a defendant, within three calendar days of 
service of the defendant's answer, a request for up to five written 
interrogatories. Subparts of any interrogatory will be counted as 
separate interrogatories for purposes of compliance with this limit. 
Requests for interrogatories filed and served pursuant to this procedure 
may be used to seek discovery of any non-privileged matter that is 
relevant to the material facts in dispute in the pending proceeding, 
provided, however, that requests for interrogatories filed and served by 
a complainant after service of the defendant's answer shall be limited 
in scope to specific factual allegations made by the defendant in 
support of its affirmative defenses. This procedure may not be employed 
for the purpose of delay, harassment or obtaining information that is 
beyond the scope of permissible inquiry related to the material facts in 
dispute in the pending proceeding.
    (b) Requests for interrogatories filed and served pursuant to 
paragraph (a) of this section shall contain a listing of the 
interrogatories requested and an explanation of why the information 
sought in each interrogatory is both necessary to the resolution of the 
dispute and not available from any other source.
    (c) A responding party shall file with the Commission and serve on 
the propounding party any opposition and objections to the requests for 
interrogatories as follows:
    (1) By the defendant, within ten calendar days of service of the 
requests for interrogatories served simultaneously with the complaint 
and within five calendar days of the requests for interrogatories served 
following service of the answer;
    (2) By the complainant, within five calendar days of service of the 
requests for interrogatories; and
    (3) In no event less than three calendar days prior to the initial 
status conference as provided for in Sec. 1.733(a).
    (d) Commission staff will consider the requests for interrogatories, 
properly filed and served pursuant to paragraph (a) of this section, 
along with any objections or oppositions thereto, properly filed and 
served pursuant to paragraph (b) of this section, at the initial status 
conference, as provided for in Sec. 1.733(a)(5), and at that time 
determine the interrogatories, if any, to which parties shall respond, 
and set the schedule of such response.
    (e) The interrogatories ordered to be answered pursuant to paragraph 
(d) of this section are to be answered separately and fully in writing 
under oath or affirmation by the party served, or if such party is a 
public or private corporation or partnership or association, by any 
officer or agent who shall furnish such information as is available to 
the party. The answers shall be signed by the person making them. The 
answers shall be filed with the Commission and served on the propounding 
party.
    (f) A propounding party asserting that a responding party has 
provided an inadequate or insufficient response to Commission-ordered 
discovery request may file a motion to compel within ten days of the 
service of such

[[Page 191]]

response, or as otherwise directed by Commission staff, pursuant to the 
requirements of Sec. 1.727.
    (g) The Commission may, in its discretion, require parties to 
provide documents to the Commission in a scanned or other electronic 
format that provides:
    (1) Indexing by useful identifying information about the documents; 
and
    (2) Technology that allows staff to annotate the index so as to make 
the format an efficient means of reviewing the documents.
    (h) The Commission may allow additional discovery, including, but 
not limited to, document production, depositions and/or additional 
interrogatories. In its discretion, the Commission may modify the scope, 
means and scheduling of discovery in light of the needs of a particular 
case and the requirements of applicable statutory deadlines.
    (i) Discovery in Accelerated Docket proceedings. (1) Each party to 
an Accelerated Docket proceeding shall serve, with its initial pleading 
and with any reply statements in the pre-status-conference filing (see 
Sec. 1.726(g)(1)), copies of all documents in the possession, custody 
or control of the party that are likely to bear significantly on any 
claim or defense. For the purpose of this paragraph (i), document also 
shall include data compilations and tangible things. A document is 
likely to bear significantly on a claim or defense if it:
    (i) Appears likely to have an influence on, or affect the outcome 
of, a claim or defense;
    (ii) Reflects the relevant knowledge of persons who, if their 
potential testimony were known, might reasonably be expected to be 
deposed or called as a witness by any of the parties;
    (iii) Is something that competent counsel would consider reasonably 
necessary to prepare, evaluate or try a claim or defense; or
    (iv) Would not support the disclosing party's contentions.
    (2) In their Sec. 1.733(i)(4) pre-status-conference filings, 
parties to Accelerated Docket proceedings may request the production of 
additional documents. In their Sec. 1.733(i)(4) filings, parties may 
also seek leave to conduct a reasonable number of depositions, including 
depositions of expert witnesses, if any. When requesting additional 
discovery, each party shall be prepared at the status conference to 
justify its requests by identifying the specific issue or issues on 
which it expects to obtain evidence from each request.
    (3) Interrogatories shall not be routinely granted in Accelerated 
Docket proceedings. A party to an Accelerated Docket proceeding that 
prefers interrogatories to the other forms of available discovery, for 
reasons of convenience or expense, may seek leave in its Sec. 
1.733(i)(4) pre-status-conference filing to propound a limited number of 
interrogatories.
    (4) Expert Witnesses.
    (i) Any complainant in an Accelerated Docket proceeding that intends 
to rely on expert testimony for a purpose other than to rebut a 
defendant's expert evidence, shall identify its expert witnesses in the 
information designation required by Sec. 1.721(a)(10)(i). In its Sec. 
1.721(a)(10)(i) information designation, such a complainant shall also 
provide its expert statement. For purposes of this paragraph (i)(4), an 
expert statement shall include a brief statement of the opinions to be 
expressed by the expert, the basis and reasons therefor and any data or 
other information that the witness considered in forming her opinions.
    (ii) Any defendant in an Accelerated Docket proceeding that intends 
to rely on expert testimony shall identify its expert witnesses in the 
information designation required by Sec. 1.724(f)(1). Such a defendant 
shall provide its expert statement with its Sec. 1.733(i)(4), pre-
status-conference filing.
    (iii) Any complainant in an Accelerated Docket proceeding that 
intends to rely on previously undisclosed expert testimony to rebut any 
portion of the defendant's case shall identify the expert and provide 
the appropriate expert statement at the initial status conference.
    (iv) Expert witnesses shall be subject to deposition in Accelerated 
Docket proceedings under the same rules and limitations applicable to 
fact witnesses.

[63 FR 1038, Jan. 7, 1998, as amended at 63 FR 41447, Aug. 4, 1998]

[[Page 192]]



Sec. 1.730  The Enforcement Bureau's Accelerated Docket.

    (a) Parties to formal complaint proceedings against common carriers 
within the responsibility of the Enforcement Bureau (see Sec. Sec. 
0.111, 0.311, 0.314 of this chapter) may request inclusion on the 
Bureau's Accelerated Docket. As set out in Sec. Sec. 1.720 through 
1.736, proceedings on the Accelerated Docket are subject to shorter 
pleading deadlines and certain other procedural rules that do not apply 
to other formal complaint proceedings before the Enforcement Bureau.
    (b) Any party that contemplates filing a formal complaint may submit 
a request to the Chief of the Enforcement Bureau's Market Disputes 
Resolution Division, either by phone or in writing, seeking inclusion of 
its complaint, once filed, on the Accelerated Docket. In appropriate 
cases, Commission staff shall schedule and supervise pre-filing 
settlement negotiations between the parties to the dispute. If the 
parties do not resolve their dispute and the matter is accepted for 
handling on the Accelerated Docket, the complainant shall file its 
complaint with a letter stating that it has gained admission to the 
Accelerated Docket. When it files its complaint, such a complainant 
shall also serve a copy of its complaint on the Commission staff that 
supervised the pre-filing settlement discussions.
    (c) Within five days of receiving service of a complaint, any 
defendant in a formal complaint proceeding may submit by facsimile or 
hand delivery, to the Chief of the Enforcement Bureau's Market Disputes 
Resolution Division, a request seeking inclusion of its proceeding on 
the Accelerated Docket. Such a defendant contemporaneously shall 
transmit, in the same manner, a copy of its request to all parties to 
the proceeding. A defendant submitting such a request shall file and 
serve its answer in compliance with the requirements of Sec. 1.724(k), 
except that the defendant shall not be required to serve with its answer 
the automatic document production required by Sec. Sec. 1.724(k)(7) and 
1.729(i)(1). In proceedings accepted onto the Accelerated Docket at a 
defendant's request, the Commission staff will conduct supervised 
settlement discussions as appropriate. After accepting such a proceeding 
onto the Accelerated Docket, Commission staff will establish a schedule 
for the remainder of the proceeding, including the parties' Sec. 
1.729(i)(1) automatic production of documents.
    (d) During the thirty days following the effective date of these 
rules, any party to a pending formal complaint proceeding in which an 
answer has been filed or is past due may seek admission of the 
proceeding to the Accelerated Docket by submitting a request by 
facsimile or hand delivery to the Chief of the Enforcement Bureau's 
Market Disputes Resolution Division, with facsimile copies to all other 
parties to the proceeding by the same mode of transmission. If a pending 
proceeding is accepted onto the Accelerated Docket, Commission staff 
will conduct supervised settlement discussions if appropriate and 
establish a schedule for the remainder of the proceeding, including the 
parties' Sec. 1.729(i)(1) automatic production of documents if 
necessary.
    (e) In determining whether to admit a proceeding onto the 
Accelerated Docket, Commission staff may consider factors from the 
following, non-exclusive list:
    (1) Whether it appears that the parties to the dispute have 
exhausted the reasonable opportunities for settlement during the staff-
supervised settlement discussions.
    (2) Whether the expedited resolution of a particular dispute or 
category of disputes appears likely to advance competition in the 
telecommunications market.
    (3) Whether the issues in the proceeding appear suited for decision 
under the constraints of the Accelerated Docket. This factor may entail, 
inter alia, examination of the number of distinct issues raised in a 
proceeding, the likely complexity of the necessary discovery, and 
whether the complainant bifurcates any damages claims for decision in a 
separate proceeding. See Sec. 1.722(b).
    (4) Whether the complainant states a claim for violation of the Act, 
or Commission rule or order that falls within the Commission's 
jurisdiction.

[[Page 193]]

    (5) Whether it appears that inclusion of a proceeding on the 
Accelerated Docket would be unfair to one party because of an 
overwhelming disparity in the parties' resources.
    (6) Such other factors as the Commission staff, within its 
substantial discretion, may deem appropriate and conducive to the prompt 
and fair adjudication of complaint proceedings.
    (f) If it appears at any time that a proceeding on the Accelerated 
Docket is no longer appropriate for such treatment, Commission staff may 
remove the matter from the Accelerated Docket either on its own motion 
or at the request of any party.
    (g) Minitrials.
    (1) In Accelerated Docket proceedings, the Commission may conduct a 
minitrial, or hearing-type proceeding, as an alternative to requiring 
that parties submit briefs in support of their cases. Minitrials 
typically will take place between 40 and 45 days after the filing of the 
complaint. A Commission Administrative Law Judge (``ALJ'') typically 
will preside at the minitrial, administer oaths to witnesses, and time 
the parties' presentation of their cases. In consultation with the 
Commission staff, the ALJ will rule on objections or procedural issues 
that may arise during the course of the minitrial.
    (2) Before a minitrial, each party will receive a specific time 
allotment in which it may present evidence and make argument during the 
minitrial. The ALJ or other Commission staff presiding at the minitrial 
will deduct from each party's time allotment any time that the party 
spends presenting either evidence or argument during the proceeding. The 
presiding official shall have broad discretion in determining any time 
penalty or deduction for a party who appears to be intentionally 
delaying either the proceeding or the presentation of another party's 
case. Within the limits imposed by its time allotment, a party may 
present evidence and argument in whatever manner or format it chooses, 
provided, however, that the submission of written testimony shall not be 
permitted.
    (3) Three days before a minitrial, each party to a proceeding shall 
serve on all other parties a copy of all exhibits that the party intends 
to introduce during the minitrial and a list of all witnesses, including 
expert witnesses, that the party may call during the minitrial. Service 
of this material shall be accomplished either by hand or by facsimile 
transmission. Objections to any exhibits or proposed witness testimony 
will be heard before the beginning of the minitrial.
    (4) No party will be permitted to call as a witness in a minitrial, 
or otherwise offer evidence from, an individual in that party's employ, 
unless the individual appears on the party's information designation 
(see Sec. Sec. 1.721(a)(10)(i) or 1.724(f)(1)) with a general 
description of the issues on which she will offer evidence. No party 
will be permitted to present expert evidence unless the party has 
complied fully with the expert-disclosure requirements of Sec. 
1.729(i)(4). The Commission may permit exceptions to the rules in this 
paragraph (g)(4) for good cause shown.
    (5) Two days before the beginning of the minitrial, parties shall 
file proposed findings of fact and conclusions of law. These submissions 
shall not exceed 40 pages per party. Within three days after the 
conclusion of the minitrial, parties may submit revised proposed 
findings of fact and conclusions of law to meet evidence introduced or 
arguments raised at the minitrial. These submissions shall not exceed 20 
pages per party.
    (6) The parties shall arrange for the stenographic transcription of 
minitrial proceedings so that transcripts are available and filed with 
the Commission no more than three days after the conclusion of the 
minitrial. Absent an agreement to the contrary, the cost of the 
transcript shall be shared equally between the parties to the 
proceeding.
    (h) Applications for review of staff decisions issued on delegated 
authority in Accelerated Docket proceedings shall comply with the filing 
and service requirements in Sec. 1.115(e)(4). In those Accelerated 
Docket proceedings which raise issues that may not be decided on 
delegated authority (see 47 U.S.C. 155(c)(1); 47 CFR 0.291(d)), the 
staff decision issued after the minitrial will be a recommended decision 
subject to adoption or modification by the

[[Page 194]]

Commission. Any party to the proceeding that seeks modification of the 
recommended decision may do so by filing comments challenging the 
decision within 15 days of its release by the Commission's Office of 
Media Relations. (Compare Sec. 1.4(b)(2).) Opposition comments may be 
filed within 15 days of the comments challenging the decision; reply 
comments may be filed 10 days thereafter and shall be limited to issues 
raised in the opposition comments.
    (i) If no party files comments challenging the recommended decision, 
the Commission will issue its decision adopting or modifying the 
recommended decision within 45 days of its release. If parties to the 
proceeding file comments to the recommended decision, the Commission 
will issue its decision adopting or modifying the recommended decision 
within 30 days of the filing of the final comments.

[63 FR 41448, Aug. 4, 1998, as amended at 64 FR 60725, Nov. 8, 1999]



Sec. 1.731  Confidentiality of information produced or exchanged by the 
parties.

    (a) Any materials generated in the course of a formal complaint 
proceeding may be designated as proprietary by that party if the party 
believes in good faith that the materials fall within an exemption to 
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C. 
552(b) (1) through (9). Any party asserting confidentiality for such 
materials shall so indicate by clearly marking each page, or portion 
thereof, for which a proprietary designation is claimed. If a 
proprietary designation is challenged, the party claiming 
confidentiality shall have the burden of demonstrating, by a 
preponderance of the evidence, that the material designated as 
proprietary falls under the standards for nondisclosure enunciated in 
the FOIA.
    (b) Materials marked as proprietary may be disclosed solely to the 
following persons, only for use in prosecuting or defending a party to 
the complaint action, and only to the extent necessary to assist in the 
prosecution or defense of the case:
    (1) Counsel of record representing the parties in the complaint 
action and any support personnel employed by such attorneys;
    (2) Officers or employees of the opposing party who are named by the 
opposing party as being directly involved in the prosecution or defense 
of the case;
    (3) Consultants or expert witnesses retained by the parties;
    (4) The Commission and its staff; and
    (5) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (c) These individuals shall not disclose information designated as 
proprietary to any person who is not authorized under this section to 
receive such information, and shall not use the information in any 
activity or function other than the prosecution or defense in the case 
before the Commission. Each individual who is provided access to the 
information shall sign a notarized statement affirmatively stating that 
the individual has personally reviewed the Commission's rules and 
understands the limitations they impose on the signing party.
    (d) No copies of materials marked proprietary may be made except 
copies to be used by persons designated in paragraph (b) of this 
section. Each party shall maintain a log recording the number of copies 
made of all proprietary material and the persons to whom the copies have 
been provided.
    (e) Upon termination of a formal complaint proceeding, including all 
appeals and petitions, all originals and reproductions of any 
proprietary materials, along with the log recording persons who received 
copies of such materials, shall be provided to the producing party. In 
addition, upon final termination of the complaint proceeding, any notes 
or other work product derived in whole or in part from the proprietary 
materials of an opposing or third party shall be destroyed.

[58 FR 25573, Apr. 27, 1993, as amended at 63 FR 1039, Jan. 7, 1998]



Sec. 1.732  Other required written submissions.

    (a) The Commission may, in its discretion, or upon a party's motion 
showing good cause, require the parties to file briefs summarizing the 
facts and

[[Page 195]]

issues presented in the pleadings and other record evidence.
    (b) Unless otherwise directed by the Commission, all briefs shall 
include all legal and factual claims and defenses previously set forth 
in the complaint, answer, or any other pleading submitted in the 
proceeding. Claims and defenses previously made but not reflected in the 
briefs will be deemed abandoned. The Commission may, in its discretion, 
limit the scope of any briefs to certain subjects or issues. A party 
shall attach to its brief copies of all documents, data compilations, 
tangible things, and affidavits upon which such party relies or intends 
to rely to support the facts alleged and legal arguments made in its 
brief and such brief shall contain a full explanation of how each 
attachment is relevant to the issues and matters in dispute. All such 
attachments to a brief shall be documents, data compilations or tangible 
things, or affidavits made by persons, that were identified by any party 
in its information designations filed pursuant to Sec. Sec. 
1.721(a)(10)(i), (a)(10)(ii), 1.724(f)(1), (f)(2), and 1.726(d)(1), 
(d)(2). Any other supporting documentation or affidavits that is 
attached to a brief must be accompanied by a full explanation of the 
relevance of such materials and why such materials were not identified 
in the information designations. These briefs shall contain the proposed 
findings of fact and conclusions of law which the filing party is urging 
the Commission to adopt, with specific citation to the record, and 
supporting relevant authority and analysis.
    (c) In cases in which discovery is not conducted, absent an order by 
the Commission that briefs be filed, parties may not submit briefs. If 
the Commission does authorize the filing of briefs in cases in which 
discovery is not conducted, briefs shall be filed concurrently by both 
the complainant and defendant at such time as designated by the 
Commission staff and in accordance with the provisions of this section.
    (d) In cases in which discovery is conducted, briefs shall be filed 
concurrently by both the complainant and defendant at such time 
designated by the Commission staff.
    (e) Briefs containing information which is claimed by an opposing or 
third party to be proprietary under Sec. 1.731 shall be submitted to 
the Commission in confidence pursuant to the requirements of Sec. 0.459 
of this chapter and clearly marked ``Not for Public Inspection.'' An 
edited version removing all proprietary data shall also be filed with 
the Commission for inclusion in the public file. Edited versions shall 
be filed within five days from the date the unedited brief is submitted, 
and served on opposing parties.
    (f) Initial briefs shall be no longer than twenty-five pages. Reply 
briefs shall be no longer than ten pages. Either on its own motion or 
upon proper motion by a party, the Commission staff may establish other 
page limits for briefs.
    (g) The Commission may require the parties to submit any additional 
information it deems appropriate for a full, fair, and expeditious 
resolution of the proceeding, including affidavits and exhibits.
    (h) The parties shall submit a joint statement of stipulated facts, 
disputed facts, and key legal issues no later than two business days 
prior to the initial status conference, scheduled in accordance with the 
provisions of Sec. 1.733(a).

[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573, 
Apr. 27, 1993; 63 FR 1039, Jan. 7, 1998]



Sec. 1.733  Status conference.

    (a) In any complaint proceeding, the Commission may, in its 
discretion, direct the attorneys and/or the parties to appear before it 
for a status conference. Unless otherwise ordered by the Commission, and 
with the exception of Accelerated Docket proceedings, governed by 
paragraph (i) of this section, an initial status conference shall take 
place, at the time and place designated by the Commission staff, ten 
business days after the date the answer is due to be filed. A status 
conference may include discussion of:
    (1) Simplification or narrowing of the issues;
    (2) The necessity for or desirability of additional pleadings or 
evidentiary submissions;

[[Page 196]]

    (3) Obtaining admissions of fact or stipulations between the parties 
as to any or all of the matters in controversy;
    (4) Settlement of all or some of the matters in controversy by 
agreement of the parties;
    (5) Whether discovery is necessary and, if so, the scope, type and 
schedule for such discovery;
    (6) The schedule for the remainder of the case and the dates for any 
further status conferences; and
    (7) Such other matters that may aid in the disposition of the 
complaint.
    (b)(1) Subject to paragraph (i) of this section governing 
Accelerated Docket proceedings, parties shall meet and confer prior to 
the initial status conference to discuss:
    (i) Settlement prospects;
    (ii) Discovery;
    (iii) Issues in dispute;
    (iv) Schedules for pleadings;
    (v) Joint statement of stipulated facts, disputed facts, and key 
legal issues; and
    (vi) In a 47 U.S.C. 271(d)(6)(B) proceeding, whether or not the 
parties agree to waive the 47 U.S.C. 271(d)(6)(B) 90-day resolution 
deadline.
    (2) Subject to paragraph (i) of this section governing Accelerated 
Docket proceedings, parties shall submit a joint statement of all 
proposals agreed to and disputes remaining as a result of such meeting 
to Commission staff at least two business days prior to the scheduled 
initial status conference.
    (c) In addition to the initial status conference referenced in 
paragraph (a) of this section, any party may also request that a 
conference be held at any time after the complaint has been filed.
    (d) During a status conference, the Commission staff may issue oral 
rulings pertaining to a variety of interlocutory matters relevant to the 
conduct of a formal complaint proceeding including, inter alia, 
procedural matters, discovery, and the submission of briefs or other 
evidentiary materials.
    (e) Parties may make, upon written notice to the Commission and all 
attending parties at least three business days prior to the status 
conference, an audio recording of the Commission staff's summary of its 
oral rulings. Alternatively, upon agreement among all attending parties 
and written notice to the Commission at least three business days prior 
to the status conference, the parties may make an audio recording of, or 
use a stenographer to transcribe, the oral presentations and exchanges 
between and among the participating parties, insofar as such 
communications are ``on-the-record'' as determined by the Commission 
staff, as well as the Commission staff's summary of its oral rulings. A 
complete transcript of any audio recording or stenographic transcription 
shall be filed with the Commission as part of the record, pursuant to 
the provisions of paragraph (f)(2) of this section. The parties shall 
make all necessary arrangements for the use of a stenographer and the 
cost of transcription, absent agreement to the contrary, will be shared 
equally by all parties that agree to make the record of the status 
conference.
    (f) The parties in attendance, unless otherwise directed, shall 
either:
    (1) Submit a joint proposed order memorializing the oral rulings 
made during the conference to the Commission by 5:30 pm, Eastern Time, 
on the business day following the date of the status conference, or as 
otherwise directed by Commission staff. In the event the parties in 
attendance cannot reach agreement as to the rulings that were made, the 
joint proposed order shall include the rulings on which the parties 
agree, and each party's alternative proposed rulings for those rulings 
on which they cannot agree. Commission staff will review and make 
revisions, if necessary, prior to signing and filing the submission as 
part of the record. The proposed order shall be submitted both as hard 
copy and on computer disk in accordance with the requirements of Sec. 
1.734(d); or
    (2) Pursuant to the requirements of paragraph (e) of this section, 
submit to the Commission by 5:30 pm., Eastern Time, on the third 
business day following the status conference or as otherwise directed by 
Commission staff either:
    (i) A transcript of the audio recording of the Commission staff's 
summary of its oral rulings;

[[Page 197]]

    (ii) A transcript of the audio recording of the oral presentations 
and exchanges between and among the participating parties, insofar as 
such communications are ``on-the-record'' as determined by the 
Commission staff, and the Commission staff's summary of its oral 
rulings; or
    (iii) A stenographic transcript of the oral presentations and 
exchanges between and among the participating parties, insofar as such 
communications are ``on-the-record'' as determined by the Commission 
staff, and the Commission staff's summary of its oral rulings.
    (g) Status conferences will be scheduled by the Commission staff at 
such time and place as it may designate to be conducted in person or by 
telephone conference call.
    (h) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled conference will be deemed a waiver by 
that party and will not preclude the Commission staff from conferring 
with those parties and/or counsel present.
    (i) Accelerated Docket Proceedings. (1) In Accelerated Docket 
proceedings, the initial status conference will be held 10 days after 
the answer is due to be filed.
    (2) Prior to the initial status conference, the parties shall 
confer, either in person or by telephone, about:
    (i) Discovery to which they can agree;
    (ii) Facts to which they can stipulate; and
    (iii) Factual and legal issues in dispute.
    (3) Two days before the status conference, parties shall submit to 
Commission staff a joint statement of:
    (i) The agreements that they have reached with respect to discovery;
    (ii) The facts to which they have agreed to stipulate; and
    (iii) The disputed facts or legal issues of which they can agree to 
a joint statement.
    (4) Two days before the status conference, each party also shall 
submit to Commission staff a separate statement which shall include, as 
appropriate, the party's statement of the disputed facts and legal 
issues presented by the complaint proceeding and any additional 
discovery that the party seeks. A complainant that wishes to reply to a 
defendant's affirmative defense shall do so in its pre-status-conference 
filing. To the extent that this filing contains statements replying to 
an affirmative defense, the complainant shall include, and/or serve with 
the statement, the witness information and documents required in Sec. 
1.726(g)(3)-(4). A defendant that intends to rely on expert evidence 
shall include its expert statement in its pre-status conference filing. 
(See Sec. 1.729(i)(4)(ii).)

[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573, 
Apr. 27, 1993; 63 FR 1039, Jan. 7, 1998; 63 FR 41449, Aug. 4, 1998]



Sec. 1.734  Specifications as to pleadings, briefs, and other documents; 
subscription.

    (a) All papers filed in any formal complaint proceeding must be 
drawn in conformity with the requirements of Sec. Sec. 1.49 and 1.50.
    (b) All averments of claims or defenses in complaints and answers 
shall be made in numbered paragraphs. The contents of each paragraph 
shall be limited as far as practicable to a statement of a single set of 
circumstances. Each claim founded on a separate transaction or 
occurrence and each affirmative defense shall be separately stated to 
facilitate the clear presentation of the matters set forth.
    (c) The original of all pleadings and other submissions filed by any 
party shall be signed by the party, or by the party's attorney. The 
signing party shall include in the document his or her address, 
telephone number, facsimile number and the date on which the document 
was signed. Copies should be conformed to the original. Unless 
specifically required by rule or statute, pleadings need not be 
verified. The signature of an attorney or party shall be a certificate 
that the attorney or party has read the pleading, motion, or other 
paper; that to the best of his or her knowledge, information, and belief 
formed after reasonable inquiry, it is well grounded in fact and is 
warranted by existing law or a good faith argument for the extension, 
modification, or reversal of existing law; and that it is not interposed 
solely for purposes of delay or for any other improper purpose.

[[Page 198]]

    (d) All proposed orders shall be submitted both as hard copies and 
on computer disk formatted to be compatible with the Commission's 
computer system and using the Commission's current wordprocessing 
software. Each disk should be submitted in ``read only'' mode. Each disk 
should be clearly labelled with the party's name, proceeding, type of 
pleading, and date of submission. Each disk should be accompanied by a 
cover letter. Parties who have submitted copies of tariffs or reports 
with their hard copies need not include such tariffs or reports on the 
disk. Upon showing of good cause, the Commission may waive the 
requirements of this paragraph.

[53 FR 11855, Apr. 11, 1988. Redesignated at 58 FR 25573, Apr. 27, 1993, 
as amended at 63 FR 1040, Jan. 7, 1998]



Sec. 1.735  Copies; service; separate filings against multiple defendants.

    (a) Complaints may generally be brought against only one named 
carrier; such actions may not be brought against multiple defendants 
unless the defendant carriers are commonly owned or controlled, are 
alleged to have acted in concert, are alleged to be jointly liable to 
complainant, or the complaint concerns common questions of law or fact. 
Complaints may, however, be consolidated by the Commission for 
disposition.
    (b) The complainant shall file an original copy of the complaint, 
accompanied by the correct fee, in accordance with part 1, subpart G 
(see Sec. 1.1106) and, on the same day:
    (1) File three copies of the complaint with the Office of the 
Commission Secretary;
    (2) Serve two copies on the Market Disputes Resolution Division, 
Enforcement Bureau;
    (3) If the complaint is filed against a carrier concerning matters 
within the responsibility of the International Bureau (see Sec. 0.261 
of this chapter), serve a copy on the Chief, Policy Division, 
International Bureau; and
    (4) If a complaint is addressed against multiple defendants, pay a 
separate fee, in accordance with part 1, subpart G (see Sec. 1.1106), 
and file three copies of the complaint with the Office of the Commission 
Secretary for each additional defendant.
    (c) Generally, a separate file is set up for each defendant. An 
original plus two copies shall be filed of all pleadings and documents, 
other than the complaint, for each file number assigned.
    (d) The complainant shall serve the complaint by hand delivery on 
either the named defendant or one of the named defendant's registered 
agents for service of process on the same date that the complaint is 
filed with the Commission in accordance with the requirements of 
paragraph (b) of this section.
    (e) Upon receipt of the complaint by the Commission, the Commission 
shall promptly send, by facsimile transmission to each defendant named 
in the complaint, notice of the filing of the complaint. The Commission 
shall send, by regular U.S. mail delivery, to each defendant named in 
the complaint, a copy of the complaint. The Commission shall 
additionally send, by regular U.S. mail to all parties, a schedule 
detailing the date the answer will be due and the date, time and 
location of the initial status conference.
    (f) All subsequent pleadings and briefs filed in any formal 
complaint proceeding, as well as all letters, documents or other written 
submissions, shall be served by the filing party on the attorney of 
record for each party to the proceeding, or, where a party is not 
represented by an attorney, each party to the proceeding either by hand 
delivery, overnight delivery, or by facsimile transmission followed by 
regular U.S. mail delivery, together with a proof of such service in 
accordance with the requirements of Sec. 1.47(g). Service is deemed 
effective as follows:
    (1) Service by hand delivery that is delivered to the office of the 
recipient by 5:30 pm, local time of the recipient, on a business day 
will be deemed served that day. Service by hand delivery that is 
delivered to the office of the recipient after 5:30 pm, local time of 
the recipient, on a business day will be deemed served on the following 
business day;

[[Page 199]]

    (2) Service by overnight delivery will be deemed served the business 
day following the day it is accepted for overnight delivery by a 
reputable overnight delivery service such as, or comparable to, the US 
Postal Service Express Mail, United Parcel Service or Federal Express; 
or
    (3) Service by facsimile transmission that is fully transmitted to 
the office of the recipient by 5:30 pm, local time of the recipient, on 
a business day will be deemed served that day. Service by facsimile 
transmission that is fully transmitted to the office of the recipient 
after 5:30 pm, local time of the recipient, on a business day will be 
deemed served on the following business day.
    (g) Supplemental complaint proceedings. Supplemental complaints 
filed pursuant to section 1.722 shall conform to the requirements set 
out in this section, except that the complainant need not submit a 
filing fee, and the complainant may effect service pursuant to paragraph 
(f) of this section rather than paragraph (d) of this section numerals.

[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573, 
25574, Apr. 27, 1993, as amended at 63 FR 1040, Jan. 7, 1998; 64 FR 
60726, Nov. 8, 1999; 66 FR 16617, Mar. 27, 2001; 67 FR 13223, Mar. 21, 
2002; 69 FR 41130, July 7, 2004]



Sec. 1.736  Complaints filed pursuant to 47 U.S.C. 271(d)(6)(B).

    (a) Where a complaint is filed pursuant to 47 U.S.C. 271(d)(6)(B), 
parties shall indicate whether they are willing to waive the ninety-day 
resolution deadline contained in 47 U.S.C. 271(d)(6)(B) in the following 
manner:
    (1) The complainant shall so indicate in both the complaint itself 
and in the Formal Complaint Intake Form, and the defendant shall so 
indicate in its answer; or
    (2) The parties shall indicate their agreement to waive the ninety-
day resolution deadline to the Commission staff at the initial status 
conference, to be held in accordance with Sec. 1.733 of the rules.
    (b) Requests for waiver of the ninety-day resolution deadline for 
complaints filed pursuant to 47 U.S.C. 271(d)(6)(B) will not be 
entertained by the Commission staff subsequent to the initial status 
conference, absent a showing by the complainant and defendant that such 
waiver is in the public interest.

[63 FR 1041, Jan. 7, 1998]

                              Applications



Sec. 1.741  Scope.

    The general rules relating to applications contained in Sec. Sec. 
1.742 through 1.748 apply to all applications filed by carriers except 
those filed by public correspondence radio stations pursuant to parts 
80, 87, and 101 of this chapter, and those filed by common carriers 
pursuant to part 25 of this chapter. Parts 21 and 101 of this chapter 
contain general rules applicable to applications filed pursuant to these 
parts. For general rules applicable to applications filed pursuant to 
parts 80 and 87 of this chapter, see such parts and subpart F of this 
part. For rules applicable to applications filed pursuant to part 25, 
see said part.

[61 FR 26670, May 28, 1996]



Sec. 1.742  Place of filing, fees, and number of copies.

    All applications which do not require a fee shall be filed at the 
Commission's main office in Washington, DC., Attention: Office of the 
Secretary. Hand-delivered applications will be dated by the Secretary 
upon receipt (mailed applications will be dated by the Mail Branch) and 
then forwarded to the Wireline Competition Bureau. All applications 
accompanied by a fee payment should be filed with the Commission's 
lockbox bank in accordance with Sec. 1.1105, Schedule of Fees. The 
number of copies required for each application and the nonrefundable 
processing fees and any applicable regulatory fees (see subpart G of 
this part) which must accompany each application in order to qualify it 
for acceptance for filing and consideration are set forth in the rules 
in this chapter relating to various types of applications. However, if 
any application is not of the type covered by this chapter, an original 
and two copies of each such application shall be submitted.

[59 FR 30998, June 16, 1994, as amended at 67 FR 13223, Mar. 21, 2002]

[[Page 200]]



Sec. 1.743  Who may sign applications.

    (a) Except as provided in paragraph (b) of this section, 
applications, amendments thereto, and related statements of fact 
required by the Commission must be signed by the applicant, if the 
applicant is an individual; by one of the partners, if the applicant is 
a partnership; by an officer or duly authorized employee, if the 
applicant is a corporation; or by a member who is an officer, if the 
applicant is an unincorporated association. Applications, amendments, 
and related statements of fact filed on behalf of eligible government 
entities such as states and territories of the United States, their 
political subdivisions, the District of Columbia, and units of local 
government, including incorporated municipalities, must be signed by a 
duly elected or appointed official who is authorized to do so under the 
laws of the applicable jurisdiction.
    (b) Applications, amendments thereto, and related statements of fact 
required by the Commission may be signed by the applicant's attorney in 
case of the applicant's physical disability or of his absence from the 
United States. The attorney shall in that event separately set forth the 
reason why the application is not signed by the applicant. In addition, 
if any matter is stated on the basis of the attorney's belief only 
(rather than his knowledge), he shall separately set forth his reasons 
for believing that such statements are true.
    (c) Only the original of applications, amendments, or related 
statements of fact need be signed; copies may be conformed.
    (d) Applications, amendments, and related statements of fact need 
not be signed under oath. Willful false statements made therein, 
however, are punishable by fine and imprisonment, U.S. Code, Title 18, 
section 1001, and by appropriate administrative sanctions, including 
revocation of station license pursuant to section 312(a)(1) of the 
Communications Act of 1934, as amended.
    (e) ``Signed,'' as used in this section, means an original hand-
written signature, except that by public notice in the Federal Register 
the Wireline Competition Bureau may allow signature by any symbol 
executed or adopted by the applicant with the intent that such symbol be 
a signature, including symbols formed by computer-generated electronic 
impulses.

[28 FR 12450, Nov. 22, 1963, as amended at 53 FR 17193, May 16, 1988; 59 
FR 59503, Nov. 17, 1994; 67 FR 13223, Mar. 21, 2002]



Sec. 1.744  Amendments.

    (a) Any application not designated for hearing may be amended at any 
time by the filing of signed amendments in the same manner, and with the 
same number of copies, as was the initial application. If a petition to 
deny (or to designate for hearing) has been filed, the amendment shall 
be served on the petitioner.
    (b) After any application is designated for hearing, requests to 
amend such application may be granted by the presiding officer upon good 
cause shown by petition, which petition shall be properly served upon 
all other parties to the proceeding.
    (c) The applicant may at any time be ordered to amend his 
application so as to make it more definite and certain. Such order may 
be issued upon motion of the Commission (or the presiding officer, if 
the application has been designated for hearing) or upon petition of any 
interested person, which petition shall be properly served upon the 
applicant and, if the application has been designated for hearing, upon 
all parties to the hearing.

[29 FR 6444, May 16, 1964, and 31 FR 14394, Nov. 9, 1966]



Sec. 1.745  Additional statements.

    The applicant may be required to submit such additional documents 
and written statements of fact, signed and verified (or affirmed), as in 
the judgment of the Commission (or the presiding officer, if the 
application has been designated for hearing) may be necessary. Any 
additional documents and written statements of fact required in 
connection with applications under Title II of the Communications Act 
need not be verified (or affirmed).

[29 FR 6444, May 16, 1964]

[[Page 201]]



Sec. 1.746  Defective applications.

    (a) Applications not in accordance with the applicable rules in this 
chapter may be deemed defective and returned by the Commission without 
acceptance of such applications for filing and consideration. Such 
applications will be accepted for filing and consideration if 
accompanied by petition showing good cause for waiver of the rule with 
which the application does not conform.
    (b) The assignment of a file number, if any, to an application is 
for the administrative convenience of the Commission and does not 
indicate the acceptance of the application for filing and consideration.



Sec. 1.747  Inconsistent or conflicting applications.

    When an application is pending or undecided, no inconsistent or 
conflicting application filed by the same applicant, his successor or 
assignee, or on behalf or for the benefit of said applicant, his 
successor, or assignee, will be considered by the Commission.



Sec. 1.748  Dismissal of applications.

    (a) Before designation for hearing. Any application not designated 
for hearing may be dismissed without prejudice at any time upon request 
of the applicant. An applicant's request for the return of an 
application that has been accepted for filing and consideration, but not 
designated for hearing, will be deemed a request for dismissal without 
prejudice. The Commission may dismiss an application without prejudice 
before it has been designated for hearing when the applicant fails to 
comply or justify noncompliance with Commission requests for additional 
information in connection with such application.
    (b) After designation for hearing. A request to dismiss an 
application without prejudice after it has been designated for hearing 
shall be made by petition properly served upon all parties to the 
hearing and will be granted only for good cause shown. An application 
may be dismissed with prejudice after it has been designated for hearing 
when the applicant:
    (1) Fails to comply with the requirements of Sec. 1.221(c);
    (2) Otherwise fails to prosecute his application; or
    (3) Fails to comply or justify noncompliance with Commission 
requests for additional information in connection with such application.

[28 FR 12450, Nov. 22, 1963, as amended at 29 FR 6445, May 16, 1964]



Sec. 1.749  Action on application under delegated authority.

    Certain applications do not require action by the Commission but, 
pursuant to the delegated authority contained in subpart B of part 0 of 
this chapter, may be acted upon by the Chief of the Wireline Competition 
Bureau subject to reconsideration by the Commission.

[67 FR 13223, Mar. 21, 2002]

   Specific Types of Applications Under Title II of Communications Act



Sec. 1.761  Cross reference.

    Specific types of applications under Title III of the Communications 
Act involving public correspondence radio stations are specified in 
parts 23, 80, 87, and 101 of this chapter.

[61 FR 26671, May 28, 1996]



Sec. 1.763  Construction, extension, acquisition or operation of lines.

    (a) Applications under section 214 of the Communications Act for 
authority to construct a new line, extend any line, acquire or operate 
any line or extension thereof, or to engage in transmission over or by 
means of such additional or extended line, to furnish temporary or 
emergency service, or to supplement existing facilities shall be made in 
the form and manner, with the number of copies and accompanied by the 
fees specified in part 63 of this chapter.
    (b) In cases under this section requiring a certificate, notice is 
given to and a copy of the application is filed with the Secretary of 
Defense, the Secretary of State (with respect to such applications 
involving service to foreign points), and the Governor of each State 
involved. Hearing is held if any of these persons desires to be heard or 
if the Commission determines that a hearing should be held. Copies of 
applications

[[Page 202]]

for certificates are filed with the regulatory agencies of the States 
involved.

[28 FR 12450, Nov. 22, 1963, as amended at 64 FR 39939, July 23, 1999]



Sec. 1.764  Discontinuance, reduction, or impairment of service.

    (a) Applications under section 214 of the Communications Act for the 
authority to discontinue, reduce, or impair service to a community or 
part of a community or for the temporary, emergency, or partial 
discontinuance, reduction, or impairment of service shall be made in the 
form and manner, with the number of copies specified in part 63 of this 
chapter (see also subpart G, part 1 of this chapter). Posted and public 
notice shall be given the public as required by part 63 of this chapter.
    (b) In cases under this section requiring a certificate, notice is 
given to and a copy of the application is filed with the Secretary of 
Defense, the Secretary of State (with respect to such applications 
involving service to foreign points), and the Governor of each State 
involved. Hearing is held if any of these persons desires to be heard or 
if the Commission determines that a hearing should be held. Copies of 
all formal applications under this section requesting authorizations 
(including certificates) are filed with the Secretary of Defense, the 
Secretary of State (with respect to such applications involving service 
to foreign points) and the Governor of each State involved. Copies of 
all applications under this section requesting authorizations (including 
certificates) are filed with the regulatory agencies of the States 
involved.

[28 FR 12450, Nov. 22, 1963, as amended at 52 FR 5289, Feb. 20, 1987]



Sec. 1.767  Cable landing licenses.

    (a) Applications for cable landing licenses under 47 U.S.C. 34-39 
and Executive Order No. 10530, dated May 10, 1954, should be filed in 
accordance with the provisions of that Executive Order. You may file 
your application electronically on the Internet through the 
International Bureau Filing System (IBFS) or by paper. For information 
on filing your application through IBFS, see Part 1, Subpart Y and the 
IBFS homepage at http://www.fcc.gov/ibfs. Paper applications should be 
filed in duplicate. Regardless of whether they are filed on paper or 
electronically, these applications must contain:
    (1) The name, address and telephone number(s) of the applicant;
    (2) The Government, State, or Territory under the laws of which each 
corporate or partnership applicant is organized;
    (3) The name, title, post office address, and telephone number of 
the officer and any other contact point, such as legal counsel, to whom 
correspondence concerning the application is to be addressed;
    (4) A description of the submarine cable, including the type and 
number of channels and the capacity thereof;
    (5) A specific description of the cable landing stations on the 
shore of the United States and in foreign countries where the cable will 
land. The description shall include a map showing specific geographic 
coordinates, and may also include street addresses, of each landing 
station. The map must also specify the coordinates of any beach joint 
where those coordinates differ from the coordinates of the cable 
station. The applicant initially may file a general geographic 
description of the landing points; however, grant of the application 
will be conditioned on the Commission's final approval of a more 
specific description of the landing points, including all information 
required by this paragraph, to be filed by the applicant no later than 
ninety (90) days prior to construction. The Commission will give public 
notice of the filing of this description, and grant of the license will 
be considered final if the Commission does not notify the applicant 
otherwise in writing no later than sixty (60) days after receipt of the 
specific description of the landing points, unless the Commission 
designates a different time period;
    (6) A statement as to whether the cable will be operated on a common 
carrier or non-common carrier basis;
    (7) A list of the proposed owners of the cable system, including 
each U.S. cable landing station, their respective voting and ownership 
interests in each U.S. cable landing station, their respective voting 
interests in the wet link portion of the cable system, and

[[Page 203]]

their respective ownership interests by segment in the cable;
    (8) For each applicant of the cable system, a certification as to 
whether the applicant is, or is affiliated with, a foreign carrier, 
including an entity that owns or controls a foreign cable landing 
station in any of the cable's destination markets. Include the 
citizenship of each applicant and information and certifications 
required in Sec. Sec. 63.18(h) through (k), and in Sec. 63.18(o), of 
this chapter;
    (9) A certification that the applicant accepts and will abide by the 
routine conditions specified in paragraph (g) of this section; and
    (10) Any other information that may be necessary to enable the 
Commission to act on the application.
    (11)(i) If applying for authority to assign or transfer control of 
an interest in a cable system, the applicant shall complete paragraphs 
(a)(1) through (a)(3) of this section for both the transferor/assignor 
and the transferee/assignee. Only the transferee/assignee needs to 
complete paragraphs (a)(8) through (a)(9) of this section. At the 
beginning of the application, the applicant should also include a 
narrative of the means by which the transfer or assignment will take 
place. The application shall also specify, on a segment specific basis, 
the percentage of voting and ownership interests being transferred or 
assigned in the cable system, including in a U.S. cable landing station. 
The Commission reserves the right to request additional information as 
to the particulars of the transaction to aid it in making its public 
interest determination.
    (ii) In the event the transaction requiring an assignment or 
transfer of control application also requires the filing of a foreign 
carrier affiliation notification pursuant to Sec. 1.768, the applicant 
shall reference in the application the foreign carrier affiliation 
notification and the date of its filing. See Sec. 1.768. See also 
paragraph (g)(7) of this section (providing for post-transaction 
notification of pro forma assignments and transfers of control).
    (iii) An assignee or transferee shall notify the Commission no later 
than thirty (30) days after either consummation of the assignment or 
transfer or a decision not to consummate the assignment or transfer. The 
notification may be by letter and shall identify the file numbers under 
which the initial license and the authorization of the assignment or 
transfer were granted.
    (b) These applications are acted upon by the Commission after 
obtaining the approval of the Secretary of State and such assistance 
from any executive department or establishment of the Government as it 
may require.
    (c) Original files relating to submarine cable landing licenses and 
applications for licenses since June 30, 1934, are kept by the 
Commission. Such applications for licenses (including all documents and 
exhibits filed with and made a part thereof, with the exception of any 
maps showing the exact location of the submarine cable or cables to be 
licensed) and the licenses issued pursuant thereto, with the exception 
of such maps, shall, unless otherwise ordered by the Commission, be open 
to public inspection in the offices of the Commission in Washington, 
D.C.
    (d) Original files relating to licenses and applications for 
licenses for the landing operation of cables prior to June 30, 1934, 
were kept by the Department of State, and such files prior to 1930 have 
been transferred to the Executive and Foreign Affairs Branch of the 
General Records Office of the National Archives. Requests for inspection 
of these files should, however, be addressed to the Federal 
Communications Commission, Washington, D.C., 20554; and the Commission 
will obtain such files for a temporary period in order to permit 
inspection at the offices of the Commission.
    (e) A separate application shall be filed with respect to each 
individual cable system for which a license is requested, or for which 
modification or amendment of a previous license is requested. The 
application fee for a non common-carrier cable landing license is 
payment type code BJT. Applicants for common carrier cable landing 
licenses shall pay the fees for both a common carrier cable landing 
license (payment type code CXT) and overseas cable construction (payment 
type code BIT). There is no application fee for modification of a cable 
landing license, except that the fee for assignment or

[[Page 204]]

transfer of control of a cable landing license is payment type code CUT. 
See Sec. 1.1107(2) of this chapter.
    (f) Applicants shall disclose to any interested member of the 
public, upon written request, accurate information concerning the 
location and timing for the construction of a submarine cable system 
authorized under this section. This disclosure shall be made within 30 
days of receipt of the request.
    (g) Routine conditions. Except as otherwise ordered by the 
Commission, the following rules apply to each licensee of a cable 
landing license granted on or after March 15, 2002:
    (1) Grant of the cable landing license is subject to:
    (i) All rules and regulations of the Federal Communications 
Commission;
    (ii) Any treaties or conventions relating to communications to which 
the United States is or may hereafter become a party; and
    (iii) Any action by the Commission or the Congress of the United 
States rescinding, changing, modifying or amending any rights accruing 
to any person by grant of the license;
    (2) The location of the cable system within the territorial waters 
of the United States of America, its territories and possessions, and 
upon its shores shall be in conformity with plans approved by the 
Secretary of the Army. The cable shall be moved or shifted by the 
licensee at its expense upon request of the Secretary of the Army, 
whenever he or she considers such course necessary in the public 
interest, for reasons of national defense, or for the maintenance and 
improvement of harbors for navigational purposes;
    (3) The licensee shall at all times comply with any requirements of 
United States government authorities regarding the location and 
concealment of the cable facilities, buildings, and apparatus for the 
purpose of protecting and safeguarding the cables from injury or 
destruction by enemies of the United States of America;
    (4) The licensee, or any person or company controlling it, 
controlled by it, or under direct or indirect common control with it, 
does not enjoy and shall not acquire any right to handle traffic to or 
from the United States, its territories or its possessions unless such 
service is authorized by the Commission pursuant to section 214 of the 
Communications Act, as amended;
    (5)(i) The licensee shall be prohibited from agreeing to accept 
special concessions directly or indirectly from any foreign carrier, 
including any entity that owns or controls a foreign cable landing 
station, where the foreign carrier possesses sufficient market power on 
the foreign end of the route to affect competition adversely in the U.S. 
market, and from agreeing to accept special concessions in the future.
    (ii) For purposes of this section, a special concession is defined 
as an exclusive arrangement involving services, facilities, or functions 
on the foreign end of a U.S. international route that are necessary to 
land, connect, or operate submarine cables, where the arrangement is not 
offered to similarly situated U.S. submarine cable owners, indefeasible-
right-of-user holders, or lessors, and includes arrangements for the 
terms for acquisition, resale, lease, transfer and use of capacity on 
the cable; access to collocation space; the opportunity to provide or 
obtain backhaul capacity; access to technical network information; and 
interconnection to the public switched telecommunications network.
    Note to paragraph (g)(5):
    Licensees may rely on the Commission's list of foreign carriers that 
do not qualify for the presumption that they lack market power in 
particular foreign points for purposes of determining which foreign 
carriers are the subject of the requirements of this section. The 
Commission's list of foreign carriers that do not qualify for the 
presumption that they lack market power is available from the 
International Bureau's World Wide Web site at http://www.fcc.gov/ib.
    (6) Except as provided in paragraph (g)(7) of this section, the 
cable landing license and rights granted in the license shall not be 
transferred, assigned, or disposed of, or disposed of indirectly by 
transfer of control of the licensee, unless the Federal Communications 
Commission gives prior consent in writing;
    (7) A pro forma assignee or a person or company that is the subject 
of a pro forma transfer of control of a cable landing license is not 
required to seek

[[Page 205]]

prior approval for the pro forma transaction. A pro forma assignee or 
person or company that is the subject of a pro forma transfer of control 
must notify the Secretary, Federal Communications Commission, 
Washington, DC 20554, with a copy to the Chief, International Bureau, 
Federal Communications Commission, no later than thirty (30) days after 
the assignment or transfer of control is consummated. The notification 
may be in the form of a letter (in duplicate to the Secretary), and it 
must contain a certification that the assignment or transfer of control 
was pro forma, as defined in Sec. 63.24(a) of this chapter, and, 
together with all previous pro forma transactions, does not result in a 
change of the licensee's ultimate control. A single letter may be filed 
for an assignment or transfer of control of more than one license issued 
in the name of a licensee if each license is identified by the file 
number under which it was granted;
    (8) Unless the licensee has notified the Commission in the 
application of the precise locations at which the cable will land, as 
required by paragraph (a)(5) of this section, the licensee shall notify 
the Commission no later than ninety (90) days prior to commencing 
construction at that landing location. The Commission will give public 
notice of the filing of each description, and grant of the cable landing 
license will be considered final with respect to that landing location 
unless the Commission issues a notice to the contrary no later than 
sixty (60) days after receipt of the specific description. See paragraph 
(a)(5) of this section;
    (9) The Commission reserves the right to require the licensee to 
file an environmental assessment should it determine that the landing of 
the cable at the specific locations and construction of necessary cable 
landing stations may significantly affect the environment within the 
meaning of Sec. 1.1307 implementing the National Environmental Policy 
Act of 1969. See Sec. 1.1307(a) and (b). The cable landing license is 
subject to modification by the Commission under its review of any 
environmental assessment or environmental impact statement that it may 
require pursuant to its rules. See also Sec. 1.1306 note 1 and Sec. 
1.1307(c) and (d);
    (10) The Commission reserves the right, pursuant to section 2 of the 
Cable Landing License Act, 47 U.S.C. 35, Executive Order No. 10530 as 
amended, and section 214 of the Communications Act of 1934, as amended, 
47 U.S.C. 214, to impose common carrier regulation or other regulation 
consistent with the Cable Landing License Act on the operations of the 
cable system if it finds that the public interest so requires;
    (11) The licensee, or in the case of multiple licensees, the 
licensees collectively, shall maintain de jure and de facto control of 
the U.S. portion of the cable system, including the cable landing 
stations in the United States, sufficient to comply with the 
requirements of the Commission's rules and any specific conditions of 
the license;
    (12) The licensee shall comply with the requirements of Sec. 1.768;
    (13) The cable landing license is revocable by the Commission after 
due notice and opportunity for hearing pursuant to section 2 of the 
Cable Landing License Act, 47 U.S.C. 35, or for failure to comply with 
the terms of the license or with the Commission's rules; and
    (14) The licensee shall notify the Secretary, Federal Commissions 
Commission, Washington, DC 20554, in writing, within thirty (30) days of 
the date the cable is placed into service, of the date the cable was 
placed into service. The cable landing license shall expire twenty-five 
(25) years from the in-service date, unless renewed or extended upon 
proper application. Upon expiration, all rights granted under the 
license shall be terminated.
    (h) Applicants/Licensees. Except as otherwise required by the 
Commission, the following entities, at a minimum, shall be applicants 
for, and licensees on, a cable landing license:
    (1) Any entity that owns or controls a cable landing station in the 
United States; and
    (2) All other entities owning or controlling a five percent (5%) or 
greater interest in the cable system and using the U.S. points of the 
cable system.
    (i) Processing of cable landing license applications. The Commission 
will take action upon an application eligible for streamlined 
processing, as specified in paragraph (k) of this section, within

[[Page 206]]

forty-five (45) days after release of the public notice announcing the 
application as acceptable for filing and eligible for streamlined 
processing. If the Commission deems an application seeking streamlined 
processing acceptable for filing but ineligible for streamlined 
processing, or if an applicant does not seek streamlined processing, the 
Commission will issue public notice indicating that the application is 
ineligible for streamlined processing. Within ninety (90) days of the 
public notice, the Commission will take action upon the application or 
provide public notice that, because the application raises questions of 
extraordinary complexity, an additional 90-day period for review is 
needed. Each successive 90-day period may be so extended.
    (j) Applications for streamlining. Each applicant seeking to use the 
streamlined grant procedure specified in paragraph (i) of this section 
shall caption its application and any cover letter with ``Application 
for Cable Landing License--Streamlined Processing Requested.'' 
Applications for streamlined processing shall include the information 
and certifications required by paragraph (k) of this section. On the 
date of filing with the Commission, the applicant shall also send a 
complete copy of the application, or any major amendments or other 
material filings regarding the application, to: U.S. Coordinator, EB/
CIP, U.S. Department of State, 2201 C Street, NW, Washington, DC 20520-
5818; Office of Chief Counsel/NTIA, U.S. Department of Commerce, 14th 
St. and Constitution Ave., NW, Washington, DC 20230; and Defense 
Information Systems Agency, Code RGC, 701 S. Courthouse Road, Arlington, 
Va. 22204, and shall certify such service on a service list attached to 
the application or other filing.
    (k) Eligibility for streamlining. Each applicant must demonstrate 
eligibility for streamlining by:
    (1) Certifying that it is not a foreign carrier and it is not 
affiliated with a foreign carrier in any of the cable's destination 
markets;
    (2) Demonstrating pursuant to Sec. 63.12(c)(l)(i) through (iii) of 
this chapter that any such foreign carrier or affiliated foreign carrier 
lacks market power; or
    (3) Certifying that the destination market where the applicant is, 
or has an affiliation with, a foreign carrier is a World Trade 
Organization (WTO) Member and the applicant agrees to accept and abide 
by the reporting requirements set out in paragraph (l) of this section. 
An application that includes an applicant that is, or is affiliated 
with, a carrier with market power in a cable's non-WTO Member 
destination country is not eligible for streamlining.
    (l) Reporting Requirements Applicable to Licensees Affiliated with a 
Carrier with Market Power in a Cable's WTO Destination Market. Any 
licensee that is, or is affiliated with, a carrier with market power in 
any of the cable's WTO Member destination countries, and that requests 
streamlined processing of an application under paragraphs (j) and (k) of 
this section, must comply with the following requirements:
    (1) File quarterly reports summarizing the provisioning and 
maintenance of all network facilities and services procured from the 
licensee's affiliate in that destination market, within ninety (90) days 
from the end of each calendar quarter. These reports shall contain the 
following:
    (i) The types of facilities and services provided (for example, a 
lease of wet link capacity in the cable, collocation of licensee's 
equipment in the cable station with the ability to provide backhaul, or 
cable station and backhaul services provided to the licensee);
    (ii) For provisioned facilities and services, the volume or quantity 
provisioned, and the time interval between order and delivery; and
    (iii) The number of outages and intervals between fault report and 
facility or service restoration; and
    (2) File quarterly circuit status reports, within ninety (90) days 
from the end of each calendar quarter and in the format set out by the 
Sec. 43.82 of this chapter annual circuit status manual with the 
exception that activated or idle circuits must be reported on a 
facility-by-facility basis and derived circuits need not be specified. 
See Sec. 63.10(c)(5) of this chapter.

[[Page 207]]

    (m) (1) Except as specified in paragraph (m)(2) of this section, 
amendments to pending applications, and applications to modify a 
license, including amendments or applications to add a new applicant or 
licensee, shall be signed by each initial applicant or licensee, 
respectively. Joint applicants or licensees may appoint one party to act 
as proxy for purposes of complying with this requirement.
    (2) Any licensee that seeks to relinquish its interest in a cable 
landing license shall file an application to modify the license. Such 
application must include a demonstration that the applicant is not 
required to be a licensee under paragraph (h) of this section and that 
the remaining licensee(s) will retain collectively de jure and de facto 
control of the U.S. portion of the cable system sufficient to comply 
with the requirements of the Commission's rules and any specific 
conditions of the license, and must be served on each other licensee of 
the cable system.
    Note to Sec. 1.767: The terms ``affiliated'' and ``foreign 
carrier,'' as used in this section, are defined as in Sec. 63.09 of 
this chapter except that the term ``foreign carrier'' also shall include 
any entity that owns or controls a cable landing station in a foreign 
market.

[28 FR 12450, Nov. 22, 1963, as amended at 52 FR 5289, Feb. 20, 1987; 61 
FR 15726, Apr. 9, 1996; 64 FR 19061, Apr. 19, 1999; 65 FR 51769, Aug. 
25, 2000; 65 FR 54799, Sept. 11, 2000; 67 FR 1619, Jan. 14, 2002; 69 FR 
40327, July 2, 2004]



Sec. 1.768  Notification by and prior approval for submarine cable landing 
licensees that are or propose to become affiliated with a foreign carrier.

    Any entity that is licensed by the Commission (``licensee'') to land 
or operate a submarine cable landing in a particular foreign destination 
market that becomes, or seeks to become, affiliated with a foreign 
carrier that is authorized to operate in that market, including an 
entity that owns or controls a cable landing station in that market, 
shall notify the Commission of that affiliation.
    (a) Affiliations requiring prior notification: Except as provided in 
paragraph (b) of this section, the licensee must notify the Commission, 
pursuant to this section, forty-five (45) days before consummation of 
either of the following types of transactions:
    (1) Acquisition by the licensee, or by any entity that controls the 
licensee, or by any entity that directly or indirectly owns more than 
twenty-five percent (25%) of the capital stock of the licensee, of a 
controlling interest in a foreign carrier that is authorized to operate 
in a market where the cable lands; or
    (2) Acquisition of a direct or indirect interest greater than 
twenty-five percent (25%), or of a controlling interest, in the capital 
stock of the licensee by a foreign carrier that is authorized to operate 
in a market where the cable lands, or by an entity that controls such a 
foreign carrier.
    (b) Exceptions: (1) Notwithstanding paragraph (a) of this section, 
the notification required by this section need not be filed before 
consummation, and may instead by filed pursuant to paragraph (c) of this 
section, if either of the following is true with respect to the named 
foreign carrier, regardless of whether the destination market where the 
cable lands is a World Trade Organization (WTO) or non-WTO Member:
    (i) The Commission has previously determined in an adjudication that 
the foreign carrier lacks market power in that destination market (for 
example, in an international section 214 application or a declaratory 
ruling proceeding); or
    (ii) The foreign carrier owns no facilities in that destination 
market. For this purpose, a carrier is said to own facilities if it 
holds an ownership, indefeasible-right-of-user, or leasehold interest in 
a cable landing station or in bare capacity in international or domestic 
telecommunications facilities (excluding switches).
    (2) In the event paragraph (b)(1) of this section cannot be 
satisfied, notwithstanding paragraph (a) of this section, the 
notification required by this section need not be filed before 
consummation, and may instead be filed pursuant to paragraph (c) of this 
section, if the licensee certifies that the destination market where the 
cable lands is a WTO Member and provides certification to satisfy either 
of the following:

[[Page 208]]

    (i) The licensee demonstrates that its foreign carrier affiliate 
lacks market power in the cable's destination market pursuant to Sec. 
63.10(a)(3) of this chapter (see Sec. 63.10(a)(3) of this chapter); or
    (ii) The licensee agrees to comply with the reporting requirements 
contained in Sec. 1.767(l) effective upon the acquisition of the 
affiliation. See Sec. 1.767(l).
    (c) Notification after consummation: Any licensee that becomes 
affiliated with a foreign carrier and has not previously notified the 
Commission pursuant to the requirements of this section shall notify the 
Commission within thirty (30) days after consummation of the 
acquisition.

