[Code of Federal Regulations]
[Title 47, Volume 1, Parts 0 to 19]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR1]
[Page 88-317]
TITLE 47--TELECOMMUNICATION
CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION
PART 1--PRACTICE AND PROCEDURE
Subpart A--General Rules of Practice and Procedure
General
Sec.
1.1 Proceedings before the Commission.
1.2 Declaratory rulings.
1.3 Suspension, amendment, or waiver of rules.
1.4 Computation of time.
1.5 Mailing address furnished by licensee.
1.6 Availability of station logs and records for Commission inspection.
1.7 Documents are filed upon receipt.
1.8 Withdrawal of papers.
1.10 Transcript of testimony; copies of documents submitted.
1.12 Notice to attorneys of Commission documents.
1.13 Filing of petitions for review and notices of appeals of
Commission orders.
1.14 Citation of Commission documents.
1.16 Unsworn declarations under penalty of perjury in lieu of
affidavits.
1.17 Truthful written statements and responses to Commission inquiries
and correspondence.
1.18 Administrative Dispute Resolution.
1.19 Use of metric units required.
Parties, Practitioners, and Witnesses
1.21 Parties.
1.22 Authority for representation.
1.23 Persons who may be admitted to practice.
1.24 Censure, suspension, or disbarment of attorneys.
1.25 [Reserved]
1.26 Appearances.
1.27 Witnesses; right to counsel.
1.28 [Reserved]
1.29 [Reserved]
Pleadings, Briefs, and Other Papers
1.41 Informal requests for Commission action.
1.42 Applications, reports, complaints; cross-reference.
1.43 Requests for stay; cross-reference.
1.44 Separate pleadings for different requests.
1.45 Pleadings; filing periods.
1.46 Motions for extension of time.
1.47 Service of documents and proof of service.
1.48 Length of pleadings.
1.49 Specifications as to pleadings and documents.
1.50 Specifications as to briefs.
1.51 Number of copies of pleadings, briefs and other papers.
1.52 Subscription and verification.
General Application Procedures
1.61 Procedures for handling applications requiring special
aeronautical study.
1.62 Operation pending action on renewal application.
1.65 Substantial and significant changes in information furnished by
applicants to the Commission.
1.68 Action on application for license to cover construction permit.
1.77 Detailed application procedures; cross references.
Miscellaneous Proceedings
1.80 Forfeiture proceedings.
1.83 Applications for radio operator licenses.
1.84 Procedure with respect to commercial radio operator license
applications.
1.85 Suspension of operator licenses.
1.87 Modification of license or construction permit on motion of the
Commission.
1.88 Predesignation pleading procedure.
1.89 Notice of violations.
1.91 Revocation and/or cease and desist proceedings; hearings.
1.92 Revocation and/or cease and desist proceedings; after waiver of
hearing.
1.93 Consent orders.
1.94 Consent order procedures.
1.95 Violation of consent orders.
Reconsideration and Review of Actions Taken by the Commission and
Pursuant to Delegated Authority; Effective Dates and Finality Dates of
Actions
1.101 General provisions.
[[Page 89]]
1.102 Effective dates of actions taken pursuant to delegated authority.
1.103 Effective dates of Commission actions; finality of Commission
actions.
1.104 Preserving the right of review; deferred consideration of
application for review.
1.106 Petitions for reconsideration.
1.108 Reconsideration on Commission's own motion.
1.110 Partial grants; rejection and designation for hearing.
1.113 Action modified or set aside by person, panel, or board.
1.115 Application for review of action taken pursuant to delegated
authority.
1.117 Review on motion of the Commission.
1.120 Protests of grants without hearing.
Subpart B--Hearing Proceedings
General
1.201 Scope.
1.202 Official reporter; transcript.
1.203 The record.
1.204 Pleadings; definition.
1.205 Continuances and extensions.
1.207 Interlocutory matters, reconsideration and review; cross
references.
1.209 Identification of responsible officer in caption to pleading.
1.211 Service.
Participants and Issues
1.221 Notice of hearing; appearances.
1.223 Petitions to intervene.
1.224 Motion to proceed in forma pauperis.
1.225 Participation by non-parties; consideration of communications.
1.227 Consolidations.
1.229 Motions to enlarge, change, or delete issues.
Presiding Officer
1.241 Designation of presiding officer.
1.243 Authority of presiding officer.
1.244 Designation of a settlement judge.
1.245 Disqualification of presiding officer.
Prehearing Procedures
1.246 Admission of facts and genuineness of documents.
1.248 Prehearing conferences; hearing conferences.
1.249 Prehearing statement.
Hearing and Intermediate Decision
1.250 Discovery and preservation of evidence; cross-reference.
1.251 Summary decision.
1.253 Time and place of hearing.
1.254 Nature of the hearing; burden of proof.
1.255 Order of procedure.
1.258 Closing of the hearing.
1.260 Certification of transcript.
1.261 Corrections to transcript.
1.263 Proposed findings and conclusions.
1.264 Contents of findings of fact and conclusions.
1.267 Initial and recommended decisions.
Review Proceedings
1.271 Delegation of review function.
1.273 Waiver of initial or recommended decision.
1.274 Certification of the record to the Commission for initial or
final decision.
1.276 Appeal and review of initial decision.
1.277 Exceptions; oral arguments.
1.279 Limitation of matters to be reviewed.
1.282 Final decision of the Commission.
Interlocutory Actions in Hearing Proceedings
1.291 General provisions.
1.294 Oppositions and replies.
1.296 Service.
1.297 Oral argument.
1.298 Rulings; time for action.
Appeal and Reconsideration of Presiding Officer's Ruling
1.301 Appeal from presiding officer's interlocutory ruling; effective
date of ruling.
1.302 Appeal from presiding officer's final ruling; effective date of
ruling.
The Discovery and Preservation of Evidence
1.311 General.
1.313 Protective orders.
1.315 Depositions upon oral examination--notice and preliminary
procedure.
1.316 Depositions upon written interrogatories--notice and preliminary
procedure.
1.318 The taking of depositions.
1.319 Objections to the taking of depositions.
1.321 Use of depositions at the hearing.
1.323 Interrogatories to parties.
1.325 Discovery and production of documents and things for inspection,
copying, or photographing.
Subpenas
1.331 Who may sign and issue.
1.333 Requests for issuance of subpena.
1.334 Motions to quash.
1.335 Rulings.
1.336 Service of subpenas.
1.337 Return of service.
1.338 Subpena forms.
1.339 Witness fees.
1.340 Attendance of witness; disobedience.
Evidence
1.351 Rules of evidence.
1.352 Cumulative evidence.
1.353 Further evidence during hearing.
1.354 Documents containing matter not material.
[[Page 90]]
1.355 Documents in foreign language.
1.356 Copies of exhibits.
1.357 Mechanical reproductions as evidence.
1.358 Tariffs as evidence.
1.359 Proof of official record; authentication of copy.
1.360 Proof of lack of record.
1.361 Other proof of official record.
1.362 Production of statements.
1.363 Introduction of statistical data.
1.364 Testimony by speakerphone.
Subpart C--Rulemaking Proceedings
General
1.399 Scope.
1.400 Definitions.
Petitions and Related Pleadings
1.401 Petitions for rulemaking.
1.403 Notice and availability.
1.405 Responses to petitions; replies.
1.407 Action on petitions.
Rulemaking Proceedings
1.411 Commencement of rulemaking proceedings.
1.412 Notice of proposed rulemaking.
1.413 Content of notice.
1.415 Comments and replies.
1.419 Form of comments and replies; number of copies.
1.420 Additional procedures in proceedings for amendment of the FM or
TV Tables of Allotments.
1.421 Further notice of rulemaking.
1.423 Oral argument and other proceedings.
1.425 Commission action.
1.427 Effective date of rules.
1.429 Petition for reconsideration.
Inquiries
1.430 Proceedings on a notice of inquiry.
Subpart D--Broadcast Applications and Proceedings
1.502 Emergency Broadcast Authorizations.
General Filing Requirements
1.511 Applications required.
1.512 Where to file; number of copies.
1.513 Who may sign applications.
1.514 Content of applications.
1.516 Specification of facilities.
1.517 Contingent applications.
1.518 Inconsistent or conflicting applications.
1.519 Repetitious applications.
1.520 Multiple applications.
1.522 Amendment of applications.
1.525 Agreements between parties for amendment or dismissal of, or
failure to prosecute, broadcast applications.
1.526 Records to be maintained locally for public inspection by
commercial applicants, permittees and licensees.
1.527 Records to be maintained locally for public inspection by
noncommercial educational applicants, permittees and
licensees.
1.531 Formal and informal applications.
1.533 Application forms for authority to construct a new station or
make changes in an existing station.
1.534 Application for extension of construction permit or for
construction permit to replace expired construction permit.
1.536 Application for license to cover construction permit.
1.538 Application for modification of license.
1.539 Application for renewal of license.
1.540 Application for voluntary assignment or transfer of control.
1.541 Application for involuntary assignment of license or transfer of
control.
1.542 Application for temporary authorization.
1.543 Application for renewal or modification of special service
authorization.
1.544 Application for broadcast station to conduct field strength
measurements and for experimental operation.
1.545 Application for permit to deliver programs to foreign countries.
1.546 Application to determine operating power by direct measurement of
antenna power.
1.549 Requests for extension of authority to operate without required
monitors, indicating instruments, and EBS Attention Signal
devices.
1.550 Requests for new or modified call sign assignments.
1.561 Staff consideration of applications which receive action by the
Commission.
1.562 Staff consideration of applications which do not require action
by the Commission.
1.564 Acceptance of applications.
1.566 Defective applications.
1.568 Dismissal of applications.
1.570 AM broadcast station applications involving other North American
countries.
1.571 Processing AM broadcast station applications.
1.572 Processing TV broadcast and translator station applications.
1.573 Processing FM broadcast and translator station applications.
1.574 Processing of international broadcast station applications.
1.578 Amendments to applications for renewal, assignment or transfer of
control.
1.580 Local public notice of filing of broadcast applications.
1.584 Petitions to deny.
1.587 Procedure for filing informal applications.
1.591 Grants without hearing.
[[Page 91]]
1.592 Conditional grant.
1.593 Designation for hearing.
1.594 Local public notice of designation for hearing.
1.597 Procedures on transfer and assignment applications.
1.598 Period of construction.
1.599 Forfeiture of construction permit.
1.601 Simultaneous modification and renewal of license.
1.603 Special waiver procedure relative to applications.
1.605 Retention of applications in hearing status after designation for
hearing.
1.612 Annual employment report.
1.613 Filing of contracts.
1.615 Ownership reports.
Subpart E--Complaints, Applications, Tariffs, and Reports Involving
Common Carriers
General
1.701 Show cause orders.
1.703 Appearances.
Complaints
1.711 Formal or informal complaints.
informal complaints
1.716 Form.
1.717 Procedure.
1.718 Unsatisfied informal complaints; formal complaints relating back
to the filing dates of informal complaints.
formal complaints
1.720 General pleading requirements.
1.721 Format and content.
1.722 Damages.
1.723 Joinder of complainants and causes of action.
1.724 Answers.
1.725 Cross complaints.
1.726 Replies.
1.727 Motions.
1.728 Formal complaints not stating a cause of action; defective
pleadings.
1.729 Interrogatories to parties.
1.730 Other forms of discovery.
1.731 Confidentiality of information produced through discovery.
1.732 Other required written submissions.
1.733 Status conference.
1.734 Specifications as to pleadings, briefs, and other documents;
subscription.
1.735 Copies; service; separate filings against multiple defendants.
Applications
1.741 Scope.
1.742 Place of filing, fees, and number of copies.
1.743 Who may sign applications.
1.744 Amendments.
1.745 Additional statements.
1.746 Defective applications.
1.747 Inconsistent or conflicting applications.
1.748 Dismissal of applications.
1.749 Action on application under delegated authority.
Specific Types of Applications Under Title II of Communications Act
1.761 Cross reference.
1.762 Interlocking directorates.
1.763 Construction, extension, acquisition or operation of lines.
1.764 Discontinuance, reduction, or impairment of service.
1.765 Consolidation or acquisition of telephone companies.
1.766 Consolidation of domestic telegraph carriers.
1.767 Cable landing licenses.
Tariffs
1.771 Filing.
1.772 Application for special tariff permission.
1.773 Petitions for suspension or rejection of new tariff filings.
Contracts, Reports, and Requests Required to be Filed by Carriers
1.781 Requests for extension of filing time.
Contracts
1.783 Filing.
Financial and Accounting Reports and Requests
1.785 Annual financial reports.
1.786 [Reserved]
1.787 Reports of proposed changes in depreciation rates.
1.788 Reports regarding pensions and benefits.
1.789 Reports regarding division of international telegraph
communication charges.
1.790 Reports relating to traffic by international carriers.
1.791 Reports and requests to be filed under part 32 of this chapter.
1.795 Reports regarding interstate rates of return.
Services and Facilities Reports
1.802 Reports relating to continuing authority to supplement facilities
or to provide temporary or emergency service.
1.803 Reports relating to reduction in temporary experimental service.
1.805 Reports relating to service by carriers engaged in public radio
service operations.
[[Page 92]]
Miscellaneous Reports
1.811 Reports regarding amendments to charters, by-laws and partnership
agreements of carriers engaged in domestic public radio
services.
1.813 Reports of negotiations regarding foreign communication matters.
1.814 Reports regarding free service rendered the Government for
national defense.
1.815 Reports of annual employment.
Grants by Random Selection
1.821 Scope.
1.822 General selection procedures.
1.823 Random selection procedures for the Public Mobile Services.
1.824 Random selection procedures for Multichannel Multipoint
Distribution Service and Multipoint Distribution Service H-
Channel stations.
1.825 Random selection procedures for Digital Electronic Message
Service.
Subpart F--Private Radio Services Applications and Proceedings
General
1.901 Scope.
General Filing Requirements
1.911 Applications required.
1.912 Where applications are to be filed.
1.913 Who may sign applications.
1.914 Full disclosures.
1.916 Repetitious applications.
1.918 Amendment of applications.
Application Forms and Particular Filing Requirements
1.921 Procedure for obtaining a radio station authorization and for
commencement of operation.
1.922 Forms to be used.
1.923 Waiver of construction permit requirement.
1.924 Assignment or transfer of control, voluntary and involuntary.
1.925 Application for special temporary authorization, temporary permit
or temporary operating authority.
1.926 Application for renewal of license.
1.931 Requests for waiver of private radio rules.
1.933 Installation or removal of apparatus.
1.934 Procedure with respect to amateur radio operator license.
Application Processing Procedures
1.951 How applications are distributed.
1.952 How file numbers are assigned.
1.953 How applications are processed.
1.955 Frequency coordination, Canada.
1.958 Defective applications.
1.959 Resubmitted applications.
1.961 Dismissal of applications.
1.962 Public notice of acceptance for filing; petitions to deny
applications of specified categories.
Action on Applications
1.971 Grants without a hearing.
1.972 Grants by random selection.
1.973 Designation for hearing.
Reports to be Filed with the Commission
1.981 Reports, annual and semiannual.
Subpart G--Schedule of Statutory Charges and Procedures for Payment
1.1101 Authority.
1.1102 Schedule of charges for applications and other filings in the
wireless telecommunications services.
1.1103 Schedule of charges for equipment authorization, experimental
radio services, ship inspections and international
telecommunications settlements.
1.1104 Schedule of charges for applications and other filings in the
mass media services.
1.1105 Schedule of charges for applications and other filings in the
common carrier services.
1.1106 Schedule of charges for applications and other filings in the
cable television services.
1.1107 Schedule of charges for applications and other filings in the
international services.
1.1108 Attachment of charges.
1.1109 Payment of charges.
1.1110 Form of payment.
1.1111 Filing locations.
1.1112 Conditionality of Commission or staff authorizations.
1.1113 Return or refund of charges.
1.1114 General exemptions to charges.
1.1115 Adjustments to charges.
1.1116 Penalty for late or insufficient payments.
1.1117 Petitions and applications for review.
1.1118 Error claims.
1.1119 Billing procedures.
1.1151 Authority to prescribe and collect regulatory fees.
1.1152 Schedule of annual regulatory fees and filing locations for
wireless radio services.
1.1153 Schedule of annual regulatory fees and filing locations for mass
media services.
1.1154 Schedule of annual regulatory charges and filing locations for
common carrier services.
1.1155 Schedule of regulatory fees and filing locations for cable
television services.
1.1156 Schedule of regulatory fees and filing locations for
international services.
[[Page 93]]
1.1157 Payment of charges for regulatory fees.
1.1158 Form of payment for regulatory.
1.1159 Filing locations and receipts for regulatory fees.
1.1160 Refunds of regulatory fees.
1.1161 Conditional license grants and delegated authorizations.
1.1162 General exemptions from regulatory fees.
1.1163 Adjustments to regulatory fees.
1.1164 Penalties for late or insufficient regulatory fee payments.
1.1165 Payment by cashier's check for regulatory fees.
1.1166 Waivers, reductions, and deferrals of regulatory fees.
1.1167 Error claims related to regulatory fees.
1.1181 Authority to prescribe and collect fees for competitive bidding-
related services and products.
1.1182 Schedule of fees for products and services provided by the
Commission in connection with competitive bidding procedures.
Subpart H--Ex Parte Communications
General
1.1200 Introduction.
1.1202 Definitions.
Sunshine Period Prohibition
1.1203 Sunshine period prohibition.
General Exemptions
1.1204 Exempt ex parte presentations and proceedings.
Non-Restricted Proceedings
1.1206 Permit-but-disclose proceedings.
Restricted Proceedings
1.1208 Restricted proceedings.
Prohibition on Solicitation of Presentations
1.1210 Prohibition on solicitation of presentations.
Procedures for Handling of Prohibited Ex Parte Presentations
1.1212 Procedures for handling of prohibited ex parte presentations.
1.1214 Disclosure of information concerning violations of this subpart.
Sanctions
1.1216 Sanctions.
Subpart I--Procedures Implementing the National Environmental Policy Act
of 1969
1.1301 Basis and purpose.
1.1302 Cross-reference; Regulations of the Council on Environmental
Quality.
1.1303 Scope.
1.1304 Information and assistance.
1.1305 Actions which normally will have a significant impact upon the
environment, for which Environmental Impact Statements must be
prepared.
1.1306 Actions which are categorically excluded from environmental
processing.
1.1307 Actions that may have a significant environmental effect, for
which Environmental Assessments (EAs) must be prepared.
1.1308 Consideration of environmental assessments (EAs); findings of no
significant impact.
1.1309 Application amendments.
1.1310 Radiofrequency radiation exposure limits.
1.1311 Environmental information to be included in the environmental
assessment (EA).
1.1312 Facilities for which no preconstruction authorization is
required.
1.1313 Objections.
1.1314 Environmental impact statements (EISs).
1.1315 The Draft Environmental Impact Statement (DEIS); Comments.
1.1317 The Final Environmental Impact Statement (FEIS).
1.1319 Consideration of the environmental impact statements.
Subpart J--Pole Attachment Complaint Procedures
1.1401 Purpose.
1.1402 Definitions.
1.1403 Duty to provide access; modifications; notice of removal,
increase or modification; petition for temporary stay.
1.1404 Complaint.
1.1405 File numbers.
1.1406 Dismissal of complaints.
1.1407 Response and reply.
1.1408 Number of copies and form of pleadings.
1.1409 Commission consideration of the complaint.
1.1410 Remedies.
1.1411 Meetings and hearings.
1.1412 Enforcement.
1.1413 Forfeiture.
1.1414 State certification.
1.1415 Other orders.
1.1416 Imputation of rates; modification costs.
[[Page 94]]
Subpart K--Implementation of the Equal Access to Justice Act (EAJA) in
Agency Proceedings
General Provisions
1.1501 Purpose of these rules.
1.1502 When the EAJA applies.
1.1503 Proceedings covered.
1.1504 Eligibility of applicants.
1.1505 Standards for awards.
1.1506 Allowable fees and expenses.
1.1507 Rulemaking on maximum rates for attorney fees.
1.1508 Awards against other agencies.
Information Required from Applicants
1.1511 Contents of application.
1.1512 Net worth exhibit.
1.1513 Documentation of fees and expenses.
1.1514 When an application may be filed.
Procedures for Considering Applications
1.1521 Filing and service of documents.
1.1522 Answer to application.
1.1523 Reply.
1.1524 Comments by other parties.
1.1525 Settlement.
1.1526 Further proceedings.
1.1527 Decision.
1.1528 Commission review.
1.1529 Judicial review.
1.1530 Payment of award.
Subpart L--Random Selection Procedures for Mass Media Services
General Procedures
1.1601 Scope.
1.1602 Designation for random selection.
1.1603 Conduct of random selection.
1.1604 Post-selection hearings.
1.1621 Definitions.
1.1622 Preferences.
1.1623 Probability calculation.
Subpart M [Reserved]
Subpart N--Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the Federal Communications
Commission
1.1801 Purpose.
1.1802 Applications.
1.1803 Definitions.
1.1804-1.1809 [Reserved]
1.1810 Self-evaluation.
1.1811 Notice.
1.1812-1.1829 [Reserved]
1.1830 General prohibitions against discrimination.
1.1831-1.1839 [Reserved]
1.1840 Employment.
1.1841-1.1848 [Reserved]
1.1849 Program accessibility: Discrimination prohibited.
1.1850 Program accessibility: Existing facilities.
1.1851 Program accessibility: New construction and alterations.
1.1852-1.1859 [Reserved]
1.1860 Communications.
1.1861-1.1869 [Reserved]
1.1870 Compliance procedures.
1.1871-1.1899 [Reserved]
Subpart O--Collection of Claims Owed the United States
General Provisions
1.1901 Definitions.
1.1902 Exceptions.
1.1903 Use of procedures.
1.1904 Conformance to law and regulations.
1.1905 Other procedures; collection of forfeiture penalties.
1.1906 Informal action.
1.1907 Return of property.
1.1908 Omissions not a defense.
Administrative Offset--Consumer Reporting Agencies--Contracting for
Collection
1.1911 Demand for payment.
1.1912 Collection by administrative offset.
1.1913 Administrative offset against amounts payable from Civil
Retirement and Disability Fund.
1.1914 Collection in installments.
1.1915 Exploration of compromise.
1.1916 Suspending or terminating collection action.
1.1917 Referrals to the Department of Justice or the General Accounting
Office.
1.1918 Use of consumer reporting agencies.
1.1919 Contracting for collection services.
Salary Offset
1.1925 Purpose.
1.1926 Scope.
1.1927 Notification.
1.1928 Hearing.
1.1929 Deduction from pay.
1.1930 Liquidation from final check or recovery from other payment.
1.1931 Non-waiver of rights by payments.
1.1932 Refunds.
1.1933 Interest, penalties and administrative costs.
1.1934 Recovery when paying agency is not creditor agency.
1.1935 Obtaining the services of a hearing official.
Interest, Penalties, Administrative Costs and Other Sanctions
1.1940 Assessment.
1.1941 Exemptions.
1.1942 Other sanctions.
[[Page 95]]
Cooperation With the Internal Revenue Service
1.1950 Reporting discharged debts to the Internal Revenue Service.
1.1951 Offset against tax refunds.
General Provisions Concerning Interagency Requests
1.1952 Interagency requests.
Subpart P--Implementation of the Anti-Drug Abuse Act of 1988
1.2001 Purpose.
1.2002 Applicants required to submit information.
1.2003 Applications affected.
Subpart Q--Competitive Bidding Proceedings
General Procedures
1.2101 Purpose.
1.2102 Eligibility of applications for competitive bidding.
1.2103 Competitive bidding design options.
1.2104 Competitive bidding mechanisms.
1.2105 Bidding application and certification procedures; prohibition of
collusion.
1.2106 Submission of upfront payments.
1.2107 Submission of down payment and filing of long-form applications.
1.2108 Procedures for filing petitions to deny against long-form
applications.
1.2109 License grant, denial, default, and disqualification.
1.2110 Designated entities.
1.2111 Assignment or transfer of control: unjust enrichment.
Subpart R--Implementation of Section 4(g)(3) of the Communications Act:
Procedures Governing Acceptance of Unconditional Gifts, Donations and
Bequests
1.3000 Purpose and scope.
1.3001 Definitions.
1.3002 Structural rules and prohibitions.
1.3003 Mandatory factors for evaluating conflicts of interest.
1.3004 Public disclosure and reporting requirements.
Subpart S--Preemption of Restrictions That ``Impair'' a Viewer's Ability
To Receive Television Broadcast Signals, Direct Broadcast Satellite
Services or Multichannel Multipoint Distribution Services
1.4000 Restrictions impairing reception of television broadcast
signals, direct broadcast satellite services or multichannel
multipoint distribution services.
Subpart T--Exempt Telecommunications Companies
1.5000 Purpose.
1.5001 Definitions.
1.5002 Contents of application and procedure for filing.
1.5003 Effect of filing.
1.5004 Commission action.
1.5005 Notification of Commission action to the Securities and Exchange
Commission.
1.5006 Procedure for notifying Commission of material change in facts.
1.5007 Comments.
Appendix A to Part 1--A Plan of Cooperative Procedure in Matters and
Cases Under the Provisions of Section 410 of the
Communications Act of 1934
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155,
225, and 303(r).
Subpart A--General Rules of Practice and Procedure
Source: 28 FR 12415, Nov. 22, 1963, unless otherwise noted.
General
Sec. 1.1 Proceedings before the Commission.
The Commission may on its own motion or petition of any interested
party hold such proceedings as it may deem necessary from time to time
in connection with the investigation of any matter which it has power to
investigate under the law, or for the purpose of obtaining information
necessary or helpful in the determination of its policies, the carrying
out of its duties or the formulation or amendment of its rules and
regulations. For such purposes it may subpena witnesses and require the
production of evidence. Procedures to be followed by the Commission
shall, unless specifically prescribed in this part, be such as in the
opinion of the Commission will best serve the purposes of such
proceedings.
(Sec. 403, 48 Stat. 1094; 47 U.S.C. 403)
Sec. 1.2 Declaratory rulings.
The Commission may, in accordance with section 5(d) of the
Administrative Procedure Act, on motion or on its own motion issue a
declaratory ruling terminating a controversy or removing uncertainty.
[[Page 96]]
(5 U.S.C. 554)
Sec. 1.3 Suspension, amendment, or waiver of rules.
The provisions of this chapter may be suspended, revoked, amended,
or waived for good cause shown, in whole or in part, at any time by the
Commission, subject to the provisions of the Administrative Procedure
Act and the provisions of this chapter. Any provision of the rules may
be waived by the Commission on its own motion or on petition if good
cause therefor is shown.
Cross Reference: See subpart C of this part for practice and
procedure involving rulemaking.
Sec. 1.4 Computation of time.
(a) Purpose. The purpose of this rule section is to detail the
method for computing the amount of time within which persons or entities
must act in response to deadlines established by the Commission. It also
applies to computation of time for seeking both reconsideration and
judicial review of Commission decisions.
(b) General Rule--Computation of Beginning Date When Action is
Initiated by Commission or Staff. Unless otherwise provided, the first
day to be counted when a period of time begins with an action taken by
the Commission, an Administrative Law Judge or by members of the
Commission or its staff pursuant to delegated authority is the day after
the day on which public notice of that action is given. See Sec. 1.4(b)
(1)-(5) of this section. Unless otherwise provided, all Rules measuring
time from the date of the issuance of a Commission document entitled
``Public Notice'' shall be calculated in accordance with this section.
See Sec. 1.4(b)(4) of this section for a description of the ``Public
Notice'' document. Unless otherwise provided in Sec. 1.4 (g) and (h) of
this section, it is immaterial whether the first day is a ``holiday.''
For purposes of this section, the term public notice means the date of
any of the following events: See Sec. 1.4(e)(1) of this section for
definition of ``holiday.''
(1) For documents in notice and comment rule making proceedings,
including summaries thereof, the date of publication in the Federal
Register.
Example 1: A document in a Commission rule making proceeding is
published in the Federal Register on Wednesday, May 6, 1987. Public
notice commences on Wednesday, May 6, 1987. The first day to be counted
in computing the beginning date of a period of time for action in
response to the document is Thursday, May 7, 1987, the ``day after the
day'' of public notice.
Example 2: Section 1.429(e) provides that when a petition for
reconsideration is timely filed in proper form, public notice of its
filing is published in the Federal Register. Section 1.429(f) provides
that oppositions to a petition for reconsideration shall be filed within
15 days after public notice of the petition's filing in the Federal
Register. Public notice of the filing of a petition for reconsideration
is published in the Federal Register on Wednesday, June 10, 1987. For
purposes of computing the filing period for an opposition, the first day
to be counted is Thursday, June 11, 1987, which is the day after the
date of public notice. Therefore, oppositions to the reconsideration
petition must be filed by Thursday, June 25, 1987, 15 days later.
(2) For non-rulemaking documents released by the Commission or
staff, whether or not published in the Federal Register, the release
date. A document is ``released'' by making the full text available to
the press and public in the Commission's Office of Public Affairs. The
release date appears on the face of the document.
Example 3: The Chief, Mass Media Bureau, adopts an order on
Thursday, April 2, 1987. The text of that order is not released to the
public until Friday, April 3, 1987. Public notice of this decision is
given on Friday, April 3, 1987. Saturday, April 4, 1987, is the first
day to be counted in computing filing periods.
(3) For rule makings of particular applicability, if the rule making
document is to be published in the Federal Register and the Commission
so states in its decision, the date of public notice will commence on
the day of the Federal Register publication date. If the decision fails
to specify Federal Register publication, the date of public notice will
commence on the release date, even if the document is subsequently
published in the Federal Register. See Declaratory Ruling, 51 FR 23059
(June 25, 1986).
Example 4: An order establishing an investigation of a tariff, and
designating issues to be resolved in the investigation, is released on
Wednesday, April 1, 1987, and is published in the Federal Register on
Friday, April 10, 1987. If the decision itself specifies Federal
[[Page 97]]
Register publication, the date of public notice is Friday, April 10,
1987. If this decision does not specify Federal Register publication,
public notice occurs on Wednesday, April 1, 1987, and the first day to
be counted in computing filing periods is Thursday, April 2, 1987.
(4) If the full text of an action document is not to be released by
the Commission, but a descriptive document entitled ``Public Notice''
describing the action is released, the date on which the descriptive
``Public Notice'' is released.
Example 5: At a public meeting the Commission considers an
uncontested application to transfer control of a broadcast station. The
Commission grants the application and does not plan to issue a full text
of its decision on the uncontested matter. Five days after the meeting,
a descriptive ``Public Notice'' announcing the action is publicly
released. The date of public notice commences on the day of the release
date.
Example 6: A Public Notice of petitions for rule making filed with
the Commission is released on Wednesday, September 2, 1987; public
notice of these petitions is given on September 2, 1987. The first day
to be counted in computing filing times is Thursday, September 3, 1987.
(5) If a document is neither published in the Federal Register nor
released, and if a descriptive document entitled ``Public Notice'' is
not released, the date appearing on the document sent (e.g., mailed,
telegraphed, etc.) to persons affected by the action.
Example 7: A Bureau grants a license to an applicant, or issues a
waiver for non-conforming operation to an existing licensee, and no
``Public Notice'' announcing the action is released. The date of public
notice commences on the day appearing on the license mailed to the
applicant or appearing on the face of the letter granting the waiver
mailed to the licensee.
(c) General Rule--Computation of Beginning Date When Action is
Initiated by Act, Event or Default. Commission procedures frequently
require the computation of a period of time where the period begins with
the occurrence of an act, event or default and terminates a specific
number of days thereafter. Unless otherwise provided, the first day to
be counted when a period of time begins with the occurrence of an act,
event or default is the day after the day on which the act, event or
default occurs.
Example 8: Commission Rule Sec. 21.39(d) requires the filing of an
application requesting consent to involuntary assignment or control of
the permit or license within thirty days after the occurrence of the
death or legal disability of the licensee or permittee. If a licensee
passes away on Sunday, March 1, 1987, the first day to be counted
pursuant to Sec. 1.4(c) is the day after the act or event. Therefore,
Monday, March 2, 1987, is the first day of the thirty day period
specified in Sec. 21.39(d).
(d) General Rule--Computation of Terminal Date. Unless otherwise
provided, when computing a period of time the last day of such period of
time is included in the computation, and any action required must be
taken on or before that day.
Example 9: Paragraph 1.4(b)(1) of this section provides that
``public notice'' in a notice and comment rule making proceeding begins
on the day of Federal Register publication. Paragraph 1.4(b) of this
section provides that the first day to be counted in computing a
terminal date is the ``day after the day'' on which public notice
occurs. Therefore, if the commission allows or requires an action to be
taken 20 days after public notice in the Federal Register, the first day
to be counted is the day after the date of the Federal Register
publication. Accordingly, if the Federal Register document is published
on Thursday, July 23, 1987, public notice is given on Thursday, July 23,
and the first day to be counted in computing a 20 day period is Friday,
July 24, 1987. The 20th day or terminal date upon which action must be
taken is Wednesday, August 12, 1987.
(e) Definitions for purposes of this section:
(1) The term holiday means Saturday, Sunday, officially recognized
federal legal holidays and any other day on which the Commission's
offices are closed and not reopened prior to 5:30 p.m. For example, a
regularly scheduled Commission business day may become a holiday if its
offices are closed prior to 5:30 p.m. due to adverse weather, emergency
or other closing.
Note: As of August 1987, officially recognized federal legal
holidays are New Year's Day, January 1; Martin Luther King's Birthday,
third Monday in January; Washington's Birthday, third Monday in
February; Memorial Day, last Monday in May; Independence Day, July 4;
Labor Day, first Monday in September; Columbus Day, second Monday in
October; Veterans Day, November 11; Thanksgiving Day, fourth Thursday in
November; Christmas Day, December 25. If a legal holiday falls on
Saturday or Sunday, the holiday is taken, respectively, on the preceding
Friday or the following Monday. In addition, January 20, (Inauguration
Day)
[[Page 98]]
following a Presidential election year is a legal holiday in the
metropolitan Washington, DC area. If Inauguration Day falls on Sunday,
the next succeeding day is a legal holiday. See 5 U.S.C. 6103; Executive
Order No. 11582, 36 FR 2957 (Feb. 11, 1971). The determination of a
``holiday'' will apply only to the specific Commission location(s)
designated as on ``holiday'' on that particular day.
(2) The term business day means all days, including days when the
Commission opens later than the time specified in Rule Sec. 0.403, which
are not ``holidays'' as defined above.
(3) The term filing period means the number of days allowed or
prescribed by statute, rule, order, notice or other Commission action
for filing any document with the Commission. It does not include any
additional days allowed for filing any document pursuant to paragraphs
(g), (h) and (j) of this section.
(4) The term filing date means the date upon which a document must
be filed after all computations of time authorized by this section have
been made.
(f) Except as provided in Sec. 0.401(b) of the Rules, all petitions,
pleadings, tariffs or other documents not required to be accompanied by
a fee and which are hand-delivered must be tendered for filing in
complete form before 5:30 p.m. in the Office of the Secretary, either in
Washington or Gettysburg, as directed by the Rules. The Secretary will
determine whether a tendered document meets the pre-5:30 deadline.
(g) Unless otherwise provided (e.g., Secs. 1.773 and 76.1502(e)(1)
of this chapter), if the filing period is less than 7 days, intermediate
holidays shall not be counted in determining the filing date.
Example 10: A reply is required to be filed within 5 days after the
filing of an opposition in a license application proceeding. The
opposition is filed on Wednesday, June 10, 1987. The first day to be
counted in computing the 5 day time period is Thursday, June 11, 1987.
Saturday and Sunday are not counted because they are holidays. The
document must be filed with the Commission on or before the following
Wednesday, June 17, 1987.
(h) If a document is required to be served upon other parties by
statute or Commission regulation and the document is in fact served by
mail (see Sec. 1.47(f)), and the filing period for a response is 10 days
or less, an additional 3 days (excluding holidays) will be allowed to
all parties in the proceeding for filing a response. This paragraph
(Sec. 1.4(h)) shall not apply to documents filed pursuant to Sec. 1.89,
Sec. 1.120(d), Sec. 1.315(b) or Sec. 1.316. For purposes of this
paragraph service by facsimile shall be deemed equivalent to hand
delivery.
Example 11: A reply to an opposition for a petition for
reconsideration must be filed within 7 days after the opposition is
filed. 47 CFR 1.106(h). The rules require that the opposition be served
on the person seeking reconsideration. 47 CFR 1.106(g). If the
opposition is served on the party seeking reconsideration by mail and
the opposition is filed with the Commission on Monday, November 9, 1987,
the first day to be counted is Tuesday, November 10, 1987 (the day after
the day on which the event occurred, Sec. 1.4(c)), and the seventh day
is Monday, November 16. An additional 3 days (excluding holidays) is
then added at the end of the 7 day period, and the reply must be filed
no later than Thursday, November 19, 1987.
Example 12: Assume that oppositions to a petition in a particular
proceeding are due 10 days after the petition is filed and must be
served on the parties to the proceeding. If the petition is filed on
October 28, 1993, the last day of the filing period for oppositions is
Sunday, November 7. If service is made by mail, the opposition is due
three days after November 7, or Wednesday, November 10.
(i) If both paragraphs (g) and (h) of this section are applicable,
make the paragraph (g) computation before the paragraph (h) computation.
Example 13: Section 1.45(b) requires the filing of replies to
oppositions within five days after the time for filing oppositions has
expired. If an opposition has been filed on the last day of the filing
period (Friday, July 10, 1987), and was served on the replying party by
mail, Sec. 1.4(i) of this section specifies that the paragraph (g)
computation should be made before the paragraph (h) computation.
Therefore, since the specified filing period is less than seven days,
paragraph (g) is applied first. The first day of the filing period is
Monday, July 13, 1987, and Friday, July 17, 1987 is the fifth day (the
intervening weekend was not counted). Paragraph (h) is then applied to
add three days for mailing (excluding holidays). That period begins on
Monday, July 20, 1987. Therefore, Wednesday, July 22, 1987, is the date
by which replies must be filed, since the intervening weekend is again
not counted.
(j) Unless otherwise provided (e.g. Sec. 76.1502(e) of this chapter)
if, after making all the computations provided for in this section, the
filing date falls on a holiday, the document shall be
[[Page 99]]
filed on the next business day. See paragraph (e)(1) of this section.
Example 14: The filing date falls on Friday, December 25, 1987. The
document is required to be filed on the next business day, which is
Monday, December 28, 1987.
(k) Where specific provisions of part 1 conflict with this section,
those specific provisions of part 1 are controlling. See,
e.g.,Secs. 1.45(d), 1.773(a)(3) and 1.773(b)(2). Additionally, where
Sec. 76.1502(e) of this chapter conflicts with this section, those
specific provisions of Sec. 76.1502 are controlling. See e.g. 47 CFR
76.1502(e).
[52 FR 49159, Dec. 30, 1987; 53 FR 44196, Nov. 2, 1988, as amended at 56
FR 40567, 40568, Aug. 15, 1991; 58 FR 17529, Apr. 5, 1993; 61 FR 11749,
Mar. 22, 1996; 62 FR 4170, Jan. 29, 1997; 62 FR 26238, May 13, 1997]
Sec. 1.5 Mailing address furnished by licensee.
(a) Each licensee shall furnish the Commission with an address to be
used by the Commission in serving documents or directing correspondence
to that licensee. Unless any licensee advises the Commission to the
contrary, the address contained in the licensee's most recent
application will be used by the Commission for this purpose.
(b) The licensee is responsible for making any arrangements which
may be necessary in his particular circumstances to assure that
Commission documents or correspondence delivered to this address will
promptly reach him or some person authorized by him to act in his
behalf.
Sec. 1.6 Availability of station logs and records for Commission
inspection.
(a) Station records and logs shall be made available for inspection
or duplication at the request of the Commission or its representative.
Such logs or records may be removed from the licensee's possession by a
Commission representative or, upon request, shall be mailed by the
licensee to the Commission by either registered mail, return receipt
requested, or certified mail, return receipt requested. The return
receipt shall be retained by the licensee as part of the station records
until such records or logs are returned to the licensee. A receipt shall
be furnished when the logs or records are removed from the licensee's
possession by a Commission representative and this receipt shall be
retained by the licensee as part of the station records until such
records or logs are returned to the licensee. When the Commission has no
further need for such records or logs, they shall be returned to the
licensee. The provisions of this rule shall apply solely to those
station logs and records which are required to be maintained by the
provisions of this chapter.
(b) Where records or logs are maintained as the official records of
a recognized law enforcement agency and the removal of the records from
the possession of the law enforcement agency will hinder its law
enforcement activities, such records will not be removed pursuant to
this section if the chief of the law enforcement agency promptly
certifies in writing to the Federal Communications Commission that
removal of the logs or records will hinder law enforcement activities of
the agency, stating insofar as feasible the basis for his decision and
the date when it can reasonably be expected that such records will be
released to the Federal Communications Commission.
Sec. 1.7 Documents are filed upon receipt.
Unless otherwise provided in this Title, by Public Notice, or by
decision of the Commission or of the Commission's staff acting on
delegated authority, pleadings and other documents are considered to be
filed with the Commission upon their receipt at the location designated
by the Commission.
[60 FR 16055, Mar. 29, 1995]
Sec. 1.8 Withdrawal of papers.
The granting of a request to dismiss or withdraw an application or a
pleading does not authorize the removal of such application or pleading
from the Commission's records.
Sec. 1.10 Transcript of testimony; copies of documents submitted.
In any matter pending before the Commission, any person submitting
data or evidence, whether acting under compulsion or voluntarily, shall
have the right to retain a copy thereof, or to procure a copy of any
document submitted by him, or of any transcript
[[Page 100]]
made of his testimony, upon payment of the charges therefor to the
person furnishing the same, which person may be designated by the
Commission. The Commission itself shall not be responsible for
furnishing the copies.
[29 FR 14406, Oct. 20, 1964]
Sec. 1.12 Notice to attorneys of Commission documents.
In any matter pending before the Commission in which an attorney has
appeared for, submitted a document on behalf of or been otherwise
designated by a person, any notice or other written communication
pertaining to that matter issued by the Commission and which is required
or permitted to be furnished to the person will be communicated to the
attorney, or to one of such attorneys if more than one is designated. If
direct communication with the party is appropriate, a copy of such
communication will be mailed to the attorney.
[29 FR 14406, Oct. 20, 1964]
Sec. 1.13 Filing of petitions for review and notices of appeals of
Commission orders.
(a)(1) This section pertains to each party filing a petition for
review in any United States court of appeals of a Commission Order,
pursuant to section 402(a) of the Communications Act, 47 U.S.C. 402(a),
and 28 U.S.C. 2342(l), that wishes to avail itself of procedures
established for selection of a court in the case of multiple appeals,
pursuant to 28 U.S.C. 2112(a). Each such party shall, within ten days
after the issuance of that order, file with the General Counsel in the
Office of General Counsel, Room 614, 1919 M Street NW., Washington, DC
20554, a copy of its petition for review as filed and date-stamped by
the court of appeals within which it was filed. Such copies of petitions
for review must be filed by 5:30 p.m. Eastern Time on the tenth day of
the filing period. A stamp indicating the time and date received by the
Office of General Counsel will constitute proof of filing. Upon receipt
of any copies of petitions for review, the Commission shall follow the
procedures established in section 28 U.S.C. 2112(a) to determine the
court in which to file the record in that case.
(2) Computation of time of the ten-day period for filing copies of
petitions for review of a Commission order shall be governed by Sec. 1.4
of the Commission's Rules, 47 CFR 1.4. The date of issuance of a
Commission order for purposes of filing copies of petitions for review
shall be the date of public notice as defined in Sec. 1.4(b), 47 CFR
1.4(b).
(b) Copies of notices of appeals filed pursuant to 47 U.S.C. 402(b)
shall be served upon the General Counsel.
Note: For administrative efficiency, the Commission requests that
any petitioner seeking judicial review of Commission actions pursuant to
47 U.S.C. 402(a) serve a copy of its petition on the General Counsel
regardless of whether it wishes to avail itself of the procedures for
multiple appeals set forth in 47 U.S.C. 2112(a).
[54 FR 12453, Mar. 27, 1989]
Sec. 1.14 Citation of Commission documents.
The appropriate reference to the FCC Record shall be included as
part of the citation to any document that has been printed in the
Record. The citation should provide the volume, page number and year, in
that order (e.g., 1 FCC Rcd. 1 (1986). Older documents may continue to
be cited to the FCC Reports, first or second series, if they were
printed in the Reports (e.g., 1 FCC 2d 1 (1965)).
[51 FR 45890, Dec. 23, 1986]
Sec. 1.16 Unsworn declarations under penalty of perjury in lieu of
affidavits.
Any document to be filed with the Federal Communications Commission
and which is required by any law, rule or other regulation of the United
States to be supported, evidenced, established or proved by a written
sworn declaration, verification, certificate, statement, oath or
affidavit by the person making the same, may be supported, evidenced,
established or proved by the unsworn declaration, certification,
verification, or statement in writing of such person, except that, such
declaration shall not be used in connection with: (a) A deposition, (b)
an oath of office, or (c) an oath required to be taken before a
specified official other than a notary public. Such
[[Page 101]]
declaration shall be subscribed by the declarant as true under penalty
of perjury, and dated, in substantially the following form:
(1) If executed without the United States:
``I declare (or certify, verify, or state) under penalty of perjury
under the laws of the United States of America that the foregoing is
true and correct. Executed on (date).
(Signature)''.
(2) If executed within the United States, its territories,
possessions, or commonwealths:
``I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date).
(Signature)''.
[48 FR 8074, Feb. 25, 1983]
Sec. 1.17 Truthful written statements and responses to Commission
inquiries and correspondence.
The Commission or its representatives may, in writing, require from
any applicant, permittee or licensee written statements of fact relevant
to a determination whether an application should be granted or denied,
or to a determination whether a license should be revoked, or to some
other matter within the jurisdiction of the Commission. No applicant,
permittee or licensee shall in any response to Commission correspondence
or inquiry or in any application, pleading, report or any other written
statement submitted to the Commission, make any misrepresentation or
willful material omission bearing on any matter within the jurisdiction
of the Commission.
Note: Section 1.17 is limited in application to written matter. It
implies no change in the Commission's existing policies respecting the
obligation of applicants, permittees and licensees in all instances to
respond truthfully to requests for information deemed necessary to the
proper execution of the Commission's functions.
[55 FR 23084, June 6, 1990]
Sec. 1.18 Administrative Dispute Resolution.
(a) The Commission has adopted an initial policy statement that
supports and encourages the use of alternative dispute resolution
procedures in its administrative proceedings and proceedings in which
the Commission is a party, including the use of regulatory negotiation
in Commission rulemaking matters, as authorized under the Administrative
Dispute Resolution Act and Negotiated Rulemaking Act.
(b) In accordance with the Commission's policy to encourage the
fullest possible use of alternative dispute resolution procedures in its
administrative proceedings, procedures contained in the Administrative
Dispute Resolution Act, including the provisions dealing with
confidentiality, shall also be applied in Commission alternative dispute
resolution proceedings in which the Commission itself is not a party to
the dispute.
[56 FR 51178, Oct. 10, 1991, as amended at 57 FR 32181, July 21, 1992]
Sec. 1.19 Use of metric units required.
Where parenthesized English units accompany metric units throughout
this chapter, and the two figures are not precisely equivalent, the
metric unit shall be considered the sole requirement; except, however,
that the use of metric paper sizes is not currently required, and
compliance with the English unit shall be considered sufficient when the
Commission form requests that data showing compliance with that
particular standard be submitted in English units.
[58 FR 44893, Aug. 25, 1993]
Parties, Practitioners, and Witnesses
Sec. 1.21 Parties.
(a) Any party may appear before the Commission and be heard in
person or by attorney.
(b) The appropriate Bureau Chief(s) of the Commission shall be
deemed to be a party to every adjudicatory proceeding (as defined in the
Administrative Procedure Act) without the necessity of being so named in
the order designating the proceeding for hearing.
(c) When, in any proceeding, a pleading is filed on behalf of either
the General Counsel or the Chief Engineer, he shall thereafter be deemed
a party to the proceeding.
(d) Except as otherwise expressly provided in this chapter, a duly
authorized
[[Page 102]]
corporate officer or employee may act for the corporation in any matter
which has not been designated for an evidentiary hearing and, in the
discretion of the presiding officer, may appear and be heard on behalf
of the corporation in an evidentiary hearing proceeding.
[28 FR 12415, Nov. 22, 1963, as amended at 37 FR 8527, Apr. 28, 1972; 44
FR 39180, July 5, 1979; 51 FR 12616, Apr. 14, 1986]
Sec. 1.22 Authority for representation.
Any person, in a representative capacity, transacting business with
the Commission, may be required to show his authority to act in such
capacity.
Sec. 1.23 Persons who may be admitted to practice.
(a) Any person who is a member in good standing of the bar of the
Supreme Court of the United States or of the highest court of any state,
territory or the District of Columbia, and who is not under any final
order of any authority having power to suspend or disbar an attorney in
the practice of law within any state, territory or the District of
Columbia that suspends, enjoins, restrains, disbars, or otherwise
restricts him or her in the practice of law, may represent others before
the Commission.
