AGENCY:
Federal Communications Commission.
ACTION:
Final rule.
SUMMARY:
In this document, the Commission adopts changes to its procedural rules governing administrative hearings under the Communications Act of 1934, as amended. To streamline the hearing process and otherwise update the Commission's rules relating to administrative hearings, the Commission amends its rules to codify and expand the use of a process that relies on written testimony and documentary evidence in lieu of live testimony and cross-examination; authorize Commission staff to act as a case manager to supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing; and dispense with the preparation of an initial opinion whenever the record of a proceeding can be certified to the Commission for final decision. Many of the changes that the Commission adopts are designed to supplement the Commission's current formal hearing processes to enable the Commission to select the personnel and procedures that are best suited to the issues raised in a particular case and that will achieve the purposes of that hearing without undue cost or delay.
DATES:
Effective November 5, 2020.
FOR FURTHER INFORMATION CONTACT:
For additional information on this proceeding, contact Lisa Boehley of the Market Disputes Resolution Division, Enforcement Bureau, at Lisa.Boehley@fcc.gov or (202) 418-7395.
SUPPLEMENTARY INFORMATION:
This is a summary of the Commission's Report and Order, FCC 20-125, EB Docket No. 19-214, adopted on September 11, 2020, and released on September 14, 2020. The full text of this document is available for public inspection online at https://ecfsapi.fcc.gov/file/0914158859549/FCC-20-125A1.pdf. To request this document in accessible formats for people with disabilities (e.g., Braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations (e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
1. In this Report and Order, we adopt changes to procedural rules governing administrative hearings under the Communications Act of 1934, as amended (Communications Act or Act). We also adopt changes to the procedural rules governing administrative hearings under the Equal Access to Justice Act, 5 U.S.C. 504. Currently, many administrative hearings under the Act are conducted like trials in civil litigation and include, among other things, live testimony before an administrative law judge, cross-examination of witnesses, and an initial decision by the administrative law judge that is subject to review by the Commission. The Commission has observed that such trial-type hearings are costly and impose significant burdens and delays on both applicants and the agency that may not be necessary.
2. To streamline the hearing process and otherwise update our rules relating to administrative hearings, we amend our rules to: (1) Codify and expand the use of a process that relies on written testimony and documentary evidence in lieu of live testimony and cross-examination; (2) authorize Commission staff to act as a case manager to supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing; and (3) dispense with the preparation of an initial opinion whenever the record of a proceeding can be certified to the Commission for final decision. Many of the changes we adopt are designed to supplement the Commission's current formal hearing processes to enable the Commission to select the personnel and procedures that are best suited to the issues raised in a particular case and that will achieve the purposes of that hearing without undue cost or delay. These changes will expedite and simplify the Commission's hearing processes consistent with the requirements of the Communications Act and the Administrative Procedure Act (APA) while safeguarding the rights of parties to a full and fair hearing. We also update and make conforming edits to the Commission's rules relating to administrative hearings.
3. Several provisions of the Communications Act require or permit the Commission to conduct an adjudicatory hearing to resolve a matter, but those provisions generally do not identify particular procedures that the Commission must follow. As a result, the Commission has applied a variety of processes in these hearings. For example, the Commission has generally relied upon formal hearings before an administrative law judge where the Act requires designation of a matter for hearing under section 309. These formal hearings use procedures similar to the formal adjudication provisions of the APA. In contrast, the Commission has traditionally resolved section 204 hearings on the lawfulness of tariffs on a written record and has delegated authority to the Enforcement Bureau to conduct hearings on section 208 complaints, in which all issues are resolved on a written record.
4. Over the years, the Commission has taken steps to streamline its hearing procedures. In 1981, the Commission adopted an abridged process for evaluating competing initial cellular applications under section 309(e) on a written record. More recently, the Commission ruled that certain license renewal proceedings may be resolved in a written hearing proceeding administered by the Commission itself in lieu of an administrative law judge when there are no substantial issues of material fact or credibility issues. The Commission has likewise required parties to certain broadcast proceedings to submit all or a portion of their affirmative direct cases in writing where the presiding officer determines that doing so “will contribute significantly to the disposition of the proceeding.” The Commission also adopted expedited procedures under section 309(j)(5) permitting “employees other than [administrative law judges] to preside at the taking of written evidence.” Relatedly, the Commission has delegated authority to particular operating Bureaus to act on certain licensing and permitting applications when the relevant Bureau determines that the application raises no “substantial and material questions of fact.”
5. In the Notice of Proposed Rulemaking (Notice), we explained the factual and legal foundation for resolving hearings under the Communications Act on a written record. We also sought comment on proposed rules related to: (i) Written hearing proceedings, (ii) the role of presiding officers, (iii) the role of case managers, and (iv) procedural and evidentiary rules governing hearing proceedings. Finally, we sought comment on the relevant legal standards governing the streamlining procedures proposed in the Notice.
6. Six parties filed comments in response to the Notice. The Administrative Conference of the United States (ACUS) filed a comment calling to the Commission's attention recently updated ACUS publications and thanking the Commission for “drawing upon ACUS recommendations and reports in preparing [the proposed rules].” ACUS did not provide specific comment on the Notice or the proposed rules. No one filed reply comments.