    Example 1 to paragraph (c). Acquisition by a licensee (or by any 
entity that directly or indirectly controls, is controlled by, or is 
under direct or indirect common control with the licensee) of a direct 
or indirect interest in a foreign carrier that is greater than twenty-
five percent (25%) but not controlling is subject to paragraph (c) of 
this section but not to paragraph (a) of this section.
    Example 2 to paragraph (c). Notification of an acquisition by a 
licensee of a hundred percent (100%) interest in a foreign carrier may 
be made after consummation, pursuant to paragraph (c) of this section, 
if the foreign carrier operates only as a resale carrier.
    Example 3 to paragraph (c). Notification of an acquisition by a 
foreign carrier from a WTO Member of a greater than twenty-five percent 
(25%) interest in the capital stock of the licensee may be made after 
consummation, pursuant to paragraph (c) of this section, if the licensee 
demonstrates in the post-notification that the foreign carrier lacks 
market power in the cable's destination market or the licensee agrees to 
comply with the reporting requirements contained in Sec. 1.767(l) 
effective upon the acquisition of the affiliation.

    (d) Cross-reference: In the event a transaction requiring a foreign 
carrier notification pursuant to this section also requires a transfer 
of control or assignment application pursuant to the requirements of the 
license granted under Sec. 1.767 or Sec. 1.767(g), the foreign carrier 
notification shall reference in the notification the transfer of control 
or assignment application and the date of its filing. See Sec. 
1.767(g).
    (e) Contents of notification: The notification shall certify the 
following information:
    (1) The name of the newly affiliated foreign carrier and the country 
or countries at the foreign end of the cable in which it is authorized 
to provide telecommunications services to the public or where it owns or 
controls a cable landing station;
    (2) Which, if any, of those countries is a Member of the World Trade 
Organization;
    (3) The name of the cable system that is the subject of the 
notification, and the FCC file number(s) under which the license was 
granted;
    (4) The name, address, citizenship, and principal business of any 
person or entity that directly or indirectly owns at least ten percent 
(10%) of the equity of the licensee, and the percentage of equity owned 
by each of those entities (to the nearest one percent (1%));
    (5) Interlocking directorates. The name of any interlocking 
directorates, as defined in Sec. 63.09(g) of this chapter, with each 
foreign carrier named in the notification. See Sec. 63.09(g) of this 
chapter.
    (6) With respect to each foreign carrier named in the notification, 
a statement as to whether the notification is subject to paragraph (a) 
or (c) of this section. In the case of a notification subject to 
paragraph (a) of this section, the licensee shall include the projected 
date of closing. In the case of a notification subject to paragraph (c) 
of this section, the licensee shall include the actual date of closing.
    (7) If a licensee relies on an exception in paragraph (b) of this 
section, then a certification as to which exception the foreign carrier 
satisfies and a citation to any adjudication upon which the licensee is 
relying. Licensees relying upon the exceptions in paragraph (b)(2) of 
this section must make the required certified demonstration in paragraph 
(b)(2)(i) of this section or the certified commitment to comply with the 
reporting requirements in paragraph (b)(2)(ii) of this section in the 
notification required by paragraph (c) of this section.
    (f) If the licensee seeks to be excepted from the reporting 
requirements contained in Sec. 1.767(l), the licensee should 
demonstrate that each foreign carrier affiliate named in the 
notification lacks market power pursuant to

[[Page 209]]

Sec. 63.10(a)(3) of this chapter. See Sec. 63.10(a)(3) of this 
chapter.
    (g) Procedure. After the Commission issues a public notice of the 
submissions made under this section, interested parties may file 
comments within fourteen (14) days of the public notice.
    (1) If the Commission deems it necessary at any time before or after 
the deadline for submission of public comments, the Commission may 
impose reporting requirements on the licensee based on the provisions of 
Sec. 1.767(l). See Sec. 1.767(l).
    (2) In the case of a prior notification filed pursuant to paragraph 
(a) of this section in which the foreign carrier is authorized to 
operate in, or own a cable landing station in, a non-WTO Member, the 
licensee must demonstrate that it continues to serve the public interest 
for it to retain its interest in the cable landing license for that 
segment of the cable that lands in the non-WTO destination market by 
demonstrating either that the foreign carrier lacks market power in that 
destination market pursuant to Sec. 63.10(a)(3) of this chapter or the 
market offers effective opportunities for U.S. companies to land and 
operate a submarine cable in that country. If the licensee is unable to 
make either required showing or is notified that the affiliation may 
otherwise harm the public interest pursuant to the Commission's policies 
and rules under 47 U.S.C. 34 through 39 and Executive Order No. 10530, 
dated May 10, 1954, then the Commission may impose conditions necessary 
to address any public interest harms or may proceed to an immediate 
authorization revocation hearing.
    Note to paragraph (g)(2):
    The assessment of whether a destination market offers effective 
opportunities for U.S. companies to land and operate a submarine cable 
will be made under the standard established in Rules and Policies on 
Foreign Participation in the U.S. Telecommunications Market, Market 
Entry and Regulation of Foreign-Affiliated Entities, IB Docket Nos. 97-
142 and 95-22, Report and Order and Order on Reconsideration, 12 FCC Rcd 
23891, 23946 at paragraph 130, 62 FR 64741, December 9, 1997.
    (h) All licensees are responsible for the continuing accuracy of 
information provided pursuant to this section for a period of forty-five 
(45) days after filing. During this period if the information furnished 
is no longer accurate, the licensee shall as promptly as possible, and 
in any event within ten (10) days, unless good cause is shown, file with 
the Secretary in duplicate a corrected notification referencing the FCC 
file numbers under which the original notification was provided.
    (i) A licensee that files a prior notification pursuant to paragraph 
(a) of this section may request confidential treatment of its filing, 
pursuant to Sec. 0.459 of this chapter, for the first twenty (20) days 
after filing. Such a request must be made prominently in a cover letter 
accompanying the filing.
    Note to Sec. 1.768: The terms ``affiliated'' and ``foreign 
carrier,'' as used in this section, are defined as in Sec. 63.09 of 
this chapter except that the term ``foreign carrier'' also shall include 
an entity that owns or controls a cable landing station in a foreign 
market.

[67 FR 1622, Jan. 14, 2002]

                                 Tariffs



Sec. 1.771  Filing.

    Schedules of charges, and classifications, practices, and 
regulations affecting such charges, required under section 203 of the 
Communications Act shall be constructed, filed, and posted in accordance 
with and subject to the requirements of part 61 of this chapter.



Sec. 1.772  Application for special tariff permission.

    Applications under section 203 of the Communications Act for special 
tariff permission shall be made in the form and manner, with the number 
of copies set out in part 61 of this chapter.

[52 FR 5289, Feb. 20, 1987]



Sec. 1.773  Petitions for suspension or rejection of new tariff filings.

    (a) Petition--(1) Content. Petitions seeking investigation, 
suspension, or rejection of a new or revised tariff filing or any 
provision thereof shall specify the filing's Federal Communications 
Commission tariff number and carrier transmittal number, the items 
against which protest is made, and the specific reasons why the 
protested tariff filing warrants investigation, suspension, or rejection 
under the

[[Page 210]]

Communications Act. No petition shall include a prayer that it also be 
considered a formal complaint. Any formal complaint shall be filed as a 
separate pleading as provided in Sec. 1.721.
    (i) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filing or any provision of such a publication, 
must specify the pertinent Federal Communications Commission tariff 
number and carrier transmittal number; the matters protested; and the 
specific reasons why the tariff warrants investigation, suspension, or 
rejection. When a single petition asks for more than one form of relief, 
it must separately and distinctly plead and support each form of relief. 
However, no petiton may ask that it also be considered a formal 
complaint. Formal complaints must be separately lodged, as provided in 
Sec. 1.721.
    (ii) For purposes of this section, tariff filings by nondominant 
carriers will be considered prima facie lawful, and will not be 
suspended by the Commission unless the petition requesting suspension 
shows:
    (A) That there is a high probability the tariff would be found 
unlawful after investigation;
    (B) That the harm alleged to competition would be more substantial 
than the injury to the public arising from the unavailability of the 
service pursuant to the rates and conditions proposed in the tariff 
filing;
    (C) That irreparable injury will result if the tariff filing is not 
suspended; and
    (D) That the suspension would not otherwise be contrary to the 
public interest.
    (iii) For the purpose of this section, any tariff filing by a local 
exchange carrier filed pursuant to the requirements of Sec. 61.39 will 
be considered prima facie lawful and will not be suspended by the 
Commission unless the petition requesting suspension shows that the cost 
and demand studies or average schedule information was not provided upon 
reasonable request. If such a showing is not made, then the filing will 
be considered prima facie lawful and will not be suspended by the 
Commission unless the petition requesting suspension shows each of the 
following:
    (A) That there is a high probability the tariff would be found 
unlawful after investigation;
    (B) That any unreasonable rate would not be corrected in a 
subsequent filing;
    (C) That irreparable injury will result if the tariff filing is not 
suspended; and
    (D) That the suspension would not otherwise be contrary to the 
public interest.
    (iv) For the purposes of this section, tariff filings made pursuant 
to Sec. 61.49(b) by carriers subject to price cap regulation will be 
considered prima facie lawful, and will not be suspended by the 
Commission unless the petition shows that the support information 
required in Sec. 61.49(b) was not provided, or unless the petition 
requesting suspension shows each of the following:
    (A) That there is a high probability the tariff would be found 
unlawful after investigation;
    (B) That the suspension would not substantially harm other 
interested parties;
    (C) That irreparable injury will result if the tariff filing is not 
suspended; and
    (D) That the suspension would not otherwise be contrary to the 
public interest.
    (v) For the purposes of this section, any tariff filing by a price 
cap LEC filed pursuant to the requirements of Sec. 61.42(d)(4)(ii) of 
this chapter will be considered prima facie lawful, and will not be 
suspended by the Commission unless the petition requesting suspension 
shows each of the following:
    (A) That there is a high probability the tariff would be found 
unlawful after investigation;
    (B) That any unreasonable rate would not be corrected in a 
subsequent filing;
    (C) That irreparable injury will result if the tariff filing is not 
suspended; and
    (D) That the suspension would not otherwise be contrary to the 
public interest.
    (2) When filed. All petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filing shall meet the filing 
requirements of this paragraph. In case of emergency and

[[Page 211]]

within the time limits provided, a telegraphic request for such relief 
may be sent to the Commission setting forth succinctly the substance of 
the matters required by paragraph (a)(1) of this section. A copy of any 
such telegraphic request shall be sent simultaneously to the Chief, 
Wireline Competition Bureau, the Chief, Pricing Policy Division, and the 
publishing carrier. Thereafter, the request shall be confirmed by 
petition filed and served in accordance with Sec. 1.773(a)(4).
    (i) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filed pursuant to section 204(a)(3) of the 
Communications Act made on 7 days notice shall be filed and served 
within 3 calendar days after the date of the tariff filing.
    (ii) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filing made on less than 15 days notice shall be 
filed and served within 6 days after the date of the tariff filing.
    (iii) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filing made on at least 15 but less than 30 days 
notice shall be filed and served within 7 days after the date of the 
tariff filing.
    (iv) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filing made on at least 30 but less than 90 days 
notice shall be filed and served within 15 days after the date of the 
tariff filing.
    (v) Petitions seeking investigation, suspension, or rejection of a 
new or revised tariff filing mode on 90 or more days notice shall be 
filed and served within 25 days after the date of the tariff filing.
    (3) Computation of time. Intermediate holidays shall be counted in 
determining the above filing dates. If the date for filing the petition 
falls on a holiday, the petition shall be filed on the next succeeding 
business day.
    (4) Copies, service. An original and four copies of each petition 
shall be filed with the Commission as follows: the original and three 
copies of each petition shall be filed with the Secretary, FCC room TW-
A325, 445 12th Street, SW, Washington, DC 20554; one copy must be 
delivered directly to the Commission's copy contractor. Additional, 
separate copies shall be served simultaneously upon the Chief, Wireline 
Competition Bureau; and the Chief, Pricing Policy Division. Petitions 
seeking investigation, suspension, or rejection of a new or revised 
tariff made on 15 days or less notice shall be served either personally 
or via facsimile on the filing carrier. If a petition is served via 
facsimile, a copy of the petition must also be sent to the filing 
carrier via first class mail on the same day of the facsimile 
transmission. Petitions seeking investigation, suspension, or rejection 
of a new or revised tariff filing made on more than 15 days notice may 
be served on the filing carrier by mail.
    (b) Reply--(1) When filed. A publishing carrier's reply to a 
petition for relief from a tariff filing shall be filed in accordance 
with the following periods:
    (i) Replies to petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filed pursuant to section 204(a)(3) 
of the Act made on 7 days notice shall be filed and served within 2 days 
after the date the petition is filed with the Commission.
    (ii) Replies to petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filing made on less than 15 days 
notice shall be filed and served within 3 days after the date the 
petition is due to be filed with the Commission.
    (iii) Replies to petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filing made on at least 15 but less 
than 30 days notice shall be filed and served within 4 days after 
service of the petition.
    (iv) Replies to petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filing made on at least 30 but less 
than 90 days notice shall be filed and served within 5 days after 
service of the petition.
    (v) Replies to petitions seeking investigation, suspension, or 
rejection of a new or revised tariff filing made on 90 or more days 
notice shall be filed and served within 8 days after service of the 
petition.
    (vi) Where all petitions against a tariff filing have not been filed 
on the same day, the publishing carrier may

[[Page 212]]

file a consolidated reply to all the petitions. The time for filing such 
a consolidated reply will begin to run on the last date for timely filed 
petitions, as fixed by paragraphs (a)(2) (i) through (iv) of this 
section, and the date on which the consolidated reply is due will be 
governed by paragraphs (b)(1) (i) through (iv) of this section.
    (2) Computation of time. Intermediate holidays shall be counted in 
determining the 3-day filing date for replies to petitions seeking 
investigation, suspension, or rejection of a new or revised tariff 
filing made on less than 15 days notice. Intermediate holidays shall not 
be counted in determining filing dates for replies to petitions seeking 
investigation, suspension, or rejection of a new or revised tariff 
filing made on 15 or more days notice. When a petition is permitted to 
be served upon the filing carrier by mail, an additional 3 days 
(counting holidays) may be allowed for filing the reply. If the date for 
filing the reply falls on a holiday, the reply may be filed on the next 
succeeding business day.
    (3) Copies, service. An original and four copies of each reply shall 
be filed with the Commission, as follows: the original and three copies 
must be filed with the Secretary, FCC room TW-A325, 445 12th Street, SW, 
Washington, DC 20554; one copy must be delivered directly to the 
Commission's copy contractor. Additional separate copies shall be served 
simultaneously upon the Chief, Wireline Competition Bureau, the Chief, 
Pricing Policy Division and the petitioner. Replies to petitions seeking 
investigation, suspension, or rejection of a new or revised tariff made 
on 15 days or less notice shall be served on petitioners personally or 
via facsimile. Replies to petitions seeking investigation, suspension, 
or rejection of a new or revised tariff made on more than 15 days notice 
may be served upon petitioner personally, by mail or via facsimile.

[45 FR 64190, Sept. 29, 1980, as amended at 49 FR 40876, Oct. 18, 1984; 
49 FR 49466, Dec. 20, 1984; 52 FR 26682, July 16, 1987; 54 FR 19840, May 
8, 1989; 58 FR 17529, Apr. 5, 1993; 58 FR 51247, Oct. 1, 1993; 62 FR 
5777, Feb. 7, 1997; 64 FR 51264, Sept. 22, 1999; 65 FR 58466, Sept. 29, 
2000; 67 FR 13223, Mar. 21, 2002]



Sec. 1.774  Pricing flexibility.

    (a) Petitions. (1) A petition seeking pricing flexibility for 
specific services pursuant to part 69, subpart H, of this chapter, with 
respect to a metropolitan statistical area (MSA), as defined in Sec. 
22.909(a) of this chapter, or the non-MSA parts of a study area, must 
show that the price cap LEC has met the relevant thresholds set forth in 
part 69, subpart H, of this chapter.
    (2) The petition must make a separate showing for each MSA for which 
the petitioner seeks pricing flexibility, and for the portion of the 
study area that falls outside any MSA.
    (3) Petitions seeking pricing flexibility for services described in 
Sec. Sec. 69.709(a) and 69.711(a) of this chapter must include:
    (i) The total number of wire centers in the relevant MSA or non-MSA 
parts of a study area, as described in Sec. 69.707 of this chapter;
    (ii) The number and location of the wire centers in which 
competitors have collocated in the relevant MSA or non-MSA parts of a 
study area, as described in Sec. 69.707 of this chapter;
    (iii) In each wire center on which the price cap LEC bases its 
petition, the name of at least one collocator that uses transport 
facilities owned by a provider other than the price cap LEC to transport 
traffic from that wire center; and
    (iv)(A) The percentage of the wire centers in the relevant MSA or 
non-MSA area, as described in Sec. 69.707 of this chapter, in which 
competitors have collocated and use transport facilities owned by a 
provider other than the price cap LEC to transport traffic from that 
wire center; or
    (B) The percentage of total base period revenues generated by the 
services at issue in the petition that are attributable to wire centers 
in the relevant MSA or non-MSA area, as described in Sec. 69.707 of 
this chapter, in which competitors have collocated and use transport 
facilities owned by a provider other than the price cap LEC to transport 
traffic from that wire center.
    (4) Petitions seeking pricing flexibility for services described in 
Sec. 69.713(a) of this chapter must make a showing sufficient to meet 
the relevant requirements of Sec. 69.713 of this chapter.

[[Page 213]]

    (b) Confidential treatment. A price cap LEC wishing to request 
confidential treatment of information contained in a pricing flexibility 
petition should demonstrate, by a preponderance of the evidence, that 
the information should be withheld from public inspection in accordance 
with the requirements of Sec. 0.459 of this chapter.
    (c) Oppositions. Any interested party may file comments or 
oppositions to a petition for pricing flexibility. Comments and 
oppositions shall be filed no later than 15 days after the petition is 
filed. Time shall be computed pursuant to Sec. 1.4.
    (d) Replies. The petitioner may file a reply to any oppositions 
filed in response to its petition for pricing flexibility. Replies shall 
be filed no later than 10 days after comments are filed. Time shall be 
computed pursuant to Sec. 1.4.
    (e) Copies, service. (1)(i) Any price cap LEC filing a petition for 
pricing flexibility must submit its petition pursuant to the 
Commission's Electronic Tariff Filing System (ETFS), following the 
procedures set forth in Sec. 61.14(a) of this chapter.
    (ii) The price cap LEC must provide to each party upon which the 
price cap LEC relies to meet its obligations under paragraph (a)(3)(iii) 
of this section, the information it provides about that party in its 
petition, even if the price cap LEC requests that the information be 
kept confidential under paragraph (b) of this section.
    (A) The price cap LEC must certify in its pricing flexibility 
petition that it has made such information available to the party.
    (B) The price cap LEC may provide data to the party in redacted 
form, revealing only that information to the party that relates to the 
party.
    (C) The price cap LEC must provide to the Commission copies of the 
information it provides to such parties.
    (2)(i) Interested parties filing oppositions or comments in response 
to a petition for pricing flexibility may file those comments through 
ETFS.
    (ii) Any interested party electing to file an opposition or comment 
in response to a pricing flexibility petition through a method other 
than ETFS must file an original and four copies of each opposition or 
comment with the Commission, as follows: the original and three copies 
of each pleading shall be filed with the Secretary, FCC, 445 12th 
Street, SW, Washington, DC, 20554; one copy must be delivered directly 
to the Commission's copy contractor. Additional, separate copies shall 
be served upon the Chief, Wireline Competition Bureau and the Chief, 
Pricing Policy Division.
    (iii) In addition, oppositions and comments shall be served either 
personally or via facsimile on the petitioner. If an opposition or 
comment is served via facsimile, a copy of the opposition or comment 
must be sent to the petitioner via first class mail on the same day as 
the facsimile transmission.
    (3) Replies shall be filed with the Commission through ETFS. In 
addition, petitioners choosing to file a reply must serve a copy on each 
party filing an opposition or comment, either personally or via 
facsimile. If a reply is served via facsimile, a copy of the reply must 
be sent to the recipient of that reply via first class mail on the same 
day as the facsimile transmission.
    (f) Disposition. (1) A petition for pricing flexibility pertaining 
to special access and dedicated transport services shall be deemed 
granted unless the Chief, Wireline Competition Bureau, denies the 
petition no later than 90 days after the close of the pleading cycle. 
The period for filing applications for review begins the day the Bureau 
grants or denies the petition, or the day that the petition is deemed 
denied. Time shall be computed pursuant to Sec. 1.4.
    (2) A petition for pricing flexibility pertaining to common-line and 
traffic-sensitive services shall be deemed granted unless the Commission 
denies the petition no later than five months after the close of the 
pleading cycle. Time shall be computed pursuant to Sec. 1.4.

[64 FR 51264, Sept. 22, 1999, as amended at 67 FR 13223, Mar. 21, 2002]

[[Page 214]]

    Contracts, Reports, and Requests Required to be Filed by Carriers



Sec. 1.781  Requests for extension of filing time.

    Requests for extension of time within which to file contracts, 
reports, and requests referred to in Sec. Sec. 1.783 through 1.814 
shall be made in writing and may be granted for good cause shown.

                                Contracts



Sec. 1.783  Filing.

    Copies of carrier contracts, agreements, concessions, licenses, 
authorizations or other arrangements, shall be filed as required by part 
43 of this chapter.

              Financial and Accounting Reports and Requests



Sec. 1.785  Annual financial reports.

    (a) An annual financial report shall be filed by telephone carriers 
and affiliates as required by part 43 of this chapter on form M.
    (b) Verified copies of annual reports filed with the Securities and 
Exchange Commission on its Form 10-K, Form 1-MD, or such other form as 
may be prescribed by that Commission for filing of equivalent 
information, shall be filed annually with this Commission by each person 
directly or indirectly controlling any communications common carrier in 
accordance with part 43 of this chapter.
    (c) Carriers having separate departments or divisions for carrier 
and noncarrier operations shall file separate supplemental annual 
reports with respect to such carrier and non-carrier operations in 
accordance with part 43 of this chapter.

[28 FR 12450, Nov. 22, 1963, as amended at 31 FR 747, Jan. 20, 1966; 47 
FR 50697, Nov. 9, 1982; 49 FR 36503, Sept. 18, 1984; 50 FR 41152, Oct. 
9, 1985; 58 FR 36143, July 6, 1993]



Sec. 1.786  [Reserved]



Sec. 1.787  Reports of proposed changes in depreciation rates.

    Carriers shall file reports regarding proposed changes in 
depreciation rates as required by part 43 of this chapter.



Sec. 1.788  Reports regarding pensions and benefits.

    Carriers shall file reports regarding pensions and benefits as 
required by part 43 of this chapter.



Sec. 1.789  Reports regarding division of international telegraph 
communication charges.

    Carriers engaging in international telegraph communication shall 
file reports in regard to the division of communication charges as 
required by part 43 of this chapter.



Sec. 1.790  Reports relating to traffic by international carriers.

    Carriers shall file periodic reports regarding international point-
to-point traffic as required by part 43 of this chapter.

[57 FR 8579, Mar. 11, 1992]



Sec. 1.791  Reports and requests to be filed under part 32 of this chapter.

    Reports and requests shall be filed either periodically, upon the 
happening of specified events, or for specific approval by class A and 
class B telephone companies in accordance with and subject to the 
provisions of part 32 of this chapter.

[55 FR 30461, July 26, 1990]



Sec. 1.795  Reports regarding interstate rates of return.

    Carriers shall file reports regarding interstate rates of return on 
FCC Form 492 as required by part 65 of this chapter.

[52 FR 274, Jan. 5, 1987]

                     Services and Facilities Reports



Sec. 1.802  Reports relating to continuing authority to supplement 
facilities or to provide temporary or emergency service.

    Carriers receiving authority under part 63 of this chapter shall 
file quarterly or semiannual reports as required therein.



Sec. 1.803  Reports relating to reduction in temporary experimental service.

    As required in part 63 of this chapter, carriers shall report 
reductions in service which had previously been expanded

[[Page 215]]

on an experimental basis for a temporary period.



Sec. 1.805  Reports relating to service by carriers engaged in public 
radio service operations.

    Monthly and quarterly reports must be filed with the Commission in 
connection with certain fixed public radio service operations. No form 
is prescribed. A complete description of the contents of these reports 
is contained in part 23 of this chapter.

                          Miscellaneous Reports



Sec. 1.811  Reports regarding amendments to charters, by-laws and 

partnership agreements of carriers engaged in domestic public radio 
services.

    Amendments to such documents shall be reported and filed in 
accordance with part 21 of this chapter.



Sec. 1.814  Reports regarding free service rendered the Government 
for national defense.

    Carriers rendering free service in connection with the national 
defense to any agency of the United States Government shall file reports 
in accordance with part 2 of this chapter.



Sec. 1.815  Reports of annual employment.

    (a) Each common carrier licensee or permittee with 16 or more full 
time employees shall file with the Commission, on or before May 31 of 
each year, on FCC Form 395, an annual employment report.
    (b) A copy of every annual employment report filed by the licensee 
or permittee pursuant to the provisions herein; and copies of all 
exhibits, letters, and other documents filed as part thereof, all 
amendments thereto, all correspondence between the permittee or licensee 
and the Commission pertaining to the reports after they have been filed 
and all documents incorporated herein by reference are open for public 
inspection at the offices of the Commission.
    (c) Cross references--(1) Applicability of cable television EEO 
reporting requirements to MDS and MMDS facilities, see Sec. 21.920 of 
this chapter.
    (2) Applicability of cable television EEO reporting requirements for 
FSS facilities, see Sec. 25.601 of this chapter.

[35 FR 12894, Aug. 14, 1970, as amended at 36 FR 3119, Feb. 18, 1971; 58 
FR 42249, Aug. 9, 1993]

                       Grants by Random Selection



Sec. 1.821  Scope.

    The provisions of Sec. Sec. 1.822 and 1.824 of this part apply as 
indicated to those applications for permits, licenses or authorizations 
in the Multichannel Multipoint Distribution Service for which action may 
be taken by the Wireless Telecommunications Bureau pursuant to delegated 
authority.

[63 FR 68920, Dec. 14, 1998, as amended at 67 FR 13224, Mar. 21, 2002]



Sec. 1.822  General selection procedures.

    (a) Mutually exclusive applications for permits and licenses in the 
services specified in Sec. 1.821 may be designated for random selection 
according to the procedures established for each service. Following the 
random selection, the Commission shall determine whether the applicant 
is qualified to receive the permit or license. If, after reviewing the 
tentative selectee's application and pleadings properly filed against 
it, the Commission determines that a substantial and material question 
of fact exists, it shall designate the qualifying issue(s) for an 
expedited hearing.
    (b) Expedited hearing procedures. (1) Hearings may be conducted by 
the Commission or an Administrative Law Judge. In the case of a question 
which requires oral testimony for its resolution, the hearing will be 
conducted by an Administrative Law Judge.
    (2) Parties have ten (10) days from publication in the Federal 
Register of the hearing designation order to file notices of appearance.
    (3) When the Commission, under Sec. 1.221, issues an order stating 
the time, place, and nature of the hearing, this order shall instruct 
the applicant to submit its direct case in writing within thirty (30) 
days from the order's release date, or as otherwise specified in the 
order. The direct written case must set forth all those facts and 
circumstances related to the issues in the designation order. 
Documentary evidence upon

[[Page 216]]

which the applicant relies must be attached. Each exhibit must be 
numbered and must be accompanied by an affidavit from someone who has 
personal knowledge of the facts in the submission and who attests to the 
truth of the submission.
    (4) The order will also specify those petitioners that directly 
raised an issue which was designated and will inform these parties of 
their opportunity to submit a written rebuttal case within twenty (20) 
days after the direct case is due. The procedures in paragraph (b)(3) of 
this section will apply as to documentary evidence, exhibits, and 
affidavits.
    (5) Appeal of initial decisions rendered by an Administrative Law 
Judge shall lie with the Commission.

[48 FR 27201, June 13, 1983. Redesignated and amended at 50 FR 5991, 
Feb. 13, 1985]



Sec. 1.824  Random selection procedures for Multichannel Multipoint 

Distribution Service and Multipoint Distribution Service H-Channel 
stations.

    (a) If there are mutually exclusive applications for an initial 
conditional license or license, the Commission may use the random 
selection process to select the conditional licensee or licensee. Each 
such random selection shall be conducted under the direction of the 
Office of the Managing Director in conjunction with the Office of the 
Secretary. Following the random selection, the Commission shall announce 
the tentative selectee and determine whether the applicant is qualified 
to receive the conditional license or license. If the Commission 
determines that the tentative selectee is qualified, it shall grant the 
application. In the event that the tentative selectee's application is 
denied, a second random selection will be conducted. Petitions for 
Reconsideration, Motions to Stay or Applications for Review may be 
submitted at the time the Commission grants or denies the application of 
the tentative selectee. The filing periods specified in the rules shall 
apply for such pleadings.
    (b) Competing applications for conditional licenses and licenses 
shall be designated for random selection in accordance with Sec. Sec. 
1.1621, 1.1622 (a), (b), (c), (d), and (e), and 1.1623. No preferences 
pursuant to Sec. 1.1622 (b)(2) or (b)(3) shall be granted to any MMDS 
or MDS H-channel applicant whose owners, when aggregated, have an 
ownership interest of more than 50 percent in the media of mass 
communication whose service areas, as set forth at Sec. 1.1622 (e)(1) 
through (e)(7), wholly encompass or are encompassed by the protected 
service area contour, computed in accordance with Sec. 21.902(d) of 
this chapter, for which the license or conditional license is sought.
    (c) Petitions to Deny may be filed only against the tentative 
selectee. These petitions must be filed within 30 days of the Public 
Notice announcing such tentative selection. A consolidated reply may be 
filed within 15 days of the due date for Petitions to Deny.

[50 FR 5992, Feb. 13, 1985, as amended at 56 FR 57815, Nov. 14, 1991]



    Subpart F_Wireless Telecommunications Services Applications and 
                               Proceedings

    Source: 28 FR 12454, Nov. 22, 1963, unless otherwise noted.

                           Scope and Authority



Sec. 1.901  Basis and purpose.

    These rules are issued pursuant to the Communications Act of 1934, 
as amended, 47 U.S.C. 151 et seq. The purpose of these rules is to 
establish the requirements and conditions under which entities may be 
licensed in the Wireless Radio Services as described in this part and in 
parts 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this 
chapter.

[68 FR 12755, Mar. 17, 2003]



Sec. 1.902  Scope.

    In case of any conflict between the rules set forth in this subpart 
and the rules set forth in Parts 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 
95, 97, and 101 of title 47, chapter I of the Code of Federal 
Regulations, the rules in part 1 shall govern.

[68 FR 12755, Mar. 17, 2003]

[[Page 217]]



Sec. 1.903  Authorization required.

    (a) General rule. Stations in the Wireless Radio Services must be 
used and operated only in accordance with the rules applicable to their 
particular service as set forth in this title and with a valid 
authorization granted by the Commission under the provisions of this 
part, except as specified in paragraph (b) of this section.
    (b) Restrictions. The holding of an authorization does not create 
any rights beyond the terms, conditions and period specified in the 
authorization. Authorizations may be granted upon proper application, 
provided that the Commission finds that the applicant is qualified in 
regard to citizenship, character, financial, technical and other 
criteria, and that the public interest, convenience and necessity will 
be served. See Sec. Sec. 301, 308, and 309, 310 of this chapter.
    (c) Subscribers. Authority for subscribers to operate mobile or 
fixed stations in the Wireless Radio Services, except for certain 
stations in the Rural Radiotelephone Service and the Air-Ground 
Radiotelephone Service, is included in the authorization held by the 
licensee providing service to them. Subscribers are not required to 
apply for, and the Commission does not accept, applications from 
subscribers for individual mobile or fixed station authorizations in the 
Wireless Radio Services, except as follows: individual authorizations 
are required to operate general aviation airborne mobile stations in the 
Air-Ground Radiotelephone Service. See Sec. 22.82 of this chapter. 
Individual authorizations are required to operate rural subscriber 
stations in the Rural Radiotelephone Service, except as provided in 
Sec. 22.703 of this chapter. Individual authorizations are required for 
end users of certain Specialized Mobile Radio Systems as provided in 
Sec. 90.655 of this chapter. In addition, certain ships and aircraft 
are required to be individually licensed under Parts 80 and 87 of this 
chapter. See Sec. Sec. 80.13, 87.18 of this chapter.

[63 FR 68921, Dec. 14, 1998]



Sec. 1.907  Definitions.

    Antenna structure. The term antenna structure includes the radiating 
and receiving elements, its supporting structures, towers, and all 
appurtenances mounted thereon.
    Application. A request on a standard form for a station license as 
defined in Sec. 3(b) of the Communications Act, signed in accordance 
with Sec. 1.917 of this part, or a similar request to amend a pending 
application or to modify or renew an authorization. The term also 
encompasses requests to assign rights granted by the authorization or to 
transfer control of entities holding authorizations.
    Auctionable license. A Wireless Radio Service license identified in 
Sec. 1.2102 of this part for which competitive bidding is used to 
select from among mutually exclusive applications.
    Auctionable license application. A Wireless Radio Service license 
application identified in Sec. 1.2102 of this part for which 
competitive bidding is used if the application is subject to mutually 
exclusive applications.
    Authorization. A written instrument or oral statement issued by the 
FCC conveying authority to operate, for a specified term, to a station 
in the Wireless Telecommunications Services.
    Authorized bandwidth. The maximum bandwidth permitted to be used by 
a station as specified in the station license. See Sec. 2.202 of this 
chapter.
    Authorized power. The maximum power a station is permitted to use. 
This power is specified by the Commission in the station's authorization 
or rules.
    Control station. A fixed station, the transmissions of which are 
used to control automatically the emissions or operations of a radio 
station, or a remote base station transmitter.
    Effective radiated power (ERP). The product of the power supplied to 
the antenna multiplied by the gain of the antenna referenced to a half-
wave dipole.
    Equivalent Isotopically Radiated Power (EIRP). The product of the 
power supplied to the antenna multiplied by the antenna gain referenced 
to an isotropic antenna.
    Fixed station. A station operating at a fixed location.
    Harmful interference. Interference that endangers the functioning of 
a radionavigation service or of other

[[Page 218]]

safety services or seriously degrades, obstructs, or repeatedly 
interrupts a radio communications service operating in accordance with 
the Radio Regulations.
    Mobile relay station. A fixed transmitter used to facilitate the 
transmission of communications between mobile units.
    Mobile station. A radio communication station capable of being moved 
and which ordinarily does move.
    Non-auctionable license. A Wireless Radio Service license identified 
in Sec. 1.2102 of this part for which competitive bidding is not used 
to select from among mutually exclusive applications.
    Non-auctionable license application. A Wireless Radio Service 
license application for which Sec. 1.2102 of this part precludes the 
use of competitive bidding if the application is subject to mutually 
exclusive applications.
    Private Wireless Services. Wireless Radio Services authorized by 
parts 80, 87, 90, 95, 97, and 101 that are not Wireless 
Telecommunications Services, as defined in this part.
    Radio station. A separate transmitter or a group of transmitters 
under simultaneous common control, including the accessory equipment 
required for carrying on a radio communications service.
    Receipt date. The date an electronic or paper application is 
received at the appropriate location at the Commission or Mellon Bank. 
Amendments to pending applications may result in the assignment of a new 
receipt date in accordance with Sec. 1.927 of this part.
    Universal Licensing System. The Universal Licensing System (ULS) is 
the consolidated database, application filing system, and processing 
system for all Wireless Radio Services. ULS supports electronic filing 
of all applications and related documents by applicants and licensees in 
the Wireless Radio Services, and provides public access to licensing 
information.
    Wireless Radio Services. All radio services authorized in parts 13, 
20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97 and 101 of this chapter, 
whether commercial or private in nature.
    Wireless Telecommunications Services. Wireless Radio Services, 
whether fixed or mobile, that meet the definition of 
``telecommunications service'' as defined by 47 U.S.C. 153, as amended, 
and are therefore subject to regulation on a common carrier basis. 
Wireless Telecommunications Services include all radio services 
authorized by parts 20, 22, 24, 26, and 27 of this chapter. In addition, 
Wireless Telecommunications Services include Public Coast Stations 
authorized by part 80 of this chapter, Commercial Mobile Radio Services 
authorized by part 90 of this chapter, and common carrier fixed 
microwave services, Local Television Transmission Service (LTTS), Local 
Multipoint Distribution Service (LMDS), and Digital Electronic Message 
Service (DEMS), authorized by part 101 of this chapter.

[63 FR 68921, Dec. 14, 1998]

                 Application Requirements and Procedures



Sec. 1.911  Station files.

    Applications, notifications, correspondence, electronic filings and 
other material, and copies of authorizations, comprising technical, 
legal, and administrative data relating to each station in the Wireless 
Radio Services are maintained by the Commission in ULS. These files 
constitute the official records for these stations and supersede any 
other records, database or lists from the Commission or other sources.

[63 FR 68922, Dec. 14, 1998]



Sec. 1.913  Application and notification forms; electronic and manual 
filing.

    (a) Application and notification forms. Applicants, licensees, and 
spectrum lessees (see Sec. 1.9003 of subpart X of this part) shall use 
the following forms and associated schedules for all applications and 
notifications:
    (1) FCC Form 601, Application for Authorization in the Wireless 
Radio Services. FCC Form 601 and associated schedules is used to apply 
for initial authorizations, modifications to existing authorizations, 
amendments to pending applications, renewals of station authorizations, 
developmental authorizations, special temporary authority, 
notifications, requests for extension of time, and administrative 
updates.

[[Page 219]]

    (2) FCC Form 602, Wireless Radio Services Ownership Form. FCC Form 
602 is used by applicants and licensees in auctionable services to 
provide and update ownership information as required by Sec. Sec. 
1.919, 1.948, 1.2112, and any other section that requires the submission 
of such information.
    (3) FCC Form 603, Application for Assignment of Authorization or 
Transfer of Control; Notification or Application for Spectrum Leasing 
Arrangement. FCC Form 603 is used by applicants and licensees to apply 
for Commission consent to assignments of existing authorizations, to 
apply for Commission consent to transfer control of entities holding 
authorizations, to notify the Commission of the consummation of 
assignments or transfers, and to request extensions of time for 
consummation of assignments or transfers. It is also used for Commission 
consent to partial assignments of authorization, including partitioning 
and disaggregation. In addition, it is used by licensees and spectrum 
lessees (see Sec. 1.9003 of subpart X of this part) to notify the 
Commission regarding spectrum manager leasing arrangements and to apply 
for Commission consent for de facto transfer leasing arrangements 
pursuant to the rules set forth in subpart X of this part (see subpart X 
of this part).
    (4) FCC Form 605, Quick-form Application for Authorization for 
Wireless Radio Services. FCC Form 605 is used to apply for Amateur, 
Ship, Aircraft, and General Mobile Radio Service (GMRS) authorizations, 
as well as Commercial Radio Operator Licenses.
    (b) Electronic filing. Except as specified in paragraph (d) of this 
section or elsewhere in this chapter, all applications and other filings 
using FCC Forms 601 through 605 or associated schedules must be filed 
electronically in accordance with the electronic filing instructions 
provided by ULS. For each Wireless Radio Service that is subject to 
mandatory electronic filing, this subparagraph is effective on (1) July 
1, 1999, or (2) six months after the Commission begins use of ULS to 
process applications in the service, whichever is later. The Commission 
will announce by public notice the deployment date of each service in 
ULS.
    (1) Attachments to applications and notifications should be uploaded 
along with the electronically filed applications and notifications 
whenever possible. The files, other than the ASCII table of contents, 
should be in Adobe Acrobat Portable Document Format (PDF) whenever 
possible.
    (2) Any associated documents submitted with an application or 
notification must be uploaded as attachments to the application or 
notification whenever possible. The attachment should be uploaded via 
ULS in Adobe Acrobat Portable Document Format (PDF) whenever possible.
    (c) Auctioned license applications. Auctioned license applications, 
as defined in Sec. 1.907 of this part, shall also comply with the 
requirements of subpart Q of this part and the applicable Commission 
orders and public notices issued with respect to each auction for a 
particular service and spectrum.
    (d) Manual filing. (1) ULS Forms 601, 603 and 605 may be filed 
manually or electronically by applicants and licensees in the following 
services:
    (i) The part 90 Private Land Mobile Radio services for shared 
spectrum, spectrum in the public safety pool below 746 MHz, and spectrum 
in the public safety allocation above 746 MHz, except those filed by 
Commission-certified frequency coordinators;
    (ii) The part 97 Amateur Radio Service, except those filed by 
Volunteer Examination Coordinators;
    (iii) The part 95 General Mobile Radio Service and Personal Radio 
Service (excluding 218-219 MHz service);
    (iv) The part 80 Maritime Services (excluding the VHF 156-162 MHz 
Public Coast Stations);
    (v) The part 87 Aviation Services;
    (vi) Part 13 Commercial Radio Operators; and
    (vii) Part 101 licensees who are also members of any of the groups 
listed in paragraph (d)(1)(i) through (d)(1)(vi) of this section.
    (2) Manually filed applications must be submitted to the Commission 
at the appropriate address with the appropriate filing fee. The 
addresses for filing and the fee amounts for particular applications are 
listed in Subpart G of

[[Page 220]]

this part, and in the appropriate fee filing guide for each service 
available from the Commission's Forms Distribution Center by calling 1-
800-418-FORM (3676).
    (3) Manually filed applications requiring fees as set forth at 
Subpart G, of this part must be filed in accordance with Sec. 0.401(b).
    (4) Manually filed applications that do not require fees must be 
addressed and sent to Federal Communications Commission, 1270 Fairfield 
Road, Gettysburg, Pennsylvania 17325-7245.
    (5) Standard forms may be reproduced and the copies used in 
accordance with the provisions of Sec. 0.409 of this chapter.
    (6) Attachments to manually filed applications may be filed on a 
standard 3.5 magnetic diskette formatted to be readable by high density 
floppy drives operating under MS-DOS (version 3.X or later compatible 
versions). Each diskette submitted must contain an ASCII text file 
listing each filename and a brief description of the contents of each 
file and format for each document on the diskette. The files on the 
diskette, other than the table of contents, should be in Adobe Acrobat 
Portable Document Format (PDF) whenever possible. All diskettes 
submitted must be legibly labelled referencing the application and its 
filing date.
    (e) Applications requiring prior coordination. Parties filing 
applications that require frequency coordination shall, prior to filing, 
complete all applicable frequency coordination requirements in service-
specific rules contained within this chapter. After appropriate 
frequency coordination, such applications may be electronically filed 
via ULS or, if filed manually, must be forwarded to the appropriate 
address with the appropriate filing fee (if applicable) in accordance 
with subparagraph (d). Applications filed by the frequency coordinator 
on behalf of the applicant must be filed electronically.
    (f) Applications for Amateur licenses. Each candidate for an amateur 
radio operator license which requires the applicant to pass one or more 
examination elements must present the administering Volunteer Examiners 
(VE) with all information required by the rules prior to the 
examination. The VEs may collect the information required by these rules 
in any manner of their choosing, including creating their own forms. 
Upon completion of the examination, the administering VEs will 
immediately grade the test papers and will then issue a certificate for 
successful completion of an amateur radio operator examination (CSCE) if 
the applicant is successful. The VEs will send all necessary information 
regarding a candidate to the Volunteer-Examiner Coordinator (VEC) 
coordinating the examination session. Applications filed with the 
Commission by VECs must be filed electronically via ULS. All other 
applications for amateur service licenses may be submitted manually to 
FCC, 1270 Fairfield Road, Gettysburg, PA 17325-7245, or may be 
electronically filed via ULS. Feeable requests for vanity call signs 
must be filed in accordance with Sec. 0.401 of this chapter or 
electronically filed via ULS.
    (g) Section 337 Requests. Applications to provide public safety 
services submitted pursuant to 47 U.S.C. 337 must be filed on the same 
form and in the same manner as other applications for the requested 
frequency(ies), except that applicants must select the service code 
reflective of the type of service the applicant intends to provide.

[63 FR 68922, Dec. 14, 1998, as amended at 66 FR 55, Jan. 2, 2001; 67 FR 
34851, May 16, 2002; 68 FR 42995, July 21, 2003; 68 FR 66276, Nov. 25, 
2003]

    Effective Date Note: At 68 FR 66276, Nov. 25, 2003, Sec. 1.913 (a) 
introductory text, and paragraph (a)(3) were revised. This amendment 
contains information collection and recordkeeping requirements and will 
not become effective until approval has been given by the Office of 
Management and Budget.



Sec. 1.915  General application requirements.

    (a) General requirement. Except as provided in paragraph (b) of this 
section, for all Wireless Radio Services, station licenses, as defined 
in section 308(a) of the Communications Act, as amended, operator 
licenses, modifications or renewals of licenses, assignments or 
transfers of control of station licenses or any rights thereunder, and 
waiver requests associated with any of the foregoing shall be granted 
only upon an

[[Page 221]]

application filed pursuant to Sec. Sec. 1.913 through 1.917 of this 
part.
    (b)(1) Exception for emergency filings. The Commission may grant 
station licenses, or modifications or renewals thereof, without the 
filing of a formal application in the following cases:
    (i) an emergency found by the Commission to involve danger to life 
or property or to be due to damage to equipment;
    (ii) a national emergency proclaimed by the President or declared by 
the Congress and during the continuance of any war in which the United 
States is engaged, when such action is necessary for the national 
defense or security or otherwise in furtherance of the war effort; or
    (iii) an emergency where the Commission finds that it would not be 
feasible to secure renewal applications from existing licensees or 
otherwise to follow normal licensing procedures.
    (2) No such authorization shall be granted for or continue in effect 
beyond the period of the emergency or war requiring it. The procedures 
to be followed for emergency requests submitted under this subparagraph 
are the same as for seeking special temporary authority under Sec. 
1.931 of this part. After the end of the period of emergency, the party 
must submit its request by filing the appropriate FCC form in accordance 
with paragraph (a) of this section.

[63 FR 68923, Dec. 14, 1998]



Sec. 1.917  Who may sign applications.

    (a) Except as provided in paragraph (b) of this section, 
applications, amendments, and related statements of fact required by the 
Commission must be signed as follows (either electronically or manually, 
see paragraph (d) of this section): (1) By the applicant, if the 
applicant is an individual; (2) by one of the partners if the applicant 
is a partnership; (3) by an officer, director, or duly authorized 
employee, if the applicant is a corporation; (4) by a member who is an 
officer, if the applicant is an unincorporated association; or (5) by 
the trustee if the applicant is an amateur radio service club. 
Applications, amendments, and related statements of fact filed on behalf 
of eligible government entities such as states and territories of the 
United States, their political subdivisions, the District of Columbia, 
and units of local government, including unincorporated municipalities, 
must be signed by a duly elected or appointed official who is authorized 
to do so under the laws of the applicable jurisdiction.
    (b) Applications, amendments, and related statements of fact 
required by the Commission may be signed by the applicant's attorney in 
case of the applicant's physical disability or absence from the United 
States, or by applicant's designated vessel master when a temporary 
permit is requested for a vessel. The attorney shall, when applicable, 
separately set forth the reason why the application is not signed by the 
applicant. In addition, if any matter is stated on the basis of the 
attorney's or master's belief only (rather than knowledge), the attorney 
or master shall separately set forth the reasons for believing that such 
statements are true. Only the original of applications, amendments, and 
related statements of fact need be signed.
    (c) Applications, amendments, and related statements of fact need 
not be signed under oath. Willful false statements made therein, 
however, are punishable by fine and imprisonment, 18 U.S.C. 1001, and by 
appropriate administrative sanctions, including revocation of station 
license pursuant to 312(a)(1) of the Communications Act of 1934, as 
amended.
    (d) ``Signed,'' as used in this section, means, for manually filed 
applications only, an original hand-written signature or, for 
electronically filed applications only, an electronic signature. An 
electronic signature shall consist of the name of the applicant 
transmitted electronically via ULS and entered on the application as a 
signature.

[63 FR 68923, Dec. 14, 1998]



Sec. 1.919  Ownership information.

    (a) Applicants or licensees in Wireless Radio Services that are 
subject to the ownership reporting requirements of Sec. 1.2112 shall 
use FCC Form 602 to provide all ownership information required by the 
chapter.
    (b) Any applicant or licensee that is subject to the ownership 
reporting requirements of Sec. 1.2112 shall file an FCC

[[Page 222]]

Form 602, or file an updated form if the ownership information on a 
previously filed FCC Form 602 is not current, at the time it submits:
    (1) An initial application for authorization (FCC Form 601);
    (2) An application for license renewal (FCC Form 601);
    (3) An application for assignment of authorization or transfer of 
control (FCC Form 603); or
    (4) A notification of consummation of a pro forma assignment of 
authorization or transfer of control (FCC Form 603) under the 
Commission's forbearance procedures (see Sec. 1.948(c ) of this part).
    (c) A single FCC Form 602 may be associated with multiple 
applications filed by the same applicant or licensee. If an applicant or 
licensee already has a current FCC Form 602 on file when it files an 
initial application, renewal application, application for assignment or 
transfer of control, or notification of a pro forma assignment or 
transfer, it may certify that it has a current FCC Form 602 on file.
    (d) No filing fee is required to submit or update FCC Form 602.
    (e) Applicants or licensees in Wireless Radio Services that are not 
subject to the ownership reporting requirements of Sec. 1.2112 are not 
required to file FCC Form 602. However, such applicants and licensees 
may be required by the rules applicable to such services to disclose the 
real party (or parties) in interest to the application, including (as 
required) a complete disclosure of the identity and relationship of 
those persons or entities directly or indirectly owning or controlling 
(or both) the applicant or licensee.

[63 FR 68923, Dec. 14, 1998, as amended at 68 FR 42995, July 21, 2003]



Sec. 1.923  Content of applications.

    (a) General. Applications must contain all information requested on 
the applicable form and any additional information required by the rules 
in this chapter and any rules pertaining to the specific service for 
which the application is filed.
    (b) Reference to material on file. Questions on application forms 
that call for specific technical data, or that can be answered yes or no 
or with another short answer, must be answered on the form. Otherwise, 
if documents, exhibits, or other lengthy showings already on file with 
the FCC contain information required in an application, the application 
may incorporate such information by reference, provided that:
    (1) The referenced information has been filed in ULS or, if manually 
filed outside of ULS, the information comprises more than one ``8\1/2\ x 
11'' page.
    (2) The referenced information is current and accurate in all 
material respects; and
    (3) The application states specifically where the referenced 
information can actually be found, including:
    (i) The station call sign or application file number and its 
location if the reference is to station files or previously filed 
applications;
    (ii) The title of the proceeding, the docket number, and any legal 
citations, if the reference is to a docketed proceeding.
    (c) Antenna locations. Applications for stations at fixed locations 
must describe each transmitting antenna site by its geographical 
coordinates and also by its street address, or by reference to a nearby 
landmark. Geographical coordinates, referenced to NAD83, must be 
specified in degrees, minutes, and seconds to the nearest second of 
latitude and longitude.
    (d) Antenna structure registration. Owners of certain antenna 
structures must notify the Federal Aviation Administration and register 
with the Commission as required by Part 17 of this chapter. Applications 
proposing the use of one or more new or existing antenna structures must 
contain the FCC Antenna Registration Number(s) of each structure for 
which registration is required. If registration is not required, the 
applicant must provide information in its application sufficient for the 
Commission to verify this fact.
    (e) Environmental concerns. Each applicant is required to indicate 
at the time its application is filed whether or not a Commission grant 
of the application may have a significant environmental effect, as 
defined by Sec. 1.1307 of this chapter. If answered affirmatively, an 
Environmental Assessment, required by Sec. 1.1311 of this chapter, must

[[Page 223]]

be filed with the application and environmental review by the Commission 
must be completed prior to construction.
    (f) International coordination. Channel assignments and/or usage 
under this part are subject to the applicable provisions and 
requirements of treaties and other international agreements between the 
United States government and the governments of Canada and Mexico.
    (g) Quiet zones. Each applicant is required to comply with the 
``Quiet Zone'' rule (see Sec. 1.924).
    (h) Taxpayer Identification Number (TINs). Wireless applicants and 
licensees, including all attributable owners of auctionable licenses as 
defined by Sec. 1.2112 of this part, are required to provide their 
Taxpayer Identification Numbers (TINS) (as defined in 26 U.S.C. 6109) to 
the Commission, pursuant to the Debt Collection Improvement Act of 1996 
(DCIA). Under the DCIA, the FCC may use an applicant or licensee's TIN 
for purposes of collecting and reporting to the Department of the 
Treasury any delinquent amounts arising out of such person's 
relationship with the Government. The Commission will not publicly 
disclose applicant or licensee TINs unless authorized by law, but will 
assign a ``public identification number'' to each applicant or licensee 
registering a TIN. This public identification number will be used for 
agency purposes other than debt collection.
    (i) Unless an exception is set forth elsewhere in this chapter, each 
applicant must specify an address where the applicant can receive mail 
delivery by the United States Postal Service. This address will be used 
by the Commission to serve documents or direct correspondence to the 
applicant.

[63 FR 68924, Dec. 14, 1998, as amended at 64 FR 53238, Oct. 1, 1999]



Sec. 1.924  Quiet zones.

    Areas implicated by this paragraph are those in which it is 
necessary to restrict radiation so as to minimize possible impact on the 
operations of radio astronomy or other facilities that are highly 
sensitive to interference. Consent throughout this paragraph means 
written consent from the quiet zone, radio astronomy, research, and 
receiving installation entity. The areas involved and procedures 
required are as follows:
    (a) NRAO, NRRO. The requirements of this paragraph are intended to 
minimize possible interference at the National Radio Astronomy 
Observatory site located at Green Bank, Pocahontas County, West 
Virginia, and at the Naval Radio Research Observatory site at Sugar 
Grove, Pendleton County, West Virginia.
    (1) Applicants and licensees planning to construct and operate a new 
or modified station at a permanent fixed location within the area 
bounded by N 39[deg]15[min]0.4[sec] on the north, W 
78[deg]29[min]59.0[sec] on the east, N 37[deg]30[min]0.4[sec] on the 
south, and W 80[deg]29[min]59.2[sec] on the west must notify the 
Director, National Radio Astronomy Observatory, Post Office Box No. 2, 
Green Bank, West Virginia 24944, in writing, of the technical details of 
the proposed operation. The notification must include the geographical 
coordinates of the antenna location, the antenna height, antenna 
directivity (if any), the channel, the emission type and power.
    (2) When an application for authority to operate a station is filed 
with the FCC, the notification required in paragraph (a)(1) of this 
section may be made prior to, or simultaneously with the application. 
The application must state the date that notification in accordance with 
paragraph (a)(1) of this section was made. After receipt of such 
applications, the FCC will allow a period of 20 days for comments or 
objections in response to the notifications indicated. If an applicant 
submits written consent from the National Radio Astronomy Observatory 
for itself or on behalf of the Naval Radio Research Observatory, the FCC 
will process the application without awaiting the conclusion of the 20-
day period. For services that do not require individual station 
authorization, entities that have obtained written consent from the 
National Radio Astronomy Observatory for itself or on behalf of the 
Naval Radio Research Observatory may begin to operate new or modified 
facilities prior to the end of the 20-day period. In instances in which 
notification has

[[Page 224]]

been made to the National Radio Astronomy Observatory prior to 
application filing, the applicant must also provide notice to the quiet 
zone entity upon actual filing of the application with the FCC. Such 
notice will be made simultaneous with the filing of the application and 
shall comply with the requirements of paragraph (a)(1) of this section.
    (3) If an objection is received during the 20-day period from the 
National Radio Astronomy Observatory for itself or on behalf of the 
Naval Radio Research Observatory, the FCC will, after consideration of 
the record, take whatever action is deemed appropriate.
    (b) Table Mountain. The requirements of this paragraph are intended 
to minimize possible interference at the Table Mountain Radio Receiving 
Zone of the Research Laboratories of the Department of Commerce located 
in Boulder County, Colorado.
    (1) Licensees and applicants planning to construct and operate a new 
or modified station at a permanent fixed location in the vicinity of 
Boulder County, Colorado are advised to give consideration, prior to 
filing applications, to the need to protect the Table Mountain Radio 
Receiving Zone from interference. To prevent degradation of the present 
ambient radio signal level at the site, the Department of Commerce seeks 
to ensure that the field strengths of any radiated signals (excluding 
reflected signals) received on this 1800 acre site (in the vicinity of 
coordinates 40[deg]07[min]49.9[sec] North Latitude, 
105[deg]14[min]42.0[sec] West Longitude) resulting from new assignments 
(other than mobile stations) or from the modification or relocation of 
existing facilities do not exceed the values given in the following 
table:

              Field Strength Limits for Table Mountain \1\
------------------------------------------------------------------------
                                                                 Power
                                                      Field       flux
                  Frequency range                    strength   density
                                                      (mV/m)     (dBW/m
                                                                  \2\)
------------------------------------------------------------------------
Below 540 kHz.....................................         10      -65.8
540 to 1600 kHz...................................         20      -59.8
1.6 to 470 MHz....................................         10      -65.8
470 to 890 MHz....................................         30      -56.2
890 MHz and above.................................          1     -85.8
------------------------------------------------------------------------
\1\ Note: Equivalent values of power flux density are calculated
  assuming free space characteristic impedance of 376.7[Omega]
  (120[pi][Omega]).

    (2) Advance consultation is recommended, particularly for applicants 
that have no reliable data to indicate whether the field strength or 
power flux density figures in the above table would be exceeded by their 
proposed radio facilities. In general, coordination is recommended for:
    (i) Stations located within 2.4 kilometers (1.5 miles) of the Table 
Mountain Radio Receiving Zone;
    (ii) Stations located within 4.8 kilometers (3 miles) transmitting 
with 50 watts or more effective radiated power (ERP) in the primary 
plane of polarization in the azimuthal direction of the Table Mountain 
Radio Receiving Zone;
    (iii) Stations located with 16 kilometers (10 miles) transmitting 
with 1 kW or more ERP in the primary plane of polarization in the 
azimuthal direction of Table Mountain Radio Receiving Zone;
    (iv) Stations located within 80 kilometers (50 miles) transmitting 
with 25 kW or more ERP in the primary plane of polarization in the 
azimuthal direction of Table Mountain Receiving Zone.
    (3) Applicants concerned are urged to communicate with the Radio 
Frequency Management Coordinator, Department of Commerce, NOAA R/OM62, 
325 Broadway, Boulder, CO 80305; telephone 303-497-6548, in advance of 
filing their applications with the Commission.
    (4) The FCC will not screen applications to determine whether 
advance consultation has taken place. However, such consultation may 
avoid the filing of objections from the Department of Commerce or 
institution of proceedings to modify the authorizations of stations that 
radiate signals with a field strength or power flux density at the site 
in excess of those specified herein.
    (c) Federal Communications Commission protected field offices. The 
requirements of this paragraph are intended to minimize possible 
interference to FCC monitoring activities.
    (1) Licensees and applicants planning to construct and operate a new 
or modified station at a permanent fixed location in the vicinity of an 
FCC protected field office are advised to give

[[Page 225]]

consideration, prior to filing applications, to the need to avoid 
interfering with the monitoring activities of that office. FCC protected 
field offices are listed in Sec. 0.121 of this chapter.
    (2) Applications for stations (except mobile stations) that could 
produce on any channel a direct wave fundamental field strength of 
greater than 10 mV/m (-65.8 dBW/m\2\ power flux density assuming a free 
space characteristic impedance of 120[pi] [Omega]) in the authorized 
bandwidth at the protected field office may be examined to determine the 
potential for interference with monitoring activities. After 
consideration of the effects of the predicted field strength of the 
proposed station, including the cumulative effects of the signal from 
the proposed station with other ambient radio field strength levels at 
the protected field office, the FCC may add a condition restricting 
radiation toward the protected field office to the station 
authorization.
    (3) In the event that the calculated field strength exceeds 10 mV/m 
at the protected field office site, or if there is any question whether 
field strength levels might exceed that level, advance consultation with 
the FCC to discuss possible measures to avoid interference to monitoring 
activities should be considered. Prospective applicants may communicate 
with: Chief, Enforcement Bureau, Federal Communications Commission, 
Washington, DC 20554.
    (4) Advance consultation is recommended for applicants that have no 
reliable data to indicate whether the field strength or power flux 
density figure indicated would be exceeded by their proposed radio 
facilities. In general, coordination is recommended for:
    (i) Stations located within 2.4 kilometers (1.5 miles) of the 
protected field office;
    (ii) Stations located within 4.8 kilometers (3 miles) with 50 watts 
or more average effective radiated power (ERP) in the primary plane of 
polarization in the azimuthal direction of the protected field offices.
    (iii) Stations located within 16 kilometers (10 miles) with 1 kw or 
more average ERP in the primary plane of polarization in the azimuthal 
direction of the protected field office;
    (iv) Stations located within 80 kilometers (50 miles) with 25 kw or 
more average ERP in the primary plane of polarization in the azimuthal 
direction of the protected field office;
    (v) Advance coordination for stations transmitting on channels above 
1000 MHz is recommended only if the proposed station is in the vicinity 
of a protected field office designated as a satellite monitoring 
facility in Sec. 0.121 of this chapter.
    (vi) The FCC will not screen applications to determine whether 
advance consultation has taken place. However, such consultation may 
serve to avoid the need for later modification of the authorizations of 
stations that interfere with monitoring activities at protected field 
offices.
    (d) Notification to the Arecibo Observatory. The requirements in 
this section are intended to minimize possible interference at the 
Arecibo Observatory in Puerto Rico. Licensees must make reasonable 
efforts to protect the Observatory from interference. Licensees planning 
to construct and operate a new station at a permanent fixed location on 
the islands of Puerto Rico, Desecheo, Mona, Vieques or Culebra in 
services in which individual station licenses are issued by the FCC; 
planning to construct and operate a new station at a permanent fixed 
location on these islands that may cause interference to the operations 
of the Arecibo Observatory in services in which individual station 
licenses are not issued by the FCC; or planning a modification of any 
existing station at a permanent fixed location on these islands that 
would increase the likelihood of causing interference to the operations 
of the Arecibo Observatory must notify the Interference Office, Arecibo 
Observatory, Post Office Box 995, Arecibo, Puerto Rico 00613, in writing 
or electronically (e-mail address: prcz@naic.edu), of the technical 
parameters of the planned operation. Carriers may wish to use the 
interference guidelines provided by Cornell University as guidance in 
designing facilities to avoid interference to the Observatory. The 
notification must include identification of the geographical coordinates 
of the antenna location (NAD-83 datum), the antenna height, antenna 
directivity (if any),

[[Page 226]]

proposed channel and FCC Rule Part, type of emission, and effective 
isotropic radiated power.
    (1) In the Amateur radio service:
    (i) The provisions of paragraph (d) of this section do not apply to 
repeaters that transmit on the 1.2 cm or shorter wavelength bands; and
    (ii) The coordination provision of paragraph (d) of this section 
does not apply to repeaters that are located 16 km or more from the 
Arecibo observatory.
    (2) In services in which individual station licenses are issued by 
the FCC, the notification required in paragraph (d) of this section may 
be made prior to, or simultaneously with, the filing of the application 
with the FCC, and at least 20 days in advance of the applicant's planned 
operation. The application must state the date that notification in 
accordance with paragraph (d) of this section was made. In services in 
which individual station licenses are not issued by the FCC, the 
notification required in paragraph (d) of this section should be sent at 
least 45 days in advance of the applicant's planned operation. In the 
latter services, the Interference Office must inform the FCC of a 
notification by an applicant within 20 days if the Office plans to file 
comments or objections to the notification. After the FCC receives an 
application from a service applicant or is informed by the Interference 
Office of a notification from a service applicant, the FCC will allow 
the Interference Office a period of 20 days for comments or objections 
in response to the application or notification. If an applicant submits 
written consent from the Interference Office, the FCC will process the 
application without awaiting the conclusion of the 20-day period. For 
services that do not require individual station authorization, entities 
that have obtained written consent from the Interference Office may 
begin to operate new or modified facilities prior to the end of the 20-
day period. In instances in which notification has been made to the 
Interference Office prior to application filing, the applicant must also 
provide notice to the Interference Office upon actual filing of the 
application with the FCC. Such notice will be made simultaneous with the 
filing of the application and shall comply with the requirements of 
paragraph (d) of this section.
    (3) If an objection to any planned service operation is received 
during the 20-day period from the Interference Office, the FCC will take 
whatever action is deemed appropriate.
    (4) The provisions of paragraph (d) of this section do not apply to 
operations that transmit on frequencies above 15 GHz.
    (e) Government satellite earth stations. (1) To minimize or avoid 
harmful interference to Government Satellite Earth Stations located in 
the Denver, Colorado and Washington, DC areas, any application for a new 
station license to operate in the 17.8-19.7 GHz band (except for low 
power operations governed by Sec. 101.147(r)(10) of this chapter), or 
for modification of an existing station license in this band which would 
change the frequency, power, emission, modulation, polarization, antenna 
height or directivity, or location of such a station, must be 
coordinated with the Federal Government by the Commission before an 
authorization will be issued, if the station or proposed station is 
located in whole or in part within any of the areas defined by the 
following rectangles or circles:

                             Denver, CO Area

Rectangle 1:
    41[deg]30[min]00[sec] N. Lat. on the north
    103[deg]10[min]00[sec] W. Long. on the east
    38[deg]30[min]00[sec] N. Lat. on the south
    106[deg]30[min]00[sec] W. Long. on the west
Rectangle 2:
    38[deg]30[min]00[sec] N. Lat. on the north
    105[deg]00[min]00[sec] W. Long. on the east
    37[deg]30[min]00[sec] N. Lat. on the south
    105[deg]50[min]00[sec] W. Long. on the west
Rectangle 3:
    40[deg]08[min]00[sec] N. Lat. on the north
    107[deg]00[min]00[sec] W. Long. on the east
    39[deg]56[min]00[sec] N. Lat. on the south
    07[deg]15[min]00[sec] W. Long. on the west

                           Washington, DC Area

Rectangle
    38[deg]40[min]00[sec] N. Lat. on the north
    78[deg]50[min]00[sec] W. Long. on the east
    38[deg]10[min]00[sec] N. Lat. on the south
    79[deg]20[min]00[sec] W. Long. on the west; or

    (2) Within a radius of 178 km of 38[deg]48[min]00[sec] N. Lat./
76[deg]52[min]00[sec] W. Long.
    (3) In addition, no application seeking authority to operate in the 
17.8-19.7

[[Page 227]]

GHz band will be accepted for filing if the proposed station is located 
within 20 km (or within 55 km if the application is for an outdoor low 
power operation pursuant to Sec. 101.147(r)(10) of this chapter) of the 
following coordinated:

Denver, CO area: 39[deg]43[min]00[sec] N. Lat./104[deg]46[min]00[sec] W. 
          Long.
Washington, DC area: 38[deg]48[min]00[sec] N. Lat./76[deg]52[min]00[sec] 
          W. Long.

