Procedural Streamlining of Administrative Hearings
| Published date | 07 October 2019 |
| Citation | 84 FR 53355 |
| Record Number | 2019-20568 |
| Section | Proposed rules |
| Court | Federal Communications Commission |
Federal Register, Volume 84 Issue 194 (Monday, October 7, 2019)
[Federal Register Volume 84, Number 194 (Monday, October 7, 2019)]
[Proposed Rules]
[Pages 53355-53375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20568]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0, 1, and 76
[EB Docket No. 19-214; FCC 19-86]
Procedural Streamlining of Administrative Hearings
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission proposes procedural changes
to administrative hearings under the Communications Act of 1934,
[[Page 53356]]
as amended. The proposals would supplement the Commission's current
administrative law judge referral process and promote more efficient
resolution of hearings. The Commission seeks comment on proposals to
codify and expand the use of written testimony and documentary evidence
in lieu of live testimony and cross-examination. The Commission also
seeks comment on proposals that would enable Commission staff to act as
a case manager that would supervise development of the written hearing
record when the Commission designates itself as the presiding officer
at a hearing. Finally, the Commission seeks comment on a proposal to
dispense with the preparation of an intermediate opinion whenever the
record of a proceeding can be certified to the Commission for final
decision.
DATES: Comments are due on or before November 6, 2019 and reply
comments are due on or before November 21, 2019.
ADDRESSES: You may submit comments, identified by EB Docket No. 19-214,
by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 220701.
U.S. Postal Service first class, Express, and Priority
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
People with Disabilities: Contact the FCC to request reasonable
accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Lisa Boehley of the Market Disputes Resolution
Division, Enforcement Bureau, at [email protected] or (202) 418-
7395.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 19-86, EB Docket No. 19-214, adopted on
September 3, 2019 and released on September 6, 2019. The full text of
this document is available for public inspection during regular
business hours in the FCC Reference Center, 445 12th Street SW, Room
CY-A257, Washington, DC 20554, or online at https://ecfsapi.fcc.gov/file/090628688258/FCC-19-86A1.pdf. To request this document in
accessible formats for people with disabilities (e.g., Braille, large
print, electronic files, audio format, etc.) or to request reasonable
accommodations (e.g., accessible format documents, sign language
interpreters, CART, etc.), send an email to [email protected] or call the
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Synopsis
1. In the Notice of Proposed Rulemaking (NPRM), we seek comment on
procedural changes that, if adopted, would streamline many
administrative hearings under the Communications Act of 1934, as
amended (Communications Act or Act). Currently, these hearings
typically are conducted like trials in civil litigation and include,
among other things, live testimony before an administrative law judge,
cross-examination of witnesses, and an initial decision by the
administrative law judge that is subject to review by the Commission.
The Commission has observed that such trial-type hearings are costly
and impose significant burdens and delays on both applicants and the
agency that may not be necessary.
2. The procedures outlined here are designed to supplement the
Commission's current administrative law judge referral process and
promote more efficient resolution of hearings. If adopted, the
proposals would (a) codify and expand the use of a process that would
rely on written testimony and documentary evidence in lieu of live
testimony and cross-examination; (b) enable Commission staff to act as
a case manager that would supervise development of the written hearing
record when the Commission designates itself as the presiding officer
at a hearing; and (c) dispense with the preparation of an intermediate
opinion whenever the record of a proceeding can be certified to the
Commission for final decision. The proposed procedures would expedite
the Commission's hearing processes consistent with the requirements of
the Communications Act and the Administrative Procedure Act (APA) while
ensuring transparency and procedural fairness.
3. Several provisions of the Communications Act require or permit
the Commission to conduct an adjudicatory hearing to resolve a matter.
These provisions generally do not identify particular procedures that
the Commission must follow. For example,
Section 309(e) requires the Commission, when a substantial
and material fact is presented or when it is unable to make the public
interest finding in section 309(a), to designate a license application
for a ``full hearing'';
Section 309(k)(3) requires a section 309(e) ``full
hearing'' when the Commission is unable to make the requisite findings
to grant a broadcast station renewal request;
Section 312(c) requires the Commission to conduct a
``hearing'' before revoking a station license or construction permit
pursuant to section 312(a);
Section 316(a) and (b) provide that a ``hearing'' may be
conducted before the Commission modifies a station license or
construction permit;
Section 9(c)(3) requires a ``hearing'' before the
Commission may revoke an instrument of authorization for failure to pay
a regulatory fee if ``the licensee's response [to a notice of intent to
revoke] presents a substantial and material question of fact'';
Section 204(a) authorizes the Commission to conduct a
``hearing'' concerning the lawfulness of a tariff;
Sections 208 and 209 require the Commission to conduct a
``hearing'' to resolve a complaint that a common carrier engaged in
unlawful conduct, and to award damages when appropriate;
Section 214(b) grants a right ``to be heard'' to parties
receiving Commission notice of a carrier request to construct, extend,
acquire, operate, or discontinue service, and section 214(d) provides
that the Commission may ``after a full opportunity for hearing''
require a carrier to provide itself with adequate facilities.
[[Page 53357]]
4. The Commission has applied a variety of processes in these
hearings. Traditionally, the Commission has designated most disputes
concerning spectrum license applicants, permittees, or licensees under
sections 309 and 312 for resolution in hearings before an
administrative law judge using procedures similar to the formal
adjudication provisions of the APA. By rule, the administrative law
judge may grant a motion for summary decision on a written record only
if ``there is no genuine issue as to any material fact'' and ``a party
is otherwise entitled to summary decision.'' In contrast, the
Commission has traditionally resolved section 204 hearings on the
lawfulness of tariffs on a written record, and hearing rights for
common carriers under section 214 are comparatively limited. The
Commission has also delegated authority to the Enforcement Bureau to
conduct hearings on section 208 complaints, in which all issues are
resolved on a written record.
5. Under certain circumstances, the Commission has taken steps to
streamline its hearing processes even for spectrum licensing matters.
In 1981, the Commission adopted a streamlined approach for evaluating
competing initial cellular applications under section 309(e) on a
written record. More recently, the Commission ruled that certain
license renewal proceedings may be resolved in a written hearing
proceeding administered by the Commission itself in lieu of an
administrative law judge when there are no substantial issues of
material fact or credibility issues. The Commission has likewise
required parties to certain broadcast proceedings to submit all or a
portion of their affirmative direct cases in writing where the
presiding officer determines that doing so will contribute
significantly to the disposition of the proceeding. The Commission also
adopted expedited procedures under section 309(j)(5) permitting
``employees other than [administrative law judges] to preside at the
taking of written evidence.'' Relatedly, the Commission has delegated
authority to particular operating Bureaus to act on certain licensing
and permitting applications when the relevant Bureau determines that
the application raises no ``substantial and material questions of
fact.''
6. To further streamline the Commission's hearing processes, we
propose to codify and expand the Commission's use of hearings on a
written record. The Commission's hearing rules provide that ``[a]ny
hearing upon an application shall be a full hearing in which the
applicant and all other parties in interest shall be permitted to
participate.'' The Commission has on numerous occasions curtailed the
use of oral testimony and cross examination in particular proceedings
in order to expedite the hearing process. In our experience, disputes
in Commission proceedings typically involve criticisms by one party of
the evidence proffered by another party or the legal significance of
that evidence, not actual conflicts in testimony between two witnesses
concerning outcome determinative facts. Section 208 formal complaint
proceedings amply demonstrate this point. We contemplate codifying and
expanding the use of a written hearing process that can be used in most
adjudicative proceedings, including those conducted by an
administrative law judge. In particular, we propose to authorize the
presiding officer to conduct a written hearing whenever factual
disputes can be adequately resolved on a written record.
7. We propose that the Commission may, in any order designating a
matter for hearing (designation order), require the administrative law
judge or other presiding officer to conduct a hearing on a written
record. We also propose that, in the absence of such a directive in a
designation order, the presiding officer may conduct the hearing on a
written record on her own initiative or on motion of a party. The
presiding officer should include the date for filing such a motion in
the scheduling order issued following release of the designation order.
We seek comment on these proposals and on whether any additional
procedural safeguards are warranted in this regard. We note that our
current hearing rules allow parties to take depositions, which enable
parties to examine witnesses in a live setting and may render live
testimony unnecessary at a hearing.
8. We propose that parties in written hearing proceedings be
required to file pleadings that include all evidence and arguments that
support their respective positions. Consistent with the Commission's
rules on summary decision and its formal complaint rules, such written
submissions must be supported by evidence in the form of sworn
statements based on personal knowledge and supporting documentation.
The Commission, in its designation order, or the presiding officer will
adopt a schedule for sequential filing of written evidentiary
submissions. Enforcement Bureau staff will continue to represent the
public interest in these proceedings and will have the opportunity,
along with other interested parties, to file pleadings and submit
evidence. We believe these procedures will expedite the resolution of
hearing proceedings while safeguarding the rights of parties to a full
and fair hearing. We seek comment on these proposals.
9. We also propose to require parties to demonstrate why oral
argument may be necessary in a case. In our experience, oral argument
does not materially aid in the resolution of the vast majority of
cases, and routinely accommodating requests for oral argument
unnecessarily prolongs the resolution of hearing proceedings.
10. Selection of a Presiding Officer. Each designation order will
indicate whether the Commission itself, one or more Commissioners, or
an administrative law judge will serve as the presiding officer. We
tentatively conclude that the selection of a presiding officer should
take into consideration who would ``most fairly and reasonably
accommodate'' ``the proper dispatch of [the Commission's] business and
the ends of justice'' in each case. To that end, we seek comment on if
there are particular types of proceedings where it is or is not
appropriate, on legal or policy grounds, for the Commission itself to
serve as presiding officer. For example, if a case is likely to involve
primarily interpretations of law or policy determinations, would the
Commission itself be best suited to administer the hearing in such a
case?
11. The APA provisions governing formal hearing proceedings
generally identify only the agency, one or more agency heads, or one or
more administrative law judges among those who may preside at formal
hearings, but no such limitation applies to informal adjudications
under the APA. Similarly, although section 5(c)(1) of the
Communications Act limits delegations of authority to conduct hearings
to individuals identified in 5 U.S.C. 556(b)(2) (members of the agency)
and (b)(3) (administrative law judges), that limitation expressly
applies only to hearings subject to APA formal hearing requirements.
Accordingly, although we are not proposing any rule changes in this
regard, we seek comment on whether there are other officials on the
Commission's staff who may serve as the presiding officer in suitable
circumstances. Would directing such individuals to administer hearing
proceedings expedite our hearings process by making available
additional neutral qualified personnel to conduct Commission hearings?
We will address any proposed rule changes on this issue in a Further
Notice of Proposed Rulemaking in this proceeding.
[[Page 53358]]
12. We also propose to direct the Chief of the Wireline Competition
Bureau to exercise certain authority previously held by the Chief of
the Common Carrier Bureau, the former's predecessor bureau, under
section 214 of the Act. In particular, the Commission ``delegate[d] to
the Chief, Common Carrier Bureau, authority to issue orders revoking a
common carrier's operating authority pursuant to [s]ection 214 of the
Act, and to issue orders to cease and desist such operations, in cases
where the Chief Administrative Law Judge, or the Presiding Officer
designated, has issued a certification order to the Commission pursuant
to [s]ection 1.92(c) of our rules that the carrier has waived its
opportunity for hearing under that section.'' We propose to direct the
Chief of the Wireline Competition Bureau to issue such orders whenever
the presiding officer assigned to a hearing proceeding determines that
a common carrier has waived its opportunity for hearing. We seek
comment on this proposal.