(b) When such member of the bar acting in a representative capacity
appears in person or signs a paper in practice before the Commission,
his personal appearance or signature shall constitute a representation
to the Commission that, under the provisions of this chapter and the
law, he is authorized and qualified to represent the particular party in
whose behalf he acts. Further proof of authority to act in a
representative capacity may be required.
[28 FR 12415, Nov. 22, 1963, as amended at 57 FR 38285, Aug. 24, 1992]
Sec. 1.24 Censure, suspension, or disbarment of attorneys.
(a) The Commission may censure, suspend, or disbar any person who
has practiced, is practicing or holding himself out as entitled to
practice before it if it finds that such person:
(1) Does not possess the qualifications required by Sec. 1.23;
(2) Has failed to conform to standards of ethical conduct required
of practitioners at the bar of any court of which he is a member;
(3) Is lacking in character or professional integrity; and/or
(4) Displays toward the Commission or any of its hearing officers
conduct which, if displayed toward any court of the United States or any
of its Territories or the District of Columbia, would be cause for
censure, suspension, or disbarment.
(b) Except as provided in paragraph (c) of this section, before any
member of the bar of the Commission shall be censured, suspended, or
disbarred, charges shall be preferred by the Commission against such
practitioner, and he or she shall be afforded an opportunity to be heard
thereon.
(c) Upon receipt of official notice from any authority having power
to suspend or disbar an attorney in the practice of law within any
state, territory, or the District of Columbia which demonstrates that an
attorney practicing before the Commission is subject to an order of
final suspension (not merely temporary suspension pending further
action) or disbarment by such authority, the Commission may, without any
preliminary hearing, enter an order temporarily suspending the attorney
from practice before it pending final disposition of a disciplinary
proceeding brought pursuant to Sec. 1.24(a)(2), which shall afford such
attorney an opportunity to be heard and directing the attorney to show
cause within thirty days from the date of said order why identical
discipline should not be imposed against such attorney by the
Commission.
(d) Allegations of attorney misconduct in Commission proceedings
shall be referred under seal to the Office of General Counsel. Pending
action by the General Counsel, the decision maker may proceed with the
merits of the matter but in its decision may make findings concerning
the attorney's conduct only if necessary to resolve questions concerning
an applicant and may not reach any conclusions regarding the ethical
ramifications of the attorney's conduct. The General Counsel will
determine if the allegations are substantial, and, if so,
[[Page 103]]
shall immediately notify the attorney and direct him or her to respond
to the allegations. No notice will be provided to other parties to the
proceeding. The General Counsel will then determine what further
measures are necessary to protect the integrity of the Commission's
administrative process, including but not limited to one or more of the
following:
(1) Recommending to the Commission the institution of a proceeding
under paragraph (a) of this section;
(2) Referring the matter to the appropriate State, territorial, or
District of Columbia bar; or
(3) Consulting with the Department of Justice.
[28 FR 12415, Nov. 22, 1963, as amended at 57 FR 38285, Aug. 24, 1992;
60 FR 53277, Oct. 13, 1995]
Sec. 1.25 [Reserved]
Sec. 1.26 Appearances.
Rules relating to appearances are set forth in Secs. 1.87, 1.91,
1.221, and 1.703.
Sec. 1.27 Witnesses; right to counsel.
Any individual compelled to appear in person in any Commission
proceeding may be accompanied, represented, and advised by counsel as
provided in this section. (Regulations as to persons seeking voluntarily
to appear and give evidence are set forth in Sec. 1.225.)
(a) Counsel may advise his client in confidence, either upon his own
initiative or that of the witness, before, during, and after the
conclusion of the proceeding.
(b) Counsel for the witness will be permitted to make objections on
the record, and to state briefly the basis for such objections, in
connection with any examination of his client.
(c) At the conclusion of the examination of his client, counsel may
ask clarifying questions if in the judgment of the presiding officer
such questioning is necessary or desirable in order to avoid ambiguity
or incompleteness in the responses previously given.
(d) Except as provided by paragraph (c) of this section, counsel for
the witness may not examine or cross-examine any witness, or offer
documentary evidence, unless authorized by the Commission to do so.
(5 U.S.C. 555)
[29 FR 12775, Sept. 10, 1964]
Secs. 1.28-1.29 [Reserved]
Pleadings, Briefs, and Other Papers
Sec. 1.41 Informal requests for Commission action.
Except where formal procedures are required under the provisions of
this chapter, requests for action may be submitted informally. Requests
should set forth clearly and concisely the facts relied upon, the relief
sought, the statutory and/or regulatory provisions (if any) pursuant to
which the request is filed and under which relief is sought, and the
interest of the person submitting the request.
Sec. 1.42 Applications, reports, complaints; cross-reference.
(a) Rules governing applications and reports are contained in
subparts D, E, and F of this part.
(b) Special rules governing complaints against common carriers
arising under the Communications Act are set forth in subpart E of this
part.
Sec. 1.43 Requests for stay; cross-reference.
General rules relating to requests for stay of any order or decision
are set forth in Secs. 1.41, 1.44(e), 1.45 (d) and (e), and 1.298(a).
See also Secs. 1.102, 1.106(n), and 1.115(h).
Sec. 1.44 Separate pleadings for different requests.
(a) Requests requiring action by the Commission shall not be
combined in a pleading with requests for action by an administrative law
judge or by any person or persons acting pursuant to delegated
authority.
(b) Requests requiring action by an administrative law judge shall
not be combined in a pleading with requests for action by the Commission
or by any person or persons acting pursuant to delegated authority.
(c) Requests requiring action by any person or persons pursuant to
delegated authority shall not be combined in a pleading with requests
for action by any other person or persons acting pursuant to delegated
authority.
[[Page 104]]
(d) Pleadings which combine requests in a manner prohibited by
paragraph (a), (b), or (c) of this section may be returned without
consideration to the person who filed the pleading.
(e) Any request to stay the effectiveness of any decision or order
of the Commission shall be filed as a separate pleading. Any such
request which is not filed as a separate pleading will not be considered
by the Commission.
Note: Matters which are acted on pursuant to delegated authority are
set forth in subpart B of part 0 of this chapter. Matters acted on by
the hearing examiner are set forth in Sec. 0.341.
Sec. 1.45 Pleadings; filing periods.
Except as otherwise provided in this chapter, pleadings in
Commission proceedings shall be filed in accordance with the provisions
of this section.
(a) Oppositions. Oppositions to any motion, petition, or request may
be filed within 10 days after the original pleading is filed. For
matters related to part 22 of the rules, these microfiche copies must be
filed within 15 calendar days of the paper filing (see Sec. 22.6).
(b) Replies. The person who filed the original pleading may reply to
oppositions within 5 days after the time for filing oppositions has
expired. The reply shall be limited to matters raised in the
oppositions, and the response to all such matters shall be set forth in
a single pleading; separate replies to individual oppositions shall not
be filed. For matters related to part 22 of the rules, three microfiche
copies must be filed within 15 calendar days of the paper filing (see
Sec. 22.6).
(c) Additional pleadings. Additional pleadings may be filed only if
specifically requested or authorized by the Commission.
(d) Requests for temporary relief; shorter filing periods.
Oppositions to a request for stay of any order or to a request for other
temporary relief shall be filed within 7 days after the request is
filed. Replies to oppositions should not be filed and will not be
considered. The provisions of Sec. 1.4(h) shall not apply in computing
the filing date for oppositions to a request for stay or for other
temporary relief.
(e) Ex parte disposition of certain pleadings. As a matter of
discretion, the Commission may rule ex parte upon requests for
continuances and extensions of time, requests for permission to file
pleadings in excess of the length prescribed in this chapter, and
requests for temporary relief, without waiting for the filing of
oppositions or replies.
Note: Where specific provisions contained in part 1 conflict with
this section, those specific provisions are controlling. See, in
particular, Secs. 1.294(c), 1.298(a), and 1.773.
[28 FR 12415, Nov. 22, 1963, as amended at 33 FR 7153, May 15, 1968; 45
FR 64190, Sept. 29, 1980; 54 FR 31032, July 26, 1989; 54 FR 37682, Sept.
12, 1989]
Sec. 1.46 Motions for extension of time.
(a) It is the policy of the Commission that extensions of time shall
not be routinely granted.
(b) Motions for extension of time in which to file responses to
petitions for rulemaking, replies to such responses, comments filed in
response to notice of proposed rulemaking, replies to such comments and
other papers in rulemaking proceedings conducted under subpart C of this
part shall be filed at least 7 days before the filing date. If a timely
motion is denied, the responses and comments, replies thereto, or other
papers need not be filed until 2 business days after the Commission acts
on the motion. In emergency situations, the Commission will consider a
late-filed motion for a brief extension of time related to the duration
of the emergency and will consider motions for acceptance of comments,
reply comments or other papers filed after the filing date.
(c) If a motion for extension of time in which to file papers in
proceedings other than notice and comment rule making proceedings is
filed less than 7 days prior to the day for filing the papers, the party
filing the motion shall (in addition to serving the motion on other
parties) orally notify other parties and Commission staff personnel
responsible for acting on the motion that the motion has been (or is
being) filed.
[39 FR 43301, Dec. 12, 1974, as amended at 41 FR 9550, Mar. 5, 1976; 41
FR 14871, Apr. 8, 1976; 42 FR 28887, June 6, 1977]
[[Page 105]]
Sec. 1.47 Service of documents and proof of service.
(a) Where the Commission or any person is required by statute or by
the provisions of this chapter to serve any document upon any person,
service shall (in the absence of specific provisions in this chapter to
the contrary) be made in accordance with the provisions of this section.
(b) Where any person is required to serve any document filed with
the Commission, service shall be made by that person or by his
representative on or before the day on which the document is filed:
Provided, however, That formal complaints filed under section 208 of the
Communications Act will be served by the Commission.
(c) Commission counsel who formally participate in any proceeding
shall be served in the same manner as other persons who participate in
that proceeding. The filing of a document with the Commission does not
constitute service upon Commission counsel.
(d) Documents may be served upon a party, his attorney, or other
duly constituted agent by delivering a copy or by mailing a copy to the
last known address. When a party is represented by an attorney of record
in a formal proceeding, service shall be made upon such attorney.
(e) Delivery of a copy pursuant to this section means handing it to
the party, his attorney, or other duly constituted agent; or leaving it
with the clerk or other person in charge of the office of the person
being served; or, if there is no one in charge of such office, leaving
it in a conspicuous place therein; or, if such office is closed or the
person to be served has no office, leaving it at his dwelling house or
usual place of abode with some person of suitable age and discretion
then residing therein.
(f) Service by mail is complete upon mailing.
(g) Proof of service, as provided in this section, shall be filed
before action is taken. The proof of service shall show the time and
manner of service, and may be by written acknowledgement of service, by
certificate of the person effecting the service, or by other proof
satisfactory to the Commission. Failure to make proof of service will
not affect the validity of the service. The Commission may allow the
proof to be amended or supplied at any time, unless to do so would
result in material prejudice to a party.
[28 FR 12415, Nov. 22, 1963, as amended at 40 FR 55644, Dec. 1, 1975; 53
FR 11852, Apr. 11, 1988]
Sec. 1.48 Length of pleadings.
(a) Affidavits, statements, tables of contents and summaries of
filings, and other materials which are submitted with and factually
support a pleading are not counted in determining the length of the
pleading. If other materials are submitted with a pleading, they will be
counted in determining its length; and if the length of the pleadings,
as so computed, is greater than permitted by the provisions of this
chapter, the pleading will be returned without consideration.
(b) It is the policy of the Commission that requests for permission
to file pleadings in excess of the length prescribed by the provisions
of this chapter shall not be routinely granted. Where the filing period
is 10 days or less, the request shall be made within 2 business days
after the period begins to run. Where the period is more than 10 days,
the request shall be filed at least 10 days before the filing date. (See
Sec. 1.4.) If a timely request is made, the pleading need not be filed
earlier than 2 business days after the Commission acts upon the request.
[41 FR 14871, Apr. 8, 1976, and 49 FR 40169, Oct. 15, 1984]
Sec. 1.49 Specifications as to pleadings and documents.
(a) All pleadings and documents filed in any Commission proceeding
shall be typewritten or prepared by mechanical processing methods, and
shall be filed on A4 (21 cm. x 29.7 cm.) or on 8\1/2\ x 11 inch
(21.6 cm. x 27.9 cm.) paper with the margins set so that the printed
material does not exceed 6\1/2\ x 9\1/2\ inches (16.5 cm. x 24.1
cm.). The printed material may be in any typeface of at least 12-point
(0.42333 cm. or \12/72\') in height. The body of the text must be double
spaced with a minimum distance of \7/32\ of an inch (0.5556 cm.) between
each line of text. Footnotes and long, indented quotations may be single
[[Page 106]]
spaced, but must be in type that is 12-point or larger in height, with
at least \1/16\ of an inch (0.158 cm.) between each line of text.
Counsel are cautioned against employing extended single spaced passages
or excessive footnotes to evade prescribed pleading lengths. If single-
spaced passages or footnotes are used in this manner the pleading will,
at the discretion of the Commission, either be rejected as unacceptable
for filing or dismissed with leave to be refiled in proper form.
Pleadings may be printed on both sides of the paper. Pleadings that use
only one side of the paper shall be stapled, or otherwise bound, in the
upper left-hand corner; those using both sides of the paper shall be
stapled twice, or otherwise bound, along the left-hand margin so that it
opens like a book. The foregoing shall not apply to printed briefs
specifically requested by the Commission, official publications, charted
or maps, original documents (or admissible copies thereof) offered as
exhibits, specially prepared exhibits, or if otherwise specifically
provided. All copies shall be clearly legible.
(b) Except as provided in paragraph (d) of this section, all
pleadings and documents filed with the Commission, the length of which
as computed under this chapter exceeds ten pages, shall include, as part
of the pleading or document, a table of contents with page references.
(c) Except as provided in paragraph (d) of this section, all
pleadings and documents filed with the Commission, the length of which
filings as computed under this chapter exceeds ten pages, shall include,
as part of the pleading or document, a summary of the filing, suitably
paragraphed, which should be a succinct, but accurate and clear
condensation of the substance of the filing. It should not be a mere
repetition of the headings under which the filing is arranged. For
pleadings and documents exceeding ten but not twenty-five pages in
length, the summary should seldom exceed one and never two pages; for
pleadings and documents exceeding twenty-five pages in length, the
summary should seldom exceed two and never five pages.
(d) The requirements of paragraphs (b) and (c) of this section shall
not apply to:
(1) Interrogatories or answers to interrogatories, and depositions;
(2) FCC forms or applications;
(3) Transcripts;
(4) Contracts and reports;
(5) Letters; or
(6) Hearing exhibits, and exhibits or appendicies accompanying any
document or pleading submitted to the Commission.
(e) In addition to the provisions above, pleadings related to Part
22 of the rules, must also be submitted on microfiche. See Sec. 22.6 for
specifications.
Note: The table of contents and the summary pages shall not be
included in complying with any page limitation requirements as set forth
by Commission rule.
[40 FR 19198, May 2, 1975, as amended at 47 FR 26393, June 18, 1982; 51
FR 16322, May 2, 1986; 54 FR 31032, July 26, 1989; 58 FR 44893, Aug. 25,
1993; 59 FR 37721, July 25, 1994]
Sec. 1.50 Specifications as to briefs.
The Commission's preference is for briefs that are typewritten or
prepared by mechanical processing methods. Printed briefs will be
accepted only if specifically requested by the Commission. Typewritten
or mechanically produced briefs must conform to all of the
specifications for pleadings and documents set forth in Sec. 1.49.
[59 FR 37721, July 25, 1994]
Sec. 1.51 Number of copies of pleadings, briefs and other papers.
Except as otherwise specifically provided in the Commission's rules
and regulations, the number of copies of pleadings, briefs, and other
papers to be filed is as follows:
(a) In hearing proceedings, the following number of copies shall be
filed:
(1) If the paper filed relates to a matter to be acted upon by the
presiding officer or the Chief Administrative Law Judge, an original and
6 copies shall be filed.
(2) If the paper filed relates to matters to be acted on by the
Commission, an original and 14 copies shall be filed.
[[Page 107]]
(3) If more than one person presided (is presiding) at the hearing
an additional copy shall be filed for each such additional person.
(b) In rulemaking proceedings which have not been designated for
hearing, see section 1.419 of this chapter.
(c) In matters other than rule making and hearing cases, the
following number of copies shall be filed:
(1) If the paper filed relates to matters to be acted on by the
Commission, an original and 4 copies shall be filed. If the matter
relates to Part 22 of the rules, see Sec. 22.6.
(2) If the paper filed related to matters to be acted on by staff
officials under delegated authority, an original and 4 copies shall be
filed. If the matter relates to Part 22 of the rules, see Sec. 22.6.
(d) Where statute or regulation provides for service by the
Commission of papers filed with the Commission, an additional copy of
such papers shall be filed for each person to be served.
(e) The parties to any proceeding may, on notice, be required to
file additional copies of any or all papers filed in that proceeding.
(Secs. 4, 303, 48 Stat., as amended, 1066, 1082; (47 U.S.C. 154, 303))
[40 FR 48136, Oct. 14, 1975, as amended at 41 FR 50399, Nov. 16, 1976;
45 FR 64190, Sept. 29, 1980; 45 FR 79486, Dec. 1, 1980; 50 FR 26567,
June 27, 1985; 54 FR 29037, July 11, 1989; 54 FR 31032, July 26, 1989;
62 FR 4170, Jan. 29, 1997]
Sec. 1.52 Subscription and verification.
The original of all petitions, motions, pleadings, briefs, and other
documents filed by any party represented by counsel shall be signed by
at least one attorney of record in his individual name, whose address
shall be stated. A party who is not represented by an attorney shall
sign and verify the document and state his address. Either the original
document, or an electronic reproduction of such original document
containing the facsimile signature of the attorney or unrepresented
party is acceptable for filing. If a facsimile copy of a document is
filed, the signatory shall retain the original until the Commission's
decision is final and no longer subject to judicial review. Except when
otherwise specifically provided by rule or statute, documents signed by
the attorney for a party need not be verified or accompanied by
affidavit. The signature or electronic reproduction thereof by an
attorney constitutes a certificate by him that he has read the document;
that to the best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay. If the
original of a document is not signed or is signed with intent to defeat
the purpose of this section, or an electronic reproduction does not
contain a facsimile signature, it may be stricken as sham and false, and
the matter may proceed as though the document had not been filed. An
attorney may be subjected to appropriate disciplinary action, pursuant
to Sec. 1.24, for a willful violation of this rule or if scandalous or
indecent matter is inserted.
[50 FR 19360, May 8, 1985]
General Application Procedures
Sec. 1.61 Procedures for handling applications requiring special
aeronautical study.
(a) Antenna Structure Registration is conducted by the Wireless
Telecommunications Bureau as follows:
(1) Each antenna structure owner that must notify the FAA of
proposed construction using FAA Form 7460-1 shall, upon proposing new or
modified construction, register that antenna structure with the Wireless
Telecommunications Bureau using FCC Form 854.
(2) If an Environmental Assessment is required under Sec. 1.1307,
the Bureau will address the environmental concerns prior to processing
the registration.
(3) If a final FAA determination of ``no hazard'' is not submitted
along with FCC Form 854, processing of the registration may be delayed
or disapproved.
(4) If the owner of the antenna structure cannot file FCC Form 854
because it is subject to a denial of federal benefits under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. 862, the first licensee authorized to
locate on the structure must register the structure using FCC Form 854,
and provide a copy of the Antenna Structure Registration (FCC
[[Page 108]]
Form 854R) to the owner. The owner remains responsible for providing a
copy of FCC Form 854R to all tenant licensees on the structure and for
posting the registration number as required by Sec. 17.4(g) of this
chapter.
(5) Upon receipt of FCC Form 854, and attached final FAA
determination of ``no hazard,'' the Bureau prescribes antenna structure
painting and/or lighting specifications or other conditions in
accordance with the FAA airspace recommendation and returns a completed
Antenna Structure Registration (FCC Form 854R) to the registrant. If the
proposed structure is disapproved the registrant is so advised.
(b) Each operating Bureau or Office examines the applications for
Commission authorization for which it is responsible to ensure
compliance with FAA notification procedures as well as Commission
Antenna Structure Registration as follows:
(1) If Antenna Structure Registration is required, the operating
Bureau reviews the application for the Antenna Structure Registration
Number and proceeds as follows:
(i) If the application contains the Antenna Structure Registration
Number or if the applicant seeks a Cellular or PCS system authorization,
the operating Bureau processes the application.
(ii) If the application does not contain the Antenna Structure
Registration Number, but the structure owner has already filed FCC Form
854, the operating Bureau places the application on hold until
Registration can be confirmed, so long as the owner exhibits due
diligence in filing.
(iii) If the application does not contain the Antenna Structure
Registration Number, and the structure owner has not filed FCC Form 854,
the operating Bureau notifies the applicant that FCC Form 854 must be
filed and places the application on hold until Registration can be
confirmed, so long as the owner exhibits due diligence in filing.
(2) If Antenna Structure Registration is not required, the operating
Bureau processes the application.
(c) Where one or more antenna farm areas have been designated for a
community or communities (see Sec. 17.9 of this chapter), an application
proposing the erection of an antenna structure over 1,000 feet in height
above ground to serve such community or communities will not be accepted
for filing unless:
(1) It is proposed to locate the antenna structure in a designated
antenna farm area, or
(2) It is accompanied by a statement from the Federal Aviation
Administration that the proposed structure will not constitute a menace
to air navigation, or
(3) It is accompanied by a request for waiver setting forth reasons
sufficient, if true, to justify such a waiver.
Note: By Commission Order (FCC 65-455), 30 FR 7419, June 5, 1965,
the Commission issued the following policy statement concerning the
height of radio and television antenna towers:
``We have concluded that this objective can best be achieved by adopting
the following policy: Applications for antenna towers higher than 2,000
feet above ground will be presumed to be inconsistent with the public
interest, and the applicant will have a burden of overcoming that strong
presumption. The applicant must accompany its application with a
detailed showing directed to meeting this burden. Only in the
exceptional case, where the Commission concludes that a clear and
compelling showing has been made that there are public interest reasons
requiring a tower higher than 2,000 feet above ground, and after the
parties have complied with applicable FAA procedures, and full
Commission coordination with FAA on the question of menace to air
navigation, will a grant be made. Applicants and parties in interest
will, of course, be afforded their statutory hearing rights.''
[28 FR 12415, Nov. 22, 1963, as amended at 32 FR 8813, June 21, 1967; 32
FR 20860, Dec. 28, 1967; 34 FR 6481, Apr. 15, 1969; 45 FR 55201, Aug.
19, 1980; 58 FR 13021, Mar. 9, 1993, 61 FR 4361, Feb. 6, 1996]
Sec. 1.62 Operation pending action on renewal application.
(a)(1) Where there is pending before the Commission at the time of
expiration of license any proper and timely application for renewal of
license with respect to any activity of a continuing nature, in
accordance with the provisions of section 9(b) of the Administrative
Procedure Act, such license shall continue in effect without further
action by the Commission until such time as the Commission shall make a
final determination with respect to the
[[Page 109]]
renewal application. No operation by any licensee under this section
shall be construed as a finding by the Commission that the operation
will serve the public interest, convenience, or necessity, nor shall
such operation in any way affect or limit the action of the Commission
with respect to any pending application or proceeding.
(2) A licensee operating by virtue of this paragraph shall, after
the date of expiration specified in the license, post, in addition to
the original license, any acknowledgment received from the Commission
that the renewal application has been accepted for filing or a signed
copy of the application for renewal of license which has been submitted
by the licensee, or in services other than broadcast and common carrier,
a statement certifying that the licensee has mailed or filed a renewal
application, specifying the date of mailing or filing.
(b) Where there is pending before the Commission at the time of
expiration of license any proper and timely application for renewal or
extension of the term of a license with respect to any activity not of a
continuing nature, the Commission may in its discretion grant a
temporary extension of such license pending determination of such
application. No such temporary extension shall be construed as a finding
by the Commission that the operation of any radio station thereunder
will serve the public interest, convenience, or necessity beyond the
express terms of such temporary extension of license, nor shall such
temporary extension in any way affect or limit the action of the
Commission with respect to any pending application or proceeding.
(c) Except where an instrument of authorization clearly states on
its face that it relates to an activity not of a continuing nature, or
where the non-continuing nature is otherwise clearly apparent upon the
face of the authorization, all licenses issued by the Commission shall
be deemed to be related to an activity of a continuing nature.
(5 U.S.C. 558)
Sec. 1.65 Substantial and significant changes in information furnished
by applicants to the Commission.
(a) Each applicant is responsible for the continuing accuracy and
completeness of information furnished in a pending application or in
Commission proceedings involving a pending application. Except where
paragraph (b) of this section applies, whenever the information
furnished in the pending application is no longer substantially accurate
and complete in all significant respects, the applicant shall as
promptly as possible and in any event within 30 days, unless good cause
is shown, amend or request the amendment of his application so as to
furnish such additional or corrected information as may be appropriate.
Except where paragraph (b) of this section applies, whenever there has
been a substantial change as to any other matter which may be of
decisional significance in a Commission proceeding involving the pending
application, the applicant shall as promptly as possible and in any
event within 30 days, unless good cause is shown, submit a statement
furnishing such additional or corrected information as may be
appropriate, which shall be served upon parties of record in accordance
with Sec. 1.47. Where the matter is before any court for review,
statements and requests to amend shall in addition be served upon the
Commission's General Counsel. For the purposes of this section, an
application is ``pending'' before the Commission from the time it is
accepted for filing by the Commission until a Commission grant or denial
of the application is no longer subject to reconsideration by the
Commission or to review by any court.
(b) Changes in information relating to Sec. 1.1622, lottery
preferences, must be furnished to the Commission no more than 7 days
after the changes occur until: (1) In the case of a non-mutually
exclusive application, the Commission releases the Public Notice
proposing the application for grant; or (2) in the case of a mutually
exclusive application, the Commission releases the final
[[Page 110]]
Public Notice announcing the acceptance of the last-filed mutually
exclusive application.
(c) All broadcast permittees and licensees must report annually to
the Commission any adverse finding or adverse final action taken by any
court or administrative body that involves conduct bearing on the
permittee's or licensee's character qualifications and that would be
reportable in connection with an application for renewal as reflected in
the renewal form. If a report is required by this paragraph(s), it shall
be filed on the anniversary of the date that the licensee's renewal
application is required to be filed, except that licensees owning
multiple stations with different anniversary dates need file only one
report per year on the anniversary of their choice, provided that their
reports are not more than one year apart. Permittees and licensees bear
the obligation to make diligent, good faith efforts to become
knowledgeable of any such reportable adjudicated misconduct.
Note: The terms adverse finding and adverse final action as used in
paragraph (c) of this section include adjudications made by an ultimate
trier of fact, whether a government agency or court, but do not include
factual determinations which are subject to review de novo unless the
time for taking such review has expired under the relevant procedural
rules. The pendency of an appeal of an adverse finding or adverse final
action does not relieve a permittee or licensee from its obligation to
report the finding or action.
[48 FR 27200, June 13, 1983, as amended at 55 FR 23084, June 6, 1990; 56
FR 25635, June 5, 1991; 56 FR 44009, Sept. 6, 1991; 57 FR 47412, Oct.
16, 1992]
Sec. 1.68 Action on application for license to cover construction
permit.
(a) An application for license by the lawful holder of a
construction permit will be granted without hearing where the
Commission, upon examination of such application, finds that all the
terms, conditions, and obligations set forth in the application and
permit have been fully met, and that no cause or circumstance arising or
first coming to the knowledge of the Commission since the granting of
the permit would, in the judgment of the Commission, make the operation
of such station against the public interest.
(b) In the event the Commission is unable to make the findings in
paragraph (a) of this section, the Commission will designate the
application for hearing upon specified issues.
(Sec. 319, 48 Stat. 1089, as amended; 47 U.S.C. 319)
Sec. 1.77 Detailed application procedures; cross references.
The application procedures set forth in Secs. 1.61 through 1.68 are
general in nature. More detailed procedures are set forth in this
chapter as follows:
(a) Rules governing applications for authorizations in the Broadcast
Radio Services are set forth in subpart D of this part.
(b) Rules governing applications for authorizations in the Common
Carrier Radio Services are set forth in subpart E of this part.
(c) Rules governing applications for authorizations in the Private
Radio Services are set forth in subpart F of this part.
(d) Rules governing applications for authorizations in the
Experimental Radio Services (other than broadcast) are set forth in part
5 of this chapter.
(e) Rules governing applications for authorizations in the Domestic
Public Radio Services are set forth in part 21 of this chapter.
(f) Rules governing applications for authorizations in the
Industrial, Scientific, and Medical Service are set forth in part 18 of
this chapter.
(g) Rules governing applications for type approval and type
acceptance of equipment are set forth in part 2, subpart F, of this
chapter.
(h) Rules governing applications for commercial radio operator
licenses are set forth in part 13 of this chapter.
(i) Rules governing applications for authorizations in the Common
Carrier and Private Radio terrestrial microwave services and Local
Multipoint Distribution Services are set out in part 101 of this
chapter.
[28 FR 12415, Nov. 22, 1963, as amended at 44 FR 39180, July 5, 1979; 47
FR 53378, Nov. 26, 1982; 61 FR 26670, May 28, 1996; 62 FR 23162, Apr.
29, 1997]
[[Page 111]]
Miscellaneous Proceedings
Sec. 1.80 Forfeiture proceedings.
(a) Persons against whom and violations for which a forfeiture may
be assessed. A forfeiture penalty may be assessed against any person
found to have:
(1) Willfully or repeatedly failed to comply substantially with the
terms and conditions of any license, permit, certificate, or other
instrument of authorization issued by the Commission;
(2) Willfully or repeatedly failed to comply with any of the
provisions of the Communications Act of 1934, as amended; or of any
rule, regulation or order issued by the Commission under that Act or
under any treaty, convention, or other agreement to which the United
States is a party and which is binding on the United States;
(3) Violated any provision of section 317(c) or 508(a) of the
Communications Act; or
(4) Violated any provision of section 1304, 1343, or 1464 of Title
18, United States Code.
A forfeiture penalty assessed under this section is in addition to any
other penalty provided for by the Communications Act, except that the
penalties provided for in paragraphs (b)(1), (b)(2) and (b)(3) of this
section shall not apply to conduct which is subject to a forfeiture
penalty under sections 202(c), 203(e), 205(b), 214(d), 219(b), 220(d),
223(b), 362(a), 362(b), 386(a), 386(b), 503(b), 506, and 634 of the
Communications Act. The remaining provisions of this section are
applicable to such conduct.
(b) Limits on the amount of forfeiture assessed. (1) If the violator
is a broadcast station licensee or permittee, a cable television
operator, or an applicant for any broadcast or cable television operator
license, permit, certificate, or other instrument of authorization
issued by the Commission, except as otherwise noted in this paragraph,
the forfeiture penalty under this section shall not exceed $27,500 for
each violation or each day of a continuing violation, except that the
amount assessed for any continuing violation shall not exceed a total of
$275,000 for any single act or failure to act described in paragraph (a)
of this section. There is no limit on forfeiture assessments for EEO
violations by cable operators that occur after notification by the
Commission of a potential violation. See section 634(f)(2) of the
Communications Act.
(2) If the violator is a common carrier subject to the provisions of
the Communications Act or an applicant for any common carrier license,
permit, certificate, or other instrument of authorization issued by the
Commission, the amount of any forfeiture penalty determined under this
section shall not exceed $110,000 for each violation or each day of a
continuing violation, except that the amount assessed for any continuing
violation shall not exceed a total of $1,100,000 for any single act or
failure to act described in paragraph (a) of this section.
(3) In any case not covered in paragraphs (b)(1) or (b)(2) of this
section, the amount of any forfeiture penalty determined under this
section shall not exceed $11,000 for each violation or each day of a
continuing violation, except that the amount assessed for any continuing
violation shall not exceed a total of $82,500 for any single act or
failure to act described in paragraph (a) of this section.
Note: For information concerning notices of apparent liability and
notices of opportunity for hearing, see paragraphs (e), (f), and (g) of
this section.
(4) Factors considered in determining the amount of the forfeiture
penalty. In determining the amount of the forfeiture penalty, the
Commission or its designee will take into account the nature,
circumstances, extent and gravity of the violations and, with respect to
the violator, the degree of culpability, any history of prior offenses,
ability to pay, and such other matters as justice may require.
Note to paragraph (b)(4):
Guidelines for Assessing Forfeitures
The Commission and its staff may use these guidelines in particular
cases. The Commission and its staff retain the discretion to issue a
higher or lower forfeiture than provided in the guidelines, to issue no
forfeiture at all, or to apply alternative or additional sanctions as
permitted by the statute. The forfeiture ceiling per violation or per
day for a continuing violation stated
[[Page 112]]
in Section 503 of the Communications Act and the Commission's Rules are
$25,000 for broadcasters and cable operators or applicants, $100,000 for
common carriers or applicants, and $10,000 for all others. These base
amounts listed are for a single violation or single day of a continuing
violation. 47 U.S.C. 503(b)(2); 47 CFR 1.80. For continuing violations
involving a single act or failure to act, the statute limits the
forfeiture to $250,000 for broadcasters and cable operators or
applicants, $1,000,000 for common carriers or applicants, and $75,000
for all others. Id. Pursuant to the Debt Collection Improvement Act of
1996 (DCIA), Public Law 104-134, section 31001, 110 Stat. 1321 (1996),
civil monetary penalties assessed by the federal government, whether set
by statutory maxima or specific dollar amounts as provided by federal
law, must be adjusted for inflation at least every four years based on
the formula outlined in the DCIA. Thus, the statutory maxima increased
to $27,500 for broadcasters and cable operators or applicants; $110,000
for common carriers or applicants, and $11,000 for others. For
continuing violations, the statutory maxima increased to $27,500 for
broadcasters, cable operators, or applicants; $1,100,000 for common
carriers or applicants; and $82,500 for others. The increased statutory
maxima became effective March 5, 1997. There is an upward adjustment
factor for repeated or continuous violations, see Section II, infra.
That upward adjustment is not necessarily applied on a per violation or
per day basis. Id. Unless Commission authorization is required for the
behavior involved, a Section 503 forfeiture proceeding against a non-
licensee or non-applicant who is not a cable operator or common carrier
can only be initiated for a second violation, after issuance of a
citation in connection with a first violation. 47 U.S.C. 503(b)(5). A
prior citation is not required, however, for non-licensee tower owners
who have previously received notice of the obligations imposed by
Section 303(q) and part 17 of the Commission's rules from the
Commission. Forfeitures issued under other sections of the Act are dealt
with separately in Section III of this note.
Section I.--Base Amounts for Section 503 Forfeitures
------------------------------------------------------------------------
Violation
Forfeitures Amount
------------------------------------------------------------------------
Misrepresentation/lack of candor............................. (\1\)
Construction and/or operation without an instrument of
authorization for the service............................... $10,000
Failure to comply with prescribed lighting and/or marking.... 10,000
Violation of public file rules............................... 10,000
Violation of political rules: reasonable access, lowest unit
charge, equal opportunity, and discrimination............... 9,000
Unauthorized substantial transfer of control................. 8,000
Violation of children's television commercialization or
programming requirements.................................... 8,000
Violations of rules relating to distress and safety
frequencies................................................. 8,000
False distress communications................................ 8,000
EAS equipment not installed or operational................... 8,000
Alien ownership violation.................................... 8,000
Failure to permit inspection................................. 7,000
Transmission of indecent/obscene materials................... 7,000
Interference................................................. 7,000
Importation or marketing of unauthorized equipment........... 7,000
Exceeding of authorized antenna height....................... 5,000
Fraud by wire, radio or television........................... 5,000
Unauthorized discontinuance of service....................... 5,000
Use of unauthorized equipment................................ 5,000
Exceeding power limits....................................... 4,000
Failure to respond to Commission communications.............. 4,000
Violation of sponsorship ID requirements..................... 4,000
Unauthorized emissions....................................... 4,000
Using unauthorized frequency................................. 4,000
Failure to engage in required frequency coordination......... 4,000
Construction or operation at unauthorized location........... 4,000
Violation of requirements pertaining to broadcasting of
lotteries or contests....................................... 4,000
Violation of transmitter control and metering requirements... 3,000
Failure to file required forms or information................ 3,000
Failure to make required measurements or conduct required
monitoring.................................................. 2,000
Failure to provide station ID................................ 1,000
Unauthorized pro forma transfer of control................... 1,000
Failure to maintain required records......................... 1,000
------------------------------------------------------------------------
\1\ Statutory Maximum for each Service.
Violations Unique to the Service
------------------------------------------------------------------------
Violation Services affected Amount
------------------------------------------------------------------------
Unauthorized conversion of long Common Carrier......... $40,000
distance telephone service.
Violation of operator services Common Carrier......... 7,000
requirements.
Violation of pay-per-call Common Carrier......... 7,000
requirements.
Failure to implement rate reduction Cable.................. 7,500
or refund order.
Violation of cable program access Cable.................. 7,500
rules.
Violation of cable leased access Cable.................. 7,500
rules.
Violation of cable cross-ownership Cable.................. 7,500
rules.
Violation of cable broadcast carriage Cable.................. 7,500
rules.
Violation of pole attachment rules... Cable.................. 7,500
Failure to maintain directional Broadcast.............. 7,000
pattern within prescribed parameters.
Violation of main studio rule........ Broadcast.............. 7,000
Violation of broadcast hoax rule..... Broadcast.............. 7,000
AM tower fencing..................... Broadcast.............. 7,000
Broadcasting telephone conversations Broadcast.............. 4,000
without authorization.
[[Page 113]]
Violation of enhanced underwriting Broadcast.............. 2,000
requirements.
------------------------------------------------------------------------
Section II. Adjustment Criteria for Section 503 Forfeitures
Upward Adjustment Criteria
(1) Egregious misconduct.
(2) Ability to pay/relative disincentive.
(3) Intentional violation.
(4) Substantial harm.
(5) Prior violations of any FCC requirements.
(6) Substantial economic gain.
(7) Repeated or continuous violation.
Downward Adjustment Criteria
(1) Minor violation.
(2) Good faith or voluntary disclosure.
(3) History of overall compliance.
(4) Inability to pay.
Section III. Non-Section 503 Forfeitures That Are Affected by the
Downward Adjustment Factors
Unlike Section 503 of the Act, which establishes maximum forfeiture
amounts, other sections of the Act, with one exception, state prescribed
amounts of forfeitures for violations of the relevant section. These
amounts are then subject to mitigation or remission under Section 504 of
the Act. The one exception is Section 223 of the Act, which provides a
maximum of $50,000 per day. For convenience, the Commission will treat
the $50,000 set forth in Section 223 as if it were a prescribed base
amount, subject to downward adjustments. The following amounts were
adjusted for inflation pursuant to the Debt Collection Improvement Act
of 1996 (DCIA) Public Law 104-134, section 31001, 110 Stat 1321 (1996).
The new amounts became effective on March 5, 1997. These non-Section 503
forfeitures may be adjusted downward using the ``Downward Adjustment
Criteria'' shown for Section 503 forfeitures in Section II of this note.
------------------------------------------------------------------------
Statutory
Violation amount ($)
------------------------------------------------------------------------
Sec. 202(c) Common Carrier Discrimination.................. 6,600 330/
day
Sec. 203(e) Common Carrier Tariffs......................... 6,600 330/
day
Sec. 205(b) Common Carrier Prescriptions................... 13,200
Sec. 214(d) Common Carrier Line Extensions................. 1,200/day
Sec. 219(b) Common Carrier Reports......................... 1,200
Sec. 220(d) Common Carrier Records & Accounts.............. 6,600/day
Sec. 223(b) Dial-a-Porn.................................... 55,000
maximum/day
Sec. 364(a) Ship Station Inspection........................ 5,500
(owner)
Sec. 364(b) Ship Station Inspection........................ 1,100
(vessel
master)
Sec. 386(a) Forfeitures.................................... 5,500/day
(owner)
Sec. 386(b) Forfeitures.................................... 1,100
(vessel
master)
Sec. 634 Cable EEO......................................... 500/day
------------------------------------------------------------------------
(5) Inflation adjustments to the maximum forfeiture amount. (i)
Pursuant to the Debt Collection Improvement Act of 1996, Public Law 104-
134 (110 Stat. 1321-358), which amends the Federal Civil Monetary
Penalty Inflation Adjustment Act of 1990, Public Law 101-410 (104 Stat.
890; 28 U.S.C. 2461 note), the statutory maximum amount of a forfeiture
penalty assessed under this section shall be adjusted for inflation at
least once every four years using the following formula. First, obtain
the inflation factor by dividing the CPI for June of the preceding year
by the CPI for June of the year the forfeiture was last set or adjusted.
Then, multiply the inflation factor by the statutory maximum amount.
Round off this result using the rules in paragraph (b)(5)(ii) of this
section. Add the rounded result to the statutory maximum forfeiture
penalty amount. The sum is the statutory maximum amount, adjusted for
inflation.
(ii) The rounding rules are as follows:
(A) Round increase to the nearest multiple of $10 if the penalty is
from $0 to $100;
(B) Round increase to the nearest multiple of $100 if the penalty is
from $101 to $1,000;
(C) Round increase to the nearest multiple of $1,000 if the penalty
is from $1,001 to $10,000;
(D) Round increase to the nearest multiple of $5,000 if the penalty
is from $10,001 to $100,000;
(E) Round increase to the nearest multiple of $10,000 if the penalty
is from $100,001 to $200,000; or
(F) Round increase to the nearest multiple of $25,000 if the penalty
is over $200,001.
(iii) The first application of the inflation adjustments required by
Public Law 104-134 results in the following adjustments to the statutory
forfeitures
[[Page 114]]
currently authorized by the Communications Act:
------------------------------------------------------------------------
Maximum
Current penalty
statutory after
U.S. Code citation maximum Public Law
penalty 104-134
adjustment
------------------------------------------------------------------------
47 USC 202(c)................................. $6,000 $6,600
300 330
47 USC 203(e)................................. 6,000 6,600
300 330
47 USC 205(b)................................. 12,000 13,200
47 USC 214(d)................................. 1,200 1,200
47 USC 219(b)................................. 1,200 1,200
47 USC 220(d)................................. 6,000 6,600
47 USC 223(b)................................. 50,000 55,000
47 USC 362(a)................................. 5,000 5,500
47 USC 362(b)................................. 1,000 1,100
47 USC 386(a)................................. 5,000 5,500
47 USC 386(b)................................. 1,000 1,100
47 USC 503(b)(2)(A)........................... 25,000 27,500
250,000 275,000
47 USC 503(b)(2)(B)........................... 100,000 110,000
1,000,000 1,100,000
47 USC 503(b)(2)(C)........................... 10,000 11,000
75,000 82,500
47 USC 506(a)................................. 500 550
47 USC 506(b)................................. 100 110
47 USC 554.................................... 500 500
------------------------------------------------------------------------
Note: Pursuant to Public Law 104-134, the first inflation adjustment
cannot exceed 10 percent of the statutory maximum amount.
(c) Limits on the time when a proceeding may be initiated. (1) In
the case of a broadcast station, no forfeiture penalty shall be imposed
if the violation occurred more than 1 year prior to the issuance of the
appropriate notice or prior to the date of commencement of the current
license term, whichever is earlier. For purposes of this paragraph,
``date of commencement of the current license term'' means the date of
commencement of the last term of license for which the licensee has been
granted a license by the Commission. A separate license term shall not
be deemed to have commenced as a result of continuing a license in
effect under section 307(c) pending decision on an application for
renewal of the license.
(2) In the case of a forfeiture imposed against a carrier under
sections 202(c), 203(e), and 220(d), no forfeiture will be imposed if
the violation occurred more than 5 years prior to the issuance of a
notice of apparent liability.
(3) In all other cases, no penalty shall be imposed if the violation
occurred more than 1 year prior to the date on which the appropriate
notice is issued.
(d) Preliminary procedure in some cases; citations. No forfeiture
penalty shall be imposed upon any person under this section, if such
person does not hold a license, permit, certificate, or other
authorization issued by the Commission, and if such person is not an
applicant for a license, permit, certificate, or other authorization
issued by the Commission, unless, prior to the issuance of the
appropriate notice, such person: (1) Is sent a citation reciting the
violation charged; (2) is given a reasonable opportunity (usually 30
days) to request a personal interview with a Commission official, at the
field office which is nearest to such person's place of residence; and
(3) subsequently engages in conduct of the type described in the
citation. However, a forfeiture penalty may be imposed, if such person
is engaged in (and the violation relates to) activities for which a
license, permit, certificate, or other authorization is required or if
such person is a cable television operator, or in the case of violations
of section 303(q), if the person involved is a nonlicensee tower owner
who has previously received notice of the obligations imposed by section
303(q) from the Commission or the permittee or licensee who uses that
tower. Paragraph (c) of this section does not limit the issuance of
citations. When the requirements of this paragraph have been satisfied
with respect to a particular violation by a particular person, a
forfeiture penalty may be imposed upon such person for conduct of the
type described in the citation without issuance of an additional
citation.
(e) Alternative procedures. In the discretion of the Commission, a
forfeiture proceeding may be initiated either: (1) By issuing a notice
of apparent liability, in accordance with paragraph (f) of this section,
or (2) a notice of opportunity for hearing, in accordance with paragraph
(g).
(f) Notice of apparent liability. Before imposing a forfeiture
penalty under the provisions of this paragraph, the Commission or its
designee will issue a written notice of apparent liability.
(1) Content of notice. The notice of apparent liability will:
(i) Identify each specific provision, term, or condition of any act,
rule, regulation, order, treaty, convention, or other agreement,
license, permit, certificate, or instrument of authorization
[[Page 115]]
which the respondent has apparently violated or with which he has failed
to comply,
(ii) Set forth the nature of the act or omission charged against the
respondent and the facts upon which such charge is based,
(iii) State the date(s) on which such conduct occurred, and
(iv) Specify the amount of the apparent forfeiture penalty.
(2) Delivery. The notice of apparent liability will be sent to the
respondent, by certified mail, at his last known address (see Sec. 1.5).
(3) Response. The respondent will be afforded a reasonable period of
time (usually 30 days from the date of the notice) to show, in writing,
why a forfeiture penalty should not be imposed or should be reduced, or
to pay the forfeiture. Any showing as to why the forfeiture should not
be imposed or should be reduced shall include a detailed factual
statement and such documentation and affidavits as may be pertinent.
(4) Forfeiture order. If the proposed forfeiture penalty is not paid
in full in response to the notice of apparent liability, the Commission,
upon considering all relevant information available to it, will issue an
order canceling or reducing the proposed forfeiture or requiring that it
be paid in full and stating the date by which the forfeiture must be
paid.
(5) Judicial enforcement of forfeiture order. If the forfeiture is
not paid, the case will be referred to the Department of Justice for
collection under section 504(a) of the Communications Act.
(g) Notice of opportunity for hearing. The procedures set out in
this paragraph will ordinarily be followed only when a hearing is being
held for some reason other than the assessment of a forfeiture (such as,
to determine whether a renewal application should be granted) and a
forfeiture is to be considered as an alternative or in addition to any
other Commission action. However, these procedures may be followed
whenever the Commission, in its discretion, determines that they will
better serve the ends of justice.
(1) Before imposing a forfeiture penalty under the provisions of
this paragraph, the Commission will issue a notice of opportunity for
hearing. The hearing will be a full evidentiary hearing before an
administrative law judge, conducted under procedures set out in subpart
B of this part, including procedures for appeal and review of initial
decisions. A final Commission order assessing a forfeiture under the
provisions of this paragraph is subject to judicial review under section
402(a) of the Communications Act.
(2) If, after a forfeiture penalty is imposed and not appealed or
after a court enters final judgment in favor of the Commission, the
forfeiture is not paid, the Commission will refer the matter to the
Department of Justice for collection. In an action to recover the
forfeiture, the validity and appropriateness of the order imposing the
forfeiture are not subject to review.
(3) Where the possible assessment of a forfeiture is an issue in a
hearing case to determine which pending application should be granted,
and the applicant facing a potential forfeiture is dismissed pursuant to
a settlement agreement or otherwise, and the presiding judge has not
made a determination on the forfeiture issue, the order of dismissal
shall be forwarded to the attention of the full Commission. Within the
time provided by Sec. 1.117, the Commission may, on its own motion,
proceed with a determination of whether a forfeiture against the
dismissing applicant is warranted. If the Commission so proceeds, it
will provide the applicant with a reasonable opportunity to respond to
the forfeiture issue (see paragraph (f)(3) of this section) and make a
determination under the procedures outlined in paragraph (f) of this
section.
(h) Payment. The forfeiture should be paid by check or money order
drawn to the order of the Federal Communications Commission. The
Commission does not accept responsibility for cash payments sent through
the mails. The check or money order should be mailed to: Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
(i) Remission and mitigation. In its discretion, the Commission, or
its designee, may remit or reduce any forfeiture imposed under this
section. After issuance of a forfeiture order, any request that it do so
shall be submitted
[[Page 116]]
as a petition for reconsideration pursuant to Sec. 1.106.
(j) Effective date. Amendments to paragraph (b) of this section
implementing Pub. L. No. 101-239 are effective December 19, 1989.