    (f) 420-450 MHz band. (1) In the band 420-450 MHz, applicants should 
not expect to be accommodated if their area of service is within 160 
kilometers (100 miles) of the following locations:
    (i) 41[deg]45[min]00.2[sec] N, 70[deg]30[min]58.3[sec] W.,
    (ii) 64[deg]17[min]00.0[sec] N., 149[deg]10[min]00.0[sec] W.,

    Note to: Paragraph(f)(ii) is referenced to NAD27.

    (iii) 48[deg]43[min]00.0[sec] N., 97[deg]54[min]01.4[sec] W.;
    (2) Within 200 kilometers (124 miles) of the following locations:
    (i) 32[deg]38[min]00.5[sec] N., 83[deg]34[min]59.7[sec] W.,
    (ii) 31[deg]25[min]00.6[sec] N., 100[deg]24[min]01.3[sec] W.;
    (3) Within 240 kilometers (150 miles) of the following location:
    (i) 39[deg]07[min]59.6[sec] N., 121[deg]26[min]03.9[sec] W.;
    (ii) [Reserved]
    (4) Within 320 kilometers (200 miles) of the following locations:
    (i) 28[deg]21[min]01.0[sec] N., 80[deg]42[min]59.2[sec] W.,
    (ii) 30[deg]30[min]00.7[sec] N., 86[deg]29[min]59.8[sec] W.,
    (iii) 34[deg]08[min]59.6[sec] N, 119[deg]11[min]03.8[sec] W;
    (5) Or in the following locations:
    (i) The state of Arizona,
    (ii) The state of Florida,
    (iii) Portions of California and Nevada south of 37[deg]10[min] N.,
    (iv) And portions of Texas and New Mexico bounded by 31[deg]45[min] 
N., 34[deg]30[min] N., 104[deg]00[min] W., and 107[deg]30[min] W.
    (g) GOES. The requirements of this paragraph are intended to 
minimize harmful interference to Geostationary Operational Environmental 
Satellite earth stations receiving in the band 1670-1675 MHz, which are 
located at Wallops Island, Virginia; Fairbanks, Alaska; and Greenbelt, 
Maryland.
    (1) Applicants and licensees planning to construct and operate a new 
or modified station within the area bounded by a circle with a radius of 
100 kilometers (62.1 miles) that is centered on 37E56[min]47[sec] N, 
75E27[min]37[sec] W (Wallops Island) or 64E58[min]36[sec] N, 
147E31[min]03[sec] W (Fairbanks) or within the area bounded by a circle 
with a radius of 65 kilometers (40.4 miles) that is centered on 
39E00[min]02[sec] N, 76E50[min]31[sec] W (Greenbelt) must notify the 
National Oceanic and Atmospheric Administration (NOAA) of the proposed 
operation. For this purpose, NOAA maintains the GOES coordination web 
page at http://www.osd.noaa.gov/radio/frequency.htm, which provides the 
technical parameters of the earth stations and the point-of-contact for 
the notification. The notification shall include the following 
information: requested frequency, geographical coordinates of the 
antenna location, antenna height above mean sea level, antenna 
directivity, emission type, equivalent isotropically radiated power, 
antenna make and model, and transmitter make and model.
    (2) Protection. (i) Wallops Island and Fairbanks. Licensees are 
required to protect the Wallops Island and Fairbanks sites at all times.
    (ii) Greenbelt. Licensees are required to protect the Greenbelt site 
only when it is active. Licensees should coordinate appropriate 
procedures directly with NOAA for receiving notification of times when 
this site is active.
    (3) When an application for authority to operate a station is filed 
with the FCC, the notification required in paragraph (f)(1) of this 
section should be sent at the same time. The application must state the 
date that notification in accordance with paragraph (f)(1) of this 
section was made. After receipt of such an application, the FCC will 
allow a period of 20 days for comments or objections in response to the 
notification.
    (4) If an objection is received during the 20-day period from NOAA, 
the FCC will, after consideration of the record, take whatever action is 
deemed appropriate.

    Note to Sec. 1.924: Unless otherwise noted, all coordinates cited 
in this section are specified in terms of the North American Datum of 
1983 (NAD 83).

[63 FR 68924, Dec. 14, 1998, as amended at 67 FR 6182, Feb. 11, 2002; 67 
FR 13224, Mar. 21, 2002; 67 FR 41852, June 20, 2002; 67 FR 71111, Nov. 
29, 2002; 69 FR 17957, Apr. 6, 2004]



Sec. 1.925  Waivers.

    (a) Waiver requests generally. The Commission may waive specific 
requirements of the rules on its own motion or upon request. The fees 
for such

[[Page 228]]

waiver requests are set forth in Sec. 1.1102 of this part.
    (b) Procedure and format for filing waiver requests. (1) Requests 
for waiver of rules associated with licenses or applications in the 
Wireless Radio Services must be filed on FCC Form 601, 603, or 605.
    (2) Requests for waiver must contain a complete explanation as to 
why the waiver is desired. If the information necessary to support a 
waiver request is already on file, the applicant may cross-reference the 
specific filing where the information may be found.
    (3) The Commission may grant a request for waiver if it is shown 
that:
    (i) The underlying purpose of the rule(s) would not be served or 
would be frustrated by application to the instant case, and that a grant 
of the requested waiver would be in the public interest; or
    (ii) In view of unique or unusual factual circumstances of the 
instant case, application of the rule(s) would be inequitable, unduly 
burdensome or contrary to the public interest, or the applicant has no 
reasonable alternative.
    (4) Applicants requiring expedited processing of their request for 
waiver shall clearly caption their request for waiver with the words 
``WAIVER--EXPEDITED ACTION REQUESTED.''
    (c) Action on Waiver Requests.
    (i) The Commission, in its discretion, may give public notice of the 
filing of a waiver request and seek comment from the public or affected 
parties.
    (ii) Denial of a rule waiver request associated with an application 
renders that application defective unless it contains an alternative 
proposal that fully complies with the rules, in which event, the 
application will be processed using the alternative proposal as if the 
waiver had not been requested. Applications rendered defective may be 
dismissed without prejudice.

[63 FR 68926, Dec. 14, 1998]



Sec. 1.926  Application processing; initial procedures.

    Applications are assigned file numbers and service codes in order to 
facilitate processing. Assignment of a file number to an application is 
for administrative convenience and does not constitute a determination 
that the application is acceptable for filing. Purpose and service codes 
appear on the Commission forms.

[63 FR 68927, Dec. 14, 1998]



Sec. 1.927  Amendment of applications.

    (a) Pending applications may be amended as a matter of right if they 
have not been designated for hearing or listed in a public notice as 
accepted for filing for competitive bidding, except as provided in 
paragraphs (b) through (e) of this section.
    (b) Applicants for an initial license in auctionable services may 
amend such applications only in accordance with Subpart Q of this part.
    (c) Amendments to non-auction applications that are applied for 
under Part 101 or that resolve mutual exclusivity may be filed at any 
time, subject to the requirements of Sec. 1.945 of this part.
    (d) Any amendment to an application for modification must be 
consistent with, and must not conflict with, any other application for 
modification regarding that same station.
    (e) Amendments to applications designated for hearing may be allowed 
by the presiding officer or, when a proceeding is stayed or otherwise 
pending before the full Commission, may be allowed by the Commission for 
good cause shown. In such instances, a written petition demonstrating 
good cause must be submitted and served upon the parties of record.
    (f) Amendments to applications are also subject to the service-
specific rules in applicable parts of this chapter.
    (g) Where an amendment to an application specifies a substantial 
change in beneficial ownership or control (de jure or de facto) of an 
applicant, the applicant must provide an exhibit with the amendment 
application containing an affirmative, factual showing as set forth in 
Sec. 1.948(h)(2).
    (h) Where an amendment to an application constitutes a major change, 
as defined in Sec. 1.929, the amendment shall be treated as a new 
application for determination of filing date, public notice, and 
petition to deny purposes.
    (i) If a petition to deny or other informal objection has been 
filed, a copy of any amendment (or other filing)

[[Page 229]]

must be served on the petitioner. If the FCC has issued a public notice 
stating that the application appears to be mutually exclusive with 
another application (or applications), a copy of any amendment (or other 
filing) must be served on any such mutually exclusive applicant (or 
applicants).

[63 FR 68927, Dec. 14, 1998, as amended at 64 FR 53238, Oct. 1, 1999]



Sec. 1.928  Frequency coordination, Canada.

    (a) As a result of mutual agreements, the Commission has, since May 
1950 had an arrangement with the Canadian Department of Communications 
for the exchange of frequency assignment information and engineering 
comments on proposed assignments along the Canada-United States borders 
in certain bands above 30 MHz. Except as provided in paragraph (b) of 
this section, this arrangement involves assignments in the following 
frequency bands.

                                   MHz

30.56-32.00
33.00-34.00
35.00-36.00
37.00-38.00
39.00-40.00
42.00-46.00
47.00-49.60
72.00-73.00
75.40-76.00
150.80-174.00
450-470
806.00-960.00
1850.0-2200.0
2450.0-2690.0
3700.0-4200.0
5925.0-7125.0

                                   GHz

10.55-10.68
10.70-13.25

    (b) The following frequencies are not involved in this arrangement 
because of the nature of the services:

                                   MHz

156.3
156.35
156.4
156.45
156.5
156.55
156.6
156.65
156.7
156.8
156.9
156.95
157.0 and 161.6
157.05
157.1
157.15
157.20
157.25
157.30
157.35
157.40.

    (c) Assignments proposed in accordance with the railroad industry 
radio frequency allotment plan along the United States-Canada borders 
utilized by the Federal Communications Commission and the Department of 
Transport, respectively, may be excepted from this arrangement at the 
discretion of the referring agency.
    (d) Assignments proposed in any radio service in frequency bands 
below 470 MHz appropriate to this arrangement, other than those for 
stations in the Domestic Public (land mobile or fixed) category, may be 
excepted from this arrangement at the discretion of the referring agency 
if a base station assignment has been made previously under the terms of 
this arrangement or prior to its adoption in the same radio service and 
on the same frequency and in the local area, and provided the basic 
characteristics of the additional station are sufficiently similar 
technically to the original assignment to preclude harmful interference 
to existing stations across the border.
    (e) For bands below 470 MHz, the areas which are involved lie 
between Lines A and B and between Lines C and D, which are described as 
follows:

    Line A--Begins at Aberdeen, Wash., running by great circle arc to 
the intersection of 48 deg. N., 120 deg. W., thence along parallel 48 
deg. N., to the intersection of 95 deg. W., thence by great circle arc 
through the southernmost point of Duluth, Minn., thence by great circle 
arc to 45 deg. N., 85 deg. W., thence southward along meridian 85 deg. 
W., to its intersection with parallel 41 deg. N., thence along parallel 
41 deg. N., to its intersection with meridian 82 deg. W., thence by 
great circle arc through the southernmost point of Bangor, Maine, thence 
by great circle arc through the southern-most point of Searsport, Maine, 
at which point it terminates; and
    Line B--Begins at Tofino, B.C., running by great circle arc to the 
intersection of 50 deg.

[[Page 230]]

N., 125 deg. W., thence along parallel 50 deg. N., to the intersection 
of 90 deg. W., thence by great circle arc to the intersection of 45 deg. 
N., 79 deg. 30[min] W., thence by great circle arc through the 
northernmost point of Drummondville, Quebec (lat: 45 deg. 52[min] N., 
long: 72 deg. 30[min] W.), thence by great circle arc to 48 deg. 30[min] 
N., 70 deg. W., thence by great circle arc through the northernmost 
point of Campbellton, N.B., thence by great circle arc through the 
northernmost point of Liverpool, N.S., at which point it terminates.
    Line C-- Begins at the intersection of 70 deg. N., 144 deg. W., 
thence by great circle arc to the intersection of 60 deg. N., 143 deg. 
W., thence by great circle arc so as to include all of the Alaskan 
Panhandle; and
    Line D-- Begins at the intersection of 70 deg. N., 138 deg. W., 
thence by great circle arc to the intersection of 61 deg. 20[min] N., 
139 deg. W., (Burwash Landing), thence by great circle arc to the 
intersection of 60 deg. 45[min] N., 135 deg. W., thence by great circle 
arc to the intersection of 56 deg. N., 128 deg. W., thence south along 
128 deg. meridian to Lat. 55 deg. N., thence by great circle arc to the 
intersection of 54 deg. N., 130 deg. W., thence by great circle arc to 
Port Clements, thence to the Pacific Ocean where it ends.

    (f) For all stations using bands between 470 MHz and 1000 MHz; and 
for any station of a terrestrial service using a band above 1000 MHz, 
the areas which are involved are as follows:
    (1) For a station the antenna of which looks within the 200 deg. 
sector toward the Canada-United States borders, that area in each 
country within 35 miles of the borders;
    (2) For a station the antenna of which looks within the 160 deg. 
sector away from the Canada-United States borders, that area in each 
country within 5 miles of the borders; and
    (3) The area in either country within coordination distance as 
described in Recommendation 1A of the Final Acts of the EARC, Geneva, 
1963 of a receiving earth station in the other country which uses the 
same band.
    (g) Proposed assignments in the space radiocommunication services 
and proposed assignments to stations in frequency bands allocated 
coequally to space and terrestrial services above 1 GHz are not treated 
by these arrangements. Such proposed assignments are subject to the 
regulatory provisions of the International Radio Regulations.
    (h) Assignments proposed in the frequency band 806-890 MHz shall be 
in accordance with the Canada-United States agreement, dated April 7, 
1982.

[64 FR 53238, Oct. 1, 1999]



Sec. 1.929  Classification of filings as major or minor.

    Applications and amendments to applications for stations in the 
wireless radio services are classified as major or minor ( see Sec. 
1.947). Categories of major and minor filings are listed in Sec. 309 of 
the Communications Act of 1934.
    (a) For all stations in all Wireless Radio Services, whether 
licensed geographically or on a site-specific basis, the following 
actions are classified as major:
    (1) Application for initial authorization;
    (2) Any substantial change in ownership or control, including 
requests for partitioning and disaggregation;
    (3) Application for renewal of authorization;
    (4) Application or amendment requesting authorization for a facility 
that would have a significant environmental effect, as defined by 
Sec. Sec. 1.1301 through 1.1319 of the rules;
    (5) Application or amendment requiring frequency coordination 
pursuant to the Commission's rules or international treaty or agreement;
    (6) Application or amendment requesting to add a frequency or 
frequency block for which the applicant is not currently authorized, 
excluding removing a frequency.
    (b) In the Cellular Radiotelephone Service:
    (1) Request an authorization or an amendment to a pending 
application that would expand the cellular geographic service area 
(COSA) of an existing cellular system or, in the case of an amendment, 
as previously proposed in an application, except during the applicable 
five-year build-out period, if any;
    (2) Request that a CGSA boundary or portion of a CGSA boundary be 
determined using an alternative method; or,
    (3) Request an authorization for facilities that would produce a de 
minimis service area boundary extension into unserved area in an 
adjacent market.
    (c) In addition to those changes listed in subparagraph (a) above, 
the following are major changes applicable to

[[Page 231]]

stations licensed to provide base-to-mobile, mobile-to-base, mobile-to-
mobile on a site-specific basis:
    (1) In the Paging and Radiotelephone Service, Rural Radiotelephone 
Service and 800 MHz Specialized Mobile Radio Service (SMR), any change 
that would increase or expand the applicant's existing composite 
interference contour.
    (2) In the 900 MHz SMR and 220 MHz Service, any change that would 
increase or expand the applicant's service area as defined in the rule 
parts governing the particular radio service.
    (3) In the Paging and Radiotelephone Service, Rural Radiotelephone 
Service, Offshore Radiotelephone Service, and Specialized Mobile Radio 
Service:
    (i) Request an authorization or an amendment to a pending 
application that would establish for the filer a new fixed transmission 
path;
    (ii) Request an authorization or an amendment to a pending 
application for a fixed station (i.e., control, repeater, central 
office, rural subscriber, or inter-office station) that would increase 
the effective radiated power, antenna height above average terrain in 
any azimuth, or relocate an existing transmitter;
    (4) In the Private Land Mobile Radio Services (PLMRS), the remote 
pickup broadcast auxiliary service, and GMRS systems licensed to non-
individuals
    (i) Change in frequency or modification of channel pairs;
    (ii) Change in the type of emission;
    (iii) Change in effective radiated power from that authorized or, 
for GMRS systems licensed to non-individuals, an increase in the 
transmitter power of a station;
    (iv) Change in antenna height from that authorized;
    (v) Change in the authorized location or number of base stations, 
fixed, control, or, for systems operating on non-exclusive assignments 
in GMRS or the 470-512 MHz, 800 MHz or 900 MHz bands, a change in the 
number of mobile transmitters, or a change in the area of mobile 
transmitters, or a change in the area of mobile operations from that 
authorized;
    (vi) Change in the class of a land station, including changing from 
multiple licensed to cooperative use, and from shared to unshared use.
    (d) In the microwave, aural broadcast auxiliary, and television 
broadcast auxiliary services:
    (1) Except as specified in paragraph (d)(2) and (d)(3) of this 
section, the following, in addition to those filings listed in paragraph 
(a) of this section, are major actions that apply to stations licensed 
to provide fixed point-to-point, point-to-multipoint, or multipoint-to-
point, communications on a site-specific basis, or fixed or mobile 
communications on an area-specific basis under part 101 of this chapter:
    (i) Any change in transmit antenna location by more than 5 seconds 
in latitude or longitude for fixed point-to-point facilities (e.g., a 5 
second change in latitude, longitude, or both would be minor); any 
change in coordinates of the center of operation or increase in radius 
of a circular area of operation, or any expansion in any direction in 
the latitude or longitude limits of a rectangular area of operation, or 
any change in any other kind of area operation;
    (ii) Any increase in frequency tolerance;
    (iii) Any increase in bandwidth;
    (iv) Any change in emission type;
    (v) Any increase in EIRP greater than 3 dB;
    (vi) Any increase in transmit antenna height (above mean sea level) 
more than 3 meters, except as specified in paragraph (d)(3) of this 
section;
    (vii) Any increase in transmit antenna beamwidth, except as 
specified in paragraph (d)(3) of this section;
    (viii) Any change in transmit antenna polarization;
    (ix) Any change in transmit antenna azimuth greater than 1 degree, 
except as specified in paragraph (d)(3) of this section ; or,
    (x) Any change which together with all minor modifications or 
amendments since the last major modification or amendment produces a 
cumulative effect exceeding any of the above major criteria.
    (2) Changes to transmit antenna location of Multiple Address System 
(MAS) Remote Units and Digital Electronic Message Service (DEMS) User 
Units are not major.
    (3) Changes in accordance with paragraphs (d)(1)(vi), (d)(1)(vii) 
and (d)(1)(ix)

[[Page 232]]

of this section are not major for the following:
    (i) Fixed Two-Way MAS on the remote to master path,
    (ii) Fixed One-Way Inbound MAS on the remote to master path,
    (iii) Multiple Two-Way MAS on the remote to master and master to 
remote paths,
    (iv) Multiple One-Way Outbound MAS on the master to remote path,
    (v) Mobile MAS Master,
    (vi) Fixed Two-Way DEMS on the user to nodal path, and
    (vii) Multiple Two-Way DEMS on the nodal to user and user to nodal 
paths.

    Note to paragraph (d)(3) of Sec. 1.929:
    For the systems and path types described in paragraph (d)(3) of this 
section, the data provided by applicants is either a typical value for a 
certain parameter or a fixed value given in the Form instructions.

    (e) In addition to those filings listed in paragraph (a) of this 
section, the following are major actions that apply to stations licensed 
to provide service in the Air-ground Radiotelephone Service:
    (1) Request an authorization to relocate an existing General 
Aviation ground station; or,
    (2) Request the first authorization for a new Commercial Aviation 
ground station at a location other than those listed in Sec. 22.859 of 
this chapter.
    (f) In addition to those changes listed in paragraph (a), the 
following are major changes that apply to stations licensed in the 
industrial radiopositioning stations for which frequencies are assigned 
on an exclusive basis, Maritime and Aviation services, except Maritime 
Public Coast VHF (CMRS), Ship and Aircraft stations:
    (1) Any change in antenna azimuth;
    (2) Any change in beamwidth;
    (3) Any change in antenna location;
    (4) Any change in emission type;
    (5) Any increase in antenna height;
    (6) Any increase in authorized power;
    (7) Any increase in emission bandwidth.
    (g) In addition to those changes listed in paragraph (a), any change 
requiring international coordination in the Maritime Public Coast VHF 
(CMRS) Service is major.
    (h) In addition to those changes listed in paragraph (a) of this 
section, the following are major changes that apply to ship stations:
    (1) Any request for additional equipment;
    (2) A change in ship category;
    (3) A request for assignment of a Maritime Mobile Service Identity 
(MMSI) number; or
    (4) A request to increase the number of ships on an existing fleet 
license.
    (i) In addition to those changes listed in paragraph (a) of this 
section, the following are major changes that apply to aircraft 
stations:
    (1) A request to increase the number of aircraft on an existing 
fleet license; or
    (2) A request to change the type of aircraft (private or air 
carrier).
    (j) In addition to those changes listed in paragraph (a) of this 
section, the following are major changes that apply to amateur licenses:
    (1) An upgrade of an existing license; or
    (2) A change of call sign.
    (k) Any change not specifically listed above as major is considered 
minor (see Sec. 1.947(b). This includes but is not limited to:
    (1) Any pro forma assignment or transfer of control;
    (2) Any name change not involving change in ownership or control of 
the license;
    (3) Any address and/or telephone number changes;
    (4) Any changes in contact person;
    (5) Any change to vessel name on a ship station license;
    (6) Any change to a site-specific license, except a PLMRS license 
under part 90, or a license under part 101, where the licensee's 
interference contours are not extended and co-channel separation 
criteria are met, except those modifications defined in paragraph (c)(2) 
of this section; or
    (7) Any conversion of multiple site-specific licenses into a single 
wide-area license, except a PLMRS license under part 90 or a license 
under part 101 of this chapter, where there is no change in the 
licensee's composite interference contour or service area as defined in 
paragraph (c)(2) of this section.

[63 FR 68927, Dec. 14, 1998, as amended at 64 FR 53239, Oct. 1, 1999; 68 
FR 12755, Mar. 17, 2003]

[[Page 233]]



Sec. 1.931  Application for special temporary authority.

    (a) Wireless Telecommunications Services. (1) In circumstances 
requiring immediate or temporary use of station in the Wireless 
Telecommunications Services, carriers may request special temporary 
authority (STA) to operate new or modified equipment. Such requests must 
be filed electronically using FCC Form 601 and must contain complete 
details about the proposed operation and the circumstances that fully 
justify and necessitate the grant of STA. Such requests should be filed 
in time to be received by the Commission at least 10 days prior to the 
date of proposed operation or, where an extension is sought, 10 days 
prior to the expiration date of the existing STA. Requests received less 
than 10 days prior to the desired date of operation may be given 
expedited consideration only if compelling reasons are given for the 
delay in submitting the request. Otherwise, such late-filed requests are 
considered in turn, but action might not be taken prior to the desired 
date of operation. Requests for STA must be accompanied by the proper 
filing fee.
    (2) Grant without Public Notice. STA may be granted without being 
listed in a Public Notice, or prior to 30 days after such listing, if:
    (i) The STA is to be valid for 30 days or less and the applicant 
does not plan to file an application for regular authorization of the 
subject operation;
    (ii) The STA is to be valid for 60 days or less, pending the filing 
of an application for regular authorization of the subject operation;
    (iii) The STA is to allow interim operation to facilitate completion 
of authorized construction or to provide substantially the same service 
as previously authorized; or
    (iv) The STA is made upon a finding that there are extraordinary 
circumstances requiring operation in the public interest and that delay 
in the institution of such service would seriously prejudice the public 
interest.
    (3) Limit on STA term. The Commission may grant STA for a period not 
to exceed 180 days under the provisions of section 309(f) of the 
Communications Act of 1934, as amended, (47 U.S.C. 309(f)) if 
extraordinary circumstances so require, and pending the filing of an 
application for regular operation. The Commission may grant extensions 
of STA for a period of 180 days, but the applicant must show that 
extraordinary circumstances warrant such an extension.
    (b) Private Wireless Services. (1) A licensee of, or an applicant 
for, a station in the Private Wireless Services may request STA not to 
exceed 180 days for (A) operation of a new station or (B) operation of a 
licensed station in a manner which is beyond the scope of that 
authorized by the existing license. See Sec. Sec. 1.962(b)(5) and (f). 
Where the applicant, seeking a waiver of the 180 day limit, requests STA 
to operate as a private mobile radio service provider for a period 
exceeding 180 days, evidence of frequency coordination is required. 
Requests for shorter periods do not require coordination and, if 
granted, will be authorized on a secondary, non-interference basis.
    (2) STA may be granted in the following circumstances:
    (i) In emergency situations;
    (ii) To permit restoration or relocation of existing facilities to 
continue communication service;
    (iii) To conduct tests to determine necessary data for the 
preparation of an application for regular authorization;
    (iv) For a temporary, non-recurring service where a regular 
authorization is not appropriate;
    (v) In other situations involving circumstances which are of such 
extraordinary nature that delay in the institution of temporary 
operation would seriously prejudice the public interest.
    (3) The nature of the circumstance which, in the opinion of the 
applicant justifies issuance of STA, must be fully described in the 
request. Applications for STA must be filed at least 10 days prior to 
the proposed operation. Applications filed less than 10 days prior to 
the proposed operation date will be accepted only upon a showing of good 
cause.
    (4) The Commission may grant extensions of STA for a period of 180 
days, but the applicant must show that extraordinary circumstances 
warrant such an extension.

[[Page 234]]

    (5) In special situations defined in Sec. 1.915(b)(1), a request 
for STA may be made by telephone or telegraph provided a properly signed 
application is filed within 10 days of such request.
    (6) An applicant for an Aircraft Radio Station License may operate 
the radio station pending issuance of an Aircraft Radio Station License 
by the Commission for a period of 90 days under temporary operating 
authority, evidenced by a properly executed certification made on FCC 
Form 605.
    (7) Unless the Commission otherwise prescribes, a person who has 
been granted an operator license of Novice, Technician, Technician Plus, 
General, or Advanced class and who has properly submitted to the 
administering VEs an application document for an operator license of a 
higher class, and who holds a CSCE indicating that he/she has completed 
the necessary examinations within the previous 365 days, is authorized 
to exercise the rights and privileges of the higher operator class until 
final disposition of the application or until 365 days following the 
passing of the examination, whichever comes first.
    (8) An applicant for a Ship Radio station license may operate the 
radio station pending issuance of the ship station authorization by the 
Commission for a period of 90 days, under a temporary operating 
authority, evidenced by a properly executed certification made on FCC 
Form 605.
    (9) An applicant for a station license in the Industrial/Business 
pool (other than an applicant who seeks to provide commercial mobile 
radio service as defined in Part 20 of this chapter) utilizing an 
already authorized facility may operate the station for a period of 180 
days, under a temporary permit, evidenced by a properly executed 
certification made on FCC Form 601, after filing an application for a 
station license together with evidence of frequency coordination, if 
required, with the Commission. The temporary operation of stations, 
other than mobile stations, within the Canadian coordination zone will 
be limited to stations with a maximum of 5 watts effective radiated 
power and a maximum antenna height of 20 feet (6.1 meters) above average 
terrain.
    (10) An applicant for a radio station license under Part 90, Subpart 
S, of this chapter (other than an applicant who seeks to provide 
commercial mobile radio service as defined in part 20 of this chapter) 
to utilize an already existing Specialized Mobile Radio System (SMR) 
facility or to utilize an already licensed transmitter may operate the 
radio station for a period of up to 180 days, under a temporary permit. 
Such request must be evidenced by a properly executed certification of 
FCC Form 601 after the filing of an application for station license, 
provided that the antenna employed by the control station is a maximum 
of 20 feet (6.1 meters) above a man-made structure (other than an 
antenna tower) to which it is affixed.
    (11) An applicant for an itinerant station license, an applicant for 
a new private land mobile radio station license in the frequency bands 
below 470 MHz and in the one-way paging 929-930 MHz band (other than a 
commercial mobile radio service applicant or licensee on these bands) or 
an applicant seeking to modify or acquire through assignment or transfer 
an existing station below 470 MHz or in the one-way paging 929-930 MHz 
band may operate the proposed station during the pendency of its 
application for a period of up to 180 days under a conditional permit. 
Conditional operations may commence upon the filing of a properly 
completed application that complies with Sec. 90.127 if the 
application, when frequency coordination is required, is accompanied by 
evidence of frequency coordination in accordance with Sec. 90.175 of 
this chapter. Operation under such a permit is evidenced by the properly 
executed Form 601 with certifications that satisfy the requirements of 
Sec. 90.159(b).
    (12) An applicant for a General Mobile Radio Service system license, 
sharing a multiple-licensed or cooperative shared base station used as a 
mobile relay station, may operate the system for a period of 180 days, 
under a Temporary Permit, evidenced by a properly executed certification 
made on FCC Form 605.

[63 FR 68928, Dec. 14, 1998]

[[Page 235]]



Sec. 1.933  Public notices.

    (a) Generally. Periodically, the Commission issues Public Notices in 
the Wireless Radio Services listing information of public significance. 
Categories of Public Notice listings are as follows:
    (1) Accepted for filing. Acceptance for filing of applications and 
major amendments thereto.
    (2) Actions. Commission actions on pending applications previously 
listed as accepted for filing.
    (3) Environmental considerations. Special environmental 
considerations as required by Part 1 of this chapter.
    (4) Informative listings. Information that the Commission, in its 
discretion, believes to be of public significance. Such listings do not 
create any rights to file petitions to deny or other pleadings.
    (b) Accepted for filing public notices. The Commission will issue at 
regular intervals public notices listing applications that have been 
received by the Commission in a condition acceptable for filing, or 
which have been returned to an applicant for correction. Any application 
that has been listed in a public notice as acceptable for filing and is 
(1) subject to a major amendment, or (2) has been returned as defective 
or incomplete and resubmitted to the Commission, shall be listed in a 
subsequent public notice. Acceptance for filing shall not preclude the 
subsequent dismissal of an application as defective.
    (c) Public notice prior to grant. Applications for authorizations, 
major modifications, major amendments to applications, and substantial 
assignment or transfer applications for the following categories of 
stations and services shall be placed on Public Notice as accepted for 
filing prior to grant:
    (1) Wireless Telecommunications Services.
    (2) Industrial radiopositioning stations for which frequencies are 
assigned on an exclusive basis.
    (3) Aeronautical enroute stations.
    (4) Aeronautical advisory stations.
    (5) Airport control tower stations.
    (6) Aeronautical fixed stations.
    (7) Alaska public fixed stations.
    (d) No public notice prior to grant. The following types of 
applications, notices, and other filings need not be placed on Public 
Notice as accepted for filing prior to grant:
    (1) Applications or notifications concerning minor modifications to 
authorizations or minor amendments to applications.
    (2) Applications or notifications concerning non-substantial (pro 
forma) assignments and transfers.
    (3) Consent to an involuntary assignment or transfer under section 
310(b) of the Communications Act.
    (4) Applications for licenses under section 319(c) of the 
Communications Act.
    (5) Requests for extensions of time to complete construction of 
authorized facilities.
    (6) Requests for special temporary authorization not to exceed 30 
days where the applicant does not contemplate the filing of an 
application for regular operation, or not to exceed 60 days pending or 
after the filing of an application for regular operation.
    (7) Requests for emergency authorizations under section 308(a) of 
the Communications Act.
    (8) Any application for temporary authorization under section 
101.31(a) of this chapter.
    (9) Any application for authorization in the Private Wireless 
Services.

[63 FR 68929, Dec. 14, 1998]



Sec. 1.934  Defective applications and dismissal.

    (a) Dismissal of applications. The Commission may dismiss any 
application in the Wireless Radio Services at the request of the 
applicant; if the application is mutually exclusive with another 
application that is selected or granted in accordance with the rules in 
this part; for failure to prosecute or if the application is found to be 
defective; if the requested spectrum is not available; or if the 
application is untimely filed. Such dismissal may be ``without 
prejudice,'' meaning that the Commission may accept from the applicant 
another application for the same purpose at a later time, provided that 
the application is otherwise timely. Dismissal ``with prejudice'' means 
that the Commission will not accept another application from the 
applicant for the same purpose for a period of one year. Unless

[[Page 236]]

otherwise provided in this part, a dismissed application will not be 
returned to the applicant.
    (1) Dismissal at request of applicant. Any applicant may request 
that its application be withdrawn or dismissed. A request for the 
withdrawal of an application after it has been listed on Public Notice 
as tentatively accepted for filing is considered to be a request for 
dismissal of that application without prejudice.
    (i) If the applicant requests dismissal of its application with 
prejudice, the Commission will dismiss that application with prejudice.
    (ii) If the applicant requests dismissal of its application without 
prejudice, the Commission will dismiss that application without 
prejudice, unless:
    (A) It has been designated for comparative hearing; or
    (B) It is an application for which the applicant submitted the 
winning bid in a competitive bidding process.
    (2) If an applicant who is a winning bidder for a license in a 
competitive bidding process requests dismissal of its short-form or 
long-form application, the Commission will dismiss that application with 
prejudice. The applicant will also be subject to default payments under 
Subpart Q of this part.
    (3) An applicant who requests dismissal of its application after 
that application has been designated for comparative hearing may submit 
a written petition requesting that the dismissal be without prejudice. 
Such petition must demonstrate good cause and be served upon all parties 
of record. The Commission may grant such petition and dismiss the 
application without prejudice or deny the petition and dismiss the 
application with prejudice.
    (b) Dismissal of mutually exclusive applications not granted. The 
Commission may dismiss mutually exclusive applications:
    (1) For which the applicant did not submit the winning bid in a 
competitive bidding process; or
    (2) That receive comparative consideration in a hearing but are not 
granted by order of the presiding officer.
    (c) Dismissal for failure to prosecute. The Commission may dismiss 
applications for failure of the applicant to prosecute or for failure of 
the applicant to respond substantially within a specified time period to 
official correspondence or requests for additional information. Such 
dismissal will generally be without prejudice if the failure to 
prosecute or respond occurred prior to designation of the application 
for comparative hearing, but may be with prejudice in cases of non-
compliance with Sec. 1.945 of this part. Dismissal will generally be 
with prejudice if the failure to prosecute or respond occurred after 
designation of the application for comparative hearing. The Commission 
may dismiss applications with prejudice for failure of the applicant to 
comply with requirements related to a competitive bidding process.
    (d) Dismissal as defective. The Commission may dismiss without 
prejudice an application that it finds to be defective. An application 
is defective if:
    (1) It is unsigned or incomplete with respect to required answers to 
questions, informational showings, or other matters of a formal 
character;
    (2) It requests an authorization that would not comply with one or 
more of the Commission's rules and does not contain a request for waiver 
of these rule(s), or in the event the Commission denies such a waiver 
request, does not contain an alternative proposal that fully complies 
with the rules;
    (3) The appropriate filing fee has not been paid; or
    (4) The FCC Registration Number (FRN) has not been provided.
    (e) Dismissal because spectrum not available. The Commission may 
dismiss applications that request spectrum which is unavailable because:
    (1) It is not allocated for assignment in the specific service 
requested;
    (2) It was previously assigned to another licensee on an exclusive 
basis or cannot be assigned to the applicant without causing harmful 
interference; or
    (3) Reasonable efforts have been made to coordinate the proposed 
facility with foreign administrations under applicable international 
agreements, and an unfavorable response (harmful interference 
anticipated) has been received.
    (f) Dismissal as untimely. The Commission may dismiss without 
prejudice applications that are premature or late

[[Page 237]]

filed, including applications filed prior to the opening date or after 
the closing date of a filing window, or after the cut-off date for a 
mutually exclusive application filing group.

[63 FR 68930, Dec. 14, 1998, as amended at 66 FR 47895, Sept. 14, 2001]



Sec. 1.935  Agreements to dismiss applications, amendments or pleadings.

    Parties that have filed applications that are mutually exclusive 
with one or more other applications, and then enter into an agreement to 
resolve the mutual exclusivity by withdrawing or requesting dismissal of 
the application(s), specific frequencies on the application or an 
amendment thereto, must obtain the approval of the Commission. Parties 
that have filed or threatened to file a petition to deny, informal 
objection or other pleading against an application and then seek to 
withdraw or request dismissal of, or refrain from filing, the petition, 
either unilaterally or in exchange for a financial consideration, must 
obtain the approval of the Commission.
    (a) The party withdrawing or requesting dismissal of its application 
(or specific frequencies on the application), petition to deny, informal 
objection or other pleading or refraining from filing a pleading must 
submit to the Commission a request for approval of the withdrawal or 
dismissal, a copy of any written agreement related to the withdrawal or 
dismissal, and an affidavit setting forth:
    (1) A certification that neither the party nor its principals has 
received or will receive any money or other consideration in excess of 
the legitimate and prudent expenses incurred in preparing and 
prosecuting the application, petition to deny, informal objection or 
other pleading in exchange for the withdrawal or dismissal of the 
application, petition to deny, informal objection or other pleading, or 
threat to file a pleading, except that this provision does not apply to 
dismissal or withdrawal of applications pursuant to bona fide merger 
agreements;
    (2) The exact nature and amount of any consideration received or 
promised;
    (3) An itemized accounting of the expenses for which it seeks 
reimbursement; and
    (4) The terms of any oral agreement related to the withdrawal or 
dismissal of the application, petition to deny, informal objection or 
other pleading, or threat to file a pleading.
    (b) In addition, within 5 days of the filing date of the applicant's 
or petitioner's request for approval, each remaining party to any 
written or oral agreement must submit an affidavit setting forth:
    (1) A certification that neither the applicant nor its principals 
has paid or will pay money or other consideration in excess of the 
legitimate and prudent expenses of the petitioner in exchange for 
withdrawing or dismissing the application, petition to deny, informal 
objection or other pleading; and
    (2) The terms of any oral agreement relating to the withdrawal or 
dismissal of the application, petition to deny, informal objection or 
other pleading.
    (c) No person shall make or receive any payments in exchange for 
withdrawing a threat to file or refraining from filing a petition to 
deny, informal objection, or any other pleading against an application. 
For the purposes of this section, reimbursement by an applicant of the 
legitimate and prudent expenses of a potential petitioner or objector, 
incurred reasonably and directly in preparing to file a petition to 
deny, will not be considered to be payment for refraining from filing a 
petition to deny or an informal objection. Payments made directly to a 
potential petitioner or objector, or a person related to a potential 
petitioner or objector, to implement non-financial promises are 
prohibited unless specifically approved by the Commission.
    (d) For the purposes of this section:
    (1) Affidavits filed pursuant to this section must be executed by 
the filing party, if an individual; a partner having personal knowledge 
of the facts, if a partnership; or an officer having personal knowledge 
of the facts, if a corporation or association.
    (2) Each application, petition to deny, informal objection or other 
pleading is deemed to be pending before

[[Page 238]]

the Commission from the time the petition to deny is filed with the 
Commission until such time as an order or correspondence of the 
Commission granting, denying or dismissing it is no longer subject to 
reconsideration by the Commission or to review by any court.
    (3) ``Legitimate and prudent expenses'' are those expenses 
reasonably incurred by a party in preparing to file, filing, prosecuting 
and/or settling its application, petition to deny, informal objection or 
other pleading for which reimbursement is sought.
    (4) ``Other consideration'' consists of financial concessions, 
including, but not limited to, the transfer of assets or the provision 
of tangible pecuniary benefit, as well as non-financial concessions that 
confer any type of benefit on the recipient.
    (e) Notwithstanding the provisions of this section, any payments 
made or received in exchange for withdrawing a short-form application 
for a Commission authorization awarded through competitive bidding shall 
be subject to the restrictions set forth in Sec. 1.2105(c) of this 
chapter.

[63 FR 68931, Dec. 14, 1998]



Sec. 1.937  Repetitious or conflicting applications.

    (a) Where the Commission has, for any reason, dismissed with 
prejudice or denied any license application in the Wireless Radio 
Services, or revoked any such license, the Commission will not consider 
a like or new application involving service of the same kind to 
substantially the same area by substantially the same applicant, its 
successor or assignee, or on behalf of or for the benefit of the 
original parties in interest, until after the lapse of 12 months from 
the effective date of final Commission action.
    (b) [Reserved]
    (c) If an appeal has been taken from the action of the Commission 
dismissing with prejudice or denying any application in the Wireless 
Radio Services, or if the application is subsequently designated for 
hearing, a like application for service of the same type to the same 
area, in whole or in part, filed by that applicant or by its successor 
or assignee, or on behalf or for the benefit of the parties in interest 
to the original application, will not be considered until the final 
disposition of such appeal.
    (d) While an application is pending, any subsequent inconsistent or 
conflicting application submitted by, on behalf of, or for the benefit 
of the same applicant, its successor or assignee will not be accepted 
for filing.

[63 FR 68931, Dec. 14, 1998, as amended at 68 FR 25842, May 14, 2003]



Sec. 1.939  Petitions to deny.

    (a) Who may file. Any party in interest may file with the Commission 
a petition to deny any application listed in a Public Notice as accepted 
for filing, whether as filed originally or upon major amendment as 
defined in Sec. 1.929 of this part.
    (1) For auctionable license applications, petitions to deny and 
related pleadings are governed by the procedures set forth in Sec. 
1.2108 of this part.
    (2) Petitions to deny for non-auctionable applications that are 
subject to petitions under Sec. 309(d) of the Communications Act must 
comply with the provisions of this section and must be filed no later 
than 30 days after the date of the Public Notice listing the application 
or major amendment to the application as accepted for filing.
    (b) Filing of petitions. Petitions to deny and related pleadings may 
be filed electronically via ULS. Manually filed petitions to deny must 
be filed with the Office of the Secretary, 445 Twelfth Street, S.W., 
Room TW-B204, Washington, DC 20554. Manually filed petitions to deny 
must be filed with the Office of the Secretary, 1919 M Street, NW., 
Washington, DC 20554. Attachments to manually filed applications may be 
filed on a standard 31/4'' magnetic diskette formatted to be readable by 
high density floppy drives operating under MS-DOS (version 3.X or later 
compatible versions). Each diskette submitted must contain an ASCII text 
file listing each filename and a brief description of the contents of 
each file on the diskette. The files on the diskette, other than the 
table of contents, should be in Adobe Acrobat Portable Document Format 
(PDF) whenever possible. Petitions to deny and related

[[Page 239]]

pleadings must reference the file number of the pending application that 
is the subject of the petition.
    (c) Service. A petitioner shall serve a copy of its petition to deny 
on the applicant and on all other interested parties pursuant to Sec. 
1.47. Oppositions and replies shall be served on the petitioner and all 
other interested parties.
    (d) Content. A petition to deny must contain specific allegations of 
fact sufficient to make a prima facie showing that the petitioner is a 
party in interest and that a grant of the application would be 
inconsistent with the public interest, convenience and necessity. Such 
allegations of fact, except for those of which official notice may be 
taken, shall be supported by affidavit of a person or persons with 
personal knowledge thereof.
    (e) Petitions to deny amended applications. Petitions to deny a 
major amendment to an application may raise only matters directly 
related to the major amendment that could not have been raised in 
connection with the application as originally filed. This paragraph does 
not apply to petitioners who gain standing because of the major 
amendment.
    (f) Oppositions and replies. The applicant and any other interested 
party may file an opposition to any petition to deny and the petitioner 
may file a reply thereto in which allegations of fact or denials 
thereof, except for those of which official notice may be taken, shall 
be supported by affidavit of a person or persons with personal knowledge 
thereof. Time for filing of oppositions and replies is governed by Sec. 
1.45 of this part for non-auctionable services and Sec. 1.2108 of this 
part for auctionable services.
    (g) Dismissal of petition. The Commission may dismiss any petition 
to deny that does not comply with the requirements of this section if 
the issues raised become moot, or if the petitioner or his/her attorney 
fails to appear at a settlement conference pursuant to Sec. 1.956 of 
this part. The reasons for the dismissal will be stated in the dismissal 
letter or order. When a petition to deny is dismissed, any related 
responsive pleadings are also dismissed
    (h) Grant of petitioned application. If a petition to deny has been 
filed and the Commission grants the application, the Commission will 
dismiss or deny the petition by issuing a concise statement of the 
reason(s) for dismissing or denying the petition, disposing of all 
substantive issues raised in the petition.

[63 FR 68931, Dec. 14, 1998, as amended at 64 FR 53240, Oct. 1, 1999]



Sec. 1.945  License grants.

    (a) License grants--auctionable license applications. Procedures for 
grant of licenses that are subject to competitive bidding under section 
309(j) of the Communications Act are set forth in Sec. Sec. 1.2108 and 
1.2109 of this part.
    (b) License grants--non-auctionable license applications. No 
application that is not subject to competitive bidding under Sec. 
309(j) of the Communications Act will be granted by the Commission prior 
to the 31st day following the issuance of a Public Notice of the 
acceptance for filing of such application or of any substantial 
amendment thereof, unless the application is not subject to Sec. 309(b) 
of the Communications Act.
    (c) Grant without hearing. In the case of both auctionable license 
applications and non-mutually exclusive non-auctionable license 
applications, the Commission will grant the application without a 
hearing if it is proper upon its face and if the Commission finds from 
an examination of such application and supporting data, any pleading 
filed, or other matters which it may officially notice, that:
    (1) There are no substantial and material questions of fact;
    (2) The applicant is legally, technically, financially, and 
otherwise qualified;
    (3) A grant of the application would not involve modification, 
revocation, or non-renewal of any other existing license;
    (4) A grant of the application would not preclude the grant of any 
mutually exclusive application; and
    (5) A grant of the application would serve the public interest, 
convenience, and necessity.
    (d) Grant of petitioned applications. The FCC may grant, without a 
formal hearing, an application against which petition(s) to deny have 
been filed. If any petition(s) to deny are pending (i.e.

[[Page 240]]

have not been dismissed or withdrawn by the petitioner) when an 
application is granted, the FCC will deny the petition(s) and issue a 
concise statement of the reason(s) for the denial, disposing of all 
substantive issues raised in the petitions.
    (e) Partial and conditional grants. The FCC may grant applications 
in part, and/or subject to conditions other than those normally applied 
to authorizations of the same type. When the FCC does this, it will 
inform the applicant of the reasons therefor. Such partial or 
conditional grants are final unless the FCC revises its action in 
response to a petition for reconsideration. Such petitions for 
reconsideration must be filed by the applicant within thirty days after 
the date of the letter or order stating the reasons for the partial or 
conditional grant, and must reject the partial or conditional grant and 
return the instrument of authorization.
    (f) Designation for hearing. If the Commission is unable to make the 
findings prescribed in subparagraph (c), it will formally designate the 
application for hearing on the grounds or reasons then obtaining and 
will notify the applicant and all other known parties in interest of 
such action.
    (1) Orders designating applications for hearing will specify with 
particularity the matters in issue.
    (2) Parties in interest, if any, who are not notified by the 
Commission of its action in designating a particular application for 
hearing may acquire the status of a party to the proceeding by filing a 
petition for intervention showing the basis of their interest not more 
than 30 days after publication in the Federal Register of the hearing 
issues or any substantial amendment thereto.
    (3) The applicant and all other parties in interest shall be 
permitted to participate in any hearing subsequently held upon such 
applications. Hearings may be conducted by the Commission or by the 
Chief of the Wireless Telecommunications Bureau, or, in the case of a 
question which requires oral testimony for its resolution, an 
Administrative Law Judge. The burden of proceeding with the introduction 
of evidence and burden of proof shall be upon the applicant, except that 
with respect to any issue presented by a petition to deny or a petition 
to enlarge the issues, such burdens shall be as determined by the 
Commission or the Chief of the Wireless Telecommunications Bureau.

[63 FR 68932, Dec. 14, 1998]



Sec. 1.946  Construction and coverage requirements.

    (a) Construction and commencement of service requirements. For each 
of the Wireless Radio Services, requirements for construction and 
commencement of service or commencement of operations are set forth in 
the rule part governing the specific service. For purposes of this 
section, the period between the date of grant of an authorization and 
the date of required commencement of service or operations is referred 
to as the construction period.
    (b) Coverage and substantial service requirements. In certain 
Wireless Radio Services, licensees must comply with geographic coverage 
requirements or substantial service requirements within a specified time 
period. These requirements are set forth in the rule part governing each 
specific service. For purposes of this section, the period between the 
date of grant of an authorization and the date that a particular degree 
of coverage or substantial service is required is referred to as the 
coverage period.
    (c) Termination of authorizations. If a licensee fails to commence 
service or operations by the expiration of its construction period or to 
meet its coverage or substantial service obligations by the expiration 
of its coverage period, its authorization terminates automatically, 
without specific Commission action, on the date the construction or 
coverage period expires.
    (d) Licensee notification of compliance. A licensee who commences 
service or operations within the construction period or meets its 
coverage or substantial service obligations within the coverage period 
must notify the Commission by filing FCC Form 601. The notification must 
be filed with the Commission within 15 days of the expiration of the 
applicable construction or coverage period. Where the authorization is 
site-specific, if service or operations have begun using some, but not 
all, of the

[[Page 241]]

authorized transmitters, the notification must show to which specific 
transmitters it applies.
    (e) Requests for extension of time. Licensees may request to extend 
a construction period or coverage period by filing FCC Form 601. The 
request must be filed before the expiration of the construction or 
coverage period.
    (1) An extension request may be granted if the licensee shows that 
failure to meet the construction or coverage deadline is due to 
involuntary loss of site or other causes beyond its control.
    (2) Extension requests will not be granted for failure to meet a 
construction or coverage deadline due to delays caused by a failure to 
obtain financing, to obtain an antenna site, or to order equipment in a 
timely manner. If the licensee orders equipment within 90 days of its 
initial license grant, a presumption of diligence is established.
    (3) Extension requests will not be granted for failure to meet a 
construction or coverage deadline because the licensee undergoes a 
transfer of control or because the licensee intends to assign the 
authorization. The Commission will not grant extension requests solely 
to allow a transferee or assignee to complete facilities that the 
transferor or assignor failed to construct.
    (4) The filing of an extension request does not automatically extend 
the construction or coverage period unless the request is based on 
involuntary loss of site or other circumstances beyond the licensee's 
control, in which case the construction period is automatically extended 
pending disposition of the extension request.
    (5) A request for extension of time to construct a particular 
transmitter or other facility does not extend the construction period 
for other transmitters and facilities under the same authorization.

[63 FR 68933, Dec. 14, 1998]

    Effective Date Note: At 69 FR 46440, August 3, 2004, Sec. 1.946 was 
amended by adding a sentence to the end of paragraph (d), effective Oct. 
4, 2004. For the convenience of the user, the added text is set forth as 
follows:

Sec. 1.946  Construction and coverage requirements.

                                * * * * *

    (d) * * * This notification requirement is not applicable to 
authorizations subject to post-license registration requirements under 
the Dedicated Short-Range Communication Service (DSRCS), subpart M of 
part 90 of this chapter.

                                * * * * *



Sec. 1.947  Modification of licenses.

    (a) All major modifications, as defined in Sec. 1.929 of this part, 
require prior Commission approval. Applications for major modifications 
also shall be treated as new applications for determination of filing 
date, Public Notice, and petition to deny purposes.
    (b) Licensees may make minor modifications to station 
authorizations, as defined in Sec. 1.929 of this part (other than pro 
forma transfers and assignments), as a matter of right without prior 
Commission approval. Where other rule parts permit licensees to make 
permissive changes to technical parameters without notifying the 
Commission (e.g., adding, modifying, or deleting internal sites), no 
notification is required. For all other types of minor modifications 
(e.g., name, address, point of contact changes), licensees must notify 
the Commission by filing FCC Form 601 within thirty (30) days of 
implementing any such changes.
    (c) Multiple pending modification applications requesting changes to 
the same or related technical parameters on an authorization are not 
permitted. If a modification application is pending, any additional 
changes to the same or related technical parameters may be requested 
only in an amendment to the pending modification application.
    (d) Any proposed modification that requires a fee as set forth at 
part 1, subpart G, of this chapter must be filed in accordance with 
Sec. 1.913.

[63 FR 68933, Dec. 14, 1998, as amended at 64 FR 53240, Oct. 1, 1999]

[[Page 242]]



Sec. 1.948  Assignment of authorization or transfer of control, 
notification of consummation.