13. Selection of a Case Manager. The Commission's current hearing
rules provide that ``[h]earings will be conducted by the Commission, by
one or more commissioners, or by a law judge designated pursuant to
section 11 of the [APA].'' We seek comment on directing designated
Commission staff to perform specific case management functions when the
Commission itself serves as the presiding officer in a hearing
proceeding. A case manager could issue scheduling orders, rule on
discovery motions and other interlocutory matters, administer the
intake of evidence, hold conferences in order to settle or simplify the
issues, and certify the record for decision by the Commission at the
conclusion of a hearing. Under this proposal, a case manager's
responsibilities may include one or more of the duties that are
typically performed by the presiding officer, but a case manager would
not have authority to resolve any new or novel issues or to issue
orders on the merits resolving any issue designated for hearing in a
case. We tentatively conclude that this proposal would significantly
expedite our hearing processes when the Commission designates itself as
the presiding officer. We seek comment on this tentative conclusion and
on the relevance to this proposal, if any, of the Appointments Clause
to the U.S. Constitution and the Supreme Court's decision in Lucia v.
SEC.
14. We recognize that designated staff must demonstrate sufficient
training and expertise to act as a case manager. We seek comment on the
minimum training and qualifications, including adjudicatory and subject
matter expertise, that individuals must possess to successfully perform
this role. The Administrative Conference's ``best practice'' pertaining
to presiding officer qualifications recommends that agencies ``use
adjudicators--rather than agency heads, boards, or panels--to conduct
hearings and provide initial decisions[.]'' Should this recommendation
apply to Commission staff whose eligibility to act as a case manager is
under consideration? We note that various staff within the Enforcement
Bureau and the Commission's Office of General Counsel have extensive
adjudicatory experience, and we therefore seek comment on whether we
should direct particular staff within the Enforcement Bureau or Office
of General Counsel to act as a case manager in hearing proceedings. We
similarly seek comment on the qualifications of staff within the
Commission's other bureaus to serve in this role.
15. The case manager in a hearing should be neutral. In formal
adjudications, the APA formal hearing provisions prohibit agency staff
from performing both prosecutorial and decisional activities. This
``separation of functions'' principle shields agency decisionmakers
from off-record presentations by staff who have presented evidence or
argument on behalf of or against a party to a proceeding and prohibits
such staff from participating in the hearing decision. The separation
of functions requirement in section 409(c)(1) of the Communications
Act, which applies to both formal and informal adjudications, prevents
a person who has participated in the presentation of a case at a
hearing or upon review from making any additional presentation
respecting such case to the presiding officer or to any authority
within the Commission performing a review function, absent notice and
opportunity for all parties to participate. The Administrative
Conference recommends that agencies require internal separation of
decisional and adversarial personnel in adjudications that are not
subject to formal APA hearing requirements. In this context, an
``adversary'' refers to a staff member who took an active part in
investigating, prosecuting, or advocating in the same case.
16. We propose to adopt the Administrative Conference's
recommendation to ``prohibit staff who took an active part in
investigating, prosecuting, or advocating in a case'' from serving as a
case manager and from advising or assisting the case manager ``in that
same case.'' Thus, we propose that staff who participated in
identifying the specific issues designated for hearing; staff who take
an active part in investigating, prosecuting, or advocating in a case;
and staff who are expected to investigate and act upon petitions to
deny (including administrative challenges thereto) may not serve as the
case manager in that case. We seek comment on these proposals.
17. Unless otherwise designated, Commission hearings are
``restricted'' proceedings and thus ex parte presentations to or from
Commission decision-making personnel are prohibited. ``Decision-making
personnel'' include ``[a]ny member, officer, or employee of the
Commission . . . who is or may reasonably be expected to be involved in
formulating a decision, rule or order in a proceeding.'' Decision-
making personnel also include ``[u]nseparated Bureau or Office staff .
. . with respect to decisions, rules, and orders in which their Bureau
or Office participates in enacting, preparing, or reviewing.'' We
tentatively conclude that any Commission staff serving as a case
manager in a case should be considered ``decision-making personnel''
for purposes of our ex parte rules. Finally, we tentatively conclude
that the existing definition of ``ex parte presentation'' in section
1.1202 of the Commission's rules would continue to apply. We seek
comment on these tentative conclusions and on whether other or
additional measures are needed to ensure the impartiality of staff
serving as the case manager.
18. Dispensing with Initial Decision When Appropriate. Section
409(a) of the Communications Act generally requires that the presiding
officer prepare an initial, tentative, or recommended decision. With
limited exceptions, the Commission's rules likewise state that ``the
presiding officer shall prepare an initial (or recommended) decision''
at the close of a hearing. Upon agreement of the parties or where the
Commission finds ``that due and timely execution of its functions
imperatively and unavoidably so requires,'' however, ``the Commission
may direct that the record in a pending proceeding be certified to it
for initial or final decision.''
19. We seek comment on whether the Commission should forego initial
decisions whenever it serves as the presiding officer at a hearing,
including cases in which the Commission directs that the record of the
proceeding be certified to it for decision. Initial decisions have no
apparent utility when the Commission is the presiding officer.
[[Page 53359]]
Dispensing with initial decisions under these circumstances would
greatly promote efficient resolution of disputes. We seek comment on
this proposal. Although the APA's formal hearing requirements do not
apply here, we note that they authorize agencies to require an
administrative law judge to certify the record for decision by the
agency without an initial decision. We seek comment on whether a case
manager could likewise certify the hearing record for decision directly
by the Commission.
20. Evidentiary Rules. The Commission's current hearing rules
provide that the Federal Rules of Evidence (28 U.S.C. Rules 101-1103)
govern Commission hearings, but that these rules may be ``relaxed if
the ends of justice will be better served by so doing.'' In practice,
however, the Federal Rules of Evidence are not necessarily applied and
instead serve merely as guidelines in determining the admissibility of
evidence. This lack of clarity as to the relevant evidentiary standard
has the potential to cause confusion for parties and to lead to
evidentiary disputes between those who expect the Federal Rules of
Evidence to apply and those who seek to avoid their application in a
particular case.
21. We propose to amend this rule and adopt the more permissive
evidentiary standard in the formal APA hearing requirements, which
states, in relevant part, that ``the agency as a matter of policy shall
provide for the exclusion of irrelevant, immaterial, or unduly
repetitious evidence.'' We seek comment on this proposal and on the
conclusion of the Asimow Report that the more lenient standard in 5
U.S.C. 556(d) will result in fewer time-consuming disputes over
``esoteric rules of evidence, such as the many exceptions to the
hearsay rule,'' and will be simpler for self-represented parties to
navigate.
22. Proposed Rule Changes. Several rule changes are proposed in
this proceeding. Specifically, we propose to add sections 1.370-1.377
to our Part 1 hearing rules to establish procedures for hearings to be
resolved on a written record. We otherwise generally retain the current
Part 0 and Part 1 hearing related rules with the proposed
modifications. We seek comment on these proposed rules and on any other
changes necessary to conform our rules to these proposals.
23. Related Issues. Finally, we seek comment on any other proposed
rule changes that would streamline or expedite the Commission's hearing
processes. We may address any such proposals in a Further Notice of
Proposed Rulemaking in this proceeding.
24. Legal Authority. The Commission has broad authority ``[to]
conduct its proceedings in such manner as will best conduce to the
proper dispatch of business and to the ends of justice.'' Congress
``left largely to [the Commission's] judgment the determination of the
manner of conducting its business which would most fairly and
reasonably accommodate'' the ends of justice.
25. In PBGC v. LTV Corp., the Supreme Court identified three
potential sources of procedural requirements for agency hearings--the
APA, the agency's governing statute, and the Due Process Clause.
``[C]ourts are not free to impose upon agencies specific procedural
requirements that have no basis in'' those sources.
26. The APA prescribes procedural standards governing formal and
informal adjudications before federal agencies. The APA provisions
governing formal adjudications appear in sections 554, 556, and 557 of
title 5, 74 which require a formal hearing process that includes
elements of a judicial trial in a civil action. Informal adjudication
commonly refers to procedures for conducting cases when formal
adjudication is not required. The APA prescribes minimum procedural
requirements for informal adjudications. Section 555 of title 5
requires only that an agency afford participants the right to appear
with counsel, the right to procure copies or transcripts of any
evidence they have provided, and prompt notice of, and grounds for, the
agency's denial of an application or petition. Section 558(c) includes
certain additional procedures specific to proceedings involving
licenses or other agency authorizations. That section generally
requires an agency, prior to instituting proceedings to suspend or
revoke a license, to provide the licensee with written notice of the
facts that may warrant the agency's contemplated action and an
opportunity to demonstrate compliance with all lawful requirements.
27. The APA, by itself, does not establish when agencies must
follow the formal hearing procedures in Sections 554, 556, and 557.
Instead, agencies must apply the APA in conjunction with the relevant
enabling statute and use formal hearing procedures in ``every case of
adjudication required by statute to be determined on the record after
opportunity for an agency hearing.'' Where an agency's enabling statute
does not expressly require an ``on the record'' hearing and, instead,
calls simply for a ``hearing,'' a ``full hearing,'' or uses similar
terminology, the statute does not trigger the APA formal adjudication
procedures absent clear evidence of congressional intent to impose the
full panoply of trial type procedures of a formal hearing.
28. No express ``on the record'' language appears in the
Communications Act's hearing provisions that would trigger the APA
formal adjudication requirements. In addition, nothing in the text of
the Act unambiguously requires trial-type hearings in all such
proceedings. When Congress intended to require the Commission to
conduct formal adjudication under the APA, it said so explicitly--
section 503 of the Communications Act authorizes the Commission to
impose a forfeiture penalty on a person after ``a hearing before the
Commission or an administrative law judge thereof in accordance with
section 554 of'' the APA. Consequently, we tentatively conclude that
Commission hearings generally are subject only to the APA's informal
adjudication requirements.
29. We also believe that the streamlined procedures proposed in
this NPRM comport with any constitutional due process requirements that
may apply, as articulated by the Supreme Court in Mathews v. Eldridge.
The Fifth Amendment to the United States Constitution provides that
``No person shall . . . be deprived of life, liberty, or property,
without due process of law.'' The essential elements of due process are
notice and an opportunity to be heard when a governmental decision
places an individual's ``liberty'' or ``property'' interests in
jeopardy. The government must give a party an opportunity to be heard
at a meaningful time and in a meaningful manner before depriving the
party of a protected interest. In Mathews v. Eldridge, the Supreme
Court held that: [I]dentification of the specific dictates of due
process generally requires consideration of three distinct factors: [1]
The private interest that will be affected by the official action; [2]
the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional . . .
procedural safeguards; and [3] the Government's interest, including . .
. the fiscal and administrative burdens that the additional . . .
procedural requirement would entail.
30. Courts have applied the Mathews v. Eldridge balancing test to
determine whether, in the absence of a statutory requirement to conduct
a formal ``on the record'' APA hearing, due process requires a trial-
type hearing. In
[[Page 53360]]
Chemical Waste Management, the D.C. Circuit held that the Environmental
Protection Agency was not required to conduct a trial-type hearing
before issuing a ``corrective action order'' because ``formal
procedures do not promise a sufficient lowering of the risk of error to
justify their significant expense to the Government.'' In California ex
rel. Lockyer v. FERC, the Ninth Circuit upheld the Federal Energy
Regulatory Commission's approval of a utility's reorganization in an
informal hearing ``[i]n light of the private interests affected, the
small risk of erroneous deprivation through the procedures used, and
the government's strong interest in expedient decision making.'' And in
Blumenthal v. FERC, the D.C. Circuit upheld FERC's approval of a
utility's executive compensation plan without a trial-type hearing,
noting that ``[t]his Court has never held that an in-person evidentiary
hearing is constitutionally required whenever FERC makes decisions.