[43 FR 49308, Oct. 23, 1978, as amended at 48 FR 15631, Apr. 12, 1983;
50 FR 40855, Oct. 7, 1985; 55 FR 25605, June 22, 1990; 56 FR 25638, June
5, 1991; 57 FR 23161, June 2, 1992; 57 FR 47006, Oct. 14, 1992; 57 FR
48333, Oct. 23, 1992; 58 FR 6896, Feb. 3, 1993; 58 FR 27473, May 10,
1993; 62 FR 4918, Feb. 3, 1997; 62 FR 43475, Aug. 14, 1997]
Effective Date Note: At 62 FR 43475, Aug. 14, 1997, the note to
paragraph (b)(4) was added, effective Oct. 14, 1997.
Sec. 1.83 Applications for radio operator licenses.
(a) Application filing procedures for amateur radio operator
licenses are set forth in part 97 of this chapter.
(b) Application filing procedures for commercial radio operator
licenses are set forth in part 13 of this chapter. Detailed information
about application forms, filing procedures, and where to file
applications for commercial radio operator licenses is contained in the
bulletin ``Commercial Radio Operator Licenses and Permits.'' This
bulletin is available from the Private Radio Bureau, Licensing Division,
Consumer Assistance Branch, 1270 Fairfield Road, Gettysburg, PA 17325-
7245.
[47 FR 53378, Nov. 26, 1982, as amended at 58 FR 13021, Mar. 9, 1993]
Sec. 1.84 Procedure with respect to commercial radio operator license
applications.
(a) Upon acceptance of an application for a commercial radio
operator license, filed in accordance with part 13 of this chapter, an
examination, if required, is conducted. If the applicant is found
qualified and eligible in all respects, the license will be issued. If
additional information is necessary to determine an applicant's
qualifications or eligibility, or if it appears that a grant of an
application would not serve the public interest, the applicant will be
notified in writing and given an opportunity to provide additional
pertinent information in writing. If, from the information available, it
appears that the applicant is not qualified or is ineligible, or that a
grant of the application would not serve the public interest, the
applicant will be advised thereof in writing and given an opportunity to
request, within a specified period of time, that the application be set
for hearing. If the applicant does not request, within the specified
period, that the application be set for hearing, the application will be
denied.
(b)-(c) [Reserved]
(d) Failure to prosecute an application, or failure to respond to
official correspondence or request for additional information, will be
cause for dismissal. Such dismissal will be without prejudice where an
application has not yet been designated for hearing; such dismissal may
be made with prejudice after an application has been designated for
hearing.
(Sec. 303(l), 48 Stat. 1082, as amended; 47 U.S.C. 303(l))
[29 FR 15965, Nov. 24, 1964, as amended at 47 FR 53378, Nov. 26, 1982]
Sec. 1.85 Suspension of operator licenses.
Whenever grounds exist for suspension of an operator license, as
provided in section 303(m) of the Communications Act, the Chief of the
Private Radio Bureau, with respect to amateur and commercial radio
operator licenses, may issue an order suspending the operator license.
No order of suspension of any operator's license shall take effect until
15 days' notice in writing of the cause for the proposed suspension has
been given to the operator licensee, who may make written application to
the Commission at any time within the said 15 days for a hearing upon
such order. The notice to the operator licensee shall not be effective
until actually received by him, and from that time he shall have 15 days
in which to mail the said application. In the event that physical
conditions prevent mailing of the application before the expiration of
the 15-day period, the application shall then be mailed as soon as
possible thereafter, accompanied by a satisfactory explanation of the
delay. Upon receipt by the Commission of such application for hearing,
said order of suspension shall be designated for hearing by the Chief,
Private Radio Bureau and said suspension
[[Page 117]]
shall be held in abeyance until the conclusion of the hearing. Upon the
conclusion of said hearing, the Commission may affirm, modify, or revoke
said order of suspension. If the license is ordered suspended, the
operator shall send his operator license to the office of the Commission
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.
(Sec. 303(m), 48 Stat. 1082, as amended; 47 U.S.C. 303(m))
[28 FR 10415, Nov. 22, 1963, as amended at 44 FR 39180, July 5, 1979; 58
FR 13021, Mar. 9, 1993]
Sec. 1.87 Modification of license or construction permit on motion of
the Commission.
(a) Whenever it appears that a station license or construction
permit should be modified, the Commission shall notify the licensee or
permittee in writing of the proposed action and reasons therefor, and
afford the licensee or permittee at least thirty days to protest such
proposed order of modification, except that, where safety of life or
property is involved, the Commission may by order provide a shorter
period of time.
(b) The notification required in paragraph (a) of this section may
be effectuated by a notice of proposed rule making in regard to a
modification or addition of an FM or television channel to the Table of
Allotments (Secs. 73.202 and 73.504) or Table of Assignments
(Sec. 73.606). The Commission shall send a copy of any such notice of
proposed rule making to the affected licensee or permittee by certified
mail, return receipt requested.
(c) Any other licensee or permittee who believes that its license or
permit would be modified by the proposed action may also protest the
proposed action before its effective date.
(d) Any protest filed pursuant to this section shall be subject to
the requirements of section 309 of the Communications Act of 1934, as
amended, for petitions to deny.
(e) In any case where a hearing is conducted pursuant to the
provisions of this section, both the burden of proceeding with the
introduction of evidence and the burden of proof shall be upon the
Commission except that, with respect to any issue that pertains to the
question of whether the proposed action would modify the license or
permit of a person filing a protest pursuant to paragraph (c) of this
section, such burdens shall be as described by the Commission.
(f) In order to utilize the right to a hearing and the opportunity
to appear and give evidence upon the issues specified in any hearing
order, the licensee or permittee, in person or by attorney, shall,
within the period of time as may be specified in the hearing order, file
with the Commission a written statement stating that he or she will
appear at the hearing and present evidence on the matters specified in
the hearing order.
(g) The right to file a protest or have a hearing shall, unless good
cause is shown in a petition to be filed not later than 5 days before
the lapse of time specified in paragraph (a) or (f) of this section, be
deemed waived:
(1) In case of failure to timely file the protest as required by
paragraph (a) of this section or a written statement as required by
paragraph (f) of this section.
(2) In case of filing a written statement provided for in paragraph
(f) of this section but failing to appear at the hearing, either in
person or by counsel.
(h) Where the right to file a protest or have a hearing is waived,
the licensee or permittee will be deemed to have consented to the
modification as proposed and a final decision may be issued by the
Commission accordingly. Irrespective of any waiver as provided for in
paragraph (g) of this section or failure by the licensee or permittee to
raise a substantial and material question of fact concerning the
proposed modification in his protest, the Commission may, on its own
motion, designate the proposed modification for hearing in accordance
with this section.
(i) Any order of modification issued pursuant to this section shall
include a statement of the findings and the grounds and reasons
therefor, shall
[[Page 118]]
specify the effective date of the modification, and shall be served on
the licensee or permittee.
[52 FR 22654, June 15, 1987]
Sec. 1.88 Predesignation pleading procedure.
In cases where an investigation is being conducted by the Commission
in connection with the operation of a broadcast station or a pending
application for renewal of a broadcast license, the licensee may file a
written statement to the Commission setting forth its views regarding
the matters under investigation; the staff, in its discretion, may in
writing, advise such licensee of the general nature of the
investigation, and advise the licensee of its opportunity to submit such
a statement to the staff. Any filing by the licensee will be forwarded
to the Commission in conjunction with any staff memorandum recommending
that the Commission take action as a result of the invesigation. Nothing
in this rule shall supersede the application of our ex parte rules to
situations described in Sec. 1.1203 of these rules.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; (47 U.S.C.
154, 303, 307))
[45 FR 65597, Oct. 3, 1980]
Sec. 1.89 Notice of violations.
(a) Except in cases of willfulness or those in which public health,
interest, or safety requires otherwise, any person who holds a license,
permit or other authorization appearing to have violated any provision
of the Communications Act or any provision of this chapter will, before
revocation, suspension, or cease and desist proceedings are instituted,
be served with a written notice calling these facts to his or her
attention and requesting a statement concerning the matter. FCC Form 793
may be used for this purpose. The Notice of Violation may be combined
with a Notice of Apparent Liability to Monetary Forfeiture. In such
event, notwithstanding the Notice of Violation, the provisions of
Sec. 1.80 apply and not those of Sec. 1.89.
(b) Within 10 days from receipt of notice or such other period as
may be specified, the recipient shall send a written answer, in
duplicate, directly to the Commission office originating the official
notice. If an answer cannot be sent or an acknowledgment cannot be made
within such 10-day period by reason of illness or other unavoidable
circumstance, acknowledgment and answer shall be made at the earliest
practicable date with a satisfactory explanation of the delay.
(c) The answer to each notice shall be complete in itself and shall
not be abbreviated by reference to other communications or answers to
other notices. In every instance the answer shall contain a statement of
action taken to correct the condition or omission complained of and to
preclude its recurrence. In addition:
(1) If the notice relates to violations that may be due to the
physical or electrical characteristics of transmitting apparatus and any
new apparatus is to be installed, the answer shall state the date such
apparatus was ordered, the name of the manufacturer, and the promised
date of delivery. If the installation of such apparatus requires a
construction permit, the file number of the application shall be given,
or if a file number has not been assigned by the Commission, such
identification shall be given as will permit ready identification of the
application.
(2) If the notice of violation relates to lack of attention to or
improper operation of the transmitter, the name and license number of
the operator in charge (where applicable) shall be given.
[48 FR 24890, June 3, 1983]
Sec. 1.91 Revocation and/or cease and desist proceedings; hearings.
(a) If it appears that a station license or construction permit
should be revoked and/or that a cease and desist order should be issued,
the Commission will issue an order directing the person to show cause
why an order of revocation and/or a cease and desist order, as the facts
may warrant, should not be issued.
(b) An order to show cause why an order of revocation and/or a cease
and desist order should not be issued will contain a statement of the
matters with respect to which the Commission
[[Page 119]]
is inquiring and will call upon the person to whom it is directed (the
respondent) to appear before the Commission at a hearing, at a time and
place stated in the order, but not less than thirty days after the
receipt of such order, and given evidence upon the matters specified in
the order to show cause. However, if safety of life or property is
involved, the order to show cause may specify a hearing date less than
thirty days from the receipt of such order.
(c) To avail himself of such opportunity for hearing, the
respondent, personally or by his attorney, shall file with the
Commission, within thirty days of the service of the order or such
shorter period as may be specified therein, a written appearance stating
that he will appear at the hearing and present evidence on the matters
specified in the order. The Commission in its discretion may accept a
late appearance. However, an appearance tendered after the specified
time has expired will not be accepted unless accompanied by a petition
stating with particularity the facts and reasons relied on to justify
such late filing. Such petition for acceptance of late appearance will
be granted only if the Commission determines that the facts and reasons
stated therein constitute good cause for failure to file on time.
(d) Hearings on the matters specified in such orders to show cause
shall accord with the practice and procedure prescribed in this subpart
and subpart B of this part, with the following exceptions: (1) In all
such revocation and/or cease and desist hearings, the burden of
proceeding with the introduction of evidence and the burden of proof
shall be upon the Commission; and (2) the Commission may specify in a
show cause order, when the circumstances of the proceeding require
expedition, a time less than that prescribed in Secs. 1.276 and 1.277
within which the initial decision in the proceeding shall become
effective, exceptions to such initial decision must be filed, parties
must file requests for oral argument, and parties must file notice of
intention to participate in oral argument.
(e) Correction of or promise to correct the conditions or matters
complained of in a show cause order shall not preclude the issuance of a
cease and desist order. Corrections or promises to correct the
conditions or matters complained of, and the past record of the
licensee, may, however, be considered in determining whether a
revocation and/or a cease and desist order should be issued.
(f) Any order of revocation and/or cease and desist order issued
after hearing pursuant to this section shall include a statement of
findings and the grounds therefor, shall specify the effective date of
the order, and shall be served on the person to whom such order is
directed.
(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)
Sec. 1.92 Revocation and/or cease and desist proceedings; after waiver
of hearing.
(a) After the issuance of an order to show cause, pursuant to
Sec. 1.91, calling upon a person to appear at a hearing before the
Commission, the occurrence of any one of the following events or
circumstances will constitute a waiver of such hearing and the
proceeding thereafter will be conducted in accordance with the
provisions of this section.
(1) The respondent fails to file a timely written appearance as
prescribed in Sec. 1.91(c) indicating that he will appear at a hearing
and present evidence on the matters specified in the order.
(2) The respondent, having filed a timely written appearance as
prescribed in Sec. 1.91(c), fails in fact to appear in person or by his
attorney at the time and place of the duly scheduled hearing.
(3) The respondent files with the Commission, within the time
specified for a written appearance in Sec. 1.91(c), a written statement
expressly waiving his rights to a hearing.
(b) When a hearing is waived under the provisions of paragraph (a)
(1) or (3) of this section, a written statement signed by the respondent
denying or seeking to mitigate or justify the circumstances or conduct
complained of in the order to show cause may be submitted within the
time specified in
[[Page 120]]
Sec. 1.91(c). The Commission in its discretion may accept a late
statement. However, a statement tendered after the specified time has
expired will not be accepted unless accompanied by a petition stating
with particularity the facts and reasons relied on to justify such late
filing. Such petitions for acceptance of a late statement will be
granted only if the Commission determines that the facts and reasons
stated therein constitute good cause for failure to file on time.
(c) Whenever a hearing is waived by the occurrence of any of the
events or circumstances listed in paragraph (a) of this section, the
Chief Administrative Law Judge (or the presiding officer if one has been
designated) shall, at the earliest practicable date, issue an order
reciting the events or circumstances constituting a waiver of hearing,
terminating the hearing proceeding, and certifying the case to the
Commission. Such order shall be served upon the respondent.
(d) After a hearing proceeding has been terminated pursuant to
paragraph (c) of this section, the Commission will act upon the matters
specified in the order to show cause in the regular course of business.
The Commission will determine on the basis of all the information
available to it from any source, including such further proceedings as
may be warranted, if a revocation order and/or a cease and desist order
should issue, and if so, will issue such order. Otherwise, the
Commission will issue an order dismissing the proceeding. All orders
specified in this paragraph will include a statement of the findings of
the Commission and the grounds and reasons therefor, will specify the
effective date thereof, and will be served upon the respondent.
(e) Corrections or promise to correct the conditions or matters
complained of in a show cause order shall not preclude the issuance of a
cease and desist order. Corrections or promises to correct the
conditions or matters complained of, and the past record of the
licensee, may, however, be considered in determining whether a
revocation and/or a cease and desist order should be issued.
(Sec. 312, 48 Stat. 1086, as amended; 47 U.S.C. 312)
[28 FR 12415, Nov. 22, 1963, as amended at 29 FR 6443, May 16, 1964; 37
FR 19372, Sept. 20, 1972]
Sec. 1.93 Consent orders.
(a) As used in this subpart, a ``consent order'' is a formal decree
accepting an agreement between a party to an adjudicatory hearing
proceeding held to determine whether that party has violated statutes or
Commission rules or policies and the appropriate operating Bureau, with
regard to such party's future compliance with such statutes, rules or
policies, and disposing of all issues on which the proceeding was
designated for hearing. The order is issued by the officer designated to
preside at the hearing or (if no officer has been designated) by the
Chief Administrative Law Judge.
(b) Where the interests of timely enforcement or compliance, the
nature of the proceeding, and the public interest permit, the
Commission, by its operating Bureaus, may negotiate a consent order with
a party to secure future compliance with the law in exchange for prompt
disposition of a matter subject to administrative adjudicative
proceedings. Consent orders may not be negotiated with respect to
matters which involve a party's basic statutory qualifications to hold a
license (see 47 U.S.C. 308 and 309).
[41 FR 14871, Apr. 8, 1976]
Sec. 1.94 Consent order procedures.
(a) Negotiations leading to a consent order may be initiated by the
operating Bureau or by a party whose possible violations are issues in
the proceeding. Negotiations may be initiated at any time after
designation of a proceeding for hearing. If negotiations are initiated
the presiding officer shall be notified. Parties shall be prepared at
the initial prehearing conference to state whether they are at that time
willing to enter negotiations. See Sec. 1.248(c)(7). If either party is
unwilling to enter negotiations, the hearing proceeding shall proceed.
If the parties agree to enter negotiations, they will be afforded an
appropriate opportunity to negotiate before the hearing is commenced.
[[Page 121]]
(b) Other parties to the proceeding are entitled, but are not
required, to participate in the negotiations, and may join in any
agreement which is reached.
(c) Every agreement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) A waiver of the usual procedures for preparation and review of
an initial decision;
(3) A waiver of the right of judicial review or otherwise to
challenge or contest the validity of the consent order;
(4) A statement that the designation order may be used in construing
the consent order;
(5) A statement that the agreement shall become a part of the record
of the proceeding only if the consent order is signed by the presiding
officer and the time for review has passed without rejection of the
order by the Commission;
(6) A statement that the agreement is for purposes of settlement
only and that its signing does not constitute an admission by any party
of any violation of law, rules or policy (see 18 U.S.C. 6002); and
(7) A draft order for signature of the presiding officer resolving
by consent, and for the future, all issues specified in the designation
order.
(d) If agreement is reached, it shall be submitted to the presiding
officer or Chief Administrative Law Judge, as the case may be, who shall
either sign the order, reject the agreement, or suggest to the parties
that negotiations continue on such portion of the agreement as he
considers unsatisfactory or on matters not reached in the agreement. If
he rejects the agreement, the hearing shall proceed. If he suggests
further negotiations, the hearing will proceed or negotiations will
continue, depending on the wishes of parties to the agreement. If he
signs the consent order, he shall close the record.
(e) Any party to the proceeding who has not joined in any agreement
which is reached may appeal the consent order under Sec. 1.302, and the
Commission may review the agreement on its own motion under the
provisions of that section. If the Commission rejects the consent order,
the proceeding will be remanded for further proceedings. If the
Commission does not reject the consent order, it shall be entered in the
record as a final order and is subject to judicial review on the
initiative only of parties to the proceeding who did not join in the
agreement. The Commission may revise the agreement and consent order. In
that event, private parties to the agreement may either accept the
revision or withdraw from the agreement. If the party whose possible
violations are issues in the proceeding withdraws from the agreement,
the consent order will not be issued or made a part of the record, and
the proceeding will be remanded for further proceedings.
(f) The provisions of this section shall not alter any existing
procedure for informal settlement of any matter prior to designation for
hearing (see, e.g., 47 U.S.C. 208) or for summary decision after
designation for hearing.
(g) Consent orders, pleadings relating thereto, and Commission
orders with respect thereto shall be served on parties to the
proceeding. Public notice will be given of orders issued by an
administrative law judge, the Chief Administrative Law Judge, or the
Commission. Negotiating papers constitute work product, are available to
parties participating in negotiations, but are not routinely available
for public inspection.
[41 FR 14871, Apr. 8, 1976]
Sec. 1.95 Violation of consent orders.
Violation of a consent order shall subject the consenting party to
any and all sanctions which could have been imposed in the proceeding
resulting in the consent order if all of the issues in that proceeding
had been decided against the consenting party and to any further
sanctions for violation noted as agreed upon in the consent order. The
Commission shall have the burden of showing that the consent order has
been violated in some (but not in every) respect. Violation of the
consent order and the sanctions to be imposed shall be the only issues
considered in a proceeding concerning such an alleged violation.
[41 FR 14871, Apr. 8, 1976]
[[Page 122]]
Reconsideration and Review of Actions Taken by the Commission and
Pursuant to Delegated Authority; Effective Dates and Finality Dates of
Actions
Sec. 1.101 General provisions.
Under section 5(c) of the Communications Act of 1934, as amended,
the Commission is authorized, by rule or order, to delegate certain of
its functions to a panel of commissioners, an individual commissioner,
an employee board, or an individual employee. Section 0.201(a) of this
chapter describes in general terms the basic categories of delegations
which are made by the Commission. Subpart B of part 0 of this chapter
sets forth all delegations which have been made by rule. Sections 1.102
through 1.120 set forth procedural rules governing reconsideration and
review of actions taken pursuant to authority delegated under section
5(c) of the Communications Act, and reconsideration of actions taken by
the Commission. As used in Secs. 1.102 through 1.117, the term
designated authority means any person, panel, or board which has been
authorized by rule or order to exercise authority under section 5(c) of
the Communications Act.
[28 FR 12415, Nov. 22, 1963, as amended at 62 FR 4170, Jan. 29, 1997]
Sec. 1.102 Effective dates of actions taken pursuant to delegated
authority.
(a) Final actions following review of an initial decision. (1) Final
decisions of a commissioner, or panel of commissioners following review
of an initial decision shall be effective 40 days after public release
of the full text of such final decision.
(2) If a petition for reconsideration of such final decision is
filed, the effect of the decision is stayed until 40 days after release
of the final order disposing of the petition.
(3) If an application for review of such final decision is filed, or
if the Commission on its own motion orders the record of the proceeding
before it for review, the effect of the decision is stayed until the
Commission's review of the proceeding has been completed.
(b) Non-hearing and interlocutory actions. (1) Non-hearing or
interlocutory actions taken pursuant to delegated authority shall,
unless otherwise ordered by the designated authority, be effective upon
release of the document containing the full text of such action, or in
the event such a document is not released, upon release of a public
notice announcing the action in question.
(2) If a petition for reconsideration of a non-hearing action is
filed, the designated authority may in its discretion stay the effect of
its action pending disposition of the petition for reconsideration.
Petitions for reconsideration of interlocutory actions will not be
entertained.
(3) If an application for review of a non-hearing or interlocutory
action is filed, or if the Commission reviews the action on its own
motion, the Commission may in its discretion stay the effect of any such
action until its review of the matters at issue has been completed.
[28 FR 12415, Nov. 22, 1963, as amended at 62 FR 4170, Jan. 29, 1997]
Sec. 1.103 Effective dates of Commission actions; finality of
Commission actions.
(a) Unless otherwise specified by law or Commission rule (e.g.
Secs. 1.102 and 1.427), the effective date of any Commission action
shall be the date of public notice of such action as that latter date is
defined in Sec. 1.4(b) of these rules: Provided, That the Commission
may, on its own motion or on motion by any party, designate an effective
date that is either earlier or later in time than the date of public
notice of such action. The designation of an earlier or later effective
date shall have no effect on any pleading periods.
(b) Notwithstanding any determinations made under paragraph (a) of
this section, Commission action shall be deemed final, for purposes of
seeking reconsideration at the Commission or judicial review, on the
date of public notice as defined in Sec. 1.4(b) of these rules.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[46 FR 18556, Mar. 25, 1981]
[[Page 123]]
Sec. 1.104 Preserving the right of review; deferred consideration of
application for review.
(a) The provisions of this section apply to all final actions taken
pursuant to delegated authority, including final actions taken by
members of the Commission's staff on nonhearing matters. They do not
apply to interlocutory actions of the Chief Administrative Law Judge in
hearing proceedings, or to hearing designation orders issued under
delegated authority. See Secs. 0.351, 1.106(a) and 1.115(e).
(b) Any person desiring Commission consideration of a final action
taken pursuant to delegated authority shall file either a petition for
reconsideration or an application for review (but not both) within 30
days from the date of public notice of such action, as that date is
defined in Sec. 1.4(b) of these rules. The petition for reconsideration
will be acted on by the designated authority or referred by such
authority to the Commission: Provided, That a petition for
reconsideration of an order designating a matter for hearing will in all
cases be referred to the Commission. The application for review will in
all cases be acted upon by the Commission.
Note: In those cases where the Commission does not intend to release
a document containing the full text of its action, it will state that
fact in the public notice announcing its action.
(c) If in any matter one party files a petition for reconsideration
and a second party files an application for review, the Commission will
withhold action on the application for review until final action has
been taken on the petition for reconsideration.
(d) Any person who has filed a petition for reconsideration may file
an application for review within 30 days from the date of public notice
of such action, as that date is defined in Sec. 1.4(b) of these rules.
If a petition for reconsideration has been filed, any person who has
filed an application for review may: (1) Withdraw his application for
review, or (2) substitute an amended application therefor.
Note: In those cases where the Commission does not intend to release
a document containing the full text of its action, it will state that
fact in the public notice announcing its action.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[28 FR 12415, Nov. 22, 1963, as amended at 41 FR 14871, Apr. 8, 1976; 44
FR 60294, Oct. 19, 1979; 46 FR 18556, Mar. 25, 1981; 62 FR 4170, Jan.
29, 1997]
Sec. 1.106 Petitions for reconsideration.
(a)(1) Petitions requesting reconsideration of a final Commission
action will be acted on by the Commission. Petitions requesting
reconsideration of other final actions taken pursuant to delegated
authority will be acted on by the designated authority or referred by
such authority to the Commission. A petition for reconsideration of an
order designating a case for hearing will be entertained if, and insofar
as, the petition relates to an adverse ruling with respect to
petitioner's participation in the proceeding. Petitions for
reconsideration of other interlocutory actions will not be entertained.
(For provisions governing reconsideration of Commission action in notice
and comment rule making proceedings, see Sec. 1.429. This Sec. 1.106
does not govern reconsideration of such actions.)
(2) Within the period allowed for filing a petition for
reconsideration, any party to the proceeding may request the presiding
officer to certify to the Commission the question as to whether, on
policy in effect at the time of designation or adopted since
designation, and undisputed facts, a hearing should be held. If the
presiding officer finds that there is substantial doubt, on established
policy and undisputed facts, that a hearing should be held, he will
certify the policy question to the Commission with a statement to that
effect. No appeal may be filed from an order denying such a request. See
also, Secs. 1.229 and 1.251.
(b)(1) Subject to the limitations set forth in paragraph (b)(2) of
this section, any party to the proceeding, or any other person whose
interests are adversely affected by any action taken by the Commission
or by the designated authority, may file a petition requesting
reconsideration of the action taken. If the petition is filed by a
person who is not a party to the proceeding, it shall state with
particularity
[[Page 124]]
the manner in which the person's interests are adversely affected by the
action taken, and shall show good reason why it was not possible for him
to participate in the earlier stages of the proceeding.
(2) Where the Commission has denied an application for review, a
petition for reconsideration will be entertained only if one or more of
the following circumstances is present:
(i) The petition relies on facts which relate to events which have
occurred or circumstances which have changed since the last opportunity
to present such matters; or
(ii) The petition relies on facts unknown to petitioner until after
his last opportunity to present such matters which could not, through
the exercise of ordinary diligence, have been learned prior to such
opportunity.
(3) A petition for reconsideration of an order denying an
application for review which fails to rely on new facts or changed
circumstances may be dismissed by the staff as repetitious.
(c) A petition for reconsideration which relies on facts not
previously presented to the Commission or to the designated authority
may be granted only under the following circumstances:
(1) The facts fall within one or more of the categories set forth in
Sec. 1.106(b)(2); or
(2) The Commission or the designated authority determines that
consideration of the facts relied on is required in the public interest.
(d)(1) The petition shall state with particularity the respects in
which petitioner believes the action taken by the Commission or the
designated authority should be changed. The petition shall state
specifically the form or relief sought and, subject to this requirement,
may contain alternative requests.
(2) The petition for reconsideration shall also, where appropriate,
cite the findings of fact and/or conclusions of law which petitioner
believes to be erroneous, and shall state with particularity the
respects in which he believes such findings and conclusions should be
changed. The petition may request that additional findings of fact and
conclusions of law be made.
(e) Where a petition for reconsideration is based upon a claim of
electrical interference, under appropriate rules in this chapter, to an
existing station or a station for which a construction permit is
outstanding, such petition, in addition to meeting the other
requirements of this section, must be accompanied by an affidavit of a
qualified radio engineer. Such affidavit shall show, either by following
the procedures set forth in this chapter for determining interference in
the absence of measurements, or by actual measurements made in
accordance with the methods prescribed in this chapter, that electrical
interference will be caused to the station within its normally protected
contour.
(f) The petition for reconsideration and any supplement thereto
shall be filed within 30 days from the date of public notice of the
final Commission action, as that date is defined in Sec. 1.4(b) of these
rules, and shall be served upon parties to the proceeding. The petition
for reconsideration shall not exceed 25 double spaced typewritten pages.
No supplement or addition to a petition for reconsideration which has
not been acted upon by the Commission or by the designated authority,
filed after expiration of the 30 day period, will be considered except
upon leave granted upon a separate pleading for leave to file, which
shall state the grounds therefor.
(g) Oppositions to a petition for reconsideration shall be filed
within 10 days after the petition is filed, and shall be served upon
petitioner and parties to the proceeding. Oppositions shall not exceed
25 double spaced typewritten pages.
(h) Petitioner may reply to oppositions within seven days after the
last day for filing oppositions, and any such reply shall be served upon
parties to the proceeding. Replies shall not exceed 10 double spaced
typewritten pages, and shall be limited to matters raised in the
opposition.
(i) Petitions for reconsideration, oppositions, and replies shall
conform to the requirements of Secs. 1.49, 1.51, and 1.52 and shall be
submitted to the Secretary, Federal Communications Commission,
Washington, D.C., 20554.
[[Page 125]]
(j) The Commission or designated authority may grant the petition
for reconsideration in whole or in part or may deny the petition. Its
order will contain a concise statement of the reasons for the action
taken. Where the petition for reconsideration relates to an instrument
of authorization granted without hearing, the Commission or designated
authority will take such action within 90 days after the petition is
filed.
(k)(1) If the Commission or the designated authority grants the
petition for reconsideration in whole or in part, it may, in its
decision:
(i) Simultaneously reverse or modify the order from which
reconsideration is sought;
(ii) Remand the matter to a bureau or other Commission personnel for
such further proceedings, including rehearing, as may be appropriate; or
(iii) Order such other proceedings as may be necessary or
appropriate.
(2) If the Commission or designated authority initiates further
proceedings, a ruling on the merits of the matter will be deferred
pending completion of such proceedings. Following completion of such
further proceedings, the Commission or designated authority may affirm,
reverse, or modify its original order, or it may set aside the order and
remand the matter for such further proceedings, including rehearing, as
may be appropriate.
(3) Any order disposing of a petition for reconsideration which
reverses or modifies the original order is subject to the same
provisions with respect to reconsideration as the original order. In no
event, however, shall a ruling which denies a petition for
reconsideration be considered a modification of the original order. A
petition for reconsideration of an order which has been previously
denied on reconsideration may be dismissed by the staff as repetitious.
Note: For purposes of this section, the word ``order'' refers to
that portion of its action wherein the Commission announces its
judgment. This should be distinguished from the ``memorandum opinion''
or other material which often accompany and explain the order.
(l) No evidence other than newly discovered evidence, evidence which
has become available only since the original taking of evidence, or
evidence which the Commission or the designated authority believes
should have been taken in the original proceeding shall be taken on any
rehearing ordered pursuant to the provisions of this section.
(m) The filing of a petition for reconsideration is not a condition
precedent to judicial review of any action taken by the Commission or by
the designated authority, except where the person seeking such review
was not a party to the proceeding resulting in the action, or relies on
questions of fact or law upon which the Commission or designated
authority has been afforded no opportunity to pass. (See Sec. 1.115(c).)
Persons in those categories who meet the requirements of this section
may qualify to seek judicial review by filing a petition for
reconsideration.
(n) Without special order of the Commission, the filing of a
petition for reconsideration shall not excuse any person from complying
with or obeying any decision, order, or requirement of the Commission,
or operate in any manner to stay or postpone the enforcement thereof.
However, upon good cause shown, the Commission will stay the
effectiveness of its order or requirement pending a decision on the
petition for reconsideration. (This paragraph applies only to actions of
the Commission en banc. For provisions applicable to actions under
delegated authority, see Sec. 1.102.)
(Secs. 4, 303, 307, 405, 48 Stat., as amended, 1066, 1082, 1083, 1095;
47 U.S.C. 154, 303, 307, 405)
[28 FR 12415, Nov. 22, 1963, as amended at 37 FR 7507, Apr. 15, 1972; 41
FR 1287, Jan. 7, 1976; 44 FR 60294, Oct. 19, 1979; 46 FR 18556, Mar. 25,
1981; 62 FR 4170, Jan. 29, 1997]
Sec. 1.108 Reconsideration on Commission's own motion.
The Commission may, on its own motion, set aside any action made or
taken by it within 30 days from the date of public notice of such
action, as that date is defined in Sec. 1.4(b) of these rules.
[[Page 126]]
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[28 FR 12415, Nov. 22, 1963, as amended at 46 FR 18556, Mar. 25, 1981]
Sec. 1.110 Partial grants; rejection and designation for hearing.
Where the Commission without a hearing grants any application in
part, or with any privileges, terms, or conditions other than those
requested, or subject to any interference that may result to a station
if designated application or applications are subsequently granted, the
action of the Commission shall be considered as a grant of such
application unless the applicant shall, within 30 days from the date on
which such grant is made or from its effective date if a later date is
specified, file with the Commission a written request rejecting the
grant as made. Upon receipt of such request, the Commission will vacate
its original action upon the application and set the application for
hearing in the same manner as other applications are set for hearing.
Sec. 1.113 Action modified or set aside by person, panel, or board.
(a) Within 30 days after public notice has been given of any action
taken pursuant to delegated authority, the person, panel, or board
taking the action may modify or set it aside on its own motion.
(b) Within 60 days after notice of any sanction imposed under
delegated authority has been served on the person affected, the person,
panel, or board which imposed the sanction may modify or set it aside on
its own motion.
(c) Petitions for reconsideration and applications for review shall
be directed to the actions as thus modified, and the time for filing
such pleadings shall be computed from the date upon which public notice
of the modified action is given or notice of the modified sanction is
served on the person affected.
Sec. 1.115 Application for review of action taken pursuant to delegated
authority.
(a) Any person aggrieved by any action taken pursuant to delegated
authority may file an application requesting review of that action by
the Commission. Any person filing an application for review who has not
previously participated in the proceeding shall include with his
application a statement describing with particularity the manner in
which he is aggrieved by the action taken and showing good reason why it
was not possible for him to participate in the earlier stages of the
proceeding. Any application for review which fails to make an adequate
showing in this respect will be dismissed.
(b)(1) The application for review shall concisely and plainly state
the questions presented for review with reference, where appropriate, to
the findings of fact or conclusions of law.
(2) Except as provided in paragraph (b)(5) of this section, the
application for review shall specify with particularity, from among the
following, the factor(s) which warrant Commission consideration of the
questions presented:
(i) The action taken pursuant to delegated authority is in conflict
with statute, regulation, case precedent, or established Commission
policy.
(ii) The action involves a question of law or policy which has not
previously been resolved by the Commission.
(iii) The action involves application of a precedent or policy which
should be overturned or revised.
(iv) An erroneous finding as to an important or material question of
fact.
(v) Prejudicial procedural error.
(3) The application for review shall state with particularity the
respects in which the action taken by the designated authority should be
changed.
(4) The application for review shall state the form of relief sought
and, subject to this requirement, may contain alternative requests.
(c) No application for review will be granted if it relies on
questions of fact or law upon which the designated authority has been
afforded no opportunity to pass.
Note: Subject to the requirements of Sec. 1.106, new questions of
fact or law may be presented to the designated authority in a petition
for reconsideration.
(d) Except as provided in paragraph (e) of this section, the
application for review and any supplemental thereto shall be filed
within 30 days of public
[[Page 127]]
notice of such action, as that date is defined in section 1.4(b).
Opposition to the application shall be filed within 15 days after the
application for review is filed. Except as provided in paragraph (e)(3)
of this section, replies to oppositions shall be filed within 10 days
after the opposition is filed and shall be limited to matters raised in
the opposition.
(e)(1) Applications for review of interlocutory rulings made by the
Chief Administrative Law Judge (see Sec. 0.351) shall be deferred until
the time when exceptions are filed unless the Chief Judge certifies the
matter to the Commission for review. A matter shall be certified to the
Commission only if the Chief Judge determines that it presents a new or
novel question of law or policy and that the ruling is such that error
would be likely to require remand should the appeal be deferred and
raised as an exception. The request to certify the matter to the
Commission shall be filed within 5 days after the ruling is made. The
applicaton for review shall be filed within 5 days after the order
certifying the matter to the Commission is released or such ruling is
made. Oppositions shall be filed within 5 days after the application is
filed. Replies to oppositions shall be filed only if they are requested
by the Commission. Replies (if allowed) shall be filed within 5 days
after they are requested. A ruling certifying or not certifying a matter
to the Commission is final: Provided, however, That the Commission may,
on its own motion, dismiss the application for review on the ground that
objections to the ruling should be deferred and raised as an exception.
(2) The failure to file an application for review of an
interlocutory ruling made by the Chief Administrative Law Judge or the
denial of such application by the Commission, shall not preclude any
party entitled to file exceptions to the initial decision from
requesting review of the ruling at the time when exceptions are filed.
Such requests will be considered in the same manner as exceptions are
considered.
(3) Applications for review of a hearing designation order issued
under delegated authority shall be deferred until exceptions to the
initial decision in the case are filed, unless the presiding
Administrative Law Judge certifies such an application for review to the
Commission. A matter shall be certified to the Commission only if the
presiding Administrative Law Judge determines that the matter involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that immediate consideration of the question
would materially expedite the ultimate resolution of the litigation. A
ruling refusing to certify a matter to the Commission is not appealable.
In addition, the Commission may dismiss, without stating reasons, an
application for review that has been certified, and direct that the
objections to the hearing designation order be deferred and raised when
exceptions in the initial decision in the case are filed. A request to
certify a matter to the Commission shall be filed with the presiding
Administrative Law Judge within 5 days after the designation order is
released. Any application for review authorized by the Administrative
Law Judge shall be filed within 5 days after the order certifying the
matter to the Commission is released or such a ruling is made.
Oppositions shall be filed within 5 days after the 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.
(f) Applications for review, oppositions, and replies shall conform
to the requirements of Secs. 1.49, 1.51, and 1.52, and shall be
submitted to the Secretary, Federal Communications Commission,
Washington, DC 20554. Except as provided below, applications for review
and oppositions thereto shall not exceed 25 double-space typewritten
pages. Applications for review of interlocutory actions in hearing
proceedings (including designation orders) and oppositions thereto shall
not exceed 5 double-spaced typewritten pages. When permitted (see
paragraph (e)(3) of this section), reply pleadings shall not exceed 5
double-spaced typewritten pages. The application for review shall be
served upon the parties to the proceeding. Oppositions to the
application for review shall be served on the person seeking review and
on parties to the
[[Page 128]]
proceeding. When permitted (see paragraph (e)(3) of this section),
replies to the opposition(s) to the application for review shall be
served on the person(s) opposing the application for review and on
parties to the proceeding.
(g) The Commission may grant the application for review in whole or
in part, or it may deny the application with or without specifying
reasons therefor. A petition requesting reconsideration of a ruling
which denies an application for review will be entertained only if one
or more of the following circumstances is present:
(1) The petition relies on facts which related to events which have
occurred or circumstances which have changed since the last opportunity
to present such matters; or
(2) The petition relies on facts unknown to petitioner until after
his last opportunity to present such matters which could not, through
the exercise of ordinary diligence, have been learned prior to such
opportunity.
(h)(1) If the Commission grants the application for review in whole
or in part, it may, in its decision:
(i) Simultaneously reverse or modify the order from which review is
sought;
(ii) Remand the matter to the designated authority for
reconsideration in accordance with its instructions, and, if an
evidentiary hearing has been held, the remand may be to the person(s)
who conducted the hearing; or
(iii) Order such other proceedings, including briefs and oral
argument, as may be necessary or appropriate.
(2) In the event the Commission orders further proceedings, it may
stay the effect of the order from which review is sought. (See
Sec. 1.102.) Following the completion of such further proceedings the
Commission may affirm, reverse or modify the order from which review is
sought, or it may set aside the order and remand the matter to the
designated authority for reconsideration in accordance with its
instructions. If an evidentiary hearing has been held, the Commission
may remand the matter to the person(s) who conducted the hearing for
rehearing on such issues and in accordance with such instructions as may
be appropriate.
Note: For purposes of this section, the word ``order'' refers to
that portion of its action wherein the Commission announces its
judgment. This should be distinguished from the ``memorandum opinion''
or other material which often accompany and explain the order.
(i) An order of the Commission which reverses or modifies the action
taken pursuant to delegated authority is subject to the same provisions
with respect to reconsideration as an original order of the Commission.
In no event, however, shall a ruling which denies an application for
review be considered a modification of the action taken pursuant to
delegated authority.
(j) No evidence other than newly discovered evidence, evidence which
has become available only since the original taking of evidence, or
evidence which the Commission believes should have been taken in the
original proceeding shall be taken on any rehearing ordered pursuant to
the provisions of this section.
(k) The filing of an application for review shall be a condition
precedent to judicial review of any action taken pursuant to delegated
authority.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[28 FR 12415, Nov. 22, 1963, as amended at 41 FR 14871, Apr. 8, 1976; 44
FR 60295, Oct. 19, 1979; 46 FR 18556, Mar. 25, 1981; 48 FR 12719, Mar.
28, 1983; 50 FR 39000, Sept. 26, 1985; 54 FR 40392, Oct. 2, 1989; 55 FR
36641, Sept. 6, 1990; 57 FR 19387, May 6, 1992; 62 FR 4170, Jan. 29,
1997]
Sec. 1.117 Review on motion of the Commission.
(a) Within 40 days after public notice is given of any action taken
pursuant to delegated authority, the Commission may on its own motion
order the record of the proceeding before it for review.
(b) If the Commission reviews the proceeding on its own motion, it
may order such further procedure as may be useful to it in its review of
the action taken pursuant to delegated authority.
(c) With or without such further procedure, the Commission may
either affirm, reverse, modify, or set aside the action taken, or remand
the proceeding to the designated authority for reconsideration in
accordance with its instructions. If an evidentiary hearing
[[Page 129]]
has been held, the Commission may remand the proceeding to the person(s)
who conducted the hearing for rehearing on such issues and in accordance
with such instructions as may be appropriate. An order of the Commission
which reverses or modifies the action taken pursuant to delegated
authority, or remands the matter for further proceedings, is subject to
the same provisions with respect to reconsideration as an original
action of the Commission.
Sec. 1.120 Protests of grants without hearing.
(a) The provisions of this section shall not be applicable to any
application: (1) Filed on or after December 12, 1960; (2) filed before
December 12, 1960, but substantially amended (as defined in the
applicable provisions of this chapter) on or after that date; or (3)
filed before December 12, 1960, and not thereafter substantially
amended, but with respect to which the rules in this chapter provide an
opportunity for petitions to deny to be filed under section 309 of the
Communications Act, as amended. See Secs. 1.580 and 1.962.
(b) Where any instrument of authorization for a radio station, other
than a license pursuant to a construction permit, has been granted
without a hearing, any party in interest may file a protest directed to
such grant and request a hearing on the application granted. Such
protest shall be signed by the protestant and subscribed to under oath.
Such protest must be filed with the Commission within 30 days after
release of the document containing the full text of such action, or in
case such a document is not released, after release of a ``Public
Notice'' announcing the action in question and must separately set
forth:
(1) Such allegations of fact as will show the protestant to be a
party in interest, i.e., a person aggrieved or whose interests are
adversely affected by the Commission's authorization, protest of which
is sought. Each such allegation of fact shall be separately stated.
(2) Facts indicating the reasons why the grant was improperly made
or would otherwise not be in the public interest. Each such reason shall
be separately stated, and facts in support thereof shall be specified in
detail and shall not include general non-specific conclusory arguments
and allegations.
(3) The specific issues upon which protestant wishes a hearing to be
held, which issues must relate directly to a matter specified with
particularity as part of paragraph (b)(2) of this section.
(c) Arguments and citations of authority may be set forth in a brief
accompanying the protest but must be excluded from the protest itself.
(d) Oppositions to protests and briefs in support thereof shall
contain all material, including that pertinent to the determination
referred to in paragraph (i) of this section, deemed appropriate to the
Commission's resolution of the protest. Such oppositions and supporting
briefs must be filed within 10 days after the filing of such protest,
and any replies to such oppositions must be filed within 5 days after
the filing of the oppositions.
(e) Protests, oppositions, and replies shall be filed with the
Commission in original and 14 copies and shall be accompanied by proof
of service upon the grantee or the protestant, as the case may be, and/
or their respective attorneys.
(f) The Commission may upon consideration of a protest direct either
the protestant or grantee or both to submit further statements of fact
under oath relating to the matters raised in the protest.
(g) Within 30 days from the date of the filing of the protest, the
Commission will enter findings as to whether such protest meets the
requirements set forth in paragraphs (b) (1) and (2) of this section. If
the Commission finds that one of these requirements is not met, it will
dismiss the protest. If the Commission finds that these requirements are
met, it will designate the application in question for hearing. As to
issues which the Commission believes present no grounds for setting
aside the grant, even if the facts alleged were to be proven, the
Commission may designate such issues for oral argument only. The other
issues will be designated for evidentiary hearing except that the
Commission may redraft the issues in accordance with the facts or
[[Page 130]]
substantive matters alleged in the protest and may also specify such
additional issues as it deems desirable. In any evidentiary hearing
subsequently held upon issues specified by the Commission, upon its own
initiative or adopted by it, both the burden of proceeding with the
introduction of evidence and the burden of proof shall be upon the
grantee. With respect to issues resulting from facts set forth in the
protest and not adopted or specified by the Commission on its own
motion, both the burden of proceeding with the introduction of evidence
and the burden of proof shall be upon the protestant.
(h) The procedure in such protest hearing shall be governed by the
provisions of subpart B of this part, except as otherwise provided in
this section.
(i) Pending hearing and decision, the effective date of the
Commission's action to which protest is made shall be postponed to the
effective date of the Commission's decision after hearing, unless the
authorization involved is necessary to the maintenance or conduct of an
existing service or unless the Commission affirmatively finds that the
public interest requires that the grant remain in effect, in which event
the Commission shall authorize the applicant to utilize the facilities
or authorization in question pending the Commission's decision after
hearing.
(Sec. 7, 66 Stat. 715, as amended. See, in particular, sec. 4 (a) and
(d), 74 Stat. 889, 892; 47 U.S.C. 309)
[28 FR 12415, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963]
Subpart B--Hearing Proceedings
Source: 28 FR 12425, Nov. 22, 1963, unless otherwise noted.
Editorial Note: Nomenclature changes to subpart B appear at 37 FR
19372, Sept. 20, 1972.
General
Sec. 1.201 Scope.
This subpart shall be applicable to the following cases which have
been designated for hearing:
(a) Adjudication (as defined by the Administrative Procedure Act);
and
(b) Rule making proceedings which are required by law to be made on
the record after opportunity for a Commission hearing.
Note: For special provisions relating to AM broadcast station
applications involving other North American countries see Sec. 73.3570.
[28 FR 12425, Nov. 22, 1963, as amended at 51 FR 32088, Sept. 9, 1986]
Sec. 1.202 Official reporter; transcript.
The Commission will designate from time to time an official reporter
for the recording and transcribing of hearing proceedings. The
transcript of the testimony taken, or argument had, at any hearing will
not be furnished by the Commission, but will be open to inspection under
Sec. 0.453(a)(1) of this chapter. Copies of such transcript, if desired,
may be obtained from the official reporter upon payment of the charges
therefor.
(5 U.S.C. 556)
[32 FR 20861, Dec. 28, 1967]
Sec. 1.203 The record.
The transcript of testimony and exhibits, together with all papers
and requests filed in the proceeding, shall constitute the exclusive
record for decision. Where any decision rests on official notice of a
material fact not appearing in the record, any party shall on timely
request be afforded an opportunity to show the contrary.
(5 U.S.C. 556)
Sec. 1.204 Pleadings; definition.
As used in this subpart, the term pleading means any written notice,
motion, petition, request, opposition, reply, brief, proposed findings,
exceptions, memorandum of law, or other paper filed with the Commission
in a hearing proceeding. It does not include exhibits or documents
offered in evidence. See Sec. 1.356.
[29 FR 8219, June 30, 1964]
Sec. 1.205 Continuances and extensions.
Continuances of any proceeding or hearing and extensions of time for
making any filing or performing any act required or allowed to be done
within a specified time may be granted
[[Page 131]]
by the Commission or the presiding officer upon motion for good cause
shown, unless the time for performance or filing is limited by statute.
Sec. 1.207 Interlocutory matters, reconsideration and review; cross
references.
(a) Rules governing interlocutory pleadings in hearing proceedings
are set forth in Secs. 1.291 through 1.298.
(b) Rules governing appeal from rulings made by the presiding
officer are set forth as Secs. 1.301 and 1.302.
(c) Rules governing the reconsideration and review of actions taken
pursuant to delegated authority, and the reconsideration of actions
taken by the Commission, are set forth in Secs. 1.101 through 1.120.
[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 6443, May 16, 1964; 36
FR 19439, Oct. 6, 1971]
Sec. 1.209 Identification of responsible officer in caption to
pleading.
Each pleading filed in a hearing proceeding shall indicate in its
caption whether it is to be acted upon by the Commission, the Chief
Administrative Law Judge, or the presiding officer. If it is to be acted
upon by the presiding officer, he shall be identified by name.
[29 FR 8219, June 30, 1964, as amended at 37 FR 19372, Sept. 20, 1972;
62 FR 4171, Jan. 29, 1997]
Sec. 1.211 Service.
Except as otherwise expressly provided in this chapter, all
pleadings filed in a hearing proceeding shall be served upon all other
counsel in the proceeding or, if a party is not represented by counsel,
then upon such party. All such papers shall be accompanied by proof of
service. For provisions governing the manner of service, see Sec. 1.47.
