[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.
[[Page 99]]
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]]