Indeed, we have frequently suggested the opposite.''
31. In other recent opinions, courts have found that agencies may
resolve factual disputes on a written record. In a series of cases
involving FERC, the D.C. Circuit has consistently held that ``[e]ven
when there are disputed factual issues, FERC does not need to conduct
an evidentiary hearing if it can adequately resolve the issues on a
written record.'' We therefore tentatively conclude that the Commission
need not conduct an oral hearing if it can adequately resolve factual
disputes on a written record.
32. Although the D.C. Circuit has upheld an agency's resolution of
an issue of intent on a written record, the court has suggested in
dicta in other cases that it may be inappropriate for an agency to
resolve issues of intent or motive on a written record in certain
circumstances. We seek comment on what those circumstances may be. For
example, we seek comment on when the Commission cannot, consistent with
the Mathews v. Eldridge balancing test, decide a motive, intent, or
credibility issue on a written record, bearing in mind that the
existence of such an issue is but one factor to be considered in
applying the due process balancing test. We note that when an agency
reviews an administrative law judge's initial decision, the agency is
not bound by the judge's findings of fact, and may reject the judge's
credibility findings as long as the agency's decision is supported by
substantial evidence. What is the additional benefit of a trial-type
hearing when the Commission ultimately reviews initial decisions on a
written record and can overrule an administrative law judge's
credibility determinations when evidence in the written record supports
the Commission's decision? We seek comment on whether that benefit, if
any, outweighs the government's legitimate interests in expediting
resolution of proceedings and avoiding the expense of a trial-type
hearing.
33. We emphasize that when we designate a matter for hearing on a
written record, we intend to give parties a ``full'' hearing, with
ample notice of the issues under consideration, an opportunity to
present all evidence and arguments that support the parties' respective
positions, and an opportunity to confront and rebut opposing evidence
and arguments. To that end, we seek comment on the Administrative
Conference's recommended ``best practices'' for agency hearings that
are not subject to APA formal hearing requirements (referred to herein
as informal hearings), and whether and how to incorporate those
recommendations in our rules.
34. Initial Regulatory Flexibility Act Certification. As required
by the Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has
prepared an Initial Regulatory Flexibility Certification reflecting its
analysis that there will be no significant economic impact on small
entities by the implementation of the policies and rules addressed in
this NPRM. The Regulatory Flexibility Act of 1980, as amended (RFA),
requires that an initial regulatory flexibility analysis be prepared
for notice-and-comment rule making proceedings, unless the agency
certifies that ``the rule will not, if promulgated, have a significant
economic impact on a substantial number of small entities.'' The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. A ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).
35. In this NPRM, the Commission seeks comment on proposals to
expedite and streamline the Commission's hearing processes. The
proposed rule changes stem from longstanding criticisms of the
Commission's current trial-type hearings as costly, burdensome, and, in
many cases, unnecessary. The proposals upon which the NPRM seeks
comment are designed to supplement the Commission's current formal
hearing processes by allowing the Commission to select the personnel
and procedures that are best suited to the issues raised in a
particular case and that will achieve the purposes of that hearing
without undue cost or delay. These procedures, if adopted, would
establish an alternative path for resolving hearing proceedings in
appropriate cases.
36. The Commission estimates that the rule changes proposed in this
NPRM would reduce the time and attendant costs associated with hearing
proceedings for the Commission and for applicants, petitioners, and
other parties. In particular, the NPRM proposes to (1) codify and
expand the use of a ``written hearing'' process that would rely on
written testimony and documentary evidence in lieu of live testimony
and cross-examination unless the designated presiding officer
determines that oral testimony is needed to resolve any issues; (2)
direct designated Commission staff to act as a case manager that would
supervise the development of the written hearing record when the
Commission designates itself as the presiding officer in a hearing
proceeding; and (3) dispense with the preparation of an intermediate
opinion whenever the record of a proceeding can be certified to the
Commission for final decision. The NPRM tentatively concludes that the
proposed procedures will expedite the Commission's hearing processes
while ensuring appropriate standards of transparency and procedural
fairness. It seeks comment on various aspect of these proposals and on
any alternative approaches.
37. The Commission believes that the proposals on which it seeks
comment in this NPRM would reduce costs and burdens currently
shouldered by parties to hearing proceedings in certain cases,
including small entities. Because only a small percentage of matters
before the Commission necessitate a hearing, we anticipate that the
number of small entities impacted would not be substantial for RFA
purposes. In addition, the proposed modifications to the hearing rules
in this NPRM do not propose substantive new responsibilities for
regulated entities or for potential parties to Commission hearings.
Therefore, we certify that the proposals in this NPRM, if adopted, will
not have a significant economic impact on a substantial number of small
entities.
38. The Commission will send a copy of the NPRM, including a copy
of this Initial Regulatory Flexibility Certification, to the Chief
Counsel for
[[Page 53361]]
Advocacy of the Small Business Administration. This initial
certification will also be published in the Federal Register.
39. Paperwork Reduction Act. This document does not contain any
proposed new information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore,
it does not contain any new or modified information collection burden
for small business concerns with fewer than 25 employees, pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4).
40. Ex Parte Rules. This proceeding shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must list all persons attending or otherwise participating
in the meeting at which the ex parte presentation was made, and
summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the
presentation of data or arguments already reflected in the presenter's
written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her
prior comments, memoranda, or other filings (specifying the relevant
page and/or paragraph numbers where such data or arguments can be
found) in lieu of summarizing them in the memorandum. Documents shown
or given to Commission staff during ex parte meetings are deemed to be
written ex parte presentations and must be filed consistent with
Section 1.1206(b) of the Commission's rules. In proceedings governed by
Section 1.49(f) or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable.pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
41. Ordering Clauses. Accordingly, it is ordered that, pursuant to
the authority found in sections 1, 4(i), 4(j), 5, 9, 214, 303, 309,
312, 316, and 409 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 154(j), 155, 159, 214, 303, 309, 312, 316, and 409,
this Notice of Proposed Rulemaking is adopted.
42. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Act Certification, to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Parts 0, 1, and 76
Administrative practice and procedure.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 0, 1, and 76
as follows:
PART 0--COMMISSION ORGANIZATION
0
1. The authority citation for part 0 is revised to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409,
unless otherwise noted.
Subpart A--[Amended]
0
2. Amend Subpart A by revising the authority citation to read as
follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409,
unless otherwise noted.
0
3. Amend Sec. 0.5 by revising paragraph (c) to read as follows:
Sec. 0.5 General description of Commission organization and
operations.
* * * * *
(c) Delegations of authority to the staff. Pursuant to section 5(c)
of the Communications Act, the Commission has delegated authority to
its staff to act on matters which are minor or routine or settled in
nature and those in which immediate action may be necessary. See
subpart B of this part. Actions taken under delegated authority are
subject to review by the Commission, on its own motion or on an
application for review filed by a person aggrieved by the action.
Except for the possibility of review, actions taken under delegated
authority have the same force and effect as actions taken by the
Commission. The delegation of authority to a staff officer, however,
does not mean that the staff officer will exercise that authority in
all matters subject to the delegation. The staff is at liberty to refer
any matter at any stage to the Commission for action, upon concluding
that it involves matters warranting the Commission's consideration, and
the Commission may instruct the staff to do so.
* * * * *
0
4. Amend Sec. 0.91 by adding paragraph (q) to read as follows:
Sec. 0.91 Functions of the Bureau.
* * * * *
(q) Issue orders revoking a common carrier's operating authority
pursuant to section 214 of the Act, and issue orders to cease and
desist such operations, in cases where the presiding officer has issued
a certification order to the Commission pursuant to Sec. 1.92(c) of
our rules that the carrier has waived its opportunity for hearing under
that section.
* * * * *
0
5. Amend Sec. 0.111 by revising paragraphs (a)(18) and (b) to read as
follows:
Sec. 0.111 Functions of the Bureau.
(a) * * *
(18) Issue or draft orders taking or recommending appropriate
action in response to complaints or investigations, including, but not
limited to, admonishments, damage awards where authorized by law or
other affirmative relief, notices of violation, notices of apparent
liability and related orders, notices of opportunity for hearing
regarding a potential forfeiture, hearing designation orders, orders
designating licenses or other authorizations for a revocation hearing
and consent decrees. Issue or draft appropriate orders after a hearing
proceeding has been terminated by the presiding officer on the basis of
waiver. Issue or draft appropriate interlocutory orders and take or
recommend appropriate action in the exercise of its responsibilities.
* * * * *
(b) Serve as trial staff in hearing proceedings conducted pursuant
to Sec. 1.201(a) regarding applications, revocation, forfeitures and
other matters designated for hearing.
* * * * *
0
6. Revise Sec. 0.151 to read as follows:
Sec. 0.151 Functions of the Office.
The Office of Administrative Law Judges consists of as many
Administrative Law Judges qualified and appointed pursuant to the
[[Page 53362]]
requirements of 5 U.S.C. 3105 as the Commission may find necessary. It
is responsible for hearing and conducting adjudicatory cases designated
for hearing other than those designated to be heard by the Commission
en banc, or by one or more commissioners. The Office of Administrative
Law Judges is also responsible for conducting such other hearing
proceedings as the Commission may assign.
Subpart B--[Amended]
0
7. Amend Subpart B by revising the authority citation to read as
follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409.
0
8. Amend Sec. 0.201 by revising paragraph (a)(2) and removing the Note
to paragraph (a)(2) as follows:
Sec. 0.201 General provisions.
(a) * * *
(2) Delegations to rule on interlocutory matters in hearing
proceedings. Delegations in this category are made to any person, other
than the Commission, designated to serve as the presiding officer in a
hearing proceeding pursuant to Sec. 1.241.
* * * * *
0
9. Revise Sec. 0.341 to read as follows:
Sec. 0.341 Authority of Administrative Law Judges and other
presiding officers designated under Sec. 1.241.
(a) After a presiding officer (other than the Commission) has been
designated to conduct a hearing proceeding, and until he or she has
issued an initial decision or certified the record to the Commission
for decision, or the proceeding has been transferred to another
presiding officer, all motions, petitions and other matters that may
arise during the proceeding shall be acted upon by such presiding
officer, except those which are to be acted upon by the Commission. See
Sec. 1.291(a)(1) of this chapter.
(b) Any question which would be acted upon by the presiding officer
if it were raised by the parties to the proceeding may be raised and
acted upon by the presiding officer on his or her own motion.
(c) Any question which would be acted upon by the presiding officer
(other than the Commission) may be certified to the Commission on the
presiding officer's own motion.
(d) Except for actions taken during the course of a hearing and
upon the record thereof, actions taken by a presiding officer pursuant
to the provisions of this section shall be recorded in writing and
filed in the official record of the proceeding.
(e) The presiding officer may waive any rule governing the conduct
of Commission hearings upon motion or upon the presiding officer's own
motion for good cause, subject to the provisions of the Administrative
Procedure Act and the Communications Act of 1934, as amended.
(f) The presiding officer may issue such orders and conduct such
proceedings as will best conduce to the proper dispatch of business and
the ends of justice.