[29 FR 8219, June 30, 1964]
Participants and Issues
Sec. 1.221 Notice of hearing; appearances.
(a) Upon designation of an application for hearing, the Commission
issues an order containing the following:
(1) A statement as to the reasons for the Commission's action.
(2) A statement as to the matters of fact and law involved, and the
issues upon which the application will be heard.
(3) A statement as to the time, place, and nature of the hearing.
(If the time and place are not specified, the order will indicate that
the time and place will be specified at a later date.)
(4) A statement as to the legal authority and jurisdiction under
which the hearing is to be held.
(b) The order designating an application for hearing is mailed to
the applicant by the Secretary of the Commission and this order or a
summary thereof is published in the Federal Register. Reasonable notice
of hearing will be given to the parties in all proceedings; and,
whenever possible, the Commission will give at least 60 days notice of
comparative hearings.
(c) In order to avail himself of the opportunity to be heard, the
applicant, in person or by his attorney, shall, within 20 days of the
mailing of the notice of designation for hearing by the Secretary, file
with the Commission, in triplicate, a written appearance stating that he
will appear on the date fixed for hearing and present evidence on the
issues specified in the order. Where an applicant fails to file such a
written appearance within the time specified, or has not filed prior to
the expiration of that time a petition to dismiss without prejudice, or
a petition to accept, for good cause shown, such written appearance
beyond expiration of said 20 days, the application will be dismissed
with prejudice for failure to prosecute.
(d) The Commission will on its own motion name as parties to the
hearing any person found to be a party in interest.
(e) In order to avail himself of the opportunity to be heard, any
person named as a party pursuant to paragraph (d) of this section shall,
within 20 days of the mailing of the notice of his designation as a
party, file with the Commission, in person or by attorney, a written
appearance in triplicate, stating that he will appear at the hearing.
Any person so named who fails to file this written statement within the
time specified, shall, unless good cause for such failure is shown,
forfeit his hearing rights.
[[Page 132]]
(f) A fee must accompany each written appearance filed with the
Commission in certain cases designated for hearing. See subpart G, part
1 for the amount due. Except as provided in paragraph (g) of this
section, the fee must accompany each written appearance at the time of
its filing and must be in conformance with the requirements of subpart G
of the rules. A written appearance that does not contain the proper fee,
or is not accompanied by a deferral request as per Sec. 1.1115 of the
rules, shall be dismissed and returned to the applicant by the fee
processing staff. The presiding judge will be notified of this action
and may dismiss the applicant with prejudice for failure to prosecute if
the written appearance is not resubmitted with the correct fee within
the original 20 day filing period.
Note: If the parties file a settlement agreement prior to filing the
Notice of Appearance or simultaneously with it, the hearing fee need not
accompany the Notice of Appearance. In filing the Notice of Appearance,
the applicant should clearly indicate that a settlement agreement has
been filed. (The fact that there are ongoing negotiations that may lead
to a settlement does not affect the requirement to pay the fee.) If a
settlement agreement is not effectuated, the Presiding Judge will
require immediate payment of the fee.
(g) In comparative broadcast proceedings involving applicants for
new facilities, where the hearing fee was paid before designation of the
applications for hearing as required by the Public Notice described at
Sec. 73.3571(c), Sec. 73.3572(d), or Sec. 73.3573(g) of this chapter, a
hearing fee payment should not be made with the filing of the Notice of
Appearance.
(5 U.S.C. 554. Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
[28 12424, Nov. 22, 1963, as amended at 51 FR 19347, May 29, 1986; 52 FR
5288, Feb. 20, 1987; 55 FR 19154, May 8, 1990; 56 FR 25638, June 5,
1991]
Sec. 1.223 Petitions to intervene.
(a) Where, in cases involving applications for construction permits
and station licenses, or modifications or renewals thereof, the
Commission has failed to notify and name as a party to the hearing any
person who qualifies as a party in interest, such person may acquire the
status of a party by filing, under oath and not more than 30 days after
the publication in the Federal Register of the hearing issues or any
substantial amendment thereto, a petition for intervention showing the
basis of its interest. Where such person's interest is based upon a
claim that a grant of the application would cause objectionable
interference under applicable provisions of this chapter to such person
as a licensee or permittee of an existing or authorized station, the
petition to intervene must be accompanied by an affidavit of a qualified
radio engineer which shall show, either by following the procedures
prescribed in this chapter for determining interference in the absence
of measurements or by actual measurements made in accordance with the
methods prescribed in this chapter, the extent of such interference.
Where the person's status as a party in interest is established, the
petition to intervene will be granted.
(b) Any other person desiring to participate as a party in any
hearing may file a petition for leave to intervene not later than 30
days after the publication in the Federal Register of the full text or a
summary of the order designating an application for hearing or any
substantial amendment thereto. The petition must set forth the interest
of petitioner in the proceedings, must show how such petitioner's
participation will assist the Commission in the determination of the
issues in question, must set forth any proposed issues in addition to
those already designated for hearing, and must be accompanied by the
affidavit of a person with knowledge as to the facts set forth in the
petition. The presiding officer, in his discretion, may grant or deny
such petition or may permit intervention by such persons limited to a
particular stage of the proceeding.
(c) Any person desiring to file a petition for leave to intervene
later than 30 days after the publication in the Federal Register of the
full text or a summary of the order designating an application for
hearing or any substantial amendment thereto shall set forth the
interest of petitioner in the proceeding, show how such petitioner's
[[Page 133]]
participation will assist the Commission in the determination of the
issues in question, must set forth any proposed issues in addition to
those already designated for hearing, and must set forth reasons why it
was not possible to file a petition within the time prescribed by
paragraphs (a) and (b) of this section. Such petition shall be
accompanied by the affidavit of a person with knowledge of the facts set
forth in the petition, and where petitioner claims that a grant of the
application would cause objectionable interference under applicable
provisions of this chapter, the petition to intervene must be
accompanied by the affidavit of a qualified radio engineer showing the
extent of such alleged interference according to the methods prescribed
in paragraph (a) of this section. If, in the opinion of the presiding
officer, good cause is shown for the delay in filing, he may in his
discretion grant such petition or may permit intervention limited to
particular issues or to a particular stage of the proceeding.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 7821, June 19, 1964; 41
FR 14872, Apr. 8, 1976; 51 FR 19347, May 29, 1986]
Sec. 1.224 Motion to proceed in forma pauperis.
(a) A motion to proceed in forma pauperis may be filed by an
individual, a corporation, and unincorporated entity, an association or
other similar group, if the moving party is either of the following:
(1) A respondent in a revocation proceeding, or a renewal applicant,
who cannot carry on his livelihood without the radio license at stake in
the proceeding; or
(2) An intervenor in a hearing proceeding who is in a position to
introduce testimony which is of probable decisional significance, on a
matter of substantial public interest importance, which cannot, or
apparently will not, be introduced by other parties to the proceeding,
and who is not seeking personal financial gain.
(b) In the case of a licensee, the motion to proceed in forma
pauperis shall contain specific allegations of fact sufficient to show
that the moving party is eligible under paragraph (a) of this section
and that he cannot, because of his poverty, pay the expenses of
litigation and still be able to provide himself and his dependents with
the necessities of life. Such allegations of fact shall be supported by
affidavit of a person or persons with personal knowledge thereof. The
information submitted shall detail the income and assets of the
individual and his financial obligations and responsibilities, and shall
contain an estimate of the cost of participation in the proceeding.
Personal financial information may be submitted to the presiding officer
in confidence.
(c)(1) In the case of an individual intervenor, the motion to
proceed in forma pauperis shall contain specific allegations of fact
sufficient to show that he is eligible under paragraph (a) of this
section and that he has dedicated financial resources to sustain his
participation which are reasonable in light of his personal resources
and other demands upon them but are inadequate for effective
participation in the proceeding. Such allegations of fact shall be
supported by affidavit of a person or persons with personal knowledge
thereof. The information submitted shall detail the income and assets of
the individual and his immediate family and his financial obligations
and responsibilities, and shall contain an estimate of the cost of
participation. Personal financial information may be submitted to the
presiding officer in confidence.
(2) In the case of an intervening group, the motion to proceed in
forma pauperis shall contain specific allegations of fact sufficient to
show that the moving party is eligible under paragraph (a) of this
section and that it cannot pay the expenses of litigation and still be
able to carry out the activities and purposes for which it was
organized. Such allegations of fact shall be supported by affidavit of
the President and Treasurer of the group, and/or by other persons having
personal knowledge thereof. The information submitted shall include a
copy of the corporate charter or other documents that describe the
activities and purposes of the organization; a current
[[Page 134]]
balance sheet and profit and loss statement; facts showing, under all
the circumstances, that it would not be reasonable to expect added
resources of individuals composing the group to be pooled to meet the
expenses of participating in the proceeding; and an estimate of the cost
of participation. Personal financial information pertaining to members
of the group may be submitted to the presiding officer in confidence.
(d) If the motion is granted, the presiding officer may direct that
a free copy of the transcript of testimony be made available to the
moving party and may relax the rules of procedure in any manner which
will ease his financial burden, is fair to other parties to the
proceeding, and does not involve the payment of appropriated funds to a
party.
[41 FR 53021, Dec. 3, 1976]
Sec. 1.225 Participation by non-parties; consideration of
communications.
(a) Any person who wishes to appear and give evidence on any matter
and who so advises the Secretary, will be notified by the Secretary if
that matter is designated for hearing. In the case of requests bearing
more than one signature, notice of hearing will be given to the person
first signing unless the request indicates that such notice should be
sent to someone other than such person.
(b) No person shall be precluded from giving any relevant, material,
and competent testimony at a hearing because he lacks a sufficient
interest to justify his intervention as a party in the matter.
(c) When a hearing is held, no communication will be considered in
determining the merits of any matter unless it has been received into
evidence. The admissibility of any communication shall be governed by
the applicable rules of evidence, and no communication shall be
admissible on the basis of a stipulation unless Commission counsel as
well as counsel for all of the parties shall join in such stipulation.
Sec. 1.227 Consolidations.
(a) The Commission, upon motion or upon its own motion, will, where
such action will best conduce to the proper dispatch of business and to
the ends of justice, consolidate for hearing:
(1) Any cases which involve the same applicant or involve
substantially the same issues, or
(2) Any applications which present conflicting claims, except where
a random selection process is used.
(b)(1) In broadcast cases, except as provided in paragraph (b)(5) of
this section, and except as otherwise provided in Sec. 1.1601, et seq.,
no application will be consolidated for hearing with a previously filed
application or applications unless such application, or such application
as amended, if amended so as to require a new file number, is
substantially complete and tendered for filing by the close of business
on the day preceding the day designated by Public Notice as the day any
one of the previously filed applications is available and ready for
processing.
(2) In other than broadcast, common carrier, and safety and special
radio services cases, any application that is mutually exclusive with
another application or applications already designated for hearing will
be consolidated for hearing with such other application or applications
only if the later application in question has been filed within 5 days
after public notice has been given in the Federal Register of the
Commission's order which first designated for hearing the prior
application or applications with which such application is in conflict.
(3) Common carrier cases: (i) General rule. Where an application is
mutually exclusive with a previously filed application, the second
application will be entitled to comparative consideration with the first
or entitled to be included in a random selection process, only if the
second has been properly filed at least one day before the Commission
takes action on the first application. Specifically, the later filed
application must have been received by the Commission, in a condition
acceptable for filing, before the close of business on the day prior to
the grant date or designation date of the earlier filed application.
(ii) Domestic public fixed and public mobile. See Rule Secs. 21.31
and 22.31 for the requirements as to mutually exclusive applications.
See also Rule Secs. 21.23 and
[[Page 135]]
22.23 for the requirements as to amendments of applications.
(iii) Public coast stations (Maritime mobile service). See paragraph
(b)(4) of this section.
(4) This paragraph applies when mutually-exclusive applications
subject to section 309(b) of the Communications Act are filed in the
Private Radio Services or when there are more such applications for
initial licenses than can be accommodated on available frequencies. In
such cases, the applications either will be consolidated for hearing or
designated for random selection (see Sec. 1.972 of this part). An
application which is substantially amended (as defined by Sec. 1.962(c)
of this part) will, for the purpose of this section, be considered to be
a newly-filed application as of the receipt date of the amendment.
Except for applications filed under part 94, Private Operational Fixed
Microwave Service, mutual exclusivity will occur if the later
application or applications are received by the Commission's offices in
Gettysburg, PA (or Pittsburgh, PA for applications requiring the fees
set forth at part 1, subpart G of the rules) in a condition acceptable
for filing within 30 days after the release date of public notice
listing the first prior filed application (with which subsequent
applications are in conflict) as having been accepted for filing or
within such other period as specified by the Commission. For
applications in the Private Operational Fixed Microwave Service, mutual
exclusivity will occur if two or more acceptable applications that are
in conflict are filed on the same day.
(5) Any mutually exclusive application filed after the date
prescribed in paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this
section will be dismissed without prejudice and will be eligible for
refiling only after a final decision is rendered by the Commission with
respect to the prior application or applications or after such
application or applications are dismissed or removed from the hearing
docket.
(6) An application which is mutually exclusive with an application
for renewal of license of a broadcast station filed on or before May 1,
1995 will be designated for comparative hearing with such license
renewal application if it is substantially complete and tendered for
filing no later than the date prescribed in Sec. 73.3516(e).
[28 FR 12425, Nov. 22, 1963, as amended at 34 FR 7966, May 21, 1969; 37
FR 13983, July 15, 1972; 38 FR 26202, Sept. 19, 1973; 48 FR 27200, June
13, 1983; 48 FR 34039, July 27, 1983; 52 FR 10229, Mar. 31, 1987; 55 FR
46008, Oct. 31, 1990; 55 FR 46513, Nov. 5, 1990; 61 FR 18291, Apr. 25,
1996]
Sec. 1.229 Motions to enlarge, change, or delete issues.
(a) A motion to enlarge, change or delete the issues may be filed by
any party to a hearing. Except as provided for in paragraph (b) of this
section, such motions must be filed within 15 days after the full text
or a summary of the order designating the case for hearing has been
published in the Federal Register.
(b)(1) In comparative broadcast proceedings involving applicants for
only new facilities, such motions shall be filed within 30 days of the
release of the designation order, except that persons not named as
parties to the proceeding in the designation order may file such motions
with their petitions to intervene up to 30 days after publication of the
full text or a summary of the designation order in the Federal Register.
(See Sec. 1.223 of this part).
(2) In comparative broadcast proceedings involving renewal
applicants, such motions shall be filed within 30 days after publication
of the full text or a summary of the designation order in the Federal
Register.
(3) Any person desiring to file a motion to modify the issues after
the expiration of periods specified in paragraphs (a), (b)(1), and
(b)(2), of this section, shall set forth the reason why it was not
possible to file the motion within the prescribed period. Except as
provided in paragraph (c) of this section, the motion will be granted
only if good cause is shown for the delay in filing. Motions for
modifications of issues which are based on new facts or newly discovered
facts shall be filed within 15 days after such facts are discovered by
the moving party.
(c) In the absence of good cause for late filing of a motion to
modify the issues, the motion to enlarge will be considered fully on its
merits if (and only
[[Page 136]]
if) initial examination of the motion demonstrates that it raises a
question of probable decisional significance and such substantial public
interest importance as to warrant consideration in spite of its untimely
filing.
(d) Such motions, opposition thereto, and replies to oppositions
shall contain specific allegations of fact sufficient to support the
action requested. Such allegations of fact, except for those of which
official notice may be taken, shall be supported by affidavits of a
person or persons having personal knowledge thereof. The failure to file
an opposition or a reply will not necessarily be construed as an
admission of any fact or argument contained in a pleading.
(e) In comparative broadcast proceedings involving applicants for
only new facilities, in addition to the showing with respect to the
requested issue modification described in paragraph (d) of this section,
the party requesting the enlargement of issues against an applicant in
the proceeding shall identify those documents the moving party wishes to
have produced and any other discovery procedures the moving party wishes
to employ in the event the requested issue is added to the proceeding.
(1) In the event the motion to enlarge issues is granted, the
Commission or delegated authority acting on the motion will also rule on
the additional discovery requests, and, if granted, such additional
discovery will be scheduled to be completed within 30 days of the action
on the motion.
(2) The moving party may file supplemental discovery requests on the
basis of information provided in responsive pleadings or discovered as a
result of initial discovery on the enlarged issue. The grant or denial
of any such supplemental requests and the timing of the completion of
such supplemental discovery are subject to the discretion of the
presiding judge.
(3) The 30-day time limit for completion of discovery on enlarged
issues shall not apply where the persons subject to such additional
discovery are not parties to the proceeding. In such case, additional
time will be required to afford such persons adequate notice of the
discovery procedures being employed.
(f) In any case in which the presiding judge or the Commission
grants a motion to enlarge the issues to inquire into allegations that
an applicant made misrepresentations to the Commission or engaged in
other misconduct during the application process, the enlarged issues
include notice that, after hearings on the enlarged issue and upon a
finding that the alleged misconduct occurred and warrants such penalty,
in addition to or in lieu of denying the application, the applicant may
be liable for a forfeiture of up to the maximum statutory amount. See 47
U.S.C. 503(b)(2)(A).
[41 FR 14872, Apr. 8, 1976, as amended at 44 FR 34947, June 18, 1979; 51
FR 19347, May 29, 1986; 56 FR 792, Jan. 9, 1991; 56 FR 25639, June 5,
1991; 62 FR 4171, Jan. 29, 1997]
Presiding Officer
Sec. 1.241 Designation of presiding officer.
(a) Hearings will be conducted by the Commission, by one or more
commissioners, or by a law judge designated pursuant to section 11 of
the Administrative Procedure Act. If a presiding officer becomes
unavailable to the Commission prior to the taking of testimony another
presiding officer will be designated.
(b) Unless the Commission determines that due and timely execution
of its functions requires otherwise, presiding officers shall be
designated, and notice thereof released to the public, at least 10 days
prior to the date set for hearing.
(5 U.S.C. 556)
Sec. 1.243 Authority of presiding officer.
From the time he is designated to preside until issuance of his
decision or the transfer of the proceeding to the Commission or to
another presiding officer the presiding officer shall have such
authority as is vested in him by law and by the provisions of this
chapter, including authority to:
(a) Administer oaths and affirmations;
(b) Issue subpenas;
(c) Examine witnesses;
(d) Rule upon questions of evidence;
[[Page 137]]
(e) Take or cause depositions to be taken;
(f) Regulate the course of the hearing, maintain decorum, and
exclude from the hearing any person engaging in contemptuous conduct or
otherwise disrupting the proceedings;
(g) Require the filing of memoranda of law and the presentation of
oral argument with respect to any question of law upon which he is
required to rule during the course of the hearing;
(h) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(i) Dispose of procedural requests or similar matters, as provided
for in Sec. 0.341 of this chapter;
(j) Take actions and make decisions in conformity with the
Administrative Procedure Act;
(k) Act on motions to enlarge, modify or delete the hearing issues;
and
(l) Act on motions to proceed in forma pauperis pursuant to
Sec. 1.224.
(5 U.S.C. 556)
[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 53022, Dec. 3, 1976]
Sec. 1.244 Designation of a settlement judge.
(a) In broadcast comparative cases involving applicants for only new
facilities, the applicants may request the appointment of a settlement
judge to facilitate the resolution of the case by settlement.
(b) Where all applicants in the case agree that such procedures may
be beneficial, such requests may be filed with the presiding judge no
later than 15 days prior to the date scheduled by the presiding judge
for the commencement of hearings. The presiding judge shall suspend the
procedural dates in the case and forward the request to the Chief
Administrative Law Judge for action.
(c) If, in the discretion of the Chief Administrative Law Judge, it
appears that the appointment of a settlement judge will facilitate the
settlement of the case, the Chief Judge will appoint a ``neutral'' as
defined in 5 U.S.C. 581 and 583(a) to act as the settlement judge.
(1) The parties may request the appointment of a settlement judge of
their own choosing so long as that person is a ``neutral'' as defined in
5 U.S.C. 581.
(2) The appointment of a settlement judge in a particular case is
subject to the approval of all the applicants in the proceeding. See 5
U.S.C. 583(b).
(3) The Commission's Administrative Law Judges are eligible to act
as settlement judges, except that an Administrative Law Judge will not
be appointed as a settlement judge in any case in which the
Administrative Law Judge also acts as the presiding officer.
(4) Other members of the Commission's staff who qualify as neutrals
may be appointed as settlement judges, except that staff members whose
duties include drafting, review, and/or recommendations in adjudicatory
matters pending before the Commission shall not be appointed as
settlement judges.
(d) The settlement judge shall have the authority to require
applicants to submit their Standardized Integration Statements and/or
their written direct cases for review. The settlement judge may also
meet with the applicants and/or their counsel, individually and/or at
joint conferences, to discuss their cases and the cases of their
competitors. All such meetings will be off-the-record, and the
settlement judge may express an opinion as to the relative comparative
standing of the applicants and recommend possible means to resolve the
proceeding by settlement. The proceedings before the settlement judge
shall be subject to the confidentiality provisions of 5 U.S.C. 574.
Moreover, no statements, offers of settlement, representations or
concessions of the parties or opinions expressed by the settlement judge
will be admissible as evidence in any Commission licensing proceeding.
[56 FR 793, Jan. 9, 1991, as amended at 62 FR 4171, Jan. 29, 1997]
Sec. 1.245 Disqualification of presiding officer.
(a) In the event that a presiding officer deems himself disqualified
and desires to withdraw from the case, he shall notify the Commission of
his withdrawal at least 7 days prior to the date set for hearing.
(b) Any party may request the presiding officer to withdraw on the
grounds
[[Page 138]]
of personal bias or other disqualification.
(1) The person seeking disqualification shall file with the
presiding officer an affidavit setting forth in detail the facts alleged
to constitute grounds for disqualification. Such affidavit shall be
filed not later than 5 days before the commencement of the hearing
unless, for good cause shown, additional time is necessary.
(2) The presiding officer may file a response to the affidavit; and
if he believes himself not disqualified, shall so rule and proceed with
the hearing.
(3) The person seeking disqualification may appeal a ruling of
disqualification, and, in that event, shall do so at the time the ruling
is made. Unless an appeal of the ruling is filed at this time, the right
to request withdrawal of the presiding officer shall be deemed waived.
(4) If an appeal of the ruling is filed, the presiding officer shall
certify the question, together with the affidavit and any response filed
in connection therewith, to the Commission. The hearing shall be
suspended pending a ruling on the question by the Commission.
(5) The Commission may rule on the question without hearing, or it
may require testimony or argument on the issues raised.
(6) The affidavit, response, testimony or argument thereon, and the
Commission's decision shall be part of the record in the case.
(5 U.S.C. 556)
[28 FR 12425, Nov. 22, 1963, as amended at 55 FR 36641, Sept. 6, 1990;
62 FR 4171, Jan. 29, 1997]
Prehearing Procedures
Sec. 1.246 Admission of facts and genuineness of documents.
(a) Within 20 days after the time for filing a notice of appearance
has expired; or within 20 days after the release of an order adding
parties to the proceeding (see Secs. 1.223 and 1.227) or changing the
issues (see Sec. 1.229); or within such shorter or longer time as the
presiding officer may allow on motion or notice, a party may serve upon
any other party a written request for the admission by the latter of the
genuineness of any relevant documents identified in and exhibited by a
clear copy with the request or of the truth of any relevant matters of
fact set forth in the request.
(b) Each of the matters of which an admission is requested shall be
deemed admitted unless, within a period designated in the request, not
less than 10 days after service thereof, or within such shorter or
longer time as the presiding officer may allow on motion or notice, the
party to whom the request is directed serves upon the party requesting
the admission either: (1) A sworn statement denying specifically the
matters of which an admission is requested or setting forth in detail
the reasons why he cannot truthfully admit or deny those matters, or (2)
written objections on the ground that some or all of the requested
admissions are privileged or irrelevant or that the request is otherwise
improper in whole or in part. If written objections to a part of the
request are made, the remainder of the request shall be answered within
the period designated in the request. A denial shall fairly meet the
substance of the requested admission, and when good faith requires that
a party deny only a part or a qualification of a matter of which an
admission is requested, he shall specify so much of it as is true and
deny only the remainder.
(c) A copy of the request and of any answer shall be served by the
party filing on all other parties to the proceeding and upon the
presiding officer.
(d) Written objections to the requested admissions may be ruled upon
by the presiding officer without additional pleadings.
[33 FR 463, Jan. 12, 1968, as amended at 35 FR 17333, Nov. 11, 1970]
Sec. 1.248 Prehearing conferences; hearing conferences.
(a) The Commission, on its own initiative or at the request of any
party, may direct the parties or their attorneys to appear at a
specified time and place for a conference prior to a hearing, or to
submit suggestions in writing, for the purpose of considering, among
other things, the matters set forth in paragraph (c) of this section.
The initial prehearing conference shall
[[Page 139]]
be scheduled 30 days after the effective date of the order designating a
case for hearing, unless good cause is shown for scheduling such
conference at a later date.
(b)(1) The presiding officer (or the Commission or a panel of
commissioners in a case over which it presides), on his own initiative
or at the request of any party, may direct the parties or their
attorneys to appear at a specified time and place for a conference prior
to or during the course of a hearing, or to submit suggestions in
writing, for the purpose of considering any of the matters set forth in
paragraph (c) of this section. The initial prehearing conference shall
be scheduled 30 days after the effective date of the order designating a
case for hearing, unless good cause is shown for scheduling such
conference at a later date.
(2) Except as circumstances otherwise require, the presiding officer
shall allow a reasonable period prior to commencement of the hearing for
the orderly completion of all prehearing procedures, including
discovery, and for the submission and disposition of all prehearing
motions. Where the circumstances so warrant, the presiding officer
shall, promptly after the hearing is ordered, call a preliminary
prehearing conference, to inquire into the use of available procedures
contemplated by the parties and the time required for their completion,
to formulate a schedule for their completion, and to set a date for
commencement of the hearing.
(c) In conferences held, or in suggestions submitted, pursuant to
paragraphs (a) and (b) of this section, the following matters, among
others, may be considered:
(1) The necessity or desirability of simplification, clarification,
amplification, or limitation of the issues;
(2) The admission of facts and of the genuineness of documents (see
Sec. 1.246), and the possibility of stipulating with respect to facts;
(3) The procedure at the hearing;
(4) The limitation of the number of witnesses;
(5) In cases arising under Title II of the Communications Act, the
necessity or desirability of amending the pleadings and offers of
settlement or proposals of adjustment; and
(6) In cases involving comparative broadcast applications:
(i) Narrowing the issues or the areas of inquiry and proof at the
hearing;
(ii) [Reserved]
(iii) Reports and letters relating to surveys or contacts;
(iv) Assumptions regarding the availability of equipment;
(v) Network programming;
(vi) Assumptions regarding the availability of networks proposed;
(vii) Offers of letters in general;
(viii) The method of handling evidence relating to the past
cooperation of existing stations owned and/or operated by the applicants
with organizations in the area;
(ix) Proof of contracts, agreements, or understandings reduced to
writing;
(x) Stipulations;
(xi) Need for depositions;
(xii) The numbering of exhibits;
(xiii) The order or offer of proof with relationship to docket
number;
(xiv) The date for the formal hearing; and
(xv) Such other matters as may expedite the conduct of the hearing.
(7) In proceedings in which consent agreements may be negotiated
(see Sec. 1.93), the parties shall be prepared to state at the initial
prehearing conference whether they are at that time willing to enter
negotiations leading to a consent agreement.
(d) This paragraph applies to broadcast proceedings only.
(1) At the prehearing conference prescribed by this section, the
parties to the proceeding shall be prepared to discuss the advisability
of reducing any or all phases of their affirmative direct cases to
written form.
(2) In hearings involving applications for new, improved and changed
facilities and in comparative hearings involving only applications for
new facilities, where it appears that it will contribute significantly
to the disposition of the proceeding for the parties to submit all or
any portion of their affirmative direct cases in writing, the presiding
officer may, in his discretion, require them to do so.
(3) In other broadcast proceedings, where it appears that it will
contribute
[[Page 140]]
significantly to the disposition of the proceeding for the parties to
submit all or any portion of their affirmative direct cases in writing,
it is the policy of the Commission to encourage them to do so. However,
the phase or phases of the proceeding to be submitted in writing, the
dates for the exchange of the written material, and other limitations
upon the effect of adopting the written case procedure (such as whether
material ruled out as incompetent may be restored by other competent
testimony) is to be left to agreement of the parties as approved by the
presiding officer.
(4) In broadcast comparative cases involving applicants for only new
facilities, oral testimony and cross examination will be permitted only
where, in the discretion of the presiding judge, material issues of
decisional fact cannot be resolved without oral evidentiary hearing
procedures or the public interest otherwise requires oral evidentiary
proceedings.
(e) An official transcript of all conferences shall be made.
(f) The presiding officer may, upon the written request of a party
or parties, approve the use of a speakerphone as a means of attendance
at a prehearing conference if such use is found to conduce to the proper
dispatch of business and the ends of justice.
[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 463, Jan. 12, 1968; 36
FR 14133, July 30, 1971; 37 FR 7507, Apr. 15, 1972; 41 FR 14873, Apr. 8,
1976; 43 FR 33251, July 31, 1978; 56 FR 793, Jan. 9, 1991]
Sec. 1.249 Prehearing statement.
Immediately upon convening the formal hearing in any proceeding, the
presiding officer shall enter upon the record a statement reciting all
actions taken at the prehearing conferences, and incorporating into the
record all of the stipulations and agreements of the parties which are
approved by him, and any special rules which he may deem necessary to
govern the course of the proceeding.
[28 FR 12425, Nov. 22, 1963. Redesignated at 33 FR 463, Jan. 12, 1968]
Hearing and Intermediate Decision
Sec. 1.250 Discovery and preservation of evidence; cross-reference.
For provisions relating to prehearing discovery and preservation of
admissible evidence, see Secs. 1.311 through 1.325.
[33 FR 463, Jan. 12, 1968]
Sec. 1.251 Summary decision.
(a)(1) Any party to an adjudicatory proceeding may move for summary
decision of all or any of the issues set for hearing. The motion shall
be filed at least 20 days prior to the date set for commencement of the
hearing. The party filing the motion may not rest upon mere allegations
or denials but must show, by affidavit or by other materials subject to
consideration by the presiding officer, that there is no genuine issue
of material fact for determination at the hearing.
(2) With the permission of the presiding officer, or upon his
invitation, a motion for summary decision may be filed at any time
before or after the commencement of the hearing. No appeal from an order
granting or denying a request for permission to file a motion for
summary decision shall be allowed. If the presiding officer authorizes a
motion for summary decision after the commencement of the hearing,
proposed findings of fact and conclusions of law on those issues which
the moving party believes can be resolved shall be attached to the
motion, and any other party may file findings of fact and conclusions of
law as an attachment to pleadings filed by him pursuant to paragraph (b)
of this section.
(b) Within 14 days after a motion for summary decision is filed, any
other party to the proceeding may file an opposition or a countermotion
for summary decision. A party opposing the motion may not rest upon mere
allegations or denials but must show, by affidavit or by other materials
subject to consideration by the presiding officer, that there is a
genuine issue of material fact for determination at the hearing, that he
cannot, for good cause, present by affidavit or otherwise facts
essential to justify his opposition, or that summary decision is
otherwise inappropriate.
[[Page 141]]
(c) Affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein.
(d) The presiding officer may, in his discretion, set the matter for
argument and call for the submission of proposed findings, conclusions,
briefs or memoranda of law. The presiding officer, giving appropriate
weight to the nature of the proceeding, the issue or issues, the proof,
and to the need for cross-examination, may grant a motion for summary
decision to the extent that the pleadings, affidavits, materials
obtained by discovery or otherwise, admissions, or matters officially
noticed, show that there is no genuine issue as to any material fact and
that a party is otherwise entitled to summary decision. If it appears
from the affidavits of a party opposing the motion that he cannot, for
good cause shown, present by affidavit or otherwise facts essential to
justify his opposition, the presiding officer may deny the motion, may
order a continuance to permit affidavits to be obtained or discovery to
be had, or make such other order as is just.
(e) If all of the issues (or a dispositive issue) are determined on
a motion for summary decision no hearing (or further hearing) will be
held. The presiding officer will issue a Summary Decision, which is
subject to appeal or review in the same manner as an Initial Decision.
See Secs. 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 will
proceed on the remaining issues. Appeal from interlocutory rulings is
governed by Sec. 1.301.
(f) The presiding officer may take any action deemed necessary to
assure that summary decision procedures are not abused. He may rule in
advance of a motion that the proceeding is not appropriate for summary
decision, and may take such other measures as are necessary to prevent
any unwarranted delay.
(1) Should it appear to the satisfaction of the presiding officer
that a motion for summary decision has been presented in bad faith or
solely for the purpose of delay, or that such a motion is patently
frivolous, he will enter a determination to that effect upon the record.
(2) If, on making such determination, the presiding officer
concludes that the facts warrant disciplinary action against an
attorney, he will certify the matter to the Commission with his findings
and recommendations, for consideration under Sec. 1.24.
(3) If, on making such determination, the presiding officer
concludes that the facts warrant a finding of bad faith on the part of a
party to the proceeding, he will certify the matter to the Commission,
with his findings and recommendations, for a determination as to whether
the facts warrant addition of an issue as to the character
qualifications of that party.
[37 FR 7507, Apr. 15, 1972, as amended at 42 FR 56508, Oct. 26, 1977]
Sec. 1.253 Time and place of hearing.
(a) The Commission will specify the day on which and the place at
which any hearing is to commence.
(b) The presiding officer will specify the days on which subsequent
hearing sessions are to be held.
(c) If the Commission specifies that a hearing is to commence in the
District of Columbia, it shall be moved therefrom only by order of the
Commission.
(d) If the Commission specifies that a hearing is to commence at a
field location, all appropriate proceedings will be completed at such
location before the hearing is moved therefrom. When such proceedings
are completed, the presiding officer may move the hearing from the field
location specified to another appropriate field location or to the
District of Columbia.
Sec. 1.254 Nature of the hearing; burden of proof.
Any hearing upon an application shall be a full hearing in which the
applicant and all other parties in interest shall be permitted to
participate but in which both the burden of proceeding with the
introduction of evidence upon any issue specified by the Commission,
[[Page 142]]
as well as the burden of proof upon all such issues, shall be upon the
applicant except as otherwise provided in the order of designation.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
Sec. 1.255 Order of procedure.
(a) At hearings on a formal complaint or petition or in a proceeding
for any instrument of authorization which the Commission is empowered to
issue, the complainant, petitioner, or applicant, as the case may be,
shall, unless the Commission otherwise orders, open and close. At
hearings on protests, the protestant opens and closes the proceedings in
case the issues are not specifically adopted by the Commission;
otherwise the grantee does so. At hearings on orders to show cause, to
cease and desist, to revoke or modify a station license under sections
312 and 316 of the Communications Act, or other like proceedings
instituted by the Commission, the Commission shall open and close.
(b) At all hearings under Title II of the Communications Act, other
than hearings on formal complaints, petitions, or applications, the
respondent shall open and close unless otherwise specified by the
Commission.
(c) In all other cases, the Commission or presiding officer shall
designate the order of presentation. Intervenors shall follow the party
in whose behalf intervention is made, and in all cases where the
intervention is not in support of an original party, the Commission or
presiding officer shall designate at what stage such intervenors shall
be heard.
[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 463, Jan. 12, 1968]
Sec. 1.258 Closing of the hearing.
The record of hearing shall be closed by an announcement to that
effect at the hearing by the presiding officer when the taking of
testimony has been concluded. In the discretion of the presiding
officer, the record may be closed as of a future specified date in order
to permit the admission into the record of exhibits to be prepared:
Provided, The parties to the proceeding stipulate on the record that
they waive the opportunity to cross-examine or present evidence with
respect to such exhibits. The record in any hearing which has been
adjourned may not be closed by such officer prior to the day on which
the hearing is to resume, except upon 10 days' notice to all parties to
the proceeding.
Sec. 1.260 Certification of transcript.
After the close of the hearing, the complete transcript of
testimony, together with all exhibits, shall be certified as to identity
by the presiding officer and filed in the office of the Secretary of the
Commission. Notice of such certification shall be served on all parties
to the proceedings.
Sec. 1.261 Corrections to transcript.
At any time during the course of the proceeding, or as directed by
the presiding officer, but not later than 10 days after the date of
notice of certification of the transcript, any party to the proceeding
may file with the presiding officer a motion requesting the correction
of the transcript, which motion shall be accompanied by proof of service
thereof upon all other parties to the proceeding. Within 5 days after
the filing of such a motion, other parties may file a pleading in
support of or in opposition to such motion. Thereafter, the presiding
officer shall, by order, specify the corrections to be made in the
transcript, and a copy of the order shall be served upon all parties and
made a part of the record. The presiding officer, on his own initiative,
may specify corrections to be made in the transcript on 5 days' notice.
[40 FR 51441, Nov. 5, 1975]
Sec. 1.263 Proposed findings and conclusions.
(a) Each party to the proceeding may file proposed findings of fact
and conclusions, briefs, or memoranda of law: Provided, however, That
the presiding officer may direct any party other than Commission counsel
to file proposed findings of fact and conclusions, briefs, or memoranda
of law. Such proposed findings of fact, conclusions, briefs, and
memoranda of law shall be filed within 20 days after the record is
closed, unless additional time is allowed.
(b) All pleadings and other papers filed pursuant to this section
shall be
[[Page 143]]
accompanied by proof of service thereof upon all other counsel in the
proceeding; if a party is not represented by counsel, proof of service
upon such party shall be made.
(c) In the absence of a showing of good cause therefor, the failure
to file proposed findings of fact, conclusions, briefs, or memoranda of
law, when directed to do so, may be deemed a waiver of the right to
participate further in the proceeding.
(5 U.S.C. 557)
Sec. 1.264 Contents of findings of fact and conclusions.
Proposed findings of fact shall be set forth in serially numbered
paragraphs and shall set out in detail and with particularity all basic
evidentiary facts developed on the record (with appropriate citations to
the transcript of record or exhibit relied on for each evidentiary fact)
supporting the conclusions proposed by the party filing same. Proposed
conclusions shall be separately stated. Proposed findings of fact and
conclusions submitted by a person other than an applicant may be limited
to those issues in connection with the hearing which affect the
interests of such person.
(5 U.S.C. 557)
Sec. 1.267 Initial and recommended decisions.
(a) Except as provided in this paragraph, in Secs. 1.94, 1.251 and
1.274, or where the proceeding is terminated on motion (see Sec. 1.302),
the presiding officer shall prepare an initial (or recommended)
decision, which shall be transmitted to the Secretary of the Commission.
In the case of rate making proceedings conducted under sections 201-205
of the Communications Act, the presumption shall be that the presiding
officer shall prepare an initial or recommended decision. The Secretary
will make the decision public immediately and file it in the docket of
the case.
(b) Each initial and recommended decision shall contain findings of
fact and conclusions, as well as the reasons or basis therefor, upon all
the material issues of fact, law, or discretion presented on the record;
each initial decision shall also contain the appropriate rule or order,
and the sanction, relief or denial thereof; and each recommended
decision shall contain recommendations as to what disposition of the
case should be made by the Commission. Each initial decision will show
the date upon which it will become effective in accordance with the
rules in this part in the absence of exceptions, appeal, or review.
(c) The authority of the Presiding Officer over the proceedings
shall cease when he has filed his Initial or Recommended Decision, or if
it is a case in which he is to file no decision, when he has certified
the case for decision: Provided, however, That he shall retain limited
jurisdiction over the proceeding for the purpose of effecting
certification of the transcript and corrections to the transcript, as
provided in Secs. 1.260 and 1.261, respectively, and for the purpose of
ruling initially on applications for awards of fees and expenses under
the Equal Access to Justice Act.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409, 5 U.S.C. 557; secs.
4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083: 47 U.S.C. 154, 303,
307)
[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976; 47
FR 3786, Jan. 27, 1982]
Review Proceedings
Sec. 1.271 Delegation of review function.
The Commission may direct, by order or rule, that its review
function in a case or category of cases be performed by a commissioner,
or a panel of commissioners, in which event the commissioner or panel
shall exercise the authority and perform the functions which would
otherwise have been performed by the Commission under Secs. 1.273
through 1.282.
Note: To provide for an orderly completion of cases, exceptions and
related pleadings filed after March 1, 1996, shall be directed to the
Commission and will not be acted upon by the Review Board.
[62 FR 4171, Jan. 29, 1997]
Sec. 1.273 Waiver of initial or recommended decision.
At the conclusion of the hearing or within 20 days thereafter, all
parties to
[[Page 144]]
the proceeding may agree to waive an initial or recommended decision,
and may request that the Commission issue a final decision or order in
the case. If the Commission has directed that its review function in the
case be performed by a commissioner, a panel of commissioners, the
request shall be directed to the appropriate review authority. The
Commission or such review authority may in its discretion grant the
request, in whole or in part, if such action will best conduce to the
proper dispatch of business and to the ends of justice.
[28 FR 12425, Nov. 22, 1963, as amended at 62 FR 4171, Jan. 29, 1997]
Sec. 1.274 Certification of the record to the Commission for initial or
final decision.
(a) Where the presiding officer is available to the Commission, and
where the Commission finds upon the record that due and timely execution
of its functions imperatively and unavoidably so requires, the
Commission may direct that the record in a pending proceeding be
certified to it for initial or final decision. Unless the Commission
finds that due and timely execution of its functions imperatively and
unavoidably requires that no recommended decision be issued, the
presiding officer will prepare and file a recommended decision, which
will be released with the Commission's initial or final decision.
(b) Where the presiding officer becomes unavailable to the
Commission after the taking of testimony has been concluded, the
Commission may direct that the record in a pending proceeding be
certified to it for initial or final decision. In that event, the record
shall be certified to the Commission by the Chief Administrative Law
Judge.
(c)(1) Where the presiding officer becomes unavailable to the
Commission after the taking of evidence has commenced but before it has
been concluded, the Commission may order a rehearing before another
presiding officer designated in accordance with Sec. 1.241.
(2) Upon a finding that due and timely execution of its functions
imperatively and unavoidably so requires, the Commission may (as an
alternative) order that the hearing be continued by another presiding
officer designated in accordance with Sec. 1.241 or by the Commission
itself. In that event, the officer continuing the hearing shall, upon
completion of the hearing, certify the proceeding to the Commission for
an initial or final decision. Unless the Commission finds upon the
record that due and timely execution of its functions imperatively and
unavoidably requires that no recommended decision be issued, the officer
continuing the hearing shall prepare and file a recommended decision to
be released with the Commission's initial or final decision. If all the
parties expressly consent, and if the Commission does not order
otherwise, the officer continuing the hearing may prepare an initial
decision.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)
Sec. 1.276 Appeal and review of initial decision.
(a)(1) Within 30 days after the date on which public release of the
full text of an initial decision is made, or such other time as the
Commission may specify, any of the parties may appeal to the Commission
by filing exceptions to the initial decision, and such decision shall
not become effective and shall then be reviewed by the Commission,
whether or not such exceptions may thereafter be withdrawn. It is the
Commission's policy that extensions of time for filing exceptions shall
not be routinely granted.
(2) Exceptions shall be consolidated with the argument in a
supporting brief and shall not be submitted separately. As used in this
subpart, the term exceptions means the document consolidating the
exceptions and supporting brief. The brief shall contain (i) a table of
contents, (ii) a table of citations, (iii) a concise statement of the
case, (iv) a statement of the questions of law presented, and (v) the
argument, presenting clearly the points of fact and law relied upon in
support of the position taken on each question, with specific reference
to the record and all legal or other materials relied on.
(b) The Commission may on its own initiative provide, by order
adopted not
[[Page 145]]
later than 20 days after the time for filing exceptions expires, that an
initial decision shall not become final, and that it shall be further
reviewed or considered by the Commission.
(c) In any case in which an initial decision is subject to review in
accordance with paragraph (a) or (b) of this section, the Commission
may, on its own initiative or upon appropriate requests by a party, take
any one or more of the following actions:
(1) Hear oral argument on the exceptions;
(2) Require the filing of briefs;
(3) Prior to or after oral argument or the filing of exceptions or
briefs, reopen the record and/or remand the proceedings to the presiding
officer to take further testimony or evidence;
(4) Prior to or after oral argument or the filing of exceptions or
briefs, remand the proceedings to the presiding officer to make further
findings or conclusions; and
(5) Prior to or after oral argument or the filing of exceptions or
briefs, issue, or cause to be issued by the presiding officer, a
supplemental initial decision.
(d) No initial decision shall become effective before 50 days after
public release of the full text thereof is made unless otherwise ordered
by the Commission. The timely filing of exceptions, the further review
or consideration of an initial decision on the Commission's initiative,
or the taking of action by the Commission under paragraph (c) of this
section shall stay the effectiveness of the initial decision until the
Commission's review thereof has been completed. If the effective date of
an initial decision falls within any further time allowed for the filing
of exceptions, it shall be postponed automatically until 30 days after
time for filing exceptions has expired.
(e) If no exceptions are filed, and the Commission has not ordered
the review of an initial decision on its initiative, or has not taken
action under paragraph (c) of this section, the initial decision shall
become effective, an appropriate notation to that effect shall be
entered in the docket of the case, and a ``Public Notice'' thereof shall
be given by the Commission. The provisions of Sec. 1.108 shall not apply
to such public notices.
(f) When any party fails to file exceptions within the specified
time to an initial decision which proposes to deny its application, such
party shall be deemed to have no interest in further prosecution of its
application, and its application may be dismissed with prejudice for
failure to prosecute.
(Sec. 40, 48 Stat. 1096, as amended; 47 U.S.C. 409)
[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976]
Sec. 1.277 Exceptions; oral arguments.
(a) The consolidated supporting brief and exceptions to the initial
decision (see Sec. 1.276(a)(2)), including rulings upon motions or
objections, shall point out with particularity alleged material errors
in the decision or ruling and shall contain specific references to the
page or pages of the transcript of hearing, exhibit or order if any on
which the exception is based. Any objection not saved by exception filed
pursuant to this section is waived.
(b) Within the period of time allowed in Sec. 1.276(a) for the
filing of exceptions, any party may file a brief in support of an
initial decision, in whole or in part, which may contain exceptions and
which shall be similar in form to the brief in support of exceptions
(see Sec. 1.276(a)(2)).
(c) Except by special permission, the consolidated brief and
exceptions will not be accepted if the exceptions and argument exceed 25
double-spaced typewritten pages in length. (The table of contents and
table of citations are not counted in the 25 page limit; however, all
other contents of and attachments to the brief are counted.) Within 10
days, or such other time as the Commission or delegated authority may
specify, after the time for filing exceptions has expired, any other
party may file a reply brief, which shall not exceed 25 double spaced
typewritten pages and shall contain a table of contents and a table of
citations. If exceptions have been filed, any party may request oral
argument not later than five days after the time for filing replies to
the exceptions has expired. The Commission or delegated authority, in
its discretion, will grant oral argument by order only in cases where
such oral
[[Page 146]]
presentations will assist in the resolution of the issues presented.
Within five days after release of an order designating an initial
decision for oral argument, as provided in paragraph (d) of this
section, any party who wishes to participate in oral argument shall file
a written notice of intention to appear and participate in oral
argument. Failure to file a written notice shall constitute a waiver of
the opportunity to participate.
(d) Each order scheduling a case for oral argument will contain the
allotment of time for each party for oral argument before the
Commission. The Commission will grant, in its discretion, upon good
cause shown, an extension of such time upon petition by a party, which
petition must be filed within 5 days after issuance of said order for
oral argument.
(e) Within 10 days after a transcript of oral argument has been
filed in the office of the Secretary of the Commission, any party who
participated in the oral argument may file with the Commission a motion
requesting correction of the transcript, which motion shall be
accompanied by proof of service thereof upon all other parties who
participated in the oral argument. Within 5 days after the filing of
such a motion, other parties may file a pleading in support of or in
opposition to such motion. Thereafter, the officer who presided at the
oral argument shall, by order, specify the corrections to be made in the
transcript, and a copy of the order shall be served upon all parties to
the proceeding. The officer who presided at the oral argument may, on
his own initiative, by order, specify corrections to be made in the
transcript on 5 days notice of the proposed corrections to all parties
who participated in the oral argument.
(f) Any commissioner who is not present at oral argument and who is
otherwise authorized to participate in a final decision may participate
in making that decision after reading the transcript of oral argument.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)
[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976; 41
FR 34259, Aug. 13, 1976; 44 FR 12426, Mar. 7, 1979; 56 FR 793, Jan. 9,
1991; 62 FR 4171, Jan. 29, 1997]
Sec. 1.279 Limitation of matters to be reviewed.
Upon review of any initial decision, the Commission may, in its
discretion, limit the issues to be reviewed to those findings and
conclusions to which exceptions have been filed, or to those findings
and conclusions specified in the Commission's order of review issued
pursuant to Sec. 1.276(b).
Sec. 1.282 Final decision of the Commission.
(a) After opportunity has been afforded for the filing of proposed
findings of fact and conclusions, exceptions, supporting statements,
briefs, and for the holding of oral argument as provided in this
subpart, the Commission will issue a final decision in each case in
which an initial decision has not become final.
