[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39898-39900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19500]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 96-306]


Implementation of the Equal Acess to Justice Act in Agency 
Proceedings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission has amended its rules implementing the Equal 
Access to Justice Act to conform to and carry out the intent of recent 
amendments of that Act to permit recovery, in conjunction with 
adversary adjudications commenced on or after March 29, 1996, of 
attorney fees, not exceeding $125.00 per hour, and other expenses. In 
addition, such an award is permitted when the demand of the Commission 
for relief is substantially in excess of the decision in an adversary 
adjudication and is unreasonable when compared with such decision, 
under the facts and circumstances of the case, unless the party has 
committed a willful violation of law or otherwise acted in bad faith, 
or special circumstances make an award unjust. Finally, a small entity 
as defined in 5 U.S.C. 601 is declared to be an eligible party for such 
relief.

EFFECTIVE DATE: July 31, 1996.

FOR FURTHER INFORMATION CONTACT: John I. Riffer, Office of General 
Counsel, (202) 418-1756.

SUPPLEMENTARY INFORMATION:

Adopted: July 15, 1996.
Released: July 18, 1996.

    1. By this Order, we amend our rules implementing the Equal Access 
to Justice Act (EAJA) for Commission proceedings in conformance with 
recent amendments of that Act adopted as part of the Contract with 
America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847 (1996).
    2. The pertinent provisions of the Contract with America 
Advancement Act of 1996 amend the EAJA to permit recovery, in 
conjunction with adversary adjudications commenced on or after March 
29, 1996, of attorney fees, not exceeding $125.00 per hour, and other 
expenses. In addition, the legislation provides for such an award when 
the demand of the Commission for relief is substantially in excess of 
the decision in an adversary adjudication and is unreasonable when 
compared with such decision, under the facts and circumstances of the 
case, unless the party has committed a willful violation of law or 
otherwise acted in bad faith, or special circumstances make an award 
unjust. Finally, the statute establishes that a small entity as defined 
in 5 U.S.C. 601 is an eligible party for such relief. The revised 
rules, as set forth below, simply incorporate the changes in the EAJA 
and make those changes applicable to Commission proceedings. These 
changes merely reiterate the specific terms of the statute and do not 
involve any discretionary action. Under these circumstances, this 
action comes within the ``good cause'' exemptions of the Administrative 
Procedure Act, 5 U.S.C. 553(b)(B) and 553(d), and the notice and 
comment and effective date provisions of the Administrative Procedure 
Act are inapplicable.
    3. Accordingly, it is ordered, That, effective July 31, 1996, part 
1 is amended as set forth below.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Federal Communications 
Commission.

Federal Communications Commission.

William F. Caton,
Acting Secretary.

Rule Changes

    Part 1 of Chapter I of Title 47 of the Code of Federal Regulations 
is amended as follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise 
noted.

    2. The second sentence of Sec. 1.1501 is revised to read as 
follows:


Sec. 1.1501  Purpose of these rules.

    * * * An eligible party may receive an award when it prevails over 
the Commission, unless the Commission's position in the proceeding was 
substantially justified or special circumstances make an award unjust, 
or when the demand of the Commission is substantially in excess of the 
decision in the adversary adjudication and is unreasonable when 
compared with such decision, under the facts and circumstances of the 
case, unless the party has committed a willful violation of law or 
otherwise acted in bad faith, or special circumstances make an award 
unjust. * * *
    3. Section 1.1502 is revised to read as follows:


Sec. 1.1502  When the EAJA applies.

    The EAJA applies to any adversary adjudication pending or commenced 
before the Commission on or after August 5, 1985. The provisions of 
Sec. 1.1505(b) apply to any adversary adjudications commenced on or 
after March 29, 1996.
    4. Section 1.1504 is amended by removing the period at the end of 
paragraph (b)(5), adding in its place a semicolon, and adding a new 
paragraph (b)(6) to read as follows:


Sec. 1.1504  Eligibility of applicants.

* * * * *
    (6) For purposes of Sec. 1.1505(b), a small entity as defined in 5 
U.S.C. 601.
* * * * *

[[Page 39899]]

    5. Section 1.1505 is revised to read as follows:


Sec. 1.1505  Standards for awards.

    (a) A prevailing party may receive an award for fees and expenses 
incurred in connection either with an adversary adjudication, or with a 
significant and discrete substantive portion of an adversary 
adjudication in which the party has prevailed over the position of the 
Commission.
    (1) The position of the Commission includes, in addition to the 
position taken by the Commission in the adversary adjudication, the 
action or failure to act by the agency upon which the adversary 
adjudication is based.
    (2) An award will be reduced or denied if the Commission's position 
was substantially justified in law and fact, if special circumstances 
make an award unjust, or if the prevailing party unduly or unreasonably 
protracted the adversary adjudication.
    (b) If, in an adversary adjudication arising from a Commission 
action to enforce a party's compliance with a statutory or regulatory 
requirement, the demand of the Commission is substantially in excess of 
the decision in the adversary adjudication and is unreasonable when 
compared with that decision, under the facts and circumstances of the 
case, the party shall be awarded the fees and other expenses related to 
defending against the excessive demand, unless the party has committed 
a willful violation of law or otherwise acted in bad faith, or special 
circumstances make an award unjust. The ``demand'' of the Commission 
means the express demand which led to the adversary adjudication, but 
it does not include a recitation by the Commission of the maximum 
statutory penalty in the administrative complaint, or elsewhere when 
accompanied by an express demand for a lesser amount.
    (c) The burden of proof that an award should not be made is on the 
appropriate Bureau (see Sec. 1.21) whose representative shall be called 
``Bureau counsel'' in this subpart K.
    6. The first sentence of Sec. 1.1506(b) is revised to read as 
follows:


Sec. 1.1506  Allowable fees and expenses.