    (a) General. Except as provided in this section, authorizations in 
the Wireless Radio Services may be assigned by the licensee to another 
party, voluntarily or involuntarily, directly or indirectly, or the 
control of a licensee holding such authorizations may be transferred, 
only upon application to and approval by the Commission.
    (b) Limitations on transfers and assignments. (1) A change from less 
than 50% ownership to 50% or more ownership shall always be considered a 
transfer of control.
    (2) In other situations a controlling interest shall be determined 
on a case-by-case basis considering the distribution of ownership, and 
the relationships of the owners, including family relationships.
    (3) Designated Entities, as defined in Sec. 1.2110(a) of this part, 
must comply with Sec. Sec. 1.2110 and 1.2111 of this part when seeking 
to assign or transfer control of an authorization.
    (4) Stations must meet all applicable requirements regarding 
transfers and assignments contained in the rules pertaining to the 
specific service in which the station is licensed.
    (5) Licenses, permits, and authorizations for stations in the 
Amateur, Ship, Aircraft, Commercial Operator and Personal Radio Services 
(except 218-219 MHz Service) may not be assigned or transferred, unless 
otherwise stated.
    (c) Application required. In the case of an assignment of 
authorization or transfer of control, the assignor must file an 
application for approval of the assignment on FCC Form 603. If the 
assignee or transferee is subject to the ownership reporting 
requirements of Sec. 1.2112, the assignee or transferee must also file 
an updated FCC Form 602 or certify that a current FCC Form 602 is on 
file.
    (1) In the case of a non-substantial (pro forma) transfer or 
assignment involving a telecommunications carrier, as defined in Sec. 
153(44) of the Communications Act, filing of the Form 603 and Commission 
approval in advance of the proposed transaction is not required, 
provided that:
    (i) the affected license is not subject to unjust enrichment 
provisions under subpart Q of this part;
    (ii) the transfer or assignment does not involve a proxy contest; 
and
    (iii) the transferee or assignee provides notice of the transaction 
by filing FCC Form 603 within 30 days of its completion, and provides 
any necessary updates of ownership information on FCC Form 602.
    (2) In the case of an involuntary assignment or transfer, FCC Form 
603 must be filed no later than 30 days after the event causing the 
involuntary assignment or transfer.
    (d) Notification of consummation. In all Wireless Radio Services, 
licensees are required to notify the Commission of consummation of an 
approved transfer or assignment using FCC Form 603. The assignee or 
transferee is responsible for providing this notification, including the 
date the transaction was consummated. For transfers and assignments that 
require prior Commission approval, the transaction must be consummated 
and notification provided to the Commission within 180 days of public 
notice of approval, and notification of consummation must occur no later 
than 30 days after actual consummation, unless a request for an 
extension of time to consummate is filed on FCC Form 603 prior to the 
expiration of this 180-day period. For transfers and assignments that do 
not require prior Commission approval, notification of consummation must 
be provided on FCC Form 603 no later than 30 days after consummation, 
along with any necessary updates of ownership information on FCC Form 
602.
    (e) Partial assignment of authorization. If the authorization for 
some, but not all, of the facilities of a radio station in the Wireless 
Radio Services is assigned to another party, voluntarily or 
involuntarily, such action is a partial assignment of authorization. To 
request Commission approval of a partial assignment of authorization, 
the assignor must notify the Commission on FCC Form 603 of the 
facilities that will be deleted from its authorization upon consummation 
of the assignment.
    (f) Partitioning and disaggregation. Where a licensee proposes to 
partition

[[Page 243]]

or disaggregate a portion of its authorization to another party, the 
application will be treated as a request for partial assignment of 
authorization. The assignor must notify the Commission on FCC Form 603 
of the geographic area or spectrum that will be deleted from its 
authorization upon consummation of the assignment.
    (g) Involuntary transfer and assignment. In the event of the death 
or legal disability of a permittee or licensee, a member of a 
partnership, or a person directly or indirectly in control of a 
corporation which is a permittee or licensee, the Commission shall be 
notified promptly of the occurrence of such death or legal disability. 
Within 30 days after the occurrence of such death or legal disability 
(except in the case of a ship or amateur station), an application shall 
be filed for consent to involuntary assignment of such permit or 
license, or for involuntary transfer of control of such corporation, to 
a person or entity legally qualified to succeed to the foregoing 
interests under the laws of the place having jurisdiction over the 
estate involved. The procedures and forms to be used are the same 
procedures and forms as those specified in paragraph (b) of this 
section. In the case of Ship, aircraft, Commercial Operator, Amateur, 
and Personal Radio Services (except for 218-219 MHz Service) involuntary 
assignment of licenses will not be granted; such licenses shall be 
surrendered for cancellation upon the death or legal disability of the 
licensee. Amateur station call signs assigned to the station of a 
deceased licensee shall be available for reassignment pursuant to Sec. 
97.19 of this chapter.
    (h) Disclosure requirements. Applicants for transfer or assignment 
of licenses in auctionable services must comply with the disclosure 
requirements of Sec. Sec. 1.2111 and 1.2112 of this part.
    (i) Trafficking. Applications for approval of assignment or transfer 
may be reviewed by the Commission to determine if the transaction is for 
purposes of trafficking in service authorizations.
    (1) Trafficking consists of obtaining or attempting to obtain an 
authorization for the principal purpose of speculation or profitable 
resale of the authorization rather than for the provision of 
telecommunication services to the public or for the licensee's own 
private use.
    (2) The Commission may require submission of an affirmative, factual 
showing, supported by affidavit of persons with personal knowledge 
thereof, to demonstrate that the assignor did not acquire the 
authorization for the principal purpose of speculation or profitable 
resale of the authorization. This showing may include, for example, a 
demonstration that the proposed assignment is due to changed 
circumstances (described in detail) affecting the licensee after the 
grant of the authorization, or that the proposed assignment is 
incidental to a sale of other facilities or a merger of interests.
    (j) Streamlined processing for certain applications. Applications 
for assignment of authorizations or transfer of control relating to the 
Wireless Radio Services identified in this subsection will be processed 
pursuant to streamlined approval procedures, as discussed herein.
    (1) Services eligible for streamlined processing. Applications for 
assignment of authorizations or transfers of control relating to the 
following services are subject to the streamlined approval processes:
    (i) The Paging and Radiotelephone Service (part 22 of this chapter);
    (ii) The Rural Radiotelephone Service (part 22 of this chapter);
    (iii) The Air-Ground Radiotelephone Service (part 22 of this 
chapter);
    (iv) The Cellular Radiotelephone Service (part 22 of this chapter);
    (v) The Offshore Radiotelephone Service (part 22 of this chapter);
    (vi) The narrowband Personal Communications Service (part 24 of this 
chapter);
    (vii) The broadband Personal Communications Service (part 24 of this 
chapter);
    (viii) The Wireless Communications Service in the 698-746 MHz band 
(part 27 of this chapter);
    (ix) The Wireless Communications Service in the 746-764 MHz and 776-
794 MHz bands (part 27 of this chapter);
    (x) The Wireless Communications Service in the 1390-1392 MHz band 
(part 27 of this chapter);

[[Page 244]]

    (xi) The Wireless Communications Service in the paired 1392-1395 MHz 
and 1432-1435 MHz bands (part 27 of this chapter);
    (xii) The Wireless Communications Service in the 1670-1675 MHz band 
(part 27 of this chapter);
    (xiii) The Wireless Communications Service in the 2305-2320 and 
2345-2360 MHz bands (part 27 of this chapter);
    (xiv) The Wireless Communications Service in the 2385-2390 MHz band 
(part 27 of this chapter);
    (xv) The VHF Public Coast Station service (part 80 of this chapter);
    (xvi) The 220 MHz Service (excluding public safety licensees) (part 
90 of this chapter);
    (xvii) The Specialized Mobile Radio Service in the 800 MHz and 900 
MHz bands (including exclusive use SMR licenses in the General Category 
channels) (part 90 of this chapter);
    (xviii) The Location and Monitoring Service (LMS) with regard to 
licenses for multilateration LMS systems (part 90 of this chapter);
    (xix) Paging operations under part 90 of this chapter;
    (xx) The Business and Industrial/Land Transportation (B/ILT) 
channels in which the licensees hold exclusive use rights (part 90 of 
this chapter) (including all B/ILT channels above 512 MHz and those in 
the 470-512 MHz band where a licensee has achieved exclusivity, but 
excluding B/ILT channels in the 470-512 MHz band where a licensee has 
not achieved exclusivity and those channels below 470 MHz, including 
those licensed pursuant to 47 CFR 90.187(b)(2)(v));
    (xxi) The 218-219 MHz band (part 95 of this chapter);
    (xxii) The Local Multipoint Distribution Service (part 101 of this 
chapter);
    (xxiii) The 24 GHz Band (part 101 of this chapter);
    (xxiv) The 39 GHz Band (part 101 of this chapter);
    (xxv) The Multiple Address Systems band (part 101 of this chapter);
    (xxvi) The Local Television Transmission Service (part 101 of this 
chapter);
    (xxvii) The Private-Operational Fixed Point-to-Point Microwave 
Service (part 101 of this chapter); and,
    (xxviii) The Common Carrier Fixed Point-to-Point Microwave Service 
(part 101 of this chapter).
    (2) Streamlined approval procedures. (i) Applications, if 
sufficiently complete and the required application fee has been paid 
(see Sec. 1.1102 of subpart G of this part), will be accepted for 
filing and will be placed on public notice, except no prior public 
notice will be required for applications involving authorizations in the 
Private Wireless Services, as specified in Sec. 1.933(d)(9).
    (ii) Petitions to deny filed in accordance with section 309(d) of 
the Communications Act must comply with the provisions of Sec. 1.939, 
except that such petitions must be filed no later than 14 days following 
the date of the public notice listing the application as accepted for 
filing.
    (iii) No later than 21 days following the date of the public notice 
listing an application as accepted for filing, the Wireless 
Telecommunications Bureau (Bureau) will affirmatively consent to the 
application, deny the application, or remove the application from 
streamlined processing for further review. For applications for which no 
prior public notice is required, the Bureau will affirmatively consent 
to the application, deny the application, or remove the application from 
streamlined processing for further review no later than 21 days 
following the date on which the application has been filed and any 
required application fee has been paid (see Sec. 1.1102 of subpart G of 
this part).
    (iv) Grant of consent to an application will be reflected in a 
public notice (see Sec. 1.933(a)) promptly issued after the grant.
    (v) If the Bureau determines to remove an application from 
streamlined processing, it will issue a Public Notice indicating that 
the application has been removed from streamlined processing. Within 90 
days of the date of that public notice, the Bureau will either take 
action upon the application or provide public notice that an additional 
90-day period for review is needed.
    (vi) Consent to the application is not deemed granted until the 
Bureau affirmatively acts upon the application.
    (vii) If any petition to deny is filed, and the Bureau grants the 
application,

[[Page 245]]

the Bureau will deny the petition(s) and issue a concise statement of 
the reason(s) for denial, disposing of all substantive issues raised in 
the petition(s).

[63 FR 68933, Dec. 14, 1998, as amended at 64 FR 62120, Nov. 16, 1999; 
68 FR 42995, July 21, 2003; 68 FR 66276, Nov. 25, 2003]



Sec. 1.949  Application for renewal of license.

    (a) Applications for renewal of authorizations in the Wireless Radio 
Services must be filed no later than the expiration date of the 
authorization for which renewal is sought, and no sooner than 90 days 
prior to expiration. Renewal applications must be filed on the same form 
as applications for initial authorization in the same service, i.e., FCC 
Form 601 or 605. Additional renewal requirements applicable to specific 
services are set forth in the subparts governing those services.
    (b) Licensees with multiple authorizations in the same service may 
request a common day and month on which such authorizations expire for 
renewal purposes. License terms may be shortened by up to one year but 
will not be extended to accommodate the applicant's selection.

[63 FR 68934, Dec. 14, 1998]



Sec. 1.951  Duty to respond to official communications.

    Licensees or applicants in the Wireless Radio Services receiving 
official notice of an apparent or actual violation of a federal statute, 
international agreement, Executive Order, or regulation pertaining to 
communications shall respond in writing within 10 days to the office of 
the FCC originating the notice, unless otherwise specified. Responses to 
official communications must be complete and self-contained without 
reference to other communications unless copies of such other 
communications are attached to the response. Licensees or applicants may 
respond via ULS.

[63 FR 68934, Dec. 14, 1998]



Sec. 1.955  Termination of authorizations.

    (a) Authorizations in general remain valid until terminated in 
accordance with this section, except that the Commission may revoke an 
authorization pursuant to section 312 of the Communications Act of 1934, 
as amended. See 47 U.S.C. 312.
    (1) Expiration. Authorizations automatically terminate, without 
specific Commission action, on the expiration date specified therein, 
unless a timely application for renewal is filed. See Sec. 1.949 of 
this part. No authorization granted under the provisions of this part 
shall be for a term longer than ten years.
    (2) Failure to meet construction or coverage requirements. 
Authorizations automatically terminate, without specific Commission 
action, if the licensee fails to meet applicable construction or 
coverage requirements. See Sec. 1.948(c) of this part.
    (3) Service discontinued. Authorizations automatically terminate, 
without specific Commission action, if service is permanently 
discontinued. The Commission authorization or the individual service 
rules govern the definition of permanent discontinuance for purposes of 
this section. A licensee who discontinues operations shall notify the 
Commission of the discontinuance of operations by submitting FCC Form 
601 or 605 requesting license cancellation.
    (b) Special temporary authority (STA) automatically terminates 
without specific Commission action upon failure to comply with the terms 
and conditions therein, or at the end of the period specified therein, 
unless a timely request for an extension of the STA term is filed in 
accordance with Sec. 1.931 of this part. If a timely filed request for 
extension of the STA term is dismissed or denied, the STA automatically 
terminates, without specific Commission action, on the day after the 
applicant or the applicant's attorney is notified of the Commission's 
action dismissing or denying the request for extension.
    (c) Authorizations submitted by licensees for cancellation terminate 
when the Commission gives Public Notice of such action.

[63 FR 68934, Dec. 14, 1998, as amended at 64 FR 53240, Oct. 1, 1999]

    Editorial Note: At 64 FR 53240, Oct. 1, 1999, Sec. 1.955 was 
amended by revising the last sentence of paragraph (b)(2) to read ``See

[[Page 246]]

Sec. 1.946(c) of this part.'', effective Nov. 30, 1999. However, 
paragraph (b)(2) does not exist in the 1998 volume.



Sec. 1.956  Settlement conferences.

    Parties are encouraged to use alternative dispute resolution 
procedures to settle disputes. See subpart E of this part. In any 
contested proceeding, the Commission, in its discretion, may direct the 
parties or their attorneys to appear before it for a conference.
    (a) The purposes of such conferences are:
    (1) To obtain admissions of fact or stipulations between the parties 
as to any or all of the matters in controversy;
    (2) To consider the necessity for or desirability of amendments to 
the pleadings, or of additional pleadings or evidentiary submissions;
    (3) To consider simplification or narrowing of the issues;
    (4) To encourage settlement of the matters in controversy by 
agreement between the parties; and
    (5) To consider other matters that may aid in the resolution of the 
contested proceeding.
    (b) Conferences are scheduled by the Commission at a time and place 
it may designate, to be conducted in person or by telephone conference 
call.
    (c) The failure of any party or attorney, following reasonable 
notice, to appear at a scheduled conference will be deemed a failure to 
prosecute, subjecting that party's application or petition to dismissal 
by the Commission.

[63 FR 68935, Dec. 14, 1998]



Sec. 1.957  Procedure with respect to amateur radio operator license.

    Each candidate for an amateur radio license which requires the 
applicant to pass one or more examination elements must present the 
Volunteer Examiners (VEs) with a properly completed FCC Form 605 prior 
to the examination. Upon completion of the examination, the VEs will 
grade the test papers. If the applicant is successful, the VEs will 
forward the candidate's application to a Volunteer-Examiner Coordinator 
(VEC). The VEs will then issue a certificate for sucessful completion of 
an amateur radio operator examination. The VEC will forward the 
application to the Commission's Gettysburg, Pennsylvania, facility.

[63 FR 68935, Dec. 14, 1998]

                 Reports To Be Filed With the Commission



Sec. 1.981  Reports, annual and semiannual.

    (a) Licensees of stations authorized for developmental operation 
shall submit a report on the results of the developmental program. The 
report shall be filed with and made a part of each application for 
renewal of authorization. The report shall be filed at the Commission's 
offices in Washington, DC or alternatively may be sent to the commission 
electronically via the ULS.
    (b) The report shall include comprehensive and detailed information 
on the following:
    (1) The final objective.
    (2) Results of operation to date.
    (3) Analysis of the results obtained.
    (4) Copies of any published reports.
    (5) Need for continuation of the program.
    (6) Number of hours of operation on each frequency.
    (c) Where required by the particular service rules, licensees who 
have entered into agreements with other persons for the cooperative use 
of radio station facilities must submit annually an audited financial 
statement reflecting the nonprofit cost-sharing nature of the 
arrangement to the Commission's offices in Washington, DC or 
alternatively may be sent to the Commission electronically via the ULS, 
no later than three months after the close of the licensee's fiscal 
year.

[63 FR 68935, Dec. 14, 1998]



   Subpart G_Schedule of Statutory Charges and Procedures for Payment

    Source: 52 FR 5289, Feb. 20, 1987, unless otherwise noted.



Sec. 1.1101  Authority.

    Authority to impose and collect these charges is contained in title 
III, section 3001 of the Omnibus Budget Reconciliation Act of 1989 (Pub. 
L. 101-

[[Page 247]]

239), revising 47 U.S.C. 158, which directs the Commission to prescribe 
charges for certain of the regulatory services it provides to many of 
the communications entities within its jurisdiction. This law revises 
section 8 of the Communications Act of 1934, as amended, which contains 
a Schedule of Charges as well as procedures for modifying and collecting 
these charges.

[55 FR 19155, May 8, 1990]



Sec. 1.1102  Schedule of charges for applications and other filings in 
          the wireless telecommunications services.

    Those services designated with an asterisk in the payment type code 
column have associated regulatory fees that must be paid at the same 
time the application fee is paid. Please refer to Sec. 1.1152 for the 
appropriate regulatory fee that must be paid for this service.
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[69 FR 41130, July 7, 2004]

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Sec. 1.1103  Schedule of charges for equipment approval, experimental radio 
services, and international telecommunications settlement services.

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[69 FR 41153, July 7, 2004]



Sec. 1.1104  Schedule of charges for applications and other filings for 
media services.

    Those services designated with an asterisk in the Payment Type Code 
column accept multiples if filing in the same post office box.

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[69 FR 41155, July 7, 2004]

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Sec. 1.1105  Schedule of charges for applications and other filings for 
the wireline competition service.

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[69 FR 41163, July 7, 2004]



Sec. 1.1106  Schedule of charges for applications and other filings for 
the enforcement service.

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[69 FR 41165, July 7, 2004]

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Sec. 1.1107  Schedule of charges for applications and other filings for 
the international service.

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[69 FR 41165, July 7, 2004; 69 FR 58840, Oct. 1, 2004]



Sec. 1.1108  Attachment of charges.

    The charges required to accompany a request for the Commission 
regulatory services listed in Sec. Sec. 1.1102 through 1.1107 of this 
subpart will not be refundable to the applicant irrespective of the 
Commission's disposition of that request. Return or refund of charges 
will be made in certain limited instances as set out at Sec. 1.1113 of 
this subpart.

[65 FR 49762, Aug. 15, 2000]



Sec. 1.1109  Payment of charges.

    (a) Electronic fee payments do not require the use of a FCC Form 
159, Remittance Advice. An electronic fee payment must be made on or 
before the

[[Page 293]]

day the application and appropriate processing form are filed.
    (b) The schedule of fees for applications and other filings lists 
those applications and other filings that must be accompanied by a FCC 
Form 159, Remittance Advice. A separate FCC Form 159 will not be 
required once the information requirements of that form (payor 
information) is incorporated into the underlying application form.
    (c) Applications and other filings that are not submitted in 
accordance with these instructions will be returned as unprocessable.

    Note: This requirement for the simultaneous submission of fees forms 
with applications or other filings does not apply to the payment of fees 
for which the Commission has established a billing process. See Sec. 
1.1119 of this subpart.

    (d) Applications returned to applicants for additional information 
or corrections will not require an additional fee when resubmitted, 
unless the additional information results in an increase of the original 
fee amount. Those applications not requiring an additional fee should be 
resubmitted directly to the Bureau/Office requesting the additional 
information. The original fee will be forfeited if the additional 
information or corrections are not resubmitted to the appropriate 
Bureau/Office by the prescribed deadline. A forfeited application fee 
will not be refunded. If an additional fee is required, the original fee 
will be returned and the application must be resubmitted with a new 
remittance in the amount of the required fee to the Commission's lockbox 
bank. Applicants should attach a copy of the Commission's request for 
additional or corrected information to their resubmission.
    (1) If the Bureau/Office staff discovers within 30 days after the 
resubmission that the required fee was not submitted, the application 
will be dismissed.
    (2) If after 30 days the Bureau/Office staff discovers the required 
fee has not been paid, the application will be retained and a 25 percent 
late fee will be assessed on the deficient amount even if the Commission 
has completed its action on the application. Any Commission actions 
taken prior to timely payment of these charges are contingent and 
subject to recession.
    (e) Should the staff change the status of an application, resulting 
in an increase in the fee due, the applicant will be billed for the 
remainder under the conditions established by Sec. 1.1116(b) of the 
rules.

    Note: Due to the statutory requirements applicable to tariff 
filings, the procedures for handling tariff filings may vary from the 
procedures set out in the rules.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40888, Oct. 19, 1988; 55 
FR 19171, May 8, 1990. Redesignated and amended at 59 FR 30998, June 16, 
1994. Redesignated at 60 FR 5326, Jan. 27, 1995, as amended at 67 FR 
67337, Nov. 5, 2002]



Sec. 1.1110  Form of payment.

    (a) Fee payments should be in the form of a check, bank draft, on 
money order denominated in U.S. dollars and drawn on a United States 
financial institution and made payable to the Federal Communications 
Commission or by a Visa, MasterCard, American Express, or Discover 
credit card. No other credit card is acceptable. Fees for applications 
and other filings paid by credit card will not be accepted unless the 
credit card section of FCC Form 159 is completed in full. The Commission 
discourages applicants from submitting cash and will not be responsible 
for cash sent through the mail. Personal or corporate checks dated more 
than six months prior to their submission to the Commission's lockbox 
bank and postdated checks will not be accepted and will be returned as 
deficient. Third party checks (i.e., checks with a third party as maker 
or endorser) will not be accepted.
    (1) Specific procedures for electronic payments are announced in 
Bureau/Office fee filing guides.
    (2) It is the responsibility of the payer to insure that any 
electronic payment is made in the manner required by the Commission. 
Failure to comply with the Commission's procedures will result in the 
return of the application or other filing and the fee payment.
    (3) Payments by wire transfer will be accepted; however, to insure 
proper

[[Page 294]]

credit, applicants must follow the instructions set out in the 
appropriate Bureau/Office fee filing guide.
    (b) Applicants are required to submit one payment instrument (check, 
bank draft or money order) and FCC Form 159 with each application or 
filing. Multiple payment instruments for a single application or filing 
are not permitted. Except that a separate Fee Form (FCC Form 159) will 
not be required once the information requirements of that form (the Fee 
Code, fee amount, and total fee remitted) are incorporated into the 
underlying application form.
    (c) The Commission may accept multiple money orders in payment of a 
fee for a single application where the fee exceeds the maximum amount 
for a money order established by the issuing agency and the use of 
multiple money orders is the only practical method available for fee 
payment.
    (d) The Commission may require payment of fees with a cashier's 
check upon notification to an applicant or filer or prospective group of 
applicants under the conditions set forth below in paragraphs (d) (1) 
and (2) of this section.
    (1) Payment by cashier's check may be required when a person or 
organization has made payment, on one or more occasions with a payment 
instrument on which the Commission does not receive final payment and 
such failure is not excused by bank error.
    (2) The Commission will notify the party in writing that future 
payments must be made by cashier's check until further notice. If, 
subsequent to such notice, payment is not made by cashier's check, the 
party's payment will not be accepted and its application or other filing 
will be returned.
    (e) All fees collected will be paid into the general fund of the 
United States Treasury in accordance with Pub. L. 99-272.
    (f) The Commission will furnish a stamped receipt of an application 
only upon request that complies with the following instructions. In 
order to obtain a stamped receipt for an application (or other filing), 
the application package must include a copy of the first page of the 
application, clearly marked ``copy'', submitted expressly for the 
purpose of serving as a receipt of the filing. The copy should be the 
top document in the package. The copy will be date-stamped immediately 
and provided to the bearer of the submission, if hand delivered. For 
submissions by mail, the receipt copy will be provided through return 
mail if the filer has attached to the receipt copy a stamped self-
addressed envelope of sufficient size to contain the date stamped copy 
of the application. No remittance receipt copies will be furnished.

[52 FR 5289, Feb. 20, 1987; 52 FR 38232, Oct. 15, 1987, as amended at 53 
FR 40888, Oct. 19, 1988; 55 FR 19171, May 8, 1990. Redesignated at 59 FR 
30998, June 16, 1994, as amended at 59 FR 30999, June 16, 1994. 
Redesignated at 60 FR 5326, Jan. 27, 1995, as amended at 65 FR 49762, 
Aug. 15, 2000; 67 FR 46303, July 12, 2002; 67 FR 67337, Nov. 5, 2002]



Sec. 1.1111  Filing locations.

    (a) Except as noted in this section, applications and other filings, 
with attached fees and FCC Form 159, must be submitted to the locations 
and addresses set forth in Sec. Sec. 1.1102 through 1.1107.
    (1) Tariff filings shall be filed with the Secretary, Federal 
Communications Commission, Washington, DC 20554. On the same day, the 
filer should submit a copy of the cover letter, the FCC Form 159, and 
the appropriate fee to the Commission's lockbox bank at the address 
established in Sec. 1.1105.
    (2) Bills for collection will be paid at the Commission's lockbox 
bank at the address of the appropriate service as established in 
Sec. Sec. 1.1102 through 1.1107, as set forth on the bill sent by the 
Commission. Payments must be accompanied by the bill sent by the 
Commission. Payments must be accompanied by the bill to ensure proper 
credit.
    (3) Petitions for reconsideration or applications for review of fee 
decisions pursuant to Sec. 1.1117(b) of this subpart must be 
accompanied by the required fee for the application or other filing 
being considered or reviewed.
    (4) Applicants claiming an exemption from a fee requirement for an 
application or other filing under 47 U.S.C. 158(d)(1) or Sec. 1.1114 of 
this subpart shall file their applications in the appropriate location 
as set forth in the rules

[[Page 295]]

for the service for which they are applying, except that request for 
waiver accompanied by a tentative fee payment should be filed at the 
Commission's lockbox bank at the address for the appropriate service set 
forth in Sec. Sec. 1.1102 through 1.1107.
    (b) Except as provided for in paragraph (c) of this section, all 
materials must be submitted as one package. The Commission will not take 
responsibility for matching fees, forms and applications submitted at 
different times or locations. Materials submitted at other than the 
location and address required by Sec. 0.401(b) and paragraph (a) of 
this section will be returned to the applicant or filer.
    (c) Fees for applications and other filings pertaining to the 
Wireless Radio Services that are submitted electronically via ULS may be 
paid electronically or sent to the Commission's lock box bank manually. 
When paying manually, applicants must include the application file 
number (assigned by the ULS electronic filing system on FCC Form 159) 
and submit such number with the payment in order for the Commission to 
verify that the payment was made. Manual payments must be received no 
later than ten (10) days after receipt of the application on ULS or the 
application will be dismissed. Payment received more than ten (10) days 
after electronic filing of an application on a Bureau/Office electronic 
filing system (e.g., ULS) will be forfeited (see Sec. Sec. 1.934 and 
1.1109.)
    (d) Fees for applications and other filings pertaining to the 
Multichannel Video and Cable Television Service (MVCTS) and the Cable 
Television Relay Service (CARS) that are submitted electronically via 
the Cable Operations and Licensing System (COALS) may be paid 
electronically or sent to the Commission's lock box bank manually. When 
paying manually, applicants must include the FCC Form 159 generated by 
COALS (pre-filled with the transaction confirmation number) and 
completed with the necessary additional payment information to allow the 
Commission to verify that payment was made. Manual payments must be 
received no later than ten (10) days after receipt of the application or 
filing in COALS or the application or filing will be dismissed.

[55 FR 19171, May 8, 1990. Redesignated at 59 FR 30998, June 16, 1994, 
as amended at 59 FR 30999, June 16, 1994. Redesignated at 60 FR 5326, 
Jan. 27, 1995, as amended at 63 FR 68941, Dec. 14, 1998; 65 FR 49762, 
Aug. 15, 2000; 68 FR 27001, May 19, 2003; 69 FR 41176, July 7, 2004]



Sec. 1.1112  Conditionality of Commission or staff authorizations.

    (a) Any instrument of authorization granted by the Commission, or by 
its staff under delegated authority, will be conditioned upon final 
payment of the applicable fee or delinquent fees and timely payment of 
bills issued by the Commission. As applied to checks, bank drafts and 
money orders, final payment shall mean receipt by the Treasury of funds 
cleared by the financial institution on which the check, bank draft or 
money order is drawn.
    (1) If, prior to a grant of an instrument of authorization, the 
Commission is notified that final payment has not been made, the 
application or filing will be:
    (i) Dismissed and returned to the applicant;
    (ii) Shall lose its place in the processing line;
    (iii) And will not be accorded nunc pro tunc treatment if 
resubmitted after the relevant filing deadline.
    (2) If, subsequent to a grant of an instrument of authorization, the 
Commission is notified that final payment has not been made, the 
Commission will:
    (i) Automatically rescind that instrument of authorization for 
failure to meet the condition imposed by this subsection; and
    (ii) Notify the grantee of this action; and
    (iii) Not permit nunc pro tunc treatment for the resubmission of the 
application or filing if the relevant deadline has expired.
    (3) Upon receipt of a notification of rescision of the 
authorization, the grantee will immediately cease operations initiated 
pursuant to the authorization.
    (b) In those instances where the Commission has granted a request 
for deferred payment of a fee or issued a bill

[[Page 296]]

payable at a future date, further processing of the application or 
filing, or the grant of authority, shall be conditioned upon final 
payment of the fee, plus other required payments for late payments, by 
the date prescribed by the deferral decision or bill. Failure to comply 
with the terms of the deferral decision or bill shall result in the 
automatic dismissal of the submission or rescision of the Commission 
authorization for failure to meet the condition imposed by this subpart. 
The Commission reserves the right to return payments received after the 
date established on the bill and exercise the conditions attached to the 
application. The Commission shall:
    (1) Notify the grantee that the authorization has been rescinded;
    (i) Upon such notification, the grantee will immediately cease 
operations initiated pursuant to the authorization.
    (2) Not permit nunc pro tunc treatment to applicants who attempt to 
refile after the original deadline for the underlying submission.
    (c) (1) Where an applicant is found to be delinquent in the payment 
of application fees, the Commission will make a written request for the 
delinquent fee, together with any penalties that may be due under this 
subpart. Such request shall inform the applicant/filer that failure to 
pay or make satisfactory payment arrangements will result in the 
Commission's withholding action on, and/or as appropriate, dismissal of, 
any applications or requests filed by the applicant. The staff shall 
also inform the applicant of the procedures for seeking Commission 
review of the staff's fee determination.
    (2) If, after final determination that the fee is due or that the 
applicant is delinquent in the payment of fees, and payment is not made 
in a timely manner, the staff will withhold action on the application or 
filing until payment or other satisfactory arrangement is made. If 
payment or satisfactory arrangement is not made within 30 days of the 
date of the original notification, the application will be dismissed.

[52 FR 5289, Feb. 20, 1987, as amended at 55 FR 19171, May 8, 1990. 
Redesignated at 59 FR 30998, June 16, 1994. Redesignated at 60 FR 5326, 
Jan. 27, 1995, as amended at 69 FR 27847, May 17, 2004]



Sec. 1.1113  Return or refund of charges.

    (a) All refunds will be issued to the payer named in the appropriate 
block of the FCC Form 159. The full amount of any fee submitted will be 
returned or refunded, as appropriate, under the authority granted at 
Sec. 0.231.
    (1) When no fee is required for the application or other filing. 
(see Sec. 1.1109).
    (2) When the fee processing staff or bureau/office determines that 
an insufficient fee has been submitted within 30 calendar days of 
receipt of the application or filing and the application or filing is 
dismissed.
    (3) When the application is filed by an applicant who cannot fulfill 
a prescribed age requirement.
    (4) When the Commission adopts new rules that nullify applications 
already accepted for filing, or new law or treaty would render useless a 
grant or other positive disposition of the application.
    (5) When a waiver is granted in accordance with this subpart.

    Note: Payments in excess of an application fee will be refunded only 
if the overpayment is $10 or more.

    (6) When an application for new or modified facilities is not timely 
filed in accordance with the filing window as established by the 
Commission in a public notice specifying the earliest and latest dates 
for filing such applications.
    (b) Comparative hearings are no longer required.
    (c) Applicants in the Media Services for first-come, first-served 
construction permits will be entitled to a refund of the fee, if, within 
fifteen days of the issuance of a Public Notice.
    (d) Applicants for space station licenses under the first-come, 
first served procedure set forth in part 25 of this title will be 
entitled to a refund of the fee if, before the Commission has placed the 
application on public notice, the applicant notifies the Commission

[[Page 297]]

that it no longer wishes to keep its application on file behind the 
licensee and any other applicants who filed their applications before 
its application, and specifically requests a refund of the fee and 
dismissal of its application.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40889, Oct. 19, 1988; 56 
FR 795, Jan. 9, 1991; 56 FR 56602, Nov. 6, 1991. Redesignated at 59 FR 
30998, June 16, 1994. Redesignated at 60 FR 5326, Jan. 27, 1995, as 
amended at 65 FR 49762, Aug. 15, 2000; 67 FR 46303, July 12, 2002; 67 FR 
67337, Nov. 5, 2002; 68 FR 51502, Aug. 27, 2003; 69 FR 41177, July 7, 
2004]



Sec. 1.1114  General exemptions to charges.

    No fee established in 1.1102 through 1.1107 of this subpart, unless 
otherwise qualified herein, shall be required for:
    (a) Applications filed for the sole purpose of modifying an existing 
authorization (or a pending application for authorization) in order to 
comply with new or additional requirements of the Commission's rules or 
the rules of another Federal agency. However, if the applicant also 
requests an additional modification, renewal, or other action, the 
appropriate fee for such additional request must accompany the 
application. Cases in which a fee will be paid include applications by 
FM and TV licensees or permittees seeking to upgrade channel after a 
rulemaking.
    (b) Applicants in the Special Emergency Radio and Public Safety 
Radio Services that are government entities or nonprofit entities. 
Applicants claiming nonprofit status must include a current Internal 
Revenue Service Determination Letter documenting this nonprofit status.
    (c) Applicants, permittees or licensees of noncommercial educational 
broadcast stations in the FM or TV services, as well as AM applicants, 
permittees or licensees who certify that the station will operate or 
does operate in accordance with Sec. 73.503 of the rules.
    (d) Applicants, permittees, or licensees qualifying under paragraph 
(c) of this section requesting Commission authorization in any other 
mass media radio service (except the international broadcast (HF) 
service) private radio service, or common carrier radio communications 
service otherwise requiring a fee, if the radio service is used in 
conjunction with the noncommercial educational broadcast station on a 
noncommercial educational basis.
    (e) Other applicants, permittees, or licensees providing, or 
proposing to provide, a noncommercial educational or instructional 
service, but not qualifying under paragraph (c) of this section, may be 
exempt from filing fees, or be entitled to a refund, in the following 
circumstances.
    (1) An applicant is exempt from filing fees if it is an organization 
that, like the Public Broadcasting Service or National Public Radio, 
receives funding directly or indirectly through the Public Broadcasting 
Fund, 47 U.S.C. 396(k), distributed by the Corporation for Public 
Broadcasting, where the authorization requested will be used in 
conjunction with the organization on a noncommercial educational basis;
    (2) An applicant for a translator or low power television station 
that proposes a noncommercial educational service will be entitled to a 
refund of fees paid for the filing of the application when, after grant, 
it provides proof that it has received funding for the construction of 
the station through the National Telecommunications and Information 
Administration (NTIA) or other showings as required by the Commission.
    (3) An applicant that has qualified for a fee refund under paragraph 
(e)(2) of this section and continues to operate as a noncommercial 
education station is exempt from fees for broadcast auxiliary stations 
(subparts D, E, and F of part 74) or stations in the private radio or 
common carrier services where such authorization is to be used in 
conjunction with the noncommercial educational translator or low power 
station.
    (4) An applicant that is the licensee of an instructional television 
fixed station (Sec. 74.901 et seq.) is exempt from filing fees where 
the authorization requested will be used by the applicant in conjunction 
with the provision of the instructional service.
    (f) Applicants, permittees or licensees who qualify as governmental 
entities. For purposes of this exemption a governmental entity is 
defined as any state, possession, city, county, town,

[[Page 298]]

village, municipal corporation or similar political organization or 
subpart thereof controlled by publicly elected or duly appointed public 
officials exercising sovereign direction and control over their 
respective communities or programs.
    (g) Applications for Restricted Radiotelephone Operator Permits 
where the applicant intends to use the permit solely in conjunction with 
duties performed at radio facilities qualifying for fee exemption under 
paragraphs (c), (d), or (e) of this section.

    Note: Applicants claiming exemptions under the terms of this subpart 
must certify as to their eligibility for the exemption through a cover 
letter accompanying the application or filing. This certification is not 
required if the applicable FCC Form requests the information justifying 
the exemption.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40889, Oct. 19, 1988; 55 
FR 19172, May 8, 1990; 56 FR 56602, Nov. 6, 1991. Redesignated and 
amended at 59 FR 30998, June 16, 1994. Redesignated at 60 FR 5326, Jan. 
27, 1995, as amended at 65 FR 49762, Aug. 15, 2000; 69 FR 41177, July 7, 
2004]



Sec. 1.1115  Adjustments to charges.

    (a) The Schedule of Charges established by Sec. Sec. 1.1102 through 
1.1107 of this subpart shall be reviewed by the Commission on October 1, 
1999 and every two years thereafter, and adjustments made, if any, will 
be reflected in the next publication of Schedule of Charges.
    (1) The fees will be adjusted by the Commission to reflect the 
percentage change in the Consumer Price Index for all Urban Consumers 
(CPI-U) from the date of enactment of the authorizing legislation 
(December 19, 1989) to the date of adjustment, and every two years 
thereafter, to reflect the percentage change in the CPI-U in the period 
between the enactment date and the adjustment date.
    (2) Adjustments based upon the percentage change in the CPI-U will 
be applied against the base fees as enacted or amended by Congress in 
the year the fee was enacted or amended.
    (b) Increases or decreases in charges will apply to all categories 
of fees covered by this subpart. Individual fees will not be adjusted 
until the increase or decrease, as determined by the net change in the 
CPI-U since the date of enactment of the authorizing legislation, 
amounts to at least $5 in the case of fees under $100, or 5% or more in 
the case of fees of $100 or greater. All fees will be adjusted upward to 
the next $5 increment.
    (c) Adjustments to fees made pursuant to these procedures will not 
be subject to notice and comment rulemakings, nor will these decisions 
be subject to petitions for reconsideration under Sec. 1.429 of the 
rules. Requests for modifications will be limited to correction of 
arithmetical errors made during an adjustment cycle.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40889, Oct. 19, 1988; 55 
FR 19172, May 8, 1990. Redesignated and amended at 59 FR 30998, June 16, 
1994. Redesignated at 60 FR 5326, Jan. 27, 1995, as amended at 65 FR 
49762, Aug. 15, 2000; 69 FR 41177, July 7, 2004]



Sec. 1.1116  Penalty for late or insufficient payments.

    (a) Filings subject to fees and accompanied by defective fee 
submissions will be dismissed under Sec. 1.1109 (d) of this subpart 
where the defect is discovered by the Commission's staff within 30 
calendar days from the receipt of the application or filing by the 
Commission.
    (1) A defective fee may be corrected by resubmitting the application 
or other filing, together with the entire correct fee.
    (2) For purposes of determining whether the filing is timely, the 
date of resubmission with the correct fee will be considered the date of 
filing. However, in cases where the fee payment fails due to error of 
the applicant's bank, as evidenced by an affidavit of an officer of the 
bank, the date of the original submission will be considered the date of 
filing.
    (b) Applications or filings accompanied by insufficient fees or no 
fees, or where such applications or filings are made by persons or 
organizations that are delinquent in fees owed to the Commission, that 
are inadvertently forwarded to Commission staff for substantive review 
will be billed for the amount due if the discrepancy is not discovered 
until after 30 calendar days from the receipt of the application or 
filing by the Commission. Applications

[[Page 299]]

or filings that are accompanied by insufficient fees or no fees will 
have a penalty charge equaling 25 percent of the amount due added to 
each bill. Any Commission action taken prior to timely payment of these 
charges is contingent and subject to rescission.
    (c) Applicants to whom a deferral of payment is granted under the 
terms of this subsection will be billed for the amount due plus a charge 
equalling 25 percent of the amount due. Any Commission actions taken 
prior to timely payment of these charges are contingent and subject to 
rescission.
    (d) Failure to submit fees, following notice to the applicant of 
failure to submit the required fee, is subject to collection of the fee, 
including interest thereon, any associated penalties, and the full cost 
of collection to the Federal government pursuant to the provisions of 
the Debt Collection Improvement Act, 31 U.S.C. 3717 and 3720A. See 47 
CFR 1.1901 through 1.1952. The debt collection processes described above 
may proceed concurrently with any other sanction in this paragraph.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40889, Oct. 19, 1988; 55 
FR 19172, May 8, 1990. Redesignated and amended at 59 FR 30998, June 16, 
1994. Redesignated at 60 FR 5326, Jan. 27, 1995, as amended at 67 FR 
67337, Nov. 5, 2002; 69 FR 41177, July 7, 2004; 69 FR 27847, May 17, 
2004; 69 FR 41177, July 7, 2004]

    Editorial Note: At 69 FR 57230, Sept. 24, 2004, Sec. 1.1116(a) 
introductory text was corrected by changing the reference to ``Sec. 
1.1109(b)'' to read ``Sec. 1.1109(d)''; however, the amendment could 
not be incorporated because that reference does not exist in the 
paragraph.



Sec. 1.1117  Petitions and applications for review.

    (a) The fees established by this subpart may be waived or deferred 
in specific instances where good cause is shown and where waiver or 
deferral of the fee would promote the public interest.
    (b) Requests for waivers or deferrals will only be considered when 
received from applicants acting in respect to their own applications. 
Requests for waivers or deferrals of entire classes of services will not 
be considered.
    (c) Petitions for waivers, deferrals, fee determinations, 
reconsiderations and applications for review will be acted upon by the 
Managing Director with the concurrence of the General Counsel. All such 
filings within the scope of the fee rules shall be filed as a separate 
pleading and clearly marked to the attention of the Managing Director. 
Any such request that is not filed as a separate pleading will not be 
considered by the Commission. Requests for deferral of a fee payment for 
financial hardship must be accompanied by supporting documentation.
    (1) Petitions and applications for review submitted with a fee must 
be submitted to the Commission's lock box bank at the address for the 
appropriate service set forth in Sec. Sec. 1.1102 through 1.1107.
    (2) If no fee payment is submitted, the request should be filed with 
the Commission's Secretary.
    (d) Deferrals of fees will be granted for an established period of 
time not to exceed six months.
    (e) Applicants seeking waivers must submit the request for waiver 
with the application or filing, required fee and FCC Form 159, or a 
request for deferral. A petition for waiver and/or deferral of payment 
must be submitted to the Office of the Managing Director as specified in 
paragraph (c) of this section. Waiver requests that do not include these 
materials will be dismissed in accordance with Sec. 1.1109 of this 
subpart. Submitted fees will be returned if a waiver is granted. The 
Commission will not be responsible for delays in acting upon these 
requests.
    (f) Petitions for waiver of a fee based on financial hardship will 
be subject to the provisions of paragraph 1.1166(e).

[52 FR 5289, Feb. 20, 1987, as amended at 55 FR 19172, May 8, 1990; 55 
FR 38065, Sept. 17, 1990. Redesignated and amended at 59 FR 30998, June 
16, 1994, as further amended at 59 FR 30999, June 16, 1994. Redesignated 
at 60 FR 5326, Jan. 27, 1995, as amended at 65 FR 49762, Aug. 15, 2000; 
66 FR 36202, July 11, 2001; 67 FR 67337, Nov. 5, 2002; 68 FR 48467, Aug. 
13, 2003]



Sec. 1.1118  Error claims.

    (a) Applicants who wish to challenge a staff determination of an 
insufficient fee or delinquent debt may do so in writing. A challenge to 
a determination that a party is delinquent in paying the full 
application fee must be accompanied by suitable proof that the

[[Page 300]]

fee had been paid or waived (or deferred from payment during the period 
in question), or by the required application payment and any assessment 
penalty payment (see Sec. 1.1116) of this subpart). Failure to comply 
with these procedures will result in dismissal of the challenge. These 
claims should be addressed to the Federal Communications Commission, 
Attention: Financial Operations, 445 12th St. SW., Washington, DC 20554 
or emailed to ARINQUIRIES@fcc.gov.
    (b) Actions taken by Financial Operations staff are subject to the 
reconsideration and review provisions of Sec. Sec. 1.106 and 1.115 of 
this part, EXCEPT THAT reconsideration and/or review will only be 
available where the applicant has made the full and proper payment of 
the underlying fee as required by this subpart.
    (1) Petitions for reconsideration and/or applications for review 
submitted by applicants that have not made the full and proper fee 
payment will be dismissed; and
    (2) If the fee payment should fail while the Commission is 
considering the matter, the petition for reconsideration or application 
for review will be dismissed.

[52 FR 5289, Feb. 20, 1987, as amended at 53 FR 40889, Oct. 19, 1988. 
Redesignated at 59 FR 30998, June 16, 1994. Redesignated at 60 FR 5326, 
Jan. 27, 1995, as amended at 65 FR 49763, Aug. 15, 2000; 69 FR 27848, 
May 17, 2004]



Sec. 1.1119  Billing procedures.

    (a) The fees required for the International Telecommunications 
Settlements (Sec. 1.1103 of this subpart), Accounting and Audits Field 
Audits and Review of Arrest Audits (Sec. 1.1106 of this subpart) should 
not be paid with the filing or submission of the request. The fees 
required for requests for Special Temporary Authority (see generally 
Sec. Sec. 1.1102, 1.1104, 1.1106 & 1.1107 of this subpart) that the 
applicant believes is of an urgent or emergency nature and are filed 
directly with the appropriate Bureau or Office should not be paid with 
the filing of the request with that Bureau or Office.
    (b) In these cases, the appropriate fee will be determined by the 
Commission and the filer will be billed for that fee. The bill will set 
forth the amount to be paid, the date on which payment is due, and the 
address to which the payment should be submitted. See also Sec. 1.1111 
of this subpart.

[55 FR 19172, May 8, 1990, as amended at 58 FR 68541, Dec. 28, 1993. 
Redesignated and amended at 59 FR 30998, June 16, 1994. Redesignated at 
60 FR 5326, Jan. 27, 1995, as amended at 65 FR 49763, Aug. 15, 2000; 67 
FR 67337, Nov. 5, 2002; 69 FR 41177, July 7, 2004]



Sec. 1.1151  Authority to prescribe and collect regulatory fees.

    Authority to impose and collect regulatory fees is contained in 
title VI, section 6002(a) of the Omnibus Budget Reconciliation Act of 
1993 (Pub. L. 103-66, 107 Stat. 397), enacting section 9 of the 
Communications Act, 47 U.S.C. 159, which directs the Commission to 
prescribe and collect annual regulatory fees from designated regulatees 
in order to recover the costs of certain of its regulatory activities in 
the private radio, mass media, common carrier, and cable television 
services.

[59 FR 30999, June 16,1994]



Sec. 1.1152  Schedule of annual regulatory fees and filing locations for 
wireless radio services.

----------------------------------------------------------------------------------------------------------------
 Exclusive use services (per
          license)            Fee amount \1\                                Address
----------------------------------------------------------------------------------------------------------------
1. Land Mobile (Above 470
 MHz and 220 MHz Local, Base
 Station & SMRS) (47 CFR,
 Part 90):
    (a) New, Renew/Mod (FCC           $10.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
     601 & 159).
    (b) New, Renew/Mod                 10.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
    (c) Renewal only (FCC              10.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
     601 & 159).

[[Page 301]]

 
    (d) Renewal only                   10.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
    220 MHz Nationwide:
        (a) New, Renew/Mod             10.00  FCC, P.O. Box 358130 Pittsburgh, PA 15251-5130.
         (FCC 601 & 159).
        (b) New, Renew/Mod             10.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
        (c) Renewal only               10.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 601 & 159).
        (d) Renewal only               10.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
2. Microwave (47 CFR Pt.
 101) (Private):
    (a) New, Renew/Mod (FCC            50.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
     601 & 159).
    (b) New, Renew/Mod                 50.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
    (c) Renewal only (FCC              50.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
     601 & 159).
    (d) Renewal only                   50.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
3. 218-219 MHz Service:
    (a) New, Renew/Mod (FCC            50.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
     601 & 159).
    (b) New, Renew/Mod                 50.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
    (c) Renewal only (FCC              50.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
     601 & 159).
    (d) Renewal only                   50.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
     (Electronic Filing)
     (FCC 601 & 159).
4. Shared Use Services:
    Land Mobile
     (Frequencies)
    Below 470 MHz--except
     220 MHz):
        (a) New, Renew/Mod              5.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
         (FCC 601 & 159).
        (b) New, Renew/Mod              5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
        (c) Renewal only                5.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 601 & 159).
        (d) Renewal only                5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
    General Mobile Radio
     Service:
        (a) New, Renew/Mod              5.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
         (FCC 605 & 159).

[[Page 302]]

 
        (b) New, Renew/Mod              5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).
        (c) Renewal only                5.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 605 & 159).
        (d) Renewal only                5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).
    Rural Radio (Part 22):
        (a) New, Additional             5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         Facility, Major
         Renew/Mod
         (Electronic Filing)
         (FCC 601 & 159).
        (b) Renewal, Minor              5.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         Renew/Mod
         (Electronic Filing)
         (FCC 601 & 159).
    Marine Coast:
        (a) New Renewal/Mod            10.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
         (FCC 601 & 159).
        (b) Renewal only               10.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 601 & 159).
        (c) Renewal only               10.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
    Aviation Ground:
        (a) New, Renewal/Mod           15.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
         (FCC 601 & 159).
        (b) Renewal only               15.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 601 & 159).
        (c) Renewal only               15.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 601 & 159).
    Marine Ship:
        (a) New, Renewal/Mod           15.00  FCC, P.O. Box 358130, Pittsburgh, PA 15251-5130.
         (FCC 605 & 159).
        (b) New, Renewal/Mod           15.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).
        (c) Renewal only               15.00  FCC, P.O. Box 358245, Pittsburgh, PA 15251-5245.
         (FCC 605 & 159).
        (d) Renewal only               15.00  FCC, P.O. Box 358994, Pittsburgh, PA 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).

[[Page 303]]

 
    Aviation Aircraft:
        (a) New, Renew/Mod              5.00  FCC, P.O. Box 358130, Pittsburgh, PA, 15251-5130.
         (FCC 605 & 159).
        (b) New, Renew/Mod              5.00  FCC, P.O. Box 358994, Pittsburgh, PA, 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).
        (c) Renewal only                5.00  FCC, P.O. Box 358245, Pittsburgh, PA, 15251-5245.
         (FCC 605 & 159).
        (d) Renewal only                5.00  FCC, P.O. Box 358994, Pittsburgh, PA, 15251-5994.
         (Electronic Filing)
         (FCC 605 & 159).
5. Amateur Vanity Call
 Signs:
     (a) Initial or Renew               2.08  FCC, P.O. Box 358130, Pittsburgh, PA, 15251-5130.
     (FCC 605 & 159).
    (b) Initial or Renew                2.08  FCC, P.O. Box 358994, Pittsburgh, PA, 15251-5994.
     (Electronic Filing)
     (FCC 605 & 159).
6. CMRS Mobile Services (per
 unit):
    (FCC 159)...............          \2\.25  FCC, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
7. CMRS Messaging Services
 (per unit):
    (FCC 159)...............          \3\.08  FCC, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
8. Multipoint Distribution:
    (Includes MMDS and MDS).          270     FCC, Multipoint, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
9. Local Multipoint
 Distribution Service:
    (Includes MMDS and MDS).          270     FCC, Multipoint, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
----------------------------------------------------------------------------------------------------------------
\1\ Note that ``small fees'' are collected in advance for the entire license term. Therefore, the annual fee
  amount shown in this table that is a small fee (categories 1 through 5) must be multiplied by the 5- or 10-
  year license term, as appropriate, to arrive at the total amount of regulatory fees owed. It should be further
  noted that application fees may also apply as detailed in Sec. 1.1102 of this chapter.
\2\ These are standard fees that are to be paid in accordance with Sec. 1.1157(b) of this chapter.
\3\ These are standard fees that are to be paid in accordance with Sec. 1.1157(b) of this chapter.


[69 FR 41055, July 7, 2004]



Sec. 1.1153  Schedule of annual regulatory fees and filing locations for 
mass media services.

----------------------------------------------------------------------------------------------------------------
 Radio [AM and FM] (47 CFR,
          Part 73)              Fee amount                                  Address
----------------------------------------------------------------------------------------------------------------
1. AM Class A
    <=25,000 population.....            $600  FCC, Radio, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
    25,001-75,000 population           1,200
    75,001-150,000                     1,800
     population.
    150,001-500,000                    2,700
     population.
    500,001-1,200,000                  3,900
     population.
    1,200,001-3,000,000                6,000
     population.
    3,000,000               7,200
     population.
2. AM Class B
    <=25,000 population.....             450
    25,001-75,000 population             900
    75,001-150,000                     1,125
     population.
    150,001-500,000                    1,925
     population.
    500,001-1,200,000                  2,925
     population.

[[Page 304]]

 
    1,200,001-3,000,000                4,500
     population.
    3,000,000               5,400
     population.
3. AM Class C
    <=25,000 population.....             350
    25,001-75,000 population             525
    75,001-150,000                       700
     population.
    150,001-500,000                    1,050
     population.
    500,001-1,200,000                  1,750
     population.
    1,200,001-3,000,000                2,625
     population.
    3,000,000               3,325
     population.
4. AM Class D
    <=25,000 population.....             425
    25,001-75,000 population             625
    75,001-150,000                     1,075
     population.
    150,001-500,000                    1,275
     population.
    500,001-1,200,000                  2,125
     population.
    1,200,001-3,000,000                3,400
     population.
    3,000,000               4,250
     population.
5. AM Construction Permit                465
6. FM Classes A, B1 and C3
    <=25,000 population.....             525
    25,001-75,000 population           1,050
    75,001-150,000                     1,450
     population.
    150,001-500,000                    2,225
     population.
    500,001-1,200,000                  3,550
     population.
    1,200,001-3,000,000                5,775
     population.
    3,000,000               7,350
     population.
7. FM Classes B, C, C0, C1
 and C2
    <=25,000 population.....             675
    25,001-75,000 population           1,175
    75,001-150,000                     2,200
     population.
    150,001-500,000                    2,875
     population.
    500,001-1,200,000                  4,225
     population.
    1,200,001-3,000,000                6,750
     population.
    3,000,000               8,775
     population.
8. FM Construction Permits             1,650
    TV (47 CFR, Part 73) VHF
     Commercial
        1. Markets 1 thru 10          60,375  FCC, TV Branch, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
        2. Markets 11 thru            41,475
         25.
        3. Markets 26 thru            29,175
         50.
        4. Markets 51 thru            17,575
         100.
        5. Remaining Markets           4,050
        6. Construction                4,650
         Permits.
    UHF Commercial
        1. Markets 1 thru 10          17,775  FCC, UHFCommercial, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
        2. Markets 11 thru            16,175
         25.

[[Page 305]]

 
        3. Markets 26 thru             9,300
         50.
        4. Markets 51 thru             5,550
         100.
        5. Remaining Markets           1,650
        6. Construction                5,675
         Permits.
    Satellite UHF/VHF
     Commercial
        1. All Markets......           1,050  FCC, Satellite TV, P.O. Box 358835, Pittsburgh, PA 15251-5835.
        2. Construction                  520
         Permits.
    Low Power TV, TV/FM
     Translator,& TV/FM
     Booster (47 CFR Part
     74)
                                         385  FCC, Low Power, P.O. Box 358835, Pittsburgh, PA 15251-5835.
    Broadcast Auxiliary
                                          10  FCC, Auxiliary, P.O. Box 358835, Pittsburgh, PA 15251-5835.
----------------------------------------------------------------------------------------------------------------
\1\ Note that ``small fees'' are collected in advance for the entire license term. Therefore, the annual fee
  amount shown in this table that is a small fee (categories 1 through 5) must be multiplied by the 5- or 10-
  year license term, as appropriate, to arrive at the total amount of regulatory fees owed. It should be further
  noted that application fees may also apply as detailed in Sec. 1.1102 of this chapter.


[69 FR 41056, July 7, 2004]



Sec. 1.1154  Schedule of annual regulatory charges and filing locations 
for common carrier services.

--------------------------------------------------------------------------------------------------------------------------------------------------------
               Radio facilities                     Fee amount                                             Address
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Microwave (Domestic Public Fixed)                      $50.00     FCC, P.O. Box 358994, Pittsburgh, PA, 15251-5994.
 (Electronic Filing) (FCC Form 601 & 159).
Carriers:
    1. Interstate Telephone Service Providers                .00218  FCC, Carriers, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
     (per interstate and international end-
     user revenues (see FCC Form 499-A).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that ``small fees'' are collected in advance for the entire license term. Therefore, the annual fee amount shown in this table that is a small
  fee (categories 1 through 5) must be multiplied by the 5- or 10-year license term, as appropriate, to arrive at the total amount of regulatory fees
  owed.It should be further noted that application fees may also apply as detailed in Sec. 1.1102 of this chapter.


[69 FR 41057, July 7, 2004]



Sec. 1.1155  Schedule of regulatory fees and filing locations for cable 
television services.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Fee amount                                            Address
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Cable Television Relay Service..............            $135     FCC, Cable P.O. Box 358835 Pittsburgh, PA 15251-5835.
2. Cable TV System (per subscriber)............                .70
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that ``small fees'' are collected in advance for the entire license term. Therefore, the annual fee amount shown in this table that is a small
  fee (categories 1 through 5) must be multiplied by the 5- or 10-year license term, as appropriate, to arrive at the total amount of regulatory fees
  owed. It should be further noted that application fees may also apply as detailed in Sec. 1.1102 of this chapter.


[69 FR 41057, July 7, 2004]

[[Page 306]]



Sec. 1.1156  Schedule of regulatory fees and filing locations for 
international services.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Radio facilities                     Fee amount                                            Address
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. International (HF) Broadcast................            $745     FCC, International, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
2. International Public Fixed..................           1,750     FCC, International P.O. Box 358835, Pittsburgh, PA, 15251-5835.
Space Stations (Geostationary Orbit)...........         114,675     FCC, Space Stations, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
Space Stations (Non-Geostationary Orbit).......         131,400     FCC, Space Stations, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
Earth Stations Transmit/Receive & Transmit Only             200     FCC, Earth Station, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
 (per authorization or registration).
Carriers International Bearer Circuits (per                   2.52  FCC, International, P.O. Box 358835, Pittsburgh, PA, 15251-5835.
 active 64KB circuit or equivalent).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that ``small fees'' are collected in advance for the entire license term. Therefore, the annual fee amount shown in this table that is a small
  fee (categories 1 through 5) must be multiplied by the 5-or 10-year license term, as appropriate, to arrive at the total amount of regulatory fees
  owed. It should be further noted that application fees may also apply as detailed in Sec. 1.1102 of this chapter.


[69 FR 41058, July 7, 2004]



Sec. 1.1157  Payment of charges for regulatory fees.

    Payment of a regulatory fee, required under Sec. Sec. 1.1152 
through 1.1156, shall be filed in the following manner:
    (a) (1) The amount of the regulatory fee payment that is due with 
any application for authorization shall be the multiple of the number of 
years in the entire term of the requested license or other authorization 
multiplied by the annual fee payment required in the Schedule of 
Regulatory Fees, effective at the time the application is filed. Except 
as set forth in Sec. 1.1160, advance payments shall be final and shall 
not be readjusted during the term of the license or authorization, 
notwithstanding any subsequent increase or decrease in the annual amount 
of a fee required under the Schedule of Regulatory Fees.
    (2) Failure to file the appropriate regulatory fee due with an 
application for authorization will result in the return of the 
accompanying application, including an application for which the 
Commission has assigned a specific filing deadline.
    (b)(1) Payments of standard regulatory fees applicable to certain 
wireless radio, mass media, common carrier, cable and international 
services shall be filed in full on an annual basis at a time announced 
by the Commission or the Managing Director, pursuant to delegated 
authority, and published in the Federal Register.
    (2) Large regulatory fees, as annually defined by the Commission, 
may be submitted in installment payments or in a single payment on a 
date certain as announced by the Commission or the Managing Director, 
pursuant to delegated authority, and published in the Federal Register.
    (c) Standard regulatory fee payments, as well as any installment 
payment, must be filed with a FCC Form 159, FCC Remittance Advice, and a 
FCC Form 159C, Remittance Advice Continuation Sheet, if additional space 
is needed. Failure to submit a copy of FCC Form 159 with a standard 
regulatory fee payment, or an installment payment, will result in the 
return of the submission and a 25 percent penalty if the payment is 
resubmitted after the date the Commission establishes for the payment of 
standard regulatory fees and for any installment payment.
    (1) Any late filed regulatory fee payment will be subject to the 
penalties set forth in section 1.1164.
    (2) If one or more installment payments are untimely submitted or 
not submitted at all, the eligibility of the subject regulatee to submit 
installment payments may be cancelled.
    (d) Any Commercial Mobile Radio Service (CMRS) licensee subject to 
payment of an annual regulatory fee shall retain for a period of two (2) 
years from the date on which the regulatory fee is paid, those business 
records

[[Page 307]]

which were used to calculate the amount of the regulatory fee.

[60 FR 34031, June 29, 1995, as amended at 62 FR 59825, Nov. 5, 1997; 67 
FR 46306, July 12, 2002]



Sec. 1.1158  Form of payment for regulatory fees.

    Any regulatory fee payment must be submitted in the form of a check, 
bank draft or money order denominated in U.S. dollars and drawn on a 
United States financial institution and made payable to the Federal 
Communications Commission or by Visa, Mastercard, American Express or 
Discover credit cards only. The Commission discourages applicants from 
submitting cash payments and will not be responsible for cash sent 
through the mail. Personal or corporate checks dated more than six 
months prior to their submission to the Commission's lockbox bank and 
postdated checks will not be accepted and will be returned as deficient.
    (a) Upon authorization from the Commission following a written 
request, electronic fund transfer (EFT) payment of a regulatory fee may 
be made as follows:
    (1)(i) The payor may instruct its bank to make payment of the 
regulatory fee directly to the Commission's lockbox bank, or
    (ii) The payor may authorize the Commission to direct its lockbox 
bank to withdraw funds directly from the payor's bank account.
    (2) No EFT payment of a regulatory fee will be accepted unless the 
payor has obtained the written authorization of the Commission to submit 
regulatory fees electronically. Procedures for electronic payment of 
regulatory fees will be announced by Public Notice. It is the 
responsibility of the payor to insure that any electronic payment is 
made in the manner required by the Commission. Failure to comply with 
the Commission's procedures for electronic fee payment will result in 
the return of the fee payment, and a penalty fee of 25 percent if the 
subsequent refiling of the fee payment is late. Failure to comply will 
also subject the payor to the penalties set forth in Sec. 1.1164.
    (b) Multiple payment instruments for a single regulatory fee are not 
permitted, except that the Commission will accept multiple money orders 
in payment of any fee where the fee exceeds the maximum amount for a 
money order established by the issuing entity and the use of multiple 
money orders is the only practicable means available for payment.
    (c) Payment of multiple standard regulatory fees (including an 
installment payment) due on the same date, may be made with a single 
payment instrument and cover mass media, common carrier, international, 
and cable service fee payments. Each regulatee is solely responsible for 
accurately accounting for and listing each license or authorization and 
the number of subscribers, access lines, or other relevant units on the 
accompanying FCC Form 159 and, if needed, FCC Form 159C and for making 
full payment for every regulatory fee listed on the accompanying form. 
Any omission or payment deficiency of a regulatory fee will result in a 
25 percent penalty of the amount due and unpaid.
    (d) Any regulatory fee payment (including a regulatory fee payment 
submitted with an application in the wireless radio service) made by 
credit card or money order must be submitted with a completed FCC Form 
159. Failure to accurately enter the credit card number and date of 
expiration and the payor's signature in the appropriate blocks on FCC 
Form 159 will result in rejection of the credit card payment.

[60 FR 34031, June 29, 1995, as amended at 67 FR 46306, July 12, 2002]



Sec. 1.1159  Filing locations and receipts for regulatory fees.

    (a) Regulatory fee payments must be directed to the location and 
address set forth in Sec. Sec. 1.1152 through 1.1156 for the specific 
category of fee involved. Any regulatory fee required to be submitted 
with an application must be filed as a part of the application package 
accompanying the application. The Commission will not take 
responsibility for matching fees, forms and applications submitted at 
different times or locations.
    (b) Petitions for reconsideration or applications for review of fee 
decisions

[[Page 308]]

submitted with a standard regulatory fee payment pursuant to Sec. Sec. 
1.1152 through 1.1156 of the rules are to be filed with the Commission's 
lockbox bank in the manner set forth in Sec. Sec. 1.1152 through 1.1156 
for payment of the fee subject to the petition for reconsideration or 
the application for review. Petitions for reconsideration and 
applications for review that are submitted with no accompanying payment 
should be filed with the Secretary, Federal Communications Commission, 
Attention: Managing Director, Washington, D.C. 20554.
    (c) Any request for exemption from a regulatory fee shall be filed 
with the Secretary, Federal Communications Commission, Attention: 
Managing Director, Washington, D.C. 20554, except that requests for 
exemption accompanied by a tentative fee payment shall be filed at the 
lockbox set forth for the appropriate service in Sec. Sec. 1.1152 
through 1.1156.
    (d) The Commission will furnish a receipt for a regulatory fee 
payment only upon request. In order to obtain a receipt for a regulatory 
fee payment, the package must include an extra copy of the Form FCC 159 
or, if a Form 159 is not required with the payment, a copy of the first 
page of the application or other filing submitted with the regulatory 
fee payment, submitted expressly for the purpose of serving as a receipt 
for the regulatory fee payment and application fee payment, if required. 
The document should be clearly marked ``copy'' and should be the top 
document in the package. The copy will be date stamped immediately and 
provided to the bearer of the submission, if hand delivered. For 
submissions by mail, the receipt copy will be provided through return 
mail if the filer has attached to the receipt copy a stamped self-
addressed envelope of sufficient size to contain the receipt document.
    (e) The Managing Director may issue annually, at his discretion, a 
Public Notice setting forth the names of all commercial regulatees that 
have paid a regulatory fee and shall publish the Public Notice in the 
Federal Register.