(b) The final decision shall contain:
(1) Findings of fact and conclusions, as well as the reasons or
basis therefor, upon all the material issues of fact, law or discretion
presented on the record;
(2) Rulings on each relevant and material exception filed; the
Commission will deny irrelevant exceptions, or those which are not of
decisional significance, without a specific statement of reasons
prescribed by paragraph (b)(1) of this section; and
(3) The appropriate rule or oder and the sanction, relief or denial
thereof.
(Sec. 8(b), 60 Stat. 2422; 5 U.S.C. 1007(b))
[28 FR 12425, Nov. 22, 1963, as amended at 41 FR 14873, Apr. 8, 1976]
Interlocutory Actions in Hearing Proceedings
Sec. 1.291 General provisions.
(a)(1) The Commission acts on petitions to amend, modify, enlarge or
delete the issues in hearing proceedings which involve rule making
matters exclusively. It also acts on interlocutory pleadings filed in
matters or proceedings which are before the Commission.
(2) The Chief Administrative Law Judge acts on those interlocutory
matters listed in Sec. 0.351 of this chapter.
(3) All other interlocutory matters in hearing proceedings are acted
on by the presiding officer. See Secs. 0.218 and 0.341 of this chapter.
[[Page 147]]
(4) Each interlocutory pleading shall indicate in its caption
whether the pleading is to be acted upon by the Commission, the Chief
Administrative Law Judge, or the presiding officer. If the pleading is
to be acted upon by the presiding officer, he shall be identified by
name.
(b) All interlocutory pleadings shall be submitted in accordance
with the provisions of Secs. 1.4, 1.44, 1.47, 1.48, 1.49, and 1.52.
(c)(1) Procedural rules governing interlocutory pleadings are set
forth in Secs. 1.294-1.298.
(2) Rules governing appeal from, and reconsideration of,
interlocutory rulings made by the presiding officer are set forth in
Secs. 1.301 and 1.303.
(3) Rules governing the review of interlocutory rulings made by the
Chief Administrative Law Judge are set forth in Secs. 1.101, 1.102(b),
1.115, and 1.117. Petitions requesting reconsideration of an
interlocutory ruling made by the Commission, or the Chief Administrative
Law Judge will not be entertained. See, however, Sec. 1.113.
(d) No initial decision shall become effective under Sec. 1.276(e)
until all interlocutory matters pending before the Commission in the
proceeding at the time the initial decision is issued have been disposed
of and the time allowed for appeal from interlocutory rulings of the
presiding officer has expired.
(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as
amended; 47 CFR 0.61 and 0.283)
[29 FR 6443, May 16, 1964, as amended at 29 FR 12773, Sept. 10, 1964; 37
FR 19372, Sept. 20, 1972; 41 FR 14873, Apr. 8, 1976; 49 FR 4381, Feb. 6,
1984; 62 FR 4171, Jan. 29, 1997]
Sec. 1.294 Oppositions and replies.
(a) Any party to a hearing may file an opposition to an
interlocutory request filed in that proceeding.
(b) Except as provided in paragraph (c) of this section, oppositions
shall be filed within 4 days after the original pleading is filed, and
replies to oppositions will not be entertained. See, however,
Sec. 1.732.
(c) Oppositions to pleadings in the following categories shall be
filed within 10 days after the pleading is filed. Replies to such
oppositions shall be filed within 5 days after the opposition is filed,
and shall be limited to matters raised in the opposition.
(1) Petitions to amend, modify, enlarge, or delete the issues upon
which the hearing was ordered.
(2) [Reserved]
(3) Petitions by adverse parties requesting dismissal of an
application.
(4) Joint requests for approval of agreements filed pursuant to
Sec. 1.525.
(d) Additional pleadings may be filed only if specifically requested
or authorized by the person(s) who is to make the ruling.
[29 FR 6444, May 16, 1964, as amended at 39 FR 10909, Mar. 22, 1974]
Sec. 1.296 Service.
No pleading filed pursuant to Sec. 1.51 or Sec. 1.294 will be
considered unless it is accompanied by proof of service upon the parties
to the proceeding.
(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, as
amended; 47 CFR 0.61 and 0.283)
[49 FR 4381, Feb. 6, 1984, as amended at 62 FR 4171, Jan. 29, 1997]
Sec. 1.297 Oral argument.
Oral argument with respect to any contested interlocutory matter
will be held when, in the opinion of the person(s) who is to make the
ruling, the ends of justice will be best served thereby. Timely notice
will be given of the date, time, and place of any such oral argument.
[29 FR 6444, May 16, 1964]
Sec. 1.298 Rulings; time for action.
(a) Unless it is found that irreparable injury would thereby be
caused one of the parties, or that the public interest requires
otherwise, or unless all parties have consented to the contrary,
consideration of interlocutory requests will be withheld until the time
for filing oppositions (and replies, if replies are allowed) has
expired. As a matter of discretion, however, requests for continuances
and extensions of time, requests for permission to file pleadings in
excess of the length prescribed in this chapter, and requests for
temporary relief may be ruled upon ex parte without waiting for the
filing of responsive pleadings.
[[Page 148]]
(b) In the discretion of the presiding officer, rulings on
interlocutory matters may be made orally at the hearing. The presiding
officer may, in his discretion, state his reasons on the record or
subsequently issue a written statement of the reasons for his ruling,
either separately or as part of the initial decision.
[28 FR 12425, Nov. 22, 1963, as amended at 29 FR 6444, May 16, 1964; 41
FR 14874, Apr. 8, 1976]
Appeal and Reconsideration of Presiding Officer's Ruling
Sec. 1.301 Appeal from presiding officer's interlocutory ruling;
effective date of ruling.
(a) Interlocutory rulings which are appealable as a matter of right.
Rulings listed in this paragraph are appealable as a matter of right. An
appeal from such a ruling may not be deferred and raised as an exception
to the initial decision.
(1) If the presiding officer's ruling denies or terminates the right
of any person to participate as a party to a hearing proceeding, such
person, as a matter of right, may file an appeal from that ruling.
(2) If the presiding officer's ruling requires testimony or the
production of documents, over objection based on a claim of privilege,
the ruling on the claim of privilege is appealable as a matter of right.
(3) If the presiding officer's ruling denies a motion to disqualify
the presiding judge, the ruling is appealable as a matter of right.
(4) Rulings granting a joint request filed under Sec. 1.525 without
terminating the proceeding are appealable by any party as a matter of
right.
(5) A ruling removing counsel from the hearing is appealable as a
matter of right, by counsel on his own behalf or by his client. (In the
event of such ruling, the presiding officer will adjourn the hearing for
such period as is reasonably necessary for the client to secure new
counsel and for counsel to familiarize himself with the case).
(b) Other interlocutory rulings. Except as provided in paragraph (a)
of this section, appeals from interlocutory rulings of the presiding
officer shall be filed only if allowed by the presiding officer. Any
party desiring to file an appeal shall first file a request for
permission to file appeal. The request shall be filed within 5 days
after the order is released or (if no written order) after the ruling is
made. Pleadings responsive to the request shall be filed only if they
are requested by the presiding officer. The request shall contain a
showing that the appeal presents a new or novel question of law or
policy and that the ruling is such that error would be likely to require
remand should the appeal be deferred and raised as an exception. The
presiding officer shall determine whether the showing is such as to
justify an interlocutory appeal and, in accordance with his
determination, will either allow or disallow the appeal or modify the
ruling. If the presiding officer allows or disallows the appeal, his
ruling is final: Provided, however, That the Commission may, on its own
motion, dismiss an appeal allowed by the presiding officer on the ground
that objection to the ruling should be deferred and raised as an
exception. In the discretion of the presiding officer, the request for
permission to file appeal may be made orally, on the record of the
proceeding. The request may be disposed of orally.
(1) If an appeal is not allowed, or is dismissed by the Commission,
or if permission to file an appeal is not requested, objection to the
ruling may be raised on review of the initial decision.
(2) If an appeal is allowed and is considered on its merits, the
disposition on appeal is final. Objection to the ruling or to the action
on appeal may not be raised on review of the initial decision.
(3) If the presiding officer modifies the ruling, any party
adversely affected by the modified ruling may file a request for
permission to file appeal, pursuant to the provisions of this paragraph.
(c) Procedures, effective date. (1) Unless the presiding officer
orders otherwise, rulings made by him shall be effective when the order
is released or (if no written order) when the ruling is made. The
Commission may stay the effect of any ruling which comes before it for
consideration on appeal.
[[Page 149]]
(2) Appeals filed under paragraph (a) of this section shall be filed
within 5 days after the order is released or (if no written order) after
the ruling is made. Appeals filed under paragraph (b) of this section
shall be filed within 5 days after the appeal is allowed.
(3) The appeal shall conform with the specifications set out in
Sec. 1.49 and shall be subscribed and verified as provided in Sec. 1.52.
(4) The appeal shall be served on parties to the proceeding (see
Secs. 1.47 and 1.211), and shall be filed with the Secretary, Federal
Communications Commission, Washington, D.C. 20554.
(5) The appeal shall not exceed 5 double-spaced typewritten pages.
(6) Appeals are acted on by the Commission.
(7) Oppositions and replies shall be served and filed in the same
manner as appeals and shall be served on appellant if he is not a party
to the proceeding. Oppositions shall be filed within 5 days after the
appeal is filed. Replies shall not be permitted, unless the Commission
specifically requests them. Oppositions shall not exceed 5 double-spaced
typewritten pages. Replies shall not exceed 5 double-spaced typewritten
pages.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[35 FR 17333, Nov. 11, 1970, as amended at 40 FR 39509, Aug. 28, 1975;
41 FR 14874, Apr. 8, 1976; 41 FR 28789, July 13, 1976; 46 FR 58682, Dec.
3, 1981; 55 FR 36641, Sept. 6, 1990; 62 FR 4171, Jan. 29, 1997]
Sec. 1.302 Appeal from presiding officer's final ruling; effective date
of ruling.
(a) If the presiding officer's ruling terminates a hearing
proceeding, any party to the proceeding, as a matter of right, may file
an appeal from that ruling within 30 days after the ruling is released.
(b) Any party who desires to preserve the right to appeal shall file
a notice of appeal within 10 days after the ruling is released. If a
notice of appeal is not filed within 10 days, the ruling shall be
effective 30 days after the ruling is released and within this period,
may be reviewed by the Commission on its own motion. If an appeal is not
filed following notice of appeal, the ruling shall be effective 50 days
after the day of its release and, within this period, may be reviewed by
the Commission on its own motion. If an appeal is filed, or if the
Commission reviews the ruling on its own motion, the effect of the
ruling is further stayed pending the completion of proceedings on appeal
or review.
(c) The appeal shall conform with the specifications set out in
Sec. 1.49 and shall be subscribed and verified as provided in Sec. 1.52.
(d) The appeal shall be served on parties to the proceeding (see
Secs. 1.47 and 1.211), and shall be filed with the Secretary, Federal
Communications Commission, Washington, D.C. 20554.
(e) The appeal shall not exceed 25 double-spaced typewritten pages.
(f) The Commission will act on the appeal.
(g) Oppositions and replies shall be filed and served in the same
manner as the appeal. Oppositions to an appeal shall be filed within 15
days after the appeal is filed. Replies to oppositions shall be filed
within 10 days after the opposition is filed and shall be limited to
matters raised in the oppositions. Oppositions shall not exceed 25
double-spaced typewritten pages. Replies shall not exceed 10 double-
spaced typewritten pages.
[35 FR 17333, Nov. 11, 1970, as amended at 36 FR 7423, Apr. 20, 1971; 62
FR 4171, Jan. 29, 1997]
The Discovery and Preservation of Evidence
Authority: Sections 1.311 through 1.325 are issued under secs. 4,
303, 409, 48 Stat., as amended, 1066, 1082, 1096; 47 U.S.C. 154, 303,
409, 5 U.S.C. 552.
Sec. 1.311 General.
Sections 1.311 through 1.325 provide for taking the deposition of
any person (including a party), for interrogatories to parties, and for
orders to parties relating to the production of documents and things and
for entry upon real property. These procedures may be used for the
discovery of relevant facts, for the production and preservation of
evidence for use at the hearing, or for both purposes.
(a) Applicability. For purposes of discovery, these proecdures may
be used in any case of adjudication (as defined in the Administrative
Procedure Act)
[[Page 150]]
which has been designated for hearing. For the preservation of evidence,
they may be used in any case which has been designated for hearing and
is conducted under the provisions of this subpart (see Sec. 1.201).
(b) Scope of examination. Persons and parties may be examined
regarding any matter, not privileged, which is relevant to the hearing
issues, including the existence, description, nature, custody, condition
and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of relevant facts. It
is not ground for objection to use of these procedures that the
testimony will be inadmissible at the hearing if the testimony sought
appears reasonably calculated to lead to the discovery of admissible
evidence. The use of these procedures against the Commission is subject
to the following additional limitations:
(1) The informer's privilege shall encompass information which may
lead to the disclosure of an informer's identity.
(2) Commission personnel may not be questioned by deposition for the
purposes of discovery except on special order of the Commission, but may
be questioned by written interrogatories under Sec. 1.323.
Interrogatories shall be served on the appropriate Bureau Chief (see
Sec. 1.21(b)). They will be answered and signed by those personnel with
knowledge of the facts. The answers will be served by the Secretary of
the Commission upon parties to the proceeding.
(3) Commission records are not subject to discovery under
Sec. 1.325. The inspection of Commission records is governed by the
Freedom of Information Act, as amended, and by Secs. 0.451 through 0.467
of this chapter. Commission employees may be questioned by written
interrogatories regarding the existence, nature, description, custody,
condition and location of Commission records, but may not be questioned
concerning their contents unless the records are available (or are made
available) for inspection under Secs. 0.451 through 0.467. See
Sec. 0.451(b)(5) of this chapter.
(4) Subject to paragraphs (b) (1) through (3) of this section,
Commission personnel may be questioned generally by written
interrogatories regarding the existence, description, nature, custody,
condition and location of relevant documents and things and regarding
the identity and location of persons having knowledge of relevant facts,
and may otherwise only be examined regarding facts of the case as to
which they have direct personal knowledge.
(c) Schedule for use of the procedures. (1) In comparative broadcast
proceedings involving applicants for only new facilities, discovery
commences with the release of the hearing designation order, and, in
routine cases, the discovery phase of the proceeding will be conducted
in a manner intended to conclude that portion of the case within 90 days
of the release of the designation order.
(2) In all other proceedings, except as provided by special order of
the presiding officer, discovery may be initiated before or after the
prehearing conference provided for in Sec. 1.248 of this part.
(3) In all proceedings, the presiding officer may at any time order
the parties or their attorneys to appear at a conference to consider the
proper use of these procedures, the time to be allowed for such use,
and/or to hear agrument and render a ruling on disputes that arise under
these rules.
(d) Who shall act. Actions provided for in Secs. 1.311 through 1.325
will, in most cases, be taken by the officer designated to preside at
the hearing (see Sec. 1.241). If the proceeding, or a particular matter
to which the action relates, is before the Commission, a commissioner or
panel of commissioners, or the Chief Administrative Law Judge, the
action will be taken by such officer or body. The term presiding
officer, as used in Secs. 1.311 through 1.325 shall be understood to
refer to the appropriate officer or body. See Secs. 0.341, 0.351, 0.365,
and 1.271 of this chapter.
(e) Stipulations regarding the taking of depositions. If all of the
parties so stipulate in writing and if there is no interference to the
conduct of the proceeding, depositions may be taken before any person,
at any time (subject to the limitation below) or place, upon any notice
and in any manner, and when so
[[Page 151]]
taken may be used like other depositions. An original and one copy of
the stipulation shall be filed with the Secretary of the Commission, and
a copy of the stipulation shall be served on the presiding officer, at
least 3 days before the scheduled taking of the deposition.
[33 FR 463, Jan. 12, 1968, as amended at 40 FR 39509, Aug. 28, 1975; 47
FR 51873, Nov. 18, 1982; 56 FR 794, Jan. 9, 1991; 62 FR 4171, Jan. 29,
1997]
Sec. 1.313 Protective orders.
The use of the procedures set forth in Secs. 1.311 through 1.325 of
this part is subject to control by the presiding officer, who may issue
any order consistent with the provisions of those sections which is
appropriate and just for the purpose of protecting parties and deponents
or of providing for the proper conduct of the proceeding. Whenever doing
so would be conducive to the efficient and expeditious conduct of the
proceeding, the presiding officer may convene a conference to hear
argument and issue a ruling on any disputes that may arise under these
rules. The ruling, whether written or delivered on the record at a
conference, may specify any measures, including the following to assure
proper conduct of the proceeding or to protect any party or deponent
from annoyance, expense, embarassment or oppression:
(a) That depositions shall not be taken or that interrogatories
shall not be answered.
(b) That certain matters shall not be inquired into.
(c) That the scope of the examination or interrogatories shall be
limited to certain matters.
(d) That depositions may be taken only at some designated time or
place, or before an officer, other than that stated in the notice.
(e) That depositions may be taken only by written interrogatories or
only upon oral examination.
(f) That, after being sealed, the deposition shall be opened only by
order of the presiding officer.
[33 FR 463, Jan. 12, 1968, as amended at 56 FR 794, Jan. 9, 1991]
Sec. 1.315 Depositions upon oral examination--notice and preliminary
procedure.
(a) Notice. A party to a hearing proceeding desiring to take the
deposition of any person upon oral examination shall give a minimum of
21 days notice in writing to every other party, to the person to be
examined, and to the presiding officer. An original and three copies of
the notice shall be filed with the Secretary of the Commission. Related
pleadings shall be served and filed in the same manner. The notice shall
contain the following information:
(1) The name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs.
(2) The time and place for taking the deposition of each person to
be examined, and the name or descriptive title and address of the
officer before whom the deposition is to be taken.
(3) The matters upon which each person will be examined. See
Sec. 1.319.
(b) Responsive pleadings. (1) Within 7 days after service of the
notice to take depositions, a motion opposing the taking of depositions
may be filed by any party to the proceeding or by the person to be
examined. See Sec. 1.319(a).
(2) Within 14 days after service of the notice to take depositions,
a response to the opposition motion may be filed by any party to the
proceeding.
(3) Additional pleadings should not be filed and will not be
considered.
(4) The computation of time provisions set forth in Sec. 1.4(g)
shall not apply to pleadings filed under the provisions of this
paragraph.
(c) Protective order. On an opposition motion filed under paragraph
(b) of this section, or on his own motion, the presiding officer may
issue a protective order. See Sec. 1.313. A protective order issued by
the presiding officer on his own motion may be issued at any time prior
to the date specified in the notice for the taking of depositions.
(d) Authority to take depositions. (1) If an opposition motion is
not filed within 7 days after service of the notice to take depositions,
and if the presiding officer does not on his own motion
[[Page 152]]
issue a protective order prior to the time specified in the notice for
the taking of depositions, the depositions described in the notice may
be taken. An order for the taking of depositions is not required.
(2) If an opposition motion is filed, the depositions described in
the notice shall not be taken until the presiding officer has acted on
that motion. If the presiding officer authorizes the taking of
depositions, he may specify a time, place or officer for taking them
different from that specified in the notice to take depositions.
(3) If the presiding officer issues a protective order, the
depositions described in the notice may be taken (if at all) only in
accordance with the provisions of that order.
(e) Broadcast comparative proceedings involving applicants for only
new facilities. In these cases, the 21-day advance notice provision of
paragraph (a) of this section shall be inapplicable to depositions of
active and passive owners of applicants in the proceeding. All
applicants in such proceedings should be prepared to make their active
and passive owners available for depositions during the period
commencing with the deadline for filing notices of appearance and ending
90 days after the release of the designation order, if such depositions
are requested by a party to the proceeding. All such depositions will be
conducted in Washington, DC or in the community of license of the
proposed station, at the deponent's option, unless all parties agree to
some other location.
[33 FR 10571, July 25, 1968, as amended at 56 FR 794, Jan. 9, 1991]
Sec. 1.316 Depositions upon written interrogatories--notice and
preliminary procedure.
(a) Service of interrogatories; notice. A party to the hearing
proceeding desiring to take the deposition of any person upon written
interrogatories shall serve the interrogatories upon every other party
and shall give a minimum of 35 days notice in writing to every other
party and to the person to be examined. An original and three copies of
the interrogatories and the notice (and of all related pleadings) shall
be filed with the Secretary of the Commission. A copy of the
interrogatories and the notice (and of all related pleadings) shall be
served on the presiding officer. The notice shall contain the following
information:
(1) The name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs.
(2) The time and place for taking the deposition of each person to
be examined, and the name or descriptive title and address of the
officer before whom the deposition is to be taken.
(3) The matters upon which each person will be examined. See
Sec. 1.319.
(b) Additional interrogatories. Within 7 days after the filing and
service of the original interrogatories, any other party to the
proceeding may, in the same manner, file and serve additional
interrogatories to be asked of the same witness at the same time and
place, with notice to the witness of any additional matters upon which
he will be examined.
(c) Cross interrogatories. Within 14 days after the filing and
service of the original interrogatories, any party to the proceeding
may, in the same manner, file and serve cross interrogatories, which
shall be limited to matters raised in the original or in the additional
interrogatories.
(d) Responsive pleadings. (1) Within 21 days after service of the
original interrogatories, any party to the proceeding may move to limit
or suppress any original, additional or cross interrogatory, and the
person to be examined may file a motion opposing the taking of
depositions. See Sec. 1.319(a).
(2) Within 28 days after service of the original interrogatories, a
response to a motion to limit or suppress any interrogatory or to a
motion opposing the taking of depositions may be filed by any party to
the proceeding.
(3) Additional pleadings should not be filed and will not be
considered.
(e) Protective order. On a motion to limit or suppress or an
opposition motion filed under paragraph (d) of this section, or on his
own motion, the presiding officer may issue a protective order. See
Sec. 1.313. A protective order issued by the presiding officer on his
own
[[Page 153]]
motion may be issued at any time prior to the date specified in the
notice for the taking of depositions.
(f) Authority to take depositions. (1) If an opposition motion is
not filed within 21 days after service of the notice to take
depositions, and if the presiding officer does not on his own motion
issue a protective order prior to the time specified in the notice for
the taking of depositions, the depositions described in the notice may
be taken. An order for the taking of depositions is not required.
(2) If an opposition motion is filed, the depositions described in
the notice shall not be taken until the presiding officer has acted on
that motion. If the presiding officer authorizes the taking of
depositions, he may specify a time, place or officer for taking them
different from that specified in the notice to take depositions.
(3) If the presiding officer issues a protective order, the
depositions described in the notice may be taken (if at all) only in
accordance with the provisions of that order.
Note: The computation of time provisions of Sec. 1.4(g) shall not
apply to interrogatories and pleadings filed under the provisions of
this section.
[33 FR 10571, July 25, 1968]
Sec. 1.318 The taking of depositions.
(a) Persons before whom depositions may be taken. Depositions shall
be taken before any judge of any court of the United States; any U.S.
Commissioner; any clerk of a district court; any chancellor, justice or
judge of a supreme or superior court; the mayor or chief magistrate of a
city; any judge of a county court, or court of common pleas of any of
the United States; any notary public, not being of counsel or attorney
to any party, nor interested in the event of the proceeding; or
presiding officers, as provided in Sec. 1.243.
(b) Attendance of witnesses. The attendance of witnesses at the
taking of depositions may be compelled by the use of subpena as provided
in Secs. 1.331 through 1.340.
(c) Oath; transcript. The officer before whom the deposition is to
be taken shall administer an oath or affirmation to the witness and
shall personally, or by someone acting under his direction and in his
presence record the testimony of the witness. The testimony may be taken
stenographically or, upon approval by the presiding officer, testimony
may be taken through the use of telephonically or electronically
recorded methods, including videotape. In the event these latter methods
are used for the deposition, the parties may agree to the waiver of the
provisions of paragraphs (e) and (f) as appropriate and as approved by
the presiding officer.
(d) Examination. (1) In the taking of depositions upon oral
examination, the parties may proceed with examination and cross-
examination of deponents as permitted at the hearing. In lieu of
participating in the oral examination, parties served with the notice to
take depositions may transmit written interrogatories to the officer
designated in the notice, who shall propound them to the witness and
record the answers verbatim.
(2) In the taking of depositions upon written interrogatories, the
party who served the original interrogatories shall transmit copies of
all interrogatories to the officer designated in the notice, who shall
propound them to the witness and record the answers verbatim.
(e) Submission of deposition to witness; changes; signing. When the
testimony is fully transcribed, the deposition of each witness shall be
submitted to him for examination and shall be read to or by him, unless
such examination and reading are waiver by the witness and by the
parties. Any changes in form or substance which the witness desires to
make shall be entered upon the deposition by the officer with a
statement of the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the parties by
stipulation waive the signing, or the witness is ill, cannot be found,
or refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver,
the illness or absence of the witness, or of his refusal to sign,
together with the reason (if any) given therefor; and the deposition may
then be used as fully as though signed, unless upon a motion to
[[Page 154]]
suppress, the presiding officer holds that the reason given for the
refusal to sign requires rejection of the deposition in whole or in
part.
(f) Certification of deposition and filing by officer; copies. The
officer shall certify on the deposition that the witness was duly sworn
by him, that the deposition is a true record of the testimony given by
the witness, and that said officer is not of counsel or attorney to
either of the parties, nor interested in the event of the proceeding or
investigation. He shall then securely seal the deposition in an envelope
endorsed with the title of the action and marked ``Deposition of (here
insert name of witness)'' and shall promptly send the original and two
copies of the deposition and of all exhibits, together with the notice
and any interrogatories received by him, by certified mail to the
Secretary of the Commission.
[33 FR 463, Jan. 12, 1968, as amended at 47 FR 51873, Nov. 18, 1982]
Sec. 1.319 Objections to the taking of depositions.
(a) Objections to be made by motion prior to the taking of
depositions. If there is objection to the substance of any interrogatory
or to examination on any matter clearly covered by the notice to take
depositions, the objection shall be made in a motion opposing the taking
of depositions or in a motion to limit or suppress the interrogatory as
provided in Secs. 1.315(b) and 1.316(d) and shall not be made at the
taking of the deposition.
(b) Objections to be made at the taking of depositions. Errors and
irregularities occurring at the oral examination in the manner of taking
the deposition, in the form of the questions or answers, in the oath or
affirmation, or in the conduct of parties, and errors of any kind which
might be obviated, removed, or cured if promptly presented, are waived
unless reasonable objection thereto is made at the taking of the
deposition. If such objection is made, counsel shall, if possible, agree
upon the measures required to obviate, remove, or cure such errors. The
measures agreed upon shall be taken. If agreement cannot be reached, the
objection shall be noted on the deposition by the officer taking it, and
the testimony objected to shall be taken subject to the objection.
(c) Additional objections which may be made at the taking of
depositions. Objection may be made at the taking of depositions on the
ground of relevancy or privilege, if the notice to take depositions does
not clearly indicate that the witness is to be examined on the matters
to which the objection relates. See paragraph (a) of this section.
Objection may also be made on the ground that the examination is being
conducted in such manner as to unreasonably annoy, embarrass, or oppress
a deponent or party.
(1) When there is objection to a line of questioning, as permitted
by this paragraph, counsel shall, if possible, reach agreement among
themselves regarding the proper limits of the examination.
(2) If counsel cannot agree on the proper limits of the examination
the taking of depositions shall continue on matters not objected to and
counsel shall, within 24 hours, either jointly or individually,
telegraph statements of their positions to the presiding officer,
together with the telephone numbers at which they and the officer taking
the depositions can be reached, or shall otherwise jointly confer with
the presiding officer. If individual statements are submitted, copies
shall be provided to all counsel participating in the taking of
depositions.
(3) The presiding officer shall promptly rule upon the question
presented or take such other action as may be appropriate under
Sec. 1.313, and shall give notice of his ruling, by telephone, to
counsel who submitted statements and to the officer taking the
depositions. The presiding officer shall thereafter reduce his ruling to
writing.
(4) The taking of depositions shall continue in accordance with the
presiding officer's ruling. Such rulings are not subject to appeal.
[33 FR 463, Jan. 12, 1968]
Sec. 1.321 Use of depositions at the hearing.
(a) No inference concerning the admissibility of a deposition in
evidence shall be drawn because of favorable action on the notice to
take depositions.
[[Page 155]]
(b) Except as provided in this paragraph and in Sec. 1.319,
objection may be made at the hearing to receiving in evidence any
deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and
testifying.
(1) Objections to the competency of a witness, or the competency,
relevancy or materiality of testimony are waived by failure to make them
before or during the taking of depositions if (and only if) the ground
of the objection is one which might have been obviated or removed if
presented at that time.
(2) Objection on the ground of privilege is waived by failure to
make it before or during the taking of depositions.
(c) A party shall not be deemed to make a person his own witness for
any purpose by taking his deposition. The introduction in evidence of
the deposition or any part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the deponent the witness
of the party introducing the deposition, but this shall not apply to the
use by an adverse party of a deposition as described in paragraph (d)(2)
of this section. At the hearing any party may rebut any relevant
evidence contained in a deposition whether introduced by him or by any
other party.
(d) At the hearing (or in a pleading), any part or all of a
deposition, so far as admissible, may be used against any party who was
present or represented at the taking of the deposition or who had due
notice thereof, in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent of a
public or private corporation, partnership or association which is a
party may be used by an adverse party for any purpose.
(3) To the extent that the affirmative direct case of a party is
made in writing pursuant to Sec. 1.248(d), the deposition of any
witness, whether or not a party, may be used by any party for any
purpose, provided the witness is made available for cross-examination.
In all cases, the deposition of a witness, whether or not a party, may
be used by any party for any purpose if the presiding officer finds: (i)
That the witness is dead; or (ii) that the witness is out of the United
States, unless it appears that the absence of the witness was procured
by the party offering the deposition; or (iii) that the witness is
unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or (iv) upon application and notice, that such exceptional
circumstances exist as to make it desirable in the interest of justice
and with due regard to the importance of presenting the testimony of
witnesses orally in open hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any other
parts.
(5) Substitution of parties does not affect the right to use
depositions previously taken; and, when an action in any hearing has
been dismissed and another action involving the same subject matter is
afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in
the former action may be used in the latter as if originally taken
therefor.
[33 FR 463, Jan. 12, 1968, as amended at 41 FR 14874, Apr. 8, 1976]
Sec. 1.323 Interrogatories to parties.
(a) Interrogatories. Any party may serve upon any other party
written interrogatories to be answered in writing by the party served
or, if the party served is a public or private corporation or a
partnership or association, by any officer or agent, who shall furnish
such information as is available to the party. A copy of the
interrogatories shall be served upon all parties to the proceeding. An
original and three copies of the interrogatories, answers, and all
related pleadings shall be filed with the Secretary of the Commission. A
copy of the interrogatories, answers
[[Page 156]]
and all related pleadings shall be served on the presiding officer.
(1) Except as otherwise provided in a protective order, the number
of interrogatories or sets of interrogatories is not limited.
(2) Except as provided in such an order, interrogatories may be
served after a deposition has been taken, and a deposition may be sought
after interrogatories have been answered.
(b) Answers and objections. Each interrogatory shall be answered
separately and fully in writing under oath or affirmation, unless it is
objected to, in which event the reasons for objection shall be stated in
lieu of an answer. The answers shall be signed by the person making
them, and the objections by the attorney making them. The party upon
whom the interrogatories were served shall serve a copy of the answers
and objections upon all parties to the proceeding within 14 days after
service of the interrogatories, or within such shorter or longer period
as the presiding officer may allow. Answers may be used in the same
manner as depositions of a party (see Sec. 1.321(d)).
(c) Motion to compel an answer. Any party to the proceeding may,
within 7 days, move for an order with respect to any objection or other
failure to answer an interrogatory. For purposes of this paragraph, an
evasive or incomplete answer is a failure to answer; and if the motion
is based on the assertion that the answer is evasive or incomplete, it
shall contain a statement as to the scope and detail of an answer which
would be considered responsive and complete. The party upon whom the
interrogatories were served may file a response within 7 days after the
motion is filed, to which he may append an answer or an amended answer.
Additional pleadings should not be submitted and will not be considered.
(d) Action by the presiding officer. If the presiding officer
determines that an objection is not justified, he shall order that the
answer be served. If an interrogatory has not been answered, the
presiding officer may rule that the right to object has been waived and
may order that an answer be served. If an answer does not comply fully
with the requirements of this section, the presiding officer may order
that an amended answer be served, may specify the scope and detail of
the matters to be covered by the amended answer, and may specify any
appropriate procedural consequences (including adverse findings of fact
and dismissal with prejudice) which will follow from the failure to make
a full and responsive answer. If a full and responsive answer is not
made, the presiding officer may issue an order invoking any of the
procedural consequences specified in the order to compel an answer.
(e) Appeal. As order to compel an answer is not subject to appeal.
[33 FR 10572, July 25, 1968, as amended at 35 FR 17334, Nov. 11, 1970]
Sec. 1.325 Discovery and production of documents and things for
inspection, copying, or photographing.
(a) A party to a Commission proceeding may request any other party
except the Commission to produce and permit inspection and copying or
photographing, by or on behalf of the requesting party, of any
designated documents, papers, books, accounts, letters, photographs,
objects, or tangible things which constitute or contain evidence within
the scope of the examination permitted by Sec. 1.311(b) of this part and
which are in his possession, custody, or control or to permit entry upon
designated land or other property in his possession or control for
purposes of inspecting, measuring, surveying, or photographing the
property or any designated object or operation thereon within the scope
of the examination permitted by Sec. 1.311(b) of this part.
(1) Such requests need not be filed with the presiding officer, but
copies of the request shall be served on all other parties to the
proceeding.
(2) The party against whom the request was made must, within 10
days, comply with the request or object to the request, claiming a
privilege or raising other proper objections. If the request is not
complied with in whole or in part, the requesting party may file a
motion to compel production of documents or access to property with the
presiding officer. A motion to compel must be accompanied by a copy of
the original request and the responding party's objection or claim of
privilege.
[[Page 157]]
Motions to compel must be filed within five business days of the
objection or claim of privilege.
(3) In resolving any disputes involving the production of documents
or access to property, the presiding officer may direct that the
materials objected to be presented to him for in camera inspection.
(b) Any party seeking the production of Commission records should
proceed under Sec. 0.460 or Sec. 0.461 of this chapter. See Secs. 0.451
through 0.467.
(c) In comparative broadcast proceedings involving applicants for
only new facilities, all applicants will serve the materials listed in
the Standard Document Production Order and the Standardized Integration
Statement on all other parties in the case that have filed Notices of
Appearance. The exchange of these materials must be accomplished within
five days after the date established for filing notices of appearance
(see Sec. 1.221).
(1) Standard Document Production Order. The following documents must
be produced or objected to on grounds of privilege (Unless otherwise
directed by the presiding officer, copies of these documents should not
be filed with the presiding officer):
(i) All formation and organizational documents, including articles
of incorporation, by laws, partnership agreements, voting rights,
proxies, and any amendments to the foregoing documents;
(ii) All minutes of meetings relating to the application;
(iii) All documents relating to the rights or plans of persons or
entities to purchase an interest in the applicant or of current owners
to alineate their interests;
(iv) All documents relating to pledges, mortgages, security
interests, or other encumbrances of any kind with respect to the
applicant;
(v) All bank letters and other financing documents with the dollar
amounts unexpurgated;
(vi) All documents relating to the applicant's proposed transmitter
site;
(vii) All documents relating to communications by proposed
integrated principals with respect to their proposed participation in
the management of the station and the disposition of their current
employment;
(viii) All documents relating to prior integration pledges made by
principals who propose to be integrated into the management of the
station at issue;
(ix) All documents relating to communications by and between
principals of the applicant concerning the application, including
communications between active and passive principals;
(x) Representative documents relating to enhancement credits and
preferences sought by the applicant's principals for local residence,
civic participation, past broadcast experience, minority/female status,
and the like;
(xi) All documents relating to commitments to divest other media
interests; and
(xii) All documents that identify or describe the principals who are
responsible for completing the application, arranging financing,
obtaining the applicant's transmitter site, publishing the required
notices, establishing the local public inspection file, and retaining
lawyers, engineers, and other professionals.
(2) Standardized Integration Statement. On the same day that
documents are exchanged pursuant to the Standardized Document Production
Order, the following information must also be provided by all applicants
(Copies of this statement should be filed with the presiding officer and
served on all parties to the proceeding that have filed Notices of
Appearance):
(i) The ownership structure of the applicant, i.e., whether it is a
partnership, limited partnership, or a corporation (if a corporation,
indicate whether it has voting and non-voting stock);
(ii) The ownership percentage of each owner;
(iii) The identity of the owners who will work at the proposed
station, what titles and duties they will have, how many hours they will
work per week, and how they will reconcile any current business
interests or employment with that commitment to the station;
(iv) All other media interests held by the persons identified under
paragraph (c)(2)(ii), of this section;
[[Page 158]]
(v) Whether the integrated owners will claim credit for minority or
female ownership and if so, specifically on what basis;
(vi) Whether the integrated owners will claim credit for local
residence and civic involvement in the city of license or service area
and if so, specifically on what basis (including a detailed chronology
of past residence and a description of civic activities and their
duration);
(vii) Whether the integrated owners will claim credit for previous
broadcast experience and if so, provide a detailed list of the stations
they worked at, the titles and duties they had, and the years in which
they were so employed; and
(viii) Whether the applicant will claim a daytimer preference and if
so, specifically on what basis.
(3) Supplemental document production. Parties may request additional
relevant documents, not called for in the Standard Document Production
Order, at any time after the release of the designation order.
Supplemental requests for documents based on materials exchanged
pursuant to the Standardized Document Production Order and Standardized
Integration Statement must be filed no later than ten days after those
standardized exchanges. Other supplemental document requests must be
filed no later than ten days after receipt of the information on which
those requests are based. Supplemental document requests will be handled
under the procedures established in paragraph (a) of this section. To
facilitate the resolution of disputes concerning the production of
documents, the presiding officer may convene a pre-hearing conference to
hear argument on and dispose of any such disputes.
[33 FR 463, Jan. 12, 1968, as amended at 40 FR 39509, Aug. 28, 1975; 56
FR 794, Jan. 9, 1991; 56 FR 25639, June 5, 1991]
Subpenas
Authority: Sections 1.331 and 1.333 through 1.340 are issued under
sec. 409, 48 Stat. 1096; 47 U.S.C. 409.
Sec. 1.331 Who may sign and issue.
Subpenas requiring the attendance and testimony of witnesses, and
subpenas requiring the production of any books, papers, schedules of
charges, contracts, agreements, and documents relating to any matter
under investigation or hearing, may be signed and issued as follows:
(a) Hearings before the Commission en banc, an individual
commissioner, or a panel of commissioners: By any commissioner
participating in the conduct of the hearing.
(b) Hearings before an administrative law judge: By the
administrative law judge or, in his absence, by the Chief Administrative
Law Judge.
Sec. 1.333 Requests for issuance of subpena.
(a) Unless submitted on the record while a hearing is in progress,
requests for a subpena ad testificandum shall be submitted in writing.
(b) Requests for a subpena duces tecum shall be submitted in
writing, duly subscribed and verified, and shall specify with
particularity the books, papers, and documents desired and the facts
expected to be proved thereby. Where the subpena duces tecum request is
directed to a nonparty to the proceeding, the presiding officer may
issue the same, upon request, without an accompanying subpena to enforce
a notice to take depositions, provided for in paragraph (e) of this
section, where it appears that the testimony of said person is not
required in connection with the subpena duces tecum.
(c) All requests for subpenas shall be supported by a showing of the
general relevance and materiality of the evidence sought.
(d) Requests for subpenas shall be submitted in triplicate, but need
not be served on the parties to the proceeding.
(e) Requests for issuance of a subpena ad testificandum to enforce a
notice to take depositions shall be submitted in writing. Such requests
may be submitted with the notice or at a later date. The request shall
not be granted until the period for the filing of motions opposing the
taking of depositions has expired or, if a motion has been filed, until
that motion has been acted on.
[[Page 159]]
Regardless of the time when the subpena request is submitted, it need
not be accompanied by a showing that relevant and material evidence will
be adduced, but merely that the person will be examined regarding a
nonprivileged matter which is relevant to the hearing issues. The
subpena request may ask that a subpena duces tecum be contemporaneously
issued commanding the person to whom it is directed to produce
designated books, papers, documents, or tangible things which constitute
or contain evidence relating to any of the matters within the scope of
the examination permitted by Sec. 1.311(b) but in that event the subpena
request will be subject to the provisions of Sec. 1.313 and paragraph
(b) of this section.
(f) Requests for issuance of a subpena duces tecum to enforce an
order for the production of documents and things for inspection and
copying under Sec. 1.325 may be submitted with the motion requesting the
issuance of such an order. Regardless of the time when the subpena
request is submitted, it need not be accompanied by a showing that
relevant and material evidence will be adduced, but merely that the
documents and things to be examined contain nonprivileged matter which
is relevant to the subject matter of the proceeding.
[28 FR 12425, Nov. 22, 1963, as amended at 33 FR 466, Jan. 12, 1968; 47
FR 51873, Nov. 18, 1982]
Sec. 1.334 Motions to quash.
Any person against whom a subpena is directed may file a motion to
quash or limit the subpena, setting forth the reasons why the subpena
should not be complied with or why it should be limited in scope.
Sec. 1.335 Rulings.
Prompt notice, including a brief statement of the reasons therefor,
will be given of the denial, in whole or in part, of a request for
subpena or of a motion to quash.
Sec. 1.336 Service of subpenas.
(a) A subpena may be served by a United States marshal or his
deputy, by Commission personnel, or by any person who is not a party to
the proceeding and is not less than 18 years of age.
(b) Service of a subpena upon the person named therein shall be made
by exhibiting the original subpena to him, by reading the original
subpena to him if he is unable to read, by delivering the duplicate
subpena to him, and by tendering to him the fees for one day's
attendance at the proceeding to which he is summoned and the mileage
allowed by law. If the subpena is issued on behalf of the United States
or an officer or agency thereof, attendance fees and mileage need not be
tendered.
Sec. 1.337 Return of service.
(a) If service of the subpena is made by a person other than a
United States marshal or his deputy such person shall make affidavit
thereof, stating the date, time, and manner of service.
(b) In case of failure to make service, the reasons for the failure
shall be stated on the original subpena by the person who attempted to
make service.
(c) The original subpena, bearing or accompanied by the required
return affidavit or statement, shall be returned forthwith to the
Secretary of the Commission or, if so directed on the subpena, to the
official before whom the person named in the subpena is required to
appear.
Sec. 1.338 Subpena forms.
(a) Subpena forms, marked ``Original'', ``Duplicate'', and
``Triplicate'', and bearing the Commission's seal, may be obtained from
the Commission's Dockets Division. These forms are to be completed and
submitted with any request for issuance of a subpena.
(b) If the request for issuance of a subpena is granted, the
``Original'' and ``Duplicate'' copies of the subpena are returned to the
person who submitted the request. The ``Triplicate'' copy is retained
for the Commission's files.
(c) The ``Original'' copy of the subpena includes a form for proof
of service. This form is to be executed by the person who effects
service and returned by him to the Secretary of the Commission or, if so
directed on the subpena, to the official before whom the person named in
the subpena is required to appear.
(d) The ``Duplicate'' copy of the subpena shall be served upon the
person
[[Page 160]]
named therein and retained by him. This copy should be presented in
support of any claim for witness fees or mileage allowances for
testimony on behalf of the Commission.
Sec. 1.339 Witness fees.
Witnesses who are subpenaed and respond thereto are entitled to the
same fees, including mileage, as are paid for like service in the courts
of the United States. Fees shall be paid by the party at whose instance
the testimony is taken.
Sec. 1.340 Attendance of witness; disobedience.
The attendance of witnesses and the production of documentary
evidence may be required from any place in the United States at any
designated place of hearing. In case of disobedience to a subpena, the
Commission or any party to a proceeding before the Commission may invoke
the aid of any court of the United States in requiring the attendance
and testimony of witnesses and the production of documentary evidence.
Evidence
Sec. 1.351 Rules of evidence.
Except as otherwise provided in this subpart, the rules of evidence
governing civil proceedings in matters not involving trial by jury in
the courts of the United States shall govern formal hearings. Such rules
may be relaxed if the ends of justice will be better served by so doing.
Sec. 1.352 Cumulative evidence.
The introduction of cumulative evidence shall be avoided, and the
number of witnesses that may be heard in behalf of a party on any issue
may be limited.
Sec. 1.353 Further evidence during hearing.
At any stage of a hearing, the presiding officer may call for
further evidence upon any issue and may require such evidence to be
submitted by any party to the proceeding.
Sec. 1.354 Documents containing matter not material.
If material and relevant matter offered in evidence is embraced in a
document containing other matter not material or relevant, and not
intended to be put in evidence, such document will not be received, but
the party offering the same shall present to other counsel, and to the
presiding officer, the original document, together with true copies of
such material and relevant matter taken therefrom, as it is desired to
introduce. Upon presentation of such matter, material and relevant, in
proper form, it may be received in evidence, and become a part of the
record. Other counsel will be afforded an opportunity to introduce in
evidence, in like manner, other portions of such document if found to be
material and relevant.
Sec. 1.355 Documents in foreign language.
Every document, exhibit, or other paper written in a language other
than English, which shall be filed in any proceeding, or in response to
any order, shall be filed in the language in which it is written
together with an English translation thereof duly verified under oath to
be a true translation. Each copy of every such document, exhibit, or
other paper filed shall be accompanied by a separate copy of the
translation.
Sec. 1.356 Copies of exhibits.
No document or exhibit, or part thereof, shall be received as, or
admitted in, evidence unless offered in duplicate. In addition, when
exhibits of a documentary character are to be offered in evidence,
copies shall be furnished to other counsel unless the presiding officer
otherwise directs.
Sec. 1.357 Mechanical reproductions as evidence.
Unless offered for the sole purpose of attempting to prove or
demonstrate sound effect, mechanical or physical reproductions of sound
waves shall not be admitted in evidence. Any party desiring to offer any
matter alleged to be contained therein or thereupon shall have such
matter typewritten on paper of the size prescribed by Sec. 1.49, and the
same shall be identified and offered in
[[Page 161]]
duplicate in the same manner as other exhibits.
Sec. 1.358 Tariffs as evidence.
In case any matter contained in a tariff schedule on file with the
Commission is offered in evidence, such tariff schedule need not be
produced or marked for identification, but the matter so offered shall
be specified with particularity (tariff and page number) in such manner
as to be readily identified, and may be received in evidence by
reference subject to check with the original tariff schedules on file.
Sec. 1.359 Proof of official record; authentication of copy.
An official record or entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having legal custody of the record, or by
his deputy, and accompanied with a certificate that such officer has the
custody. If the office in which the record is kept is within the United
States or within a territory or insular possession subject to the
dominion of the United States, the certificate may be made by the judge
of a court of record of the district or political subdivision in which
the record is kept, authenticated by the seal of the court, or may be
made by any public officer having a seal of office having official
duties in the district or political subdivision in which the record is
kept, authenticated by the seal of his office. If the office in which
the record is kept is in a foreign state or country, the certificate may
be made by a secretary of embassy or legation, consul general, consul,
vice consul, or consular agent, or by any officer in the foreign service
of the United States stationed in the foreign state or country in which
the record is kept, and authenticated by the seal of his office.
Sec. 1.360 Proof of lack of record.
The absence of an official record or entry of a specified tenor in
an official record may be evidenced by a written statement signed by an
officer, or by his deputy, who would have custody of the official
record, if it existed, that after diligent search no record or entry of
a specified tenor is found to exist in the records of his office,
accompanied by a certificate as provided in Sec. 1.359. Such statement
and certificate are admissible as evidence that the records of his
office contain no such record or entry.
Sec. 1.361 Other proof of official record.
Sections 1.359 and 1.360 do not prevent the proof of official
records or of entry or lack of entry therein by any method authorized by
any applicable statute or by the rules of evidence at common law.
Sec. 1.362 Production of statements.
After a witness is called and has given direct testimony in a
hearing, and before he is excused, any party may move for the production
of any statement of such witness, or part thereof, pertaining to his
direct testimony, in possession of the party calling the witness, if
such statement has been reduced to writing and signed or otherwise
approved or adopted by the witness. Such motion shall be directed to the
presiding officer. If the party declines to furnish the statement, the
testimony of the witness pertaining to the requested statement shall be
stricken.
[33 FR 466, Jan. 12, 1968]
Sec. 1.363 Introduction of statistical data.
(a) All statistical studies, offered in evidence in common carrier
hearing proceedings, including but not limited to sample surveys,
econometric analyses, and experiments, and those parts of other studies
involving statistical methodology shall be described in a summary
statement, with supplementary details added in appendices so as to give
a comprehensive delineation of the assumptions made, the study plan
utilized and the procedures undertaken. In the case of sample surveys,
there shall be a clear description of the survey design, including the
definition of the universe under study, the sampling frame, and the
sampling units; an explanation of the method of selecting the sample and
the characteristics measured or counted. In the case of econometric
investigations, the econometric model shall be completely described and
the reasons given for each
[[Page 162]]
assumption and statistical specification. The effects on the final
results of changes in the assumptions should be made clear. When
alternative models and variables have been employed, a record shall be
kept of these alternative studies, so as to be available upon request.