7. Based on our observation that, in many cases, conducting trial-type hearings imposes unnecessary costs, burdens, and delays on applicants and the Commission, we amend our rules to allow the Commission to select the personnel and procedures that are best suited to the issues raised in each case and that will achieve a full, fair, and efficient resolution of each hearing proceeding. We also update and make conforming edits to the Commission's rules relating to administrative hearings.
8. To those ends, we adopt and incorporate by reference in this Report and Order all of the proposed rules described in the Notice, with minor modifications. The minor modifications include revising section 0.111(b) to more accurately describe the Enforcement Bureau's role in hearing proceedings subject to part 1, subpart B; adding a new paragraph (t) to section 0.51 in order to give the International Bureau the same authority as the Wireline Competition Bureau to issue revocation orders and cease-and-desist orders in section 214 proceedings where the presiding officer has issued a certification order to the Commission that the carrier has waived its opportunity for a hearing under that section; and adopting minor changes to sections 1.51(a), 1.210, and 1.314(a)(3)-(a)(4) to clarify the procedures for filing written materials containing confidential information. We also adopt and incorporate by reference and further elaborate the legal arguments and justifications presented in the Notice in support of the rules that we adopt in the Report and Order.
9. Legal Authority for Written Hearing Proceedings. Federal courts have recognized agencies' legitimate interest in streamlining their proceedings to avoid the time and expense associated with administrative trials. Agencies must adhere to the formal hearing procedures in APA sections 554, 556, and 557 only in cases of “adjudication required by statute to be determined on the record after opportunity for an agency hearing.” Where an agency's enabling statute does not expressly require an “on the record” hearing and instead calls simply for a “hearing,” a “full hearing,” or uses similar terminology, the statute does not trigger the APA formal adjudication procedures absent clear evidence of congressional intent to do so.
10. With one noteworthy exception, the hearing provisions in the Communications Act neither expressly require an “on the record” hearing nor include other language unambiguously evincing congressional intent to impose the full panoply of trial-type procedures of a formal hearing. The exception is section 503 of the Act, which authorizes the Commission to impose a forfeiture penalty on a person after “a hearing before the Commission or an administrative law judge thereof in accordance with section 554 of” the APA. Since Congress did not include similar language in other hearing provisions in the Act, we conclude that Commission hearings under the Communications Act generally are subject only to the APA's informal adjudication requirements. The formal adjudication requirements of the APA also apply to administrative hearings under the Equal Access to Justice Act.
11. The “Communications Act gives the Commission the power of ruling on facts and policies in the first instance.” In exercising that power, the Commission may resolve disputes of fact in an informal hearing proceeding on a written record. And the Commission may reach any decision that is supported by substantial evidence in the record.
12. Accordingly, we amend our rules to codify and expand the use of a written hearing process that can be used in most adjudicative proceedings, including those conducted by an administrative law judge, whenever factual disputes can be adequately resolved on a written record. The revisions to our part 1, subpart B general hearing procedures are not intended to supplant more specific procedural rules that govern particular adjudicatory proceedings, such as our formal complaint, pole attachment complaint, and tariff investigation procedures. One commenter, NCTA, “generally supports the use of written hearings and agrees that written hearings could expedite the resolution of proceedings[,]” but notes that “there may be instances in which a live hearing is more appropriate” depending upon “the subject matter or circumstances of a particular proceeding, or the parties involved.” We agree. Our revisions to sections 1.248, 1.370, and 1.376 of the Commission's rules establish that the Commission or the presiding officer (if other than the Commission) may order that a hearing be conducted on a written record whenever material factual disputes can be adequately resolved in this manner. To determine whether due process requires live testimony in a particular case, the presiding officer will apply the three-part test the Supreme Court adopted in Mathews v. Eldridge.
13. Three commenters oppose the expanded use of written hearings, only two of which provide legal analysis or support for their views. NCLA argues that the Commission is compelled to conduct formal, trial-like hearings in every case in which the Communications Act requires the Commission to conduct a hearing. NCLA principally relies upon the 1950 Supreme Court decision in Wong Yang Sung to argue that the APA presumptively requires formal processes whenever an agency is compelled to conduct a hearing. We disagree. As chronicled in the Notice, four decades of post-Wong jurisprudence, unchallenged by NCLA, defeats any assertion of such a presumption. NCLA also argues that courts of appeals cases such as Marathon Oil and Seacoast Anti-Pollution support its view that a statutory reference to a “hearing,” without more specific guidance from Congress, reflects a congressional intent to require formal APA procedures. We disagree in light of Supreme Court precedent to the contrary and because more recent cases have expressly rejected the rationale of those and other similar decisions based on that precedent.