(g)(1) For program carriage complaints filed pursuant to Sec.
76.1302 of this chapter that the Chief, Media Bureau refers to a
presiding officer for an initial decision, the presiding officer shall
release an initial decision in compliance with one of the following
deadlines:
(i) 240 calendar days after a party informs the presiding officer
that it elects not to pursue alternative dispute resolution as set
forth in Sec. 76.7(g)(2) of this chapter; or
(ii) If the parties have mutually elected to pursue alternative
dispute resolution pursuant to Sec. 76.7(g)(2) of this chapter, within
240 calendar days after the parties inform the presiding officer that
they have failed to resolve their dispute through alternative dispute
resolution.
(2) The presiding officer may toll these deadlines under the
following circumstances:
(i) If the complainant and defendant jointly request that the
presiding officer toll these deadlines in order to pursue settlement
discussions or alternative dispute resolution or for any other reason
that the complainant and defendant mutually agree justifies tolling; or
(ii) If complying with the deadline would violate the due process
rights of a party or would be inconsistent with fundamental fairness;
or
(iii) In extraordinary situations, due to a lack of adjudicatory
resources available at the time.
0
10. Revise Sec. 0.347 to read as follows:
Sec. 0.347 Record of actions taken.
The record of actions taken by a presiding officer, including
initial and recommended decisions and actions taken pursuant to Sec.
0.341, is available through the Commission's Electronic Comment Filing
System (ECFS). ECFS serves as the repository for records in the
Commission's docketed proceedings from 1992 to the present. The public
may use ECFS to retrieve all such records, as well as selected pre-1992
documents. The Office of the Secretary maintains copies of documents
that include nonpublic information.
Sec. Sec. 0.351 and 0.357 [Removed and reserved]
0
11. Remove and reserve Sec. Sec. 0.351 and 0.357.
PART 1--PRACTICE AND PROCEDURE
0
12. The authority citation for part 1 is revised to read as follows:
Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note,
unless otherwise noted.
0
13. Amend Sec. 1.21 by revising paragraph (d) to read as follows:
Sec. 1.21 Parties.
* * * * *
(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 hearing and, in the
discretion of the presiding officer, may appear and be heard on behalf
of the corporation in a hearing proceeding.
* * * * *
0
14. Amend Sec. 1.49 by revising paragraphs (f)(1)(vii) and (viii), and
adding paragraph (f)(1)(ix) to read as follows:
Sec. 1.49 Specifications as to pleadings and documents.
* * * * *
(f)(1) * * *
(vii) Domestic Section 214 discontinuance applications pursuant to
Sec. Sec. 63.63 and/or 63.71 of this chapter;
(viii) Notices of network change and associated certifications
pursuant to Sec. 51.325 et seq. of this chapter; and
(ix) Hearing proceedings under Sec. Sec. 1.201 through 1.377.
* * * * *
0
15. Amend Sec. 1.51 by revising paragraph (a) to read as follows:
Sec. 1.51 Number of copies of pleadings, briefs, and other papers.
(a) In hearing proceedings, all pleadings, letters, documents, or
other written submissions, shall be filed using the Commission's
Electronic Comment Filing System, excluding confidential material as
set forth in Sec. 1.314 of these rules. An original and one copy of
each written submission that includes confidential material shall be
filed, along with an additional copy for each additional presiding
officer, if more than one. Additional courtesy copies of electronically
filed submissions shall be emailed as directed by the Commission.
* * * * *
0
16. Amend Sec. 1.80 by revising the introductory text of paragraph (g)
and paragraphs (g)(1) and (3) to read as follows:
[[Page 53363]]
Sec. 1.80 Forfeiture proceedings.
* * * * *
(g) Notice of opportunity for hearing. The procedures set out in
this paragraph apply only when a formal hearing under section
503(b)(3)(A) of the Communications Act is being held to determine
whether to assess a forfeiture penalty.
(1) Before imposing a forfeiture penalty, the Commission may, in
its discretion, issue a notice of opportunity for hearing. The formal
hearing proceeding shall be conducted by an administrative law judge
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.
* * * * *
(3) Where the possible assessment of a forfeiture is an issue in a
hearing proceeding to determine whether a pending application should be
granted, and the application is dismissed pursuant to a settlement
agreement or otherwise, and the presiding judge has not made a
determination on the forfeiture issue, the presiding judge shall
forward the order of dismissal 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 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.
* * * * *
0
17. Revise Sec. 1.85 to read as follows:
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, 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 the operator
licensee, and from that time the operator licensee 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 and said
suspension shall be held in abeyance until the conclusion of the
hearing proceeding. If the license is ordered suspended, the operator
shall send his, her, or its operator license to the Mobility 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.
0
18. Amend Sec. 1.87 by revising paragraphs (e) and (f), and the
introductory text of paragraph (g) to read as follows:
Sec. 1.87 Modification of license or construction permit on motion
of the Commission.
* * * * *
(e) In any case where a hearing proceeding 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 give evidence upon the issues specified in any order designating a
matter for hearing, any licensee, or permittee, itself or by counsel,
shall, within the period of time as may be specified in that order,
file with the Commission a written appearance stating that it will
present evidence on the matters specified in the order and, if
required, appear before the presiding officer at a date and time to be
determined.
(g) The right to file a protest or the right to a hearing
proceeding 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:
* * * * *
0
19. Amend Sec. 1.91 by revising paragraphs (b), (c), and (d) to read
as follows:
Sec. 1.91 Revocation and/or cease and desist proceedings; hearings.
* * * * *
(b) An order to show cause why an order of revocation and/or a
cease and desist order should not be issued will designate for hearing
the matters with respect to which the Commission is inquiring and will
call upon the person to whom it is directed (the respondent) to file
with the Commission a written appearance stating that the respondent
will present evidence upon the matters specified in the order to show
cause and, if required, appear before a presiding officer at a time and
place to be determined, but no earlier than thirty days after the
receipt of such order. However, if safety of life or property is
involved, the order to show cause may specify a deadline of less than
thirty days from the receipt of such order.
(c) To avail themselves of such opportunity for a hearing,
respondents, personally or by counsel, shall file with the Commission,
within twenty days of the mailing of the order or such shorter period
as may be specified therein, a written appearance stating that they
will present evidence on the matters specified in the order and, if
required, appear before the presiding officer at a time and place to be
determined. The presiding officer in his or her discretion may accept a
late-filed appearance. However, a written 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 a late-filed
appearance will be granted only if the presiding officer determines
that the facts and reasons stated therein constitute good cause for
failure to file on time.
(d) Hearing proceedings 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
[[Page 53364]]
requests for oral argument, and parties must file notice of intention
to participate in oral argument.
* * * * *
0
20. Amend Sec. 1.92 by revising paragraphs (a) and (c) to read as
follows:
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, designating a matter for hearing, 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.
(1) The respondent fails to file a timely written appearance as
prescribed in Sec. 1.91(c) indicating that the respondent will present
evidence on the matters specified in the order and, if required by the
order, that the respondent will appear before the presiding officer.
(2) The respondent, having filed a timely written appearance as
prescribed in Sec. 1.91(c), fails in fact to present evidence on the
matters specified in the order or appear before the presiding officer
in person or by counsel at the time and place duly scheduled.
(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 or her rights to a hearing.
* * * * *
(c) Whenever a hearing is waived by the occurrence of any of the
events or circumstances listed in paragraph (a) of this section, the
presiding officer shall, at the earliest practicable date, issue an
order reciting the events or circumstances constituting a waiver of
hearing and terminating the hearing proceeding. A presiding officer
other than the Commission also shall certify the case to the
Commission. Such order shall be served upon the respondent.
* * * * *
0
21. Amend Sec. 1.93 by revising paragraph (a) to read as follows:
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 proceeding.
* * * * *
0
22. Amend Sec. 1.94 by revising paragraphs (d) and (g) to read as
follows:
Sec. 1.94 Consent order procedures.
* * * * *
(d) If agreement is reached, it shall be submitted to the presiding
officer, who shall either sign the order, reject the agreement, or
suggest to the parties that negotiations continue on such portion of
the agreement as the presiding officer considers unsatisfactory or on
matters not reached in the agreement. If the presiding officer signs
the consent order, the record shall be closed. If the presiding officer
rejects the agreement, the hearing proceeding shall continue. If the
presiding officer suggests further negotiations and the parties agree
to resume negotiating, the presiding officer may, in his or her
discretion, decide whether to hold the hearing proceeding in abeyance
pending the negotiations.
* * * * *
(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 the
Commission or by the presiding officer. Negotiating papers constitute
work product, are available to parties participating in negotiations,
but are not routinely available for public inspection.
* * * * *
0
23. Amend Sec. 1.104 by revising paragraph (a) to read as follows:
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 a presiding officer in hearing
proceedings, or to orders designating a matter for hearing issued under
delegated authority. See Sec. Sec. 1.106(a) and 1.115(e).
* * * * *
0
24. Amend Sec. 1.115 by removing paragraphs (e)(1) and (e)(2),
redesignating paragraph (e)(3) as paragraph (e)(1) and paragraph (e)(4)
as paragraph (e)(2), and revising newly redesignated paragraph (e)(1)
to read as follows:
Sec. 1.115 Application for review of action taken pursuant to
delegated authority.
* * * * *
(e)(1) Applications for review of an order designating a matter for
hearing that was issued under delegated authority shall be deferred
until exceptions to the initial decision in the case are filed, unless
the presiding officer certifies such an application for review to the
Commission. A matter shall be certified to the Commission if the
presiding officer 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
request to certify a matter to the Commission shall be filed with the
presiding officer within 5 days after the designation order is
released. A ruling refusing to certify a matter to the Commission is
not appealable. Any application for review authorized by the presiding
officer 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 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. The Commission may dismiss, without
stating reasons, an application for review that has been certified, and
direct that the objections to the order designating the matter for
hearing be deferred and raised when exceptions in the initial decision
in the case are filed.
* * * * *
0
25. Amend Sec. 1.201 by redesignating the Note as Note 2 to Sec.
1.201 and adding Note 1 to Sec. 1.201 and revising the newly
redesignating Note 2 to Sec. 1.201 to read as follows:
Sec. 1.201 Scope.
* * * * *
Note 1 to Sec. 1.201: For special provisions relating to
hearing proceedings under this subpart that the Commission
determines shall be conducted and resolved on a written record, see
Sec. Sec. 1.370-1.377.
Note 2 to Sec. 1.201: For special provisions relating to AM
broadcast station applications involving other North American
countries see Sec. 73.23.
0
26. Revise Sec. 1.202 to read as follows:
Sec. 1.202 Official reporter; transcript.
The Commission will designate an official reporter for the
recording and transcribing of hearing proceedings as necessary.
Transcripts will be transmitted to the Secretary for inclusion in the
Commission's Electronic Comment Filing System.
[[Page 53365]]
0
27. Revise Sec. 1.203 and the authority citation to read as follows:
Sec. 1.203 The record.
The evidence submitted by the parties, together with all papers and
requests filed in the proceeding and any transcripts, 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; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
0
28. Revise Sec. 1.209 to read as follows:
Sec. 1.209 Identification of responsible officer in caption to
pleading.
0
29. Each pleading filed in a hearing proceeding shall indicate in its
caption whether it is to be acted upon by the Commission or, if the
Commission is not the presiding officer, by the presiding officer.
Unless it is to be acted upon by the Commission, the presiding officer
shall be identified by name.
0
30. Add Sec. 1.210 to Subpart B to read as follows:
Subpart B--Hearing Proceedings
Sec. 1.210 Electronic filing.