[60 FR 34032, June 29, 1995, as amended at 62 FR 59825, Nov. 5, 1997]



Sec. 1.1160  Refunds of regulatory fees.

    (a) Regulatory fees will be refunded, upon request, only in the 
following instances:
    (1) When no regulatory fee is required or an excessive fee has been 
paid. In the case of an overpayment, the refund amount will be based on 
the applicants', permittees', or licensees' entire submission. All 
refunds will be issued to the payor named in the appropriate block of 
the FCC Form 159. Payments in excess of a regulatory fee will be 
refunded only if the overpayment is $10.00 or more.
    (2) In the case of advance payment of regulatory fees, subject to 
Sec. 1.1152, a refund will be issued based on unexpired full years:
    (i) When the Commission adopts new rules that nullify a license or 
other authorization, or a new law or treaty renders a license or other 
authorization useless;
    (ii) When a licensee in the wireless radio service surrenders the 
license or other authorization subject to a fee payment to the 
Commission; or
    (iii) When the Commission declines to grant an application submitted 
with a regulatory fee payment.
    (3) When a waiver is granted in accordance with Sec. 1.1166.
    (b) No pro-rata refund of an annual fee will be issued.
    (c) No refunds will be issued based on unexpired partial years.
    (d) No refunds will be processed without a written request from the 
applicant, permittee, licensee or agent.

[60 FR 34032, June 29, 1995, as amended at 67 FR 46307, July 12, 2002]



Sec. 1.1161  Conditional license grants and delegated authorizations.

    (a) Grant of any application or an instrument of authorization or 
other filing for which a regulatory fee is required to accompany the 
application or filing, will be conditioned upon final payment of the 
current or delinquent regulatory fees. Final payment shall mean receipt 
by the U.S. Treasury of funds cleared by the financial institution on 
which the check, bank draft, money order, credit card (Visa, MasterCard, 
American Express, or Discover), wire or electronic payment is drawn.

[[Page 309]]

    (1) If, prior to a grant of an instrument of authorization, the 
Commission is notified that final payment of the regulatory fee has not 
been made, the application or filing:
    (i) Will be dismissed and returned;
    (ii) Shall lose its place in the processing line; and
    (iii) Will not be treated as timely filed if resubmitted after the 
relevant filing deadline.
    (2) If, subsequent to a grant of an instrument of authorization or 
other filing, the Commission is notified that final payment has not been 
made, the Commission will:
    (i) Automatically rescind that instrument of authorization for 
failure to meet the condition imposed by this subsection;
    (ii) Notify the grantee of this action; and
    (iii) Treat as late filed any application resubmitted after the 
original deadline for filing the application.
    (3) Upon receipt of a notification of rescission of the 
authorization, the grantee will immediately cease operations initiated 
pursuant to the authorization.
    (b) In those instances where the Commission has granted a request 
for deferred payment of a regulatory fee, further processing of the 
application or filing or the grant of authority shall be conditioned 
upon final payment of the regulatory fee and any required penalties for 
late payment prescribed by the deferral decision. Failure to comply with 
the terms of the deferral decision shall result in the automatic 
dismissal of the submission or rescission of the Commission 
authorization. Further, the Commission shall:
    (1) Notify the grantee that the authorization has been rescinded. 
Upon such notification, the grantee will immediately cease operations 
initiated pursuant to the authorization; and
    (2) Treat as late filed any application resubmitted after the 
original deadline for filing the application.
    (c)(1) Where an applicant is found to be delinquent in the payment 
of regulatory fees, the Commission will make a written request for the 
fee, together with any penalties that may be rendered under this 
subpart. Such request shall inform the regulatee that failure to pay may 
result in the Commission withholding action on any application or 
request filed by the applicant. The staff shall also inform the 
regulatee of the procedures for seeking Commission review of the staff's 
determination.
    (2) If, after final determination that the fee is due or that the 
applicant is delinquent in the payment of fees and payment is not made 
in a timely manner, the staff will withhold action on the application or 
filing until payment or other satisfactory arrangement is made. If 
payment or satisfactory arrangement is not made within 30 days, the 
application will be dismissed.

[60 FR 34032, June 29, 1995, as amended at 69 FR 27848, May 17, 2004]



Sec. 1.1162  General exemptions from regulatory fees.

    No regulatory fee established in Sec. Sec. 1.1152 through 1.1156, 
unless otherwise qualified herein, shall be required for: (a) 
Applicants, permittees or licensees in the Amateur Radio Service, except 
that any person requesting a vanity call-sign shall be subject to the 
payment of a regulatory fee, as prescribed in Sec. 1.1152.
    (b) Applicants, permittees, or licensees who qualify as government 
entities. For purposes of this exemption, a government entity is defined 
as any state, possession, city, county, town, village, municipal 
corporation, or similar political organization or subpart thereof 
controlled by publicly elected or duly appointed public officials 
exercising sovereign direction and control over their respective 
communities or programs.
    (c) Applicants and permittees who qualify as nonprofit entities. For 
purposes of this exemption, a nonprofit entity is defined as: an 
organization duly qualified as a nonprofit, tax exempt entity under 
section 501 of the Internal Revenue Code, 26 U.S.C. 501; or an entity 
with current certification as a nonprofit corporation or other nonprofit 
entity by state or other governmental authority.
    (1) Any permittee, licensee or other entity subject to a regulatory 
fee and claiming an exemption from a regulatory fee based upon its 
status as a nonprofit entity, as described above, shall file with the 
Secretary of the

[[Page 310]]

Commission (Attn: Managing Director) written documentation establishing 
the basis for its exemption within 60 days of its coming under the 
regulatory jurisdiction of the Commission or at the time its fee payment 
would otherwise be due, whichever is sooner, or at such other time as 
required by the Managing Director. Acceptable documentation may include 
Internal Revenue Service determination letters, state or government 
certifications or other documentation that non-profit status has been 
approved by a state or other governmental authority. Applicants, 
permittees and licensees are required to file documentation of their 
nonprofit status only once, except upon request of the Managing 
Director.
    (2) Within sixty (60) days of a change in nonprofit status, a 
licensee or permittee previously claiming a 501(C) exemption is required 
to file with the Secretary of the Commission (Attn: Managing Director) 
written notice of such change in its nonprofit status or ownership. 
Additionally, for-profit purchasers or assignees of a license, station 
or facility previously licensed or operated by a non-profit entity not 
subject to regulatory fees must notify the Secretary of the Commission 
(Attn: Managing Director) of such purchase or reassignment within 60 
days of the effective date of the purchase or assignment.
    (d) Applicants, permittees or licensees in the Special Emergency 
Radio and Public Safety Radio services.
    (e) Applicants, permittees or licensees of noncommercial educational 
broadcast stations in the FM or TV services, as well as AM applicants, 
permittees or licensees operating in accordance with Sec. 73.503 of 
this chapter.
    (f) Applicants, permittees, or licensees qualifying under paragraph 
(e) of this section requesting Commission authorization in any other 
mass media radio service (except the international broadcast (HF) 
service), wireless radio service, common carrier radio service, or 
international radio service requiring payment of a regulatory fee, if 
the service is used in conjunction with their noncommercial educational 
broadcast station on a noncommercial educational basis.
    (g) Other applicants, permittees or licensees providing, or 
proposing to provide, a noncommercial educational or instructional 
service, but not qualifying under paragraph (e) of this section, may be 
exempt from regulatory fees, or be entitled to a refund, in the 
following circumstances:
    (1) The applicant, permittee or licensee is an organization that, 
like the Public Broadcasting Service or National Public Radio, receives 
funding directly or indirectly through the Public Broadcasting Fund, 47 
U.S.C. 396(k), distributed by the Corporation for Public Broadcasting, 
where the authorization requested will be used in conjunction with the 
organization on a noncommercial educational basis;
    (2) An applicant, permittee or licensee of a translator or low power 
television station operating or proposing to operate a noncommercial 
educational service who, after grant, provides proof that it has 
received funding for the construction of the station through the 
National Telecommunications and Information Administration (NTIA) or 
other showings as required by the Commission; or
    (3) An applicant, permittee, or licensee provided a fee refund under 
Sec. 1.1160 and operating as a noncommercial education station, is 
exempt from fees for broadcast auxiliary stations (subparts D, E, and F 
of part 74 of this chapter) or stations in the wireless radio, common 
carrier, or international services where such authorization is to be 
used in conjunction with the noncommercial educational translator or low 
power station.
    (h) An applicant, permittee or licensee that is the licensee of an 
instructional television fixed station (Sec. Sec. 74.901 through 74.996 
of this chapter) is exempt from regulatory fees where the authorization 
requested will be used by the applicant in conjunction with the 
provision of the instructional service.
    (i) Applications filed in the wireless radio service for the sole 
purpose of modifying an existing authorization (or a pending application 
for authorization). However, if the applicant also requests a renewal or 
reinstatement of its license or other authorization for which the 
submission of a regulatory

[[Page 311]]

fee is required, the appropriate regulatory fee for such additional 
request must accompany the application.

[60 FR 34033, June 29, 1995, as amended at 60 FR 34904, July 5, 1995; 62 
FR 59825, Nov. 5, 1997]



Sec. 1.1163  Adjustments to regulatory fees.

    (a) For Fiscal Year 1995, the amounts assessed for regulatory fees 
are set forth in Sec. Sec. 1.1152 through 1.1156.
    (b) For Fiscal year 1996 and thereafter, the Schedule of Regulatory 
Fees, contained in Sec. Sec. 1.1152 through 1.1156, may be adjusted 
annually by the Commission pursuant to section 9 of the Communications 
Act. 47 U.S.C. 159. Adjustments to the fees established for any category 
of regulatory fee payment shall include projected cost increases or 
decreases and an estimate of the volume of licensees or units upon which 
the regulatory fee is calculated.
    (c) The fees assessed shall:
    (1) Be derived by determining the full-time equivalent number of 
employees performing enforcement activities, policy and rulemaking 
activities, user information services, and international activities 
within the Wireline Competition Bureau, Media Bureau, International 
Bureau and other offices of the Commission, adjusted to take into 
account factors that are reasonably related to the benefits provided to 
the payor of the fee by the Commission's activities, including such 
factors as service coverage area, shared use versus exclusive use, and 
other factors that the Commission determines are necessary in the public 
interest;
    (2) Be established at amounts that will result in collection, during 
each fiscal year, of an amount that can reasonably be expected to equal 
the amount appropriated for such fiscal year for the performance of the 
activities described in paragraph (c)(1) of this section.
    (d) The Commission shall by rule amend the Schedule of Regulatory 
Fees by proportionate increases or decreases that reflect, in accordance 
with paragraph (c)(2) of this section, changes in the amount 
appropriated for the performance of the activities described in 
paragraph (c)(1) of this section, for such fiscal year. Such 
proportionate increases or decreases shall be adjusted to reflect 
unexpected increases or decreases in the number of licensees or units 
subject to payment of such fees and result in collection of an aggregate 
amount of fees that will approximately equal the amount appropriated for 
the subject regulatory activities.
    (e) The Commission shall, by rule, amend the Schedule of Regulatory 
Fees if the Commission determines that the Schedule requires amendment 
to comply with the requirements of paragraph (c)(1) of this section. In 
making such amendments, the Commission shall add, delete or reclassify 
services in the Schedule to reflect additional deletions or changes in 
the nature of its services as a consequence of Commission rulemaking 
proceedings or changes in law.
    (f) In making adjustments to regulatory fees, the Commission will 
round such fees to the nearest $5.00 in the case of fees under 
$1,000.00, or to the nearest $25.00 in the case of fees of $1,000.00 or 
more.

[60 FR 34033, June 29, 1995, as amended at 67 FR 13224, Mar. 21, 2002]



Sec. 1.1164  Penalties for late or insufficient regulatory fee payments.

    Any late payment or insufficient payment of a regulatory fee, not 
excused by bank error, shall subject the regulatee to a 25 percent 
penalty of the amount of the fee of installment payment which was not 
paid in a timely manner. A timely fee payment or installment payment is 
one received at the Commission's lockbox bank by the due date specified 
by the Commission or by the Managing Director. A payment will also be 
considered late filed if the payment instrument (check, money order, 
bank draft or credit card) is uncollectible.
    (a) The Commission may, in its discretion, following one or more 
late filed installment payments, require a regulatee to pay the entire 
balance of its regulatory fee by a date certain, in addition to 
assessing a 25 percent penalty.
    (b) In cases were a fee payment fails due to error by the payor's 
bank, as evidenced by an affidavit of an officer of the bank, the date 
of the original submission will be considered the date of filing.

[[Page 312]]

    (c) If a regulatory fee is paid in a timely manner, the regulatee 
will be notified of its deficiency. This notice will automatically 
assess a 25 percent penalty, subject the delinquent payor's pending 
applications to dismissal, and may require a delinquent payor to show 
cause why its existing instruments of authorization should not be 
subject to rescission.
    (d)(1) Where a regulatee's new, renewal or reinstatement application 
is required to be filed with a regulatory fee (as is the case with 
wireless radio services), the application will be dismissed if the 
regulatory fee is not included with the application package. In the case 
of a renewal or reinstatement application, the application may not be 
refiled unless the appropriate regulatory fee plus the 25 percent 
penalty charge accompanies the refiled application.
    (2) If the application that must be accompanied by a regulatory fee 
is a mutually exclusive application with a filing deadline, or any other 
application that must be filed by a date certain, the application will 
be dismissed if not accompanied by the proper regulatory fee and will be 
treated as late filed if resubmitted after the original date for filing 
application.
    (e) Any pending or subsequently filed application submitted by a 
party will be dismissed if that party is determined to be delinquent in 
paying a standard regulatory fee or an installment payment. The 
application may be resubmitted only if accompanied by the required 
regulatory fee and by any assessed penalty payment.
    (f) In instances where the Commission may revoke an existing 
instrument of authorization for failure to file a regulatory fee, the 
Commission will provide prior notice to the regulatee of such action and 
shall allow the licensee no less than 60 days to either pay the fee or 
show cause why the payment assessed is inapplicable or should otherwise 
be waived or deferred.
    (1) An adjudicatory hearing will not be designated unless the 
response by the regulatee to the Order to Show Cause presents a 
substantial and material question of fact.
    (2) Disposition of the proceeding shall be based upon written 
evidence only and the burden of proceeding with the introduction of 
evidence and the burden of proof shall be on the respondent regulatee.
    (3) Unless the regulatee substantially prevails in the hearing, the 
Commission may assess costs for the conduct of the proceeding against 
the respondent regulatee. See 47 U.S.C. 402(b)(5).
    (4) Any regulatee failing to submit a regulatory fee, following 
notice to the regulatee of failure to submit the required fee, is 
subject to collection of the fee, including interest thereon, any 
associated penalties, and the full cost of collection to the Federal 
government pursuant to section 3720A of the Internal Revenue Code, 31 
U.S.C. 3717, and to the provisions of the Debt Collection Act, 31 U.S.C. 
3717. See 47 CFR 1.1901 through 1.1952. The debt collection processes 
described above may proceed concurrently with any other sanction in this 
paragraph.
    (5) An application or filing by a regulatee that is delinquent in 
its debt to the Commission is also subject to dismissal under 47 CFR 
1.1910.

[60 FR 34034, June 29, 1995, as amended at 69 FR 27848, May 17, 2004]



Sec. 1.1165  Payment by cashier's check for regulatory fees.

    Payment by cashier's check may be required when a person or 
organization makes payment, on one or more occasions, with a payment 
instrument on which the Commission does not receive final payment and 
such error is not excused by bank error.

[60 FR 34034, June 29, 1995]



Sec. 1.1166  Waivers, reductions and deferrals of regulatory fees.

    The fees established by sections 1.1152 through 1.1156 may be 
waived, reduced or deferred in specific instances, on a case-by-case 
basis, where good cause is shown and where waiver, reduction or deferral 
of the fee would promote the public interest. Requests for waivers, 
reductions or deferrals of regulatory fees for entire categories of 
payors will not be considered.
    (a) Requests for waivers, reductions or deferrals will be acted upon 
by the Managing Director with the concurrence of the General Counsel. 
All such

[[Page 313]]

filings within the scope of the fee rules shall be filed as a separate 
pleading and clearly marked to the attention of the Managing Director. 
Any such request that is not filed as a separate pleading will not be 
considered by the Commission.
    (1) If the request for waiver, reduction or deferral is accompanied 
by a fee payment, the request must be submitted to the Commission's 
lockbox bank at the address for the appropriate service set forth in 
Sec. Sec. 1.1152 through 1.1156 of this subpart.
    (2) If no fee payment is submitted, the request should be filed with 
the Commission's Secretary.
    (b) Deferrals of fees will be granted for a period of six months 
following the date that the fee is initially due.
    (c) Petitions for waiver of a regulatory fee must be accompanied by 
the required fee and FCC Form 159. Submitted fees will be returned if a 
waiver is granted. Waiver requests that do not include the required fees 
or forms will be dismissed unless accompanied by a petition to defer 
payment due to financial hardship, supported by documentation of the 
financial hardship.
    (d) Petitions for reduction of a fee must be accompanied by the full 
fee payment and Form 159. Petitions for reduction accompanied by a fee 
payment must be addressed to the Federal Communications Commission, 
Attention: Petitions, Post Office Box 358835, Pittsburgh, Pennsylvania, 
15251-5835. Petitions for reduction that do not include the required 
fees or forms will be dismissed unless accompanied by a petition to 
defer payment due to financial hardship, supported by documentation of 
the financial hardship.
    (e) Petitions for waiver of a fee based on financial hardship, 
including bankruptcy, will not be granted, even if otherwise consistent 
with Commission policy, to the extent that the total regulatory and 
application fees for which waiver is sought exceeds $500,000 in any 
fiscal year, including regulatory fees due in any fiscal year, but paid 
prior to the due date. In computing this amount, the amounts owed by an 
entity and its subsidiaries and other affiliated entities will be 
aggregated. In cases where the claim of financial hardship is not based 
on bankruptcy, waiver, partial waiver, or deferral of fees above the 
$500,000 cap may be considered on a case-by-case basis.

[60 FR 34034, June 29, 1995, as amended at 65 FR 78989, Dec. 18, 2000; 
66 FR 36206, July 11, 2001; 68 FR 48469, Aug. 13, 2003]



Sec. 1.1167  Error claims related to regulatory fees.

    (a) Challenges to determinations or an insufficient regulatory fee 
payment or delinquent fees should be made in writing. A challenge to a 
determination that a party is delinquent in paying a standard regulatory 
fee must be accompanied by suitable proof that the fee had been paid or 
waived (deferred from payment during the period in question), or by the 
required regulatory payment and any assessed penalty payment (see Sec. 
1.1164(c) of this subpart). Challenges submitted with a fee payment must 
be submitted to address stated on the invoice or billing statement. 
Challenges not accompanied by a fee payment should be filed with the 
Commission's Secretary and clearly marked to the attention of the 
Managing Director or emailed to ARINQUIRIES@fcc.gov.
    (b) The filing of a petition for reconsideration or an application 
for review of a fee determination will not relieve licensees from the 
requirement that full and proper payment of the underlying fee payment 
be submitted, as required by the Commission's action, or delegated 
action, on a request for waiver, reduction or deferment. Petitions for 
reconsideration and applications for review submitted with a fee payment 
must be submitted to the same location as the original fee payment. 
Petitions for reconsideration and applications for review not 
accompanied by a fee payment should be filed with the Commission's 
Secretary and clearly marked to the attention of the Managing Director.
    (1) Failure to submit the fee by the date required will result in 
the assessment of a 25 percent penalty.
    (2) If the fee payment should fail while the Commission is 
considering the matter, the petition for reconsideration or application 
for review will be dismissed.

[60 FR 34035, June 29, 1995, as amended at 69 FR 27848, May 17, 2004]

[[Page 314]]



Sec. 1.1181  Authority to prescribe and collect fees for competitive 
bidding-related services and products.

    Authority to prescribe, impose, and collect fees for expenses 
incurred by the government is governed by the Independent Offices 
Appropriation Act of 1952, as amended, 31 U.S.C. 9701, which authorizes 
agencies to prescribe regulations that establish charges for the 
provision of government services and products. Under this authority, the 
Federal Communications Commission may prescribe and collect fees for 
competitive bidding-related services and products as specified in Sec. 
1.1182.

[60 FR 38280, July 26, 1995]



Sec. 1.1182  Schedule of fees for products and services provided by the 
Commission in connection with competitive bidding procedures.

------------------------------------------------------------------------
     Product or service            Fee amount         Payment procedure
------------------------------------------------------------------------
On-line remote access 900     2.30 per minute.....  Charges included on
 Number Telephone Service).                          customer's long
                                                     distance telephone
                                                     bill.
Remote Bidding Software.....  $175.00 per package.  Payment to auction
                                                     contractor by
                                                     credit card or
                                                     check. (Public
                                                     Notice will specify
                                                     exact payment
                                                     procedures.)
Bidder Information Package..  First package free;   Payment to auction
                               $16.00 per            contractor by
                               additional package    credit card or
                               (including postage)   check. (Public
                               to same person or     Notice will specify
                               entity.               exact payment
                                                     procedures.)
------------------------------------------------------------------------


[60 FR 38280, July 26, 1995]



                    Subpart H_Ex Parte Communications

    Source: 52 FR 21052, June 4, 1987, unless otherwise noted.

                                 General



Sec. 1.1200  Introduction.

    (a) Purpose. To ensure the fairness and integrity of its decision-
making, the Commission has prescribed rules to regulate ex parte 
presentations in Commission proceedings. These rules specify ``exempt'' 
proceedings, in which ex parte presentations may be made freely (Sec. 
1.1204(b)), ``permit-but-disclose'' proceedings, in which ex parte 
presentations to Commission decision-making personnel are permissible 
but subject to certain disclosure requirements (Sec. 1.1206), and 
``restricted'' proceedings in which ex parte presentations to and from 
Commission decision-making personnel are generally prohibited (Sec. 
1.1208). In all proceedings, a certain period (''the Sunshine Agenda 
period'') is designated in which all presentations to Commission 
decision-making personnel are prohibited (Sec. 1.1203). The limitations 
on ex parte presentations described in this section are subject to 
certain general exceptions set forth in Sec. 1.1204(a). Where the 
public interest so requires in a particular proceeding, the Commission 
and its staff retain the discretion to modify the applicable ex parte 
rules by order, letter, or public notice. Joint Boards may modify the ex 
parte rules in proceedings before them.
    (b) Inquiries concerning the propriety of ex parte presentations 
should be directed to the Office of General Counsel.

[62 FR 15853, Apr. 3, 1997]



Sec. 1.1202  Definitions.

    For the purposes of this subpart, the following definitions apply:
    (a) Presentation. A communication directed to the merits or outcome 
of a proceeding, including any attachments to a written communication or 
documents shown in connection with an oral presentation directed to the 
merits or outcome of a proceeding. Excluded from this term are 
communications which are inadvertently or casually made, inquiries 
concerning compliance with procedural requirements if the procedural 
matter is not an area of controversy in the proceeding, statements made 
by decisionmakers that are limited to providing publicly available 
information about pending proceedings, and inquiries relating solely to 
the status of a proceeding, including

[[Page 315]]

inquiries as to the approximate time that action in a proceeding may be 
taken. However, a status inquiry which states or implies a view as to 
the merits or outcome of the proceeding or a preference for a particular 
party, which states why timing is important to a particular party or 
indicates a view as to the date by which a proceeding should be 
resolved, or which otherwise is intended to address the merits or 
outcome or to influence the timing of a proceeding is a presentation.

    Note to paragraph (a):
    A communication expressing concern about administrative delay or 
expressing concern that a proceeding be resolved expeditiously will be 
treated as a permissible status inquiry so long as no reason is given as 
to why the proceeding should be expedited other than the need to resolve 
administrative delay, no view is expressed as to the merits or outcome 
of the proceeding, and no view is expressed as to a date by which the 
proceeding should be resolved. A presentation by a party in a restricted 
proceeding not designated for hearing requesting action by a particular 
date or giving reasons that a proceeding should be expedited other than 
the need to avoid administrative delay (and responsive presentations by 
other parties) may be made on an ex parte basis subject to the 
provisions of Sec. 1.1204(a)(11).

    (b) Ex parte presentation. Any presentation which:
    (1) If written, is not served on the parties to the proceeding; or
    (2) If oral, is made without advance notice to the parties and 
without opportunity for them to be present.

    Note to paragraph (b):
    Written communications include electronic submissions transmitted in 
the form of texts, such as by Internet electronic mail.

    (c) Decision-making personnel. Any member, officer, or employee of 
the Commission, or, in the case of a Joint Board, its members or their 
staffs, who is or may reasonably be expected to be involved in 
formulating a decision, rule, or order in a proceeding. Any person who 
has been made a party to a proceeding or who otherwise has been excluded 
from the decisional process shall not be treated as a decision-maker 
with respect to that proceeding. Thus, any person designated as part of 
a separate trial staff shall not be considered a decision-making person 
in the designated proceeding. Unseparated Bureau or Office staff shall 
be considered decision-making personnel with respect to decisions, 
rules, and orders in which their Bureau or Office participates in 
enacting, preparing, or reviewing.
    (d) Party. Unless otherwise ordered by the Commission, the following 
persons are parties:
    (1) In a proceeding not designated for hearing, any person who files 
an application, waiver request, petition, motion, request for a 
declaratory ruling, or other filing seeking affirmative relief 
(including a Freedom of Information Act request), and any person (other 
than an individual viewer or listener filing comments regarding a 
pending broadcast application or members of Congress or their staffs or 
branches of the federal government or their staffs) filing a written 
submission referencing and regarding such pending filing which is served 
on the filer, or, in the case of an application, any person filing a 
mutually exclusive application;
    Note 1 to paragraph (d)(1):
    Persons who file mutually exclusive applications for services that 
the Commission has announced will be subject to competitive bidding or 
lotteries shall not be deemed parties with respect to each others' 
applications merely because their applications are mutually exclusive. 
Therefore, such applicants may make presentations to the Commission 
about their own applications provided that no one has become a party 
with respect to their application by other means, e.g., by filing a 
petition or other opposition against the applicant or an associated 
waiver request, if the petition or opposition has been served on the 
applicant.
    (2) Any person who files a complaint or request to revoke a license 
or other authorization or for an order to show cause which shows that 
the complainant has served it on the subject of the complaint or which 
is a formal complaint under 47 U.S.C. 208 and Sec. 1.721 of this 
chapter or 47 U.S.C. 255 and either Sec. Sec. 6.21 or 7.21 of this 
chapter, and the person who is the subject of such a complaint or 
request that shows service or is a formal complaint under 47 U.S.C. 208 
and Sec. 1.721 of this chapter or 47 U.S.C. 255 and either Sec. Sec. 
6.21 or 7.21 of this chapter;
    (3) The subject of an order to show cause, hearing designation 
order, notice of apparent liability, or similar

[[Page 316]]

notice or order, or petition for such notice or order;
    (4) In a proceeding designated for hearing, any person who has been 
given formal party status; and
    (5) In an informal rulemaking proceeding conducted under section 553 
of the Administrative Procedure Act (other than a proceeding for the 
allotment of a broadcast channel) or a proceeding before a Joint Board 
or before the Commission to consider the recommendation of a Joint 
Board, members of the general public after the issuance of a notice of 
proposed rulemaking or other order as provided under Sec. 1.1206(a) (1) 
or (2).
    (6) In an informal rulemaking proceeding conducted under section 553 
of the Administrative Procedure Act (other than a proceeding for the 
allotment of a broadcast channel) or a proceeding before a Joint Board 
or before the Commission to consider the recommendation of a Joint 
Board, members of the general public after the issuance of a notice of 
proposed rulemaking or other order as provided under Sec. 1.1206(a) (1) 
or (2).

    Note 2 to paragraph (d):
    To be deemed a party, a person must make the relevant filing with 
the Secretary, the relevant Bureau or Office, or the Commission as a 
whole. Written submissions made only to the Chairman or individual 
Commissioners will not confer party status.
    Note 3 to paragraph (d):
    The fact that a person is deemed a party for purposes of this 
subpart does not constitute a determination that such person has 
satisfied any other legal or procedural requirements, such as the 
operative requirements for petitions to deny or requirements as to 
timeliness. Nor does it constitute a determination that such person has 
any other procedural rights, such as the right to intervene in hearing 
proceedings. The Commission or the staff may also determine in 
particular instances that persons who qualify as ``parties'' under Sec. 
1.1202(d) should nevertheless not be deemed parties for purposes of this 
subpart.
    Note 4 to paragraph (d):
    Individual listeners or viewers submitting comments regarding a 
pending broadcast application pursuant to Sec. 1.1204(a)(8) will not 
become parties simply by service of the comments. The Media Bureau may, 
in its discretion, make such a commenter a party, if doing so would be 
conducive to the Commission's consideration of the application or would 
otherwise be appropriate.
    Note 5 to paragraph (d):
    A member of Congress or his or her staff, or other agencies or 
branches of the federal government or their staffs will not become a 
party by service of a written submission regarding a pending proceeding 
that has not been designated for hearing unless the submission 
affirmatively seeks and warrants grant of party status.

    (e) Matter designated for hearing. Any matter that has been 
designated for hearing before an administrative law judge or which is 
otherwise designated for hearing in accordance with procedures in 5 
U.S.C. 554.

[62 FR 15854, Apr. 3, 1997, as amended at 64 FR 68947, Dec. 9, 1999; 64 
FR 72571, Dec. 28, 1999; 65 FR 56261, Sept. 18, 2000; 67 FR 13224, Mar. 
21, 2002]

                       Sunshine Period Prohibition



Sec. 1.1203  Sunshine period prohibition.

    (a) With respect to any Commission proceeding, all presentations to 
decisionmakers concerning matters listed on a Sunshine Agenda, whether 
ex parte or not, are prohibited during the period prescribed in 
paragraph (b) of this section unless:
    (1) The presentation is exempt under Sec. 1.1204(a);
    (2) The presentation relates to settlement negotiations and 
otherwise complies with any ex parte restrictions in this subpart;
    (3) The presentation occurs in the course of a widely attended 
speech or panel discussion and concerns a Commission action in an exempt 
or a permit-but-disclose proceeding that has been adopted (not including 
private presentations made on the site of a widely attended speech or 
panel discussion); or
    (4) The presentation is made by a member of Congress or his or her 
staff, or by other agencies or branches of the Federal government or 
their staffs in a proceeding exempt under Sec. 1.1204 or subject to 
permit-but-disclose requirements under Sec. 1.1206. If the presentation 
is of substantial significance and clearly intended to affect the 
ultimate decision, the presentation (or, if oral, a summary of the 
presentation) must be placed in the record of the proceeding by 
Commission staff or by the presenter in accordance with the procedures 
set forth in Sec. 1.1206(b).

[[Page 317]]

    (b) The prohibition set forth in paragraph (a) of this section 
applies from the release of a public notice that a matter has been 
placed on the Sunshine Agenda until the Commission:
    (1) Releases the text of a decision or order relating to the matter;
    (2) Issues a public notice stating that the matter has been deleted 
from the Sunshine Agenda; or
    (3) Issues a public notice stating that the matter has been returned 
to the staff for further consideration, whichever occurs first.

[62 FR 15855, Apr. 3, 1997, as amended at 64 FR 68947, Dec. 9, 1999]

                           General Exemptions



Sec. 1.1204  Exempt ex parte presentations and proceedings.

    (a) Exempt ex parte presentations. The following types of 
presentations are exempt from the prohibitions in restricted proceedings 
(Sec. 1.1208), the disclosure requirements in permit-but-disclose 
proceedings (Sec. 1.1206), and the prohibitions during the Sunshine 
Agenda period prohibition (Sec. 1.1203):
    (1) The presentation is authorized by statute or by the Commission's 
rules to be made without service, see, e.g., Sec. 1.333(d), or involves 
the filing of required forms;
    (2) The presentation is made by or to the General Counsel and his or 
her staff and concerns judicial review of a matter that has been decided 
by the Commission;
    (3) The presentation directly relates to an emergency in which the 
safety of life is endangered or substantial loss of property is 
threatened, provided that, if not otherwise submitted for the record, 
Commission staff promptly places the presentation or a summary of the 
presentation in the record and discloses it to other parties as 
appropriate.
    (4) The presentation involves a military or foreign affairs function 
of the United States or classified security information;
    (5) The presentation is to or from an agency or branch of the 
Federal Government or its staff and involves a matter over which that 
agency or branch and the Commission share jurisdiction provided that, 
any new factual information obtained through such a presentation that is 
relied on by the Commission in its decision-making process will, if not 
otherwise submitted for the record, be disclosed by the Commission no 
later than at the time of the release of the Commission's decision;
    (6) The presentation is to or from the United States Department of 
Justice or Federal Trade Commission and involves a telecommunications 
competition matter in a proceeding which has not been designated for 
hearing and in which the relevant agency is not a party or commenter (in 
an informal rulemaking or Joint board proceeding) provided that, any new 
factual information obtained through such a presentation that is relied 
on by the Commission in its decision-making process will be disclosed by 
the Commission no later than at the time of the release of the 
Commission's decision;

    Note 1 to paragraph (a):
    Under paragraphs (a)(5) and (a)(6) of this section, information will 
be relied on and disclosure will be made only after advance coordination 
with the agency involved in order to ensure that the agency involved 
retains control over the timing and extent of any disclosure that may 
have an impact on that agency's jurisdictional responsibilities. If the 
agency involved does not wish such information to be disclosed, the 
Commission will not disclose it and will disregard it in its decision-
making process, unless it fits within another exemption not requiring 
disclosure (e.g., foreign affairs). The fact that an agency's views are 
disclosed under paragraphs (a)(5) and (a)(6) does not preclude further 
discussions pursuant to, and in accordance with, the exemption.

    (7) The presentation is between Commission staff and an advisory 
coordinating committee member with respect to the coordination of 
frequency assignments to stations in the private land mobile services or 
fixed services as authorized by 47 U.S.C. 332;
    (8) The presentation is a written presentation made by a listener or 
viewer of a broadcast station who is not a party under Sec. 
1.1202(d)(1), and the presentation relates to a pending application that 
has not been designated for hearing for a new or modified broadcast 
station or license, for renewal of a

[[Page 318]]

broadcast station license or for assignment or transfer of control of a 
broadcast permit or license;
    (9) The presentation is made pursuant to an express or implied 
promise of confidentiality to protect an individual from the possibility 
of reprisal, or there is a reasonable expectation that disclosure would 
endanger the life or physical safety of an individual;
    (10) The presentation is requested by (or made with the advance 
approval of) the Commission or staff for the clarification or adduction 
of evidence, or for resolution of issues, including possible settlement, 
subject to the following limitations:
    (i) This exemption does not apply to restricted proceedings 
designated for hearing;
    (ii) In restricted proceedings not designated for hearing, any new 
written information elicited from such request or a summary of any new 
oral information elicited from such request shall promptly be served by 
the person making the presentation on the other parties to the 
proceeding. Information relating to how a proceeding should or could be 
settled, as opposed to new information regarding the merits, shall not 
be deemed to be new information for purposes of this section. The 
Commission or its staff may waive the service requirement if service 
would be too burdensome because the parties are numerous or because the 
materials relating to such presentation are voluminous. If the service 
requirement is waived, copies of the presentation or summary shall be 
placed in the record of the proceeding and the Commission or its staff 
shall issue a public notice which states that copies of the presentation 
or summary are available for inspection. The Commission or its staff may 
determine that service or public notice would interfere with the 
effective conduct of an investigation and dispense with the service and 
public notice requirements;
    (iii) If the presentation is made in a proceeding subject to permit-
but-disclose requirements, disclosure of any new written information 
elicited from such request or a summary of any new oral information 
elicited from such request must be made in accordance with the 
requirements of Sec. 1.1206(b), provided, however, that the Commission 
or its staff may determine that disclosure would interfere with the 
effective conduct of an investigation and dispense with the disclosure 
requirement. As in paragraph (a)(10)(ii) of this section, information 
relating to how a proceeding should or could be settled, as opposed to 
new information regarding the merits, shall not be deemed to be new 
information for purposes of this section;

    Note 2 to paragraph (a):
    If the Commission or its staff dispenses with the service or notice 
requirement to avoid interference with an investigation, a determination 
will be made in the discretion of the Commission or its staff as to when 
and how disclosure should be made if necessary. See Amendment of Subpart 
H, Part I, 2 FCC Rcd 6053, 6054 ]] 10-14 (1987).

    (iv) If the presentation is made in a proceeding subject to the 
Sunshine period prohibition, disclosure must be made in accordance with 
the requirements of Sec. 1.1206(b) or by other adequate means of notice 
that the Commission deems appropriate;
    (v) In situations where new information regarding the merits is 
disclosed during settlement discussions, and the Commission or staff 
intends that the product of the settlement discussions will be disclosed 
to the other parties or the public for comment before any action is 
taken, the Commission or staff in its discretion may defer disclosure of 
such new information until comment is sought on the settlement proposal 
or the settlement discussions are terminated.
    (11) The presentation is an oral presentation in a restricted 
proceeding not designated for hearing requesting action by a particular 
date or giving reasons that a proceeding should be expedited other than 
the need to avoid administrative delay. A detailed summary of the 
presentation shall promptly be filed in the record and served by the 
person making the presentation on the other parties to the proceeding, 
who may respond in support or opposition to the request for expedition, 
including by oral ex parte presentation, subject to the same service 
requirement.
    (12) The presentation is between Commission staff and:

[[Page 319]]

    (i) The administrator of the interstate telecommunications relay 
services fund relating to administration of the telecommunications relay 
services fund pursuant to 47 U.S.C. 225;
    (ii) The North American Numbering Plan Administrator or the North 
American Numbering Plan Billing and Collection Agent relating to the 
administration of the North American Numbering Plan pursuant to 47 
U.S.C. 251(e);
    (iii) The Universal Service Administrative Company relating to the 
administration of universal service support mechanisms pursuant to 47 
U.S.C. 254; or
    (iv) The Number Portability Administrator relating to the 
administration of local number portability pursuant to 47 U.S.C. 
251(b)(2) and (e); provided that the relevant administrator has not 
filed comments or otherwise participated as a party in the proceeding.
    (b) Exempt proceedings. Unless otherwise provided by the Commission 
or the staff pursuant to Sec. 1.1200(a), ex parte presentations to or 
from Commission decision-making personnel are permissible and need not 
be disclosed with respect to the following proceedings, which are 
referred to as ``exempt'' proceedings:
    (1) A notice of inquiry proceeding;
    (2) A petition for rulemaking, except for a petition requesting the 
allotment of a broadcast channel (see also Sec. 1.1206(a)(1)), or other 
request that the Commission modify its rules, issue a policy statement 
or issue an interpretive rule, or establish a Joint Board;
    (3) A tariff proceeding (including directly associated waiver 
requests or requests for special permission) prior to it being set for 
investigation (see also Sec. 1.1206(a)(4));
    (4) A proceeding relating to prescription of common carrier 
depreciation rates under section 220(b) of the Communications Act prior 
to release of a public notice of specific proposed depreciation rates 
(see also Sec. 1.1206(a)(9));
    (5) An informal complaint proceeding under 47 U.S.C. 208 and Sec. 
1.717 of this chapter or 47 U.S.C. 255 and either Sec. Sec. 6.17 or 
7.17 of this chapter; and
    (6) A complaint against a cable operator regarding its rates that is 
not filed on the standard complaint form required by Sec. 76.951 of 
this chapter (FCC Form 329).

    Notes 1-3 to paragraph (b):
    [Reserved]
    Note 4 to paragraph (b):
    In the case of petitions for rulemaking that seek Commission 
preemption of state or local regulatory authority, the petitioner must 
serve the original petition on any state or local government, the 
actions of which are specifically cited as a basis for requesting 
preemption. Service should be made on those bodies within the state or 
local governments that are legally authorized to accept service of legal 
documents in a civil context. Such pleadings that are not served will be 
dismissed without consideration as a defective pleading and treated as a 
violation of the ex parte rules unless the Commission determines that 
the matter should be entertained by making it part of the record under 
Sec. 1.1212(d) and the parties are so informed.

[62 FR 15855, Apr. 3, 1997, as amended at 64 FR 63251, Nov. 19, 1999; 64 
FR 68948, Dec. 9, 1999]

                       Non-Restricted Proceedings



Sec. 1.1206  Permit-but-disclose proceedings.

    (a) Unless otherwise provided by the Commission or the staff 
pursuant to Sec. 1.1200(a), until the proceeding is no longer subject 
to administrative reconsideration or review or to judicial review, ex 
parte presentations (other than ex parte presentations exempt under 
Sec. 1.1204(a)) to or from Commission decision-making personnel are 
permissible in the following proceedings, which are referred to as 
permit-but-disclose proceedings, provided that ex parte presentations to 
Commission decision-making personnel are disclosed pursuant to paragraph 
(b) of this section:
    Note 1 to paragraph (a):
    In the case of petitions for declaratory ruling that seek Commission 
preemption of state or local regulatory authority and petitions for 
relief under 47 U.S.C. 332(c)(7)(B)(v), the petitioner must serve the 
original petition on any state or local government, the actions of which 
are specifically cited as a basis for requesting preemption. Service 
should be made on those bodies within the state or local governments 
that are legally authorized to accept service of legal documents in a 
civil context. Such pleadings that are not served will be dismissed 
without consideration as a defective pleading and treated as a violation 
of the ex parte rules unless the Commission determines that the matter 
should be entertained by making it part of

[[Page 320]]

the record under Sec. 1.1212(d) and the parties are so informed.

    (1) An informal rulemaking proceeding conducted under section 553 of 
the Administrative Procedure Act other than a proceeding for the 
allotment of a broadcast channel, upon release of a Notice of Proposed 
Rulemaking (see also Sec. 1.1204(b)(2));
    (2) A proceeding involving a rule change, policy statement or 
interpretive rule adopted without a Notice of Proposed Rule Making upon 
release of the order adopting the rule change, policy statement or 
interpretive rule;
    (3) A declaratory ruling proceeding;
    (4) A tariff proceeding which has been set for investigation under 
section 204 or 205 of the Communications Act (including directly 
associated waiver requests or requests for special permission) (see also 
Sec. 1.1204(b)(4));
    (5) Unless designated for hearing, a proceeding under section 214(a) 
of the Communications Act that does not also involve applications under 
Title III of the Communications Act (see also Sec. 1.1208);
    (6) Unless designated for hearing, a proceeding involving an 
application for a Cable Landing Act license that does not also involve 
applications under Title III of the Communications Act (see also Sec. 
1.1208);
    (7) A proceeding involving a request for information filed pursuant 
to the Freedom of Information Act;

    Note 2 to paragraph (a):
    Where the requested information is the subject of a request for 
confidentiality, the person filing the request for confidentiality shall 
be deemed a party.

    (8) A proceeding before a Joint Board or a proceeding before the 
Commission involving a recommendation from a Joint Board;
    (9) A proceeding conducted pursuant to section 220(b) of the 
Communications Act for prescription of common carrier depreciation rates 
upon release of a public notice of specific proposed depreciation rates 
(see also Sec. 1.1204(b)(4));
    (10) A proceeding to prescribe a rate of return for common carriers 
under section 205 of the Communications Act; and
    (11) A cable rate complaint proceeding pursuant to section 623(c) of 
the Communications Act where the complaint is filed on FCC Form 329.
    (12) A modification request filed pursuant to Sec. 64.1001 of this 
chapter;
    (13) Applications by Bell Operating Companies to provide in-region, 
interLATA services pursuant to Sec. 271(d) of the Communications Act; 
and
    (14) Petitions for Commission preemption of authority to review 
interconnection agreements under Sec. 252(e)(5) of the Communications 
Act and petitions for preemption under Sec. 253 of the Communications 
Act.

    Note 3 to paragraph (a):
    In a permit-but-disclose proceeding involving only one ``party,'' as 
defined in Sec. 1.1202(d) of this section, the party and the Commission 
may freely make presentations to each other and need not comply with the 
disclosure requirements of paragraph (b) of this section.

    (b) The following disclosure requirements apply to ex parte 
presentations in permit but disclose proceedings:
    (1) Written presentations. A person who makes a written ex parte 
presentation subject to this section shall, no later than the next 
business day after the presentation, submit two copies of the 
presentation to the Commission's secretary under separate cover for 
inclusion in the public record. The presentation (and cover letter) 
shall clearly identify the proceeding to which it relates, including the 
docket number, if any, shall indicate that two copies have been 
submitted to the Secretary, and must be labeled as an ex parte 
presentation. If the presentation relates to more than one proceeding, 
two copies shall be filed for each proceeding. Alternatively, in 
rulemaking proceedings governed by Sec. 1.49(f), the person making the 
presentation may file one copy of the presentation electronically; no 
additional paper copies need to be filed.
    (2) Oral presentations. A person who makes an oral ex parte 
presentation subject to this section that presents data or arguments not 
already reflected in that person's written comments, memoranda or other 
filings in that proceeding shall, no later than the next business day 
after the presentation, submit to the Commission's Secretary, an 
original and one copy of a memorandum which summarizes the

[[Page 321]]

new data or arguments. Except in proceedings subject to Sec. 1.49(f) in 
which pleadings are filed electronically, a copy of the memorandum must 
also be submitted to the Commissioners or Commission employees involved 
in the oral presentation. In proceedings governed by Sec. 1.49(f), the 
person making the presentation may, alternatively, electronically file 
one copy of the memorandum, which will be available to Commissioners and 
Commission employees involved in the presentation through the 
Commission's electronic comment filing system. Memoranda must contain a 
summary of the substance of the ex parte presentation and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented is generally required. 
The memorandum (and cover letter) shall clearly identify the proceeding 
to which it relates, including the docket number, if any, shall indicate 
that an original and one copy have been submitted to the Secretary or 
that one copy has been filed electronically, and must be labeled as an 
ex parte presentation. If the presentation relates to more than one 
proceeding, two copies of the memorandum (or an original and one copy) 
shall be filed for each proceeding.

    Note 1 to paragraph (b):
    Where, for example, presentations occur in the form of discussion at 
a widely attended meeting, preparation of a memorandum as specified in 
the rule might be cumbersome. Under these circumstances, the rule may be 
satisfied by submitting a transcript or tape recording of the discussion 
as an alternative to a memorandum.

    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, in 
permit-but-disclose proceedings presentations made by members of 
Congress or their staffs or by an agency or branch of the Federal 
Government or its staff shall be treated as ex parte presentations only 
if the presentations are of substantial significance and clearly 
intended to affect the ultimate decision. The Commission staff shall 
prepare a written summary of any such oral presentations and place them 
in the record in accordance with paragraph (b)(2) of this section and 
place any such written presentations in the record in accordance with 
paragraph (b)(1) of this section.
    (4) Notice of ex parte presentations. The Commission's Secretary or, 
in the case of non-docketed proceedings, the relevant Bureau or Office 
shall place in the public file or record of the proceeding written ex 
parte presentations and memoranda reflecting oral ex parte 
presentations. The Secretary shall issue a public notice listing any 
written ex parte presentations or written summaries of oral ex parte 
presentations received by his or her office relating to any permit-but-
disclose proceeding. Such public notices should generally be released at 
least twice per week.

    Note 2 to paragraph (b):
    Interested persons should be aware that some ex parte filings, for 
example, those not filed in accordance with the requirements of this 
paragraph (b), might not be placed on the referenced public notice. All 
ex parte presentations and memoranda filed under this section will be 
available for public inspection in the public file or record of the 
proceeding, and parties wishing to ensure awareness of all filings 
should review the public file or record.
    Note 3 to paragraph (b):
    As a matter of convenience, the Secretary may also list on the 
referenced public notices materials, even if not ex parte presentations, 
that are filed after the close of the reply comment period or, if the 
matter is on reconsideration, the reconsideration reply comment period.

[62 FR 15856, Apr. 3, 1997, as amended at 63 FR 24126, May 1, 1998; 64 
FR 68948, Dec. 9, 1999; 66 FR 3501, Jan. 16, 2001]

                         Restricted Proceedings



Sec. 1.1208  Restricted proceedings.

    Unless otherwise provided by the Commission or its staff pursuant to 
Sec. 1.1200(a) of this section, ex parte presentations (other than ex 
parte presentations exempt under Sec. 1.1204(a) of this section) to or 
from Commission decision-making personnel are prohibited in all 
proceedings not listed as exempt in Sec. 1.1204(b) or permit-but-
disclose in Sec. 1.1206(a) of this section until the proceeding is no 
longer subject to administrative reconsideration or review or judicial 
review. Proceedings in which ex parte presentations are prohibited, 
referred to as ``restricted'' proceedings,

[[Page 322]]

include, but are not limited to, all proceedings that have been 
designated for hearing, proceedings involving amendments to the 
broadcast table of allotments, applications for authority under Title 
III of the Communications Act, and all waiver proceedings (except for 
those directly associated with tariff filings).

    Note 1 to Sec. 1.1208: In a restricted proceeding involving only 
one ``party,'' as defined in Sec. 1.1202(d), the party and the 
Commission may freely make presentations to each other because there is 
no other party to be served or with a right to have an opportunity to be 
present. See Sec. 1.1202(b). Therefore, to determine whether 
presentations are permissible in a restricted proceeding without service 
or notice and an opportunity for other parties to be present the 
definition of a ``party'' should be consulted.

    Examples: After the filing of an uncontested application or waiver 
request, the applicant or other filer would be the sole party to the 
proceeding. The filer would have no other party to serve with or give 
notice of any presentations to the Commission, and such presentations 
would therefore not be ``ex parte presentations'' as defined by Sec. 
1.1202(b) and would not be prohibited. On the other hand, in the example 
given, because the filer is a party, a third person who wished to make a 
presentation to the Commission concerning the application or waiver 
request would have to serve or notice the filer. Further, once the 
proceeding involved additional ``parties'' as defined by Sec. 1.1202(d) 
(e.g., an opponent of the filer who served the opposition on the filer), 
the filer and other parties would have to serve or notice all other 
parties.

    Note 2 to Sec. 1.1208: Consistent with Sec. 1.1200(a), the 
Commission or its staff may determine that a restricted proceeding not 
designated for hearing involves primarily issues of broadly applicable 
policy rather than the rights and responsibilities of specific parties 
and specify that the proceeding will be conducted in accordance with the 
provisions of Sec. 1.1206 governing permit-but-disclose proceedings.

[62 FR 15857, Apr. 3, 1997, as amended at 64 FR 68948, Dec. 9, 1999]

              Prohibition on Solicitation of Presentations



Sec. 1.1210  Prohibition on solicitation of presentations.

    No person shall solicit or encourage others to make any improper 
presentation under the provisions of this section.

[64 FR 68949, Dec. 9, 1999]

      Procedures for Handling of Prohibited Ex Parte Presentations



Sec. 1.1212  Procedures for handling of prohibited ex parte presentations.

    (a) Commission personnel who believe that an oral presentation which 
is being made to them or is about to be made to them is prohibited shall 
promptly advise the person initiating the presentation that it is 
prohibited and shall terminate the discussion.
    (b) Commission personnel who receive oral ex parte presentations 
which they believe are prohibited shall forward to the Office of General 
Counsel a statement containing the following information:
    (1) The name of the proceeding;
    (2) The name and address of the person making the presentation and 
that person's relationship (if any) to the parties to the proceeding;
    (3) The date and time of the presentation, its duration, and the 
circumstances under which it was made;
    (4) A full summary of the substance of the presentation;
    (5) Whether the person making the presentation persisted in doing so 
after being advised that the presentation was prohibited; and
    (6) The date and time that the statement was prepared.
    (c) Commission personnel who receive written ex parte presentations 
which they believe are prohibited shall forward them to the Office of 
General Counsel. If the circumstances in which the presentation was made 
are not apparent from the presentation itself, a statement describing 
those circumstances shall be submitted to the Office of General Counsel 
with the presentation.
    (d) Prohibited written ex parte presentations and all documentation 
relating to prohibited written and oral ex parte presentations shall be 
placed in a public file which shall be associated with but not made part 
of the record of the proceeding to which the presentations pertain. Such 
materials may be considered in determining the merits of a restricted 
proceeding only if they

[[Page 323]]

are made part of the record and the parties are so informed.
    (e) If the General Counsel determines that an ex parte presentation 
or presentation during the Sunshine period is prohibited by this 
subpart, he or she shall notify the parties to the proceeding that a 
prohibited presentation has occurred and shall serve on the parties 
copies of the presentation (if written) and any statements describing 
the circumstances of the presentation. Service by the General Counsel 
shall not be deemed to cure any violation of the rules against 
prohibited ex parte presentations.
    (f) If the General Counsel determines that service on the parties 
would be unduly burdensome because the parties to the proceeding are 
numerous, he or she may issue a public notice in lieu of service. The 
public notice shall state that a prohibited presentation has been made 
and may also state that the presentation and related materials are 
available for public inspection.
    (g) The General Counsel shall forward a copy of any statement 
describing the circumstances in which the prohibited ex parte 
presentation was made to the person who made the presentation. Within 
ten days thereafter, the person who made the presentation may file with 
the General Counsel a sworn declaration regarding the presentation and 
the circumstances in which it was made. The General Counsel may serve 
copies of the sworn declaration on the parties to the proceeding.
    (h) Where a restricted proceeding precipitates a substantial amount 
of correspondence from the general public, the procedures in paragraphs 
(c) through (g) of this section will not be followed with respect to 
such correspondence. The correspondence will be placed in a public file 
and be made available for public inspection.

[62 FR 15857, Apr. 3, 1997]



Sec. 1.1214  Disclosure of information concerning violations of this 
subpart.

    Any party to a proceeding or any Commission employee who has 
substantial reason to believe that any violation of this subpart has 
been solicited, attempted, or committed shall promptly advise the Office 
of General Counsel in writing of all the facts and circumstances which 
are known to him or her.

[62 FR 15858, Apr. 3, 1997]

                                Sanctions



Sec. 1.1216  Sanctions.

    (a) Parties. Upon notice and hearing, any party to a proceeding who 
directly or indirectly violates or causes the violation of any provision 
of this subpart, or who fails to report the facts and circumstances 
concerning any such violation as required by this subpart, may be 
disqualified from further participation in that proceeding. In 
proceedings other than a rulemaking, a party who has violated or caused 
the violation of any provision of this subpart may be required to show 
cause why his or her claim or interest in the proceeding should not be 
dismissed, denied, disregarded, or otherwise adversely affected. In any 
proceeding, such alternative or additional sanctions as may be 
appropriate may also be imposed.
    (b) Commission personnel. Commission personnel who violate 
provisions of this subpart may be subject to appropriate disciplinary or 
other remedial action as provided in part 19 of this chapter.
    (c) Other persons. Such sanctions as may be appropriate under the 
circumstances shall be imposed upon other persons who violate the 
provisions of this subpart.

[62 FR 15858, Apr. 3, 1997]



Subpart I_Procedures Implementing the National Environmental Policy Act 
                                 of 1969

    Source: 51 FR 15000, Apr. 22, 1986, unless otherwise noted.



Sec. 1.1301  Basis and purpose.

    The provisions of this subpart implement Subchapter I of the 
National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321-
4335.



Sec. 1.1302  Cross-reference; Regulations of the Council on Environmental 
Quality.

    A further explanation regarding implementation of the National 
Environmental Policy Act is provided by the

[[Page 324]]

regulations issued by the Council on Environmental Quality, 40 CFR 1500-
1508.28.



Sec. 1.1303  Scope.

    The provisions of this subpart shall apply to all Commission actions 
that may or will have a significant impact on the quality of the human 
environment. To the extent that other provisions of the Commission's 
rules and regulations are inconsistent with the subpart, the provisions 
of this subpart shall govern.

[55 FR 20396, May 16, 1990]



Sec. 1.1304  Information and assistance.

    For general information and assistance concerning the provisions of 
this subpart, the Office of General Counsel may be contacted, (202) 632-
6990. For more specific information, the Bureau responsible for 
processing a specific application should be contacted.



Sec. 1.1305  Actions which normally will have a significant impact upon 
the environment, for which Environmental Impact Statements must be prepared.

    Any Commission action deemed to have a significant effect upon the 
quality of the human environment requires the preparation of a Draft 
Environmental Impact Statement (DEIS) and Final Environmental Impact 
Statement (FEIS) (collectively referred to as EISs) (see Sec. Sec. 
1.1314, 1.1315 and 1.1317). The Commission has reviewed representative 
actions and has found no common pattern which would enable it to specify 
actions that will thus automatically require EISs.

    Note: Our current application forms refer applicants to Sec. 1.1305 
to determine if their proposals are such that the submission of 
environmental information is required (see Sec. 1.1311). Until the 
application forms are revised to reflect our new environmental rules, 
applicants should refer to Sec. 1.1307. Section 1.1307 now delineates 
those actions for which applicants must submit environmental 
information.



Sec. 1.1306  Actions which are categorically excluded from environmental 
processing.

    (a) Except as provided in Sec. 1.1307 (c) and (d), Commission 
actions not covered by Sec. 1.1307 (a) and (b) are deemed individually 
and cumulatively to have no significant effect on the quality of the 
human environment and are categorically excluded from environmental 
processing.
    (b) Specifically, any Commission action with respect to any new 
application, or minor or major modifications of existing or authorized 
facilities or equipment, will be categorically excluded, provided such 
proposals do not:
    (1) Involve a site location specified under Sec. 1.1307(a) (1)-(7), 
or
    (2) Involve high intensity lighting under Sec. 1.1307(a)(8).
    (3) Result in human exposure to radiofrequency radiation in excess 
of the applicable safety standards specified in Sec. 1.1307(b).

    Note 1: The provisions of Sec. 1.1307(a) of this part requiring the 
preparation of EAs do not encompass the mounting of antenna(s) on an 
existing building or antenna tower unless Sec. 1.1307(a)(4) of this 
part is applicable. Such antennas are subject to Sec. 1.1307(b) of this 
part and require EAs if their construction would result in human 
exposure to radiofrequency radiation in excess of the applicable health 
and safety guidelines cited in Sec. 1.1307(b) of this part. The 
provisions of Sec. 1.1307 (a) and (b) of this part do not encompass the 
installation of aerial wire or cable over existing aerial corridors of 
prior or permitted use or the underground installation of wire or cable 
along existing underground corridors of prior or permitted use, 
established by the applicant or others. The use of existing buildings, 
towers or corridors is an environmentally desirable alternative to the 
construction of new facilities and is encouraged. The provisions of 
Sec. 1.1307(a) and (b) of this part do not encompass the construction 
of new submarine cable systems.
    Note 2: The specific height of an antenna tower or supporting 
structure, as well as the specific diameter of a satellite earth 
station, in and of itself, will not be deemed sufficient to warrant 
environmental processing, see Sec. Sec. 1.1307 and 1.1308.
    Note 3: The construction of an antenna tower or supporting structure 
in an established ``antenna farm'': (i.e., an area in which similar 
antenna towers are clustered, whether or not such area has been 
officially designated as an antenna farm), will be categorically 
excluded unless one or more of the antennas to be mounted on the tower 
or structure are subject to the provisions of Sec. 1.1307(b) and the 
additional radiofrequency radiation from the antenna(s) on the new tower 
or structure would cause human exposure in excess of

[[Page 325]]

the applicable health and safety guidelines cited in Sec. 1.1307(b).

[51 FR 15000, Apr. 22, 1986, as amended at 51 FR 18889, May 23, 1986; 53 
FR 28393, July 28, 1988; 56 FR 13414, Apr. 2, 1991; 64 FR 19061, Apr. 
19, 1999]



Sec. 1.1307  Actions that may have a significant environmental effect, for 
which Environmental Assessments (EAs) must be prepared.

    (a) Commission actions with respect to the following types of 
facilities may significantly affect the environment and thus require the 
preparation of EAs by the applicant (see Sec. Sec. 1.1308 and 1.1311) 
and may require further Commission environmental processing (see 
Sec. Sec. 1.1314, 1.1315 and 1.1317):
    (1) Facilities that are to be located in an officially designated 
wilderness area.
    (2) Facilities that are to be located in an officially designated 
wildlife preserve.
    (3) Facilities that: (i) May affect listed threatened or endangered 
species or designated critical habitats; or (ii) are likely to 
jeopardize the continued existence of any proposed endangered or 
threatened species or likely to result in the destruction or adverse 
modification of proposed critical habitats, as determined by the 
Secretary of the Interior pursuant to the Endangered Species Act of 
1973.

    Note: The list of endangered and threatened species is contained in 
50 CFR 17.11, 17.22, 222.23(a) and 227.4. The list of designated 
critical habitats is contained in 50 CFR 17.95, 17.96 and part 226. To 
ascertain the status of proposed species and habitats, inquiries may be 
directed to the Regional Director of the Fish and Wildlife Service, 
Department of the Interior.

    (4) Facilities that may affect districts, sites, buildings, 
structures or objects, significant in American history, architecture, 
archeology, engineering or culture, that are listed, or are eligible for 
listing, in the National Register of Historic Places. (See 16 U.S.C. 
470w(5); 36 CFR 60 and 800.)

    Note: The National Register is updated and re-published in the 
Federal Register each year in February. To ascertain whether a proposal 
affects a historical property of national significance, inquiries also 
may be made to the appropriate State Historic Preservation Officer, see 
16 U.S.C. 470a(b); 36 CFR parts 63 and 800.