14. David Gutierrez and NCLA contend that “sole reliance on” written hearings constitutes a violation of parties' statutory and/or constitutional rights to a “full” hearing that necessarily includes “live testimony and cross examination.” These arguments ignore that the revised rules merely give the Commission an option to designate a matter for hearing on a written record. When all outcome-determinative facts in dispute can be adequately resolved on a written record, the Commission (or a presiding officer other than the Commission) may decide to conduct a hearing on a written record. Alternatively, the Commission will order a hearing with live testimony and/or cross-examination when it is appropriate. The point here is that the Commission should be able to exercise its broad discretion, based on the specific issues and the evidence before it, to determine when the disadvantages of such an often-lengthy process outweigh any advantages to the agency and to the parties. This view is consistent with Mathews v. Eldridge and the Commission's well-established authority to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.”
15. Finally, the suggestion that a hearing based on a written record is somehow less than a “full” hearing is belied by our longstanding practice of conducting hearings in section 208 complaint proceedings on a written record and is at odds with the substantial procedural protections that will be afforded parties to written hearing proceedings under our new rules. In addition, the Commission's rules will allow parties in written hearing proceedings to take depositions, which will enable parties to examine witnesses in real time in a live setting. Indeed, revised section 1.254 of our rules makes clear that “any” hearing (whether written or oral) “shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.”
16. We reject NCTA's proposal that, upon a showing that “the interests of justice” would be served, parties should be able to move “early in a proceeding” to convert a hearing “from written to live.” New section 1.376 of our rules provides that when the Commission designates a matter for hearing on a written record, a party may file a motion requesting an oral hearing only after the affirmative, responsive, and reply pleadings have been filed. We find that at that time the presiding officer will be in the best position to reasonably assess whether there is a genuine dispute about an outcome-determinative fact that cannot be adequately resolved on a written record. We also conclude that NCTA's proposal to grant such a motion upon a showing that “the interests of justice” would be served provides parties insufficient guidance as to when an oral hearing proceeding is necessary notwithstanding that the Commission initially designated the matter for hearing on a written record. We conclude that the standard in section 1.376 better defines the core of the issue (i.e., oral hearing proceedings will be allowed when needed to resolve a genuine dispute as to an outcome-determinative fact and limited to testimony and cross-examination necessary to resolve that dispute). Although NCTA argues that parties also should be entitled to file a motion to convert a hearing from “live to written,” it provides no explanation regarding the necessity for such a rule, including when or why such a situation is likely to arise. Accordingly, we conclude that the record is insufficient to allow us to make a determination regarding this issue.
17. Finally, we reject NCLA's proposal to give parties the choice of a live versus a written hearing in every case. We conclude that routinely accommodating requests for oral testimony or cross-examination would unnecessarily prolong the resolution of hearings, without weighing the costs associated with such a procedure, and thereby undermine the efficiency of the Commission's written hearings process.
18. Role of the Presiding Officer. The Commission's current hearing rules provide that “[h]earings will be conducted by the Commission, by one or more commissioners, or by a law judge designated pursuant to section 11 of the [APA].” As proposed in the Notice, we conclude that each hearing designation order will indicate whether the Commission itself, one or more Commissioners, or an administrative law judge will serve as the presiding officer. We also adopt our tentative conclusion that “the selection of a presiding officer should take into consideration who would most fairly and reasonably accommodate the proper dispatch of the Commission's business and the ends of justice in each case.”
19. NCTA acknowledges that current Commission rules allow the Commission itself, one or more Commissioners, or an administrative law judge to serve as the presiding officer, but nevertheless argues that only administrative law judges should conduct hearings. NCTA asserts that, unlike the Commission and individual Commissioners, who are necessarily focused on other agency matters, administrative law judges are “non-political officials who have expertise in the administrative hearing process” and can “focus solely” on the agency hearings before them. We disagree that only administrative law judges should conduct hearings. The Commission is well suited to serve as presiding officer, particularly in cases involving primarily interpretations of law, policy determinations, or other exercises of administrative discretion. To the extent the press of other business or experience conducting a hearing is a concern, the Commission may appoint a case manager to oversee development of the written record for decision. In addition, given that the Commission currently has only one administrative law judge, designating the Commission itself to serve as an additional presiding officer in appropriate cases could help to avert or alleviate a possible backlog of cases by making available additional qualified personnel to conduct hearings.
20. Finally, we reject any claim that the independence and objectivity of the presiding officer can be assured only if an administrative law judge serves as the presiding officer. Federal rules prohibit members of the Commission from participating in proceedings when it has been determined that they have an appearance of a loss of impartiality. Moreover, an administrative law judge's initial decision is subject to de novo review by the Commission. Whether the Commission issues an order on review of an administrative law judge's initial decision or at the conclusion of a hearing in which the Commission itself is the presiding officer, the Commission ultimately decides the outcome. All Commission orders are subject to judicial review wherein the reviewing court may overturn any decision of the Commission that is arbitrary or capricious.