All pleadings filed in a hearing proceeding, as well as all
letters, documents, or other written submissions, shall be filed using
the Commission's Electronic Comment Filing System, excluding
confidential material as set forth in Sec. 1.314 of these rules. A
courtesy copy of all submissions shall be contemporaneously provided to
the presiding officer via electronic mail.
0
31. Amend Sec. 1.221 by revising paragraphs (b) through (e), removing
paragraphs (f) and (g), revising and redesignating paragraph (h) as
paragraph (f), and revising the authority citation to read as follows:
Sec. 1.221 Notice of hearing; appearances.
* * * * *
(b) The order designating an application for hearing shall be
mailed to the applicant and the order, or a summary thereof, shall be
published in the Federal Register. Reasonable notice of hearing will be
given to the parties in all proceedings.
(c) In order to avail themselves of the opportunity to be heard,
applicants or their attorney shall file, within 20 days of the mailing
of the order designating a matter for hearing, a written appearance
stating that the applicant will present evidence on the matters
specified in the order and, if required by the order, appear before the
presiding officer at a date and time to be determined. 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 proceeding any person found to be a party in interest.
(e) In order to avail themselves of the opportunity to be heard,
any persons named as parties pursuant to paragraph (d) of this section
shall, within 20 days of the mailing of the order designating them as
parties to a hearing proceeding, file personally or by attorney a
written appearance that they will present evidence on the matters
specified in the order and, if required by the order, appear before the
presiding officer at a date and time to be determined. Any persons so
named who fail to file this written appearance within the time
specified, shall, unless good cause for such failure is shown, forfeit
their hearing rights.
(f)(1) For program carriage complaints filed pursuant to Sec.
76.1302 of this chapter that the Chief, Media Bureau refers to a
presiding officer, each party, in person or by attorney, shall file a
written appearance within five calendar days after the party informs
the presiding officer that it elects not to pursue alternative dispute
resolution pursuant to Sec. 76.7(g)(2) of this chapter or, if the
parties have mutually elected to pursue alternative dispute resolution
pursuant to Sec. 76.7(g)(2) of this chapter, within five calendar days
after the parties inform the presiding officer that they have failed to
resolve their dispute through alternative dispute resolution. The
written appearance shall state that the party will appear for hearing
and present evidence on the issues specified in the hearing designation
order.
(2) If the complainant fails to file a written appearance by this
deadline, or fails to file prior to the deadline either a petition to
dismiss the proceeding without prejudice or a petition to accept, for
good cause shown, a written appearance beyond such deadline, the
presiding officer shall dismiss the complaint with prejudice for
failure to prosecute.
(3) If the defendant fails to file a written appearance by this
deadline, or fails to file prior to this deadline a petition to accept,
for good cause shown, a written appearance beyond such deadline, its
opportunity to present evidence at hearing will be deemed to have been
waived. If the hearing is so waived, the presiding officer shall
expeditiously terminate the proceeding and certify to the Commission
the complaint for resolution based on the existing record. When the
Commission has designated itself as the presiding officer, it shall
expeditiously terminate the proceeding and resolve the complaint based
on the existing record.
(5 U.S.C. 554; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and
409)
0
32. Revise Sec. 1.223 to read as follows:
Sec. 1.223 Petitions to intervene.
(a) Where the order designating a matter for hearing has failed to
notify and name as a party to the hearing proceeding 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 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 proceeding 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 the matter 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 or her
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 the matter 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
[[Page 53366]]
forth reasons why it was not possible to file a petition within the
time prescribed by paragraphs (a) and (b) of this section. If, in the
opinion of the presiding officer, good cause is shown for the delay in
filing, the presiding officer may in his or her 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)
0
33. Amend Sec. 1.225 by revising paragraphs (b) and (c) to read as
follows:
Sec. 1.225 Participation by non-parties; consideration of
communications.
* * * * *
(b) No persons shall be precluded from giving any relevant,
material, and competent testimony because they lack a sufficient
interest to justify their intervention as parties in the matter.
(c) 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 in Sec. 1.351, 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.
0
34. Revise Sec. 1.227 to read as follows:
Sec. 1.227 Consolidations.
The Commission, upon motion or upon its own motion, may, where such
action will best conduce to the proper dispatch of business and to the
ends of justice, consolidate in a hearing proceeding any cases that
involve the same applicant or substantially the same issues, or that
present conflicting claims.
0
35. Amend Sec. 1.229 by removing paragraphs (b)(1) and (e),
redesignating paragraph (b)(2) as (b)(1), redesignating paragraph
(b)(3) as (b)(2), redesignating paragraph (f) as paragraph (e), and
revising paragraph (a) and redesignated paragraphs (b)(1), (2), and (e)
to read as follows:
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 proceeding. 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) For program carriage complaints filed pursuant to Sec.
76.1302 of this chapter that the Chief, Media Bureau refers to a
presiding officer, such motions shall be filed within 15 calendar days
after the deadline for submitting written appearances pursuant to Sec.
1.221(h), 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).
(2) Any person desiring to file a motion to modify the issues after
the expiration of periods specified in paragraphs (a) and (b)(1) 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.
* * * * *
(e) In any case in which the presiding officer 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).
* * * * *
0
36. Revise Sec. 1.241 to read as follows:
Sec. 1.241 Designation of presiding officer.
(a) Hearing proceedings will be conducted by a presiding officer.
The designated presiding officer will be identified in the order
designating a matter for hearing. Only the Commission, one or more
commissioners, or an administrative law judge designated pursuant to 5
U.S.C. 3105 may be designated as a presiding officer. Unless otherwise
stated, the term presiding officer will include the Commission when the
Commission designates itself to preside over a hearing proceeding.
(b) If a presiding officer becomes unavailable during the course of
a hearing proceeding, another presiding officer will be designated.
0
37. Add Sec. 1.242 to Subpart B to read as follows:
Sec. 1.242 Appointment of case manager when Commission is the
presiding officer.
When the Commission designates itself as the presiding officer in a
hearing proceeding, it may delegate authority to a case manager to
develop the record in a written hearing (see Sec. Sec. 1.370-1.377).
The case manager must be a staff attorney who qualifies as a neutral
under 5 U.S.C. 571 and 573. The Commission shall not designate any of
the following persons to serve as case manager in a case, and they may
not advise or assist the case manager: Staff who participated in
identifying the specific issues designated for hearing; staff who have
taken or will take an active part in investigating, prosecuting, or
advocating in the case; or staff who are expected to investigate and
act upon petitions to deny (including challenges thereto). A case
manager shall have authority to perform any of the functions generally
performed by the presiding officer, except that a case manager shall
have no authority to resolve any new or novel issues, to issue an order
on the merits resolving any issue designated for hearing in a case, to
issue an order on the merits of any motion for summary decision filed
under Sec. 1.251, or to perform any other functions that the
Commission reserves to itself in the order appointing a case manager.
0
38. Amend Sec. 1.243 by revising the introductory text, paragraphs
(g), (i) through (l), the authority citation, and adding paragraphs (m)
and (n) to read as follows:
Sec. 1.243 Authority of presiding officer.
From the time the presiding officer is designated until issuance of
the presiding officer's decision or the transfer of the proceeding to
the Commission or to another presiding officer, the presiding officer
shall have such authority as granted by law and by the provisions of
this chapter, including authority to:
* * * * *
(g) Require the filing of memoranda of law and the presentation of
oral argument with respect to any question of law upon which the
presiding officer or the Commission is required to rule during the
course of the hearing proceeding;
* * * * *
(i) Dispose of procedural requests and ancillary matters, as
appropriate;
(j) Take actions and make decisions in conformity with governing
law;
(k) Act on motions to enlarge, modify or delete the hearing issues;
(l) Act on motions to proceed in forma pauperis pursuant to Sec.
1.224;
[[Page 53367]]
(m) Decide a matter upon the existing record or request additional
information from the parties; and
(n) Issue such orders and conduct such proceedings as will best
conduce to the proper dispatch of business and the ends of justice.
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and
409)
* * * * *
0
39. Revise Sec. 1.244 to read as follows:
Sec. 1.244 Designation of a settlement officer.
(a) Parties may request that the presiding officer appoint a
settlement officer to facilitate the resolution of the case by
settlement.
(b) Where all parties in a case agree that such procedures may be
beneficial, such requests may be filed with the presiding officer no
later than 15 days prior to the date scheduled for the commencement of
hearings or, in hearing proceedings conducted pursuant to Sec. Sec.
1.370-1.377, no later than 15 days before the date set as the deadline
for filing the affirmative case. The presiding officer shall suspend
the procedural dates in the case pending action upon such requests.
(c) If, in the discretion of the presiding officer, it appears that
the appointment of a settlement officer will facilitate the settlement
of the case, the presiding officer shall appoint a ``neutral'' as
defined in 5 U.S.C. 571 and 573 to act as the settlement officer.
(1) The parties may request the appointment of a settlement officer
of their own choosing so long as that person is a ``neutral'' as
defined in 5 U.S.C. 571 and 573.
(2) The appointment of a settlement officer in a particular case is
subject to the approval of all the parties in the proceeding.
(3) Neither the Commission, nor any sitting members of the
Commission, nor the presiding officer shall serve as the settlement
officer in any case.
(4) Other members of the Commission's staff who qualify as neutrals
may be appointed as settlement officers. The presiding officer shall
not appoint a member of the Commission's staff as a settlement officer
in any case if the staff member's duties include, or have included,
drafting, reviewing, and/or recommending actions on the merits of the
issues designated for hearing in that case.
(d) The settlement officer shall have the authority to require
parties to submit their written direct cases for review. The settlement
officer may also meet with the parties 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 officer may express an opinion as to the
relative merit of the parties' positions and recommend possible means
to resolve the proceeding by settlement. The proceedings before the
settlement officer 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 officer will be admissible as evidence in any Commission
proceeding.
0
40. Amend Sec. 1.245 by revising paragraphs (a), (b)(1) through (3),
and the authority citation to read as follows:
Sec. 1.245 Disqualification of presiding officer.
(a) In the event that a presiding officer (other than the
Commission) deems himself or herself disqualified and desires to
withdraw from the case, the presiding officer shall immediately so
notify the Commission.
(b) * * *
(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.
(2) The presiding officer may file a response to the affidavit; and
if the presiding officer believes he or she is not disqualified, he or
she shall so rule and continue with the hearing proceeding.
(3) The person seeking disqualification may appeal a ruling denying
the request for withdrawal of the presiding officer, and, in that
event, shall do so within five days of release of the presiding
officer's ruling. Unless an appeal of the ruling is filed at this time,
the right to request withdrawal of the presiding officer shall be
deemed waived.
* * * * *
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and
409)
* * * * *
0
41. Revise Sec. 1.248 to read as follows:
Sec. 1.248 Status conferences.
(a) The presiding officer may direct the parties or their attorneys
to appear at a specified time and place for a status conference during
the course of a hearing proceeding, or to submit suggestions in
writing, for the purpose of considering, among other things, the
matters set forth in paragraph (c) of this section. Any party may
request a status conference at any time after release of the order
designating a matter for hearing. During a status conference, the
presiding officer may issue rulings regarding matters relevant to the
conduct of the hearing proceeding including, inter alia, procedural
matters, discovery, and the submission of briefs or evidentiary
materials.
