[Title 47 CFR C]
[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]
[Subpart C - Rulemaking Proceedings]
[From the U.S. Government Printing Office]
47TELECOMMUNICATION12004-10-012004-10-01falseRulemaking ProceedingsCSubpart CTELECOMMUNICATIONFEDERAL COMMUNICATIONS COMMISSIONGENERALPRACTICE AND PROCEDURE
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proposed rule, amendment, or rule to be repealed, together with all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]