21. Role of the Case Manager. We conclude that when the Commission designates itself as the presiding officer in a written hearing proceeding, it may delegate authority to a case manager to develop the record in that hearing. We anticipate that the appointment of a case manager for this purpose will significantly expedite our hearing processes. The Commission will identify the specific functions that a case manager will perform in the order appointing that individual. Such functions may include, inter alia, issuing scheduling orders, ruling on discovery motions and other interlocutory matters, administering the intake of evidence, holding conferences in order to settle or simplify the issues, and certifying the record for decision by the Commission promptly after the hearing record is closed. We do not agree with commenters who argue for a more circumscribed role for case managers under our new rules. Although a case manager's responsibilities may include one or more of the duties typically performed by the presiding officer, a case manager shall have no authority to (i) resolve any new or novel issues, (ii) issue an order on the merits resolving any issue designated for hearing in a case, (iii) issue an order on the merits of any motion for summary decision filed under section 1.251 of the Commission's rules, or (iv) perform any other functions that the Commission reserves to itself in the order appointing the case manager. In addition, revised section 1.301 of our rules sets forth the procedures by which a party that believes that it is aggrieved by the ruling of a case manager may appeal such ruling. These limitations appropriately reserve to the Commission the essential functions of the presiding officer.
22. NCLA raises a concern that delegation of authority to designated Commission staff to serve as case managers may implicate the Appointments Clause of the Constitution “to the extent that the proposal to elevate FCC staff to manage record development could make them inferior officers of the United States” under the Supreme Court's ruling in Lucia v. SEC. Under our new rule, however, case managers will only be appointed by the Commission, thereby satisfying the constitutional requirement for inferior officers. We therefore need not resolve whether the case managers' functions render them inferior officers within the meaning of Lucia.
23. We conclude that Commission staff serving as a case manager must have substantial training and expertise to successfully perform this role. We also limit the selection of case managers to Commission staff who qualify as “neutrals” under 5 U.S.C. 571 and 573. In order to ensure the neutrality of Commission staff members serving as the case manager, we conclude that the following individuals may not serve as the case manager: Staff who participated in identifying the specific issues designated for hearing; staff who take an active part in investigating, prosecuting, or advocating in a case (either before or after designation for hearing); and staff who are expected to investigate and act upon petitions to deny (including administrative challenges thereto).
24. Finally, as proposed in the Notice, we conclude that any Commission staff serving as a case manager in a case should be considered “decision-making personnel” for purposes of our ex parte rules. In doing so, we retain the existing definition of “ex parte presentation” in section 1.1202 of our rules. In the Notice, we sought comment on whether “other or additional measures [than those proposed in the Notice] are needed to ensure the impartiality of staff serving as the case manager.” No commenters responded to this request.
25. Procedural and Evidentiary Rules Governing Hearing Proceedings. Dispensing with Initial Decision When Appropriate. Section 409(a) of the Communications Act generally requires that the presiding officer prepare an initial, tentative, or recommended decision. With limited exceptions, the Commission's current rules likewise state that “the presiding officer shall prepare an initial (or recommended) decision” at the close of a hearing. However, upon agreement of the parties to waive the issuance of an initial or recommended decision by the presiding officer, the Commission may issue a final decision “if such action will best conduce to the proper dispatch of business and to the ends of justice.” Furthermore, where the Commission finds “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.”
26. We conclude that the Commission should dispense with the preparation of an initial decision whenever the Commission serves as the presiding officer at a hearing, or in cases in which the Commission directs that the record of the proceeding be certified to it for decision. Initial decisions have no apparent utility when the Commission is the presiding officer. We do not construe the requirement of an “initial” or “recommended” decision in section 409(a) to apply when the Commission itself is serving as the presiding officer, and neither our rules nor our prior practice have ever imposed such a requirement. Indeed, that provision seems to presuppose a person other than the Commission is serving as the presiding officer because that provision says an initial, tentative, or recommended decision is not needed “where the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably require that the record be certified to the Commission for initial or final decision.” 47 U.S.C. 409(a). We conclude that dispensing with initial decisions under these circumstances would greatly promote efficient resolution of disputes. We also note that parties may seek reconsideration of any orders issued by the Commission while serving as presiding officer. No commenters addressed this issue.
27. Evidentiary Rules. The Commission's current hearing rules provide that the Federal Rules of Evidence (28 U.S.C. Rules 101-1103) govern Commission hearings, but that these rules may be “relaxed if the ends of justice will be better served by so doing.” In practice, however, the Federal Rules of Evidence are not necessarily applied and instead serve merely as guidelines in determining the admissibility of evidence. In the Notice, we observed that this lack of clarity as to the relevant evidentiary standard has the potential to cause confusion for parties and to lead to evidentiary disputes between those who expect the Federal Rules of Evidence to apply and those who seek to avoid their application in a particular case.
28. Based on our review of this issue, we amend section 1.351 of our rules to adopt the evidentiary standard in the formal APA hearing requirements, which states, in relevant part, that “the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” NCTA, the only commenter addressing this issue, opposes this change. Although NCTA contends that the Federal Rules of Evidence are “widely adopted,” “familiar to parties,” and help to “ensure consistency” in the conduct of hearings, we find the conclusions of the 2019 Asimow Report more persuasive. In particular, the 2019 Asimow Report recommends the more lenient standard in 5 U.S.C. 556(d) based on its view that this standard will result in fewer time-consuming disputes over “esoteric rules of evidence, such as the many exceptions to the hearsay rule,” and will be simpler for self-represented parties to navigate. We agree and we therefore revise section 1.351 to incorporate this standard. Parties remain free to make evidentiary arguments based on the Federal Rules of Evidence.