(b) The presiding officer shall schedule an initial status
conference promptly after written appearances have been submitted under
Sec. 1.91 or Sec. 1.221. At or promptly after the initial status
conference, the presiding officer shall adopt a schedule to govern the
hearing proceeding. If the Commission designated a matter for hearing
on a written record under Sec. Sec. 1.370-1.376, the scheduling order
shall include a deadline for filing a motion to request an oral hearing
in accordance with Sec. 1.376. If the Commission did not designate the
matter for hearing on a written record, the scheduling order shall
include a deadline for filing a motion to conduct the hearing on a
written record. 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
motions.
(c) In status conferences, the following matters, among others, may
be considered:
(1) Clarifying, amplifying, or narrowing issues designated for
hearing;
(2) Scheduling;
(3) Admission of facts and of the genuineness of documents (see
Sec. 1.246), and the possibility of stipulating with respect to facts;
(4) Discovery;
(5) Motions;
(6) Hearing procedure;
(7) Settlement (see Sec. 1.93); and
(8) Such other matters that may aid in resolution of the issues
designated for hearing.
(d) Status conferences may be conducted in person or by telephone
conference call or similar technology, at the discretion of the
presiding officer. An official transcript of all status conferences
shall be made unless the presiding officer and the parties agree to
forego a transcript, in which case any rulings by the presiding officer
during the status conference shall be promptly memorialized in writing.
(e) The failure of any attorney or party, following reasonable
notice, to appear at a scheduled status conference may be deemed a
waiver by that party of its rights to participate in the hearing
proceeding and shall not preclude the presiding officer from conferring
with parties or counsel present.
* * * * *
[[Page 53368]]
0
42. Revise Sec. 1.249 to read as follows:
Sec. 1.249 Presiding officer statement.
The presiding officer shall enter upon the record a statement
reciting all actions taken at a status conference convened under Sec.
1.248 and incorporating into the record all of the stipulations and
agreements of the parties which were approved by the presiding officer,
and any special rules which the presiding officer may deem necessary to
govern the course of the proceeding.
0
43. Revise Sec. 1.250 to read as follows:
Sec. 1.250 Discovery and preservation of evidence; cross-reference.
For provisions relating to prehearing discovery and preservation of
admissible evidence in hearing proceedings under this Subpart B, see
Sec. Sec. 1.311 through 1.325.
0
44. Amend Sec. 1.251 by revising paragraphs (a)(1) and (2), adding
paragraph (a)(3), and revising paragraphs (d), (e), and (f)(1) through
(3) to read as follows:
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 designated for hearing. The motion
shall be filed at least 20 days prior to the date set for commencement
of the hearing or, in hearing proceedings conducted pursuant to
Sec. Sec. 1.370-1.377, at least 20 days before the date that the
presiding officer sets as the deadline for filing the affirmative case.
See Sec. 1.372. 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 in the hearing
proceeding.
(2) A party may file a motion for summary decision after the
deadlines in paragraph (a)(1) of this section only with the presiding
officer's permission, or upon the presiding officer's invitation. 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 deadlines in
paragraph (a)(1) of this section, 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 the party pursuant to paragraph (b) of this section.
(3) Motions for summary decision should be addressed to the
Commission in any hearing proceeding in which the Commission is the
presiding officer and it has appointed a case manager pursuant to Sec.
1.242. The Commission, in its discretion, may defer ruling on any such
motion until after the case manager has certified the record for
decision by the Commission pursuant to Sec. 1.377.
* * * * *
(d) The presiding officer may, in his or her discretion, set the
matter for argument and may 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 the need for cross-examination, if any,
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 the party cannot, for good cause shown,
present by affidavit or otherwise facts essential to justify the
party's 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, the hearing proceeding shall be
terminated. When a presiding officer (other than the Commission) issues
a Summary Decision, it 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 motion is denied, the
presiding officer will issue a memorandum opinion and order,
interlocutory in character, and the hearing proceeding will continue 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. The presiding
officer 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, the presiding officer 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, the matter, together with any findings and recommendations,
will be referred to the Commission 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, the presiding officer will certify the
matter to the Commission, with findings and recommendations, for a
determination as to whether the facts warrant the addition of an issue
to the hearing proceeding as to the character qualifications of that
party.
* * * * *
0
45. Revise Sec. 1.253 to read as follows:
Sec. 1.253 Time and place of hearing.
The presiding officer shall specify the time and place of oral
hearings. All oral hearings will take place at Commission Headquarters
unless the presiding officer designates another location.
0
46. Revise Sec. 1.254 to read as follows:
Sec. 1.254 Nature of the hearing proceeding; burden of proof.
Any hearing upon an application shall be a full hearing proceeding
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. 1.258 [Removed and reserved]
0
47. Remove and reserve Sec. 1.258.
Sec. 1.260 [Removed and reserved]
0
48. Remove and reserve Sec. 1.260.
0
49. Revise Sec. 1.261 to read as follows:
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
transmission to the parties of the transcript of any oral conference or
hearing, any party to the proceeding may file with the presiding
officer a motion requesting corrections to the transcript, which motion
shall be
[[Page 53369]]
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 may sua sponte specify corrections to be made in the transcript
on 5 days' notice.
0
50. Amend Sec. 1.263 by revising paragraph (a) and the authority
citation to read as follows:
Sec. 1.263 Proposed findings and conclusions.
(a) The presiding officer may direct any party to file proposed
findings of fact and conclusions, briefs, or memoranda of law. If the
presiding officer does not so order, any party to the proceeding may
seek leave 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 the time prescribed
by the presiding officer.
* * * * *
(5 U.S.C. 557; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and
409)
0
51. Add Sec. 1.265 to Subpart B to read as follows:
Sec. 1.265 Closing the record.
At the conclusion of hearing proceedings, the presiding officer
shall promptly close the record after the parties have submitted their
evidence, filed any proposed findings and conclusions under Sec.
1.263, and submitted any other information required by the presiding
officer. After the record is closed, it shall be certified by the
presiding officer and filed in the Office of the Secretary. Notice of
such certification shall be served on all parties to the proceedings.
0
52. Amend Sec. 1.267 by revising paragraphs (a) and (c) to read as
follows:
Sec. 1.267 Initial and recommended decisions.
(a) Except as provided in Sec. Sec. 1.94, 1.251 and 1.274, when
the proceeding is terminated on motion, or when the presiding officer
is the Commission, 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.
* * * * *
(c) When the Commission is not the presiding officer, the authority
of the presiding officer over the proceedings shall cease when the
presiding officer has filed an Initial or Recommended Decision, or if
it is a case in which the presiding officer is to file no decision,
when they have certified the case for decision: Provided, however, That
the presiding officer shall retain limited jurisdiction over the
proceeding for the purpose of effecting certification of the record and
corrections to the transcript, as provided in Sec. Sec. 1.265 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.
* * * * *
0
53. Revise Sec. 1.273 to read as follows:
Sec. 1.273 Waiver of initial or recommended decision.
When the Commission serves as the presiding officer, it will not
issue an initial or recommended decision. When the Commission is not
the presiding officer, at any time before the record is closed 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 or 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.
0
54. Revise Sec. 1.274 to read as follows:
Sec. 1.274 Certification of the record to the Commission for decision
when the Commission is not the presiding officer; presiding officer
unavailability.
(a) When the Commission is not the presiding officer, 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
decision.
(b) When a presiding officer becomes unavailable to the Commission
after the taking of evidence has been concluded, the Commission shall
direct that the record be certified to it for decision. In that event,
the Commission shall designate a new presiding officer in accordance
with Sec. 1.241 for the limited purpose of certifying the record to
the Commission.
(c) In all other circumstances when the Commission is not the
presiding officer, the presiding officer shall prepare and file an
initial or recommended decision, which will be released in accordance
with Sec. 1.267.
(d) When a presiding officer becomes unavailable to the Commission
after the taking of evidence has commenced but before it has been
concluded, the Commission shall designate another presiding officer in
accordance with Sec. 1.241 to continue the hearing proceeding. Oral
testimony already introduced shall not be reheard unless observation of
the demeanor of the witness is essential to the resolution of the case.
* * * * *
0
55. Revise Sec. 1.279 to read as follows:
Sec. 1.279 Limitation of matters to be reviewed.
(a) 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).
(b) No party may file an exception to the presiding officer's
ruling that all or part of the hearing be conducted and resolved on a
written record, unless that party previously filed an interlocutory
motion to request an oral hearing in accordance with Sec. 1.376.
0
56. Revise Sec. 1.291 to read as follows:
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.
(2) All other interlocutory matters in hearing proceedings are
acted on by the presiding officer.
(3) Each interlocutory pleading shall identify the presiding
officer in its caption. Unless the pleading is to be acted upon by the
Commission, the presiding officer 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, 1.50,
1.51, 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. 1.301.
[[Page 53370]]
(3) Petitions requesting reconsideration of an interlocutory ruling
will not be entertained.
(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 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)
0
57. Revise Sec. 1.294 to read as follows:
Sec. 1.294 Oppositions and replies.
(a) Any party to a hearing proceeding may file an opposition to an
interlocutory request filed in that proceeding.
(b) Except as provided in paragraph (c) of this section or as
otherwise ordered by the presiding officer, oppositions to
interlocutory requests shall be filed within 4 days after the original
pleading is filed, and replies to oppositions will not be entertained.
(c) Additional pleadings may be filed only if specifically
requested or authorized by the person(s) who is to make the ruling.
* * * * *
0
58. Amend Sec. 1.298 by revising paragraph (b) to read as follows:
Sec. 1.298 Rulings; time for action.
* * * * *
(b) In the discretion of the presiding officer, rulings on
interlocutory matters may be made orally to the parties. The presiding
officer may, in his or her discretion, state reasons therefor on the
record if the ruling is being transcribed, or may promptly issue a
written statement of the reasons for the ruling, either separately or
as part of an initial decision.
* * * * *
0
59. Amend Sec. 1.301 by revising the section heading and paragraphs
(a), (b), and (c)(1) to read as follows:
Sec. 1.301 Appeal from interlocutory rulings by a presiding officer,
other than the Commission, or a case manager; 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 a 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 a ruling requires testimony or the production of documents,
over objection based on a claim of privilege, the ruling on the claim
of privilege is appealable as a matter of right.
(3) If a ruling denies a motion to disqualify the presiding officer
or case manager, the ruling is appealable as a matter of right.
(4) 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
proceeding for such period as is reasonably necessary for the client to
secure new counsel and for counsel to become familiar with the case).
(b) Other interlocutory rulings. Except as provided in paragraph
(a) of this section, appeals from interlocutory rulings 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. If the presiding officer made the ruling, 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. If a case manager made the ruling, the request shall contain
a showing that the appeal presents a question of law or policy that the
case manager lacks authority to resolve. 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. Such ruling is final:
Provided, however, That the Commission may, on its own motion, dismiss
an appeal allowed under this section on the ground that objection to
the ruling should be deferred and raised after the record is certified
for decision by the Commission or as an exception to an initial
decision.
(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 after the record is certified for decision by the
Commission or 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 after the record is certified for
decision by the Commission or on review of the initial decision.
(3) If the presiding officer modifies their initial 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) * * *
(1) Unless the presiding officer orders otherwise, rulings made
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 that comes before it for consideration on appeal.
* * * * *
0
60. Amend Sec. 1.302 by revising the section heading to read as
follows:
Sec. 1.302 Appeal from final ruling by presiding officer other than
the Commission; effective date of ruling.