In the case of experimental analyses, a clear and complete description
of the experimental design shall be set forth, including a specification
of the controlled conditions and how the controls were realized. In
addition, the methods of making observations and the adjustments, if
any, to observed data shall be described. In the case of every kind of
statistical study, the following items shall be set forth clearly: The
formulas used for statistical estimates, standard errors and test
statistics, the description of statistical tests, plus all related
computations, computer programs and final results. Summary descriptions
of input data shall be submitted. Upon request, the actual input data
shall be made available.
(b) In the case of all studies and analyses offered in evidence in
common carrier hearing proceedings, other than the kinds described in
paragraph (a) of this section, there shall be a clear statement of the
study plan, all relevant assumptions and a description of the techniques
of data collection, estimation and/or testing. In addition, there shall
be a clear statement of the facts and judgments upon which conclusions
are based and a statement of the relative weights given to the various
factors in arriving at each conclusion, together with an indication of
the alternative courses of action considered. Lists of input data shall
be made available upon request.
[35 FR 16254, Oct. 16, 1970]
Sec. 1.364 Testimony by speakerphone.
(a) If all parties to the proceeding consent and the presiding
officer approves, the testimony of a witness may be taken by
speakerphone.
(b) Documents used by the witness shall be made available to counsel
by the party calling the witness in advance of the speakerphone
testimony. The taking of testimony by speakerphone shall be subject to
such other ground rules as the parties may agree upon.
[43 FR 33251, July 31, 1978]
Subpart C--Rulemaking Proceedings
Authority: 5 U.S.C. 553.
Source: 28 FR 12432, Nov. 22, 1963, unless otherwise noted.
General
Sec. 1.399 Scope.
This subpart shall be applicable to notice and comment rulemakings
proceedings conducted under 5 U.S.C. 553, and shall have no application
to formal rulemaking (or rate making) proceedings unless the Commission
directs that it shall govern the conduct of a particular proceeding.
[42 FR 25735, May 19, 1977]
Sec. 1.400 Definitions.
As used in this subpart, the term party refers to any person who
participates in a proceeding by the timely filing of a petition for rule
making, comments on a notice of proposed rule making, a petition for
reconsideration, or responsive pleadings in the manner prescribed by
this subpart. The term does not include those who submit letters,
telegrams or other informal materials.
[41 FR 1287, Jan. 7, 1976]
Petitions and Related Pleadings
Sec. 1.401 Petitions for rulemaking.
(a) Any interested person may petition for the issuance, amendment
or repeal of a rule or regulation.
(b) The petition for rule making shall conform to the requirements
of Secs. 1.49, 1.52 and 1.419(b) (or Sec. 1.420(e), if applicable), and
shall be submitted or addressed to the Secretary, Federal Communications
Commission, Washington, DC 20554.
(c) The petition shall set forth the text or substance of the
proposed rule, amendment, or rule to be repealed, together with all
facts, views, arguments and data deemed to support the action requested,
and shall indicate how the interests of petitioner will be affected.
[[Page 163]]
(d) Petitions for amendment of the FM Table of Assignments
(Sec. 73.202 of this chapter) or the Television Table of Assignments
(Sec. 73.606) shall be served by petitioner on any Commission licensee
or permittee whose channel assignment would be changed by grant of the
petition. The petition shall be accompanied by a certificate of service
on such licensees or permittees. A draft Notice of Proposed Rule Making
may be submitted with a petition for amendment of the FM or Television
Table of Assignments.
(e) Petitions which are moot, premature, repetitive, frivolous, or
which plainly do not warrant consideration by the Commission may be
denied or dismissed without prejudice to the petitioner.
[28 FR 12432, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963;
40 FR 53391, Nov. 18, 1975; 45 FR 42621, June 25, 1980]
Sec. 1.403 Notice and availability.
All petitions for rule making (other than petitions to amend the FM,
Television, and Air-Ground Tables of Assignments) meeting the
requirements of Sec. 1.401 will be given a file number and, promptly
thereafter, a ``Public Notice'' will be issued (by means of a Commission
release entitled ``Petitions for Rule Making Filed'') as to the
petition, file number, nature of the proposal, and date of filing.
Petitions for rule making are available at the Commission's Dockets
Reference Center (1919 M Street NW., Room 239, Washington, DC).
[60 FR 13637, Mar. 14, 1995]
Sec. 1.405 Responses to petitions; replies.
Except for petitions to amend the FM Television or Air-Ground Tables
of Assignments:
(a) Any interested person may file a statement in support of or in
opposition to a petition for rule making prior to Commission action on
the petition but not later than 30 days after ``Public Notice'', as
provided for in Sec. 1.403, is given of the filing of such a petition.
Such a statement shall be accompanied by proof of service upon the
petitioner on or prior to the date of filing in conformity with
Sec. 1.47 and shall conform in other aspects with the requirements of
Secs. 1.49, 1.52, and 1.419(b).
(b) Any interested person may file a reply to statements in support
of or in opposition to a petition for rule making prior to Commission
action on the petition but not later than 15 days after the filing of
such a statement. Such a reply shall be accompanied by proof of service
upon the party or parties filing the statement or statements to which
the reply is directed on or prior to the date of filing in conformity
with Sec. 1.47 and shall conform in other aspects with the requirements
of Secs. 1.49, 1.52, and 1.419(b).
(c) No additional pleadings may be filed unless specifically
requested by the Commission or authorized by it.
(d) The Commission may act on a petition for rule making at any time
after the deadline for the filing of replies to statements in support of
or in opposition to the petition. Statements in support of or in
opposition to a petition for rule making, and replies thereto, shall not
be filed after Commission action.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[28 FR 12413, Nov. 22, 1963, as amended at 28 FR 14503, Dec. 31, 1963;
45 FR 42621, June 25, 1980; 46 FR 60404, Dec. 9, 1981]
Sec. 1.407 Action on petitions.
If the Commission determines that the petition discloses sufficient
reasons in support of the action requested to justify the institution of
a rulemaking proceeding, and notice and public procedure thereon are
required or deemed desirable by the Commission, an appropriate notice of
proposed rule making will be issued. In those cases where notice and
public procedure thereon are not required, the Commission may issue a
final order amending the rules. In all other cases the petition for rule
making will be denied and the petitioner will be notified of the
Commission's action with the grounds therefor.
Rulemaking Proceedings
Sec. 1.411 Commencement of rulemaking proceedings.
Rulemaking proceedings are commenced by the Commission, either on
[[Page 164]]
it own motion or on the basis of a petition for rulemaking. See
Secs. 1.401-1.407.
Sec. 1.412 Notice of proposed rulemaking.
(a) Except as provided in paragraphs (b) and (c) of this section,
prior notice of proposed rulemaking will be given.
(1) Notice is ordinarily given by publication of a ``Notice of
Proposed Rule Making'' in the Federal Register. A summary of the full
decision adopted by the Commission constitutes a ``Notice of Proposed
Rulemaking'' for purposes of Federal Register publication.
(2) If all persons subject to the proposed rules are named, the
proposal may (in lieu of publication) be personally served upon those
persons.
(3) If all persons subject to the proposed rules are named and have
actual notice of the proposal as a matter of law, further prior notice
of proposed rulemaking is not required.
(b) Rule changes (including adoption, amendment, or repeal of a rule
or rules) relating to the following matters will ordinarily be adopted
without prior notice:
(1) Any military, naval, or foreign affairs function of the United
States.
(2) Any matter relating to Commission management or personnel or to
public property, loans, grants, benefits, or contracts.
(3) Interpretative rules.
(4) General statements of policy.
(5) Rules of Commission organization, procedure, or practice.
(c) Rule changes may in addition be adopted without prior notice in
any situation in which the Commission for good cause finds that notice
and public procedure are impracticable, unnecessary, or contrary to the
public interest. The finding of good cause and a statement of the basis
for that finding are in such situations published with the rule changes.
(d) In addition to the notice provisions of paragraph (a) of this
section, the Commission, before prescribing any requirements as to
accounts, records, or memoranda to be kept by carriers, will notify the
appropriate State agencies having jurisdiction over any carrier involved
of the proposed requirements.
[28 FR 12432, Nov. 22, 1963, as amended at 51 FR 7445, Mar. 4, 1986]
Sec. 1.413 Content of notice.
A notice of the proposed issuance, amendment, or repeal of a rule
will include the following:
(a) A statement of the time, nature and place of any public
rulemaking proceeding to be held.
(b) Reference to the authority under which the issuance, amendment
or repeal of a rule is proposed.
(c) Either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
(d) The docket number assigned to the proceeding.
(e) A statement of the time for filing comments and replies thereto.
Sec. 1.415 Comments and replies.
(a) After notice of proposed rulemaking is issued, the Commission
will afford interested persons an opportunity to participate in the
rulemaking proceeding through submission of written data, views, or
arguments, with or without opportunity to present the same orally in any
manner.
(b) A reasonable time will be provided for submission of comments in
support of or in opposition to proposed rules, and the time provided
will be specified in the notice of proposed rulemaking.
(c) A reasonable time will be provided for filing comments in reply
to the original comments, and the time provided will be specified in the
notice of proposed rulemaking.
(d) No additional comments may be filed unless specifically
requested or authorized by the Commission.
Note: In some (but not all) rulemaking proceedings, interested
persons may also communicate with the Commission and its staff on an ex
parte basis, provided certain procedures are followed. See Secs. 1.420
and 1.1200 et seq. See also ____ FCC 2d ____ (1980) (i.e., this order).
(e) For time limits for filing motions for extension of time for
filing responses to petitions for rulemaking, replies to such responses,
comments filed
[[Page 165]]
in response to notices of proposed rulemaking, replies to such comments,
see Sec. 1.46(b).
[28 FR 12432, Nov. 22, 1963, as amended at 42 FR 28888, June 6, 1977; 45
FR 45591, July 7, 1980; 52 FR 37460, Oct. 7, 1987]
Sec. 1.419 Form of comments and replies; number of copies.
(a) Comments, replies, and other documents filed in a rulemaking
proceeding shall conform to the requirements of Sec. 1.49.
(b) An original and 4 copies of all comments, briefs and other
documents filed in a rulemaking proceeding shall be furnished the
Commission. The distribution of such copies shall be as follows:
Secretary (original and 1)....................................... 2
Bureau........................................................... 2
Information office............................................... 1
------
Total...................................................... 5
Participants filing the required 5 copies who also wish each
Commissioner to have a personal copy of the comments may file an
additional 5 copies. The distribution of such copies shall be as
follows:
Commissioners.................................................... 5
Secretary........................................................ 2
Bureau........................................................... 2
Information office............................................... 1
------
Total...................................................... 10
However, members of the general public who wish to express their
interest by participating informally in a rulemaking proceeding may do
so by submitting an original and one copy of their comments, without
regard to form, provided only that the Docket Number is specified in the
heading. Informal comments filed after close of the reply comment
period, or, if on reconsideration, the reconsideration reply comment
period, should be labeled ``ex parte'' pursuant to section 1.1206(a) of
this chapter. Letters submitted to Commissioners or Commission staff
will be treated in the same way as informal comments, as set forth
above. Also such informal participants who wish the responsible members
of the staff and the Commissioners to have personal copies may file an
additional 7 copies. The distribution of such copies shall be as
follows:
Commissioners.................................................... 5
Secretary........................................................ 2
Bureau........................................................... 2
------
Total...................................................... 9
(c) Any person desiring to file identical documents in more than one
docketed rulemaking proceeding shall furnish the Commission two
additional copies of any such document for each additional docket. This
requirement does not apply if the proceedings have been consolidated.
[28 FR 12432, Nov. 22, 1963, as amended at 41 FR 50399, Nov. 16, 1976;
50 FR 26567, June 27, 1985; 54 FR 29037, July 11, 1989]
Sec. 1.420 Additional procedures in proceedings for amendment of the FM
or TV Tables of Allotments.
(a) Comments filed in proceedings for amendment of the FM Table of
Allotments (Sec. 73.202 of this chapter) or the Television Table of
Allotments (Sec. 73.606 of this chapter) which are initiated on a
petition for rule making shall be served on petitioner by the person who
files the comments.
(b) Reply comments filed in proceedings for amendment of the FM or
Television Tables of Allotments shall be served on the person(s) who
filed the comments to which the reply is directed.
(c) Such comments and reply comments shall be accompanied by a
certificate of service.
(d) Counterproposals shall be advanced in initial comments only and
will not be considered if they are advanced in reply comments.
(e) An original and 4 copies of all petitions for rulemaking,
comments, reply comments, and other pleadings shall be filed with the
Commission.
(f) Petitions for reconsideration and responsive pleadings shall be
served on parties to the proceeding and on any licensee or permittee
whose authorization may be modified to specify operation on a different
channel, and shall be accompanied by a certificate of service.
(g) The Commission may modify the license or permit of an FM station
to another class of channel or of a UHF
[[Page 166]]
TV station to a VHF channel in the same community in the course of the
rule making proceeding to amend Sec. 73.202(b), Sec. 73.504(a) or
Sec. 73.606(b) if any of the following conditions are met:
(1) There is no other timely filed expression of interest, or
(2) If another interest in the proposed channel is timely filed an
additional equivalent class of channel is also allotted, assigned or
available for application, or
(3) With respect to FM, the modification of license or permit would
occur on a mutually exclusive higher class adjacent or co-channel.
Note 1: In certain situations, a licensee or permittee may seek an
adjacent, intermediate frequency or co-channel upgrade by application.
See Sec. 73.203(b) of this chapter.
(h) Where licensees (or permittees) of television broadcast stations
jointly petition to amend Sec. 73.606(b) and to exchange channels, and
where one of the licensees (or permittees) operates on a commercial
channel while the other operates on a reserved noncommercial educational
channel within the same band, and the stations serve substantially the
same market, then the Commission may amend Sec. 73.606(b) and modify the
licenses (or permits) of the petitioners to specify operation on the
appropriate channels upon a finding that such action will promote the
public interest, convenience, and necessity.
Note 2: Licensees and permittees operating Class A FM stations who
seek to upgrade their facilities to Class B1, B, C3, C2, C1, or C on
Channel 221, and whose proposed 1 mV/m signal contours would overlap the
Grade B contour of a television station operating on Channel 6 must meet
a particularly heavy burden by demonstrating that grants of their
upgrade requests are in the public interest. In this regard, the
Commission will examine the record in rule making proceedings to
determine the availability of existing and potential non-commercial
education service.
(i) In the course of the rule making proceeding to amend
Sec. 73.202(b) or Sec. 73.606(b), the Commission may modify the license
or permit of an FM or television broadcast station to specify a new
community of license where the amended allotment would be mutually
exclusive with the licensee's or permittee's present assignment.
(j) Whenever an expression of interest in applying for,
constructing, and operating a station has been filed in a proceeding to
amend the FM or TV Table of Allotments, and the filing party seeks to
dismiss or withdraw the expression of interest, either unilaterally or
in exchange for financial consideration, that party must file with the
Commission a request for approval of the dismissal or withdrawal, a copy
of any written agreement related to the dismissal or withdrawal, and an
affidavit setting forth:
(1) A certification that neither the party withdrawing its interest
nor its principals has received or will receive any money or other
consideration in excess of legitimate and prudent expenses in exchange
for the dismissal or withdrawal of the expression of interest;
(2) The exact nature and amount of any consideration received or
promised;
(3) An itemized accounting of the expenses for which it seeks
reimbursement; and
(4) The terms of any oral agreement related to the dismissal or
withdrawal of the expression of interest.
(5) In addition, within 5 days of a party's request for approval,
each remaining party to any written or oral agreement must submit an
affidavit setting forth:
(i) A certification that neither it nor its principals has paid or
will pay money or other consideration in excess of the legitimate and
prudent expenses of the party withdrawing its expression of interest;
and
(ii) The terms of any oral agreement relating to the dismissal or
withdrawal of the expression of interest.
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[39 FR 44022, Dec. 20, 1974, as amended at 40 FR 53391, Nov. 18, 1975;
41 FR 1287, Jan. 7, 1976; 51 FR 15629, Apr. 25, 1986; 51 FR 20291, June
4, 1986; 52 FR 8260, Mar. 17, 1987; 52 FR 25866, July 9, 1987; 54 FR
16366, Apr. 24, 1989; 54 FR 26201, June 22, 1989; 55 FR 28914, July 16,
1990; 58 FR 38535, July 19, 1993; 59 FR 59503, Nov. 17, 1994; 61 FR
43472, Aug. 23, 1996]
Sec. 1.421 Further notice of rulemaking.
In any rulemaking proceeding where the Commission deems it
warranted, a
[[Page 167]]
further notice of proposed rulemaking will be issued with opportunity
for parties of record and other interested persons to submit comments in
conformity with Secs. 1.415 and 1.419.
Sec. 1.423 Oral argument and other proceedings.
In any rulemaking where the Commission determines that an oral
argument, hearing or any other type of proceeding is warranted, notice
of the time, place and nature of such proceeding will be published in
the Federal Register.
[58 FR 66300, Dec. 20, 1993]
Sec. 1.425 Commission action.
The Commission will consider all relevant comments and material of
record before taking final action in a rulemaking proceeding and will
issue a decision incorporating its finding and a brief statement of the
reasons therefor.
Sec. 1.427 Effective date of rules.
(a) Any rule issued by the Commission will be made effective not
less than 30 days from the time it is published in the Federal Register
except as otherwise specified in paragraphs (b) and (c) of this section.
(b) For good cause found and published with the rule, any rule
issued by the Commission may be made effective within less than 30 days
from the time it is published in the Federal Register. Rules involving
any military, naval or foreign affairs function of the United States;
matters relating to agency management or personnel, public property,
loans, grants, benefits or contracts; rules granting or recognizing
exemption or relieving restriction; rules of organization, procedure or
practice; or interpretative rules; and statements of policy may be made
effective without regard to the 30-day requirement.
(c) In cases of alterations by the Commission in the required manner
or form of keeping accounts by carriers, notice will be served upon
affected carriers not less than 6 months prior to the effective date of
such alterations.
Sec. 1.429 Petition for reconsideration.
(a) Any interested person may petition for reconsideration of a
final action in a proceeding conducted under this subpart (see
Secs. 1.407 and 1.425). Where the action was taken by the Commission,
the petition will be acted on by the Commission. Where action was taken
by a staff official under delegated authority, the petition may be acted
on by the staff official or referred to the Commission for action.
Note: The staff has been authorized to act on rulemaking proceedings
described in Sec. 1.420 and is authorized to make editorial changes in
the rules (see Sec. 0.231(d)).
(b) A petition for reconsideration which relies on facts which have
not previously been presented to the Commission will be granted only
under the following circumstances:
(1) The facts relied on relate to events which have occurred or
circumstances which have changed since the last opportunity to present
them to the Commission;
(2) The facts relied on were unknown to petitioner until after his
last opportunity to present them to the Commission, and he could not
through the exercise of ordinary diligence have learned of the facts in
question prior to such opportunity; or
(3) The Commission determines that consideration of the facts relied
on is required in the public interest.
(c) The petition for reconsideration shall state with particularity
the respects in which petitioner believes the action taken should be
changed.
(d) The petition for reconsideration and any supplement thereto
shall be filed within 30 days from the date of public notice of such
action, as that date is defined in Sec. 1.4(b) of these rules. No
supplement to a petition for reconsideration filed after expiration of
the 30 day period will be considered, except upon leave granted pursuant
to a separate pleading stating the grounds for acceptance of the
supplement. The petition for reconsideration shall not exceed 25 double-
spaced typewritten pages.
(e) Except as provided in Sec. 1.420(f), petitions for
reconsideration need not be served on parties to the proceeding.
(However, where the number of parties
[[Page 168]]
is relatively small, the Commission encourages the service of petitions
for reconsideration and other pleadings, and agreements among parties to
exchange copies of pleadings.) When a petition for reconsideration is
timely filed in proper form, public notice of its filing is published in
the Federal Register. The time for filing oppositions to the petition
runs from the date of public notice. See Sec. 1.4(b).
(f) Oppositions to a petition for reconsideration shall be filed
within 15 days after the date of public notice of the petition's filing
and need be served only on the person who filed the petition. See
Sec. 1.4(b). Oppositions shall not exceed 25 double-spaced typewritten
pages.
(g) Replies to an opposition shall be filed within 10 days after the
time for filing oppositions has expired and need be served only on the
person who filed the opposition. Replies shall not exceed 10 double-
spaced typewritten pages.
(h) Petitions for reconsideration, oppositions and replies shall
conform to the requirements of Secs. 1.49 and 1.52, except that they
need not be verified. Except as provided in Sec. 1.420(e), an original
and 11 copies shall be submitted to the Secretary, Federal
Communications Commission, Washington, DC 20554.
(i) The Commission may grant the petition for reconsideration in
whole or in part or may deny the petition. Its order will contain a
concise statement of the reasons for the action taken. Any order
disposing of a petition for reconsideration which modifies rules adopted
by the original order is, to the extent of such modification, subject to
reconsideration in the same manner as the original order. Except in such
circumstance, a second petition for reconsideration may be dismissed by
the staff as repetitious.
(j) The filing of a petition for reconsideration is not a condition
precedent to judicial review of any action taken by the Commission,
except where the person seeking such review was not a party to the
proceeding resulting in the action or relies on questions of fact or law
upon which the Commission has been afforded no opportunity to pass.
Subject to the provisions of paragraph (b) of this section, such a
person may qualify to seek judicial review by filing a petition for
reconsideration.
(k) Without special order of the Commission, the filing of a
petition for reconsideration shall not excuse any person from complying
with any rule or operate in any manner to stay or postpone its
enforcement. However, upon good cause shown, the Commission will stay
the effective date of a rule pending a decision on a petition for
reconsideration. See, however, Sec. 1.420(f).
(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 307)
[41 FR 1287, Jan. 7, 1976, as amended at 44 FR 5436, Jan. 26, 1979; 46
FR 18556, Mar. 25, 1981; 52 FR 49161, Dec. 30, 1987]
Inquiries
Sec. 1.430 Proceedings on a notice of inquiry.
The provisions of this subpart also govern proceedings commenced by
issuing a ``Notice of Inquiry,'' except that such proceedings do not
result in the adoption of rules, and Notices of Inquiry are not required
to be published in the Federal Register.
[51 FR 7445, Mar. 4, 1986]
Subpart D--Broadcast Applications and Proceedings
Source: 44 FR 38483, July 2, 1979, unless otherwise noted.
Sec. 1.502 Emergency Broadcast Authorizations.
See Sec. 73.913.
General Filing Requirements
Sec. 1.511 Applications required.
See Sec. 73.3511.
Sec. 1.512 Where to file; number of copies.
See Sec. 73.3512.
Sec. 1.513 Who may sign applications.
See Sec. 73.3513.
Sec. 1.514 Content of applications.
See Sec. 73.3514.
Sec. 1.516 Specification of facilities.
See Sec. 73.3516.
[[Page 169]]
Sec. 1.517 Contingent applications.
See Sec. 73.3517.
Sec. 1.518 Inconsistent or conflicting applications.
See Sec. 73.3518.
Sec. 1.519 Repetitious applications.
See Sec. 73.3519.
Sec. 1.520 Multiple applications.
See Sec. 73.3520.
Sec. 1.522 Amendment of applications.
See Sec. 73.3522.
Sec. 1.525 Agreements between parties for amendment or dismissal of, or
failure to prosecute, broadcast applications.
See Sec. 73.3525.
Sec. 1.526 Records to be maintained locally for public inspection by
commercial applicants, permittees and licensees.
See Sec. 73.3526.
Sec. 1.527 Records to be maintained locally for public inspection by
noncommercial educational applicants, permittees and
licensees.
See Sec. 73.3527.
Sec. 1.531 Formal and informal applications.
See Sec. 73.3511.
Sec. 1.533 Application forms for authority to construct a new station
or make changes in an existing station.
See Sec. 73.3533.
Sec. 1.534 Application for extension of construction permit or for
construction permit to replace expired construction permit.
See Sec. 73.3534.
Sec. 1.536 Application for license to cover construction permit.
See Sec. 73.3536.
Sec. 1.538 Application for modification of license.
See Sec. 73.3538.
Sec. 1.539 Application for renewal of license.
See Sec. 73.3539.
Sec. 1.540 Application for voluntary assignment or transfer of control.
See Sec. 73.3540.
Sec. 1.541 Application for involuntary assignment of license or
transfer of control.
See Sec. 73.3541.
Sec. 1.542 Application for temporary authorization.
See Sec. 73.3542.
Sec. 1.543 Application for renewal or modification of special service
authorization.
See Sec. 73.3543.
Sec. 1.544 Application for broadcast station to conduct field strength
measurements and for experimental operation.
See Secs. 73.157 and 73.1510.
Sec. 1.545 Application for permit to deliver programs to foreign
countries.
See Sec. 73.3545.
Sec. 1.546 Application to determine operating power by direct
measurement of antenna power.
See Sec. 73.45.
Sec. 1.549 Requests for extension of authority to operate without
required monitors, indicating instruments, and EBS Attention
Signal devices.
See Sec. 73.3549.
Sec. 1.550 Requests for new or modified call sign assignments.
See Sec. 73.3550.
Sec. 1.561 Staff consideration of applications which receive action by
the Commission.
See Sec. 73.3561.
Sec. 1.562 Staff consideration of applications which do not require
action by the Commission.
See Sec. 73.3562.
Sec. 1.564 Acceptance of applications.
See Sec. 73.3564.
Sec. 1.566 Defective applications.
See Sec. 73.3566.
[[Page 170]]
Sec. 1.568 Dismissal of applications.
See Sec. 73.3568.
Sec. 1.570 AM broadcast station applications involving other North
American countries.
See Sec. 73.3570.
Sec. 1.571 Processing AM broadcast station applications.
See Sec. 73.3571.
Sec. 1.572 Processing TV broadcast and translator station applications.
See Sec. 73.3572.
Sec. 1.573 Processing FM broadcast and translator station applications.
See Sec. 73.3573.
Sec. 1.574 Processing of international broadcast station applications.
See Sec. 73.3574.
Sec. 1.578 Amendments to applications for renewal, assignment or
transfer of control.
See Sec. 73.3578.
Sec. 1.580 Local public notice of filing of broadcast applications.
See Sec. 73.3580.
Sec. 1.584 Petitions to deny.
See Sec. 73.3584.
Sec. 1.587 Procedure for filing informal applications.
See Sec. 73.3587.
Sec. 1.591 Grants without hearing.
See Sec. 73.3591.
Sec. 1.592 Conditional grant.
See Sec. 73.3592.
Sec. 1.593 Designation for hearing.
See Sec. 73.3593.
Sec. 1.594 Local public notice of designation for hearing.
See Sec. 73.3594.
Sec. 1.597 Procedures on transfer and assignment applications.
See Sec. 73.3597.
Sec. 1.598 Period of construction.
See Sec. 73.3598.
Sec. 1.599 Forfeiture of construction permit.
See Sec. 73.3599.
Sec. 1.601 Simultaneous modification and renewal of license.
See Sec. 73.3601.
Sec. 1.603 Special waiver procedure relative to applications.
See Sec. 73.3603.
Sec. 1.605 Retention of applications in hearing status after
designation for hearing.
See Sec. 73.3605.
Sec. 1.612 Annual employment report.
See Sec. 73.3612.
Sec. 1.613 Filing of contracts.
See Sec. 73.3613.
Sec. 1.615 Ownership reports.
See Sec. 73.3615.
Subpart E--Complaints, Applications, Tariffs, and Reports Involving
Common Carriers
Source: 28 FR 12450, Nov. 22, 1963, unless otherwise noted.
General
Sec. 1.701 Show cause orders.
(a) The Commission may commence any proceeding within its
jurisdiction against any common carrier by serving upon the carrier an
order to show cause. The order shall contain a statement of the
particulars and matters concerning which the Commission is inquiring and
the reasons for such action, and will call upon the carrier to appear
before the Commission at a place and time therein stated and give
evidence upon the matters specified in the order.
(b) Any carrier upon whom an order has been served under this
section shall file its answer within the time specified in the order.
Such answer shall specifically and completely respond to all allegations
and matters contained in the show cause order.
(c) All papers filed by a carrier in a proceeding under this section
shall
[[Page 171]]
conform with the specifications of Secs. 1.49 and 1.50 and the
subscription and verification requirements of Sec. 1.52.
[28 FR 12450, Nov. 22, 1963, as amended at 36 FR 7423, Apr. 20, 1971]
Sec. 1.703 Appearances.
(a) Hearings. Except as otherwise required by Sec. 1.221 regarding
application proceedings, by Sec. 1.91 regarding proceedings instituted
under section 312 of the Communications Act of 1934, as amended, or by
Commission order in any proceeding, no written statement indicating
intent to appear need be filed in advance of actual appearance at any
hearing by any person or his attorney.
(b) Oral arguments. Within 5 days after release of an order
designating an initial decision for oral argument or within such other
time as may be specified in the order, any party who wishes to
participate in the oral argument shall file a written statement
indicating that he will appear and participate. Within such time as may
be specified in an order designating any other matter for oral argument,
any person wishing to participate in the The Commission will advise him
whether he may participate. (See Sec. 1.277 for penalties for failure to
file appearance statements in proceedings involving oral arguments on
initial decisions.)
(c) Commission counsel. The requirement of paragraph (b) of this
section shall not apply to counsel representing the Commission or the
Chief of the Common Carrier Bureau.
Complaints
Sec. 1.711 Formal or informal complaints.
Complaints filed against carriers under section 208 of the
Communications Act may be either formal or informal.
informal complaints
Sec. 1.716 Form.
An informal complaint shall be in writing and should contain: (a)
The name, address and telephone number of the complaint, (b) the name of
the carrier against which the complaint is made, (c) a complete
statement of the facts tending to show that such carrier did or omitted
to do anything in contravention of the Communications Act, and (d) the
specific relief of satisfaction sought.
[51 FR 16039, Apr. 30, 1986]
Sec. 1.717 Procedure.
The Commission will forward informal complaints to the appropriate
carrier for investigation. The carrier will, within such time as may be
prescribed, advise the Commission in writing, with a copy to the
complainant, of its satisfaction of the complaint or of its refusal or
inability to do so. Where there are clear indications from the carrier's
report or from other communications with the parties that the complaint
has been satisfied, the Commission may, in its discretion, consider a
complaint proceeding to be closed, without response to the complainant.
In all other cases, the Commission will contact the complainant
regarding its review and disposition of the matters raised. If the
complainant is not satisfied by the carrier's response and the
Commission's disposition, it may file a formal complaint in accordance
with Sec. 1.721 of this part.
[51 FR 16039, Apr. 30, 1986]
Sec. 1.718 Unsatisfied informal complaints; formal complaints relating
back to the filing dates of informal complaints.
When an informal complaint has not been satisfied pursuant to
Sec. 1.717, the complainant may file a formal complaint with this
Commission in the form specified in Sec. 1.721. Such filing will be
deemed to relate back to the filing date of the informal complaint:
Provided, That the formal complaint: (a) Is filed within 6 months from
the date of the carrier's report, (b) makes reference to the date of the
informal complaint, and (c) is based on the same cause of action as the
informal complaint. If no formal complaint is filed within the 6-month
period, the complainant will be deemed to have abandoned the unsatisfied
informal complaint.
[51 FR 16040, Apr. 30, 1986]
[[Page 172]]
formal complaints
Sec. 1.720 General pleading requirements.
Formal complaint proceedings are generally resolved on a written
record consisting of a complaint, answer and reply but may also include
other written submissions such as briefs and written interrogatories.
All written submissions, both substantive and procedural, must conform
to the following standards:
(a) Pleadings must be clear, concise, and explicit. All matters
concerning a claim, defense or requested remedy, including damages,
should be pleaded fully and with specificity.
(b) Pleadings must contain facts which, if true, are sufficient to
constitute a violation of the Act or Commission order or regulation, or
a defense to such alleged violation.
(c) Facts must be supported by relevant documentation or affidavit.
(d) Legal arguments must be supported by appropriate judicial,
Commission, or statutory authority.
(e) Opposing authorities must be distinguished.
(f) Copies must be provided of all non-Commission authorities relied
upon which are not routinely available in national reporting systems,
such as unpublished decisions or slip opinions of courts or
administrative agencies.
(g) Parties are responsible for the continuing accuracy and
completeness of all information and supporting authority furnished in a
pending complaint proceeding. Information submitted, as well as relevant
legal authorities, must be current and updated as necessary and in a
timely manner at any time before a decision is rendered on the merits of
the complaint.
(h) Specific reference must be made to any tariff provision relied
on in support of a claim or defense. Parties are encouraged to provide
copies of the tariff or relevant portions thereof.
(i) All statements purporting to summarize or explain Commission
orders or policies must cite, in standard legal form, the Commission
ruling upon which such statements are based.
[53 FR 11852, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993]
Sec. 1.721 Format and content.
(a) A formal complaint shall contain:
(1) The name of each complainant and defendant;
(2) The occupation, address and telephone number of each complainant
and, to the extent known, each defendant;
(3) The name, address, and telephone number of complainant's
attorney, if represented by counsel;
(4) Citation to the section of the Communications Act and/or order
and/or regulation of the Commission alleged to have been violated.
(5) A complete statement of facts which, if proven true, would
constitute such a violation;
(6) Complete identification or description, including relevant time
period, of the communications, transmissions, services, or other carrier
conduct complained of and nature of the injury sustained;
(7) The relief sought, including recovery of damages and the amount
of damages claimed, if known; and
(8) Whether suit has been filed in any court or other government
agency on the basis of the same cause of action.
(b) The following format may be used in cases to which it is
applicable, with such modifications as the circumstances may render
necessary:
Before the Federal Communications Commission, Washington, DC 20554
In the matter of
_______________________________________________________________________
Complainant,
v.
_______________________________________________________________________
Defendant.
File No. (To be inserted by the Common Carrier Bureau)
Complaint
To: The Commission.
The complainant (here insert full name of each complainant and, if a
corporation, the corporate title of such complainant) shows that:
1. (Here state occupation, post office address, and telephone number
of each complainant).
2. (Here insert the name, occupation and, to the extent known,
address and telephone number of defendants).
3. (Here insert fully and clearly the specific act or thing
complained of, together with
[[Page 173]]
such facts as are necessary to give a full understanding of the matter,
including relevant legal and documentary support).
Wherefore, complainant asks (here state specifically the relief
desired).
_______________________________________________________________________
(Date)
_______________________________________________________________________
(Name of each complainant)
_______________________________________________________________________
(Name, address, and telephone number of attorney, if any)
[53 FR 11853, Apr. 11, 1988]
Sec. 1.722 Damages.
(a) In case recovery of damages is sought, the complaint shall
contain appropriate allegations showing such evidence that will
identify, with reasonable certainty, the amount of damages for which
recovery is sought.
(b) Damages will not be awarded upon a complaint unless specifically
requested. Damages may be awarded, however, upon a supplemental
complaint based upon a finding of the Commission in the original
proceeding. Provided that:
(1) If recovery of damages or overcharges is first sought by
supplemental complaint, such supplemental complaint must be filed
within, and recovery is limited to, the statutory periods of limitations
contained in section 415 of the Communications Act;
(2) A claim for recovery of damages contained in a supplemental
complaint based on a finding of the Commission in the original
proceeding which meets the requirements of paragraph (a) of this section
shall relate back to the filing date of the original formal complaint
if:
(i) The original complaint clearly and unequivocally requests the
recovery of damages (even if the precise amount and other specific
details are unknown), and
(ii) Such supplemental complaint is filed no later than 60 days
after public notice (as defined in Sec. 1.4(b) of the rules) of a
decision on the merits of the original complaint.
[53 FR 11853, Apr. 11, 1988]
Sec. 1.723 Joinder of complainants and causes of action.
(a) Two or more complainants may join in one complaint if their
respective causes of action are against the same defendant and concern
substantially the same facts and alleged violation of the Communications
Act.
(b) Two or more grounds of complaint involving the same principle,
subject, or statement of facts may be included in one complaint, but
should be separately stated and numbered.
[53 FR 11853, Apr. 11, 1988]
Sec. 1.724 Answers.
(a) Any carrier upon which a copy of a formal complaint,
supplemental complaint, amended complaint, or cross complaint is served
under this subpart shall answer within 30 days of service of the
pleading to which the answer is made, unless otherwise directed by the
Commission.
(b) The answer shall advise the parties and the Commission fully and
completely of the nature of any defense, and shall respond specifically
to all material allegations of the complaint. Collateral or immaterial
issues shall be avoided in answers and every effort should be made to
narrow the issues. Any party failing to file and serve an answer within
the time and in the manner prescribed by these rules may be deemed in
default and an order may be entered against defendant in accordance with
the allegations contained in the complaint.
(c) A party shall state concisely its defenses to each claim
asserted and shall admit or deny the averments on which the adverse
party relies. If the party is without knowledge or information
sufficient to form a belief as to the truth of an averment, the party
shall so state and this has the effect of a denial. When a pleader
intends in good faith to deny only part of an averment, the pleader
shall specify so much of it as is true and shall deny only the
remainder. The pleader may make its denials as specific denials of
designated averments or paragraphs, or may generally deny all the
averments except such designated averments or paragraphs as the pleader
expressly admits. When the pleader intends to controvert
[[Page 174]]
all averments, the pleader may do so by general denial.
(d) Averments in a pleading to which a responsive pleading is
required, other than those as to the amount of damages, are deemed to be
admitted when not denied in this responsive pleading.
(e) Affirmative defenses to allegations contained in the complaint
shall be specifically captioned as such and presented separately from
any denials made in accordance with paragraph (c) of this section.
[53 FR 11853, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993]
Sec. 1.725 Cross complaints.
A cross complaint, seeking any relief within the jurisdiction of the
Commission against any carrier which is a party (complainant or
defendant) to the proceeding, may be filed by a defendant with its
answer. For the purpose of this subpart, the term cross complaint shall
include counterclaim.
[53 FR 11854, Apr. 11, 1988]
Sec. 1.726 Replies.
Within 10 days after service of an answer containing affirmative
defenses presented in accordance with Sec. 1.724(e), a complainant may
file and serve a reply, which shall be responsive to only those
allegations contained in affirmative defenses.
[58 FR 25572, Apr. 27, 1993]
Sec. 1.727 Motions.
(a) A request to the Commission for an order shall be by written
motion, stating with particularly the grounds and authority therefor,
and setting forth the relief or order sought.
(b) A motion that the allegations in the complaint be made more
definite and certain shall be filed within 15 days after service of a
complaint by the Commission.
(c) Where the matter involved in the motion is one of procedure or
discovery, the moving party shall provide a proposed order for adoption,
which appropriately incorporates the basis therefor.
(d) A party opposing any motion concerning procedure or discovery
shall also provide a proposed order for adoption, which appropriately
incorporates the basis therefor.
(e) Oppositions to motions may be filed within ten days after the
motion is filed. Oppositions shall be limited to the specific issues and
allegations contained in the motion; when a motion is incorporated in an
answer to a complaint, an opposition to the motion shall not address any
issues presented in the answer that are not also specifically raised in
the motion.
(f) No reply may be filed to an opposition to a motion.
[53 FR 11854, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993]
Sec. 1.728 Formal complaints not stating a cause of action; defective
pleadings.
(a) Any document purporting to be a formal complaint which does not
state a cause of action under the Communications Act will be dismissed.
In such case, any amendment or supplement to such document will be
considered a new filing which must be made within the statutory periods
of limitations of actions contained in section 415 of the Communications
Act.
(b) Any other pleading filed in a formal complaint proceeding not in
conformity with the requirements of the applicable rules in this part
may be deemed defective. In such case the Commission may strike the
pleading or request that specified defects be corrected and that proper
pleadings be filed with the Commission and served on all parties within
a prescribed time as a condition to being made a part of the record in
the proceeding.
[53 FR 11854, Apr. 11, 1988]
Sec. 1.729 Interrogatories to parties.
(a) During the time period beginning with service of the complaint
and ending 30 days after the date an answer is due to be filed, any
party may serve any other party written interrogatories, to be answered
in writing by the party served or, if the party served is a public or
private corporation or partnership or association, by any officer or
agent who shall furnish such information as is available to the party.
[[Page 175]]
All interrogatories served on an opposing party shall be filed with the
Commission at the time of service. Parties shall propound no more than
30 single interrogatories without prior Commission approval. Subparts of
an interrogatory will be counted as separate interrogatories for
purposes of compliance with this limit. This procedure may be used for
the discovery of any nonprivileged matter which is relevant to the
pleadings. Interrogatories may not be employed for the purpose of delay,
harassment or to obtain information which is beyond the scope of
permissible inquiry relating to the subject matter of the pleadings.
(b) Parties on whom interrogatories are served shall respond without
waiting to be ordered to do so by the Commission. Each interrogatory
shall be answered separately and fully in writing under oath or
affirmation, unless it is objected to, in which event the reasons for
objection shall be stated in lieu of an answer. The answers shall be
signed by the person making them. The party on whom the interrogatories
were served shall serve a copy of the answers and objections, if any,
within 30 days after service of the interrogatories, except that a
defendant may serve answers or objections within 15 days after filing
its answer to the complaint, whichever period is longer. On proper
motion being made, the Commission may allow a shorter or longer time for
the filing of answers or objections.
(c) Where the responding party has failed to respond, or has
objected, to any interrogatory, the party propounding the
interrogatories may, within 15 days of the date the response was due if
no response is filed or the date of service of the objection, move to
compel a response thereto. The motion should state with specificity the
relevance of and necessity for the requested information and must also
comply with the requirements of Sec. 1.727 of this part pertaining to
motions generally. Alternately, the party may request that answers to
interrogatories be discussed during a status conference, pursuant to
Sec. 1.733.
(d) Answers to interrogatories shall not be filed with the
Commission unless so ordered by the Commission or its staff.
(e) The Commission may in its discretion limit the scope of
permissible inquiry so that matters pertaining solely to the amount or
computation of damages are not addressed until after a finding of
liability has been made against the complainant. Inquiries that relate
dually to liability and damages will be permitted during initial
discovery conducted during the liability phase. If a bifurcated
framework is implemented and a finding of liability is made, the parties
shall, within 5 working days, inform the Commission whether they wish to
defer damages discovery in order to enter negotiations for the purpose
of settling their dispute. If the parties commence settlement
negotiations, damages discovery shall not be undertaken prior to 20 days
after release of the liability order.
[53 FR 11854, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993]
Sec. 1.730 Other forms of discovery.
(a) If a party believes it needs to engage in some form of discovery
other than by written interrogatories under Sec. 1.729, including but
not limited to the production of documents, the taking of depositions,
or the propounding of additional interrogatories, the party may file a
motion with the Commission requesting that such discovery be permitted.
The motion should state with specificity the type of discovery
requested, the information which is expected to be elicited, the
relevance of such information to the resolution of the proceeding, and
must also comply with the requirements of Sec. 1.727 hereof, pertaining
to motions generally. Such motions will not be routinely granted except
for good cause shown.
(b) The party from whom the discovery is sought may file an
opposition to a motion seeking discovery within 10 days after the motion
is filed. No reply is permitted.
(c) Motions seeking discovery may be filed only during the period
beginning with the service of a complaint and ending 30 days after the
date an answer is filed or 15 days after responses to interrogatories
under Sec. 1.729 are filed, whichever period is longer, except where the
movant demonstrates that
[[Page 176]]
the need for such discovery could not, even with due diligence, have
been ascertained within this period.
(d) Documents produced through discovery shall not be filed with the
Commission unless so ordered by the Commission or its staff.
[53 FR 11854, Apr. 11, 1988, as amended at 58 FR 25572, Apr. 27, 1993]
Sec. 1.731 Confidentiality of information produced through discovery.
(a) Any materials generated or provided by a party in response to
discovery may be designated as proprietary by that party if the party
believes in good faith that the materials fall within an exemption to
disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.
552(b)(1)-(9). Any party asserting confidentiality for such materials
shall so indicate by clearly marking each page, or portion thereof, for
which a proprietary designation is claimed. If a proprietary designation
is challenged, the party claiming confidentiality shall have the burden
of demonstrating, by a preponderance of the evidence, that the material
designated as proprietary falls under the standards for nondisclosure
enunciated in the FOIA.
(b) Materials marked as proprietary may be disclosed solely to the
following persons, only for use in prosecuting or defending a party to
the complaint action, and only to the extent necessary to assist in the
prosecution or defense of the case:
(1) Counsel of record representing the parties in the complaint
action and any support personnel employed by such attorneys;
(2) Officers or employees of the opposing party who are named by the
opposing party as being directly involved in the prosecution or defense
of the case;
(3) Consultants or expert witnesses retained by the parties;
(4) The Commission and its staff; and
(5) Court reporters and stenographers in accordance with the terms
and conditions of this section.
(c) These individuals shall not disclose information designated as
proprietary to any person who is not authorized under this section to
receive such information, and shall not use the information in any
activity or function other than the prosecution or defense in the case
before the Commission. Each individual who is provided access to the
information shall sign a notarized statement affirmatively stating that
the individual has personally reviewed the Commission's rules and
understands the limitations they impose on the signing party.
(d) No copies of materials marked proprietary may be made except
copies to be used by persons designated in paragraph (b) of this
section. Each party shall maintain a log recording the number of copies
made of all proprietary material and the persons to whom the copies have
been provided.
(e) Upon termination of a formal complaint proceeding, including all
appeals and petitions, all originals and reproductions of any
proprietary materials, along with the log recording persons who received
copies of such materials, shall be provided to the producing party. In
addition, upon final termination of the complaint proceeding, any notes
or other work product derived in whole or in part from the proprietary
materials of an opposing or third party shall be destroyed.
[58 FR 25573, Apr. 27, 1993]
Sec. 1.732 Other required written submissions.
(a) The Commission may, in its discretion, require the parties to
file briefs summarizing the facts and issues presented in the pleadings
and other record evidence. These briefs shall contain the findings of
fact and conclusions of law which that party is urging the Commission to
adopt, with specific citation to the record, and supported by relevant
authority and analysis. Absent an order by the Commission that briefs be
filed, the parties may voluntarily submit briefs in accordance with the
provisions of paragraphs (b) through (e) of this section.
(b) In cases when discovery is not conducted, briefs shall be filed
concurrently by both complainant and defendant within 90 days from the
date a complaint is served. Such briefs shall be no longer than 35
pages.
[[Page 177]]
(c) In cases when discovery is conducted, briefs shall be filed
concurrently by both complainant and defendant at such time designated
by the staff, typically within 30 days after discovery is completed.
Such briefs shall be no longer than 50 pages.
(d) Reply briefs may be submitted by either party within 20 days
from the date initial briefs are due. Reply briefs shall be no longer
than 20 pages in cases when discovery is not conducted, and 30 pages in
cases when discovery is conducted.
(e) Briefs containing information which is claimed by an opposing or
third party to be proprietary under Sec. 1.731 shall be submitted to the
Commission in confidence pursuant to the requirements of Sec. 0.459 of
this chapter and clearly marked ``Not for Public Inspection.'' An edited
version removing all proprietary data shall also be filed with the
Commission for inclusion in the public file. Edited versions shall be
filed within five days from the date the unedited brief is submitted,
and served on opposing parties.
(f) Either on its own motion or upon proper motion by a party, the
Commission may establish other deadlines or page limits for briefs.
(g) The Commission may require the parties to submit any additional
information it deems appropriate for a full, fair, and expeditious
resolution of the proceeding, including affidavits and exhibits.
[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573,
Apr. 27, 1993]
Sec. 1.733 Status conference.
(a) In any complaint proceeding, the Commission may in its
discretion direct the attorneys and/or the parties to appear before it
for a conference to consider:
(1) Simplification or narrowing of the issues;
(2) The necessity for or desirability of amendments to the
pleadings, or of additional pleadings or evidentiary submissions;
(3) Obtaining admissions of fact or stipulations between the parties
as to any or all of the matters in controversy;
(4) Settlement of the matters in controversy by agreement of the
parties;
(5) The necessity and extent of discovery, including objections to
interrogatories or requests for production of documents;
(6) The need and schedule for filing briefs, and the date for
further conferences; and
(7) Such other matters that may aid in the disposition of the
complaint.
(b) While a conference normally will be scheduled after the answer
has been filed, any party may request that a conference be held at any
time after the complaint has been filed.
(c) During a status conference, the Commission staff may issue oral
rulings pertaining to a variety of interlocutory matters relevant to the
conduct of a formal complaint proceeding including, inter alia,
procedural matters, discovery, and the submission of briefs or other
evidentiary materials. These rulings will be promptly memorialized in
writing and served on the parties. When such rulings require a party to
undertake affirmative action not subject to deadlines established by
another provision of this subpart, such action will be required within
10 days from the date of the written memorialization unless the staff
designates a later deadline.
(d) Conferences will be scheduled by the Commission at such time and
place as it may designate, to be conducted in person or by telephone
conference call.
(e) The failure of any attorney or party, following reasonable
notice, to appear at a scheduled conference will be deemed a waiver and
will not preclude the Commission from conferring with those parties or
counsel present.
[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573,
Apr. 27, 1993]
Sec. 1.734 Specifications as to pleadings, briefs, and other documents;
subscription.
(a) All papers filed in any formal complaint proceeding must be
drawn in conformity with the requirements of Secs. 1.49 and 1.50.
(b) All averments of claims or defenses in complaints and answers
shall be made in numbered paragraphs. The contents of each paragraph
shall be limited as far as practicable to a statement of a single set of
circumstances. Each claim founded on a separate
[[Page 178]]
transaction or occurrence and each affirmative defense shall be
separately stated to facilitate the clear presentation of the matters
set forth.