29. Electronic Filing of Documents. As proposed in the Notice, we require that all pleadings filed in a hearing proceeding, as well as all letters, documents, or other written submissions, excluding confidential material, be filed using the Commission's Electronic Comment Filing System (ECFS) and designate ECFS as the repository for records of actions taken in a hearing proceeding, excluding confidential material, by a presiding officer. We agree with the 2019 Asimow Report that the use of electronic filing in hearing proceedings will yield “significant efficiency benefits for both the agency and outside parties.” No commenters addressed this issue.
30. Confidentiality. As proposed in the Notice, we establish procedures that parties and third-parties must use if they wish to designate information that is produced or exchanged in a hearing proceeding as confidential. These procedures are modeled after those that the Commission established for use in formal complaint proceedings. No commenters addressed this issue.
31. Final Regulatory Flexibility Act Certification. The Regulatory Flexibility Act, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
32. An Initial Regulatory Flexibility Certification (IRFC) was incorporated in the Notice in this proceeding reflecting the Commission's analysis that there would be no significant economic impact on small entities by the implementation of the policies and rules proposed therein. In the Notice, the Commission proposed rule changes in response to longstanding criticisms of the Commission's current trial-type hearings as costly and burdensome for parties and for the Commission. The proposed changes were designed to supplement the Commission's current hearing processes by allowing the Commission to select the personnel and procedures that are best suited to the issues raised in a particular case and that will achieve the purposes of that hearing without undue cost or delay. In the Notice, the Commission noted that only a small percentage of matters before the Commission necessitate a hearing and, as such, the number of small entities impacted would not be substantial for RFA purposes. In addition, because the proposed modifications did not include substantive new responsibilities and were expected to reduce costs and burdens currently shouldered by parties to certain hearing proceedings, including those of small entities, the Commission certified that the proposals would not have a significant economic impact on a substantial number of small entities.
33. In this Report and Order, the Commission adopts the rules as proposed in the Notice, with minor modifications to ensure that the final rules conform to those published in the Federal Register. We also adopt minor revisions to section 0.111(b) that differ from those proposed in the Notice in order to more accurately describe the Enforcement Bureau's role in hearing proceedings subject to part 1, subpart B; we add a new paragraph (t) to section 0.51, in order to give the International Bureau the same authority as the Wireline Competition Bureau to issue revocation orders and cease-and-desist orders in section 214 proceedings where the presiding officer has issued a certification order to the Commission that the carrier has waived its opportunity for a hearing under that section; and we adopt minor changes to sections 1.51(a), 1.210, and 1.314(a)(3)-(a)(4) to clarify the procedures for filing written materials containing confidential information. The Commission continues to expect that the number of small entities impacted by these rules will not be substantial for RFA purposes and that these rules will reduce costs and burdens currently shouldered by parties, including small entities, to certain hearing proceedings. Therefore, we certify that the rules adopted in this Report and Order will not have a significant economic impact on a substantial number of small entities.
34. The Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA and will be published in the Federal Register.
35. Paperwork Reduction Act Analysis. This document does not contain any new information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
36. Congressional Review Act. The Commission will not send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties.”
37. Accordingly, it is ordered that, pursuant to the authority found in sections 1, 4(i), 4(j), 5, 9, 214, 303, 309, 312, 316, and 409 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 155, 159, 214, 303, 309, 312, 316, and 409, this Report and Order is adopted and will become effective 30 days after publication in the Federal Register.
38. It is further ordered that parts 0, 1, and 76 of the Commission's rules are amended as set forth in Appendix A and the rule changes to parts 0, 1, and 76 adopted herein will become effective 30 days after the date of publication in the Federal Register.
39. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Parts 0, 1, and 76
- Administrative practice and procedure
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 1, and 76 as follows:
PART 0—COMMISSION ORGANIZATION
1. The authority citation for part 0 is revised to read as follows:
Subpart A—[Amended]
2. The authority citation for subpart A is revised to read as follows:
3. Amend § 0.5 by revising paragraph (c) to read as follows:
(c) Delegations of authority to the staff. Pursuant to section 5(c) of the Communications Act, the Commission has delegated authority to its staff to act on matters which are minor or routine or settled in nature and those in which immediate action may be necessary. See subpart B of this part. Actions taken under delegated authority are subject to review by the Commission, on its own motion or on an application for review filed by a person aggrieved by the action. Except for the possibility of review, actions taken under delegated authority have the same force and effect as actions taken by the Commission. The delegation of authority to a staff officer, however, does not mean that the staff officer will exercise that authority in all matters subject to the delegation. The staff is at liberty to refer any matter at any stage to the Commission for action, upon concluding that it involves matters warranting the Commission's consideration, and the Commission may instruct the staff to do so.
4. Amend § 0.51 by adding paragraph (t) to read as follows:
(t) Issue orders revoking a common carrier's operating authority pursuant to section 214 of the Act, and issue orders to cease and desist such operations, in cases where the presiding officer has issued a certification order to the Commission that the carrier has waived its opportunity for hearing under that section.