* * * * *
0
61. Amend Sec. 1.311 by revising the introductory text and paragraph
(a), removing the introductory text to paragraph (c) and paragraph
(c)(1), redesignating paragraphs (c)(2) and (3) as paragraphs (c)(1)
and (2), revising the text of redesignated paragraph (c)(1), removing
paragraph (d), redesignating paragraph (e) as paragraph (d), and
revising newly redesignated paragraph (d) to read as follows:
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 in a hearing proceeding, or for both purposes.
(a) Applicability. For purposes of discovery, these procedures 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).
* * * * *
(c)(1) Except as provided by special order of the presiding
officer, discovery may be initiated after the initial conference
provided for in Sec. 1.248(b) of this part.
(2) 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
[[Page 53371]]
for such use, and/or to hear argument and render a ruling on disputes
that arise under these rules.
(d) 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. A copy of the stipulation shall be filed using the
Commission's Electronic Comment Filing System, and a copy of the
stipulation shall be served on the presiding officer or case manager at
least 3 days before the scheduled taking of the deposition.
* * * * *
0
62. Add Sec. 1.314 to Subpart B to read as follows:
Sec. 1.314 Confidentiality of information produced or exchanged.
(a) Any information produced in the course of a hearing proceeding
may be designated as confidential by any parties to the proceeding, or
third parties, pursuant to Sec. Sec. 0.457, 0.459, or 0.461 of these
rules. Any parties or third-parties asserting confidentiality for such
materials must:
(1) Clearly mark each page, or portion thereof, for which a
confidential designation is claimed. The parties or third parties
claiming confidentiality should restrict their designations to
encompass only the specific information that they assert is
confidential. If a confidential designation is challenged, the party or
third party claiming confidentiality shall have the burden of
demonstrating, by a preponderance of the evidence, that the materials
designated as confidential fall under the standards for nondisclosure
enunciated in the FOIA and that the designation is narrowly tailored to
encompass only confidential information.
(2) File with the Commission, using the Commission's Electronic
Comment Filing System, a public version of the materials that redacts
any confidential information and clearly marks each page of the
redacted public version with a header stating ``Public Version.'' The
Public Version shall be machine-readable whenever technically possible.
Where the document to be filed electronically contains metadata that is
confidential or protected from disclosure by a legal privilege
(including, for example, the attorney-client privilege), the filer may
remove such metadata from the Public Version before filing it
electronically.
(3) File with the Secretary's Office an unredacted hard copy,
meaning an unredacted version of the materials containing confidential
information that clearly displays on each page of the unredacted
version a header stating ``Confidential Version.'' The unredacted
version must be filed on the same day as the Public Version.
(4) Serve one hard copy of the Public Version and one hard copy of
the Confidential Version 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 email, together with a proof of such service in accordance
with the requirements of Sec. 1.47(g). A hard copy of the Public
Version and Confidential Version shall also be served on the presiding
officer as identified in the caption.
(b) An attorney of record for any party or any party that receives
unredacted materials marked as confidential may disclose such materials
solely to the following persons, only for use in prosecuting or
defending a party to the hearing proceeding, and only to the extent
necessary to assist in the prosecution or defense of the case:
(1) Employees of counsel of record representing the parties in the
hearing proceeding;
(2) Officers or employees of the receiving party who are directly
involved in the prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the parties; and
(4) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(c) The individuals identified above in paragraph (b) shall not
disclose information designated as confidential 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 hearing proceeding. Each such
individual who is provided access to the information shall sign a
declaration or affidavit stating that the individual has personally
reviewed the Commission's rules and understands the limitations they
impose on the signing party.
(d) Parties may make copies of materials marked confidential solely
for use by the Commission or persons designated in paragraph (b) of
this section. Each party shall maintain a log recording the number of
copies made of all confidential material and the persons to whom the
copies have been provided.
(e) The presiding officer may adopt a protective order as
appropriate.
(f) Upon final termination of a hearing proceeding, including all
appeals and applications for review, the parties shall ensure that all
originals and reproductions of any confidential 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 proceeding, any notes or other work product derived in whole or
in part from the confidential materials of an opposing or third party
shall be destroyed.
0
63. Amend Sec. 1.315 by revising paragraph (a) and deleting paragraph
(e) to read as follows:
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 to every other party, to the person to be examined, and
to the presiding officer or case manager. A copy of the notice shall be
filed with the Secretary of the Commission for inclusion in the
Commission's Electronic Comment Filing System. Related pleadings shall
be served and filed in the same manner. The notice shall contain the
following information:
* * * * *
Sec. 1.316 [Removed and reserved]
0
64. Remove and reserve Sec. 1.316.
0
65. Amend Sec. 1.319 by revising the first sentence of paragraphs
(c)(2) and (3) to read as follows:
Sec. 1.319 Objections to the taking of depositions.
* * * * *
(c) * * *
(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, provide
* * *
(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, expeditiously * * *
* * * * *
0
66. Amend Sec. 1.321 by revising the heading and revising paragraphs
(b) and (d)(3) to read as follows:
Sec. 1.321 Use of depositions in hearing proceedings.
* * * * *
(b) Except as provided in this paragraph and in Sec. 1.319,
objection may be made to receiving in evidence any deposition or part
thereof for any reason
[[Page 53372]]
which would require the exclusion of the evidence if the witness were
then present and testifying.
* * * * *
(d) * * *
(3) The deposition of any witness, whether or not a party, may be
used by any party for any lawful purpose.
* * * * *
0
67. Amend Sec. 1.323 by revising paragraph (a) to read as follows:
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,
partnership, association, or similar entity, by any officer or agent,
who shall furnish such information as is available to the party. Copies
of the interrogatories, answers, and all related pleadings shall be
filed with the Commission and served on the presiding officer and all
other parties to the hearing proceeding.
* * * * *
0
68. Amend Sec. 1.325 by revising paragraph (a)(1) to read as follows:
Sec. 1.325 Discovery and production of documents and things for
inspection, copying, or photographing.
(a) * * *
(1) Copies of the request shall be filed with the Commission and
served on the presiding officer and all other parties to the hearing
proceeding.
* * * * *
0
69. Revise Sec. 1.331 to read as follows:
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 by the
presiding officer.
0
70. Amend Sec. 1.338 by revising paragraph (a) to read as follows:
Sec. 1.338 Subpena forms.
(a) Subpena forms are available on the Commission's internet site,
www.fcc.gov, as FCC Form 766. These forms are to be completed and
submitted with any request for issuance of a subpena.
* * * * *
0
71. Revise Sec. 1.351 to read as follows:
Sec. 1.351 Rules of evidence.
In hearings subject to this Subpart B, any oral or documentary
evidence may be adduced, but the presiding officer shall exclude
irrelevant, immaterial, or unduly repetitious evidence.
0
72. Revise Sec. 1.362 to read as follows:
Sec. 1.362 Production of statements.
After a witness is called and has given direct testimony in an oral
hearing, and before he or she is excused, any party may move for the
production of any statement of such witness, or part thereof,
pertaining to his or her 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.
0
73. Amend Subpart B by adding a new heading and Sec. Sec. 1.370
through 1.377 to read as follows:
PART 1--PRACTICE AND PROCEDURE
Subpart B--Hearing Proceedings
Hearings on a Written Record
Sec.
1.370 Purpose.
1.371 General pleading requirements.
1.372 The affirmative case.
1.373 The responsive case.
1.374 The reply case.
1.375 Other written submissions.
1.376 Oral hearing or argument.
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227,
303(r), 309, 1403, 1404, 1451, and 1452.
Hearings on a Written Record
Sec. 1.370 Purpose.
Hearings under this Subpart B that the Commission or one of its
Bureaus, acting on delegated authority, determines shall be conducted
and resolved on a written record are subject to Sec. Sec. 1.371-1.377.
If an order designating a matter for hearing does not specify whether
those rules apply to a hearing proceeding, and if the proceeding is not
subject to 5 U.S.C. 554, the presiding officer may, in their
discretion, conduct and resolve all or part of the hearing proceeding
on a written record in accordance with Sec. Sec. 1.371-1.377.
Sec. 1.371 General pleading requirements.
Written hearings shall be resolved on a written record consisting
of affirmative case, responsive case, and reply case submissions, along
with all associated evidence in the record, including stipulations and
agreements of the parties and official notice of a material fact.
(a) All pleadings filed in any proceeding subject to these written
hearing rules must be submitted in conformity with the requirements of
Sec. Sec. 1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51(a), and 1.52.
(b) Pleadings must be clear, concise, and direct. All matters
should be pleaded fully and with specificity.
(c) Pleadings shall consist of numbered paragraphs and must be
supported by relevant evidence. Assertions based on information and
belief are prohibited unless made in good faith and accompanied by a
declaration or affidavit explaining the basis for the party's belief
and why the party could not reasonably ascertain the facts from any
other source.
(d) Legal arguments must be supported by appropriate statutory,
judicial, or administrative 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. In addition, copies of state authorities
relied upon shall be provided.
(g) Parties are responsible for the continuing accuracy and
completeness of all information and supporting authority furnished in a
pending proceeding. Information submitted, as well as relevant legal
authorities, must be current and updated as necessary and in a timely
manner before a decision is rendered on the merits.
(h) Pleadings shall identify the name, address, telephone number,
and email address for either the filing party's attorney or, where a
party is not represented by an attorney, the filing party. Pleadings
may be signed by a party's attorney.
(i) Attachments to any pleading shall be Bates-stamped or otherwise
identifiable by party and numbered sequentially. Parties shall cite to
Bates-stamped or otherwise identifiable page numbers in their
pleadings.
(j) Unless a schedule is specified in the order designating a
matter for hearing, at the initial status conference under Sec.
1.248(b), the presiding officer shall adopt a schedule for the
sequential filing of pleadings required or permitted under these rules.
(k) Pleadings shall be served on all parties to the proceeding in
accordance with Sec. 1.211 and shall include a certificate of service.
All pleadings shall be served on the presiding officer or case manager,
as identified in the caption.
(l) Each pleading must contain a written verification that the
signatory has read the submission and, to the best
[[Page 53373]]
of their 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 for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly increase the
cost of the proceeding. If any pleading or other submission is signed
in violation of this provision, the Commission may upon motion or upon
its own initiative impose appropriate sanctions.
(m) Any party to the proceeding may file a motion seeking waiver of
any of the rules governing pleadings in written hearings. Such waiver
may be granted for good cause shown.
(n) Any pleading that does not conform with the requirements of the
applicable rules may be deemed defective. In such case, the presiding
officer may strike the pleading or request that specified defects be
corrected and that proper pleadings be filed with the Commission and
served on the presiding officer or case manager and all parties within
a prescribed time as a condition to being made a part of the record in
the proceeding.
(o) Any party that fails to respond to official correspondence, a
request for additional information, or an order or directive from the
presiding officer or case manager may be subject to appropriate
sanctions.
Sec. 1.372 The affirmative case.
(a) Within 30 days after the completion of the discovery period as
determined by the presiding officer, unless otherwise directed by the
presiding officer, any party to the proceeding with the burden of proof
shall file a pleading entitled ``affirmative case'' that fully
addresses each of the issues designated for hearing. The affirmative
case submission shall include:
(1) A statement of relevant material facts, supported by sworn
statements based on personal knowledge, documentation, or by other
materials subject to consideration by the presiding officer, and a full
legal analysis of each of the issues designated for hearing;
(2) Citation to relevant sections of the Communications Act or
Commission regulations or orders; and
(3) The relief sought.