(c) The original of all pleadings and other submissions filed by any
party shall be signed by that party, or by the party's attorney. The
signing party shall state his or her address and telephone number and
the date on which the document was signed. Copies should be conformed to
the original. Except when otherwise specifically provided by rule or
statute, pleadings need not be verified. The signature of an attorney or
party shall be a certificate that the attorney or party has read the
pleading, motion, or other paper; that to the best of his or her
knowledge, information, and belief formed after reasonable inquiry, it
is well grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing
law; and that it is not interposed for any improper purpose.
[53 FR 11855, Apr. 11, 1988. Redesignated at 58 FR 25573, Apr. 27, 1993]
Sec. 1.735 Copies; service; separate filings against multiple
defendants.
(a) Complaints may generally be brought against only one named
carrier; such actions may not be brought against multiple defendants
unless the defendant carriers are commonly owned or controlled, are
alleged to have acted in concert, are alleged to be jointly liable to
complainant, or the complaint concerns common questions of law or fact.
Complaints may, however, be consolidated by the Commission for
disposition.
(b) The complainant must file an original plus three copies of the
complaint, accompanied by the correct fee, in accordance with subpart G
of this part. See 47 CFR 1.1105(1)(c). However, if a complaint is
addressed against multiple defendants, complainant shall pay separate
fee and supply three additional copies of the complaint for each
additional defendant.
(c) Generally, a separate file is set up for each defendant. An
original plus two copies shall be filed of all pleadings and documents,
other than the complaint, for each file number assigned.
(d) The Commission will serve a copy of any formal complaint filed
with it on the named defendant, together with a notice of the filing of
the complaint. Such notice shall call upon the defendant to satisfy the
complaint or to answer the complaint in writing within the time
specified in the notice.
(e) All subsequent pleadings and briefs filed in any formal
complaint proceeding, including any supplemental, amended, or cross
complaint, as well as all letters, documents or other written
submissions, shall be served by the filing party on all other parties to
the proceeding, together with a proof of such service in accordance with
the requirements of Sec. 1.47.
(f) The parties to any complaint proceeding may be required to file
additional copies of any or all papers filed in the proceeding.
[53 FR 11855, Apr. 11, 1988. Redesignated and amended at 58 FR 25573,
25574, Apr. 27, 1993]
Applications
Sec. 1.741 Scope.
The general rules relating to applications contained in Secs. 1.742
through 1.748 apply to all applications filed by carriers except those
filed by public correspondence radio stations pursuant to parts 80, 87,
and 101 of this chapter, and those filed by common carriers pursuant to
part 25 of this chapter. Parts 21 and 101 of this chapter contain
general rules applicable to applications filed pursuant to these parts.
For general rules applicable to applications filed pursuant to parts 80
and 87 of this chapter, see such parts and subpart F of this part. For
rules applicable to applications filed pursuant to part 25, see said
part.
[61 FR 26670, May 28, 1996]
Sec. 1.742 Place of filing, fees, and number of copies.
All applications which do not require a fee shall be filed at the
Commission's main office in Washington, DC., Attention: Office of the
Secretary. Hand-delivered applications will be dated by the Secretary
upon receipt (mailed applications will be dated by the Mail Branch) and
then forwarded to the
[[Page 179]]
Common Carrier Bureau. All applications accompanied by a fee payment
should be filed with the Commission's lockbox bank in accordance with
Sec. 1.1105, Schedule of Fees. The number of copies required for each
application and the nonrefundable processing fees and any applicable
regulatory fees (see subpart G of this part) which must accompany each
application in order to qualify it for acceptance for filing and
consideration are set forth in the rules in this chapter relating to
various types of applications. However, if any application is not of the
type covered by this chapter, an original and two copies of each such
application shall be submitted.
[59 FR 30998, June 16, 1994]
Sec. 1.743 Who may sign applications.
(a) Except as provided in paragraph (b) of this section,
applications, amendments thereto, and related statements of fact
required by the Commission must be signed by the applicant, if the
applicant is an individual; by one of the partners, if the applicant is
a partnership; by an officer or duly authorized employee, if the
applicant is a corporation; or by a member who is an officer, if the
applicant is an unincorporated association. Applications, amendments,
and related statements of fact filed on behalf of eligible government
entities such as states and territories of the United States, their
political subdivisions, the District of Columbia, and units of local
government, including incorporated municipalities, must be signed by a
duly elected or appointed official who is authorized to do so under the
laws of the applicable jurisdiction.
(b) Applications, amendments thereto, and related statements of fact
required by the Commission may be signed by the applicant's attorney in
case of the applicant's physical disability or of his absence from the
United States. The attorney shall in that event separately set forth the
reason why the application is not signed by the applicant. In addition,
if any matter is stated on the basis of the attorney's belief only
(rather than his knowledge), he shall separately set forth his reasons
for believing that such statements are true.
(c) Only the original of applications, amendments, or related
statements of fact need be signed; copies may be conformed.
(d) Applications, amendments, and related statements of fact need
not be signed under oath. Willful false statements made therein,
however, are punishable by fine and imprisonment, U.S. Code, Title 18,
section 1001, and by appropriate administrative sanctions, including
revocation of station license pursuant to section 312(a)(1) of the
Communications Act of 1934, as amended.
(e) ``Signed,'' as used in this section, means an original hand-
written signature, except that by public notice in the Federal Register
the Common Carrier Bureau may allow signature by any symbol executed or
adopted by the applicant with the intent that such symbol be a
signature, including symbols formed by computer-generated electronic
impulses.
[28 FR 12450, Nov. 22, 1963, as amended at 53 FR 17193, May 16, 1988; 59
FR 59503, Nov. 17, 1994]
Sec. 1.744 Amendments.
(a) Any application not designated for hearing may be amended at any
time by the filing of signed amendments in the same manner, and with the
same number of copies, as was the initial application. If a petition to
deny (or to designate for hearing) has been filed, the amendment shall
be served on the petitioner.
(b) After any application is designated for hearing, requests to
amend such application may be granted by the presiding officer upon good
cause shown by petition, which petition shall be properly served upon
all other parties to the proceeding.
(c) The applicant may at any time be ordered to amend his
application so as to make it more definite and certain. Such order may
be issued upon motion of the Commission (or the presiding officer, if
the application has been designated for hearing) or upon petition of any
interested person, which petition shall be properly served upon the
applicant and, if the application has been
[[Page 180]]
designated for hearing, upon all parties to the hearing.
[29 FR 6444, May 16, 1964, and 31 FR 14394, Nov. 9, 1966]
Sec. 1.745 Additional statements.
The applicant may be required to submit such additional documents
and written statements of fact, signed and verified (or affirmed), as in
the judgment of the Commission (or the presiding officer, if the
application has been designated for hearing) may be necessary. Any
additional documents and written statements of fact required in
connection with applications under Title II of the Communications Act
need not be verified (or affirmed).
[29 FR 6444, May 16, 1964]
Sec. 1.746 Defective applications.
(a) Applications not in accordance with the applicable rules in this
chapter may be deemed defective and returned by the Commission without
acceptance of such applications for filing and consideration. Such
applications will be accepted for filing and consideration if
accompanied by petition showing good cause for waiver of the rule with
which the application does not conform.
(b) The assignment of a file number, if any, to an application is
for the administrative convenience of the Commission and does not
indicate the acceptance of the application for filing and consideration.
Sec. 1.747 Inconsistent or conflicting applications.
When an application is pending or undecided, no inconsistent or
conflicting application filed by the same applicant, his successor or
assignee, or on behalf or for the benefit of said applicant, his
successor, or assignee, will be considered by the Commission.
Sec. 1.748 Dismissal of applications.
(a) Before designation for hearing. Any application not designated
for hearing may be dismissed without prejudice at any time upon request
of the applicant. An applicant's request for the return of an
application that has been accepted for filing and consideration, but not
designated for hearing, will be deemed a request for dismissal without
prejudice. The Commission may dismiss an application without prejudice
before it has been designated for hearing when the applicant fails to
comply or justify noncompliance with Commission requests for additional
information in connection with such application.
(b) After designation for hearing. A request to dismiss an
application without prejudice after it has been designated for hearing
shall be made by petition properly served upon all parties to the
hearing and will be granted only for good cause shown. An application
may be dismissed with prejudice after it has been designated for hearing
when the applicant:
(1) Fails to comply with the requirements of Sec. 1.221(c);
(2) Otherwise fails to prosecute his application; or
(3) Fails to comply or justify noncompliance with Commission
requests for additional information in connection with such application.
[28 FR 12450, Nov. 22, 1963, as amended at 29 FR 6445, May 16, 1964]
Sec. 1.749 Action on application under delegated authority.
Certain applications do not require action by the Commission but,
pursuant to the delegated authority contained in subpart B of part 0 of
this chapter, may be acted upon by the Telegraph Committee, the
Telephone Committee, or the Chief of the Common Carrier Bureau,
respectively, subject to reconsideration by the Commission.
specific types of applications under title ii of communications act
Sec. 1.761 Cross reference.
Specific types of applications under Title III of the Communications
Act involving public correspondence radio stations are specified in
parts 23, 80, 87, and 101 of this chapter.
[61 FR 26671, May 28, 1996]
Sec. 1.762 Interlocking directorates.
Applications under section 212 of the Communications Act for
authority to hold the position of officer or director of more than one
carrier subject to the
[[Page 181]]
act or for a finding that two or more carriers are commonly owned shall
be made in the form and manner, with the number of copies set forth in
part 62 of this chapter. The Commission shall be informed of any change
in status of any person authorized to hold the position of officer or
director of more than one carrier, as required by part 62 of this
chapter.
[52 FR 5289, Feb. 20, 1987]
Sec. 1.763 Construction, extension, acquisition or operation of lines.
(a) Applications under section 214 of the Communications Act for
authority to construct a new line, extend any line, acquire or operate
any line or extension thereof, or to engage in transmission over or by
means of such additional or extended line, to furnish temporary or
emergency service, or to supplement existing facilities shall be made in
the form and manner, with the number of copies and accompanied by the
fees specified in part 63 of this chapter.
(b) In cases under this section requiring a certificate, notice is
given to and a copy of the application is filed with the Secretary of
the Army, the Secretary of the Navy, and the Governor of each State
involved. Hearing is held if any of these persons desires to be heard or
if the Commission determines that a hearing should be held. Copies of
applications for certificates are filed with the regulatory agencies of
the States involved.
Sec. 1.764 Discontinuance, reduction, or impairment of service.
(a) Applications under section 214 of the Communications Act for the
authority to discontinue, reduce, or impair service to a community or
part of a community or for the temporary, emergency, or partial
discontinuance, reduction, or impairment of service shall be made in the
form and manner, with the number of copies specified in part 63 of this
chapter (see also subpart G, part 1 of this chapter). Posted and public
notice shall be given the public as required by part 63 of this chapter.
(b) In cases under this section requiring a certificate, notice is
given to and a copy of the application is filed with the Secretary of
Defense, the Secretary of State (with respect to such applications
involving service to foreign points), and the Governor of each State
involved. Hearing is held if any of these persons desires to be heard or
if the Commission determines that a hearing should be held. Copies of
all formal applications under this section requesting authorizations
(including certificates) are filed with the Secretary of Defense, the
Secretary of State (with respect to such applications involving service
to foreign points) and the Governor of each State involved. Copies of
all applications under this section requesting authorizations (including
certificates) are filed with the regulatory agencies of the States
involved.
[28 FR 12450, Nov. 22, 1963, as amended at 52 FR 5289, Feb. 20, 1987]
Sec. 1.765 Consolidation or acquisition of telephone companies.
Applications under section 221(a) of the Communications Act for
authority to consolidate or acquire telephone companies shall be made in
the form and manner, with the number of copies and accompanied by the
fees shown in part 66 of this chapter.
Sec. 1.766 Consolidation of domestic telegraph carriers.
(a) Applications under section 22 of the Communications Act by two
or more domestic telegraph carriers for authorization to effect a
consolidation or merger or by any domestic telegraph carrier to acquire
all or any part of the domestic telegraph properties, domestic telegraph
facilities, or domestic telegraph operations of any carrier shall
contain such information as is necessary for the Commission to act upon
such application under the provisions of section 222 of the Act.
(b) These applications are acted upon by the Commission after public
hearing. Reasonable notice in writing of the public hearing and an
opportunity to be heard is given by the Commission to the Governor of
each of the States in which any of the physical property involved in
such proposed consolidation or merger is situated, to the Secretary of
State, the Secretary of the Army, the Attorney General of the United
[[Page 182]]
States, the Secretary of the Navy, representatives of employees where
represented by bargaining representatives known to the Commission, and
to such other persons as the Commission may deem advisable.
[28 FR 12450, Nov. 22, 1963, as amended at 52 FR 5289, Feb. 20, 1987]
Sec. 1.767 Cable landing licenses.
(a) Applications for cable landing licenses under 47 U.S.C. 34-39
and Executive Order No. 10530, dated May 10, 1954, should be filed in
duplicate and in accordance with the provisions of that Executive Order.
These applications should contain:
(1) The name, address and telephone number(s) of the applicant;
(2) The Government, State, or Territory under the laws of which each
corporate or partnership applicant is organized;
(3) The name, title, post office address, and telephone number of
the officer and any other contact point, such as legal counsel, to whom
correspondence concerning the application is to be addressed;
(4) A description of the submarine cable, including the type and
number of channels and the capacity thereof;
(5) A specific description of the cable landing location on the
shore of the United States and in foreign countries where the cable will
land (including a map). Applicants initially may file a general
geographic description of the landing points; however, grant of the
application will be conditioned on the Commission's final approval of a
more specific description of the landing points to be filed by the
applicant no later than 90 days prior to construction. The Commission
will give public notice of the filing of this description, and grant of
the license will be considered final if the Commission does not notify
the applicant otherwise in writing no later than 60 days after receipt
of the specific description of the landing points.
(6) A statement as to whether the cable will be operated on a common
carrier or non-common carrier basis, and if operation will be on a non-
common carrier basis, include the ownership information required in
Sec. 63.18 (e)(6) and (h) (1) through (2) of this chapter; and
(7) Any other information that may be necessary to enable the
Commission to act on their application.
(b) These applications are acted upon by the Commission after
obtaining the approval of the Secretary of State and such assistance
from any executive department or establishment of the Government as it
may require.
(c) Original files relating to submarine cable landing licenses and
applications for licenses since June 30, 1934, are kept by the
Commission. Such applications for licenses (including all documents and
exhibits filed with and made a part thereof, with the exception of any
maps showing the exact location of the submarine cable or cables to be
licensed) and the licenses issued pursuant thereto, with the exception
of such maps, shall, unless otherwise ordered by the Commission, be open
to public inspection in the offices of the Commission in Washington,
D.C.
(d) Original files relating to licenses and applications for
licenses for the landing operation of cables prior to June 30, 1934,
were kept by the Department of State, and such files prior to 1930 have
been transferred to the Executive and Foreign Affairs Branch of the
General Records Office of the National Archives. Requests for inspection
of these files should, however, be addressed to the Federal
Communications Commission, Washington, D.C., 20554; and the Commission
will obtain such files for a temporary period in order to permit
inspection at the offices of the Commission.
(e) A separate application shall be filed with respect to each
individual cable system for which a license is requested, or for which
modification or amendment of a previous license is requested.
(f) Applicants shall disclose to any interested member of the
public, upon written request, accurate information concerning the
location and timing for the construction of a submarine cable system
authorized under this section. This disclosure shall be made within 30
days of receipt of the request.
[28 FR 12450, Nov. 22, 1963, as amended at 52 FR 5289, Feb. 20, 1987; 61
FR 15726, Apr. 9, 1996]
[[Page 183]]
Tariffs
Sec. 1.771 Filing.
Schedules of charges, and classifications, practices, and
regulations affecting such charges, required under section 203 of the
Communications Act shall be constructed, filed, and posted in accordance
with and subject to the requirements of part 61 of this chapter.
Sec. 1.772 Application for special tariff permission.
Applications under section 203 of the Communications Act for special
tariff permission shall be made in the form and manner, with the number
of copies set out in part 61 of this chapter.
[52 FR 5289, Feb. 20, 1987]
Sec. 1.773 Petitions for suspension or rejection of new tariff filings.
(a) Petition--(1) Content. Petitions seeking investigation,
suspension, or rejection of a new or revised tariff filing or any
provision thereof shall specify the filing's Federal Communications
Commission tariff number and carrier transmittal number, the items
against which protest is made, and the specific reasons why the
protested tariff filing warrants investigation, suspension, or rejection
under the Communications Act. No petition shall include a prayer that it
also be considered a formal complaint. Any formal complaint shall be
filed as a separate pleading as provided in Sec. 1.721.
(i) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing or any provision of such a publication,
must specify the pertinent Federal Communications Commission tariff
number and carrier transmittal number; the matters protested; and the
specific reasons why the tariff warrants investigation, suspension, or
rejection. When a single petition asks for more than one form of relief,
it must separately and distinctly plead and support each form of relief.
However, no petiton may ask that it also be considered a formal
complaint. Formal complaints must be separately lodged, as provided in
Sec. 1.721.
(ii) For purposes of this section, tariff filings by nondominant
carriers will be considered prima facie lawful, and will not be
suspended by the Commission unless the petition requesting suspension
shows:
(A) That there is a high probability the tariff would be found
unlawful after investigation;
(B) That the harm alleged to competition would be more substantial
than the injury to the public arising from the unavailability of the
service pursuant to the rates and conditions proposed in the tariff
filing;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the
public interest.
(iii) For the purpose of this section, any tariff filing by a local
exchange carrier filed pursuant to the requirements of Sec. 61.39 will
be considered prima facie lawful and will not be suspended by the
Commission unless the petition requesting suspension shows that the cost
and demand studies or average schedule information was not provided upon
reasonable request. If such a showing is not made, then the filing will
be considered prima facie lawful and will not be suspended by the
Commission unless the petition requesting suspension shows each of the
following:
(A) That there is a high probability the tariff would be found
unlawful after investigation;
(B) That any unreasonable rate would not be corrected in a
subsequent filing;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the
public interest.
(iv) For the purposes of this section, tariff filings made pursuant
to Sec. 61.49(b) by carriers subject to price cap regulation will be
considered prima facie lawful, and will not be suspended by the
Commission unless the petition shows that the support information
required in Sec. 61.49(b) was not provided, or unless the petition
requesting suspension shows each of the following:
(A) That there is a high probability the tariff would be found
unlawful after investigation;
[[Page 184]]
(B) That the suspension would not substantially harm other
interested parties;
(C) That irreparable injury will result if the tariff filing is not
suspended; and
(D) That the suspension would not otherwise be contrary to the
public interest.
(2) When filed. All petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing shall meet the filing
requirements of this paragraph. In case of emergency and within the time
limits provided, a telegraphic request for such relief may be sent to
the Commission setting forth succinctly the substance of the matters
required by paragraph (a)(1) of this section. A copy of any such
telegraphic request shall be sent simultaneously to the Chief, Common
Carrier Bureau, the Chief, Tariff Division, and the publishing carrier.
Thereafter, the request shall be confirmed by petition filed and served
in accordance with Sec. 1.773(a)(4).
(i) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filed pursuant to section 204(a)(3) of the
Communications Act made on 7 days notice shall be filed and served
within 3 calendar days after the date of the tariff filing.
(ii) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing made on less than 15 days notice shall be
filed and served within 6 days after the date of the tariff filing.
(iii) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing made on at least 15 but less than 30 days
notice shall be filed and served within 7 days after the date of the
tariff filing.
(iv) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing made on at least 30 but less than 90 days
notice shall be filed and served within 15 days after the date of the
tariff filing.
(v) Petitions seeking investigation, suspension, or rejection of a
new or revised tariff filing mode on 90 or more days notice shall be
filed and served within 25 days after the date of the tariff filing.
(3) Computation of time. Intermediate holidays shall be counted in
determining the above filing dates. If the date for filing the petition
falls on a holiday, the petition shall be filed on the next succeeding
business day.
(4) Copies, service. An original and four copies of each petition
shall be filed with the Commission as follows: the original and three
copies of each petition shall be filed with the Secretary, FCC room 222,
1991 M Street, NW., Washington, DC 20554; one copy must be delivered
directly to the Commission's copy contractor, International
Transcription Service, Inc., 2100 M St., NW., Suite 140, Washington, DC.
Additional, separate copies shall be served simultaneously upon the
Chief, Common Carrier Bureau; the Chief, Competitive Pricing Division;
and the Chief, Tariff and Price Analysis Branch of the Competitive
Pricing Division. Petitions seeking investigation, suspension, or
rejection of a new or revised tariff made on 15 days or less notice
shall be served either personally or via facsimile on the filing
carrier. If a petition is served via facsimile, a copy of the petition
must also be sent to the filing carrier via first class mail on the same
day of the facsimile transmission. Petitions seeking investigation,
suspension, or rejection of a new or revised tariff filing made on more
than 15 days notice may be served on the filing carrier by mail.
(b) Reply--(1) When filed. A publishing carrier's reply to a
petition for relief from a tariff filing shall be filed in accordance
with the following periods:
(i) Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff filed pursuant to section 204(a)(3)
of the Act made on 7 days notice shall be filed and served within 2 days
after the date the petition is filed with the Commission.
(ii) Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing made on less than 15 days
notice shall be filed and served within 3 days after the date the
petition is due to be filed with the Commission.
(iii) Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing made on at least 15 but less
than 30 days notice shall be filed and served within 4 days after
service of the petition.
[[Page 185]]
(iv) Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing made on at least 30 but less
than 90 days notice shall be filed and served within 5 days after
service of the petition.
(v) Replies to petitions seeking investigation, suspension, or
rejection of a new or revised tariff filing made on 90 or more days
notice shall be filed and served within 8 days after service of the
petition.
(vi) Where all petitions against a tariff filing have not been filed
on the same day, the publishing carrier may file a consolidated reply to
all the petitions. The time for filing such a consolidated reply will
begin to run on the last date for timely filed petitions, as fixed by
paragraphs (a)(2) (i) through (iv) of this section, and the date on
which the consolidated reply is due will be governed by paragraphs
(b)(1) (i) through (iv) of this section.
(2) Computation of time. Intermediate holidays shall be counted in
determining the 3-day filing date for replies to petitions seeking
investigation, suspension, or rejection of a new or revised tariff
filing made on less than 15 days notice. Intermediate holidays shall not
be counted in determining filing dates for replies to petitions seeking
investigation, suspension, or rejection of a new or revised tariff
filing made on 15 or more days notice. When a petition is permitted to
be served upon the filing carrier by mail, an additional 3 days
(counting holidays) may be allowed for filing the reply. If the date for
filing the reply falls on a holiday, the reply may be filed on the next
succeeding business day.
(3) Copies, service. An original and four copies of each reply shall
be filed with the Commission, as follows: the original and three copies
must be filed with the Secretary, FCC room 222, 1919 M Street, NW.,
Washington, DC 20554; one copy must be delivered directly to the
Commission's Copy contractor, International Transcription Service, Inc.,
2100 M St., NW/. Suite 140, Washington, DC. Additional separate copies
shall be served simultaneously upon the Chief, Common Carrier Bureau;
the Chief, Competitive Division; and the Chief, Tariff and Price
Analysis Branch of the Competitive Pricing Division and the petitioner.
Replies to petitions seeking investigation, suspension, or rejection of
a new or revised tariff made on 15 days or less notice shall be served
on petitioners personally or via facsimile. Replies to petitions seeking
investigation, suspension, or rejection of a new or revised tariff made
on more than 15 days notice may be served upon petitioner personally, by
mail or via facsimile.
[45 FR 64190, Sept. 29, 1980, as amended at 49 FR 40876, Oct. 18, 1984;
49 FR 49466, Dec. 20, 1984; 52 FR 26682, July 16, 1987; 54 FR 19840, May
8, 1989; 58 FR 17529, Apr. 5, 1993; 58 FR 51247, Oct. 1, 1993; 62 FR
5777, Feb. 7, 1997]
Contracts, Reports, and Requests Required to be Filed by Carriers
Sec. 1.781 Requests for extension of filing time.
Requests for extension of time within which to file contracts,
reports, and requests referred to in Secs. 1.783 through 1.814 shall be
made in writing and may be granted for good cause shown.
Contracts
Sec. 1.783 Filing.
Copies of carrier contracts, agreements, concessions, licenses,
authorizations or other arrangements, shall be filed as required by part
43 of this chapter.
Financial and Accounting Reports and Requests
Sec. 1.785 Annual financial reports.
(a) An annual financial report shall be filed by telephone carriers
and affiliates as required by part 43 of this chapter on form M.
(b) Verified copies of annual reports filed with the Securities and
Exchange Commission on its Form 10-K, Form 1-MD, or such other form as
may be prescribed by that Commission for filing of equivalent
information, shall be filed annually with this Commission by each person
directly or indirectly controlling any communications common carrier in
accordance with part 43 of this chapter.
(c) Carriers having separate departments or divisions for carrier
and noncarrier operations shall file separate
[[Page 186]]
supplemental annual reports with respect to such carrier and non-carrier
operations in accordance with part 43 of this chapter.
[28 FR 12450, Nov. 22, 1963, as amended at 31 FR 747, Jan. 20, 1966; 47
FR 50697, Nov. 9, 1982; 49 FR 36503, Sept. 18, 1984; 50 FR 41152, Oct.
9, 1985; 58 FR 36143, July 6, 1993]
Sec. 1.786 [Reserved]
Sec. 1.787 Reports of proposed changes in depreciation rates.
Carriers shall file reports regarding proposed changes in
depreciation rates as required by part 43 of this chapter.
Sec. 1.788 Reports regarding pensions and benefits.
Carriers shall file reports regarding pensions and benefits as
required by part 43 of this chapter.
Sec. 1.789 Reports regarding division of international telegraph
communication charges.
Carriers engaging in international telegraph communication shall
file reports in regard to the division of communication charges as
required by part 43 of this chapter.
Sec. 1.790 Reports relating to traffic by international carriers.
Carriers shall file periodic reports regarding international point-
to-point traffic as required by part 43 of this chapter.
[57 FR 8579, Mar. 11, 1992]
Sec. 1.791 Reports and requests to be filed under part 32 of this
chapter.
Reports and requests shall be filed either periodically, upon the
happening of specified events, or for specific approval by class A and
class B telephone companies in accordance with and subject to the
provisions of part 32 of this chapter.
[55 FR 30461, July 26, 1990]
Sec. 1.795 Reports regarding interstate rates of return.
Carriers shall file reports regarding interstate rates of return on
FCC Form 492 as required by part 65 of this chapter.
[52 FR 274, Jan. 5, 1987]
Services and Facilities Reports
Sec. 1.802 Reports relating to continuing authority to supplement
facilities or to provide temporary or emergency service.
Carriers receiving authority under part 63 of this chapter shall
file quarterly or semiannual reports as required therein.
Sec. 1.803 Reports relating to reduction in temporary experimental
service.
As required in part 63 of this chapter, carriers shall report
reductions in service which had previously been expanded on an
experimental basis for a temporary period.
Sec. 1.805 Reports relating to service by carriers engaged in public
radio service operations.
Monthly and quarterly reports must be filed with the Commission in
connection with certain fixed public radio service operations. No form
is prescribed. A complete description of the contents of these reports
is contained in part 23 of this chapter.
Miscellaneous Reports
Sec. 1.811 Reports regarding amendments to charters, by-laws and
partnership agreements of carriers engaged in domestic public
radio services.
Amendments to such documents shall be reported and filed in
accordance with part 21 of this chapter.
Sec. 1.813 Reports of negotiations regarding foreign communication
matters.
Pursuant to the requirements of part 43 of this chapter, carriers
engaging or participating in foreign communications shall file monthly
reports covering negotiations conducted.
Sec. 1.814 Reports regarding free service rendered the Government for
national defense.
Carriers rendering free service in connection with the national
defense to any agency of the United States Government shall file reports
in accordance with part 2 of this chapter.
[[Page 187]]
Sec. 1.815 Reports of annual employment.
(a) Each common carrier licensee or permittee with 16 or more full
time employees shall file with the Commission, on or before May 31 of
each year, on FCC Form 395, an annual employment report.
(b) A copy of every annual employment report filed by the licensee
or permittee pursuant to the provisions herein; and copies of all
exhibits, letters, and other documents filed as part thereof, all
amendments thereto, all correspondence between the permittee or licensee
and the Commission pertaining to the reports after they have been filed
and all documents incorporated herein by reference are open for public
inspection at the offices of the Commission.
(c) Cross references--(1) Applicability of cable television EEO
reporting requirements to MDS and MMDS facilities, see Sec. 21.920 of
this chapter.
(2) Applicability of cable television EEO reporting requirements for
FSS facilities, see Sec. 25.601 of this chapter.
[35 FR 12894, Aug. 14, 1970, as amended at 36 FR 3119, Feb. 18, 1971; 58
FR 42249, Aug. 9, 1993]
Grants By Random Selection
Sec. 1.821 Scope.
The provisions of Secs. 1.822, 1.823, 1.824 and 1.825 apply as
indicated to those applications for permits, licenses or authorizations
in the Public Mobile Services, Multichannel Multipoint Distribution
Service and Digital Electronic Message Service for which action may be
taken by the Chief, Common Carrier Bureau pursuant to delegated
authority.
[59 FR 59503, Nov. 17, 1994]
Sec. 1.822 General selection procedures.
(a) Mutually exclusive applications for permits and licenses in the
services specified in Sec. 1.821 may be designated for random selection
according to the procedures established for each service. Following the
random selection, the Commission shall determine whether the applicant
is qualified to receive the permit or license. If, after reviewing the
tentative selectee's application and pleadings properly filed against
it, the Commission determines that a substantial and material question
of fact exists, it shall designate the qualifying issue(s) for an
expedited hearing.
(b) Expedited hearing procedures. (1) Hearings may be conducted by
the Commission or an Administrative Law Judge. In the case of a question
which requires oral testimony for its resolution, the hearing will be
conducted by an Administrative Law Judge.
(2) Parties have ten (10) days from publication in the Federal
Register of the hearing designation order to file notices of appearance.
(3) When the Commission, under Sec. 1.221, issues an order stating
the time, place, and nature of the hearing, this order shall instruct
the applicant to submit its direct case in writing within thirty (30)
days from the order's release date, or as otherwise specified in the
order. The direct written case must set forth all those facts and
circumstances related to the issues in the designation order.
Documentary evidence upon which the applicant relies must be attached.
Each exhibit must be numbered and must be accompanied by an affidavit
from someone who has personal knowledge of the facts in the submission
and who attests to the truth of the submission.
(4) The order will also specify those petitioners that directly
raised an issue which was designated and will inform these parties of
their opportunity to submit a written rebuttal case within twenty (20)
days after the direct case is due. The procedures in paragraph (b)(3) of
this section will apply as to documentary evidence, exhibits, and
affidavits.
(5) Appeal of initial decisions rendered by an Administrative Law
Judge shall lie with the Commission.
[48 FR 27201, June 13, 1983. Redesignated and amended at 50 FR 5991,
Feb. 13, 1985]
Sec. 1.823 Random selection procedures for the Public Mobile Services.
(a) General Procedures. If there are mutually exclusive applications
for an initial license, the Commission may use a random selection
process. Each such random selection shall be conducted under the
direction of the Chief of the Common Carrier Bureau. The designated
Lottery Official shall select
[[Page 188]]
the winning applicant from among mutually exclusive applicants. The
Lottery Official may select in rank order a number of additional
applicants. The number of additional applicants selected will be
determined by the Chief of the Common Carrier Bureau and the Managing
Director. No preferences shall be awarded to participants. Following the
random selection, the Commission shall announce the tentative selectee
and determine whether this applicant is qualified to receive the
license. If the Commission determines that the tentative selectee is
qualified, it shall grant the application.
(b) Petitions to Deny--(1) Public Mobile Services other than the
Cellular Radiotelephone Service. Petitions to Deny and other pleadings
may be filed against applications but are not reviewed prior to the
random selection process. Petitions filed against tentative selectee
applications are reviewed after the tentative selectee is announced.
(2) [Reserved]
(3) Cellular Radiotelephone Service, unserved areas. In the Phase I
licensing phase, petitions to deny must be filed within 30 days after
the date of public notice announcing the tentative selectee. If the
tentative selectee is qualified, the Commission will grant its
application and dismiss the losing applications. If the tentative
selectee's application cannot be granted, it will be either designated
for hearing or dismissed. If the winning application is dismissed or
ultimately denied, another lottery will be held to select an application
from the remaining applications. In the Phase II licensing phase,
petitions to deny must be filed within 30 days from the date of public
notice accepting the application for filing.
(c) Petitions for Reconsideration. Motions to Stay or Applications
for Review may be filed only at such time as the Commission grants or
denies the tentative selectee's application. The filing periods
specified in the Rules shall apply for such pleadings.
[50 FR 5991, Feb. 13, 1985, as amended at 50 FR 51527, Dec. 18, 1985; 53
FR 52425, Dec. 28, 1988; 56 FR 58506, Nov. 20, 1991; 59 FR 59503, Nov.
17, 1994; 59 FR 59949, Nov. 21, 1994]
Sec. 1.824 Random selection procedures for Multichannel Multipoint
Distribution Service and Multipoint Distribution Service H-
Channel stations.
(a) If there are mutually exclusive applications for an initial
conditional license or license, the Commission may use the random
selection process to select the conditional licensee or licensee. Each
such random selection shall be conducted under the direction of the
Office of the Managing Director in conjunction with the Office of the
Secretary. Following the random selection, the Commission shall announce
the tentative selectee and determine whether the applicant is qualified
to receive the conditional license or license. If the Commission
determines that the tentative selectee is qualified, it shall grant the
application. In the event that the tentative selectee's application is
denied, a second random selection will be conducted. Petitions for
Reconsideration, Motions to Stay or Applications for Review may be
submitted at the time the Commission grants or denies the application of
the tentative selectee. The filing periods specified in the rules shall
apply for such pleadings.
(b) Competing applications for conditional licenses and licenses
shall be designated for random selection in accordance with
Secs. 1.1621, 1.1622 (a), (b), (c), (d), and (e), and 1.1623. No
preferences pursuant to Sec. 1.1622 (b)(2) or (b)(3) shall be granted to
any MMDS or MDS H-channel applicant whose owners, when aggregated, have
an ownership interest of more than 50 percent in the media of mass
communication whose service areas, as set forth at Sec. 1.1622 (e)(1)
through (e)(7), wholly encompass or are encompassed by the protected
service area contour, computed in accordance with Sec. 21.902(d) of this
chapter, for which the license or conditional license is sought.
(c) Petitions to Deny may be filed only against the tentative
selectee. These petitions must be filed within 30 days of the Public
Notice announcing such tentative selection. A consolidated reply may be
filed within 15 days of the due date for Petitions to Deny.
[50 FR 5992, Feb. 13, 1985, as amended at 56 FR 57815, Nov. 14, 1991]
[[Page 189]]
Sec. 1.825 Random selection procedures for Digital Electronic Message
Service.
If there are mutually exclusive applications for an initial permit
or license for a digital termination system, the Commission may use the
random selection process to select the permittee or licensee. Each such
random selection shall be conducted under the direction of the Office of
Managing Director in conjunction with the Office of the Secretary. The
random selection shall rank order the applications. No preferences shall
be awarded to participants. Following the random selection, the
Commission shall announce the rank order of the applications to
determine whether the first ranked tentative selectee is qualified to
recieve the permit or license. If the Commission determines that the
tentative selectee is qualified, it shall grant the application. The
Commission shall then determine which of the alternate applications in
rank order, can also be granted and whether those alternate tentative
selectees are qualified to receive the permit or license. If the
Commission determines that the alternate tentative selectees are
qualified, it shall grant the applications.
[50 FR 45614, Nov. 1, 1985, as amended by 61 FR 26671, May 28, 1996; 62
FR 24581, May 6, 1997]
Subpart F--Private Radio Services Applications and Proceedings
Source: 28 FR 12454, Nov. 22, 1963, unless otherwise noted.
General
Sec. 1.901 Scope.
In the case of any conflict between the rules set forth in this
subpart and the rules set forth in part 13 of this chapter or the rules
set forth for specific services in parts 80 through 101 of this chapter,
the rules in this subpart shall govern.
[61 FR 26671, May 28, 1996]
General Filing Requirements
Sec. 1.911 Applications required.
(a) Except as provided in paragraph (b) of this section, station
licenses as defined in section 3(bb) of the Communications Act; operator
licenses or modifications of renewals thereof; assignments of station
licenses or any rights thereunder; and consent to transfer control of a
corporation holding a license, shall be granted only upon written and
signed application.
(b) In cases (1) of an emergency found by the Commission involving
danger to life or property or due to damage to equipment, or (2) of a
national emergency proclaimed by the President or declared by the
Congress and during the continuance of any war in which the United
States is engaged, when such action is necessary for the national
defense or security or otherwise in furtherance of the war effort, or
(3) of emergency where the Commission finds, in these services, that it
would not be feasible to secure renewal applications from existing
licensees or otherwise to follow normal licensing procedure, the
Commission may grant station licenses, or modifications or renewals
thereof, without the filing of a formal application; but no such
authorization shall be granted for or continue in effect beyond the
period of the emergency or war requiring it. The procedure to be
followed for requests submitted under the provisions of this paragraph
is the same as for obtaining special temporary authority under
Sec. 1.925.
(c) In case of vessels at sea, the Commission may issue by cable,
telegraph, or radio a permit for the operation of a station until the
vessel returns to a port of the continental United States.
(d) Canadian licensees desiring to operate in the United States
under the terms of Articles 2 and 3 of the Convention between the United
States and Canada concerning Operation of Certain Radio Equipment or
Stations (which entered into force May 15, 1952) shall make application
upon FCC Form 410, which shall be filed with the Secretary, Federal
Communications Commission, Washington, DC, 20554. Forms
[[Page 190]]
may be obtained from the FCC Secretary, any field office of the
Commission, or from the Controller of Telecommunications, Department of
Transport, Ottawa, Canada.
(e) An alien amateur desiring to operate in the United States under
provisions of sections 303(1)(2) and 310(a) of the Communications Act of
1934, as amended, and under the terms of a bilateral agreement in force
between the applicant's country and the United Staters concluded
pursuant to the provisions of Pub. L. 88-313, must make application on
FCC Form 610-A,<SUP>1</SUP> which must be filed with the Commission's
offices in Gettysburg, Pennsylvania (Federal Communications Commission,
Gettysburg, Pennsylvania 17325). Forms may be obtained from the
Secretary, the Commission's offices in Gettysburg, Pennsylvania, any
field office of the Commission and, in some instances, from United
States missions abroad.
---------------------------------------------------------------------------
\1\ Form filed as part of original document.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308)
[28 FR 12454, Nov. 22, 1963, as amended at 34 FR 19419, Dec. 9, 1969; 37
FR 15928, Aug. 8, 1972; 40 FR 5365, Feb. 5, 1975; 49 FR 30943, Aug. 2,
1984]
Sec. 1.912 Where applications are to be filed.
(a) Each application for a new amateur service operator/primary
station license and each application involving a change in operator
class must be submitted to the volunteer examiners (VEs) administering
the qualifying examination. See Sec. 97.17(c) of this chapter. The VEs
are required to submit the applications of persons passing their
respective examinations for amateur operator licenses to the Volunteer-
Examiner Coordinator (VEC). All other applications for amateur service
licenses must be submitted to FCC, 1270 Fairfield Road, Gettysburg, PA
17325-7245.
(b) All applications for private land mobile licenses which require
both frequency coordination and fees as set forth at part 1, subpart G
of this chapter shall first be sent to the certified coordinator for the
radio service or frequency group concerned. After the appropriate
frequency coordination and attachment of the statutory fee, such
applications shall be forwarded to the appropriate address in accordance
with Sec. 0.401(b) of the rules.
(1) All applications for private land mobile licenses that require
frequency coordination but not a fee shall be sent to the certified
frequency coordinator for the radio service or frequency group
concerned. After appropriate frequency coordination, such applications
must be forwarded to the Federal Communications Commission, 1270
Fairfield Road, Gettysburg, Pennsylvania 17325-7245.
(2) All applications for private land mobile licenses that require a
fee but not frequency coordination shall be sent to the appropriate
address in accordance with Sec. 0.401(b) of the rules.
(3) All applications for private land mobile licenses that do not
require either frequency coordination or a fee must be sent to Federal
Communications Commission, 1270 Fairfield Road, Gettysburg, Pennsylvania
17325-7245.
(c) Formal applications for ship station licenses for use of
radiotelephone or radar transmitting apparatus or both, and applications
for modification of such licenses shall be filed on FCC Form 506 and in
accordance with the instructions on that form.
(d) Formal applications for ship station licenses (FCC Forms 506 and
405-B), for aircraft station licenses (FCC Forms 404 and 405-B), and
applications for Maritime Coast and Aviation Ground Stations, requiring
fees as set forth in part 1, subpart G of this chapter must be filed in
accordance with Sec. 1.1102 of the rules.
(e) Applicants submitting long-form applications pursuant to
competitive bidding procedures (see Sec. 1.2107(c)) must mail or
otherwise deliver their application to: Office of the Secretary, Federal
Communications Commission, 1919 M Street NW., Room 222, Washington, DC
20554, Attention: Auction Application Processing Section.
(f) All other applications that do not require fees must be filed
with the Commission's offices in Gettysburg, Pennsylvania. Address the
applications to: Federal Communications Commission, 1270 Fairfield Road,
Gettysburg, Pennsylvania 17325-7245. Applications
[[Page 191]]
requiring fees as set forth at part 1, subpart G of of this chapter must
be filed in accordance with Sec. 0.401(b) of the rules.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308; secs. 4, 303, 307,
48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154, 303, 307)
[47 FR 9208, Mar. 4, 1982, as amended at 47 FR 15334, Apr. 9, 1982; 48
FR 45658, Oct. 6, 1983; 52 FR 10229, Mar. 31, 1987; 56 FR 64714, Dec.
12, 1991; 58 FR 30717, May 27, 1993; 59 FR 543, Jan. 5, 1994; 59 FR
24957, May 13, 1994]
Sec. 1.913 Who may sign applications.
(a) Except as provided in paragraph (b) of this section,
applications, amendments thereto, and related statements of fact
required by the Commission must be signed by the applicant, if the
applicant is an individual; by one of the partners, if the applicant is
a partnership; by an officer, director, or duly authorized employee, if
the applicant is a corporation; or by a member who is an officer, if the
applicant is an unincorporated association. Applications, amendments,
and related statements of fact filed on behalf of eligible government
entities such as states and territories of the United States, their
political subdivisions, the District of Columbia, and units of local
government, including unincorporated municipalities, must be signed by a
duly elected or appointed official who is authorized to do so under the
laws of the applicable jurisdiction.
(b) Applications, amendments thereto, and related statements of fact
required by the Commission may be signed by the applicant's attorney in
case of the applicant's physical disability or absence from the United
States, or by applicant's designated vessel master when a temporary
permit is requested for a vessel. The attorney shall, when applicable,
separately set forth the reason why the application is not signed by the
applicant. In addition, if any matter is stated on the basis of the
attorney's or master's belief only (rather than knowledge), the attorney
or master shall separately set forth the reasons for believing that such
statements are true.
(c) Only the original of applications, amendments, and related
statements of fact need be signed.
(d) Applications, amendments, and related statements of fact need
not be signed under oath. Willful false statements made therein,
however, are punishable by fine and imprisonment, U.S. Code, Title 18,
section 1001, and by appropriate administrative sanctions, including
revocation of station license pursuant to section 312(a)(1) of the
Communications Act of 1934, as amended.
(e) ``Signed,'' as used in this section, means an original hand-
written signature, except that by public notice in the Federal Register
the Private Radio Bureau may allow signature by any symbol executed or
adopted by the applicant with the intent that such symbol be a
signature, including symbols formed by computer-generated electronic
impulses.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308)
[28 FR 12450, Nov. 22, 1963, as amended at 43 FR 27991, June 28, 1978;
49 FR 30944, Aug. 2, 1984; 58 FR 21406, Apr. 21, 1993]
Sec. 1.914 Full disclosures.
Each application shall contain full and complete disclosures with
regard to the real party or parties in interest and as to all matters
and things required to be disclosed by the application forms.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308)
Sec. 1.916 Repetitious applications.
Where the Commission has, for any reason, denied an application for
a new station or for any modification of services or facilities,
dismissed such application with prejudice, or revoked the license for a
radio station in the Private Radio Services, the Commission will not
consider a like or new application involving service of the same kind to
substantially the same area by substantially the same applicant, its
successor or assignee, or on behalf of or for the benefit of the
original parties in interest, until after the lapse of 12 months from
the effective date of the Commission's order. The Commission may, for
good cause shown, waive the requirements of this section.
[28 FR 12454, Nov. 22, 1963, as amended at 44 FR 39181, July 5, 1979]
[[Page 192]]
Sec. 1.918 Amendment of applications.
(a) Any amendment to an application shall be signed and submitted in
the same manner and with the same number of copies as was the original
application.
(b) Any application may be amended as a matter of right prior to the
grant of that application. However, an application which is
substantially amended, as defined by Sec. 1.962(c), will be considered a
newly filed application as of the date of the filing of the amendment.
(c) An application to amend an application after it has been
designated for hearing will be considered only upon written petition
addressed to the hearing examiner and served upon the parties of record,
and will be granted only for good cause shown. A petition which requests
a substantial change or to change the applicant's position, or the
issues, in a hearing, must be accompanied by a signed statement of a
person with knowledge of the facts as to whether or not consideration
has been promised to or received by the petitioner, directly or
indirectly, in connection with the filing of such petition for
amendment. If consideration has been promised, or received, the
statement shall set forth in full detail all the relevant facts with
sufficient itemization of the consideration to enable the examiner to
determine to what extent, if any, that the consideration represents only
the reasonable costs of prosecuting the petitioner's application.
(d) A request to amend an application after it has been designated
for random selection pursuant to Sec. 1.972 will be considered only upon
written petition addressed to the Chief, Private Radio Bureau and will
be granted only for good cause shown. A petition which requests a
substantial change in the application or which affects the lottery
probabilities of other applicants must be accompanied by a signed
statement of a person with knowledge of the relevant facts and must
specify with particularity why such change is necessary and whether or
not consideration has been promised to or received by the petitioner,
directly or indirectly, in connection with the filing of such petition
for amendment. If consideration has been promised or received, the
statement shall set forth all the relevant facts with sufficient detail
to enable the Chief, Private Radio Bureau to determine whether and to
what extent, if any, the consideration represents only the reasonable
costs of prosecuting the petitioner's application.
(e) The Commission (or the presiding officer, if the application has
been designated for hearing) may, upon its own motion or upon motion of
any party to a proceeding, order the applicant to amend the application
so as to make the same more definite and certain, and may require an
applicant to submit such documents and written statements of fact as in
its judgment may be necessary.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308)
[28 FR 12454, Nov. 22, 1963, as amended at 37 FR 13984, July 15, 1972;
48 FR 27201, June 13, 1983; 49 FR 30944, Aug. 2, 1984]
Application Forms and Particular Filing Requirements
Sec. 1.921 Procedure for obtaining a radio station authorization and
for commencement of operation.
(a) Persons desiring to install and operate radio transmitting
equipment should first submit an application for a radio station
authorization in accordance with the rules for the particular service. A
list of all application forms used by Private Radio Services Bureau is
contained in Sec. 1.922. Each form contains appropriate instructions
concerning the number of required copies, where it may be filed, and the
services in which it is intended to be used.
(b) Each application shall include all information called for by the
particular form on which the application is required to be filed unless
the information called for is inapplicable, in which case that fact
shall be indicated.
(c) In some cases equipment and service tests are required before an
authorized station may be placed in regular operation. Reference should
be made to the specific service regarding these provisions.
(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C. 308)
[28 FR 12454, Nov. 22, 1963, as amended at 44 FR 39181, July 5, 1979]
[[Page 193]]
Sec. 1.922 Forms to be used.
------------------------------------------------------------------------
FCC form Title
------------------------------------------------------------------------
175 Application To Participate in an FCC
Auction.
175-S Supplemental Application To Participate
in an FCC Auction.
402 Application for Microwave Station
Authorization in the Safety and
Special Radio Services.
402-10 Instructions for Completion of FCC Form
402.
402-A Annual Report of Licensees of Microwave
and Other Fixed Stations When Such
Facilities Are Used Cooperatively With
Other Persons.
402-R Renewal Notice and Certification in the
Private Operational-Fixed Microwave
Radio Services.
404 Application for Aircraft Radio Station
License.
404-A Temporary Aircraft Radio Station
Operating Authority.
405-A Application for Renewal of Station
License.
405-B License Expiration Notice and/or
Renewal Application.
406 Application for Ground Station
Authorization in the Aviation
Services.
410 Registration of Canadian Radio Station
Licensee and Application for Permit to
Operate.
410-B Application for Permit To Operate a
Canadian General Radio Station in the
United States.
452-R Application for Renewal of Coast and
Ground Services.
480 Application for Civil Air Patrol Radio
Station Authorization.
490 Application for Assignment or Transfer
of Control.
503 Application for Land Radio Station
License in the Maritime Services.
506 Application for Ship Radio Station
License.