5. Amend § 0.91 by adding paragraph (q) to read as follows:
(q) Issue orders revoking a common carrier's operating authority pursuant to section 214 of the Act, and issue orders to cease and desist such operations, in cases where the presiding officer has issued a certification order to the Commission that the carrier has waived its opportunity for hearing under that section.
6. Amend § 0.111 by revising paragraphs (a)(18) and (b) to read as follows:
(a) * * *
(18) Issue or draft orders taking or recommending appropriate action in response to complaints or investigations, including, but not limited to, admonishments, damage awards where authorized by law or other affirmative relief, notices of violation, notices of apparent liability and related orders, notices of opportunity for hearing regarding a potential forfeiture, hearing designation orders, orders designating licenses or other authorizations for a revocation hearing and consent decrees. Issue or draft appropriate orders after a hearing proceeding has been terminated by the presiding officer on the basis of waiver. Issue or draft appropriate interlocutory orders and take or recommend appropriate action in the exercise of its responsibilities.
(b) Serve as a party in hearing proceedings conducted pursuant to 47 CFR part 1, subpart B.
7. Revise § 0.151 to read as follows:
The Office of Administrative Law Judges consists of as many Administrative Law Judges qualified and appointed pursuant to the requirements of 5 U.S.C. 3105 as the Commission may find necessary. It is responsible for hearing and conducting adjudicatory cases designated for hearing other than those designated to be heard by the Commission en banc, or by one or more commissioners. The Office of Administrative Law Judges is also responsible for conducting such other hearing proceedings as the Commission may assign.
Subpart B—[Amended]
8. The authority citation for subpart B is revised to read as follows:
9. Amend § 0.201 by revising paragraph (a)(2) and removing the note to paragraph (a)(2).
The revision reads as follows:
(a) * * *
(2) Delegations to rule on interlocutory matters in hearing proceedings. Delegations in this category are made to any person, other than the Commission, designated to serve as the presiding officer in a hearing proceeding pursuant to § 1.241.
10. Revise § 0.341 to read as follows:
(a) After a presiding officer (other than the Commission) has been designated to conduct a hearing proceeding, and until he or she has issued an initial decision or certified the record to the Commission for decision, or the proceeding has been transferred to another presiding officer, all motions, petitions and other matters that may arise during the proceeding shall be acted upon by such presiding officer, except those which are to be acted upon by the Commission. See § 1.291(a)(1) of this chapter.
(b) Any question which would be acted upon by the presiding officer if it were raised by the parties to the proceeding may be raised and acted upon by the presiding officer on his or her own motion.
(c) Any question which would be acted upon by the presiding officer (other than the Commission) may be certified to the Commission on the presiding officer's own motion.
(d) Except for actions taken during the course of a hearing and upon the record thereof, actions taken by a presiding officer pursuant to the provisions of this section shall be recorded in writing and filed in the official record of the proceeding.
(e) The presiding officer may waive any rule governing the conduct of Commission hearings upon motion or upon the presiding officer's own motion for good cause, subject to the provisions of the Administrative Procedure Act and the Communications Act of 1934, as amended.
(f) The presiding officer may issue such orders and conduct such proceedings as will best conduce to the proper dispatch of business and the ends of justice.
(g)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer for an initial decision, the presiding officer shall release an initial decision in compliance with one of the following deadlines:
(i) 240 calendar days after a party informs the presiding officer that it elects not to pursue alternative dispute resolution as set forth in § 76.7(g)(2) of this chapter; or
(ii) If the parties have mutually elected to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter, within 240 calendar days after the parties inform the presiding officer that they have failed to resolve their dispute through alternative dispute resolution.
(2) The presiding officer may toll these deadlines under the following circumstances:
(i) If the complainant and defendant jointly request that the presiding officer toll these deadlines in order to pursue settlement discussions or alternative dispute resolution or for any other reason that the complainant and defendant mutually agree justifies tolling; or
(ii) If complying with the deadline would violate the due process rights of a party or would be inconsistent with fundamental fairness; or
(iii) In extraordinary situations, due to a lack of adjudicatory resources available at the time.
11. Revise § 0.347 to read as follows:
The record of actions taken by a presiding officer, including initial and recommended decisions and actions taken pursuant to § 0.341, is available through the Commission's Electronic Comment Filing System (ECFS). ECFS serves as the repository for records in the Commission's docketed proceedings from 1992 to the present. The public may use ECFS to retrieve all such records, as well as selected pre-1992 documents. The Office of the Secretary maintains copies of documents that include nonpublic information.
12. Remove the undesignated center heading “Chief Administrative Law Judge” remove and reserve §§ 0.351 and 0.357.
PART 1—PRACTICE AND PROCEDURE
13. The authority citation for part 1 continues to read as follows:
Subpart A—General Rules of Practice and Procedure
14. Amend § 1.21 by revising paragraph (d) to read as follows:
(d) Except as otherwise expressly provided in this chapter, a duly authorized corporate officer or employee may act for the corporation in any matter which has not been designated for hearing and, in the discretion of the presiding officer, may appear and be heard on behalf of the corporation in a hearing proceeding.