(b) The affirmative case submission shall address all factual and
legal questions designated for hearing, and state in detail the basis
for the response to each such question. Responses based on information
and belief are prohibited unless made in good faith and accompanied by
a declaration or affidavit explaining the basis for the party's belief
and why the party could not reasonably ascertain the facts. When a
party intends in good faith to deny only part of a designated question
in the affirmative case, that party shall specify so much of it as is
true and shall deny only the remainder.
(c) Failure to address in an affirmative case submission all
factual and legal questions designated for hearing may result in
inferences adverse to the filing party.
Sec. 1.373 The responsive case.
(a) Any other party may file a responsive case submission in the
manner prescribed under this section within 30 calendar days of the
filing of the affirmative case submission, unless otherwise directed by
the presiding officer. The responsive case submission shall include:
(1) A statement of relevant material facts, supported by sworn
statements based on personal knowledge, documentation, or by other
materials subject to consideration by the presiding officer, and a full
legal analysis of any issues designated for hearing.
(2) Citation to relevant sections of the Communications Act or
Commission regulations or orders; and
(3) Any relief sought.
(b) The responsive case submission shall respond specifically to
all material allegations made in the affirmative case submission. Every
effort shall be made to narrow the issues for resolution by the
presiding officer.
(c) Statements of fact or law in an affirmative case filed pursuant
to Sec. 1.372 are deemed admitted when not rebutted in a responsive
case submission.
Sec. 1.374 The reply case.
(a) Any party who filed an affirmative case may file and serve a
reply case submission within 15 days of the filing of any responsive
case submission, unless otherwise directed by the presiding officer.
(b) The reply case submission shall contain statements of relevant
material facts, supported by sworn statements based on personal
knowledge, documentation, or by other materials subject to
consideration by the presiding officer, and a full legal analysis that
responds only to the factual allegations and legal arguments made in
any responsive case. Other allegations or arguments will not be
considered by the presiding officer.
(c) Failure to submit a reply case submission shall not be deemed
an admission of any allegations contained in any responsive case.
Sec. 1.375 Other written submissions.
(a) The presiding officer may require or permit the parties to file
other written submissions such as briefs, proposed findings of fact and
conclusions of law, or other supplementary documents or pleadings. The
presiding officer may limit the scope of any such pleadings to certain
subjects or issues.
(b) The presiding officer may require the parties to submit any
additional information deemed appropriate for a full, fair, and
expeditious resolution of the proceeding.
Sec. 1.376 Oral hearing or argument.
(a) Notwithstanding any requirement in the designation order that
the hearing be conducted and resolved on a written record, a party may
file a motion to request an oral hearing pursuant to Sec. 1.291. Any
such motion shall be filed after the submission of all the pleadings
but no later than the date established in the scheduling order. See
Sec. Sec. 1.372-1.374, 1.248. The motion shall contain a list of
genuine disputes as to outcome-determinative facts that the movant
contends cannot adequately be resolved on a written record and a list
of witnesses whose live testimony would be required to resolve such
disputes. The motion also shall contain supporting legal analysis,
including citations to relevant authorities and parts of the record. If
the presiding officer finds that there is a genuine dispute as to an
outcome-determinative fact that cannot adequately be resolved on a
written record, the presiding officer shall conduct an oral hearing
limited to testimony and cross-examination necessary to resolve that
dispute.
(b) The presiding officer may, on his or her own motion following
the receipt of all written submissions, conduct an oral hearing to
resolve a genuine dispute as to an outcome-determinative fact that the
presiding officer finds cannot adequately be resolved on a written
record. Any such oral hearing shall be limited to testimony and cross-
examination necessary to resolve that dispute.
(c) Oral argument shall be permitted only if the presiding officer
determines that oral argument is necessary to resolution of the
hearing.
Sec. 1.377 Certification of the written hearing record to the
Commission for decision.
When the Commission is the presiding officer and it has appointed a
case manager under Sec. 1.242, the case manager shall certify the
record for decision to the Commission promptly after the hearing record
is closed. Notice of such certification shall be served on all parties
to the proceeding.
[[Page 53374]]
0
74. Amend Sec. 1.1202 by revising paragraphs (c) and (e) to read as
follows:
Sec. 1.1202 Definitions.
* * * * *
(c) Decision-making personnel. Any member, officer, or employee of
the Commission, or, in the case of a Joint Board, its members or their
staffs, who is or may reasonably be expected to be involved in
formulating a decision, rule, or order in a proceeding. Any person who
has been made a party to a proceeding or who otherwise has been
excluded from the decisional process shall not be treated as a
decision-maker with respect to that proceeding. Thus, any person
designated as part of a separate trial staff shall not be considered a
decision-making person in the designated proceeding. Unseparated Bureau
or Office staff shall be considered decision-making personnel with
respect to decisions, rules, and orders in which their Bureau or Office
participates in enacting, preparing, or reviewing. Commission staff
serving as the case manager in a hearing proceeding in which the
Commission is the presiding officer shall be considered decision-making
personnel with respect to that hearing proceeding.
* * * * *
(e) Matter designated for hearing. Any matter that has been
designated for hearing before a presiding officer.
* * * * *
0
75. Amend Sec. 1.1319 by revising the introductory text to paragraph
(a) and paragraphs (a)(1) and (2) to read as follows:
Sec. 1.1319 Consideration of the environmental impact statements.
(a) If the action is designated for hearing:
(1) In rendering an initial decision, the presiding officer (other
than the Commission) shall utilize the FEIS in considering the
environmental issues, together with all other non-environmental issues.
(2) When the Commission serves as the presiding officer or upon its
review of an initial decision, the Commission will consider and assess
all aspects of the FEIS and will render its decision, giving due
consideration to the environmental and nonenvironmental issues.
* * * * *
0
76. Amend Sec. 1.1504 by revising paragraph (f) to read as follows:
Sec. 1.1504 Eligibility of applicants.
* * * * *
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the
applicant directly or indirectly owns or controls a majority of the
voting shares or other interest, will be considered an affiliate for
purposes of this part, unless the presiding officer, as defined in 47
CFR 1.241, determines that such treatment would be unjust and contrary
to the purposes of the EAJA in light of the actual relationship between
the affiliated entities. In addition, the presiding officer may
determine that financial relationships of the applicant other than
those described in this paragraph constitute special circumstances that
would make an award unjust.
* * * * *
0
77. Amend Sec. 1.1506 by revising the introductory text in paragraph
(c) to read as follows:
Sec. 1.1506 Allowable fees and expenses.
* * * * *
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the presiding officer shall consider
the following:
* * * * *
0
78. Amend Sec. 1.1512 by revising the last sentence of paragraph (a)
and by revising paragraph (b) to read as follows:
Sec. 1.1512 Net worth exhibit.
(a) * * * The presiding officer may require an applicant to file
additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the
public record of the proceeding. However, an applicant that objects to
public disclosure of information in any portion of the exhibit and
believes there are legal grounds for withholding it from disclosure may
submit that portion of the exhibit directly to the presiding officer in
a sealed envelope labeled ``Confidential Financial Information'',
accompanied by a motion to withhold the information from public
disclosure. The motion shall describe the information sought to be
withheld and explain, in detail, why it falls within one or more of the
specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the
information would adversely affect the applicant, and why disclosure is
not required in the public interest. The material in question shall be
served on Bureau counsel, but need not be served on any other party to
the proceeding. If the presiding officer finds that the information
should not be withheld from disclosure, it shall be placed in the
public record of the proceeding. Otherwise, any request to inspect or
copy the exhibit shall be disposed of in accordance with the
Commission's established procedures under the Freedom of Information
Act, Sec. Sec. 0.441 through 0.466 of this chapter.
0
79. Amend Sec. 1.1513 by revising the last sentence to read as
follows:
Sec. 1.1513 Documentation of fees and expenses.
* * * The presiding officer may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
* * * * *
0
80. Amend Sec. 1.1514 by revising paragraph (c)(1) to read as follows:
Sec. 1.1514 When an application may be filed.
* * * * *
(c) * * *
(1) The date on which an initial decision or other recommended
disposition of the merits of the proceeding by a presiding officer
(other than the Commission) becomes administratively final;
* * * * *
0
81. Amend Sec. 1.1522 by revising the second sentence of paragraph (b)
to read as follows:
Sec. 1.1522 Answer to application.
* * * * *
(b) * * * The filing of this statement shall extend the time for
filing an answer for an additional 30 days, and further extensions may
be granted by the presiding officer upon request by Bureau counsel and
the applicant.
* * * * *
0
82. Amend Sec. 1.1524 by revising the second sentence to read as
follows:
Sec. 1.1524 Comments by other parties.
* * * A commenting party may not participate further in
proceedings on the application unless the presiding officer determines
that the public interest requires such participation in order to permit
full exploration of matters raised in the comments.
* * * * *
0
83. Amend Sec. 1.1525 by revising the last sentence to read as
follows:
Sec. 1.1525 Settlement.
* * * If a presiding officer (other than the Commission) approves
the proposed settlement, it shall be forwarded to the Commission for
final determination. If the Commission is the presiding officer, it
shall approve or deny the proposed settlement.
[[Page 53375]]
0
84. Amend Sec. 1.1526 by revising the second sentence of paragraph (a)
and revising paragraph (b) to read as follows:
Sec. 1.1526 Further proceedings.
(a) * * * However, on request of either the applicant or Bureau
counsel, or on her own initiative, the presiding officer 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. * * *
(b) A request that the presiding officer order further proceedings
under this section shall specifically identify the information sought
or the disputed issues and shall explain why the additional proceedings
are necessary to resolve the issues.
* * * * *
0
85. Amend Sec. 1.1527 by revising the section heading and the first
sentence, and adding a new last sentence to read as follows:
Sec. 1.1527 Initial decision.
A presiding officer (other than the Commission) shall issue an
initial decision on the application as soon as possible after
completion of proceedings on the application. * * * When the Commission
is the presiding officer, the Commission may, but is not required to,
issue an initial or recommended decision.
0
86. Amend Sec. 1.1528 by revising the last sentence to read as
follows:
Sec. 1.1528 Commission review.
* * * If review is taken, the Commission will issue a final
decision on the application or remand the application to the presiding
officer (other than the Commission) for further proceedings.
* * * * *
0
87. Amend Sec. 1.1604 by revising paragraphs (b) and (c) to read as
follows:
Sec. 1.1604 Post-selection hearings.
* * * * *
(b) If, after such hearing proceeding as may be necessary, the
Commission determines that the ``tentative selectee'' has met the
requirements of Sec. 73.3591(a) it will make the appropriate grant. If
the Commission is unable to make such a determination, it shall order
that another random selection be conducted from among the remaining
mutually exclusive applicants, in accordance with the provisions of
this subpart.
(c) If, on the basis of the papers before it, the Commission
determines that a substantial and material question of fact exists, it
shall designate that question for hearing. Hearing proceedings shall be
conducted by a presiding officer. See Sec. 1.241.
* * * * *
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
88. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
89. Amend Sec. 76.7 by revising paragraph (g)(2) to read as follows:
Sec. 76.7 General special relief, waiver, enforcement, complaint,
show cause, forfeiture, and declaratory ruling procedures.
* * * * *
(g) * * *
(2) Before designation for hearing, the staff shall notify, either
orally or in writing, the parties to the proceeding of its intent to so
designate, and the parties shall be given a period of ten (10) days to
elect to resolve the dispute through alternative dispute resolution
procedures, or to proceed with an adjudicatory hearing. Such election
shall be submitted in writing to the Commission.
[FR Doc. 2019-20568 Filed 10-4-19; 8:45 am]
BILLING CODE 6712-01-P
