Practice and procedure: Commision orders; appeals petitions filing procedures,

[Federal Register: February 8, 2006 (Volume 71, Number 26)]

[Rules and Regulations]

[Page 6380-6381]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr08fe06-15]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 06-6]

Amendment of the Commission's Rules Regarding Petitions for Review

AGENCY: Federal Communications Commission.

ACTION: Final rule.

SUMMARY: The Commission amends its regulations relating to the procedures to be followed when parties appealing Commission actions file in different courts of appeals. If within ten days after issuance of an order, the Commission receives two or more petitions for review filed with different courts of appeals, it is required to notify the judicial panel on multidistrict litigation, which then randomly selects one of those courts of appeals to consider the petitions for review. The Commission's regulations implement this provision by specifying that a party wishing to avail itself of these procedures must, within ten days after issuance of an order, file with the Commission's Office of General Counsel a copy of its petition for review as filed and date- stamped by the court of appeals. This amendment conforms the Commission's regulations to the Federal Rules of Appellate Procedure by providing that weekends and holidays will not be included when counting this ten-day period.

DATES: Effective March 10, 2006.

FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General Counsel (202) 418-1720.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, FCC 06-6, adopted on January 24, 2006, and released January 26, 2006. The full text of the Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Copies of filings may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II. 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com, Web site http://www.bcpiweb.com This document may also be viewed on the Commission's Internet Web at http://hraunfoss.fcc.gov/edocs_.

public/attachmatch/FCC-06-6A1.pdf.

Accessible formats (computer diskettes, large print, audio recording and Braille) are available to persons with disabilities by contacting the Consumer & Governmental Affairs Bureau, at (202) 418- 0531, TTY (202) 418-7365, or at fcc504@fcc.gov.

Summary of Order

1. By this order, the Commission amends 47 CFR 1.13(a)(2) to eliminate an inconsistency with the Federal Rules of Appellate Procedure (Federal Rules) that arose as a result of the 2002 amendments to the Federal Rules. Section 1.13 of the Commission's rules implements the provisions of 28 U.S.C. 2112. That statutory provision, in relevant part, is applicable to situations where different parties seeking review of the same agency order file petitions for review in different courts of appeals. Under 28 U.S.C. 2112(a), if, ``within ten days after issuance of the order,'' an agency receives two or more petitions for review filed with different courts of appeals, that agency is required to notify the judicial panel on multidistrict litigation, which then randomly selects one of those courts of appeals to consider the petitions for review. Section 1.13(a)(1) of the Commission's rules implements this provision by specifying that a party wishing to avail itself of these procedures must, within ten days after issuance of an order, file with the Commission's Office of General Counsel (OGC) a copy of its petition for review as filed and date-stamped by the court of appeals with which it was filed.

2. The inconsistency which the Commission corrects by this order concerns the manner in which the ten-day period for filing petitions with OGC is computed. Section 1.13(a)(2) of the Commission's Rules provides that ``[c]omputation of time of the ten-day period for filing copies of petitions for review shall be governed by Sec. 1.4 of the Commission's Rules.'' Section 1.4(g), in turn, sets forth the general Commission rule that, unless otherwise provided, intermediate holidays shall not be counted only in determining filing periods of less than seven days. The term holidays is defined to include Saturdays, Sundays, other recognized Federal legal holidays, and other days on which the Commission's offices are closed. 47 CFR. 1.4(e).

3. Because the period for filing petitions for review with OGC pursuant to 28 U.S.C. 2112(a) for invoking the random selection process is not less than seven days, weekends and holidays would appear to be counted in determining the ten-day period under existing Sec. 1.13 of the Commission's rules. Such a determination, however, conflicts with current Federal Rule of Appellate Procedure 26(a)(2). That rule applies ``in computing any period of time specified in these rules or in any local court rule, court order, or applicable statute,'' and now states that computations must ``[e]xclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days, unless stated in calendar days.'' \1\ Thus, Rule 26(a)(2), in contrast to existing 47 CFR 1.13, excludes weekends and holidays in making the relevant ten-day computation under 28 U.S.C. 2112. Because the Commission's Rules should be consistent with, rather than conflict with, the Federal Rules of Appellate Procedure, the Commission amends Sec. 1.13(a)(2) to replace the

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   reference to Sec. 1.4 of the Commission's Rules with a reference to Rule 26 of the Federal Rules of Appellate Procedure, thus making clear that the ten-day period under Sec. 1.13 excludes weekends and holidays.\2\

   \1\ Prior to amendments made in 2002, Rule 26(a)(2), consistent with existing Sec. 1.13, provided that weekends and holidays would be excluded when ``the period is less than 7 days, unless stated in calendar days.''

   \2\ Rule 26(a)(4) defines legal holidays to mean New Year's Day, Martin Luther King's Birthday, President's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or other various government-declared holidays. It does not, however, define other days that the court is closed as ``holidays.'' Rather, if the act to be done is filing a paper in court, Rule 26(a)(3) excludes from being counted as a day the last day of the filing period when the weather or other conditions makes the clerk's office inaccessible. The Commission will apply the same rule when it is closed on the last day of the filing period. In those cases, the petition must be filed the next business day on which the Commission is open.

4. The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not ``substantially affect the rights or obligations of non- agency parties.''

5. Accordingly, it is ordered, that 47 CFR 1.13 is amended as set forth in the rules changes.\3\

   \3\ Notice and comment is not required to amend a procedural rule. See 5 U.S.C. 553(b).

   List of Subjects in 47 CFR Part 1

   Administrative practice and procedure.

   Federal Communications Commission. Marlene H. Dortch, Secretary.

   0 For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

   PART 1--PRACTICE AND PROCEDURE

   0 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.

   0 2. Section 1.13 is amended by revising paragraph (a)(2) to read as follows:

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

   (a) * * *

   (2) Computation of time of the ten-day period for filing copies of petitions for review of a Commission order shall be governed by Rule 26 of the Federal Rules of Appellate Procedure. 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) of the Commission's Rules, 47 CFR 1.4(b). * * * * *

   [FR Doc. 06-1099 Filed 2-7-06; 8:45 am]

   BILLING CODE 6712-01-P