15. Amend § 1.49 by revising paragraphs (f)(1)(vii) and (viii) and adding paragraph (f)(1)(ix) to read as follows:
(f)(1) * * *
(vii) Domestic section 214 discontinuance applications pursuant to § 63.63 and/or § 63.71 of this chapter;
(viii) Notices of network change and associated certifications pursuant to § 51.325 et seq. of this chapter; and
(ix) Hearing proceedings under §§ 1.201 through 1.377.
16. Amend § 1.51 by revising paragraph (a) to read as follows:
(a) In hearing proceedings, all pleadings, letters, documents, or other written submissions, shall be filed using the Commission's Electronic Comment Filing System, excluding confidential material as set forth in § 1.314 of these rules. Each written submission that includes confidential material shall be filed as directed by the Commission, along with an additional courtesy copy transmitted to the presiding officer.
17. Amend § 1.80 by revising paragraphs (g) introductory text and (g)(1) and (3) to read as follows:
(g) Notice of opportunity for hearing. The procedures set out in this paragraph apply only when a formal hearing under section 503(b)(3)(A) of the Communications Act is being held to determine whether to assess a forfeiture penalty.
(1) Before imposing a forfeiture penalty, the Commission may, in its discretion, issue a notice of opportunity for hearing. The formal hearing proceeding shall be conducted by an administrative law judge under procedures set out in subpart B of this part, including procedures for appeal and review of initial decisions. A final Commission order assessing a forfeiture under the provisions of this paragraph is subject to judicial review under section 402(a) of the Communications Act.
(3) Where the possible assessment of a forfeiture is an issue in a hearing proceeding to determine whether a pending application should be granted, and the application is dismissed pursuant to a settlement agreement or otherwise, and the presiding judge has not made a determination on the forfeiture issue, the presiding judge shall forward the order of dismissal to the attention of the full Commission. Within the time provided by § 1.117, the Commission may, on its own motion, proceed with a determination of whether a forfeiture against the applicant is warranted. If the Commission so proceeds, it will provide the applicant with a reasonable opportunity to respond to the forfeiture issue (see paragraph (f)(3) of this section) and make a determination under the procedures outlined in paragraph (f) of this section.
18. Revise § 1.85 to read as follows:
Whenever grounds exist for suspension of an operator license, as provided in § 303(m) of the Communications Act, the Chief of the Wireless Telecommunications Bureau, with respect to amateur and commercial radio operator licenses, may issue an order suspending the operator license. No order of suspension of any operator's license shall take effect until 15 days' notice in writing of the cause for the proposed suspension has been given to the operator licensee, who may make written application to the Commission at any time within the said 15 days for a hearing upon such order. The notice to the operator licensee shall not be effective until actually received by the operator licensee, and from that time the operator licensee shall have 15 days in which to mail the said application. In the event that physical conditions prevent mailing of the application before the expiration of the 15-day period, the application shall then be mailed as soon as possible thereafter, accompanied by a satisfactory explanation of the delay. Upon receipt by the Commission of such application for hearing, said order of suspension shall be designated for hearing and said suspension shall be held in abeyance until the conclusion of the hearing proceeding. If the license is ordered suspended, the operator shall send his, her, or its operator license to the Mobility Division, Wireless Telecommunications Bureau, in Washington, DC, on or before the effective date of the order, or, if the effective date has passed at the time notice is received, the license shall be sent to the Commission forthwith.
19. Amend § 1.87 by revising paragraphs (e), (f), and (g) introductory text to read as follows:
(e) In any case where a hearing proceeding is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission except that, with respect to any issue that pertains to the question of whether the proposed action would modify the license or permit of a person filing a protest pursuant to paragraph (c) of this section, such burdens shall be as described by the Commission.
(f) In order to use the right to a hearing and the opportunity to give evidence upon the issues specified in any order designating a matter for hearing, any licensee, or permittee, itself or by counsel, shall, within the period of time as may be specified in that order, file with the Commission a written appearance stating that it will present evidence on the matters specified in the order and, if required, appear before the presiding officer at a date and time to be determined.
(g) The right to file a protest or the right to a hearing proceeding shall, unless good cause is shown in a petition to be filed not later than 5 days before the lapse of time specified in paragraph (a) or (f) of this section, be deemed waived:
20. Amend § 1.91 by revising paragraphs (b), (c), and (d) to read as follows:
(b) An order to show cause why an order of revocation and/or a cease and desist order should not be issued will designate for hearing the matters with respect to which the Commission is inquiring and will call upon the person to whom it is directed (the respondent) to file with the Commission a written appearance stating that the respondent will present evidence upon the matters specified in the order to show cause and, if required, appear before a presiding officer at a time and place to be determined, but no earlier than thirty days after the receipt of such order. However, if safety of life or property is involved, the order to show cause may specify a deadline of less than thirty days from the receipt of such order.