* * * * *
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $75.00, or for adversary adjudications commenced on or after 
March 29, 1996, $125.00, per hour. * * *
* * * * *


Sec. 1.1507  [Amended]

    7. The first sentence of Sec. 1.1507(a) is amended by removing the 
word ``attorney's'' and adding in its place the word ``attorneys'' and 
by removing ``$75'' and adding in its place ``$125.00.''


Sec. 1.1508  [Amended]

    8. The first sentence of Sec. 1.1508 is revised by removing the 
word ``for'' and adding in its place the word ``or.''
    9. Section 1.1511 is amended by revising paragraph (a) and the 
introductory text of paragraph (b) to read as follows:


Sec. 1.1511  Contents of application.

    (a) An application for an award of fees and expenses under EAJA 
shall identify the applicant and the proceeding for which an award is 
sought. Unless the applicant is an individual, the application shall 
state the number of employees of the applicant and describe briefly the 
type and purpose of its organization or business. The application shall 
also:
    (1) Show that the applicant has prevailed and identify the position 
of an agency or agencies in the proceeding that the applicant alleges 
was not substantially justified; or
    (2) Show that the demand by the agency or agencies in the 
proceeding was substantially in excess of, and was unreasonable when 
compared with, the decision in the proceeding.
    (b) The application shall also include a declaration that the 
applicant is a small entity as defined in 5 U.S.C. 601 or a statement 
that the applicant's net worth does not exceed $2 million (if an 
individual) or $7 million (for all other applicants, including their 
affiliates). However, an applicant may omit the statement concerning 
its net worth if:
* * * * *
    10. The first and second sentence of Sec. 1.1513 are revised to 
read as follows:


Sec. 1.1513  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing hours spent in connection with the proceeding by 
each individual, a description of the specific services performed, the 
rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. * * *
    11. Section 1.1514 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 1.1514  When an application may be filed.

    (a) An application may be filed whenever the applicant has 
prevailed in the proceeding or in a significant and discrete 
substantive portion of the proceeding, or when the demand of the 
Commission is substantially in excess of the decision in the 
proceeding, but in no case later than 30 days after the Commission's 
final disposition of the proceeding.
* * * * *
    (c) For purposes of this rule, final disposition means the later of
    (1) The date on which an initial decision or other recommended 
disposition of the merits of the proceeding by an Administrative Law 
Judge becomes administratively final;
    (2) Issuance of an order disposing of any petitions for 
reconsideration of the Commission's order in the proceeding;
    (3) If no petition for reconsideration is filed, the last date on 
which such petition could have been filed;
    (4) Issuance of a final order by the Commission or any other final 
resolution of a proceeding, such as settlement or voluntary dismissal, 
which is not subject to a petition for reconsideration, or to a 
petition for judicial review; or
    (5) Completion of judicial action on the underlying controversy and 
any subsequent Commission action pursuant to judicial mandate.


Sec. 1.1524  [Amended]

    12. The first sentence of Sec. 1.1524 is amended by removing the 
word ``often'' and adding in its place the word ``after.''
    13. Section 1.1526(a) is revised to read as follows:


Sec. 1.1526  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the 
applicant or Bureau counsel, or on his or her own initiative, the 
Administrative Law Judge may order further proceedings, such as an 
informal conference, oral argument, additional written submissions or, 
as to issues other than excessive demand or substantial justification, 
an evidentiary hearing. Such further proceedings shall be held only 
when necessary for full and fair resolution of the issues arising from 
the application, and shall be conducted as promptly as possible. 
Whether or not the position of the

[[Page 39900]]

agency embodied an excessive demand or was substantially justified 
shall be determined on the basis of the administrative record, as a 
whole, which is made in the adversary adjudication for which fees and 
other expenses are sought.
* * * * *
    14. Section 1.1527 is revised to read as follows:


Sec. 1.1527  Decision.

    The Administrative Law Judge shall issue an initial decision on the 
application as soon as possible after completion of proceedings on the 
application. The decision shall include written findings and 
conclusions regarding the applicant's eligibility and whether the 
applicant was a prevailing party or whether the demand by the agency or 
agencies in the proceeding was substantially in excess of, and was 
unreasonable when compared with, the decision in the adversary 
adjudication, and an explanation of the reasons for any difference 
between the amount requested and the amount awarded. The decision shall 
also include, if at issue, findings on whether the Commission's 
position substantially justified, whether the applicant unduly 
protracted the proceedings, committed a willful violation of law, or 
otherwise acted in bad faith, or whether special circumstances make an 
award unjust. If the applicant has sought an award against more than 
one agency, the decision shall allocate responsibility for payment of 
any award made among the agencies, and shall explain the reasons for 
the allocation made.


Sec. 1.1528  [Amended]

    15. The first sentence of Sec. 1.1528 is amended by removing the 
word ``fee.''

[FR Doc. 96-19500 Filed 7-30-96; 8:45 am]
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