    (5) Facilities that may affect Indian religious sites.
    (6) Facilities to be located in a flood Plain (See Executive Order 
11988.)
    (7) Facilities whose construction will involve significant change in 
surface features (e.g., wetland fill, deforestation or water diversion). 
(In the case of wetlands on Federal property, see Executive Order 
11990.)
    (8) Antenna towers and/or supporting structures that are to be 
equipped with high intensity white lights which are to be located in 
residential neighborhoods, as defined by the applicable zoning law.
    (b) In addition to the actions listed in paragraph (a) of this 
section, Commission actions granting construction permits, licenses to 
transmit or renewals thereof, equipment authorizations or modifications 
in existing facilities, require the preparation of an Environmental 
Assessment (EA) if the particular facility, operation or transmitter 
would cause human exposure to levels of radiofrequency radiation in 
excess of the limits in Sec. Sec. 1.1310 and 2.1093 of this chapter. 
Applications to the Commission for construction permits, licenses to 
transmit or renewals thereof, equipment authorizations or modifications 
in existing facilities must contain a statement confirming compliance 
with the limits unless the facility, operation, or transmitter is 
categorically excluded, as discussed below. Technical information 
showing the basis for this statement must be submitted to the Commission 
upon request. Such compliance statements may be omitted from license 
applications for transceivers subject to the certification requirement 
in Sec. 25.129 of this chapter.
    (1) The appropriate exposure limits in Sec. Sec. 1.1310 and 2.1093 
of this chapter are generally applicable to all facilities, operations 
and transmitters regulated by the Commission. However, a determination 
of compliance with the exposure limits in Sec. 1.1310 or Sec. 2.1093 
of this chapter (routine environmental evaluation), and preparation of 
an EA if the limits are exceeded, is necessary only for facilities, 
operations and transmitters that fall into the categories listed

[[Page 326]]

in table 1, or those specified in paragraph (b)(2) of this section. All 
other facilities, operations and transmitters are categorically excluded 
from making such studies or preparing an EA, except as indicated in 
paragraphs (c) and (d) of this section. For purposes of table 1, 
building-mounted antennas means antennas mounted in or on a building 
structure that is occupied as a workplace or residence. The term power 
in column 2 of table 1 refers to total operating power of the 
transmitting operation in question in terms of effective radiated power 
(ERP), equivalent isotropically radiated power (EIRP), or peak envelope 
power (PEP), as defined in Sec. 2.1 of this chapter. For the case of 
the Cellular Radiotelephone Service, subpart H of part 22 of this 
chapter; the Personal Communications Service, part 24 of this chapter 
and the Specialized Mobile Radio Service, part 90 of this chapter, the 
phrase total power of all channels in column 2 of table 1 means the sum 
of the ERP or EIRP of all co-located simultaneously operating 
transmitters owned and operated by a single licensee. When applying the 
criteria of table 1, radiation in all directions should be considered. 
For the case of transmitting facilities using sectorized transmitting 
antennas, applicants and licensees should apply the criteria to all 
transmitting channels in a given sector, noting that for a highly 
directional antenna there is relatively little contribution to ERP or 
EIRP summation for other directions.

   Table 1--Transmitters, Facilities and Operations Subject to Routine
                        Environmental Evaluation
------------------------------------------------------------------------
   Service (title 47 CFR rule part)          Evaluation required if
------------------------------------------------------------------------
Experimental Radio Services (part 5).  Power  100 W ERP (164
                                        W EIRP)
Multipoint Distribution Service        Non-building-mounted antennas:
 (subpart K of part 21).                height above ground level to
                                        lowest point of antenna < 10 m
                                        and power  1640 W
                                        EIRP
                                       Building-mounted antennas: power
                                         1640 W EIRP
                                       MDS licensees are required to
                                        attach a label to subscriber
                                        transceiver or transverter
                                        antennas that:
                                       (1) provides adequate notice
                                        regarding potential
                                        radiofrequency safety hazards,
                                        e.g., information regarding the
                                        safe minimum separation distance
                                        required between users and
                                        transceiver antennas; and
                                       (2) references the applicable FCC-
                                        adopted limits for
                                        radiofrequency exposure
                                        specified in Sec. 1.1310.
Paging and Radiotelephone Service      Non-building-mounted antennas:
 (subpart E of part 22).                height above ground level to
                                        lowest point of antenna < 10 m
                                        and power  1000 W ERP
                                        (1640 W EIRP)
                                       Building-mounted antennas: power
                                         1000 W ERP (1640 W
                                        EIRP)
Cellular Radiotelephone Service        Non-building-mounted antennas:
 (subpart H of part 22).                height above ground level to
                                        lowest point of antenna < 10 m
                                        and total power of all channels
                                         1000 W ERP (1640 W
                                        EIRP)
                                       Building-mounted antennas: total
                                        power of all channels  1000 W ERP (1640 W EIRP)
Personal Communications Services       (1) Narrowband PCS (subpart D):
 (part 24).                             non-building-mounted antennas:
                                        height above ground level to
                                        lowest point of antenna < 10 m
                                        and total power of all channels
                                         1000 W ERP (1640 W
                                        EIRP)
                                       Building-mounted antennas: total
                                        power of all channels  1000 W ERP (1640 W EIRP)
                                       (2) Broadband PCS (subpart E):
                                        non-building-mounted antennas:
                                        height above ground level to
                                        lowest point of antenna < 10 m
                                        and total power of all channels
                                         2000 W ERP (3280 W
                                        EIRP)
                                       Building-mounted antennas: total
                                        power of all channels  2000 W ERP (3280 W EIRP)
Satellite Communications (part 25)...  All included. In addition, for
                                        NGSO subscriber equipment,
                                        licensees are required to attach
                                        a label to subscriber
                                        transceiver antennas that:
                                       (1) provides adequate notice
                                        regarding potential
                                        radiofrequency safety hazards,
                                        e.g., information regarding the
                                        safe minimum separation distance
                                        required between users and
                                        transceiver antennas; and
                                       (2) references the applicable FCC-
                                        adopted limits for
                                        radiofrequency exposure
                                        specified in Sec. 1.1310 of
                                        this chapter.
General Wireless Communications        Total power of all channels  1640 W EIRP
Wireless Communications Service (Part  (1) for the 1390-1392 MHz, 1392-
 27).                                   1395 MHz, 1432-1435 MHz 1670-
                                        1675 MHz and 2385-2390 MHz
                                        bands:
                                       Non-building-mounted antennas:
                                        Height above ground level to
                                        lowest point of antenna < 10 m
                                        and total power of all channels
                                         2000 W ERP (3280 W
                                        EIRP).

[[Page 327]]

 
                                       Building-mounted antennas: Total
                                        power of all channels  2000 W ERP (3280 W EIRP).
                                       (2) for the 698-746 MHz, 746-764
                                        MHz, 776-794 MHz, 2305-2320 MHz,
                                        and 2345-2360 MHz bands.
                                       Total power of all channels  1000 W ERP (1640 W
                                        EIRP).
Radio Broadcast Services (part 73)...  All included
Experimental, auxiliary, and special   Subparts A, G, L: power  100 W ERP
 distributional services (part 74).    Subpart I: non-building-mounted
                                        antennas: height above ground
                                        level to lowest point of antenna
                                        < 10 m and power 
                                        1640 W EIRP
                                       Building-mounted antennas: power
                                         1640 W EIRP
                                       ITFS licensees are required to
                                        attach a label to subscriber
                                        transceiver or transverter
                                        antennas that:
                                       (1) provides adequate notice
                                        regarding potential
                                        radiofrequency safety hazards,
                                        e.g., information regarding the
                                        safe minimum separation distance
                                        required between users and
                                        transceiver antennas; and
                                       (2) references the applicable FCC-
                                        adopted limits for
                                        radiofrequency exposure
                                        specified in Sec. 1.1310.
Stations in the Maritime Services      Ship earth stations only
 (part 80).
Private Land Mobile Radio Services     Non-building-mounted antennas:
 Paging Operations (part 90).           height above ground level to
                                        lowest point of antenna < 10 m
                                        and power  1000 W ERP
                                        (1640 W EIRP)
                                       Building-mounted antennas: power
                                         1000 W ERP (1640 W
                                        EIRP)
Private Land Mobile Radio Services     Non-building-mounted antennas:
 Specialized Mobile Radio (part 90).    height above ground level to
                                        lowest point of antenna < 10 m
                                        and total power of all channels
                                         1000 W ERP (1640 W
                                        EIRP)
                                       Building-mounted antennas:
                                       Total power of all channels  1000 W ERP (1640 W EIRP)
Amateur Radio Service (part 97)......  Transmitter output power  levels specified in Sec.
                                        97.13(c)(1) of this chapter
Local Multipoint Distribution Service  Non-building-mounted antennas:
 (subpart L of part 101) and 24 GHz     height above ground level to
 (subpart G of part 101).               lowest point of antenna <10 m
                                        and power1640 W EIRP
                                       Building-mounted antennas: power
                                        1640 W EIRP LMDS and
                                        24 GHz Service licensees are
                                        required to attach a label to
                                        subscriber transceiver antennas
                                        that:
                                       (1) provides adequate notice
                                        regarding potential
                                        radiofrequency safety hazards,
                                        e.g., information regarding the
                                        safe minimum separation distance
                                        required between users and
                                        transceiver antennas; and
                                       (2) references the applicable FCC-
                                        adopted limits for radio-
                                        frequency exposure specified in
                                        Sec. 1.1310
70/80/90 GHz Bands (subpart Q of part  Non-building-mounted antennas:
 101).                                  height above ground level to
                                        lowest point of antenna < 10 m
                                        and power  1640 W
                                        EIRP.
                                       Building-mounted antennas: power
                                         1640 W EIRP,
                                        licensees are required to attach
                                        a label to transceiver antennas
                                        that
                                       (1) provides adequate notice
                                        regarding potential
                                        radiofrequency safety hazards,
                                        e.g., information regarding the
                                        safe minimum separation distance
                                        required between users and
                                        transceiver antennas; and
                                       (2) references the applicable FCC-
                                        adopted limits for
                                        radiofrequency exposure
                                        specified in Sec. 1.1310.
------------------------------------------------------------------------

    (2) Mobile and portable transmitting devices that operate in the 
Cellular Radiotelephone Service, the Personal Communications Services 
(PCS), the Satellite Communications Services, the General Wireless 
Communications Service, the Wireless Communications Service, the 
Maritime Services (ship earth stations only) and the Specialized Mobile 
Radio Service authorized under Subpart H of parts 22, 24, 25, 26, 27, 
80, and 90 of this chapter are subject to routine environmental 
evaluation for RF exposure prior to equipment authorization or use, as 
specified in Sec. Sec. 2.1091 and 2.1093 of this chapter. Unlicensed 
PCS, unlicensed NII and millimeter wave devices are also subject to 
routine environmental evaluation for RF exposure prior to equipment 
authorization or use, as specified in Sec. Sec. 15.253(f), 15.255(g), 
15.319(i), and 15.407(f) of this chapter. Portable transmitting 
equipment for use in the Wireless Medical Telemetry Service (WMTS) is 
subject to routine environment evaluation as specified in Sec. Sec. 
2.1093 and 95.1125 of this chapter. Equipment authorized for use in the 
Medical Implant Communications Service (MICS) as a medical implant 
transmitter (as defined in Appendix 1 to Subpart E of

[[Page 328]]

part 95 of this chapter) is subject to routine environmental evaluation 
for RF exposure prior to equipment authorization, as specified in Sec. 
2.1093 of this chapter by finite difference time domain computational 
modeling or laboratory measurement techniques. Where a showing is based 
on computational modeling, the Commission retains the discretion to 
request that specific absorption rate measurement data be submitted. All 
other mobile, portable, and unlicensed transmitting devices are 
categorically excluded from routine environmental evaluation for RF 
exposure under Sec. Sec. 2.1091, 2.1093 of this chapter except as 
specified in paragraphs (c) and (d) of this section.
    (3) In general, when the guidelines specified in Sec. 1.1310 are 
exceeded in an accessible area due to the emissions from multiple fixed 
transmitters, actions necessary to bring the area into compliance are 
the shared responsibility of all licensees whose transmitters produce, 
at the area in question, power density levels that exceed 5% of the 
power density exposure limit applicable to their particular transmitter 
or field strength levels that, when squared, exceed 5% of the square of 
the electric or magnetic field strength limit applicable to their 
particular transmitter. Owners of transmitter sites are expected to 
allow applicants and licensees to take reasonable steps to comply with 
the requirements contained in Sec. 1.1307(b) and, where feasible, 
should encourage co-location of transmitters and common solutions for 
controlling access to areas where the RF exposure limits contained in 
Sec. 1.1310 might be exceeded.
    (i) Applicants for proposed (not otherwise excluded) transmitters, 
facilities or modifications that would cause non-compliance with the 
limits specified in Sec. 1.1310 at an accessible area previously in 
compliance must submit an EA if emissions from the applicant's 
transmitter or facility would result, at the area in question, in a 
power density that exceeds 5% of the power density exposure limit 
applicable to that transmitter or facility or in a field strength that, 
when squared, exceeds 5% of the square of the electric or magnetic field 
strength limit applicable to that transmitter or facility.
    (ii) Renewal applicants whose (not otherwise excluded) transmitters 
or facilities contribute to the field strength or power density at an 
accessible area not in compliance with the limits specified in Sec. 
1.1310 must submit an EA if emissions from the applicant's transmitter 
or facility results, at the area in question, in a power density that 
exceeds 5% of the power density exposure limit applicable to that 
transmitter or facility or in a field strength that, when squared, 
exceeds 5% of the square of the electric or magnetic field strength 
limit applicable to that transmitter of facility.
    (4) Transition Provisions. Applications filed with the Commission 
prior to October 15, 1997 (or January 1, 1998, for the Amateur Radio 
Service only), for construction permits, licenses to transmit or 
renewals thereof, modifications in existing facilities or other 
authorizations or renewals thereof require the preparation of an 
Environmental Assessment if the particular facility, operation or 
transmitter would cause human exposure to levels of radiofrequency 
radiation that are in excess of the requirements contained in paragraphs 
(b)(4)(i) through (b)(4)(iii) of this section. In accordance with Sec. 
1.1312, if no new application or Commission action is required for a 
licensee to construct a new facility or physically modify an existing 
facility, e.g., geographic area licensees, and construction begins on or 
after October 15, 1997, the licensee will be required to prepare an 
Environmental Assessment if construction or modification of the facility 
would not comply with the provisions of paragraph (b)(1) of this 
section. These transition provisions do not apply to applications for 
equipment authorization or use for mobile, portable and unlicensed 
devices as specified in paragraph (b)(2) of this section.
    (i) For facilities and operations licensed or authorized under parts 
5, 21 (subpart K), 25, 73, 74 (subparts A, G, I, and L), and 80 of this 
chapter, the ``Radio Frequency Protection Guides'' recommended in 
``American National Standard Safety Levels with Respect to Human 
Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 
GHz'', (ANSI C95.1-1982),

[[Page 329]]

issued by the American National Standards Institute (ANSI) and copyright 
1982 by the Institute of Electrical and Electronics Engineers, Inc., New 
York, New York shall apply. With respect to subpart K of part 21 and 
subpart I of part 74 of this chapter, these requirements apply only to 
multipoint distribution service and instructional television fixed 
service stations transmitting with an equivalent isotropically radiated 
power (EIRP) in excess of 200 watts. With respect to subpart L of part 
74 of this chapter, these requirements apply only to FM booster and 
translator stations transmitting with an effective radiated power (ERP) 
in excess of 100 watts. With respect to part 80 of this chapter, these 
requirements apply only to ship earth stations.
    (ii) For facilities and operations licensed or authorized under part 
24 of this chapter, licensees and manufacturers are required to ensure 
that their facilities and equipment comply with IEEE C95.1-1991 (ANSI/
IEEE C95.1-1992), ``Safety Levels With Respect to Human Exposure to 
Radio Frequency Electromagnetic Fields, 3 kHz to 300 GHz.'' Measurement 
methods are specified in IEEE C95.3-1991, ``Recommended Practice for the 
Measurement of Potentially Hazardous Electromagnetic Fields--RF and 
Microwave.'' Copies of these standards are available from IEEE Standards 
Board, 445 Hoes Lane, P.O. Box 1331, Piscataway, NJ 08855-1331. 
Telephone: 1-800-678-4333. The limits for both ``controlled'' and 
``uncontrolled'' environments, as defined by IEEE C95.1-1991, will apply 
to all PCS base and mobile stations, as appropriate.
    (iii) Applications for all other types of facilities and operations 
are categorically excluded from routine RF radiation evaluation except 
as provided in paragraphs (c) and (d) of this section.
    (5) Existing transmitting facilities, devices and operations: All 
existing transmitting facilities, operations and devices regulated by 
the Commission must be in compliance with the requirements of paragraphs 
(b)(1) through (b)(3) of this section by September 1, 2000, or, if not 
in compliance, file an Environmental Assessment as specified in Sec. 
1.1311.
    (c) If an interested person alleges that a particular action, 
otherwise categorically excluded, will have a significant environmental 
effect, the person shall submit to the Bureau responsible for processing 
that action a written petition setting forth in detail the reasons 
justifying or circumstances necessitating environmental consideration in 
the decision-making process. (See Sec. 1.1313). The Bureau shall review 
the petition and consider the environmental concerns that have been 
raised. If the Bureau determines that the action may have a significant 
environmental impact, the Bureau will require the applicant to prepare 
an EA (see Sec. Sec. 1.1308 and 1.1311), which will serve as the basis 
for the determination to proceed with or terminate environmental 
processing.
    (d) If the Bureau responsible for processing a particular action, 
otherwise categorically excluded, determines that the proposal may have 
a significant environmental impact, the Bureau, on its own motion, shall 
require the applicant to submit an EA. The Bureau will review and 
consider the EA as in paragraph (c) of this section.
    (e) No State or local government or instrumentality thereof may 
regulate the placement, construction, and modification of personal 
wireless service facilities on the basis of the environmental effects of 
radio frequency emissions to the extent that such facilities comply with 
the regulations contained in this chapter concerning the environmental 
effects of such emissions. For purposes of this paragraph:
    (1) The term personal wireless service means commercial mobile 
services, unlicensed wireless services, and common carrier wireless 
exchange access services;
    (2) The term personal wireless service facilities means facilities 
for the provision of personal wireless services;
    (3) The term unlicensed wireless services means the offering of 
telecommunications services using duly authorized devices which do not 
require individual licenses, but does not mean the provision of direct-
to-home satellite services; and

[[Page 330]]

    (4) The term direct-to-home satellite services means the 
distribution or broadcasting of programming or services by satellite 
directly to the subscriber's premises without the use of ground 
receiving or distribution equipment, except at the subscriber's premises 
or in the uplink process to the satellite.

[51 FR 15000, Apr. 22, 1986]

    Editorial Note: For Federal Register citations affecting Sec. 
1.1307, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 69 FR 5709, Feb. 6, 2004, Sec. 1.1307 was 
amended by adding a fourth sentence to paragraph (b) introductory text. 
This amendment contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 1.1308  Consideration of environmental assessments (EAs); findings 
of no significant impact.

    (a) Applicants shall prepare EAs for actions that may have a 
significant environmental impact (see Sec. 1.1307). An EA is described 
in detail in Sec. 1.1311 of this part of the Commission rules.
    (b) The EA is a document which shall explain the environmental 
consequences of the proposal and set forth sufficient analysis for the 
Bureau or the Commission to reach a determination that the proposal will 
or will not have a significant environmental effect. To assist in making 
that determination, the Bureau or the Commission may request further 
information from the applicant, interested persons, and agencies and 
authorities which have jurisdiction by law or which have relevant 
expertise.

    Note: With respect to actions specified under Sec. 1.1307 (a)(3) 
and (a)(4), the Commission shall solicit and consider the comments of 
the Department of Interior, and the State Historic Preservation Officer 
and the Advisory Council on Historic Preservation, respectively, in 
accordance with their established procedures. See Interagency 
Cooperation--Endangered Species Act of 1973, as amended, 50 CFR part 
402; Protection of Historic and Cultural Properties, 36 CFR part 800. In 
addition, when an action interferes with or adversely affects an 
American Indian tribe's religious site, the Commission shall solicit the 
views of that American Indian tribe. See Sec. 1.1307(a)(5).

    (c) If the Bureau or the Commission determines, based on an 
independent review of the EA and any applicable mandatory consultation 
requirements imposed upon Federal agencies (see note above), that the 
proposal will have a significant environmental impact upon the quality 
of the human environment, it will so inform the applicant. The applicant 
will then have an opportunity to amend its application so as to reduce, 
minimize, or eliminate environmental problems. See Sec. 1.1309. If the 
environmental problem is not eliminated, the Bureau will publish in the 
Federal Register a Notice of Intent (see Sec. 1.1314) that EISs will be 
prepared (see Sec. Sec. 1.1315 and 1.1317), or
    (d) If the Bureau or Commission determines, based on an independent 
review of the EA, and any mandatory consultation requirements imposed 
upon Federal agencies (see the note to paragraph (b) of this section), 
that the proposal would not have a significant impact, it will make a 
finding of no significant impact. Thereafter, the application will be 
processed without further documentation of environmental effect. 
Pursuant to CEQ regulations, see 40 CFR 1501.4 and 1501.6, the applicant 
must provide the community notice of the Commission's finding of no 
significant impact.

[51 FR 15000, Apr. 22, 1986; 51 FR 18889, May 23, 1986, as amended at 53 
FR 28394, July 28, 1988]



Sec. 1.1309  Application amendments.

    Applicants are permitted to amend their applications to reduce, 
minimize or eliminate potential environmental problems. As a routine 
matter, an applicant will be permitted to amend its application within 
thirty (30) days after the Commission or the Bureau informs the 
applicant that the proposal will have a significant impact upon the 
quality of the human environment (see Sec. 1.1308(c)). The period of 
thirty (30) days may be extended upon a showing of good cause.

[[Page 331]]



Sec. 1.1310  Radiofrequency radiation exposure limits.

    The criteria listed in table 1 shall be used to evaluate the 
environmental impact of human exposure to radiofrequency (RF) radiation 
as specified in Sec. 1.1307(b), except in the case of portable devices 
which shall be evaluated according to the provisions of Sec. 2.1093 of 
this chapter. Further information on evaluating compliance with these 
limits can be found in the FCC's OST/OET Bulletin Number 65, 
``Evaluating Compliance with FCC-Specified Guidelines for Human Exposure 
to Radiofrequency Radiation.''

    Note to Introductory Paragraph: These limits are generally based on 
recommended exposure guidelines published by the National Council on 
Radiation Protection and Measurements (NCRP) in ``Biological Effects and 
Exposure Criteria for Radiofrequency Electromagnetic Fields,'' NCRP 
Report No. 86, Sections 17.4.1, 17.4.1.1, 17.4.2 and 17.4.3. Copyright 
NCRP, 1986, Bethesda, Maryland 20814. In the frequency range from 100 
MHz to 1500 MHz, exposure limits for field strength and power density 
are also generally based on guidelines recommended by the American 
National Standards Institute (ANSI) in Section 4.1 of ``IEEE Standard 
for Safety Levels with Respect to Human Exposure to Radio Frequency 
Electromagnetic Fields, 3 kHz to 300 GHz,'' ANSI/IEEE C95.1-1992, 
Copyright 1992 by the Institute of Electrical and Electronics Engineers, 
Inc., New York, New York 10017.

                             Table 1--Limits for Maximum Permissible Exposure (MPE)
----------------------------------------------------------------------------------------------------------------
                                        Electric field     Magnetic field     Power density      Averaging time
       Frequency range  (MHz)          strength  (V/m)    strength  (A/m)       (mW/cm\2\)         (minutes)
----------------------------------------------------------------------------------------------------------------
                                (A) Limits for Occupational/Controlled Exposures
----------------------------------------------------------------------------------------------------------------
0.3-3.0.............................                614               1.63             *(100)                  6
3.0-30..............................             1842/f             4.89/f        *(900/f\2\)                  6
30-300..............................               61.4              0.163                1.0                  6
300-1500............................  .................  .................              f/300                  6
1500-100,000........................  .................  .................                  5                  6
-------------------------------------
                             (B) Limits for General Population/Uncontrolled Exposure
----------------------------------------------------------------------------------------------------------------
0.3-1.34............................                614               1.63             *(100)                 30
1.34-30.............................              824/f             2.19/f        *(180/f\2\)                 30
30-300..............................               27.5              0.073                0.2                 30
300-1500............................  .................  .................             f/1500                 30
1500-100,000........................  .................  .................                1.0                 30
----------------------------------------------------------------------------------------------------------------
f = frequency in MHz
* = Plane-wave equivalent power density
Note 1 to Table 1: Occupational/controlled limits apply in situations in which persons are exposed as a
  consequence of their employment provided those persons are fully aware of the potential for exposure and can
  exercise control over their exposure. Limits for occupational/controlled exposure also apply in situations
  when an individual is transient through a location where occupational/controlled limits apply provided he or
  she is made aware of the potential for exposure.
Note 2 to Table 1: General population/uncontrolled exposures apply in situations in which the general public may
  be exposed, or in which persons that are exposed as a consequence of their employment may not be fully aware
  of the potential for exposure or can not exercise control over their exposure.


[61 FR 41016, Aug. 7, 1996]



Sec. 1.1311  Environmental information to be included in the environmental 
assessment (EA).

    (a) The applicant shall submit an EA with each application that is 
subject to environmental processing (see Sec. 1.1307). The EA shall 
contain the following information:
    (1) For antenna towers and satellite earth stations, a description 
of the facilities as well as supporting structures and appurtenances, 
and a description of the site as well as the surrounding area and uses. 
If high intensity white lighting is proposed or utilized within a 
residential area, the EA must also address the impact of this lighting 
upon the residents.
    (2) A statement as to the zoning classification of the site, and 
communications with, or proceedings before and determinations (if any) 
made by zoning, planning, environmental or other local, state or Federal 
authorities on matters relating to environmental effect.

[[Page 332]]

    (3) A statement as to whether construction of the facilities has 
been a source of controversy on environmental grounds in the local 
community.
    (4) A discussion of environmental and other considerations which led 
to the selection of the particular site and, if relevant, the particular 
facility; the nature and extent of any unavoidable adverse environmental 
effects, and any alternative sites or facilities which have been or 
might reasonably be considered.
    (5) Any other information that may be requested by the Bureau or 
Commission.
    (6) If endangered or threatened species or their critical habitats 
may be affected, the applicant's analysis must utilize the best 
scientific and commercial data available, see 50 CFR 402.14(c).
    (b) The information submitted in the EA shall be factual (not 
argumentative or conclusory) and concise with sufficient detail to 
explain the environmental consequences and to enable the Commission or 
Bureau, after an independent review of the EA, to reach a determination 
concerning the proposal's environmental impact, if any. The EA shall 
deal specifically with any feature of the site which has special 
environmental significance (e.g., wilderness areas, wildlife preserves, 
natural migration paths for birds and other wildlife, and sites of 
historic, architectural, or archeological value). In the case of 
historically significant sites, it shall specify the effect of the 
facilities on any district, site, building, structure or object listed, 
or eligible for listing, in the National Register of Historic Places. It 
shall also detail any substantial change in the character of the land 
utilized (e.g., deforestation, water diversion, wetland fill, or other 
extensive change of surface features). In the case of wilderness areas, 
wildlife preserves, or other like areas, the statement shall discuss the 
effect of any continuing pattern of human intrusion into the area (e.g., 
necessitated by the operation and maintenance of the facilities).
    (c) The EA shall also be accompanied with evidence of site approval 
which has been obtained from local or Federal land use authorities.
    (d) To the extent that such information is submitted in another part 
of the application, it need not be duplicated in the EA, but adequate 
cross-reference to such information shall be supplied.
    (e) An EA need not be submitted to the Commission if another agency 
of the Federal Government has assumed responsibility for determining 
whether of the facilities in question will have a significant effect on 
the quality of the human environment and, if it will, for invoking the 
environmental impact statement process.

[51 FR 15000, Apr. 22, 1986, as amended at 51 FR 18889, May 23, 1986; 53 
FR 28394, July 28, 1988]



Sec. 1.1312  Facilities for which no preconstruction authorization is 
required.

    (a) In the case of facilities for which no Commission authorization 
prior to construction is required by the Commission's rules and 
regulations the licensee or applicant shall initially ascertain whether 
the proposed facility may have a significant environmental impact as 
defined in Sec. 1.1307 of this part or is categorically excluded from 
environmental processing under Sec. 1.1306 of this part.
    (b) If a facility covered by paragraph (a) of this section may have 
a significant environmental impact, the information required by Sec. 
1.1311 of this part shall be submitted by the licensee or applicant and 
ruled on by the Commission, and environmental processing (if invoked) 
shall be completed, see Sec. 1.1308 of this part, prior to the 
initiation of construction of the facility.
    (c) If a facility covered by paragraph (a) of this section is 
categorically excluded from environmental processing, the licensee or 
applicant may proceed with construction and operation of the facility in 
accordance with the applicable licensing rules and procedures.
    (d) If, following the initiation of construction under this section, 
the licensee or applicant discovers that the proposed facility may have 
a significant environmental effect, it shall immediately cease 
construction which may have that effect, and submit the information 
required by Sec. 1.1311 of this part. The Commission shall rule on that 
submission and complete further

[[Page 333]]

environmental processing (if invoked), see Sec. 1.1308 of this part, 
before such construction is resumed.
    (e) Paragraphs (a) through (d) of this section shall not apply to 
the construction of mobile stations.

[55 FR 20396, May 16, 1990, as amended at 56 FR 13414, Apr. 2, 1991]



Sec. 1.1313  Objections.

    (a) In the case of an application to which section 309(b) of the 
Communications Act applies, objections based on environmental 
considerations shall be filed as petitions to deny.
    (b) Informal objections which are based on environmental 
considerations must be filed prior to grant of the construction permit, 
or prior to authorization for facilities that do not require 
construction permits, or pursuant to the applicable rules governing 
services subject to lotteries.



Sec. 1.1314  Environmental impact statements (EISs).

    (a) Draft Environmental Impact Statements (DEISs) (Sec. 1.1315) and 
Final Environmental Impact Statements (FEISs) (referred to collectively 
as EISs) (Sec. 1.1317) shall be prepared by the Bureau responsible for 
processing the proposal when the Commission's or the Bureau's analysis 
of the EA (Sec. 1.1308) indicates that the proposal will have a 
significant effect upon the environment and the matter has not been 
resolved by an amendment.
    (b) As soon as practically feasible, the Bureau will publish in the 
Federal Register a Notice of Intent to prepare EISs. The Notice shall 
briefly identify the proposal, concisely describe the environmental 
issues and concerns presented by the subject application, and generally 
invite participation from affected or involved agencies, authorities and 
other interested persons.
    (c) The EISs shall not address non-environmental considerations. To 
safeguard against repetitive and unnecessarily lengthy documents, the 
Statements, where feasible, shall incorporate by reference material set 
forth in previous documents, with only a brief summary of its content. 
In preparing the EISs, the Bureau will identify and address the 
significant environmental issues and eliminate the insignificant issues 
from analysis.
    (d) To assist in the preparation of the EISs, the Bureau may request 
further information from the applicant, interested persons and agencies 
and authorities, which have jurisdiction by law or which have relevant 
expertise. The Bureau may direct that technical studies be made by the 
applicant and that the applicant obtain expert opinion concerning the 
potential environmental problems and costs associated with the proposed 
action, as well as comparative analyses of alternatives. The Bureau may 
also consult experts in an effort to identify measures that could be 
taken to minimize the adverse effects and alternatives to the proposed 
facilities that are not, or are less, objectionable. The Bureau may also 
direct that objections be raised with appropriate local, state or 
Federal land use agencies or authorities (if their views have not been 
previously sought).
    (e) The Bureau responsible for processing the particular application 
and, thus, preparing the EISs shall draft supplements to Statements 
where significant new circumstances occur or information arises relevant 
to environmental concerns and bearing upon the application.
    (f) The Application, the EA, the DEIS, and the FEIS and all related 
documents, including the comments filed by the public and any agency, 
shall be part of the administrative record and will be routinely 
available for public inspection.
    (g) If EISs are to be prepared, the applicant must provide the 
community with notice of the availability of environmental documents and 
the scheduling of any Commission hearings in that action.
    (h) The timing of agency action with respect to applications subject 
to EISs is set forth in 40 CFR 1506.10. No decision shall be made until 
ninety (90) days after the Notice of Availability of the Draft 
Environmental Impact Statement is published in the Federal Register, and 
thirty (30) days after the Notice of Availability of the Final 
Environmental Impact Statement is published in the Federal Register, 
which time period may run concurrently, See

[[Page 334]]

40 CFR 1506.10(c); see also Sec. Sec. 1.1315(b) and 1.1317(b).
    (i) Guidance concerning preparation of the Draft and Final 
Environmental Statements is set out in 40 CFR part 1502.

[51 FR 15000, Apr. 22, 1986, as amended at 53 FR 28394, July 28, 1988]



Sec. 1.1315  The Draft Environmental Impact Statement (DEIS); Comments.

    (a) The DEIS shall include:
    (1) A concise description of the proposal, the nature of the area 
affected, its uses, and any specific feature of the area that has 
special environmental significance;
    (2) An analysis of the proposal, and reasonable alternatives 
exploring the important consequent advantages and/or disadvantages of 
the action and indicating the direct and indirect effects and their 
significance in terms of the short and long-term uses of the human 
environment.
    (b) When a DEIS and supplements, if any, are prepared, the 
Commission shall send five copies of the Statement, or a summary, to the 
Office of Federal Activities, Environmental Protection Agency. 
Additional copies, or summaries, will be sent to the appropriate 
regional office of the Environmental Protection Agency. Public Notice of 
the availability of the DEIS will be published in the Federal Register 
by the Environmental Protection Agency.
    (c) When copies or summaries of the DEIS are sent to the 
Environmental Protection Agency, the copies or summaries will be mailed 
with a request for comment to Federal agencies having jurisdiction by 
law or special expertise, to the Council on Environmental Quality, to 
the applicant, to individuals, groups and state and local agencies known 
to have an interest in the environmental consequences of a grant, and to 
any other person who has requested a copy.
    (d) Any person or agency may comment on the DEIS and the 
environmental effect of the proposal described therein within 45 days 
after notice of the availability of the statement is published in the 
Federal Register. A copy of those comments shall be mailed to the 
applicant by the person who files them pursuant to 47 CFR 1.47. An 
original and one copy shall be filed with the Commission. If a person 
submitting comments is especially qualified in any way to comment on the 
environmental impact of the facilities, a statement of his or her 
qualifications shall be set out in the comments. In addition, comments 
submitted by an agency shall identify the person(s) who prepared them.
    (e) The applicant may file reply comments within 15 days after the 
time for filing comments has expired. Reply comments shall be filed with 
the Commission in the same manner as comments, and shall be served by 
the applicant on persons or agencies which filed comments.
    (f) The preparation of a DEIS and the request for comments shall not 
open the application to attack on other grounds.



Sec. 1.1317  The Final Environmental Impact Statement (FEIS).

    (a) After receipt of comments and reply comments, the Bureau will 
prepare a FEIS, which shall include a summary of the comments, and a 
response to the comments, and an analysis of the proposal in terms of 
its environmental consequences, and any reasonable alternatives, and 
recommendations, if any, and shall cite the Commission's internal appeal 
procedures (See 47 CFR 1.101-1.120).
    (b) The FEIS and any supplements will be distributed and published 
in the same manner as specified in Sec. 1.1315. Copies of the comments 
and reply comments, or summaries thereof where the record is voluminous, 
shall be attached to the FEIS.



Sec. 1.1319  Consideration of the environmental impact statements.

    (a) If the action is subject to a hearing:
    (1) In rendering his initial decision, the Administrative Law Judge 
shall utilize the FEIS in considering the environmental issues, together 
with all other non-environmental issues. In a comparative context, the 
respective parties shall be afforded the opportunity to comment on the 
FEIS, and the Administrative Law Judge's decision shall contain an 
evaluation of the

[[Page 335]]

respective applications based on environmental and non-environmental 
public interest factors.
    (2) Upon review of an initial decision, the Commission will consider 
and assess all aspects of the FEIS and will render its decision, giving 
due consideration to the environmental and nonenvironmental issues.
    (b) In all non-hearing matters, the Commission, as part of its 
decision-making process, will review the FEIS, along with other relevant 
issues, to ensure that the environmental effects are specifically 
assessed and given comprehensive consideration.

[51 FR 15000, Apr. 22, 1986, as amended at 62 FR 4171, Jan. 29, 1997]



             Subpart J_Pole Attachment Complaint Procedures

    Source: 43 FR 36094, Aug. 15, 1978, unless otherwise noted.



Sec. 1.1401  Purpose.

    The rules and regulations contained in subpart J of this part 
provide complaint and enforcement procedures to ensure that 
telecommunications carriers and cable system operators have 
nondiscriminatory access to utility poles, ducts, conduits, and rights-
of-way on rates, terms, and conditions that are just and reasonable.

[61 FR 45618, Aug. 29, 1996]



Sec. 1.1402  Definitions.

    (a) The term utility means any person that is a local exchange 
carrier or an electric, gas, water, steam, or other public utility, and 
who owns or controls poles, ducts, conduits, or rights-of-way used, in 
whole or in part, for any wire communications. Such term does not 
include any railroad, any person that is cooperatively organized, or any 
person owned by the Federal Government or any State.
    (b) The term pole attachment means any attachment by a cable 
television system or provider of telecommunications service to a pole, 
duct, conduit, or right-of-way owned or controlled by a utility.
    (c) With respect to poles, the term usable space means the space on 
a utility pole above the minimum grade level which can be used for the 
attachment of wires, cables, and associated equipment, and which 
includes space occupied by the utility. With respect to conduit, the 
term usable space means capacity within a conduit system which is 
available, or which could, with reasonable effort and expense, be made 
available, for the purpose of installing wires, cable and associated 
equipment for telecommunications or cable services, and which includes 
capacity occupied by the utility.
    (d) The term complaint means a filing by a cable television system 
operator, a cable television system association, a utility, an 
association of utilities, a telecommunications carrier, or an 
association of telecommunications carriers alleging that it has been 
denied access to a utility pole, duct, conduit, or right-of-way in 
violation of this subpart and/or that a rate, term, or condition for a 
pole attachment is not just and reasonable.
    (e) The term complainant means a cable television system operator, a 
cable television system association, a utility, an association of 
utilities, a telecommunications carrier, or an association of 
telecommunications carriers who files a complaint.
    (f) The term respondent means a cable television system operator, a 
utility, or a telecommunications carrier against whom a complaint is 
filed.
    (g) The term State means any State, territory, or possession of the 
United States, the District of Columbia, or any political subdivision, 
agency, or instrumentality thereof.
    (h) For purposes of this subpart, the term telecommunications 
carrier means any provider of telecommunications services, except that 
the term does not include aggregators of telecommunications services (as 
defined in 47 U.S.C. 226) or incumbent local exchange carriers (as 
defined in 47 U.S.C. 251(h)).
    (i) The term conduit means a structure containing one or more ducts, 
usually placed in the ground, in which cables or wires may be installed.
    (j) The term conduit system means a collection of one or more 
conduits together with their supporting infrastructure.

[[Page 336]]

    (k) The term duct means a single enclosed raceway for conductors, 
cable and/or wire.
    (l) With respect to poles, the term unusable space means the space 
on a utility pole below the usable space, including the amount required 
to set the depth of the pole.
    (m) The term attaching entity includes cable system operators, 
telecommunications carriers, incumbent and other local exchange 
carriers, utilities, governmental entities and other entities with a 
physical attachment to the pole, duct, conduit or right of way. It does 
not include governmental entities with only seasonal attachments to the 
pole.
    (n) The term inner-duct means a duct-like raceway smaller than a 
duct that is inserted into a duct so that the duct may carry multiple 
wires or cables.

[43 FR 36094, Aug. 15, 1978, as amended at 52 FR 31770, Aug. 24, 1987; 
61 FR 43024, Aug. 20, 1996; 61 FR 45618, Aug. 29, 1996; 63 FR 12024, 
Mar. 12, 1998; 65 FR 31281, May 17, 2000; 66 FR 34580, June 29, 2001]



Sec. 1.1403  Duty to provide access; modifications; notice of removal, 

increase or modification; petition for temporary stay; and cable 
operator notice.

    (a) A utility shall provide a cable television system or any 
telecommunications carrier with nondiscriminatory access to any pole, 
duct, conduit, or right-of-way owned or controlled by it. 
Notwithstanding this obligation, a utility may deny a cable television 
system or any telecommunications carrier access to its poles, ducts, 
conduits, or rights-of-way, on a non-discriminatory basis where there is 
insufficient capacity or for reasons of safety, reliability and 
generally applicable engineering purposes.
    (b) Requests for access to a utility's poles, ducts, conduits or 
rights-of-way by a telecommunications carrier or cable operator must be 
in writing. If access is not granted within 45 days of the request for 
access, the utility must confirm the denial in writing by the 45th day. 
The utility's denial of access shall be specific, shall include all 
relevant evidence and information supporting its denial, and shall 
explain how such evidence and information relate to a denial of access 
for reasons of lack of capacity, safety, reliability or engineering 
standards.
    (c) A utility shall provide a cable television system operator or 
telecommunications carrier no less than 60 days written notice prior to:
    (1) Removal of facilities or termination of any service to those 
facilities, such removal or termination arising out of a rate, term or 
condition of the cable television system operator's of 
telecommunications carrier's pole attachment agreement;
    (2) Any increase in pole attachment rates; or
    (3) Any modification of facilities other than routine maintenance or 
modification in response to emergencies.
    (d) A cable television system operator or telecommunications carrier 
may file a ``Petition for Temporary Stay'' of the action contained in a 
notice received pursuant to paragraph (c) of this section within 15 days 
of receipt of such notice. Such submission shall not be considered 
unless it includes, in concise terms, the relief sought, the reasons for 
such relief, including a showing of irreparable harm and likely 
cessation of cable television service or telecommunication service, a 
copy of the notice, and certification of service as required by Sec. 
1.1404(b). The named respondent may file an answer within 7 days of the 
date the Petition for Temporary Stay was filed. No further filings under 
this section will be considered unless requested or authorized by the 
Commission and no extensions of time will be granted unless justified 
pursuant to Sec. 1.46.5.
    (e) Cable operators must notify pole owners upon offering 
telecommunications services.

[61 FR 45618, Aug. 29, 1996, as amended at 63 FR 12025, Mar. 12, 1998]

    Effective Date Note: At 63 FR 12025, Mar. 12, 1998, Sec. 1.1403 was 
amended by revising the heading and adding new paragraph (e). The added 
text contains information collection and recordkeeping requirements and 
will not become effective until approval has been given by the Office of 
Management and Budget.



Sec. 1.1404  Complaint.

    (a) The complaint shall contain the name and address of the 
complainant,

[[Page 337]]

name and address of the respondent, and shall contain a verification (in 
the form in Sec. 1.721(b)), signed by the complainant or officer 
thereof if complainant is a corporation, showing complainant's direct 
interest in the matter complained of. Counsel for the complainant may 
sign the complaint. Complainants may join together to file a joint 
complaint. Complaints filed by associations shall specifically identify 
each utility, cable television system operator, or telecommunications 
carrier who is a party to the complaint and shall be accompanied by a 
document from each identified member certifying that the complaint is 
being filed on its behalf.
    (b) The complaint shall be accompanied by a certification of service 
on the named respondent, and each of the Federal, State, and local 
governmental agencies that regulate any aspect of the services provided 
by the complainant or respondent.
    (c) In a case where it is claimed that a rate, term, or condition is 
unjust or unreasonable, the complaint shall contain a statement that the 
State has not certified to the Commission that it regulates the rates, 
terms and conditions for pole attachments. The complaint shall include a 
statement that the utility is not owned by any railroad, any person who 
is cooperatively organized or any person owned by the Federal Government 
or any State.
    (d) The complaint shall be accompanied by a copy of the pole 
attachment agreement, if any, between the cable system operator or 
telecommunications carrier and the utility. If there is no present pole 
attachment agreement, the complaint shall contain:
    (1) A statement that the utility uses or controls poles, ducts, or 
conduits used or designated, in whole or in part, for wire 
communication; and
    (2) A statement that the cable television system operator or 
telecommunications carrier currently has attachments on the poles, 
ducts, conduits, or rights-of-way.
    (e) The complaint shall state with specificity the pole attachment 
rate, term or condition which is claimed to be unjust or unreasonable.
    (f) In any case, where it is claimed that a term or condition is 
unjust or unreasonable, the claim shall specify all information and 
argument relied upon to justify said claim.
    (g) For attachments to poles, where it is claimed that either a rate 
is unjust or unreasonable, or a term or condition is unjust or 
unreasonable and examination of such term or condition requires review 
of the associated rate, the complaint shall provide data and information 
in support of said claim.
    (1) The data and information shall include, where applicable:
    (i) The gross investment by the utility for pole lines;
    (ii) The investment in crossarms and other items which do not 
reflect the cost of owning and maintaining poles, if available;
    (iii) The depreciation reserve from the gross pole line investment;
    (iv) The depreciation reserve from the investment in crossarms and 
other items which do not reflect the cost of owning and maintaining 
poles, if available;
    (v) The total number of poles:
    (A) Owned; and
    (B) Controlled or used by the utility. If any of these poles are 
jointly owned, the complaint shall specify the number of such jointly 
owned poles and the percentage of each joint pole or the number of 
equivalent poles owned by the subject utility;
    (vi) The total number of poles which are the subject of the 
complaint;
    (vii) The number of poles included in paragraph (g)(1)(vi) of this 
section that are controlled or used by the utility through lease between 
the utility and other owner(s), and the annual amounts paid by the 
utility for such rental;
    (viii) The number of poles included in paragraph (g)(1)(vi) of this 
section that are owned by the utility and that are leased to other users 
by the utility, and the annual amounts paid to the utility for such 
rental;
    (ix) The annual carrying charges attributable to the cost of owning 
a pole. These charges may be expressed as a percentage of the net pole 
investment. With its pleading, the utility shall file a copy of the 
latest decision of the state regulatory body or state court which 
determines the treatment of accumulated deferred taxes if it is at

[[Page 338]]

issue in the proceeding and shall note the section which specifically 
determines the treatment and amount of accumulated deferred taxes.
    (x) The rate of return authorized for the utility for intrastate 
service. With its pleading, the utility shall file a copy of the latest 
decision of the state regulatory body or state court which establishes 
this authorized rate of return if the rate of return is at issue in the 
proceeding and shall note the section which specifically establishes 
this authorized rate and whether the decision is subject to further 
proceedings before the state regulatory body or a court. In the absence 
of a state authorized rate of return, the rate of return set by the 
Commission for local exchange carriers shall be used as a default rate 
of return;
    (xi) The average amount of usable space per pole for those poles 
used for pole attachments (13.5 feet may be in lieu of actual 
measurement, but may be rebutted);
    (xii) The average amount of unusable space per pole for those poles 
used for pole attachments (a 24 foot presumption may be used in lieu of 
actual measurement, but the presumption may be rebutted); and
    (xiii) Reimbursements received from CATV operators and 
telecommunications carriers for non-recurring costs.
    (2) Data and information should be based upon historical or original 
cost methodology, insofar as possible. Data should be derived from 
ARMIS, FERC 1, or other reports filed with state or federal regulatory 
agencies (identify source). Calculations made in connection with these 
figures should be provided to the complainant. The complainant shall 
also specify any other information and argument relied upon to attempt 
to establish that a rate, term, or condition is not just and reasonable.
    (h) With respect to attachments within a duct or conduit system, 
where it is claimed that either a rate is unjust or unreasonable, or a 
term or condition is unjust or unreasonable and examination of such term 
or condition requires review of the associated rate, the complaint shall 
provide data and information in support of said claim.
    (1) The data and information shall include, where applicable:
    (i) The gross investment by the utility for conduit;
    (ii) The accumulated depreciation from the gross conduit investment;
    (iii) The system duct length or system conduit length and the method 
used to determine it;
    (iv) The length of the conduit subject to the complaint;
    (v) The number of ducts in the conduit subject to the complaint;
    (vi) The number of inner-ducts in the duct occupied, if any. If 
there are no inner-ducts, the attachment is presumed to occupy one-half 
duct.
    (vii) The annual carrying charges attributable to the cost of owning 
conduit. These charges may be expressed as a percentage of the net 
linear cost of a conduit. With its pleading, the utility shall file a 
copy of the latest decision of the state regulatory body or state court 
which determines the treatment of accumulated deferred taxes if it is at 
issue in the proceeding and shall note the section which specifically 
determines the treatment and amount of accumulated deferred taxes.
    (viii) The rate of return authorized for the utility for intrastate 
service. With its pleading, the utility shall file a copy of the latest 
decision of the state regulatory body or state court which establishes 
this authorized rate of return if the rate of return is at issue in the 
proceeding and shall note the section which specifically establishes 
this authorized rate and whether the decision is subject to further 
proceedings before the state regulatory body or a court. In the absence 
of a state authorized rate of return, the rate of return set by the 
Commission for local exchange carriers shall be used as a default rate 
of return; and
    (ix) Reimbursements received by utilities from CATV operators and 
telecommunications carriers for non-recurring costs.
    (2) Data and information should be based upon historical or original 
cost methodology, insofar as possible. Data should be derived from 
ARMIS, FERC 1, or other reports filed with state or federal regulatory 
agencies (identify

[[Page 339]]

source). Calculations made in connection with these figures should be 
provided to the complainant. The complainant shall also specify any 
other information and argument relied upon to attempt to establish that 
a rate, term, or condition is not just and reasonable.
    (i) With respect to rights-of-way, where it is claimed that either a 
rate is unjust or unreasonable, or a term or condition is unjust or 
unreasonable and examination of such term or condition requires review 
of the associated rate, the complaint shall provide data and information 
in support of said claim. The data and information shall include, where 
applicable, equivalent information as specified in paragraph (g) of this 
section.
    (j) If any of the information and data required in paragraphs (g), 
(h) and (i) of this section is not provided to the cable television 
operator or telecommunications carrier by the utility upon reasonable 
request, the cable television operator or telecommunications carrier 
shall include a statement indicating the steps taken to obtain the 
information from the utility, including the dates of all requests. No 
complaint filed by a cable television operator or telecommunications 
carrier shall be dismissed where the utility has failed to provide the 
information required under paragraphs (g), (h) or (i) of this section, 
as applicable, after such reasonable request. A utility must supply a 
cable television operator or telecommunications carrier the information 
required in paragraph (g), (h) or (i) of this section, as applicable, 
along with the supporting pages from its ARMIS, FERC Form 1, or other 
report to a regulatory body, within 30 days of the request by the cable 
television operator or telecommunications carrier. The cable television 
operator or telecommunications carrier, in turn, shall submit these 
pages with its complaint. If the utility did not supply these pages to 
the cable television operator or telecommunications carrier in response 
to the information request, the utility shall supply this information in 
its response to the complaint.
    (k) The complaint shall include a brief summary of all steps taken 
to resolve the problem prior to filing. If no such steps were taken, the 
complaint shall state the reason(s) why it believed such steps were 
fruitless.
    (l) Factual allegations shall be supported by affidavit of a person 
or persons with actual knowledge of the facts, and exhibits shall be 
verified by the person who prepares them.
    (m) In a case where a cable television system operator or 
telecommunications carrier claims that it has been denied access to a 
pole, duct, conduit or right-of-way despite a request made pursuant to 
section 47 U.S.C. Sec. 224(f), the complaint shall be filed within 30 
days of such denial. In addition to meeting the other requirements of 
this section, the complaint shall include the data and information 
necessary to support the claim, including:
    (1) The reasons given for the denial of access to the utility's 
poles, ducts, conduits and rights-of-way;
    (2) The basis for the complainant's claim that the denial of access 
is improper;
    (3) The remedy sought by the complainant;
    (4) A copy of the written request to the utility for access to its 
poles, ducts, conduits or rights-of-way; and
    (5) A copy of the utility's response to the written request 
including all information given by the utility to support its denial of 
access. A complaint alleging improper denial of access will not be 
dismissed if the complainant is unable to obtain a utility's written 
response, or if the utility denies the complainant any other information 
needed to establish a prima facie case.

[43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31649, June 1, 1979; 45 
FR 17014, Mar. 17, 1980; 52 FR 31770, Aug. 24, 1987; 61 FR 43025, Aug. 
20, 1996; 61 FR 45619, Aug. 29, 1996; 63 FR 12025, Mar. 12, 1998; 65 FR 
31282, May 17, 2000; 65 FR 34820, May 31, 2000]

    Effective Date Note 1: At 63 FR 12025, Mar. 12, 1998, Sec. 1.1404 
was amended by redesignating paragraphs (g)(12) and (h) through (k) as 
(g)(13) and (k) through (n) and adding new paragraphs (g)(12) and (h) 
through (j). The added text contains information collection and 
recordkeeping requirements and will not become effective until approval 
has been given by the Office of Management and Budget.

    Effective Date Note 2: At 65 FR 31282, May 17, 2000, Sec. 1.1404 
was amended by removing paragraph (k), redesignating paragraphs

[[Page 340]]

(l), (m), and (n) as (k), (l), and (m), respectively, and revising 
paragraphs (g), (h), and the third sentence of paragraph (j). The 
revised text contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 1.1405  File numbers.

    Each complaint which appears to be essentially complete under Sec. 
1.1404 will be accepted and assigned a file number. Such assignment is 
for administrative purposes only and does not necessarily mean that the 
complaint has been found to be in full compliance with other sections in 
this subpart. Petitions for temporary stay will also be assigned a file 
number upon receipt.

[44 FR 31650, June 1, 1979]



Sec. 1.1406  Dismissal of complaints.

    (a) The complaint shall be dismissed for lack of jurisdiction in any 
case where a suitable certificate has been filed by a State pursuant to 
Sec. 1.1414 of this subpart. Such certificate shall be conclusive proof 
of lack of jurisdiction of this Commission. A complaint against a 
utility shall also be dismissed if the utility does not use or control 
poles, ducts, or conduits used or designated, in whole or in part, for 
wire communication or if the utility does not meet the criteria of Sec. 
1.1402(a) of this subpart.
    (b) If the complaint does not contain substantially all the 
information required under Sec. 1.1404 the Commission may dismiss the 
complaint or may require the complainant to file additional information. 
The complaint shall not be dismissed if the information is not available 
from public records or from the respondent utility after reasonable 
request.
    (c) Failure by the complainant to respond to official correspondence 
or a request for additional information will be cause for dismissal.
    (d) Dismissal under provisions of paragraph (b) of this section 
above will be with prejudice if the complaint has been dismissed 
previously. Such a complaint may be refiled no earlier than six months 
from the date it was so dismissed.

[43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31650, June 1, 1979]



Sec. 1.1407  Response and reply.

    (a) Respondent shall have 30 days from the date the complaint was 
filed within which to file a response. Complainant shall have 20 days 
from the date the response was filed within which to file a reply. 
Extensions of time to file are not contemplated unless justification is 
shown pursuant to Sec. 1.46. Except as otherwise provided in Sec. 
1.1403, no other filings and no motions other than for extension of time 
will be considered unless authorized by the Commission. The response 
should set forth justification for the rate, term, or condition alleged 
in the complaint not to be just and reasonable. Factual allegations 
shall be supported by affidavit of a person or persons with actual 
knowledge of the facts and exhibits shall be verified by the person who 
prepares them. The response, reply, and other pleadings may be signed by 
counsel.
    (b) The response shall be served on the complainant and all parties 
listed in complainant's certificate of service.
    (c) The reply shall be served on the respondent and all parties 
listed in respondent's certificate of service.
    (d) Failure to respond may be deemed an admission of the material 
factual allegations contained in the complaint.

[44 FR 31650, June 1, 1979]



Sec. 1.1408  Number of copies and form of pleadings.

    (a) An original and three copies of the complaint, response, and 
reply shall be filed with the Commission.
    (b) All papers filed in the complaint proceeding must be drawn in 
conformity with the requirements of Sec. Sec. 1.49, 1.50 and 1.52.



Sec. 1.1409  Commission consideration of the complaint.

    (a) In its consideration of the complaint, response, and reply, the 
Commission may take notice of any information contained in publicly 
available filings made by the parties and may accept, subject to 
rebuttal, studies that

[[Page 341]]

have been conducted. The Commission may also request that one or more of 
the parties make additional filings or provide additional information. 
Where one of the parties has failed to provide information required to 
be provided by these rules or requested by the Commission, or where 
costs, values or amounts are disputed, the Commission may estimate such 
costs, values or amounts it considers reasonable, or may decide 
adversely to a party who has failed to supply requested information 
which is readily available to it, or both.
    (b) The complainant shall have the burden of establishing a prima 
facie case that the rate, term, or condition is not just and reasonable 
or that the denial of access violates 47 U.S.C. Sec. 224(f). If, 
however, a utility argues that the proposed rate is lower than its 
incremental costs, the utility has the burden of establishing that such 
rate is below the statutory minimum just and reasonable rate. In a case 
involving a denial of access, the utility shall have the burden of 
proving that the denial was lawful, once a prima facie case is 
established by the complainant.
    (c) The Commission shall determine whether the rate, term or 
condition complained of is just and reasonable. For the purposes of this 
paragraph, a rate is just and reasonable if it assures a utility the 
recovery of not less than the additional costs of providing pole 
attachments, nor more than an amount determined by multiplying the 
percentage of the total usable space, or the percentage of the total 
duct or conduit capacity, which is occupied by the pole attachment by 
the sum of the operating expenses and actual capital costs of the 
utility attributable to the entire pole, duct, conduit, or right-of-way.
    (d) The Commission shall deny the complaint if it determines that 
the complainant has not established a prima facie case, or that the 
rate, term or condition is just and reasonable, or that the denial of 
access was lawful.
    (e) When parties fail to resolve a dispute regarding charges for 
pole attachments and the Commission's complaint procedures under Section 
1.1404 are invoked, the Commission will apply the following formulas for 
determining a maximum just and reasonable rate:
    (1) The following formula shall apply to attachments to poles by 
cable operators providing cable services. This formula shall also apply 
to attachments to poles by any telecommunications carrier (to the extent 
such carrier is not a party to a pole attachment agreement) or cable 
operator providing telecommunications services until February 8, 2001:
[GRAPHIC] [TIFF OMITTED] TR29JN01.011

[GRAPHIC] [TIFF OMITTED] TR29JN01.012

    (2) Subject to paragraph (f) of this section the following formula 
shall apply to attachments to poles by any telecommunications carrier 
(to the extent such carrier is not a party to a pole attachment 
agreement) or cable operator providing telecommunications services 
beginning February 8, 2001:

[[Page 342]]

[GRAPHIC] [TIFF OMITTED] TR29JN01.013


    (3) The following formula shall apply to attachments to conduit by 
cable operators and telecommunications carriers:
[GRAPHIC] [TIFF OMITTED] TR29JN01.014

    simplified as:
    [GRAPHIC] [TIFF OMITTED] TR29JN01.015
    
    If no inner-duct is installed the fraction, ``1 Duct divided by the 
No. of Inner-Ducts'' is presumed to be \1/2\.
    (f) Paragraph (e)(2) of this section shall become effective February 
8, 2001 (i.e., five years after the effective date of the 
Telecommunications Act of 1996). Any increase in the rates for pole 
attachments that results from the adoption of such regulations shall be 
phased in over a period of five years beginning on the effective date of 
such regulations in equal annual increments. The five-year phase-in is 
to apply to rate increases only. Rate reductions are to be implemented 
immediately. The determination of any rate increase shall be based on 
data currently available at the time of the calculation of the rate 
increase.

[43 FR 36094, Aug. 15, 1978, as amended at 52 FR 31770, Aug. 24, 1987; 
61 FR 43025, Aug. 20, 1996; 61 FR 45619, Aug. 29, 1996; 63 FR 12025, 
Mar. 12, 1998; 65 FR 31282, May 17, 2000; 66 FR 34580, June 29, 2001]



Sec. 1.1410  Remedies.

    If the Commission determines that the rate, term, or condition 
complained of is not just and reasonable, it may prescribe a just and 
reasonable rate, term, or condition and may:
    (a) Terminate the unjust and unreasonable rate, term, or condition;
    (b) Substitute in the pole attachment agreement the just and 
reasonable rate, term, or condition established by the Commission; and
    (c) Order a refund, or payment, if appropriate. The refund or 
payment will

[[Page 343]]

normally be the difference between the amount paid under the unjust and/
or unreasonable rate, term, or condition and the amount that would have 
been paid under the rate, term, or condition established by the 
Commission from the date that the complaint, as acceptable, was filed, 
plus interest.

[44 FR 31650, June 1, 1979]



Sec. 1.1411  Meetings and hearings.

    The Commission may decide each complaint upon the filings and 
information before it, may require one or more informal meetings with 
the parties to clarify the issues or to consider settlement of the 
dispute, or may, in its discretion, order evidentiary procedures upon 
any issues it finds to have been raised by the filings.



Sec. 1.1412  Enforcement.

    If the respondent fails to obey any order imposed under this 
subpart, the Commission on its own motion or by motion of the 
complainant may order the respondent to show cause why it should not 
cease and desist from violating the Commission's order.



Sec. 1.1413  Forfeiture.

    (a) If any person willfully fails to obey any order imposed under 
this subpart, or any Commission rule, or
    (b) If any person shall in any written response to Commission 
correspondence or inquiry or in any application, pleading, report, or 
any other written statement submitted to the Commission pursuant to this 
subpart make any misrepresentation bearing on any matter within the 
jurisdiction of the Commission, the Commission may, in addition to any 
other remedies, including criminal penalties under section 1001 of Title 
18 of the United States Code, impose a forfeiture pursuant to section 
503(b) of the Communications Act, 47 U.S.C. 503(b).



Sec. 1.1414  State certification.