506-A Temporary Operating Authority, Ship
Radio Station License and Restricted
Radiotelephone Operator Permit.
525 Application for Disaster Communications
Radio Station Construction Permit and
License.
572 Temporary Permit To Operate a Business
Radio Station.
572C Conditional Temporary Authorization To
Operate a part 90 Radio Station.
574 Application for Radio Station
Authorization in the General Mobile
Radio Services.
574-R Application for Renewal of Radio
Station License.
574-T Temporary Permit To Operate a General
Mobile Radio Service System.
577 Temporary Permit To Operate a Part 90
Radio Station.
600 Application for Mobile Radio Service
Authorization.
610 Application for Amateur Radio Station
and/or Operator License.
610-A Application for Alien Amateur Radio
Licensee for Permit To Operate in the
United States.
610-B Application for Amateur Club, Military
Recreation, or Radio Amateur Civil
Emergency Service Station License.
660-B Interim Amateur Permit.
602 Application for Consent to Assignment
of Radio Station Construction Permit
or License (For Stations in Services
Other Than Broadcast).
703 Application for Consent To Transfer of
Control of Corporation Holding
Construction Permit or Station License
(For Station in Services Other Than
Broadcast).
714 Supplement to Application for New or
Modified Radio Station Authorization
(Concerning Antenna Structure
Notification to FAA).
820 Application for Exemption from Ship
Radio Station Requirements.
845 Amateur Code Credit Certificate.
1046 Assignment of Authorization.
------------------------------------------------------------------------
(Secs. 4, 5, 303, 308, 48 Stat. 1066, 1068, 1082, 1084, as amended; 47
U.S.C. 154, 155, 303, 308; secs. 4, 303, 307, 48 Stat., as amended,
1066, 1082, 1083; 47 U.S.C. 154, 303, 307)
[59 FR 59949, Nov. 21, 1994]
Sec. 1.923 Waiver of construction permit requirement.
(a) A construction permit is not required for any station in the
Private Radio Services. However, certain private radio facilities must
be constructed within the time periods specified in part 90. See,
however, Sec. 1.1311(c).
(b) Licensees must apply for modification of station license for any
antenna change which would be inconsistent with the terms of the station
authorization or for which notification is required to be given to the
Federal Aviation Administration by that agency. Part 17 of this chapter
described the notification criteria.
[34 FR 9283, June 12, 1969, as amended at 48 FR 9271, Mar. 4, 1983]
Sec. 1.924 Assignment or transfer of control, voluntary and
involuntary.
(a)(1) Radio station licenses are not transferable; however, except
for those set forth in paragraph (a)(2) of this section, they may be
assigned. Licenses may be assigned whenever there is a change of
ownership of an authorized radio station, for example, if the radio
communication equipment is sold with a business. The new owner must
apply for assignment of the existing authorization in accordance with
the rules under which the station is authorized.
(2) Licenses for stations in the Amateur, Aviation (aircraft),
Personal, and Maritime (ship) Radio Services cannot be assigned.
Whenever there is a change of ownership of one of these latter stations,
the new owner must apply for a new license. Upon receipt of the new
license, the former license must be surrendered for cancellation.
(b)(1) Application for consent to voluntary assignment of a license,
or for consent to voluntary transfer of control of a corporation holding
a license, must be filed with the Commission at least 60 days prior to
the contemplated effective date of assignment or transfer of control.
(2) The following application forms should be used:
[[Page 194]]
(i) FCC Form 600. For assignment of station authorization in
services under part 90 of this chapter, except as provided in
subparagraph (ii). Attached thereto shall be an executed Form 1046 or a
signed letter from proposed assignor stating the desire to assign the
current authorization in accordance with the rules governing the
particular radio service involved. Applications for consent to assign
authorizations of stations operating in the 806-821 and 851-866 MHz
bands shall be accompanied by FCC Form 574-A. Applications for
assignment of authorizations for stations operating on frequencies below
27.5 MHz shall be accompanied by FCC Form 574-B.
(ii) FCC Form 402. For assignment of station authorizations in the
Private Operational Fixed Microwave Service (part 101 of this chapter).
Attached thereto shall be an executed Form 1046 or a signed letter from
proposed assignor stating the assignor's desire to assign the current
authorization in accordance with the rules governing the particular
service involved.
(iii) FCC Form 406. For assignment of ground station authorizations
in the Aviation Services, except as provided in paragraph (b)(2)(ii) of
this section.
(iv) FCC Form 503. For assignment of coast station authorizations in
the Maritme Services and Alaska-Public Fixed Stations.
(v) [Reserved]
(vi) FCC Form 703. For consent to transfer control of a corporation
holding any type of part 90 license except a license to provide
commercial mobile radio service.
(vii) FCC Form 490. For consent to transfer control of a corporation
holding a part 90 license to provide commercial mobile radio service.
(c)(1) In the event of the death or legal disability of a permittee
or licensee, a member of a partnership, or a person directly or
indirectly in control of a corporation which is a permittee or licensee,
the Commission shall be notified in writing promptly of the occurrence
of such death or legal disability.
(2) Within 30 days after the occurrence of such death or legal
disability (except in the case of a ship or amateur station),
application shall be filed for consent to involuntary assignment of such
permit or license, or for involuntary transfer of control of such
corporation, to a person or entity legally qualified to succeed to the
foregoing interests under the laws of the place having jurisdiction over
the estate involved. The procedure and forms to be followed are the same
as those specified in paragraph (b) of this section.
(3) In the case of stations in the Amateur, Aviation (aircraft),
Personal, and Maritime (ship) Radio Services, involuntary assignment of
licenses will not be made; such licenses shall be surrendered for
cancellation upon the death or legal disability of the licensee.
(d) An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for the
transfer or assignment of its license. This information should include
not only a monetary purchase price, but also any future, contingent, in-
kind, or other consideration (e.g., management or consulting contracts
either with or without an option to purchase; below-market financing).
(Sec. 310, 48 Stat. 1086, as amended; 47 U.S.C. 310)
[28 FR 12454, Nov. 22, 1963, as amended at 31 FR 2600, Feb. 10, 1966; 36
FR 19439, Oct. 6, 1971; 36 FR 21679, Nov. 12, 1971; 42 FR 8327, Feb. 9,
1977; 44 FR 31651, June 1, 1979; 45 FR 55201, Aug. 19, 1980; 47 FR
57051, Dec. 22, 1982; 48 FR 8455, Mar. 1, 1983; 49 FR 30944, Aug. 2,
1984; 51 FR 2703, Jan. 21, 1986; 59 FR 9101, Feb. 25, 1994; 59 FR 59949,
Nov. 21, 1994; 61 FR 26671, May 28, 1996]
Sec. 1.925 Application for special temporary authorization, temporary
permit or temporary operating authority.
(a) A licensee of or an applicant for a station in the Private Radio
Services may file either a formal or informal application for a special
temporary authority not to exceed 180 days for (1)
[[Page 195]]
operation of a new station or (2) operation of a licensed station in a
manner which is beyond the scope of that authorized by the existing
license. (See Sec. 1.962 (b)(5) and (f). The nature of the extraordinary
circumstance which, in the opinion of the applicant justifies issuance
of a special temporary authorization, must be fully described in the
request. Information presently on file with the Commission may be
included by reference, except the applications for special temporary
authority under part 90 must be clear and complete within themselves and
shall not rely on any pending applications. Applications for special
temporary authority must be filed at least 10 days prior to the proposed
operation. Applications filed less than 10 days prior to the proposed
operation date will be accepted only upon a showing of good cause. In
situations involving the safety of life or property or where equipment
has been damaged, a request for special temporary authority may be made
by telephone or telegraph provided a properly signed application is
filed within 10 days of such request.
(b) [Reserved]
(c) An applicant for an Aircraft Radio Station License may operate
the radio station pending issuance of an Aircraft Radio Station License
by the Commission for a period of 90 days under a temporary operating
authority, evidenced by a properly executed certification made on FCC
Form 404-A.
(d) [Reserved]
(e) Unless the FCC otherwise prescribes, an applicant already
licensed in the Amateur Radio Service, upon successfully completing the
amateur radio operator examination(s) required for a higher class, may
operate his/her amateur radio station consistent with the rights and
privileges of that higher class for a period of one year from the date
of the most recently completed examination(s) for that operator class in
accord with the provisions of Sec. 97.35.
(f) An applicant for a Ship Radio station license may operate the
radio station pending issuance of the ship station authorization by the
Commission for a period of 90 days, under a temporary operating
authority, evidenced by a properly executed certification made on FCC
Form 506-A.
(g) An applicant for a Business Radio Station license (other than an
applicant who seeks to provide commercial mobile radio service as
defined in part 20 of this chapter) utilizing an already authorized
facility may operate the station for a period of 180 days, under a
temporary permit, evidenced by a properly executed certification made on
FCC Form 572, after the mailing of a formal application for station
license together with evidence of frequency coordination, if required,
to the Commission. The temporary operation of stations, other than
mobile stations, within the Canadian coordination zone will be limited
to stations with a maximum of 5 watts effective radiated power and a
maximum antenna height of 20 feet (6.1 meters) above average terrain.
(h) An applicant for a radio station license under part 90, subpart
S, of this chapter (other than an applicant who seeks to provide
commercial mobile radio service as defined in part 20 of this chapter)
to utilize an already existing Specialized Mobile Radio System (SMRS)
facility or to utilize an already licensed transmitter may operate the
radio station for a period of up to 180 days, under a temporary permit,
evidenced by a properly executed certification of FCC Form 572 after the
mailing of a formal application for station license, provided that the
antenna employed by the control station is a maximum of 20 feet (6.1
meters) above a man-made structure (other than an antenna tower) to
which it is affixed.
(i) An applicant for an itinerant station license, an applicant for
a new private land mobile radio station license in the frequency bands
below 470 MHz and in the one-way paging 929-930 MHz band or an applicant
seeking to modify or acquire through assignment or transfer an existing
station below 470 MHz or in the one-way paging 929-930 MHz band may
operate the proposed station during the pendency of its application for
a period of up to 180 days under a conditional permit. Conditional
operations may commence upon the filing of a properly completed formal
application that complies with Sec. 90.127 if the application, when
frequency coordination is required, is accompanied by evidence of
frequency coordination in accordance with Secs. 90.175
[[Page 196]]
and 90.176. Operation under such a permit is evidenced by retaining with
the station records the original conditional licensing 572C
Certification Form containing the certifications that satisfy the
provisions of Sec. 90.159(b).
(j) An applicant for a General Mobile Radio Service system license,
sharing a multiple-licensed base station used as a mobile relay station,
may operate the system for a period of 180 days, under a temporary
permit, evidenced by a properly executed certification made on FCC Form
574-T, after mailing FCC Form 574 to the Commission.
(Secs. 4(i), 303, Communications Act of 1934, as amended (47 U.S.C.
154(i) and 303); 47 CFR 1.429)
[28 FR 12454, Nov. 22, 1963, as amended at 47 FR 56637, Dec. 20, 1982;
48 FR 4785, Feb. 3, 1983; 48 FR 24890, June 3, 1983; 48 FR 39072, Aug.
29, 1983; 48 FR 41770, Sept. 19, 1983; 48 FR 45658, Oct. 6, 1983; 49 FR
30312, July 30, 1984; 49 FR 37384, Sept. 24, 1984; 50 FR 37190, Sept.
12, 1985; 51 FR 31304, Sept. 2, 1986; 54 FR 50238, Dec. 5, 1989; 54 FR
51550, Dec. 15, 1989; 59 FR 59949, Nov. 21, 1994]
Sec. 1.926 Application for renewal of license.
(a) Application for renewal of a station license shall be submitted
on the appropriate FCC Form indicated below:
(1) Renewal of station or system authorizations in the Private Land
Mobile Radio Services (part 90 of this chapter), the General Mobile
Radio Service (part 95, subpart A of this chapter), and the Interactive
Video and Date Service (part 95, subpart F of this chapter) shall be
submitted on FCC Form 574-R when the licensee has received that Form in
the mail from the Commission. If the licensee has not received the
Commission-generated Form 574-R within sixty (60) days of expiration,
application for renewal of station or system license shall be submitted
on FCC Form 405-A.
(2) Renewal of marine coast station authorizations (Sec. 80.19 of
this chapter) and aviation ground station authorizations (Sec. 87.33 of
this chapter) must be submitted on FCC Form 452-R.
(3) Renewal of aircraft radio station authorizations and ship radio
station authorizations shall be submitted on FCC Form 405-B.
(4) Renewal of an amateur operator license or a combined amateur
operator/station license shall be submitted on FCC Form 610.
(5) Renewal of an amateur club, military recreation, or Radio
Amateur Civil Emergency Service (RACES) station license shall be
submitted on FCC Form 610-B.
(6) Renewal of station authorizations in the Private Operational
Fixed Microwave Service (part 101 of this chapter) shall be submitted on
such form as the Commission may designate by the public notice in
accordance with the provisions of Sec. 101.13 of this chapter.
(b) All applications for renewal of license must be made during the
license term and should be filed within 90 days but not later than 30
days prior to the end of the license term. In any case in which the
licensee has, in accordance with the provisions of this chapter, made
timely and sufficient application for renewal of license, no license
with reference to any activity of a continuing nature shall expire until
such application shall have been finally determined.
(c) Reinstatement of an expired license in the Private Land Mobile
Radio Services may be requested up to thirty (30) days after the
expiration date using FCC Form 574, 574-R or 405-A. See Sec. 1.4.
(Secs. 4, 5, 303, 307, 308, 48 Stat., as amended, 1066, 1068, 1082,
1083, 1084; 47 U.S.C. 154, 155, 303, 307, 308)
[28 FR 12454, Nov. 22, 1963, as amended at 29 FR 3229, Mar. 11, 1964; 48
FR 36105, Aug. 9, 1983; 56 FR 64715, Dec. 12, 1991; 56 FR 65858, Dec.
19, 1991; 57 FR 8274, Mar. 9, 1992; 61 FR 26671, May 28, 1996]
Sec. 1.931 Requests for waiver of private radio rules.
(a) All requests for waiver of the rules governing the Private Radio
Services that require a fee (see Sec. 1.1102) shall be submitted to the
Mellon Bank, Pittsburgh, Pennsylvania at the address set forth in
Sec. 1.1102. Waiver requests that do not require a fee must be addressed
to: Federal Communications Commission, 1270 Fairfield Road, Gettysburg,
Pennsylvania 17325-7245. Waiver requests attached to applications must
be submitted in accordance with Sec. 0.401(b) of the rules.
[[Page 197]]
(b) Applicants requiring expeditious processing of their request for
waiver shall clearly caption both their request for waiver and the
envelope containing it with the words ``WAIVER--TIMELY ACTION
REQUESTED.''
(Sec. 4(i), Communications Act of 1934, as amended, 47 U.S.C. 154(i); 47
CFR 0.231)
[49 FR 20291, May 14, 1984, as amended at 52 FR 10229, Mar. 31, 1987; 55
FR 19154, May 8, 1990; 56 FR 64715, Dec. 12, 1991]
Sec. 1.933 Installation or removal of apparatus.
(a) In the Public Safety, Industrial, and Land Transportation Radio
Services, replacement of transmitting equipment may be made without
prior authorization: Provided, The replacement transmitter appears in
the Commission's ``Radio Equipment List, Part C'' as designated for use
in the Public Safety, Industrial, and Land Transportation Radio
Services, and the substitute equipment employs the same type of emission
and does not exceed the power limitation as set forth in the station
authorization.
(b) In the Personal Radio Services, replacement of transmitting
equipment may be made without prior authorization if: (1) The
replacement transmitter appears in the Commission's ``Radio Equipment
List,'' as designated for use in the Personal Radio Service, or (2) the
replacement transmitter is for an R/C station, operates on frequencies
assigned for R/C station use and complies with the technical standards
of part 95, subpart E.
[28 FR 12454, Nov. 22, 1963, as amended at 48 FR 24890, June 3, 1983]
Sec. 1.934 Procedure with respect to amateur radio operator license.
Each candidate for an amateur radio license which requires the
applicant to pass one or more examination elements must present the
examiner(s) with a properly completed FCC Form 610 prior to the
examination. Upon completion of the examination, the examiner(s) will
immediately grade the test papers. If the applicant is successful, the
examiner(s) will forward the candidate's application to: (a) The
Commission's Gettysburg, Pennsylvania facility for an application for a
Novice Class operator license, or (b) a Volunteer-Examiner Coordinator
(VEC) for all other classes of operator licenses. The examiners will
then issue a certificate for successful completion of an amateur radio
operator examination. A VEC will forward the application to the
Commission's Gettysburg, Pennsylvania facility.
[48 FR 45658, Oct. 6, 1983]
Application Processing Procedures
Sec. 1.951 How applications are distributed.
Licensing Division. All applications for radio stations are
distributed as follows:
(a) Special Services Branch.
(1) All Aviation Radio Services and Maritime Radio Services
applications.
(2) Personal Radio Services applications:
Amateur, General Mobile, and Interactive Video and Data
(b) Land Mobile Branch. (1) Industrial Radio Services applications:
Business, Forest Products, Industrial Radiolocation, Manufacturers,
Motion Picture, Petroleum, Power, Relay Press, Special Industrial and
Telephone Maintenance
(2) Land Transportation Radio Services applications:
Motor Carrier, Railroad, Taxicab, and Automobile Emergency
(3) Public Safety Radio Services applications:
Fire, Forestry-Conservation, Highway Maintenance, Local Government, and
Police
(4) Special Emergency Radio Services applications:
Medical services, rescue organizations, physically handicapped,
veterinarians, disaster relief organizations, school buses, beach
patrols, establishments in isolated areas, communications standby
facilities
(c) Microwave Branch. Operational fixed point-to-point and point-to-
multipoint applications.
[49 FR 30944, Aug. 2, 1984, as amended at 57 FR 8274, Mar. 9, 1992]
Sec. 1.952 How file numbers are assigned.
(a) File numbers are assigned to certain categories of applications
by the Private Radio Bureau.
(b) File number symbols and service or class of station designators:
[[Page 198]]
Amateur and Disaster Services
Y--Amateur
D--Disaster
R--Races
Aviation Services
A--Aeronautical and fixed group
AA--Aviation auxiliary group
AR--Aviation radionavigation land
AC--Civil Air Patrol
Personal Radio Service
CA--General Mobile Radio Service
ZA--General Mobile Radio Service
ZV--Interactive Video and Data Service
Marine Services
MK--Alaskan group
M--Coastal group
MA--Marine auxiliary group
MR--Marine radiodetermination land
Microwave Services
OF--Private Operational-Fixed Microwave
Radiolocation Service
RS--Radiolocation
Land Mobile Services below 800 MHz
IG--Conventional Industrial/Business Pool
PW--Conventional Public Safety Pool
YG--Trunked Industrial/Business Pool
YW--Trunked Public Safety Pool
800 MHz Services
GB--Conventional Business
GO--Conventional Industrial/Land Transportation
GP--Conventional Public Safety/Special Emergency
GX--Conventional Commercial (SMRS)
YB--Trunked Business
YO--Trunked Industrial/Land Transportation
YP--Trunked Public Safety/Special Emergency
YX--Trunked Commercial (SMRS)
900 MHz Paging Services
GS--Private carrier paging systems
(c) Application or authorization designator symbols:
P--Construction Permit.
MP--Modified CP.
MP/L--Modified CP and License.
MP/ML--Modified CP and Modified License.
AP--Assignment of Permit.
L--License.
ML--Modified License.
AL--Assignment of License.
P/L--Combination CP and License.
R--Renewed License.
TC--Transfer of Control.
[28 FR 12454, Nov. 22, 1963, as amended at 49 FR 30945, Aug. 2, 1984; 57
FR 8274, Mar. 9, 1992; 62 FR 18843, Apr. 17, 1997]
Effective Date Note: At 62 FR 18843, Apr. 17, 1997, paragraph (b)
was revised, effective Oct. 17, 1997. For the convenience of the user,
the superseded text is set forth as follows:
Sec. 1.952 How file numbers are assigned.
* * * * *
(b) File number symbols and service or class of station designators:
Amateur and Disaster Services
Y--Amateur
D--Disaster
R--Races
Aviation Services
A--Aeronautical and fixed group
AA--Aviation auxiliary group
AR--Aviation radionavigation land
AC--Civil Air Patrol
Personal Radio Services
CA--General Mobile Radio Service
ZA-General Mobile Radio Service
ZV-Interactive Video and Data Service
Industrial Services
IB--Business
IF--Forest products
IX--Manufacturers
IM--Motion picture
IP--Petroleum
IY--Relay press
IS--Special industrial
IT--Telephone maintenance
IW--Power
Land Transportation Services
LA--Automobile emergency
LI--Interurban passenger
LJ--Interurban property
LR--Railroad
LX--Taxicab
LU--Urban passenger
LV--Urban property
Marine Services
MK--Alaskan group
M--Coastal group
MA--Marine auxiliary group
MR--Marine radiodetermination land
Microwave Services
OF--Private Operational-Fixed Microwave
Public Safety Services
PF--Fire
PO--Forestry conservation
[[Page 199]]
PH--Highway maintenance
PL--Local government
PP--Police
PS--Special emergency
Radiolocation Service
RS--Radiolocation
800 MHz Services
GB--Conventional Business
GO--Conventional Industrial/Land Transportation
GP--Conventional Public Safety/Special Emergency
GX--Conventional Commercial (SMRS)
YB--Trunked Business
YO--Trunked Industrial/Land Transportation
YP--Trunked Public Safety/Special Emergency
YX--Trunked Commercial (SMRS)
900 MHz Paging Services
GS--Private carrier paging systems
* * * * *
Sec. 1.953 How applications are processed.
(a) Applications are processed in sequence according to date of
filing, or pursuant to the system of random selection prescribed in
Sec. 1.972 of this part. Applications which are in accordance with the
provisions of this chapter and established policies of the Commission
may be processed to completion in accordance with the applicable
delegations of authority as set forth in part O of this chapter.
(b) [Reserved]
[48 FR 27201, June 13, 1983 and 51 FR 2703, Jan. 21, 1986]
Sec. 1.955 Frequency coordination, Canada.
(a) As a result of mutual agreements, the Commission has, since May
1950 had an arrangement with the Canadian Department of Communications
for the exchange of frequency assignment information and engineering
comments on proposed assignments along the Canada-United States borders
in certain bands above 30 MHz. Except as provided in paragraph (b) of
this section, this arrangement involves assignments in the following
frequency bands.
MHz
30.56-32.00
33.00-34.00
35.00-36.00
37.00-38.00
39.00-40.00
42.00-46.00
47.00-49.60
72.00-73.00
75.40-76.00
150.80-174.00
450-470
806.00-960.00
1850.0-2200.0
2450.0-2690.0
3700.0-4200.0
5925.0-7125.0
GHz
10.55-10.68
10.70-13.25
(b) The following frequencies are not involved in this arrangement
because of the nature of the services:
MHz
156.3
156.35
156.4
156.45
156.5
156.55
156.6
156.65
156.7
156.8
156.9
156.95
157.0 and 161.6
157.05
157.1
157.15
157.20
157.25
157.30
157.35
157.40.
(c) Assignments proposed in accordance with the railroad industry
radio frequency allotment plan along the United States-Canada borders
utilized by the Federal Communications Commission and the Department of
Transport, respectively, may be excepted from this arrangement at the
discretion of the referring agency.
(d) Assignments proposed in any radio service in frequency bands
below 470 MHz appropriate to this arrangement, other than those for
stations in the Domestic Public (land mobile or fixed) category, may be
excepted from this arrangement at the discretion of the referring agency
if a base station assignment has been made previously under the terms of
this arrangement or prior to its adoption in the same radio service and
on the same frequency and in the local area, and provided the basic
characteristics of the additional station are sufficiently similar
technically to the original assignment to preclude harmful interference
to existing stations across the border.
(e) For bands below 470 MHz, the areas which are involved lie
between Lines A and B and between Lines C and D, which are described as
follows:
[[Page 200]]
Line A-- Begins at Aberdeen, Wash., running by great circle arc to
the intersection of 48 deg. N., 120 deg. W., thence along parallel
48 deg. N., to the intersection of 95 deg. W., thence by great circle
arc through the southernmost point of Duluth, Minn., thence by great
circle arc to 45 deg. N., 85 deg. W., thence southward along meridian
85 deg. W., to its intersection with parallel 41 deg. N., thence along
parallel 41 deg. N., to its intersection with meridian 82 deg. W.,
thence by great circle arc through the southernmost point of Bangor,
Maine, thence by great circle arc through the southern-most point of
Searsport, Maine, at which point it terminates; and
Line B-- Begins at Tofino, B.C., running by great circle arc to the
intersection of 50 deg. N., 125 deg. W., thence along parallel 50 deg.
N., to the intersection of 90 deg. W., thence by great circle arc to the
intersection of 45 deg. N., 79 deg.30' W., thence by great circle arc
through the northernmost point of Drummondville, Quebec (lat: 45 deg.52'
N., long: 72 deg.30' W.), thence by great circle arc to 48 deg.30' N.,
70 deg. W., thence by great circle arc through the northernmost point of
Campbellton, N.B., thence by great circle arc through the northernmost
point of Liverpool, N.S., at which point it terminates.
Line C-- Begins at the intersection of 70 deg. N., 144 deg. W.,
thence by great circle arc to the intersection of 60 deg. N., 143 deg.
W., thence by great circle arc so as to include all of the Alaskan
Panhandle; and
Line D-- Begins at the intersection of 70 deg. N., 138 deg. W.,
thence by great circle arc to the intersection of 61 deg.20' N.,
139 deg. W., (Burwash Landing), thence by great circle arc to the
intersection of 60 deg.45' N., 135 deg. W., thence by great circle arc
to the intersection of 56 deg. N., 128 deg. W., thence south along
128 deg. meridian to Lat. 55 deg. N., thence by great circle arc to the
intersection of 54 deg. N., 130 deg. W., thence by great circle arc to
Port Clements, thence to the Pacific Ocean where it ends.
(f) For all stations using bands between 470 MHz and 1000 MHz; and
for any station of a terrestrial service using a band above 1000 MHz,
the areas which are involved are as follows:
(1) For a station the antenna of which looks within the 200 deg.
sector toward the Canada-United States borders, that area in each
country within 35 miles of the borders;
(2) For a station the antenna of which looks within the 160 deg.
sector away from the Canada-United States borders, that area in each
country within 5 miles of the borders; and
(3) The area in either country within coordination distance as
described in Recommendation 1A of the Final Acts of the EARC, Geneva,
1963 of a receiving earth station in the other country which uses the
same band.
(g) Proposed assignments in the space radiocommunication services
and proposed assignments to stations in frequency bands allocated
coequally to space and terrestrial services above 1 GHz are not treated
by these arrangements. Such proposed assignments are subject to the
regulatory provisions of the International Radio Regulations.
(h) Assignments proposed in the frequency band 806-890 MHz shall be
in accordance with the Canada-United States agreement, dated April 7,
1982.
[35 FR 6752, Apr. 29, 1970, as amended at 36 FR 19440, Oct. 6, 1971; 47
FR 57051, Dec. 22, 1982; 48 FR 8455, Mar. 1, 1983]
Sec. 1.958 Defective applications.
(a) Applications will be considered defective if:
(1) The applicant is disqualified by statute.
(2) The proposed use or purpose of the station applied for would be
unlawful.
(3) The frequency applied for is not allocated to the service
proposed.
(4) The application form is not signed in accordance with Sec. 1.913
of these rules.
(5) The application is not complete with respect to answers,
supplementary statements, execution or other matters of a formal
character.
(6) The application is not in accordance with the Commission's rules
or requirements and is not accompanied either by (i) a petition to amend
any rule or regulation with which the application is in conflict, or
(ii) a request by the applicant for waiver of any rule or requirement
with which the application is in conflict. A request for rule amendment
or waiver must show the nature of the amendment or waiver requested and
set forth the reasons in support of it. Requests for waiver must state
the nature of the waiver or exception desired and set forth reasons in
support thereof including a showing that unique circumstances are
involved and that there is no reasonable alternative solution within
existing rules.
(7) The applicant is requested by the Commission to file any
additional documents or information not included in the prescribed form
and the applicant
[[Page 201]]
fails to comply with the Commission's request.
(b) An application which is defective on its face will not be
accepted for filing and will be dismissed.
(c) An application which is accepted for filing, but which is later
determined to be defective, will be dismissed.
[49 FR 30945, Aug. 2, 1984, as amended at 54 FR 38995, Sept. 22, 1989]
Sec. 1.959 Resubmitted applications.
Any application for frequencies below 470 MHz which has been
returned to the applicant for correction will be processed in its
original position in the processing line if it is resubmitted and
received by the Commission's offices in Gettysburg, PA within 60 days
from the date on which it was returned to the applicant. Otherwise it
will be treated as a new application and require an additional fee as
set forth in part 1, subpart G of this chapter. An application for
frequencies above 470 MHz which has been returned to the applicant will
be processed in its original position in the processing line if it is
resubmitted and received by the Commission's offices in Gettysburg, PA
within 30 days (45 days outside the continental United States) from the
date on which it was returned to the applicant. Otherwise it will be
treated as a new application and require an additional fee as set forth
in part 1, subpart G of this chapter.
[52 FR 10230, Mar. 31, 1987]
Sec. 1.961 Dismissal of applications.
(a) Any application may, upon written request signed by the
applicant or his attorney, be dismissed without prejudice as a matter of
right prior to the designation of such application for hearing.
(b) Failure to prosecute an application, or failure to respond to
official correspondence or request for additional information, will be
cause for dismissal. Such dismissal will be without prejudice where an
application has not yet been designated for hearing; such dismissal may
be with prejudice after an application has been designated for hearing.
(c) Requests to dismiss an application without prejudice after it
has been designated for hearing will be considered only upon written
petition properly served upon all parties of record and will be granted
only for good cause shown. Such petition must be accompanied by a
written and signed statement of a person with knowledge of the facts as
to whether or not consideration has been promised to or received by
petitioner, directly or indirectly, in connection with the filing of
such petition for dismissal of the application.
Sec. 1.962 Public notice of acceptance for filing; petitions to deny
applications of specified categories.
(a) Except as qualified in paragraph (b) of this section, the
provisions of this section shall apply to all applications for
authorizations, and substantial amendments thereof, for the following
categories of stations and services:
(1) Industrial radiopositioning stations for which frequencies are
assigned on an exclusive basis.
(2) Aeronautical enroute stations.
(3) Aeronautical advisory stations.
(4) Airport control tower stations.
(5) Aeronautical fixed stations.
(6) Public coast stations, excluding those located in Alaska which
will not render service for hire.
(b) The provisions of this section are not applicable to
applications for the type of authorizations listed in this paragraph.
(1) A minor change in the facilities of an authorized station or a
minor amendment of an application on file.
(2) Consent to an involuntary assignment or transfer under section
310(b) of the Communications Act or to a voluntary assignment or
transfer thereunder which does not involve a substantial change in
ownership or control.
(3) A license under section 319(c) of the Communications Act or,
pending application for or grant of such license, any special or
temporary authorization to permit interim operation to facilitate
completion of authorized construction or to provide substantially the
same service as would be authorized by such licensee.
[[Page 202]]
(4) Extension of time to complete construction of authorized
facilities.
(5) A special temporary authorization not to exceed 30 days where
the applicant does not contemplate the filing of an application for
regular operation, or not to exceed 60 days pending or after the filing
of an application for regular operation.
(6) An authorization under any of the proviso clauses of section
308(a) of the Communications Act.
(c) For the purposes of this section, a substantial amendment of an
application on file and applications for a substantial change in the
facilities of an authorized station shall be:
(1) Any addition or change in frequency (except deletion of a
frequency);
(2) Any change in antenna azimuth;
(3) Any change in antenna beam width;
(4) Any change in antenna location greater than 5 seconds;
(5) Any change in antenna location of less than 5 seconds but also
involving a requirement for special aeronautical study;
(6) Any change in emission;
(7) Any increase in antenna height;
(8) Any increase in authorized power in excess of a 2 to 1 ratio;
(9) Any increase in emission bandwidth.
(d) All amendments of an application on file and all changes
requested in the facilities of an authorized station other than those
amendments and modifications listed in paragraph (c) of this section
shall be considered minor.
(e) The Commission will issue at regular intervals Public Notices
listing all applications subject to this section which have been
received by the Commission in a condition acceptable for filing, or have
been returned to an applicant for correction, within the 30-day public
notice period. They will relist any application which has been amended
substantially since its previous listing, or which has been resubmitted
to the Commission, after public notice of the return of the application
to an applicant, pursuant to Sec. 1.959. Such acceptance for filing
shall not preclude the subsequent dismissal of an application as
defective.
(f) No application subject to the provisions of this section, as
originally filed or substantially amended, will be granted by the
Commission prior to the 31st day following the issuance of public notice
of the acceptance for filing of such application or of any substantial
amendment thereof; Provided, however, That the Commission,
notwithstanding the requirements of this paragraph, may, if the grant of
such application is otherwise authorized by law:
(1) Grant requests for special temporary authorization for periods
not exceeding 180 days, accompanied by a statement of the reasons
therefor, if it finds that there are extraordinary circumstances
requiring temporary operations in the public interest and that delay in
institution of such operations would seriously prejudice the public
interest, and
(2) Extend such temporary authorizations for additional periods not
exceeding 180 days each, upon a finding of continued extraordinary
circumstances requiring temporary operations in the public interest.
(g) Any party in interest may file with the Commission a petition to
deny any application, whether as filed originally or as subsequently
amended by a substantial amendment as defined in paragraph (c) of this
section, subject to the provisions of this section, no later than 30
days after the date of the public notice listing the application, or
substantial amendment to the application, as having been accepted for
filing. Such petitions must be filed with the Commission's offices in
Gettysburg, Pennsylvania. Address them to: Federal Communications
Commission, 1270 Fairfield Road, Gettysburg, Pennsylvania 17325-7245. A
petitioner shall serve a copy of such petition on the applicant. A
petition shall contain specific allegations of fact sufficient to make a
prima facie showing that the petitioner is a party in interest and that
a grant of the application would be inconsistent with the public
interest, convenience and necessity. Such allegations of fact, except
for those of which official notice may be taken, shall be supported by
affidavit of a person or persons with personal knowledge thereof.
[[Page 203]]
(h) The applicant may file an opposition to any petition to deny and
the petitioner may file a reply thereto (see Sec. 1.45) in which
allegations of fact or denials thereof, except for those of which
official notice may be taken, shall be supported by affidavit of a
person or persons with personal knowledge thereof. The applicant shall
serve a copy of his opposition on the petitioner, and the petitioner
shall serve a copy of his reply on the applicant.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
[28 FR 12454, Nov. 22, 1963, as amended at 29 FR 7822, June 19, 1964; 30
FR 4479, Apr. 7, 1965; 36 FR 19440, Oct. 6, 1971; 48 FR 1973, Jan. 17,
1983; 49 FR 30945, Aug. 2, 1984; 49 FR 36376, Sept. 17, 1984; 51 FR
2703, Jan. 21, 1986; 53 FR 28940, Aug. 1, 1988; 54 FR 10327, Mar. 13,
1989; 55 FR 10462, Mar. 21, 1990; 56 FR 64715, Dec. 12, 1991; 61 FR
26671, May 28, 1996
Action on Applications
Authority: Sections 1.971 through 1.973 are issued under sec. 309,
48 Stat. 1085, as amended; 47 U.S.C. 309.
Sec. 1.971 Grants without a hearing.
(a) The Commission will grant without a hearing an application for a
station authorization if it is proper upon its face and if the
Commission finds from an examination of such application and supporting
data, any pleading filed, or other matters which it may officially
notice, that:
(1) There are no substantial and material questions of fact;
(2) The applicant is legally, technically, financially, and
otherwise qualified;
(3) A grant of the application would not involve modification,
revocation, or non-renewal of any existing license;
(4) A grant of the application would not preclude the grant of any
mutually exclusive application; and
(5) A grant of the application would serve the public interest,
convenience, and necessity.
(b) If a petition to deny an application has been filed pursuant to
Sec. 1.962 and the Commission grants such application pursuant to
paragraph (a) of this section, the Commission will deny the petition and
issue a concise statement of the reason for such denial and disposing of
all substantial issues raised by the petition.
[28 FR 12454, Nov. 22, 1963, as amended at 49 FR 30946, Aug. 2, 1984]
Sec. 1.972 Grants by random selection.
(a) The provisions of this section, including provisions
incorporated by reference, may apply to applications for initial
licenses:
(1) For stations in the following Private Radio Services:
Part 80--Stations in the Maritime Services
Part 87--Aviation Services
Part 90--Private Land Mobile Services
Part 95--Subpart F--Personal Radio Services
Part 101--Subpart H--Private Operational Fixed Point-to-Point Microwave
Service.
(2) In any other proceedings in the Private Radio Services in which
the Commission determines that there is no material difference in
competing applicants' abilities to serve the public interest.
(b) Applications in the services specified above shall be tendered,
filed, accepted or dismissed, publicly noted, and subject to Petitions
to Deny in accordance with Sec. 1.962 and the rules and policies
established for each respective service.
(c) If there are mutually exclusive applications for an initial
license for stations subject to part 80 or part 87 of this chapter, or
if there are more applications for an initial license in part 90, part
95-subpart F, or part 101- subpart H of this chapter, than can be
accommodated on available frequencies, the Commission may process the
applications pursuant to a system of random selection. Each such random
selection shall be conducted pursuant to an order issued by the Wireless
Telecommunications Bureau and under the direction of the Chief of the
Bureau.
(d) Expedited hearing proceedings may be used to apply comparative
criteria to determine which applications will be granted, denied or
subjected to random selection. The selection percentages, preferences,
and probability calculations prescribed in Sec. 1.1621 et seq. of this
part are not applicable to any system of random selection conducted in
the Private Radio Bureau. Following the random selection, the Commission
will announce the tentative selectee and determine whether the tentative
[[Page 204]]
selectee is qualified to receive the license under the rules applicable
to the respective service. Where authorized under Sec. 1.962, Petitions
to Deny which have been filed against the tentative selectee before the
random selection will be reviewed and processed prior to grant, in
accordance with Sec. 1.962 and rules applicable to each respective
service. If the Commission determines that the tentative selectee has
satisfied all requirements, it will grant the application. If it is
determined that an initial tentative selectee is not qualified to
receive the license grant, another tentative selectee chosen from among
the same applicant pool during the same random selection will be
designated until a qualified applicant is determined. If the Commission
determines that a substantial and material question of fact exists, it
will designate the question for hearing. Hearings may be conducted by
the Commission or the Chief of the Private Radio Bureau, or, in the case
of a question which requires oral testimony for its resolution, an
Administrative Law Judge.
[48 FR 27201, June 13, 1983, as amended at 48 FR 43330, Sept. 23, 1983;
49 FR 30946, Aug. 2, 1984; 50 FR 4650, Feb. 1, 1985; 51 FR 31304, Sept.
2, 1986; 57 FR 8274, Mar. 9, 1992; 59 FR 24957, May 13, 1994; 61 FR
26671, May 28, 1996]
Sec. 1.973 Designation for hearing.
(a) If the Commission is unable to make the findings prescribed in
Sec. 1.971(a) and does not utilize the system of random selection
prescribed in Sec. 1.972 of this part, it will formally designate the
application for hearing on the grounds or reasons then obtaining and
will notify the applicant and all other known parties in interest of
such action.
(b) Orders designating applications for hearing will specify with
particularity the matters in issue.
(c) Parties in interest, if any, who are not notified by the
Commission of its action in designating a particular application for
hearing may acquire the status of a party to the proceeding by filing a
petition for intervention showing the basis of their interest not more
than 30 days after publication in the Federal Register of the hearing
issues or any substantial amendment thereto.
(d) The applicant and all other parties in interest shall be
permitted to participate in any hearing subsequently held upon such
applications. Hearings may be conducted by the Commission or by the
Chief of the Private Radio Bureau, or, in the case of a question which
requires oral testimony for its resolution, an Administrative Law Judge.
The burden of proceeding with the introduction of evidence and burden of
proof shall be upon the applicant, except that with respect to any issue
presented by a Petition to Deny or a petition to enlarge the issues,
such burdens shall be as determined by the Commission or the Chief of
the Private Radio Bureau.
[48 FR 27202, June 13, 1983]
Reports to be Filed with the Commission
Sec. 1.981 Reports, annual and semiannual.
(a) Licensees of stations authorized for developmental operation
shall submit a report on the results of the developmental program. The
report shall be filed with and made a part of each application for
renewal of authorization.
(b) The report shall include comprehensive and detailed information
on the following:
(1) The final objective.
(2) Results of operation to date.
(3) Analysis of the results obtained.
(4) Copies of any published reports.
(5) Need for continuation of the program.
(6) Number of hours of operation on each frequency.
(c) Where required by the particular service rules, licensees who
have entered into agreements with other persons for the cooperative use
of radio station facilities must submit annually an audited financial
statement reflecting the nonprofit cost-sharing nature of the
arrangement to the Commission's offices in Washington, D.C., no later
than three months after the close of the licensee's fiscal year.
[[Page 205]]
Subpart G--Schedule of Statutory Charges and Procedures for Payment
Source: 52 FR 5289, Feb. 20, 1987, unless otherwise noted.
Sec. 1.1101 Authority.
Authority to impose and collect these charges is contained in title
III, section 3001 of the Omnibus Budget Reconciliation Act of 1989 (Pub.
L. 101-239), revising 47 U.S.C. 158, which directs the Commission to
prescribe charges for certain of the regulatory services it provides to
many of the communications entities within its jurisdiction. This law
revises section 8 of the Communications Act of 1934, as amended, which
contains a Schedule of Charges as well as procedures for modifying and
collecting these charges.
[55 FR 19155, May 8, 1990]
Sec. 1.1102 Schedule of charges for applications and other filings in
the wireless telecommunications services.
----------------------------------------------------------------------------------------------------------------
Fee Payment
Action FCC Form No. amount type code Address
----------------------------------------------------------------------------------------------------------------
1. Marine Coast Radio Service:
a. New, Renewal................... 503................. 105 PBMR Federal Communications
Commission, Marine Coast
Service, P.O. Box 358265,
Pittsburgh, PA 15251-5265.
b. Modification, Assignment, 503................. 90 PBMM Federal Communications
Nonprofit, (CMRS) Public Coast/ Commission, Marine Coast
New, Modification, Renewal. Service, P.O. Box 358770,
Pittsburgh, PA 15251-5770.
c. Automated Renewal.............. 452R................ 105 PBMR Federal Communications
Commission, Marine Coast
Renewal, P.O. Box 358270,
Pittsburgh, PA 15251-5270.
2. Aviation Ground Radio Service:
a. New, Renewal................... 406................. 105 PBVR Federal Communications
Commission, Aviation
Ground Service, P.O. Box
358260, Pittsburgh, PA
15251-5260.
b. Modification, Assignment, 406................. 90 PBVM Federal Communications
Nonprofit. Commission, Aviation
Ground Service, P.O. Box
358765, Pittsburgh, PA
15251-5765.
c. Automated Renewal.............. 452R................ 105 PBVR Federal Communications
Commission, Aviation
Ground Renewal, P.O. Box
358270, Pittsburgh, PA
15251-5270.
3. Ship Radio Service:
a. New, Renewal................... 506................. 75 PASR Federal Communications
Commission, Ship Radio
Service, P.O. Box 358275,
Pittsburgh, PA 15251-5275.
b. Modification, Nonprofit........ 506................. 45 PASM Federal Communications
Commission, Ship Radio
Service, P.O. Box 358775,
Pittsburgh, PA 15251-5775.
c. Exemption from Ship Station 820................. 130 PDWM Federal Communications
Requirement. Commission, Waiver
Requests, P.O. Box 358300,
Pittsburgh, PA 15251-5300.
d. Automated Renewal.............. 405B................ 75 PASR Federal Communications
Commission, Marine Ship
Renewal, P.O. Box 358290,
Pittsburgh, PA 15251-5290.
4. Aircraft Radio Service:
a. New, Renewal................... 404................. 75 PAAR Federal Communications
Commission, Aircraft Radio
Service, P.O. Box 358280,
Pittsburgh, PA 15251-5280.
b. Modification, Nonprofit........ 404................. 45 PAAM Federal Communications
Commission, Aircraft Radio
Service, P.O. Box 358780,
Pittsburgh, PA 15251-5780.
c. Automated Renewal.............. 405B................ 75 PAAR Federal Communications
Commission, Aviation
Aircraft Renewal, P.O. Box
358290, Pittsburgh, PA
15251-5290.
5. Private Operational Fixed Microwave
Radio Service:
a. New, Renewal................... 402................. 225 PEOR Federal Communications
Commission, Operational
Fixed Microwave Service,
P.O. Box 358250,
Pittsburgh, PA 15251-5250.
[[Page 206]]
b. Modification, Assignment, 402................. 190 PEOM Federal Communications
Nonprofit. Commission, Operational
Fixed Microwave Service,
P.O. Box 358760,
Pittsburgh, PA 15251-5760.
c. Automated Renewal.............. 402R................ 225 PEOR Federal Communications
Commission, Operational
Fixed Microwave Service
Renewal, P.O. Box 358255,
Pittsburgh, PA 15251-5255.
6. Land Mobile Radio Services:
a. Land Transportation Services:
(1) New, Renewal, 600................. 60 PALR Federal Communications
Reinstatement. Commission, Land
Transportation Services,
P.O. Box 358215,
Pittsburgh, PA 15251-5215.
(2) Modification, Assignment, 600................. 45 PALM Federal Communications
Nonprofit. Commission, Land
Transportation Services,
P.O. Box 358730,
Pittsburgh, PA 15251-5730.
b. Business Radio Service:
(1) (PMRS) New, Renewal, 600................. 60 PALR Federal Communications
Reinstatement. Commission, Business Radio
Service, P.O. Box 358220,
Pittsburgh, PA 15251-5520.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit, and (CMRS) New, Commission, Business Radio
Renewal, Reinstatement. Service, P.O. Box 358735,
Pittsburgh, PA 15251-5735.
c. Other Industrial Services:
(1) New, Renewal, 600................. 60 PALR Federal Communications
Reinstatement. Commission, Other
Industrial Services, P.O.
Box 358225, Pittsburgh, PA
15251-5225.
(2) Modification, Assignment, 600................. 45 PALM Federal Communications
Nonprofit. Commission, Other
Industrial Services, P.O.
Box 358740, Pittsburgh, PA
15251-5740.
d. 800 Megahertz Services:
(1) (PMRS) New, Renewal, 600................. 80 PALS Federal Communications
Reinstatement. Commission, 800 Megahertz
Services, P.O. Box 358235,
Pittsburgh, PA 15251-5235.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit and (CMRS) New, Commission, 800 Megahertz
Renewal Reinstatement. Services, P.O. Box 358750,
Pittsburgh, PA 15251-5750.
e. 900 Megahertz Service:
(1) (PMRS) New, Renewal, 600................. 80 PALS Federal Communications
Reinstatement. Commission, 900 Megahertz
Services, P.O. Box 358240,
Pittsburgh, PA 15251-5240.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit and (CMRS) New, Commission, 900 Megahertz
Renewal, Reinstatement. Services, P.O. Box 358755,
Pittsburgh, PA 15251-5755.
f. 470-512 Megahertz Service:
(1) (PMRS) New, Renewal, 600................. 80 PALS Federal Communications
Reinstatement. Commission, 470-512
Megahertz Service, P.O.
Box 358810, Pittsburgh, PA
15251-5810.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit and (CMRS) New, Commission, 470-512
Renewal, Reinstatement. Megahertz Service, P.O.
Box 358815, Pittsburgh, PA
15251-5815.
g. 220 Megahertz Service (Local):
(1) (PMRS) New, Renewal, 600................. 80 PALS Federal Communications
Reinstatement. Commission, 200 Megahertz
Service (Local), P.O. Box
358360, Pittsburgh, PA
15251-5360.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit and (CMRS) New, Commission, 220 Megahertz
Renewal, Reinstatement. Service (Local), P.O. Box
358790, Pittsburgh, PA
15251-5790.
h. 220 Megahertz Service
(Nationwide):
(1) (PMRS) New, Renewal, 600................. 115 PALT Federal Communications
Reinstatement. Commission, 220 Megahertz
Service (Nationwide), P.O.
Box 358820, Pittsburgh, PA
15251-5820.
(2) Modification, Assignment, 600, 490............ 45 PALM Federal Communications
Nonprofit and (CMRS) New, Commission, 220 Megahertz
Renewal, Reinstatement. Service (Nationwide), P.O.
Box 358825, Pittsburgh, PA
15251-5825.
[[Page 207]]
i. BUS, OI, LT, GMRS, 470-512, 574R/405A........... 45 PALM Federal Communications
800, 900, 220 (Local), 220 Commission, 574R/405A
(Nationwide)- Nonprofit Renewal; Station Renewal, P.O. Box
and PS/SE (for profit). 358245, Pittsburgh, PA
15251-5245.
j. BUS, OI, LT, GMRS, Renewal..... 574R/405A........... 60 PALR Federal Communications
Commission, 574R/405A
Station Renewal, P.O. Box
358245, Pittsburgh, PA
15251-5245.
k. IVDS Renewal (Nonprofit)....... 574R/405A........... 45 PAIM Federal Communications
Commission, 574R/405A
Station Renewal, P.O