    (a) If the Commission does not receive certification from a state 
that:
    (1) It regulates rates, terms and conditions for pole attachments;
    (2) In so regulating such rates, terms and conditions, the state has 
the authority to consider and does consider the interests of the 
subscribers of cable television services as well as the interests of the 
consumers of the utility services; and,
    (3) It has issued and made effective rules and regulations 
implementing the state's regulatory authority over pole attachments 
(including a specific methodology for such regulation which has been 
made publicly available in the state), it will be rebuttably presumed 
that the state is not regulating pole attachments.
    (b) Upon receipt of such certification, the Commission shall give 
public notice. In addition, the Commission shall compile and publish 
from time to time, a listing of states which have provided 
certification.
    (c) Upon receipt of such certification, the Commission shall forward 
any pending case thereby affected to the state regulatory authority, 
shall so notify the parties involved and shall give public notice 
thereof.
    (d) Certification shall be by order of the state regulatory body or 
by a person having lawful delegated authority under provisions of state 
law to submit such certification. Said person shall provide in writing a 
statement that he or she has such authority and shall cite the law, 
regulation or other instrument conferring such authority.
    (e) Notwithstanding any such certification, jurisdiction will revert 
to this Commission with respect to any individual matter, unless the 
state takes final action on a complaint regarding such matter:
    (1) Within 180 days after the complaint is filed with the state, or
    (2) Within the applicable periods prescribed for such final action 
in such rules and regulations of the state, if the prescribed period 
does not extend beyond 360 days after the filing of such complaint.

[43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31650, June 1, 1979; 50 
FR 18659, May 5, 1985]



Sec. 1.1415  Other orders.

    The Commission may issue such other orders and so conduct its 
proceedings as will best conduce to the proper dispatch of business and 
the ends of justice.

[[Page 344]]



Sec. 1.1416  Imputation of rates; modification costs.

    (a) A utility that engages in the provision of telecommunications 
services or cable services shall impute to its costs of providing such 
services (and charge any affiliate, subsidiary, or associate company 
engaged in the provision of such services) an equal amount to the pole 
attachment rate for which such company would be liable under this 
section.
    (b) The costs of modifying a facility shall be borne by all parties 
that obtain access to the facility as a result of the modification and 
by all parties that directly benefit from the modification. Each party 
described in the preceding sentence shall share proportionately in the 
cost of the modification. A party with a preexisting attachment to the 
modified facility shall be deemed to directly benefit from a 
modification if, after receiving notification of such modification as 
provided in subpart J of this part, it adds to or modifies its 
attachment. Notwithstanding the foregoing, a party with a preexisting 
attachment to a pole, conduit, duct or right-of-way shall not be 
required to bear any of the costs of rearranging or replacing its 
attachment if such rearrangement or replacement is necessitated solely 
as a result of an additional attachment or the modification of an 
existing attachment sought by another party. If a party makes an 
attachment to the facility after the completion of the modification, 
such party shall share proportionately in the cost of the modification 
if such modification rendered possible the added attachment.

[61 FR 43025, Aug. 20, 1996; 61 FR 45619, Aug. 29, 1996]



Sec. 1.1417  Allocation of Unusable Space Costs.

    (a) With respect to the formula referenced in Sec. 1.1409(e)(2), a 
utility shall apportion the cost of providing unusable space on a pole 
so that such apportionment equals two-thirds of the costs of providing 
unusable space that would be allocated to such entity under an equal 
apportionment of such costs among all attaching entities.
    (b) All attaching entities attached to the pole shall be counted for 
purposes of apportioning the cost of unusable space.
    (c) Utilities may use the following rebuttable presumptive averages 
when calculating the number of attaching entities with respect to the 
formula referenced in Sec. 1.1409(e)(2). For non-urbanized service 
areas (under 50,000 population), a presumptive average number of 
attaching entities of three (3). For urbanized service areas (50,000 or 
higher population), a presumptive average number of attaching entities 
of five (5). If any part of the utility's service area within the state 
has a designation of urbanized (50,000 or higher population) by the 
Bureau of Census, United States Department of Commerce, then all of that 
service area shall be designated as urbanized for purposes of 
determining the presumptive average number of attaching entities.
    (d) A utility may establish its own presumptive average number of 
attaching entities for its urbanized and non-urbanized service area as 
follows:
    (1) Each utility shall, upon request, provide all attaching entities 
and all entities seeking access the methodology and information upon 
which the utilities presumptive average number of attachers is based.
    (2) Each utility is required to exercise good faith in establishing 
and updating its presumptive average number of attachers.
    (3) The presumptive average number of attachers may be challenged by 
an attaching entity by submitting information demonstrating why the 
utility's presumptive average is incorrect. The attaching entity should 
also submit what it believes should be the presumptive average and the 
methodology used. Where a complete inspection is impractical, a 
statistically sound survey may be submitted.
    (4) Upon successful challenge of the existing presumptive average 
number of attachers, the resulting data determined shall be used by the 
utility as the presumptive number of attachers within the rate formula.

[63 FR 12026, Mar. 12, 1998, as amended at 66 FR 34581, June 29, 2001]

    Effective Date Note: At 63 FR 12026, Mar. 12, 1998, Sec. 1.1417 was 
added. The section contains information collection and recordkeeping 
requirements and will not become

[[Page 345]]

effective until approval has been given by the Office of Management and 
Budget.



Sec. 1.1418  Use of presumptions in calculating the space factor.

    With respect to the formulas referenced in Sec. 1.1409(e)(1) and 
Sec. 1.1409(e)(2), the space occupied by an attachment is presumed to 
be one (1) foot. The amount of usable space is presumed to be 13.5 feet. 
The amount of unusable space is presumed to be 24 feet. The pole height 
is presumed to be 37.5 feet. These presumptions may be rebutted by 
either party.

[66 FR 34581, June 29, 2001]



 Subpart K_Implementation of the Equal Access to Justice Act (EAJA) in 
                           Agency Proceedings

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 47 FR 3786, Jan. 27, 1982, unless otherwise noted.

                           General Provisions



Sec. 1.1501  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called the EAJA in 
this subpart), provides for the award of attorney's fees and other 
expenses to eligible individuals and entities who are parties to certain 
administrative proceedings (called adversary adjudications) before the 
Commission. An eligible party may receive an award when it prevails over 
the Commission, unless the Commission's position in the proceeding was 
substantially justified or special circumstances make an award unjust, 
or when the demand of the Commission is substantially in excess of the 
decision in the adversary adjudication and is unreasonable when compared 
with such decision, under the facts and circumstances of the case, 
unless the party has committed a willful violation of law or otherwise 
acted in bad faith, or special circumstances make an award unjust. The 
rules in this part describe the parties eligible for awards and the 
proceedings that are covered. They also explain how to apply for awards, 
and the procedures and standards that the Commission will use to make 
them.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39898, July 31, 1996]



Sec. 1.1502  When the EAJA applies.

    The EAJA applies to any adversary adjudication pending or commenced 
before the Commission on or after August 5, 1985. The provisions of 
Sec. 1.1505(b) apply to any adversary adjudications commenced on or 
after March 29, 1996.

[61 FR 39898, July 31, 1996]



Sec. 1.1503  Proceedings covered.

    (a) The EAJA applies to adversary adjudications conducted by the 
Commission. These are adjudications under 5 U.S.C. 554 in which the 
position of the Commission or any other agency of the United States, or 
any component of an agency, is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding. Any proceeding in which this Agency may fix a lawful present 
or future rate is not covered by the EAJA. Proceedings to grant or renew 
licenses are also excluded, but proceedings to modify, suspend, or 
revoke licenses are covered if they are otherwise ``adversary 
adjudications''.
    (b) The Commission may designate a proceeding as an adversary 
adjudication for purposes of the EAJA by so stating in an order 
initiating the proceeding or designating the matter for hearing. The 
Commission's failure to designate a proceeding as an adversary 
adjudication shall not preclude the filing of an application by a party 
who believes the proceeding is covered by the EAJA; whether the 
proceeding is covered will then be an issue for resolution in 
proceedings on the application.
    (c) If a proceeding includes both matters covered by the EAJA and 
matters specifically excluded from coverage, any awards made will 
include only fees and expenses related to covered issues.

[47 FR 3786, Jan. 27, 1982, as amended at 52 FR 11653, Apr. 10, 1987]



Sec. 1.1504  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the EAJA, the applicant must be a party, as defined in 5 U.S.C. 
551(3), to

[[Page 346]]

the adversary adjudication for which it seeks an award. The applicant 
must show that it meets all conditions of eligibility set out in this 
paragraph and in paragraph (b) of this section.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable association as defined in section 501(c)(3) of the 
Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 
employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees;
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees;
    (6) For purposes of Sec. 1.1505(b), a small entity as defined in 5 
U.S.C. 601.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The number of employees of an applicant include all persons who 
regularly perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the Administrative Law Judge determines that such treatment 
would be unjust and contrary to the purposes of the EAJA in light of the 
actual relationship between the affiliated entities. In addition, the 
Administrative Law Judge may determine that financial relationships of 
the applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.

[47 FR 3786, Jan. 27, 1982, as amended at 52 FR 11653, Apr. 10, 1987; 61 
FR 39898, July 31, 1996]



Sec. 1.1505  Standards for awards.

    (a) A prevailing party may receive an award for fees and expenses 
incurred in connection either with an adversary adjudication, or with a 
significant and discrete substantive portion of an adversary 
adjudication in which the party has prevailed over the position of the 
Commission.
    (1) The position of the Commission includes, in addition to the 
position taken by the Commission in the adversary adjudication, the 
action or failure to act by the agency upon which the adversary 
adjudication is based.
    (2) An award will be reduced or denied if the Commission's position 
was substantially justified in law and fact, if special circumstances 
make an award unjust, or if the prevailing party unduly or unreasonably 
protracted the adversary adjudication.
    (b) If, in an adversary adjudication arising from a Commission 
action to enforce a party's compliance with a statutory or regulatory 
requirement, the demand of the Commission is substantially in excess of 
the decision in the adversary adjudication and is unreasonable when 
compared with that decision, under the facts and circumstances of the 
case, the party shall be awarded the fees and other expenses

[[Page 347]]

related to defending against the excessive demand, unless the party has 
committed a willful violation of law or otherwise acted in bad faith, or 
special circumstances make an award unjust. The ``demand'' of the 
Commission means the express demand which led to the adversary 
adjudication, but it does not include a recitation by the Commission of 
the maximum statutory penalty in the administrative complaint, or 
elsewhere when accompanied by an express demand for a lesser amount.
    (c) The burden of proof that an award should not be made is on the 
appropriate Bureau (see Sec. 1.21) whose representative shall be called 
``Bureau counsel'' in this subpart K.

[61 FR 39899, July 31, 1996]



Sec. 1.1506  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $75.00, or for adversary adjudications commenced on or after 
March 29, 1996, $125.00, per hour. No award to compensate an expert 
witness may exceed the highest rate at which the Commission pays expert 
witnesses. However, an award may also include the reasonable expenses of 
the attorney; agent, or witness as a separate item, if the attorney, 
agent or witness ordinarily charges its clients separately for such 
expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the Administrative Law Judge shall 
consider the following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the service 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.
    (e) Fees may be awarded only for work performed after designation of 
a proceeding or after issuance of a show cause order.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]



Sec. 1.1507  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Commission may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than $125.00 per hour in some or all of the types of proceedings covered 
by this part. The Commission will conduct any rulemaking proceedings for 
this purpose under the informal rulemaking procedures of the 
Administrative Procedure Act.
    (b) Any person may file with the Commission a petition for 
rulemaking to increase the maximum rate for attorney fees, in accordance 
with subpart C of this chapter. The petition should identify the rate 
the petitioner believes this agency should establish and the types of 
proceedings in which the rate should be used. It should also explain 
fully the reasons why the higher rate is warranted. This agency will 
respond to the petition by initiating a rulemaking proceeding, denying 
the petition, or taking other appropriate action.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]



Sec. 1.1508  Awards against other agencies.

    If an applicant is entitled to an award because it prevails over 
another agency of the United States that participates in a proceeding 
before the Commission and takes a position that is not substantially 
justified, the

[[Page 348]]

award or an appropriate portion of the award shall be made against that 
agency. Counsel for that agency shall be treated as Bureau counsel for 
the purpose of this subpart.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]

                  Information Required From Applicants



Sec. 1.1511  Contents of application.

    (a) An application for an award of fees and expenses under EAJA 
shall dentify the applicant and the proceeding for which an award is 
sought. Unless the applicant is an individual, the application shall 
state the number of employees of the applicant and describe briefly the 
type and purpose of its organization or business. The application shall 
also:
    (1) Show that the applicant has prevailed and identify the position 
of an agency or agencies in the proceeding that the applicant alleges 
was not substantially justified; or
    (2) Show that the demand by the agency or agencies in the proceeding 
was substantially in excess of, and was unreasonable when compared with, 
the decision in the proceeding.
    (b) The application shall also include a declaration that the 
applicant is a small entity as defined in 5 U.S.C. 601 or a statement 
that the applicant's net worth does not exceed $2 million (if an 
individual) or $7 million (for all other applicants, including their 
affiliates). However, an applicant may omit the statement concerning its 
net worth if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the Commission to consider in determining whether and 
in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.

[47 FR 3786, Jan. 27, 1982, as amended at 52 FR 11653, Apr. 10, 1987; 61 
FR 39899, July 31, 1996]



Sec. 1.1512  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 1.1504(f) of this part) at the time the proceeding was 
designated. The exhibit may be in any form convenient to the applicant 
that provides full disclosure of the applicant's and its affiliates' 
assets and liabilities and is sufficient to determine whether the 
applicant qualifies under the standards in this subpart. The 
Administrative Law Judge may require an applicant to file additional 
information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the Administrative Law Judge in 
a sealed enevelope labeled ``Confidential Financial Information'', 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosue of the 
information would adversely affect the

[[Page 349]]

applicant, and why disclosure is not required in the public interest. 
The material in question shall be served on Bureau counsel, but need not 
be served on any other party to the proceeding. If the Administrative 
Law Judge finds that the information should not be withheld from 
disclosure, it shall be placed in the public record of the proceeding. 
Otherwise, any request to inspect or copy the exhibit shall be disposed 
of in accordance with the Commission's established procedures under the 
Freedom of Information Act, Sec. Sec. 0.441 through 0.466 of this 
chapter.



Sec. 1.1513  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing hours spent in connection with the proceeding by 
each individual, a description of the specific services performed, the 
rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The Administrative Law Judge may require the 
applicant to provide vouchers, receipts, or other substantiation for any 
expenses claimed.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]



Sec. 1.1514  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, or when the demand of the Commission is substantially 
in excess of the decision in the proceeding, but in no case later than 
30 days after the Commission's final disposition of the proceeding.
    (b) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy.
    (c) For purposes of this rule, final disposition means the later of
    (1) The date on which an initial decision or other recommended 
disposition of the merits of the proceeding by an Administrative Law 
Judge becomes administratively final;
    (2) Issuance of an order disposing of any petitions for 
reconsideration of the Commission's order in the proceeding;
    (3) If no petition for reconsideration is filed, the last date on 
which such petition could have been filed;
    (4) Issuance of a final order by the Commission or any other final 
resolution of a proceeding, such as settlement or voluntary dismissal, 
which is not subject to a petition for reconsideration, or to a petition 
for judicial review; or
    (5) Completion of judicial action on the underlying controversy and 
any subsequent Commission action pursuant to judicial mandate.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]

                 Procedures for Considering Applications



Sec. 1.1521  Filing and service of documents.

    Any application for an award or other pleading relating to an 
application shall be filed and served on all parties to the proceeding 
in the same manner as other pleadings in the proceeding, except as 
provided in Sec. 1.1512(b) for confidential financial information.



Sec. 1.1522  Answer to application.

    (a) Within 30 days after service of an application Bureau counsel 
may file an answer to the application. Unless Bureau counsel requests an 
extension of time for filing or files a statement of intent to negotiate 
under paragraph (b) of this section, failure to file an answer within 
the 30-day period may be treated as a consent to the award request.
    (b) If Bureau counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
their intent to negotiate a settlement. The filing of this statement 
shall extend the time

[[Page 350]]

for filing an answer for an additional 30 days, and further extensions 
may be granted by the Administrative Law Judge upon request by Bureau 
counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of Bureau 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, Bureau counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 1.1526.



Sec. 1.1523  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
Sec. 1.1526.



Sec. 1.1524  Comments by other parties.

    Any party to a proceeding other than the applicant and Bureau 
counsel may file comments on an application within 30 days after it is 
served or an answer within 15 days after it is served. A commenting 
party may not participate further in proceedings on the application 
unless the Administrative Law Judge determines that the public interest 
requires such participation in order to permit full exploration of 
matters raised in the comments.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39899, July 31, 1996]



Sec. 1.1525  Settlement.

    The applicant and Bureau counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded. If a prevailing party and 
Bureau counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement. If the Administrative Law Judge approves the 
proposed settlement, it shall be forwarded to the Commission for final 
approval.



Sec. 1.1526  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or Bureau counsel, or on his or her own initiative, the Administrative 
Law Judge may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or, as to issues other 
than excessive demand or substantial justification, an evidentiary 
hearing. Such further proceedings shall be held only when necessary for 
full and fair resolution of the issues arising from the application, and 
shall be conducted as promptly as possible. Whether or not the position 
of the agency embodied an excessive demand or was substantially 
justified shall be determined on the basis of the administrative record, 
as a whole, which is made in the adversary adjudication for which fees 
and other expenses are sought.
    (b) A request that the Administrative Law Judge order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.

[47 FR 3786, Jan. 27, 1982, as amended at 52 FR 11653, Apr. 10, 1987; 61 
FR 39899, July 31, 1996]



Sec. 1.1527  Decision.

    The Administrative Law Judge shall issue an initial decision on the 
application as soon as possible after completion of proceedings on the 
application. The decision shall include written findings and conclusions 
regarding the applicant's eligibility and whether the applicant was a 
prevailing party or whether the demand by the agency or agencies in the 
proceeding was substantially in excess of, and was unreasonable when 
compared with, the decision in the adversary adjudication, and an 
explanation of the reasons for any difference between the amount 
requested and the amount awarded. The decision shall also include, if at 
issue, findings on whether the Commission's position substantially 
justified, whether the applicant unduly protracted the

[[Page 351]]

proceedings, committed a willful violation of law, or otherwise acted in 
bad faith, or whether special circumstances make an award unjust. If the 
applicant has sought an award against more than one agency, the decision 
shall allocate responsibility for payment of any award made among the 
agencies, and shall explain the reasons for the allocation made.

[61 FR 39900, July 31, 1996]



Sec. 1.1528  Commission review.

    Either the applicant or Bureau counsel may seek Commission review of 
the initial decision on the application, or the Commission may decide to 
review the decision on its own initiative, in accordance with Sec. Sec. 
1.276 through 1.282 of this chapter. Except as provided in Sec. 1.1525, 
if neither the applicant nor Bureau counsel seeks review and the 
Commission does not take review on its own initiative, the initial 
decision on the application shall become a final decision of the 
Commission 50 days after it is issued. Whether to review a decision is a 
matter within the discretion of the Commission. If review is taken, the 
Commission will issue a final decision on the application or remand the 
application to the Administrative Law Judge for further proceedings.

[47 FR 3786, Jan. 27, 1982, as amended at 61 FR 39900, July 31, 1996]



Sec. 1.1529  Judicial review.

    Judicial review of final agency decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 1.1530  Payment of award.

    An applicant seeking payment of an award from the Commission shall 
submit to the General Counsel a copy of the Commission's final decision 
granting the award, accompanied by a statement that the applicant will 
not seek review of the decision in the United States courts, or a copy 
of the court's order directing payment. The Commission will pay the 
amount awarded to the applicant unless judicial review of the award or 
the underlying decision of the adversary adjudication has been sought by 
the applicant or any other party to the proceeding.



      Subpart L_Random Selection Procedures for Mass Media Services

    Authority: 47 U.S.C. 309(i).

    Source: 48 FR 27202, June 13, 1983, unless otherwise noted.

                           General Procedures



Sec. 1.1601  Scope.

    The provisions of this subpart, and the provisions referenced 
herein, shall apply to applications for initial licenses or construction 
permits or for major changes in the facilities of authorized stations in 
the following services:
    (a)-(b) [Reserved]

[48 FR 27202, June 13, 1983, as amended at 63 FR 48622, Sept. 11, 1998]



Sec. 1.1602  Designation for random selection.

    Applications in the services specified in Sec. 1.1601 shall be 
tendered, accepted or dismissed, filed, publicly noted and subject to 
random selection and hearing in accordance with any relevant rules. 
Competing applications for an initial license or construction permit 
shall be designated for random selection and hearing in accordance with 
the procedures set forth in Sec. Sec. 1.1603 through 1.1623 and Sec. 
73.3572 of this chapter.



Sec. 1.1603  Conduct of random selection.

    The random selection probabilities will be calculated in accordance 
with the formula set out in rules Sec. Sec. 1.1621 through 1.1623.

[48 FR 27202, June 13, 1983, as amended at 48 FR 43330, Sept. 23, 1983]



Sec. 1.1604  Post-selection hearings.

    (a) Following the random selection, the Commission shall announce 
the ``tentative selectee'' and, where permitted by Sec. 73.3584 invite 
Petitions to Deny its application.
    (b) If, after such hearing as may be necessary, the Commission 
determines that the ``tentative selectee'' has met the requirements of 
Sec. 73.3591(a) it will make the appropriate grant. If the Commission 
is unable to make such a

[[Page 352]]

determination, it shall order that another random selection be conducted 
from among the remaining mutually exclusive applicants, in accordance 
with the provisions of this subpart.
    (c) If, on the basis of the papers before it, the Commission 
determines that a substantial and material question of fact exists, it 
shall designate that question for hearing. Hearings may be conducted by 
the Commission or, in the case of a matter which requires oral testimony 
for its resolution, an Administrative Law Judge.

[48 FR 27202, June 13, 1983, as amended at 63 FR 48622, Sept. 11, 1998]



Sec. 1.1621  Definitions.

    (a) Medium of mass communications means:
    (1) A daily newspaper;
    (2) A cable television system; and
    (3) A license or construction permit for
    (i) A television station, including low power TV or TV translator,
    (ii) A standard (AM) radio station,
    (iii) An FM radio station,
    (iv) A direct broadcast satellite transponder under the editorial 
control of the licensee, and
    (v) A Multipoint Distribution Service station.
    (b) Minority group means:
    (1) Blacks,
    (2) Hispanics
    (3) American Indians,
    (4) Alaska Natives,
    (5) Asians, and
    (6) Pacific Islanders.
    (c) Owner means the applicant and any individual, partnership, 
trust, unincorporated association, or corporation which:
    (1) If the applicant is a proprietorship, is the proprietor,
    (2) If the applicant is a partnership, holds any partnership 
interest,
    (3) If the applicant is a trust, is the beneficiary thereof,
    (4) If the applicant is an unincorporated association or non-stock 
corporation, is a member, or, in the case of a nonmembership association 
or corporation, a director,
    (5) If the applicant is a stock corporation, is the beneficial owner 
of voting shares.

    Note 1: For purposes of applying the diversity preference to such 
entities only the other ownership interests of those with a 1% or more 
beneficial interest in the entity will be cognizable.
    Note 2: For the purposes of this section, a daily newspaper is one 
which is published four or more days per week, which is in the English 
language, and which is circulated generally in the community of 
publication. A college newspaper is not considered as being circulated 
generally.
    Note 3: For the purposes of applying the diversity preference, the 
ownership interests of the spouse of an applicant's principal will not 
presumptively be attributed to the applicant.

[48 FR 27202, June 13, 1983, as amended at 50 FR 5992, Feb. 13, 1985]



Sec. 1.1622  Preferences.

    (a) Any applicant desiring a perference in the random selection 
shall so indicate as part of its application. Such an applicant shall 
list any owner who owns all or part of a medium of mass communications 
or who is a member of a minority group, together with a precise 
identification of the ownership interest held in such medium of mass 
communications or name of the minority group, respectively. Such an 
applicant shall also state whether more than 50% of the ownership 
interests in it are held by members of minority groups and the number of 
media of mass communications more than 50% of whose ownership interests 
are held by the applicant and/or its owners.
    (b) Preference factors as incorporated in the percentage 
calculations in Sec. 1.1623, shall be granted as follows:
    (1) Applicants, more than 50% of whose ownership interests are held 
by members of minority groups--2:1.
    (2) Applicants whose owners in the aggregate hold more than 50% of 
the ownership interests in no other media of mass communications--2:1.
    (3) Applicants whose owners in the aggregate hold more than 50% of 
the ownership interest in one, two or three other media of mass 
communications--1.5:1.
    (c) Applicants may receive preferences pursuant to Sec. 
1.1622(b)(1) and either Sec. 1.1622 (b)(2) or (b)(3).
    (d) Preferences will be determined on the basis of ownership 
interests as of the date of release of the latest Public

[[Page 353]]

Notice announcing the acceptance of the last-filed mutually exclusive 
application.
    (e) No preferences pursuant to Sec. 1.1622 (b)(2) or (b)(3) shall 
be granted to any LPTV or MDS applicant whose owners, when aggregated, 
have an ownership interest of more than 50 percent in the following 
media of mass communications, if the service areas of those media as 
described herein wholly encompass or are encompassed by the protected 
predicted contour, computed in accordance with Sec. 74.707(a), of the 
low power TV or TV translator station for which the license or permit is 
sought, or computed in accordance with Sec. 21.902(d), of the MDS 
station for which the license or permit is sought.
    (1) AM broadcast station--predicted or measured 2 mV/m groundwave 
contour, computed in accordance with Sec. 73.183 or Sec. 73.186;
    (2) FM broadcast station--predicted 1 mV/m contour, computed in 
accordance with Sec. 73.313;
    (3) TV broadcast station--Grade A contour, computed in accordance 
with Sec. 73.684;
    (4) Low power TV or TV translator station--protected predicted 
contour, computed in accordance with Sec. 74.707(a);
    (5) Cable television system franchise area, nor will the diversity 
preference be available to applicants whose proposed transmitter site is 
located within the franchise area of a cable system in which its owners, 
in the aggregate, have an ownership interest of more than 50 percent.
    (6) Daily newspaper community of publication, nor will the diversity 
preference be available to applicants whose proposed transmitter site is 
located within the community of publication of a daily newspaper in 
which its owners, in the aggregate, have an ownership interest of more 
than 50 percent.
    (7) Multipoint Distribution Service--station service area, computed 
in accordance with Sec. 21.902(d).

[48 FR 27202, June 13, 1983, as amended at 50 FR 5992, Feb. 13, 1985; 50 
FR 11161, Mar. 20, 1985]



Sec. 1.1623  Probability calculation.

    (a) All calculations shall be computed to no less than three 
significant digits. Probabilities will be truncated to the number of 
significant digits used in a particular lottery.
    (b) Divide the total number of applicants into 1.00 to determine 
pre-preference probabilities.
    (c) Multiply each applicant's pre-preference probability by the 
applicable preference from Sec. 1.1622 (b)(2) or (b)(3).
    (d) Divide each applicant's probability pursuant to paragraph (c) of 
this section by the sum of such probabilities to determine intermediate 
probabilities.
    (e) Add the intermediate probabilities of all applicants who 
received a preference pursuant to Sec. 1.1622 (b)(2) or (b)(3).
    (f)(1) If the sum pursuant to paragraph (e) of this section is .40 
or greater, proceed to paragraph (g) of this section.
    (2) If the sum pursuant to paragraph (e) of this section is less 
than .40, then multiply each such intermediate probability by the ratio 
of .40 to such sum. Divide .60 by the number of applicants who did not 
receive a preference pursuant to Sec. 1.1622 (b)(2) or (b)(3) to 
determine their new intermediate probabilities.
    (g) Multiply each applicant's probability pursuant to paragraph (f) 
of this section by the applicable preference ratio from Sec. 
1.1622(b)(1).
    (h) Divide each applicant's probability pursuant to paragraph (g) of 
this section by the sum of such probabilities to determine the final 
selection percentage.



         Subpart M_Cable Operations and Licensing System (COALS)

    Source: 68 FR 27001, May 19, 2003, unless otherwise noted.



Sec. 1.1701  Purpose.

    To provide electronic filing of applications, notifications, 
registration statements, reports, and related documents in the 
Multichannel Video and Cable Television Services and the Cable 
Television Relay Services.



Sec. 1.1702  Scope.

    This subpart applies to filings required by Sec. Sec. 76.403, 
76.1610, 76.1801,

[[Page 354]]

76.1803, & 76.1804, and 78.11 through 78.36 of this chapter.



Sec. 1.1703  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Application. A request on Form 327 for a station license as 
defined in Section 3(b) of the Communications Act, completed in 
accordance with Sec. 78.15 and signed in accordance with Sec. 78.16 of 
this chapter, or a similar request to amend a pending application or to 
modify or renew an authorization. The term also encompasses requests to 
assign rights granted by the authorization or to transfer control of 
entities holding authorizations.
    (b) Authorization. A written instrument issued by the FCC conveying 
authority to operate, for a specified period, a station in the Cable 
Television Relay Service. In addition, this term includes authority 
conveyed by operation of rule upon filing notification of aeronautical 
frequency usage by MVPDs or registration statements by cable operators.
    (c) Cable Operations And Licensing System (COALS). The consolidated 
database, application filing system, and processing system for 
Multichannel Video and Cable Television Services (MVCTS) and the Cable 
Television Relay Service (CARS). COALS supports electronic filing of all 
applications, notifications, registrations, reports, and related 
documents by applicants and licensees in the MVCTS and CARS, and 
provides public access to licensing information.
    (d) Cable Television Relay Service (CARS). All services authorized 
under part 78 of this title.
    (e) Filings. Any application, notification, registration statement, 
or report in plain text or, when as prescribed, on FCC Forms 320, 321, 
322, 324, 325, or 327, whether filed in paper form or electronically.
    (f) Multichannel Video and Cable Television Services (MVCTS). All 
services authorized or operated in accordance with part 76 of this 
title.
    (g) Receipt date. The date an electronic or paper application is 
received at the appropriate location at the Commission or the lock box 
bank. Major amendments to pending applications as defined in Sec. 
78.109 of this chapter, will result in the assignment of a new receipt 
date.
    (h) Signed. For manually filed applications only, an original hand-
written signature. For electronically filed applications only, an 
electronic signature. An electronic signature shall consist of the name 
of the applicant transmitted electronically via COALS and entered on the 
filing as a signature.



Sec. 1.1704  Station files.

    Applications, notifications, correspondence, electronic filings and 
other material, and copies of authorizations, comprising technical, 
legal, and administrative data relating to each system in the 
Multichannel Video and Cable Television Services (MVCTS) and the Cable 
Television Relay Service (CARS) are maintained by the Commission in 
COALS and the Public Reference Room. These files constitute the official 
records for these stations and supersede any other records, database or 
lists from the Commission or other sources.



Sec. 1.1705  Forms; electronic and manual filing.

    (a) Application forms. Operators in the Multichannel Video and Cable 
Television Services (MVCTS) and applicants and licensees the Cable 
Television Relay Service (CARS) shall use the following forms and 
associated schedules:
    (1) FCC Form 320, Basic Signal Leakage Performance Report. FCC Form 
320 is used by MVPDs to report compliance with the basic signal leakage 
performance criteria.
    (2) FCC Form 321, Aeronautical Frequency Notification. FCC Form 321 
is used by MVPDs to notify the Commission prior to operating channels in 
the aeronautical frequency bands.
    (3) FCC Form 322, Cable Community Registration. FCC Form 322 is used 
by cable system operators to commence operation for each community unit.
    (4) FCC Form 324, Operator, Address, and Operational Information 
Changes. FCC Form 324 is used by cable operators to notify the 
Commission of changes in administrative data about the operator and 
operational status changes.

[[Page 355]]

    (5) FCC Form 325, Cable Television System Report. FCC Form 325 is 
used by cable operators to report general information and signal and 
frequency distribution data.
    (6) FCC Form 327, Application for Cable Television Relay Service 
Station License. FCC Form 327 and associated schedules is used to apply 
for initial authorizations, modifications to existing authorizations, 
amendments to pending applications, and renewals of station 
authorizations. FCC Form 327 is also used to apply for Commission 
consent to assignments of existing CARS authorizations and to apply for 
Commission consent to the transfer of control of entities holding CARS 
authorizations.
    (b) Electronic filing. Six months after the Commission announces 
their availability for electronic filing, all applications and other 
filings using FCC Forms 320, 321, 322, 324, 325, and 327 and their 
respective associated schedules must be filed electronically in 
accordance with the electronic filing instructions provided by COALS.
    (1) There will be two ways for parties to electronically file 
applications with the Commission: batch and interactive.
    (i) Batch filing. Batch filing involves data transmission in a 
single action. Batch filers will follow a set Commission format for 
entering data. Batch filers will then send, via file transfer protocol, 
batches of data to the Commission for compiling. COALS will compile such 
filings overnight and respond the next business day with a return or 
dismissal of any defective filings. Thus, batch filers will not receive 
immediate correction from the system as they enter the information.
    (ii) Interactive filing. Interactive filing involves data 
transmission with screen-by-screen prompting from the Commission's COALS 
system. Interactive filers will receive prompts from the system 
identifying data entries outside the acceptable ranges of data for the 
individual fields at the time the data entry is made.
    (2) Attachments to applications must be uploaded along with the 
electronically filed application whenever possible.
    (3) Any associated documents submitted with an application must be 
uploaded as attachments to the application whenever possible. The 
attachment should be uploaded via COALS in Adobe Acrobat Portable 
Document Format (PDF) whenever possible.
    (c) Manual filing. (1) Forms 320, 321, 322, 324, 325, and 327 may be 
filed manually.
    (2) Manual filings must be submitted to the Commission at the 
appropriate address with the appropriate filing fee. The addresses for 
filing and the fee amounts for particular applications are listed in 
subpart G of this part, and in the appropriate fee filing guide for each 
service available from the Commission's Forms Distribution Center by 
calling 1-800-418-FORM (3676). The form may be downloaded from the 
Commission's Web site: http://www.fcc.gov.
    (3) Manual filings requiring fees as set forth at subpart G, of this 
part must be filed in accordance with Sec. 0.401(b) of this chapter.
    (4) Manual filings that do not require fees must be addressed and 
sent to the Media Bureau, Federal Communications Commission, 445 12th 
Street, SW., Washington, DC 20554.
    (5) FCC forms may be reproduced and the copies used in accordance 
with the provisions of Sec. 0.409 of this chapter.
    (d) Applications requiring prior coordination. Parties filing 
applications that require frequency coordination shall, prior to filing, 
complete all applicable frequency coordination requirements in Sec. 
78.36 of this chapter.



Sec. 1.1706  Content of filings.

    (a) General. Filings must contain all information requested on the 
applicable form and any additional information required by the rules in 
this title and any rules pertaining to the specific service for which 
the filing is made.
    (b) Antenna locations. Applications for CARS stations and 
aeronautical frequency usage notifications must describe each 
transmitting antenna site or center of the cable system, respectively, 
by its geographical coordinates. Geographical coordinates must be 
specified in degrees, minutes, and seconds to the nearest tenth of a 
second of latitude and longitude. Submissions must provide such data 
using the NAD83 datum.

[[Page 356]]

    (c) Antenna structure registration. Owners of certain antenna 
structures must notify the Federal Aviation Administration and register 
with the Commission as required by Part 17 of this chapter. Applications 
proposing the use of one or more new or existing antenna structures must 
contain the FCC Antenna Registration Number(s) of each structure for 
which registration is required. If registration is not required, the 
applicant must provide information in its application sufficient for the 
Commission to verify this fact.
    (d) Environmental concerns. Each applicant is required to indicate 
at the time its application is filed whether a Commission grant of the 
application may have a significant environmental effect, as defined by 
Sec. 1.1307. If yes, an Environmental Assessment, required by Sec. 
1.1311, must be filed with the application and environmental review by 
the Commission must be completed prior to construction.
    (e) International coordination. Channel assignments and usage under 
part 78 are subject to the applicable provisions and requirements of 
treaties and other international agreements between the United States 
government and the governments of Canada and Mexico.
    (f) Taxpayer Identification Number (TINs). All filers are required 
to provide their Taxpayer Identification Numbers (TINS) (as defined in 
26 U.S.C. 6109) to the Commission, pursuant to the Debt Collection 
Improvement Act of 1996 (DCIA). Under the DCIA, the FCC may use an 
applicant or licensee's TIN for purposes of collecting and reporting to 
the Department of the Treasury any delinquent amounts arising out of 
such person's relationship with the Government.



Sec. 1.1707  Acceptance of filings.

    Regardless of filing method, all submissions with an insufficient 
fee, grossly deficient or inaccurate information, or those without a 
valid signature will be dismissed immediately. For any submission that 
is found subsequently to have minimally deficient or inaccurate 
information, we will notify the filer of the defect. We will allow 15 
days from the date of this notification for correction or amendment of 
the submission if the amendment is minor. If the applicant files a 
timely corrected application, it will ordinarily be processed as a minor 
amendment in accordance with the Commission's rules. Thus it will have 
no effect on the initial filing date of the application or the 
applicant's filing priority. If, however, the amendment made by the 
applicant is not a simple correction, but constitutes a major amendment 
to the application, it will be governed by the rules and procedures 
applicable to major amendments, that is, it will be treated as a new 
application with a new filing date and new fees must be paid by the 
applicant. Finally, if the applicant fails to submit an amended 
application within the period specified in the notification, the 
application will be subject to dismissal for failure to prosecute.



Subpart N_Enforcement of Nondiscrimination on the Basis of Disability In 
     Programs or Activities Conducted By the Federal Communications 
                               Commission

    Source: 68 FR 22316, Apr. 28, 2003, unless otherwise noted.



Sec. 1.1801  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 (section 504) to prohibit discrimination on the basis of 
disability in programs or activities conducted by Executive agencies or 
the United States Postal Service.



Sec. 1.1802  Applications.

    This part applies to all programs or activities conducted by the 
Federal Communications Commission. The programs or activities of 
entities that are licensed or certified by the Federal Communications 
Commission are not covered by these regulations.



Sec. 1.1803  Definitions.

    For purposes of this part, the term--

[[Page 357]]

    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Commission. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TTY/TDDs), interpreters, 
Computer-aided realtime transcription (CART), captioning, notetakers, 
written materials, and other similar services and devices.
    Commission means Federal Communications Commission.
    Complete complaint means a written statement, or a complaint in 
audio, Braille, electronic, and/or video format, that contains the 
complainant's name and address and describes the Commission's alleged 
discriminatory action in sufficient detail to inform the Commission of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. The signature of the complainant, or signature of someone 
authorized by the complainant to do so on his or her behalf, shall be 
provided on print complaints. Complaints in audio, Braille, electronic, 
and/or video formats shall contain an affirmative identity statement of 
the individual, which for this purpose shall be considered to be 
functionally equivalent to a complainant's signature. Complaints filed 
on behalf of classes or third parties shall describe or identify (by 
name, if possible) the alleged victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property.
    General Counsel means the General Counsel of the Federal 
Communications Commission.
    Individual with a disability means any individual who has a physical 
or mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes, but is not limited to--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) Diseases and conditions such as orthopedic, visual, speech, 
and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; 
multiple sclerosis; cancer; heart disease; diabetes; mental retardation; 
emotional illness; and drug addiction and alcoholism.
    (2) Major life activities include functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Commission as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Commission as having such impairment.
    Managing Director means the individual delegated authority as 
described in 47 CFR 0.11.

[[Page 358]]

    Programs or Activities mean any activity of the Commission permitted 
or required by its enabling statutes, including but not limited to any 
licensing or certification program, proceeding, investigation, hearing, 
meeting, board or committee.
    Qualified individual with a disability means--
    (1) With respect to any Commission program or activity under which 
an individual is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who, with or without 
reasonable modification to rules, policies, or practices or the 
provision of auxiliary aids, meets the essential eligibility 
requirements for participation in the program or activity and can 
achieve the purpose of the program or activity; or
    (2) With respect to any other program or activity, an individual 
with a disability who, with or without reasonable modification to rules, 
policies, or practices or the provision of auxiliary aids, meets the 
essential eligibility requirements for participation in, or receipt of 
benefits from, that program or activity; or
    (3) The definition of that term as defined for purposes of 
employment in 29 CFR 1630.2(m), which is made applicable to this part by 
Sec. 1.1840.
    Section 504 means section 504 of the Rehabilitation Act of 1973, 
Public Law 93-112, 87 Stat. 394, 29 U.S.C. 794, as amended by the 
Rehabilitation Act Amendments of 1974, Public Law 93-516, 88 Stat. 1617, 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Public Law 95-602, 92 Stat. 2955, and 
the Rehabilitation Act Amendments of 1986, sec. 103(d), Public Law 99-
506, 100 Stat. 1810. As used in this part, section 504 applies only to 
programs or activities conducted by Executive agencies and not to 
federally assisted programs.
    Section 504 Officer is the Commission employee charged with 
overseeing the Commission's section 504 programs and activities.



Sec. 1.1805  Federal Communications Commission Section 504 Programs and 
Activities Accessibility Handbook.

    The Consumer & Governmental Affairs Bureau shall publish a ``Federal 
Communications Commission Section 504 Programs and Activities 
Accessibility Handbook'' (``Section 504 Handbook'') for Commission 
staff, and shall update the Section 504 Handbook as necessary and at 
least every three years. The Section 504 Handbook shall be available to 
the public in hard copy upon request and electronically on the 
Commission's Internet website. The Section 504 Handbook shall contain 
procedures for releasing documents, holding meetings, receiving 
comments, and for other aspects of Commission programs and activities to 
achieve accessibility. These procedures will ensure that the Commission 
presents a consistent and complete accommodation policy pursuant to 29 
U.S.C. 794, as amended. The Section 504 Handbook is for internal staff 
use and public information only, and is not intended to create any 
rights, responsibilities, or independent cause of action against the 
Federal Government.



Sec. 1.1810  Review of compliance.

    (a) The Commission shall, beginning in 2004 and at least every three 
years thereafter, review its current policies and practices in view of 
advances in relevant technology and achievability. Based on this review, 
the Commission shall modify its practices and procedures to ensure that 
the Commission's programs and activities are fully accessible.
    (b) The Commission shall provide an opportunity to interested 
persons, including individuals with disabilities or organizations 
representing individuals with disabilities, to participate in the review 
process by submitting comments. Written comments shall be signed by the 
commenter or by someone authorized to do so on his or her behalf. The 
signature of the commenter, or signature of someone authorized by the 
commenter to do so on his or her behalf, shall be provided on print 
comments. Comments in audio, Braille, electronic, and/or video formats 
shall contain an affirmative identity statement of the individual, which

[[Page 359]]

for this purpose shall be considered to be functionally equivalent to a 
commenter's signature.
    (c) The Commission shall maintain on file and make available for 
public inspection for four years following completion of the compliance 
review--
    (1) A description of areas examined and problems identified;
    (2) All comments and complaints filed regarding the Commission's 
compliance; and
    (3) A description of any modifications made.



Sec. 1.1811  Notice.

    The Commission shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons information 
regarding the regulations set forth in this part, and their 
applicability to the programs or activities conducted by the Commission. 
The Commission shall make such information available to such persons in 
such manner as the Section 504 Officer finds necessary to apprise such 
persons of the protections against discrimination assured them by 
section 504.



Sec. 1.1830  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under any program or 
activity conducted by the Commission.
    (b) Discriminatory actions prohibited.
    (1) The Commission, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Commission may not deny a qualified individual with a 
disability the opportunity to participate in any program or activity 
even where the Commission is also providing equivalent permissibly 
separate or different programs or activities for persons with 
disabilities.
    (3) The Commission may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration--
    (i) That have the purpose or effect of subjecting qualified 
individuals with disabilities to discrimination on the basis of 
disability; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of a program or activity with 
respect to individuals with disabilities.
    (4) The Commission may not, in determining the site or location of a 
facility, make selections--
    (i) That have the purpose or effect of excluding individuals with 
disabilities from, denying them the benefits of, or otherwise subjecting 
them to discrimination under any program or activity conducted by the 
Commission; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of a program or activity 
with respect to individuals with disabilities.
    (5) The Commission, in the selection of procurement contractors, may 
not

[[Page 360]]

use criteria that subject qualified individuals with disabilities to 
discrimination on the basis of disability.
    (6) The Commission may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
Commission establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by the 
Commission are not, themselves, covered by this part.
    (7) The Commission shall make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the Commission can 
demonstrate that making the modifications would fundamentally alter the 
nature of the program, service, or activity.
    (c) This part does not prohibit the exclusion of persons without 
disabilities from the benefits of a program limited by Federal statute 
or Executive order to individuals with disabilities, or the exclusion of 
a specific class of individuals with disabilities from a program limited 
by Federal statute or Executive order to a different class of 
individuals with disabilities.
    (d) The Commission shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with disabilities.



Sec. 1.1840  Employment.

    No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Commission. The definitions, 
requirements and procedures of section 501 of the Rehabilitation Act of 
1973, 29 U.S.C. 791, as established by the Equal Employment Opportunity 
Commission in 29 CFR parts 1614 and 1630, as well as the procedures set 
forth in the Basic Negotiations Agreement Between the Federal 
Communications Commission and National Treasury Employees Union, as 
amended, and Subchapter III of the Civil Service Reform Act of 1978, 5 
U.S.C. 7121(d), shall apply to employment in federally conducted 
programs or activities.



Sec. 1.1849  Program accessibility: Discrimination prohibited.

    (a) Except as otherwise provided in Sec. 1.1850, no qualified 
individual with a disability shall, because the Commission's facilities 
are inaccessible to, or unusable, by individuals with disabilities, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity conducted 
by the Commission.
    (b) Individuals shall request accessibility to the Commission's 
programs and facilities by contacting the Commission's Section 504 
Officer. Such contact may be made in the manner indicated in the FCC 
Section 504 Handbook. The Commission will make every effort to provide 
accommodations requiring the assistance of other persons (e.g., American 
Sign Language interpreters, communication access realtime translation 
(CART) providers, transcribers, captioners, and readers) if the request 
is made to the Commission's Section 504 Officer a minimum of five 
business days in advance of the program. If such requests are made fewer 
than five business days prior to an event, the Commission will make 
every effort to secure accommodation services, although it may be less 
likely that the Commission will be able to secure such services.



Sec. 1.1850  Program accessibility: Existing facilities.

    (a) General. Except as otherwise provided in this paragraph, the 
Commission shall operate each program or activity so that the program or 
activity, when viewed in its entirety, is readily accessible to and 
usable by individuals with disabilities. This paragraph does not--
    (1) Necessarily require the Commission to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) Require the Commission to take any action that it can 
demonstrate

[[Page 361]]

would result in a fundamental alteration in the nature of a program or 
activity, or in undue financial and administrative burdens. In those 
circumstances where Commission personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the Commission has the 
burden of proving that compliance with Sec. 1.1850(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Managing Director, in 
consultation with the Section 504 Officer, after considering all 
Commission resources available for use in the funding and operation of 
the conducted program or activity, and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
would result in such an alteration or such burdens, the Commission shall 
take any other action that would not result in such an alteration or 
such burdens but would nevertheless ensure that individuals with 
disabilities receive the benefits and services of the program or 
activity.
    (b) Methods. The Commission may comply with the requirements of this 
section through such means as the redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, or 
any other methods that result in making its programs or activities 
readily accessible to and usable by individuals with disabilities. The 
Commission is not required to make structural changes in existing 
facilities where other methods are effective in achieving compliance 
with this section. The Commission, in making alterations to existing 
buildings, shall meet accessibility requirements to the extent compelled 
by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-
4157), and any regulations implementing it. In choosing among available 
methods for meeting the requirements of this section, the Commission 
shall give priority to those methods that offer programs and activities 
to qualified individuals with disabilities in the most integrated 
setting appropriate.
    (c) Time period for compliance. The Commission shall comply with the 
obligations established under this section within sixty (60) days of the 
effective date of this subpart, except that where structural changes in 
facilities are undertaken, such changes shall be made within three (3) 
years of the effective date of this part.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Commission shall develop, within six (6) months of the effective date of 
this subpart, a transition plan setting forth the steps necessary to 
complete such changes. The Commission shall provide an opportunity to 
interested persons, including individuals with disabilities or 
organizations representing individuals with disabilities, to participate 
in the development of the transition plan by submitting comments (both 
oral and written). A copy of the transitional plan shall be made 
available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the Commission's facilities that 
limit the accessibility of its programs or activities to individuals 
with disabilities;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one (1) year, identify steps that will be taken 
during each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 1.1851  Building accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Commission shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with disabilities. The definitions, requirements and 
standards of the Architectural Barriers Act, 42 U.S.C. 4151-4157, as 
established

[[Page 362]]

in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. 1.1870  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the Commission.
    (b) The Commission shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973, 29 
U.S.C. 791.
    (c) Complaints alleging violation of section 504 with respect to the 
Commission's programs and activities shall be addressed to the Managing 
Director and filed with the Office of the Secretary, Federal 
Communications Commission, 445 12th Street, SW., Room TWB-204, 
Washington, DC 20554.
    (d) Acceptance of complaint. (1) The Commission shall accept and 
investigate all complete complaints, as defined in Sec. 1.1803 of this 
part, for which it has jurisdiction. All such complaints must be filed 
within one-hundred eighty (180) days of the alleged act of 
discrimination. The Commission may extend this time period for good 
cause.
    (2) If the Commission receives a complaint that is not complete as 
defined in Sec. 1.1803 of this part, the complainant will be notified 
within thirty (30) days of receipt of the incomplete complaint that 
additional information is needed. If the complainant fails to complete 
the complaint within thirty (30) days of receipt of this notice, the 
Commission shall dismiss the complaint without prejudice.
    (e) If the Commission receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
government entity.
    (f) The Commission shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended, 42 U.S.C. 4151-4157, is not readily accessible to 
and usable by individuals with disabilities.
    (g) Within one-hundred eighty (180) days of the receipt of a 
complete complaint, as defined in Sec. 1.1803, for which it has 
jurisdiction, the Commission shall notify the complainant of the results 
of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within ninety (90) days of 
receipt from the Commission of the letter required by Sec. 1.1870(g). 
The Commission may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Office of 
the Secretary, Federal Communications Commission, 445 12th Street, SW., 
Room TWB-204, Washington, DC 20554.
    (j) The Commission shall notify the complainant of the results of 
the appeal within sixty (60) days of the receipt of the appeal request. 
If the Commission determines that it needs additional information from 
the complainant, and requests such information, the Commission shall 
have sixty (60) days from the date it receives the additional 
information to make its determination on the appeal.
    (k) The time limits cited in (g) and (j) of this section may be 
extended with the permission of the General Counsel.
    (l) The Commission may delegate its authority for conducting 
complaint investigations to other federal agencies, except that the 
authority for making the final determination may not be delegated to 
another agency.



          Subpart O_Collection of Claims Owed the United States

    Authority: 31 U.S.C. 3701; 31 U.S.C. 3711 et seq.; 5 U.S.C. 5514; 
sec. 8(1) of E.O. 11609 (3 CFR, 1971-1975 Comp., p.586); redesignated in 
sec. 2-1 of E.O. 12107; (3 CFR, 1978 Comp., p. 264); 31 CFR parts 901-
904; 5 CFR part 550.

    Source: 69 FR 27848, May 17, 2004, unless otherwise noted.

[[Page 363]]

                           General Provisions



Sec. 1.1901  Definitions and construction.

    For purposes of this subpart:
    (a) The term administrative offset means withholding money payable 
by the United States Government to, or held by the Government for, a 
person, organization, or entity to satisfy a debt the person, 
organization, or entity owes the Government.
    (b) The term agency or Commission means the Federal Communications 
Commission (including the Universal Service Fund, the Telecommunications 
Relay Service Fund, and any other reporting components of the 
Commission) or any other agency of the U.S. Government as defined by 
section 105 of title 5 U.S.C., the U.S. Postal Service, the U.S. Postal 
Rate Commission, a military department as defined by section 102 of 
title 5 U.S.C., an agency or court of the judicial branch, or an agency 
of the legislative branch, including the U.S. Senate and the U.S. House 
of Representatives.
    (c) The term agency head means the Chairman of the Federal 
Communications Commission.
    (d) The term application includes in addition to petitions and 
applications elsewhere defined in the Commission's rules, any request, 
as for assistance, relief, declaratory ruling, or decision, by the 
Commission or on delegated authority.
    (e) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money, funds, or property 
that has been determined by an agency official to be due to the United 
States from any person, organization, or entity, except another Federal 
agency. For purposes of administrative offset under 31 U.S.C. 3716, the 
terms ``claim'' and ``debt'' include an amount of money, funds, or 
property owed by a person to a State, the District of Columbia, American 
Samoa, Guam, the United States Virgin Islands, the Commonwealth of the 
Northern Mariana Islands, or the Commonwealth of Puerto Rico. ``Claim'' 
and ``debt'' include amounts owed to the United States on account of 
extension of credit or loans made by, insured or guaranteed by the 
United States and all other amounts due the United States from fees, 
leases, rents, royalties, services, sales of real or personal property, 
overpayments, penalties, damages, interest, taxes, and forfeitures 
issued after a notice of apparent liability that have been partially 
paid or for which a court of competent jurisdiction has order payment 
and such order is final (except those arising under the Uniform Code of 
Military Justice), and other similar sources.
    (f) The term creditor agency means the agency to which the debt is 
owed.
    (g) The term debt collection center means an agency of a unit or 
subagency within an agency that has been designated by the Secretary of 
the Treasury to collect debt owed to the United States. The Financial 
Management Service (FMS), Fiscal Service, United States Treasury, is a 
debt collection center.
    (h) The term demand letter includes written letters, orders, 
judgments, and memoranda from the Commission or on delegated authority.
    (i) The term ``delinquent'' means a claim or debt which has not been 
paid by the date specified by the agency unless other satisfactory 
payment arrangements have been made by that date, or, at any time 
thereafter, the debtor has failed to satisfy an obligation under a 
payment agreement or instrument with the agency, or pursuant to a 
Commission rule. For purposes of this subpart only, an installment 
payment under 47 CFR 1.2110(g) will not be considered deliquent until 
the expiration of all applicable grace periods and any other applicable 
periods under Commission rules to make the payment due. The rules set 
forth in this subpart in no way affect the Commission's rules, as may be 
amended, regarding payment for licenses (including installment, down, or 
final payments) or automatic cancellation of Commission licenses (see 47 
CFR 1.1902(f)).
    (j) The term disposable pay means that part of current basic pay, 
special pay, incentive pay, retired pay, retainer pay, or in the case of 
an employee not entitled to basic pay, other authorized pay remaining 
after the deduction of any amount required by law to be withheld. 
Agencies must exclude

[[Page 364]]

deductions described in 5 CFR 581.105(b) through (f) to determine 
disposable pay subject to salary offset.
    (k) The term employee means a current employee of the Commission or 
of another agency, including a current member of the Armed Forces or a 
Reserve of the Armed Forces (Reserve).
    (l) The term entity includes natural persons, legal associations, 
applicants, licensees, and regulatees.
    (m) The term FCCS means the Federal Claims Collection Standards 
jointly issued by the Secretary of the Treasury and the Attorney General 
of the United States at 31 CFR parts 900-904.
    (n) The term paying agency means the agency employing the individual 
and authorizing the payment of his or her current pay.
    (o) The term referral for litigation means referral to the 
Department of Justice for appropriate legal proceedings except where the 
Commission has the statutory authority to handle the litigation itself.
    (p) The term reporting component means any program, account, or 
entity required to be included in the Agency's Financial Statements by 
generally accepted accounting principles for Federal Agencies.
    (q) The term salary offset means an administrative offset to collect 
a debt under 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.
    (r) The term waiver means the cancellation, remission, forgiveness, 
or non-recovery of a debt or fee, including, but not limited to, a debt 
due to the United States, by an entity or an employee to an agency and 
as the waiver is permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, 
31 U.S.C. 3711, or any other law.
    (s) Words in the plural form shall include the singular, and vice-
versa, and words signifying the masculine gender shall include the 
feminine, and vice-versa. The terms includes and including do not 
exclude matters not listed but do include matters of the same general 
class.



Sec. 1.1902  Exceptions.

    (a) Claims arising from the audit of transportation accounts 
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised, 
terminated or settled in accordance with regulations published under the 
authority of 31 U.S.C. 3726 (see 41 CFR part 101-41).
    (b) Claims arising out of acquisition contracts subject to the 
Federal Acquisition Regulations (FAR) shall be determined, collected, 
compromised, terminated, or settled in accordance with those 
regulations. (See 48 CFR part 32). If not otherwise provided for in the 
FAR, contract claims that have been the subject of a contracting 
officer's final decision in accordance with section 6(a) of the Contract 
Disputes Act of 1978 (41 U.S.C. 605(a)), may be determined, collected, 
compromised, terminated or settled under the provisions of this 
regulation, except that no additional review of the debt shall be 
granted beyond that provided by the contracting officer in accordance 
with the provisions of section 6 of the Contract Disputes Act of 1978 
(41 U.S.C. 605), and the amount of any interest, administrative charge, 
or penalty charge shall be subject to the limitations, if any, contained 
in the contract out of which the claim arose.
    (c) Claims based in whole or in part on conduct in violation of the 
antitrust laws, or in regard to which there is an indication of fraud, 
the presentation of a false claim, or a misrepresentation on the part of 
the debtor or any other party having an interest in the claim, shall be 
referred to the Department of Justice (DOJ) as only the DOJ has 
authority to compromise, suspend, or terminate collection action on such 
claims. The standards in the FCCS relating to the administrative 
collection of claims do apply, but only to the extent authorized by the 
DOJ in a particular case. Upon identification of a claim based in whole 
or in part on conduct in violation of the antitrust laws or any claim 
involving fraud, the presentation of a false claim, or misrepresentation 
on the part of the debtor or any party having an interest in the claim, 
the Commission shall promptly refer the case to the Department of 
Justice for action. At its discretion, the DOJ may return the claim to 
the

[[Page 365]]

forwarding agency for further handling in accordance with the standards 
in the FCCS.
    (d) Tax claims are excluded from the coverage of this regulation.
    (e) The Commission will attempt to resolve interagency claims by 
negotiation in accordance with Executive Order 12146 (3 CFR 1980 Comp., 
pp. 409-412).
    (f) Nothing in this subpart shall supercede or invalidate other 
Commission rules, such as the part 1 general competitive bidding rules 
(47 CFR part 1, subpart Q) or the service specific competitive bidding 
rules, as may be amended, regarding the Commission's rights, including 
but not limited to the Commission's right to cancel a license or 
authorization, obtain judgment, or collect interest, penalties, and 
administrative costs.



Sec. 1.1903  Use of procedures.

    Procedures authorized by this regulation (including, but not limited 
to, disclosure to a consumer reporting agency, contracting for 
collection services, administrative offset and salary offset) may be 
used singly or in combination, so long as the requirements of applicable 
law and regulation are satisfied.



Sec. 1.1904  Conformance to law and regulations.

    The requirements of applicable law (31 U.S.C. 3701-3719, as amended 
by Public Law 97-365, 96 Stat. 1749 and Public Law 104-134, 110 Stat. 
1321, 1358) have been implemented in government-wide standards which 
include the Regulations of the Office of Personnel Management (5 CFR 
part 550) and the Federal Claims Collection Standards issued jointly by 
the Secretary of the Treasury and the Attorney General of the United 
States (31 CFR parts 900-904). Not every item in the previous sentence 
described standards has been incorporated or referenced in this 
regulation. To the extent, however, that circumstances arise which are 
not covered by the terms stated in these regulations, the Commission 
will proceed in any actions taken in accordance with applicable 
requirements found in the standards referred to in this section.



Sec. 1.1905  Other procedures; collection of forfeiture penalties.

    Nothing contained in these regulations is intended to require the 
Commission to duplicate administrative or other proceedings required by 
contract or other laws or regulations, nor do these regulations 
supercede procedures permitted or required by other statutes or 
regulations. In particular, the assessment and collection of monetary 
forfeitures imposed by the Commission will be governed initially by the 
procedures prescribed by 47 U.S.C. 503, 504 and 47 CFR 1.80. After 
compliance with those procedures, the Commission may determine that the 
collection of a monetary forfeiture under the collection alternatives 
prescribed by this subpart is appropriate but need not duplicate 
administrative or other proceedings. Fees and penalties prescribed by 
law, e.g., 47 U.S.C. 158 and 159, and promulgated under the authority of 
47 U.S.C. 309(j) (e.g., 47 CFR part 1, subpart Q) may be collected as 
permitted by applicable law. Nothing contained herein is intended to 
restrict the Commission from exercising any other right to recover or 
collect amounts owed to it.



Sec. 1.1906  Informal action.

    Nothing contained in these regulations is intended to preclude 
utilization of informal administrative actions or remedies which may be 
available (including, e.g., Alternative Dispute Resolution), and/or for 
the Commission to exercise rights as agreed to among the parties in 
written agreements, including notes and security agreements.



Sec. 1.1907  Return of property or collateral.

    Nothing contained in this regulation is intended to deter the 
Commission from exercising any other right under law or regulation or by 
agreement it may have or possess, or to exercise its authority and right 
as a regulator under the Communications Act of 1934, as amended, and the 
Commission's rules, and demanding the return of specific property or 
from demanding, as a non-exclusive alternative, either the return of 
property or the payment of its value or the amount due the United States 
under any agreement or Commission rule.

[[Page 366]]



Sec. 1.1908  Omissions not a defense.

    The failure or omission of the Commission to comply with any 
provision in this regulation shall not serve as a defense to any debtor.



Sec. 1.1909  [Reserved]



Sec. 1.1910  Effect of insufficient fee payments, delinquent debts, or 
debarment.

    (a)(1) An application (including a petition for reconsideration or 
any application for review of a fee determination) or request for 
authorization subject to the FCC Registration Number (FRN) requirement 
set forth in subpart W of this chapter will be examined to determine if 
the applicant has paid the appropriate application fee, appropriate 
regulatory fees, is delinquent in its debts owed the Commission, or is 
debarred from receiving Federal benefits (see, e.g., 31 CFR 285.13; 47 
CFR part 1, subpart P).
    (2) Fee payments, delinquent debt, and debarment will be examined 
based on the entity's taxpayer identifying number (TIN), supplied when 
the entity acquired or was assigned an FRN. See 47 CFR 1.8002(b)(1).
    (b)(1) Applications by any entity found not to have paid the proper 
application or regulatory fee will be handled pursuant to the rules set 
forth in 47 CFR part 1, subpart G.
    (2) Action will be withheld on applications, including on a petition 
for reconsideration or any application for review of a fee 
determination, or requests for authorization by any entity found to be 
delinquent in its debt to the Commission (see Sec. 1.1901(j)), unless 
otherwise provided for in this regulation, e.g., 47 CFR 1.1928 (employee 
petition for a hearing). The entity will be informed that action will be 
withheld on the application until full payment or arrangement to pay any 
non-tax delinquent debt owed to the Commission is made and/or that the 
application may be dismissed. See the provisisons of Sec. Sec. 1.1108, 
1.1109, 1.1116 and 1.1118. Any Commission action taken prior to the 
payment of delinquent non-tax debt owed to the Commission is contingent 
and subject to recission. Failure to make payment on any delinquent debt 
is subject to collection of the debt, including interest thereon, any 
associated penalties, and the full cost of collection to the Federal 
government pursuant to the provisions of the Debt Collection Improvement 
Act, 31 U.S.C. 3717.
    (3) If a delinquency has not been paid or the debtor has not made 
other satisfactory arrangements within 30 days of the date of the notice 
provided pursuant to paragraph (b)(2) of this section, the application 
or request for authorization will be dismissed.
    (i) The provisions of paragraphs (b)(2) and (b)(3) of this section 
will not apply if the applicant has timely filed a challenge through an 
administrative appeal or a contested judicial proceeding either to the 
existence or amount of the non-tax delinquent debt owed the Commission.
    (ii) The provisions of paragraphs (b)(2) and (b)(3) of this section 
will not apply where more restrictive rules govern treatment of 
delinquent debtors, such as 47 CFR 1.2105(a)(2)(x) and (xi).
    (c)(1) Applications for emergency or special temporary authority 
involving safety of life or property (including national security 
emergencies) or involving a brief transition period facilitating 
continuity of service to a substantial number of customers or end users, 
will not be subject to the provisions of paragraphs (a) and (b) of this 
section. However, paragraphs (a) and (b) will be applied to permanent 
authorizations for these services.
    (2) Provisions of paragraph (a) and (b) of this section will not 
apply to application or requst for authorization to which 11 U.S.C. 
525(a) is applicable.

[69 FR 57230, Sept. 24, 2004]

  Administrative Offset--Consumer Reporting Agencies--Contracting for 
                               Collection



Sec. 1.1911  Demand for payment.

    (a) Written demand as described in paragraph (b) of this section, 
and which may be in the form of a letter, order, memorandum, or other 
form of written communication, will be made promptly upon a debtor of 
the United States in terms that inform the debtor of the consequences of 
failing to cooperate to resolve the debt. The specific content, timing, 
and number of demand letters

[[Page 367]]

depend upon the type and amount of the debt, including, e.g., any notes 
and the terms of agreements of the parties, and the debtor's response, 
if any, to the Commission's letters or telephone calls. One demand 
letter will be deemed sufficient. In determining the timing of the 
demand letter(s), the Commission will give due regard to the need to 
refer debts promptly to the Department of Justice for litigation, in 
accordance with the FCCS. When necessary to protect the Government's 
interest (for example, to prevent the expiration of a statute of 
limitations), written demand may be preceded by other appropriate 
actions under the FCCS, including immediate referral for litigation. The 
demand letter does not provide an additional period within to challenge 
the existence of, or amount of the non-tax debt if such time period has 
expired under Commission rules or other applicable limitation periods. 
Nothing contained herein is intended to limit the Commission's authority 
or discretion as may otherwise be permitted to collect debts owed.
    (b) The demand letter will inform the debtor of:
    (1) The basis for the indebtedness and the opportunities, if any, of 
the debtor to request review within the Commission;
    (2) The applicable standards for assessing any interest, penalties, 
and administrative costs (Sec. Sec. 1.1940 and 1.1941);
    (3) The date by which payment is to be made to avoid late charges 
and enforced collection, which normally will not be more than 30 days 
from the date that the initial demand letter was mailed or hand-
delivered; and
    (4) The name, address, and phone number of a contact person or 
office within the Commission.
    (c) The Commission will expend all reasonable effort to ensure that 
demand letters are mailed or hand-delivered on the same day that they 
are dated. As provided for in any agreement among parties, or as may be 
required by exigent circumstances, the Commission may use other forms of 
delivery, including, e.g., facsimile telecopier or electronic mail. 
There is no prescribed format for demand letters. The Commission 
utilizes demand letters and procedures that will lead to the earliest 
practicable determination of whether the debt can be resolved 
administratively or must be referred for litigation.
    (d) The Commission may, as circumstances and the nature of the debt 
permit, include in demand letters such items as the Commission's 
willingness to discuss alternative methods of payment; its policies with 
respect to the use of credit bureaus, debt collection centers, and 
collection agencies; the Commission's remedies to enforce payment of the 
debt (including assessment of interest, administrative costs and 
penalties, administrative garnishment, the use of collection agencies, 
Federal salary offset, tax refund offset, administrative offset, and 
litigation); the requirement that any debt delinquent for more than 180 
days be transferred to the Department of the Treasury for collection; 
and, depending on applicable statutory authority, the debtor's 
entitlement to consideration of a waiver. Where applicable, the debtor 
will be provided with a period of time (normally not more than 15 
calendar days) from the date of the demand in which to exercise the 
opportunity to request a review.
    (e) The Commission will respond promptly to communications from the 
debtor, within 30 days whenever feasible, and will advise debtors who 
dispute the debt that they must furnish available evidence to support 
their contentions.
    (f) Prior to the initiation of the demand process or at any time 
during or after completion of the demand process, if the Commission 
determines to pursue, or is required to pursue, offset, the procedures 
applicable to offset in Sec. Sec. 1.1912 and 1.1913, as applicable, will 
be followed. The availability of funds or money for debt satisfaction by 
offset and the Commission's determination to pursue collection by offset 
shall release the Commission from the necessity of further compliance 
with paragraphs (a), (b), (c), and (d) of this section.
    (g) Prior to referring a debt for litigation, the Commission will 
advise each person determined to be liable for the debt that, unless the 
debt can be collected administratively, litigation may be initiated. 
This notification will follow the requirements of Executive

[[Page 368]]

Order 12988 (3 CFR, 1996 Comp., pp. 157-163) and may be given as part of 
a demand letter under paragraph (b) of this section or in a separate 
document. Litigation counsel for the Government will be advised that 
this notice has been given.
    (h) When the Commission learns that a bankruptcy petition has been 
filed with respect to a debtor, before proceeding with further 
collection action, the Commission may immediately seek legal advice from 
its counsel concerning the impact of the Bankruptcy Code on any pending 
or contemplated collection activities. Unless the Commission determines 
that the automatic stay imposed at the time of filing pursuant to 11 
U.S.C. 362 has been lifted or is no longer in effect, in most cases 
collection activity against the debtor should stop immediately.
    (1) After seeking legal advice, a proof of claim will be filed in 
most cases with the bankruptcy court or the Trustee. The Commission will 
refer to the provisions of 11 U.S.C. 106 relating to the consequences on 
sovereign immunity of filing a proof of claim.
    (2) If the Commission is a secured creditor, it may seek relief from 
the automatic stay regarding its security, subject to the provisions and 
requirements of 11 U.S.C. 362.
    (3) Offset is stayed in most cases by the automatic stay. However, 
the Commission will determine from its counsel whether its payments to 
the debtor and payments of other agencies available for offset may be 
frozen by the Commission until relief from the automatic stay can be 
obtained from the bankruptcy court. The Commission will also determine 
from its counsel whether recoupment is available.



Sec. 1.1912  Collection by administrative offset.

    (a) Scope. (1) The term administrative offset has the meaning 
provided in Sec. 1.1901.
    (2) This section does not apply to:
    (i) Debts arising under the Social Security Act, except as provided 
in 42 U.S.C. 404;
    (ii) Payments made under the Social Security Act, except as provided 
for in 31 U.S.C. 3716(c) (see 31 CFR 285.4, Federal Benefit Offset);
    (iii) Debts arising under, or payments made under, the Internal 
Revenue Code (see 31 CFR 285.2, Tax Refund Offset) or the tariff laws of 
the United States;
    (iv) Offsets against Federal salaries to the extent these standards 
are inconsistent with regulations published to implement such offsets 
under 5 U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR part 550, subpart K, 
and 31 CFR 285.7, Federal Salary Offset);
    (v) Offsets under 31 U.S.C. 3728 against a judgment obtained by a 
debtor against the United States;
    (vi) Offsets or recoupments under common law, State law, or Federal 
statutes specifically prohibiting offsets or recoupments of particular 
types of debts; or
    (vii) Offsets in the course of judicial proceedings, including 
bankruptcy.
    (3) Unless otherwise provided for by contract or law, debts or 
payments that are not subject to administrative offset under 31 U.S.C. 
3716 may be collected by administrative offset under the common law or 
other applicable statutory authority.
    (4) Unless otherwise provided by law, administrative offset of 
payments under the authority of 31 U.S.C. 3716 to collect a debt may not 
be conducted more than 10 years after the Government's right to collect 
the debt first accrued, unless facts material to the Government's right 
to collect the debt were not known and could not reasonably have been 
known by the official or officials of the Government who were charged 
with the responsibility to discover and collect such debts. This 
limitation does not apply to debts reduced to a judgment.
    (5) In bankruptcy cases, the Commission will seek legal advice from 
its counsel concerning the impact of the Bankruptcy Code, particularly 
11 U.S.C. 106, 362, and 553, on pending or contemplated collections by 
offset.
    (b) Mandatory centralized administrative offset. (1) The Commission 
is required to refer past due, legally enforceable nontax debts which 
are over 180 days delinquent to the Treasury for collection by 
centralized administrative offset. Debts which are less than 180 days 
delinquent also may be referred to the Treasury for this purpose.

[[Page 369]]

See FCCS for debt certification requirements.
    (2) The names and taxpayer identifying numbers (TINs) of debtors who 
owe debts referred to the Treasury as described in paragraph (b)(1) of 
this section shall be compared to the names and TINs on payments to be 
made by Federal disbursing officials. Federal disbursing officials 
include disbursing officials of Treasury, the Department of Defense, the 
United States Postal Service, other Government corporations, and 
disbursing officials of the United States designated by the Treasury. 
When the name and TIN of a debtor match the name and TIN of a payee and 
all other requirements for offset have been met, the payment will be 
offset to satisfy the debt.
    (3) Federal disbursing officials will notify the debtor/payee in 
writing that an offset has occurred to satisfy, in part or in full, a 
past due, legally enforceable delinquent debt. The notice shall include 
a description of the type and amount of the payment from which the 
offset was taken, the amount of offset that was taken, the identity of 
the creditor agency requesting the offset, and a contact point within 
the creditor agency who will respond to questions regarding the offset.
    (4)(i) Before referring a delinquent debt to the Treasury for 
administrative offset, and subject to any agreement and/or waiver to the 
contrary by the debtor, the Commission shall ensure that offsets are 
initiated only after the debtor:
    (A) Has been sent written notice of the type and amount of the debt, 
the intention of the Commission to use administrative offset to collect 
the debt, and an explanation of the debtor's rights under 31 U.S.C. 
3716; and
    (B) The debtor has been given:
    (1) The opportunity to request within 15 days of the date of the 
written notice, after which opportunity is deemed waived, by the debtor, 
to inspect and copy Commission records related to the debt;
    (2) The opportunity, unless otherwise waived by the debtor, for a 
review within the Commission of the determination of indebtedness; and
    (3) The opportunity to request within 15 days of the date of the 
written notice, after which the opportunity is deemed waived by the 
debtor, for the debtor to make a written agreement to repay the debt.
    (ii) The Commission may omit the procedures set forth in paragraph 
(a)(4)(i) of this section when:
    (A) The offset is in the nature of a recoupment;
    (B) The debt arises under a contract as set forth in Cecile 
Industries, Inc. v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and 
other procedural protections set forth in 31 U.S.C. 3716(a) do not 
supplant or restrict established procedures for contractual offsets 
accommodated by the Contracts Disputes Act); or
    (C) In the case of non-centralized administrative offsets conducted 
under paragraph (c) of this section, the Commission first learns of the 
existence of the amount owed by the debtor when there is insufficient 
time before payment would be made to the debtor/payee to allow for prior 
notice and an opportunity for review. When prior notice and an 
opportunity for review are omitted, the Commission shall give the debtor 
such notice and an opportunity for review as soon as practicable and 
shall promptly refund any money ultimately found not to have been owed 
to the Government.
    (iii) When the Commission previously has given a debtor any of the 
required notice and review opportunities with respect to a particular 
debt (see 31 CFR 901.2), the Commission need not duplicate such notice 
and review opportunities before administrative offset may be initiated.
    (5) Before the Commission refers delinquent debts to the Treasury, 
the Office of Managing Director must certify, in a form acceptable to 
the Treasury, that:
    (i) The debt(s) is (are) past due and legally enforceable; and
    (ii) The Commission has complied with all due process requirements 
under 31 U.S.C. 3716(a) and its regulations.
    (6) Payments that are prohibited by law from being offset are exempt 
from centralized administrative offset. The Treasury shall exempt 
payments under

[[Page 370]]

means-tested programs from centralized administrative offset when 
requested in writing by the head of the payment certifying or 
authorizing agency. Also, the Treasury may exempt other classes of 
payments from centralized offset upon the written request of the head of 
the payment certifying or authorizing agency.
    (7) Benefit payments made under the Social Security Act (42 U.S.C. 
301 et seq.), part B of the Black Lung Benefits Act (30 U.S.C. 921 et 
seq.), and any law administered by the Railroad Retirement Board (other 
than tier 2 benefits), may be offset only in accordance with Treasury 
regulations, issued in consultation with the Social Security 
Administration, the Railroad Retirement Board, and the Office of 
Management and Budget. See 31 CFR 285.4.
    (8) In accordance with 31 U.S.C. 3716(f), the Treasury may waive the 
provisions of the Computer Matching and Privacy Protection Act of 1988 
concerning matching agreements and post-match notification and 
verification (5 U.S.C. 552a(o) and (p)) for centralized administrative 
offset upon receipt of a certification from a creditor agency that the 
due process requirements enumerated in 31 U.S.C. 3716(a) have been met. 
The certification of a debt in accordance with paragraph (b)(5) of this 
section will satisfy this requirement. If such a waiver is granted, only 
the Data Integrity Board of the Department of the Treasury is required 
to oversee any matching activities, in accordance with 31 U.S.C. 
3716(g). This waiver authority does not apply to offsets conducted under 
paragraphs (c) and (d) of this section.
    (c) Non-centralized administrative offset. (1) Generally, non-
centralized administrative offsets are ad hoc case-by-case offsets that 
the Commission conducts, at the Commission's discretion, internally or 
in cooperation with the agency certifying or authorizing payments to the 
debtor. Unless otherwise prohibited by law, when centralized 
administrative offset is not available or appropriate, past due, legally 
enforceable nontax delinquent debts may be collected through non-
centralized administrative offset. In these cases, a creditor agency may 
make a request directly to a payment-authorizing agency to offset a 
payment due a debtor to collect a delinquent debt. For example, it may 
be appropriate for a creditor agency to request that the Office of 
Personnel Management (OPM) offset a Federal employee's lump-sum payment 
upon leaving Government service to satisfy an unpaid advance.
    (2) The Commission will make reasonable effort to ensure that such 
offsets may occur only after:
    (i) The debtor has been provided due process as set forth in 
paragraph (b)(4) of this section (subject to any waiver by the debtor); 
and
    (ii) The payment authorizing agency has received written 
certification from the Commission that the debtor owes the past due, 
legally enforceable delinquent debt in the amount stated, and that the 
creditor agency has fully complied with its regulations concerning 
administrative offset.
    (3) Payment authorizing agencies shall comply with offset requests 
by creditor agencies to collect debts owed to the United States, unless 
the offset would not be in the best interests of the United States with 
respect to the program of the payment authorizing agency, or would 
otherwise be contrary to law. Appropriate use should be made of the 
cooperative efforts of other agencies in effecting collection by 
administrative offset.
    (4) When collecting multiple debts by non-centralized administrative 
offset, agencies should apply the recovered amounts to those debts in 
accordance with the best interests of the United States, as determined 
by the facts and circumstances of the particular case, particularly the 
applicable statute of limitations.



Sec. 1.1913  Administrative offset against amounts payable from Civil 
Service Retirement and Disability Fund.

    Upon providing the Office of Personnel Management (OPM) with written 
certification that a debtor has been afforded the procedures provided in 
Sec. 1.1912(b)(4), the Commission may request OPM to offset a debtor's 
anticipated or future benefit payments under the Civil Service 
Retirement and Disability Fund (Fund) in accordance with regulations 
codified at 5 CFR 831.1801-831.1808. Upon receipt of such a request,

[[Page 371]]

OPM will identify and ``flag'' a debtor's account in anticipation of the 
time when the debtor requests, or becomes eligible to receive, payments 
from the Fund. This will satisfy any requirement that offset be 
initiated prior to the expiration of the time limitations referenced in 
Sec. 1.1914(a)(4).



Sec. 1.1914  Collection in installments.

    (a) Subject to the Commission's rules pertaining to the installment 
loan program (see e.g., 47 CFR Sec. 1.2110(g)), subpart Q or other 
agreements among the parties, the terms of which will control, whenever 
feasible, the Commission shall collect the total amount of a debt in one 
lump sum. If a debtor is financially unable to pay a debt in one lump 
sum, the Commission, in its sole discretion, may accept payment in 
regular installments. The Commission will obtain financial statements 
from debtors who represent that they are unable to pay in one lump sum 
and which are able to verify independently such representations (see 31 
CFR 902.2(g)). The Commission will require and obtain a legally 
enforceable written agreement from the debtor that specifies all of the 
terms of the arrangement, including, as appropriate, sureties and other 
indicia of creditworthiness (see Federal Credit Reform Act of 1990, 2 
U.S.C. 661, et seq., OMB Circular A-129), and that contains a provision 
accelerating the debt in the event of default.
    (b) The size and frequency of installment payments should bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. If possible, the installment payments will be sufficient in size 
and frequency to liquidate the debt in three years or less.
    (c) Security for deferred payments will be obtained in appropriate 
cases. The Commission may accept installment payments notwithstanding 
the refusal of the debtor to execute a written agreement or to give 
security, at the Commission's option.
    (d) The Commission may deny the extension of credit to any debtor 
who fails to provide the records requested or fails to show an ability 
to pay the debt.



Sec. 1.1915  Exploration of compromise.

    The Commission may attempt to effect compromise, preferably during 
the course of personal interviews, in accordance with the standards set 
forth in part 902 of the Federal Claims Collection Standards (31 CFR 
part 902). The Commission will also consider a request submitted by the 
debtor to compromise the debt. Such requests should be submitted in 
writing with full justification of the offer and addressing the bases 
for compromise at 31 CFR 902.2. Debtors will provide full financial 
information to support any request for compromise based on the debtor's 
inability to pay the debt. Unless otherwise provided by law, when the 
principal balance of a debt, exclusive of interest, penalties, and 
administrative costs, exceeds $100,000 or any higher amount authorized 
by the Attorney General, the authority to accept the compromise rests 
with the Department of Justice. The Commission will evaluate an offer, 
using the factors set forth in 31 CFR 902.2 and, as appropriate, refer 
the offer with the appropriate financial information to the Department 
of Justice. Department of Justice approval is not required if the 
Commission rejects a compromise offer.



Sec. 1.1916  Suspending or terminating collection action.

    The suspension or termination of collection action shall be made in 
accordance with the standards set forth in part 903 of the Federal 
Claims Collection Standards (31 CFR part 903).



Sec. 1.1917  Referrals to the Department of Justice and transfer of 
delinquent debt to the Secretary of Treasury.

    (a) Referrals to the Department of Justice shall be made in 
accordance with the standards set forth in part 904 of the Federal 
Claims Collection Standards (31 CFR part 904).
    (b) The DCIA includes separate provisions governing the requirements 
that the Commission transfer delinquent debts to Treasury for general 
collection purposes (cross-servicing) in accordance with 31 U.S.C. 
3711(g)(1) and (2), and notify Treasury of delinquent debts for the 
purpose of administrative offset in accordance with 31 U.S.C.

[[Page 372]]

3716(c)(6). Title 31, U.S.C. 3711(g)(1) requires the Commission to 
transfer to Treasury all collection activity for a given debt. Under 
section 3711(g), Treasury will use all appropriate debt collection tools 
to collect the debt, including referral to a designated debt collection 
center or private collection agency, and administrative offset. Once a 
debt has been transferred to Treasury pursuant to the procedures at 31 
CFR 285.12, the Commission will cease all collection activity related to 
that debt.
    (c) All non-tax debts of claims owed to the Commission that have 
been delinquent for a period of 180 days shall be transferred to the 
Secretary of the Treasury. Debts which are less than 180 days delinquent 
may also be referred to the Treasury. Upon such transfer the Secretary 
of the Treasury shall take appropriate action to collect or terminate 
collection actions on the debt or claim. A debt is past-due if it has 
not been paid by the date specified in the Commission's initial written 
demand for payment or applicable agreement or instrument (including a 
post-delinquency payment agreement) unless other satisfactory payment 
arrangements have been made.



Sec. 1.1918  Use of consumer reporting agencies.

    (a) The term individual means a natural person, and the term 
consumer reporting agency has the meaning provided in the Federal Claims 
Collection Act, as amended, 31 U.S.C. 3701(a)(3) or the Fair Credit 
Reporting Act, 15 U.S.C. 168a(f).
    (b) The Commission may disclose to a consumer reporting agency, or 
provide information to the Treasury who may disclose to a consumer 
reporting agency from a system of records, information that an 
individual is responsible for a claim. System information includes, for 
example, name, taxpayer identification number, business and home 
address, business and home telephone numbers, the amount of the debt, 
the amount of unpaid principle, the late period, and the payment 
history. Before the Commission reports the information, it will:
    (1) Provide notice required by section 5 U.S.C. 552a(e)(4) that 
information in the system may be disclosed to a consumer reporting 
agency;
    (2) Review the claim to determine that it is valid and overdue;
    (3) Make reasonable efforts using information provided by the debtor 
in Commission files to notify the debtor, unless otherwise specified 
under the terms of a contract or agreement--
    (i) That payment of the claim is overdue;
    (ii) That, within not less than 60 days from the date of the notice, 
the Commission intends to disclose to a consumer reporting agency that 
the individual is responsible for that claim;
    (iii) That information in the system of records may be disclosed to 
the consumer reporting agency; and
    (iv) That unless otherwise specified and agreed to in an agreement, 
contract, or by the terms of a note and/or security agreement, or that 
the debt arises from the nonpayment of a Commission fee, penalty, or 
other statutory or regulatory obligations, the individual will be 
provided with an explanation of the claim, and, as appropriate, 
procedures to dispute information in the records of the agency about the 
claim, and to administrative appeal or review of the claim; and
    (4) Review Commission records to determine that the individual has 
not--
    (i) Repaid or agreed to repay the claim under a written repayment 
plan agreed to and signed by both the individual and the Commission's 
representative; or, if eligible; and
    (ii) Filed for review of the claim under paragraph (g) of this 
section;
    (c) The Commission shall: (1) Disclose to each consumer reporting 
agency to which the original disclosure was made a substantial change in 
the condition or amount of the claim;
    (2) Verify or correct promptly information about the claim, on 
request of a consumer reporting agency for verification of any or all 
information so disclosed; and
    (3) Obtain assurances from each consumer reporting agency that they 
are complying with all laws of the United States relating to providing 
consumer credit information.
    (d) The Commission shall ensure that information disclosed to the 
consumer reporting agency is limited to--

[[Page 373]]

    (1) Information necessary to establish the identity of the 
individual, including name, address, and taxpayer identification number;
    (2) The amount, status, and history of the claim; and
    (3) The agency or program under which the claim arose.
    (e) All accounts in excess of $100 that have been delinquent more 
than 31 days will normally be referred to a consumer reporting agency.
    (f) Under the same provisions as described in paragraph (b) of this 
section, the Commission may disclose to a credit reporting agency, 
information relating to a debtor other than a natural person. Such 
commercial debt accounts are not covered by the Privacy Act. Moreover, 
commercial debt accounts are subject to the Commission's rules 
concerning debt obligation, including part 1 rules related to auction 
debt, and the agreements of the parties.



Sec. 1.1919  Contracting for collection services.

    (a) Subject to the provisions of paragraph (b) of this section, the 
Commission may contract with private collection contractors, as defined 
in 31 U.S.C. 3701(f), to recover delinquent debts. In that regard, the 
Commission:
    (1) Retains the authority to resolve disputes, compromise debts, 
suspend or terminate collection activity, and refer debts for 
litigation;
    (2) Restricts the private collection contractor from offering, as an 
incentive for payment, the opportunity to pay the debt less the private 
collection contractor's fee unless the Commission has granted such 
authority prior to the offer;
    (3) Specifically requires, as a term of its contract with the 
private collection contractor, that the private collection contractor is 
subject to the Privacy Act of 1974 to the extent specified in 5 U.S.C. 
552a(m), and to applicable Federal and state laws and regulations 
pertaining to debt collection practices, including but not limited to 
the Fair Debt Collection Practices Act, 15 U.S.C. 1692; and
    (4) The private collection contractor is required to account for all 
amounts collected.
    (b) Although the Commission will use government-wide debt collection 
contracts to obtain debt collection services provided by private 
collection contractors, the Commission may refer debts to private 
collection contractors pursuant to a contract between the Commission and 
the private collection contractor in those situations where the 
Commission is not required to transfer debt to the Secretary of the 
Treasury for debt collection.
    (c) Agencies may fund private collection contractor in accordance 
with 31 U.S.C. 3718(d), or as otherwise permitted by law.
    (d) The Commission may enter into contracts for locating and 
recovering assets of the United States, such as unclaimed assets, but it 
will first establish procedures that are acceptable to Treasury before 
entering into contracts to recover assets of the United States held by a 
state government or a financial institution.
    (e) The Commission may enter into contracts for debtor asset and 
income search reports. In accordance with 31 U.S.C. 3718(d), such 
contracts may provide that the fee a contractor charges the Commission 
for such services may be payable from the amounts recovered, unless 
otherwise prohibited by statute. In that regard, fees for those services 
will be added to the amount collected and are part of the administrative 
collection costs passed on to the debtor. See Sec. 1.1940.



Sec. Sec. 1.1920 through 1.1924  [Reserved]

                      Salary Offset-Individual Debt



Sec. 1.1925  Purpose.

    Sections 1.1925 through 1.1939 apply to individuals who are 
employees of the Commission and provides the standards to be followed by 
the Commission in implementing 5 U.S.C. 5514; sec. 8(1) of E.O. 11609 (3 
CFR, 1971-1975 Comp., p.586); redesignated in sec. 2-1 of E.O. 12107 (3 
CFR, 1978 Comp., p.264) to recover a debt from the pay account of a 
Commission employee. It also establishes procedural guidelines to 
recover debts when the employee's creditor and paying agencies are not 
the same.

[[Page 374]]



Sec. 1.1926  Scope.

    (a) Coverage. This section applies to the Commission and employees 
as defined by Sec. 1.1901.
    (b) Applicability. This section and 5 U.S.C. 5514 apply in 
recovering certain debts by offset, except where the employee consents 
to the recovery, from the current pay account of that employee. Because 
it is an administrative offset, debt collection procedures for salary 
offset which are not specified in 5 U.S.C. 5514 and these regulations 
should be consistent with the provisions of the Federal Claims 
Collection Standards (31 CFR parts 900-904).
    (1) Excluded debts or claims. The procedures contained in this 
section do not apply to debts or claims arising under the Internal 
Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.), the Social 
Security Act (42 U.S.C. 301 et seq.) or the tariff laws of the United 
States, or to any case where collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute (e.g. travel 
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 
4108).
    (2) Section 1.1926 does not preclude an employee from requesting 
waiver of an erroneous payment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 
32 U.S.C. 716, or in any way questioning the amount or validity of a 
debt, in the manner prescribed by the Commissioner. Similarly, this 
subpart does not preclude an employee from requesting waiver of the 
collection of a debt under any other applicable statutory authority.
    (c) Time limit. Under 31 CFR 901.3(a)(4) offset may not be initiated 
more than 10 years after the Government's right to collect the debt 
first accrued, unless an exception applies as stated in section 
901.3(a)(4).



Sec. 1.1927  Notification.

    (a) Salary offset deductions will not be made unless the Managing 
Director of the Commission, or the Managing Director's designee, 
provides to the employee at least 30 days before any deduction, written 
notice stating at a minimum:
    (1) The Commission's determination that a debt is owed, including 
the origin, nature, and amount of the debt;
    (2) The Commission's intention to collect the debt by means of 
deduction from the employee's current disposable pay account;
    (3) The frequency and amount of the intended deduction (stated as a 
fixed dollar amount or as a percentage of pay, not to exceed 15 percent 
of disposable pay) and the intention to continue the deductions until 
the debt is paid in full or otherwise resolved;
    (4) An explanation of the Commission's policy concerning interest, 
penalties, and administrative costs (See Sec. Sec. 1.1940 and 1.1941), 
a statement that such assessments must be made unless excused in 
accordance with the FCCS;
    (5) The employee's right to inspect and copy Government records 
relating to the debt or, if the employee or his or her representative 
cannot personally inspect the records, to request and receive a copy of 
such records.
    (6) If not previously provided, the opportunity (under terms 
agreeable to the Commission) to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment of the debt in lieu of offset. The agreement 
must be in writing, signed by both the employee and the Managing 
Director (or designee) of the Commission and documented in Commission 
files (see the FCCS).
    (7) The employee's right to a hearing conducted by an official 
arranged by the Commission (an administrative law judge, or 
alternatively, a hearing official not under the control of the head of 
the Commission) if a petition is filed as prescribed by this subpart.
    (8) The method and time period for petitioning for a hearing;
    (9) That the timely filing of a petition for hearing will stay the 
commencement of collection proceedings;
    (10) That the final decision in the hearing (if one is requested) 
will be issued at the earliest practical date, but not later than 60 
days after the filing of the petition requesting the hearing unless the 
employee requests and the hearing official grants a delay in the 
proceedings;
    (11) That any knowingly false, misleading, or frivolous statements, 
representations, or evidence may subject the employee to:

[[Page 375]]

    (i) Disciplinary procedures appropriate under Chapter 75 of title 5, 
U.S.C., part 752 of title 5, Code of Federal Regulations, or any other 
applicable statutes or regulations.
    (ii) Penalties under the False Claims Act sections 3729-3731 of 
title 31, U.S.C., or any other applicable statutory authority; or
    (iii) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18, U.S.C., or any other applicable statutory authority.
    (12) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made; and
    (13) Unless there are applicable contractual or statutory provisions 
to the contrary, that amounts paid on or deducted for the debt which are 
later waived or found not owed to the United States will be promptly 
refunded to the employee.
    (b) Notifications under this section shall be hand delivered with a 
record made of the date of delivery, or shall be mailed by certified 
mail, return receipt requested.
    (c) No notification, hearing, written responses or final decisions 
under this regulation are required by the Commission for:
    (1) Any adjustment to pay arising out of an employee's election of 
coverage, or change in coverage, under a Federal benefit program 
requiring periodic deductions from pay, if the amount to be recovered 
was accumulated over four pay periods or less;
    (2) A routine intra-Commission adjustment of pay that is made to 
correct an overpayment of pay attributable to clerical or administrative 
errors or delays in processing pay documents, if the overpayment 
occurred within the four pay periods preceding the adjustment, or as 
soon thereafter as practical, the individual is provided written notice 
of the nature and the amount of the adjustment and point of contact for 
contesting such adjustment; or
    (3) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.



Sec. 1.1928  Hearing.

    (a) Petition for hearing. (1) An employee may request a hearing by 
filing a written petition with the Managing Director of the Commission, 
or designated official stating why the employee believes the 
determination of the Commission concerning the existence or the amount 
of the debt is in error.
    (2) The employee's petition must be executed under penalty of 
perjury by the employee and fully identify and explain with reasonable 
specificity all the facts, evidence and witnesses, if any, which the 
employee believes support his or her position.
    (3) The petition must be filed no later than fifteen (15) calendar 
days from the date that the notification was hand delivered or the date 
of delivery by certified mail, return receipt requested.
    (4) If a petition is received after the fifteenth (15) calendar day 
deadline referred to paragraph (a) (3) of this section, the Commission 
will nevertheless accept the petition if the employee can show, in 
writing, that the delay was due to circumstances beyond his or her 
control, or because of failure to receive notice of the time limit 
(unless otherwise aware of it).
    (5) If a petition is not filed within the time limit specified in 
paragraph (a) (3) of this section, and is not accepted pursuant to 
paragraph (a)(4) of this section, the employee's right to hearing will 
be considered waived, and salary offset will be implemented by the 
Commission.
    (b) Type of hearing. (1) The form and content of the hearing will be 
determined by the hearing official who shall be a person outside the 
control or authority of the Commission except that nothing herein shall 
be construed to prohibit the appointment of an administrative law judge 
by the Commission. In determining the type of hearing, the hearing 
officer will consider the nature and complexity of the transaction 
giving rise to the debt. The hearing may be conducted as an informal 
conference or interview, in which the Commission and employee will be 
given a full opportunity to present their respective

[[Page 376]]

positions, or as a more formal proceeding involving the presentation of 
evidence, arguments and written submissions.
    (2) The employee may represent him or herself, or may be represented 
by an attorney.
    (3) The hearing official shall maintain a summary record of the 
hearing.
    (4) The decision of the hearing officer shall be in writing, and 
shall state:
    (i) The facts purported to evidence the nature and origin of the 
alleged debt;
    (ii) The hearing official's analysis, findings, and conclusions, in 
the light of the hearing, as to--
    (A) The employee's and/or agency's grounds,
    (B) The amount and validity of the alleged debt, and,
    (C) The repayment schedule, if applicable.
    (5) The decision of the hearing official shall constitute the final 
administrative decision of the Commission.



Sec. 1.1929  Deduction from employee's pay.

    (a) Deduction by salary offset, from an employee's current 
disposable pay, shall be subject to the following conditions:
    (1) Ordinarily, debts to the United States will be collected in 
full, in one lump sum. This will be done when funds are available for 
payment in one lump sum. However, if the employee is financially unable 
to pay in one lump sum or the amount of the debt exceeds 15 percent of 
disposable pay for an officially established pay interval, collection 
must be made in installments.
    (2) The size of the installment deductions will bear a reasonable 
relationship to the size of the debt and the employee's ability to pay 
(see the FCCS). However, the installments will not exceed 15 percent of 
the disposable pay from which the deduction is made, unless the employee 
has agreed in writing to the deduction of a greater amount.
    (3) Deduction will generally commence with the next full pay 
interval (ordinarily the next biweekly pay period) following the date: 
of the employee's written consent to salary offset, the waiver of 
hearing, or the decision issued by the hearing officer.
    (4) Installment deductions will be pro-rated for a period not 
greater than the anticipated period of employment except as provided in 
Sec. 1.1930.



Sec. 1.1930  Liquidation from final check or recovery from other payment.

    (a) If the employee retires or resigns or if his or her employment 
or period of active duty ends before collection of the debt is 
completed, offset of the entire remaining balance of the debt may be 
made from a final payment of any nature, including, but not limited to a 
final salary payment or lump-sum leave due the employee as the date of 
separation, to such extent as is necessary to liquidate the debt.
    (b) If the debt cannot be liquidated by offset from a final payment, 
offset may be made from later payments of any kind due from the United 
States, including, but not limited to, the Civil Service Retirement and 
Disability Fund, pursuant to Sec. 1.1913.



Sec. 1.1931  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any portion of a debt 
being collected under 5 U.S.C. 5514 shall not be construed as a waiver 
of any rights which the employee may have under 5 U.S.C. 5514 or any 
other provision of contract or law, unless statutory or contractual 
provisions provide to the contrary.



Sec. 1.1932  Refunds.

    (a) Refunds shall promptly be made when--(1) A debt is waived or 
otherwise found not owing to the United States (unless expressly 
prohibited by statute or regulation); or
    (2) The employee's paying agency is directed by an administrative or 
judicial order to refund amounts deducted from his or her current pay.
    (b) Refunds do not bear interest unless required or permitted by law 
or contract.



Sec. 1.1933  Interest, penalties and administrative costs.

    The assessment of interest, penalties and administrative costs shall 
be in accordance with Sec. Sec. 1.1940 and 1.1941.

[[Page 377]]



Sec. 1.1934  Recovery when the Commission is not creditor agency.

    (a) Responsibilities of creditor agency. Upon completion of the 
procedures established under 5 U.S.C. 5514, the creditor agency must do 
the following:
    (1) Must certify, in writing, that the employee owes the debt, the 
amount and basis of the debt, the date on which payment(s) is due, the 
date of the Government's right to collect the debt first accrued, and 
that the creditor agency's regulations implementing 5 U.S.C. 5514 have 
been approved by OPM.
    (2) If the collection must be made in installments, the creditor 
agency also must advise the Commission of the number of installments to 
be collected, the amount of each installment, and the commencement date 
of the first installment (if a date other than the next officially 
established pay period is required).
    (3) Unless the employee has consented to the salary offset in 
writing or signed a statement acknowledging receipt of the required 
procedures, and the written consent or statement is forwarded to the 
Commission, the creditor agency also must advise the Commission of the 
action(s) taken under 5 U.S.C. 5514(b) and give the date(s) the 
action(s) was taken.
    (4) Except as otherwise provided in this paragraph, the creditor 
agency must submit a debt claim containing the information specified in 
paragraphs (a)(1) through (a)(3) of this section and an installment 
agreement (or other instruction on the payment schedule), if applicable 
to the Commission.
    (5) If the employee is in the process of separating, the creditor 
agency must submit its claim to the Commission for collection pursuant 
to Sec. 1.1930. The Commission will certify the total amount of its 
collection and provide copies to the creditor agency and the employee as 
stated in paragraph (c)(1) of this section. If the Commission is aware 
that the employee is entitled to payments from the Civil Service 
Retirement and Disability Fund, or other similar payments, it must 
provide written notification to the agency responsible for making such 
payments that the debtor owes a debt (including the amount) and that 
there has been full compliance with the provisions of this section. 
However, the creditor agency must submit a properly certified claim to 
the agency responsible for making such payments before collection can be 
made.
    (6) If the employee is already separated and all payments from the 
Commission have been paid, the creditor agency may request, unless 
otherwise prohibited, that money due and payable to the employee from 
the Civil Service Retirement and Disability Fund (5 CFR 831.1801 et 
seq.), or other similar funds, be administratively offset to collect the 
debt. (31 U.S.C. 3716 and 4 CFR 102.4)
    (b) Responsibilities of the Commission--(1) Complete claim. When the 
Commission receives a properly certified debt claim from a creditor 
agency, deductions should be scheduled to begin prospectively at the 
next official established pay interval. The Commission will notify the 
employee that the Commission has received a certified debt claim from 
the creditor agency (including the amount) and written notice of the 
date deductions from salary will commence and of the amount of such 
deductions.
    (2) Incomplete claim. When the Commission receives an incomplete 
debt claim from a creditor agency, the Commission will return the debt 
claim with a notice that procedures under 5 U.S.C. 5514 and this subpart 
must be provided, and a properly certified debt claim received, before 
action will be taken to collect from the employee's current pay account.
    (3) Review. The Commission will not review the merits of the 
creditor agency's determination with respect to the amount or validity 
of the debt certified by the creditor agency.
    (c) Employees who transfer from one paying agency to another. (1) 
If, after the creditor agency has submitted the debt claim to the 
Commission, the employee transfers to a position served by a different 
paying agency before the debt is collected in full, the Commission must 
certify the total amount of the collection made on the debt. One copy of 
the certification must be furnished to the employee, another to the 
creditor agency along with notice of employee's transfer. However, the 
creditor agency must submit a properly

[[Page 378]]

certified claim to the new paying agency before collection can be 
resumed.
    (2) When an employee transfers to another paying agency, the 
creditor agency need not repeat the due process procedures described by 
5 U.S.C. 5514 and this subpart to resume the collection. However, the 
creditor agency is responsible for reviewing the debt upon receiving the 
former paying agency's notice of the employee's transfer to make sure 
the collection is resumed by the new paying agency.



Sec. 1.1935  Obtaining the services of a hearing official.

    (a) When the debtor does not work for the creditor agency and the 
creditor agency cannot provide a prompt and appropriate hearing before 
an administrative law judge or before a hearing official furnished 
pursuant to another lawful arrangement, the creditor agency may contact 
an agent of the Commission designated in Appendix A of 5 CFR part 581 
for a hearing official, and the Commission will then cooperate as 
provided by the FCCS and provide a hearing official.
    (b) When the debtor works for the creditor agency, the creditor 
agency may contact any agent (of another agency) designated in Appendix 
A of 5 CFR part 581 to arrange for a hearing official. Agencies must 
then cooperate as required by the FCCS and provide a hearing official.
    (c) The determination of a hearing official designated under this 
section is considered to be an official certification regarding the 
existence and amount of the debt for purposes of executing salary offset 
under 5 U.S.C. 5514. A creditor agency may make a certification to the 
Secretary of the Treasury under 31 CFR 550.1108 or a paying agency under 
31 CFR 550.1109 regarding the existence and amount of the debt based on 
the certification of a hearing official. If a hearing official 
determines that a debt may not be collected via salary offset, but the 
creditor agency finds that the debt is still valid, the creditor agency 
may still seek collection of the debt through other means, such as 
offset of other Federal payments, litigation, etc.



Sec. 1.1936  Administrative wage garnishment.

    (a) Purpose. This section provides procedures for the Commission to 
collect money from a debtor's disposable pay by means of administrative 
wage garnishment to satisfy delinquent non-tax debt owed to the United 
States.
    (b) Scope. (1) This section applies to Commission-administered 
programs that give rise to a delinquent nontax debt owed to the United 
States and to the Commission's pursuit of recovery of such debt.
    (2) This section shall apply notwithstanding any provision of State 
law.
    (3) Nothing in this section precludes the compromise of a debt or 
the suspension or termination of collection action in accordance with 
applicable law. See, for example, the Federal Claims Collection 
Standards (FCCS), 31 CFR parts 900 through 904.
    (4) The receipt of payments pursuant to this section does not 
preclude the Commission from pursuing other debt collection remedies, 
including the offset of Federal payments to satisfy delinquent nontax 
debt owed to the United States. The Commission may pursue such debt 
collection remedies separately or in conjunction with administrative 
wage garnishment.
    (5) This section does not apply to the collection of delinquent 
nontax debt owed to the Commission from the wages of Federal employees 
from their Federal employment. Federal pay is subject to the Federal 
salary offset procedures set forth in 5 U.S.C. 5514, Sec. Sec. 1.1925 
through 1.1935, and other applicable laws.
    (6) Nothing in this section requires the Commission to duplicate 
notices or administrative proceedings required by contract or other laws 
or regulations.
    (c) Definitions. In addition to the definitions set forth in Sec. 
1.1901 as used in this section, the following definitions shall apply:
    (1) Business day means Monday through Friday. For purposes of 
computation, the last day of the period will be included unless it is a 
Federal legal holiday.
    (2) Certificate of service means a certificate signed by a 
Commission official indicating the nature of the document to which it 
pertains, the date of

[[Page 379]]

mailing of the document, and to whom the document is being sent.
    (3) Day means calendar day. For purposes of computation, the last 
day of the period will be included unless it is a Saturday, a Sunday, or 
a Federal legal holiday.
    (4) Disposable pay means that part of the debtor's compensation 
(including, but not limited to, salary, bonuses, commissions, and 
vacation pay) from an employer remaining after the deduction of health 
insurance premiums and any amounts required by law to be withheld.
    (5) Amounts required by law to be withheld include amounts for 
deductions such as social security taxes and withholding taxes, but do 
not include any amount withheld pursuant to a court order.
    (6) Employer means a person or entity that employs the services of 
others and that pays their wages or salaries. The term employer 
includes, but is not limited to, State and local Governments, but does 
not include an agency of the Federal Government.
    (7) Garnishment means the process of withholding amounts from an 
employee's disposable pay and the paying of those amounts to a creditor 
in satisfaction of a withholding order.
    (8) Withholding order means any order for withholding or garnishment 
of pay issued by an agency, or judicial or administrative body. For 
purposes of this section, the terms ``wage garnishment order'' and 
``garnishment order'' have the same meaning as ``withholding order.''
    (d) General rule. Whenever the Commission determines that a 
delinquent debt is owed by an individual, the Commission may initiate 
proceedings administratively to garnish the wages of the delinquent 
debtor as governed by procedures prescribed by 31 CFR 285. Wage 
garnishment will usually be performed for the Commission by the Treasury 
as part of the debt collection processes for Commission debts referred 
to Treasury for further collection action.
    (e) Notice requirements. (1) At least 30 days before the initiation 
of garnishment proceedings, the Commission shall mail, by first class 
mail, to the debtor's last known address a written notice informing the 
debtor of:
    (i) The nature and amount of the debt;
    (ii) The intention of the Commission to initiate proceedings to 
collect the debt through deductions from pay until the debt and all 
accumulated interest, penalties and administrative costs are paid in 
full; and
    (iii) An explanation of the debtor's rights, including those set 
forth in paragraph (e)(2) of this section, and the time frame within 
which the debtor may exercise his or her rights.
    (2) The debtor shall be afforded the opportunity:
    (i) To inspect and copy agency records related to the debt;
    (ii) To enter into a written repayment agreement with the Commission 
under terms agreeable to the Commission; and
    (iii) For a hearing in accordance with paragraph (f) of this section 
concerning the existence or the amount of the debt or the terms of the 
proposed repayment schedule under the garnishment order. However, the 
debtor is not entitled to a hearing concerning the terms of the proposed 
repayment schedule if these terms have been established by written 
agreement under paragraph (e)(2)(ii) of this section.
    (3) The Commission will keep a copy of a certificate of service 
indicating the date of mailing of the notice. The certificate of service 
may be retained electronically so long as the manner of retention is 
sufficient for evidentiary purposes.
    (f) Hearing. Pursuant to 31 CFR 285.11(f)(1), the Commission hereby 
adopts by reference the hearing procedures of 31 CFR 285.11(f).
    (g) Wage garnishment order. (1) Unless the Commission receives 
information that the Commission believes justifies a delay or 
cancellation of the withholding order, the Commission will send, by 
first class mail, a withholding order to the debtor's employer within 30 
days after the debtor fails to make a timely request for a hearing 
(i.e., within 15 business days after the mailing of the notice described 
in paragraph (e)(1) of this section), or, if a timely request for a 
hearing is made by the debtor, within 30 days after a final decision is

[[Page 380]]

made by the Commission to proceed with garnishment, or as soon as 
reasonably possible thereafter.
    (2) The withholding order sent to the employer under paragraph 
(g)(1) of this section shall be in a form prescribed by the Secretary of 
the Treasury on the Commission's letterhead and signed by the head of 
the Commission or his/her delegate. The order shall contain only the 
information necessary for the employer to comply with the withholding 
order, including the debtor's name, address, and social security number, 
as well as instructions for withholding and information as to where 
payments should be sent.
    (3) The Commission will keep a copy of a certificate of service 
indicating the date of mailing of the order. The certificate of service 
may be retained electronically so long as the manner of retention is 
sufficient for evidentiary purposes.
    (h) Certification by employer. Along with the withholding order, the 
Commission shall send to the employer a certification in a form 
prescribed by the Secretary of the Treasury. The employer shall complete 
and return the certification to the Commission within the time frame 
prescribed in the instructions to the form addressing matters such as 
information about the debtor's employment status and disposable pay 
available for withholding.
    (i) Amounts withheld. (1) After receipt of the garnishment order 
issued under this section, the employer shall deduct from all disposable 
pay paid to the applicable debtor during each pay period the amount of 
garnishment described in paragraph (i)(2) of this section.
    (2) Subject to the provisions of paragraphs (i)(3) and (i)(4) of 
this section, the amount of garnishment shall be the lesser of:
    (i) The amount indicated on the garnishment order up to 15% of the 
debtor's disposable pay; or
    (ii) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on 
Garnishment). The amount set forth at 15 U.S.C. 1673(a)(2) is the amount 
by which a debtor's disposable pay exceeds an amount equivalent to 
thirty times the minimum wage. See 29 CFR 870.10.
    (3) When a debtor's pay is subject to withholding orders with 
priority the following shall apply:
    (i) Unless otherwise provided by Federal law, withholding orders 
issued under this section shall be paid in the amounts set forth under 
paragraph (i)(2) of this section and shall have priority over other 
withholding orders which are served later in time. Notwithstanding the 
foregoing, withholding orders for family support shall have priority 
over withholding orders issued under this section.
    (ii) If amounts are being withheld from a debtor's pay pursuant to a 
withholding order served on an employer before a withholding order 
issued pursuant to this section, or if a withholding order for family 
support is served on an employer at any time, the amounts withheld 
pursuant to the withholding order issued under this section shall be the 
lesser of:
    (A) The amount calculated under paragraph (i)(2) of this section, or
    (B) An amount equal to 25% of the debtor's disposable pay less the 
amount(s) withheld under the withholding order(s) with priority.
    (iii) If a debtor owes more than one debt to the Commission, the 
Commission may issue multiple withholding orders provided that the total 
amount garnished from the debtor's pay for such orders does not exceed 
the amount set forth in paragraph (i)(2) of this section. For purposes 
of this paragraph (i)(3)(iii), the term agency refers to the Commission 
that is owed the debt.
    (4) An amount greater than that set forth in paragraphs (i)(2) and 
(i)(3) of this section may be withheld upon the written consent of 
debtor.
    (5) The employer shall promptly pay to the Commission all amounts 
withheld in accordance with the withholding order issued pursuant to 
this section.
    (6) An employer shall not be required to vary its normal pay and 
disbursement cycles in order to comply with the withholding order.
    (7) Any assignment or allotment by an employee of his earnings shall 
be void to the extent it interferes with or prohibits execution of the 
withholding order issued under this section, except

[[Page 381]]

for any assignment or allotment made pursuant to a family support 
judgment or order.
    (8) The employer shall withhold the appropriate amount from the 
debtor's wages for each pay period until the employer receives 
notification from the Commission to discontinue wage withholding. The 
garnishment order shall indicate a reasonable period of time within 
which the employer is required to commence wage withholding.
    (j) Exclusions from garnishment. The Commission may not garnish the 
wages of a debtor who it knows has been involuntarily separated from 
employment until the debtor has been reemployed continuously for at 
least 12 months. The debtor has the burden of informing the Commission 
of the circumstances surrounding an involuntary separation from 
employment.
    (k) Financial hardship. (1) A debtor whose wages are subject to a 
wage withholding order under this section, may, at any time, request a 
review by the Commission of the amount garnished, based on materially 
changed circumstances such as disability, divorce, or catastrophic 
illness which result in demonstrated financial hardship.
    (2) A debtor requesting a review under paragraph (k)(1) of this 
section shall submit the basis for claiming that the current amount of 
garnishment results in demonstrated financial hardship to the debtor, 
along with supporting documentation. The Commission will consider any 
information submitted; however, demonstrated financial hardship must be 
based on financial records that include Federal and state tax returns, 
affidavits executed under the pain and penalty of perjury, and, in the 
case of business-related financial hardship (e.g., the debtor is a 
partner or member of a business-agency relationship) full financial 
statements (audited and/or submitted under oath) in accordance with 
procedures and standards established by the Commission.
    (3) If a financial hardship is found, the Commission will downwardly 
adjust, by an amount and for a period of time agreeable to the 
Commission, the amount garnisheed to reflect the debtor's financial 
condition. The Commission will notify the employer of any adjustments to 
the amounts to be withheld.
    (l) Ending garnishment. (1) Once the Commission has fully recovered 
the amounts owed by the debtor, including interest, penalties, and 
administrative costs consistent with the FCCS, the Commission will send 
the debtor's employer notification to discontinue wage withholding.
    (2) At least annually, the Commission shall review its debtors' 
accounts to ensure that garnishment has been terminated for accounts 
that have been paid in full.
    (m) Actions prohibited by the employer. An employer may not 
discharge, refuse to employ, or take disciplinary action against the 
debtor due to the issuance of a withholding order under this section.
    (n) Refunds. (1) If a hearing official, at a hearing held pursuant 
to paragraph (f)(3) of this section, determines that a debt is not 
legally due and owing to the United States, the Commission shall 
promptly refund any amount collected by means of administrative wage 
garnishment.
    (2) Unless required by Federal law or contract, refunds under this 
section shall not bear interest.
    (o) Right of action. The Commission may sue any employer for any 
amount that the employer fails to withhold from wages owed and payable 
to an employee in accordance with paragraphs (g) and (i) of this 
section. However, a suit may not be filed before the termination of the 
collection action involving a particular debtor, unless earlier filing 
is necessary to avoid expiration of any applicable statute of 
limitations period. For purposes of this section, ``termination of the 
collection action'' occurs when the Commission has terminated collection 
action in accordance with the FCCS or other applicable standards. In any 
event, termination of the collection action will have been deemed to 
occur if the Commission has not received any payments to satisfy the 
debt from the particular debtor whose wages were subject to garnishment, 
in whole or in part, for a period of one (1) year.

[[Page 382]]



Sec. Sec. 1.1937 through 1.1939  [Reserved]

      Interest, Penalties, Administrative Costs and Other Sanctions



Sec. 1.1940  Assessment.

    (a) Except as provided in paragraphs (g), (h), and (i) of this 
section or Sec. 1.1941, the Commission shall charge interest, 
penalties, and administrative costs on debts owed to the United States 
pursuant to 31 U.S.C. 3717. The Commission will mail, hand-deliver, or 
use other forms of transmission, including facsimile telecopier service, 
a written notice to the debtor, at the debtor's CORES contact address 
(see section 1.8002(b)) explaining the Commission's requirements 
concerning these charges except where these requirements are included in 
a contractual or repayment agreement, or otherwise provided in the 
Commission's rules, as may be amended from time to time. These charges 
shall continue to accrue until the debt is paid in full or otherwise 
resolved through compromise, termination, or waiver of the charges. This 
provision is not intended to modify or limit the terms of any contract, 
note, or security agreement from the debtor, or to modify or limit the 
Commission's rights under its rules with regard to the notice or the 
parties' agreement to waive notice.
    (b) The Commission shall charge interest on debts owed the United 
States as follows:
    (1) Interest shall accrue from the date of delinquency, or as 
otherwise provided by the terms of any contract, note, or security 
agreement, regulation, or law.
    (2) Unless otherwise established in a contract, note, or security 
agreement, repayment agreement, or by statute, the rate of interest 
charged shall be the rate established annually by the Treasury in 
accordance with 31 U.S.C. 3717. Pursuant to 31 U.S.C. 3717, an agency 
may charge a higher rate of interest if it reasonably determines that a 
higher rate is necessary to protect the rights of the United States. The 
agency should document the reason(s) for its determination that the 
higher rate is necessary.
    (3) The rate of interest, as initially charged, shall remain fixed 
for the duration of the indebtedness. When a debtor defaults on a 
repayment agreement and seeks to enter into a new agreement, the agency 
may require payment of interest at a new rate that reflects the current 
value of funds to the Treasury at the time the new agreement is 
executed. Interest shall not be compounded, that is, interest shall not 
be charged on interest, penalties, or administrative costs required by 
this section. If, however, a debtor defaults on a previous repayment 
agreement, charges that accrued but were not collected under the 
defaulted agreement shall be added to the principal under the new 
repayment agreement.
    (c) The Commission shall assess administrative costs incurred for 
processing and handling delinquent debts. The calculation of 
administrative costs may be based on actual costs incurred or upon 
estimated costs as determined by the Commission. Commission 
administrative costs include the personnel and service costs (e.g., 
telephone, copier, and overhead) to notify and collect the debt, without 
regard to the success of such efforts by the Commission.
    (d) Unless otherwise established in a contract, repayment agreement, 
or by statute, the Commission will charge a penalty, pursuant to 31 
U.S.C. 3717(e)(2), currently not to exceed six percent (6%) a year on 
the amount due on a debt that is delinquent for more than 90 days. This 
charge shall accrue from the date of delinquency. If the rate permitted 
under 31 U.S.C. 3717 is changed, the Commission will apply that rate.
    (e) The Commission may increase an administrative debt by the cost 
of living adjustment in lieu of charging interest and penalties under 
this section. Administrative debt includes, but is not limited to, a 
debt based on fines, penalties, and overpayments, but does not include a 
debt based on the extension of Government credit, such as those arising 
from loans and loan guaranties. The cost of living adjustment is the 
percentage by which the Consumer Price Index for the month of June of 
the calendar year preceding the adjustment exceeds the Consumer Price

[[Page 383]]

Index for the month of June of the calendar year in which the debt was 
determined or last adjusted. Increases to administrative debts shall be 
computed annually. Agencies should use this alternative only when there 
is a legitimate reason to do so, such as when calculating interest and 
penalties on a debt would be extremely difficult because of the age of 
the debt.
    (f) When a debt is paid in partial or installment payments, amounts 
received by the agency shall be applied first to outstanding penalties 
and administrative cost charges, second to accrued interest, and third 
to the outstanding principal.
    (g) The Commission will waive the collection of interest and 
administrative charges imposed pursuant to this section on the portion 
of the debt that is paid within 30 days after the date on which interest 
began to accrue. The Commission will not extend this 30-day period 
except for good cause shown of extraordinary and compelling 
circumstances, completely documented and supported in writing, submitted 
and received before the expiration of the first 30-day period. The 
Commission may, on good cause shown of extraordinary and compelling 
circumstances, completely documented and supported in writing, waive 
interest, penalties, and administrative costs charged under this 
section, in whole or in part, without regard to the amount of the debt, 
either under the criteria set forth in these standards for the 
compromise of debts, or if the agency determines that collection of 
these charges is against equity and good conscience or is not in the 
best interest of the United States.
    (h) The Commission retains the common law right to impose interest 
and related charges on debts not subject to 31 U.S.C. 3717.



Sec. 1.1941  Exemptions.

    (a) The preceding sections of this part, to the extent they reflect 
remedies or procedures prescribed by the Debt Collection Act of 1982 and 
the Debt Collection Improvement Act of 1996, such as administrative 
offset, use of credit bureaus, contracting for collection agencies, and 
interest and related charges, do not apply to debts arising under, or 
payments made under, the Internal Revenue Code of 1986, as amended (26 
U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.), 
except to the extent provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c); 
or the tariff laws of the United States. These remedies and procedures, 
however, may be authorized with respect to debts that are exempt from 
the Debt Collection Act of 1982 and the Debt Collection Improvement Act 
of 1996, to the extent that they are authorized under some other statute 
or the common law.
    (b) This section should not be construed as prohibiting the use of 
these authorities or requirements when collecting debts owed by persons 
employed by agencies administering the laws cited in paragraph (a) of 
this section unless the debt arose under those laws. However, the 
Commission is authorized to assess interest and related charges on debts 
which are not subject to 31 U.S.C. 3717 to the extent authorized under 
the common law or other applicable statutory authority.



Sec. 1.1942  Other sanctions.

    The remedies and sanctions available to the Commission in this 
subpart are not exclusive. The Commission may impose other sanctions, 
where permitted by law, for any inexcusable, prolonged, or repeated 
failure of a debtor to pay such a claim. In such cases, the Commission 
will provide notice, as required by law, to the debtor prior to 
imposition of any such sanction.



Sec. Sec. 1.1943 through 1.1949  [Reserved]

              Cooperation With the Internal Revenue Service



Sec. 1.1950  Reporting discharged debts to the Internal Revenue Service.

    (a) In accordance with applicable provisions of the Internal Revenue 
Code and implementing regulations (26 U.S.C. 6050P; 26 CFR 1.6050P-1), 
when the Commission discharges a debt for less than the full value of 
the indebtedness, it will report the outstanding balance discharged, not 
including interest, to the Internal Revenue Service, using IRS Form 
1099-C or any other form prescribed by the Service, when:

[[Page 384]]

    (1) The principle amount of the debt not in dispute is $600 or more; 
and
    (2) The obligation has not been discharged in a bankruptcy 
proceeding; and
    (3) The obligation is no longer collectible either because the time 
limit in the applicable statute for enforcing collection expired during 
the tax year, or because during the year a formal compromise agreement 
was reached in which the debtor was legally discharged of all or a 
portion of the obligation.
    (b) The Treasury will prepare the Form 1099-C for those debts 
transferred to Treasury for collection and deemed uncollectible.



Sec. 1.1951  Offset against tax refunds.

    The Commission will take action to effect administrative offset 
against tax refunds due to debtors under 26 U.S.C. 6402, in accordance 
with the provisions of 31 U.S.C. 3720A and Treasury Department 
regulations.



Sec. 1.1952  Use and disclosure of mailing addresses.

    (a) When attempting to locate a debtor in order to collect or 
compromise a debt under this subpart or other authority, the Commission 
may send a request to the Secretary of the Treasury (or designee) to 
obtain a debtor's mailing address from the records of the Internal 
Revenue Service.
    (b) The Commission is authorized to use mailing addresses obtained 
under paragraph (a) of this section to enforce collection of a 
delinquent debt and may disclose such mailing addresses to other 
agencies and to collection agencies for collection purposes.

           General Provisions Concerning Interagency Requests



Sec. 1.1953  Interagency requests.

    (a) Requests to the Commission by other Federal agencies for 
administrative or salary offset shall be in writing and forwarded to the 
Financial Operations Center, FCC, 445 12th Street, SW., Washington, DC 
20554.
    (b) Requests by the Commission to other Federal agencies holding 
funds payable to the debtor will be in writing and forwarded, certified 
return receipt, as specified by that agency in its regulations. If the 
agency's rules governing this matter are not readily available or 
identifiable, the request will be submitted to that agency's office of 
legal counsel with a request that it be processed in accordance with 
their internal procedures.
    (c) Requests to and from the Commission shall be accompanied by a 
certification that the debtor owes the debt (including the amount) a