(c) To avail themselves of such opportunity for a hearing, respondents, personally or by counsel, shall file with the Commission, within twenty days of the mailing of the order or such shorter period as may be specified therein, a written appearance stating that they will present evidence on the matters specified in the order and, if required, appear before the presiding officer at a time and place to be determined. The presiding officer in his or her discretion may accept a late-filed appearance. However, a written appearance tendered after the specified time has expired will not be accepted unless accompanied by a petition stating with particularity the facts and reasons relied on to justify such late filing. Such petition for acceptance of a late-filed appearance will be granted only if the presiding officer determines that the facts and reasons stated therein constitute good cause for failure to file on time.
(d) Hearing proceedings on the matters specified in such orders to show cause shall accord with the practice and procedure prescribed in this subpart and subpart B of this part, with the following exceptions:
(1) In all such revocation and/or cease and desist hearings, the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission; and
(2) The Commission may specify in a show cause order, when the circumstances of the proceeding require expedition, a time less than that prescribed in §§ 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.
21. Amend § 1.92 by revising paragraphs (a) and (c) to read as follows:
(a) After the issuance of an order to show cause, pursuant to § 1.91, designating a matter for hearing, the occurrence of any one of the following events or circumstances will constitute a waiver of such hearing and the proceeding thereafter will be conducted in accordance with the provisions of this section.
(1) The respondent fails to file a timely written appearance as prescribed in § 1.91(c) indicating that the respondent will present evidence on the matters specified in the order and, if required by the order, that the respondent will appear before the presiding officer.
(2) The respondent, having filed a timely written appearance as prescribed in § 1.91(c), fails in fact to present evidence on the matters specified in the order or appear before the presiding officer in person or by counsel at the time and place duly scheduled.
(3) The respondent files with the Commission, within the time specified for a written appearance in § 1.91(c), a written statement expressly waiving his or her rights to a hearing.
(c) Whenever a hearing is waived by the occurrence of any of the events or circumstances listed in paragraph (a) of this section, the presiding officer shall, at the earliest practicable date, issue an order reciting the events or circumstances constituting a waiver of hearing and terminating the hearing proceeding. A presiding officer other than the Commission also shall certify the case to the Commission. Such order shall be served upon the respondent.
22. Amend § 1.93 by revising paragraph (a) to read as follows:
(a) As used in this subpart, a “consent order” is a formal decree accepting an agreement between a party to an adjudicatory hearing proceeding held to determine whether that party has violated statutes or Commission rules or policies and the appropriate operating Bureau, with regard to such party's future compliance with such statutes, rules or policies, and disposing of all issues on which the proceeding was designated for hearing. The order is issued by the officer designated to preside at the hearing proceeding.
23. Amend § 1.94 by revising paragraphs (d) and (g) to read as follows:
(d) If agreement is reached, it shall be submitted to the presiding officer, who shall either sign the order, reject the agreement, or suggest to the parties that negotiations continue on such portion of the agreement as the presiding officer considers unsatisfactory or on matters not reached in the agreement. If the presiding officer signs the consent order, the record shall be closed. If the presiding officer rejects the agreement, the hearing proceeding shall continue. If the presiding officer suggests further negotiations and the parties agree to resume negotiating, the presiding officer may, in his or her discretion, decide whether to hold the hearing proceeding in abeyance pending the negotiations.
(g) Consent orders, pleadings relating thereto, and Commission orders with respect thereto shall be served on parties to the proceeding. Public notice will be given of orders issued by the Commission or by the presiding officer. Negotiating papers constitute work product, are available to parties participating in negotiations, but are not routinely available for public inspection.
24. Amend § 1.104 by revising paragraph (a) to read as follows:
(a) The provisions of this section apply to all final actions taken pursuant to delegated authority, including final actions taken by members of the Commission's staff on nonhearing matters. They do not apply to interlocutory actions of a presiding officer in hearing proceedings, or to orders designating a matter for hearing issued under delegated authority. See §§ 1.106(a) and 1.115(e).
25. Amend § 1.115 by revising the final sentence of paragraph (d), revising paragraph (e), and revising the fourth and final sentences of paragraph (f).
The revisions read as follows:
(d) * * * Except as provided in paragraph (e)(1) 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 an order designating a matter for hearing that was issued under delegated authority shall be deferred until exceptions to the initial decision in the case are filed, unless the presiding officer certifies such an application for review to the Commission. A matter shall be certified to the Commission if the presiding officer determines that the matter involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate consideration of the question would materially expedite the ultimate resolution of the litigation. A request to certify a matter to the Commission shall be filed with the presiding officer within 5 days after the designation order is released. A ruling refusing to certify a matter to the Commission is not appealable. Any application for review authorized by the presiding officer shall be filed within 5 days after the order certifying the matter to the Commission is released or such a ruling is made. Oppositions shall be filed within 5 days after the application for review is filed. Replies to oppositions shall be filed only if they are requested by the Commission. Replies (if allowed) shall be filed within 5 days after they are requested. The Commission may dismiss, without stating reasons, an application for review that has been certified, and direct that the objections to the order designating the matter for hearing be deferred and raised when exceptions in the initial decision in the case are filed.
(2) Applications for review of final staff decisions issued on delegated authority in formal complaint proceedings on the Enforcement Bureau's Accelerated Docket (see, e.g., § 1.730) shall be filed within 15 days of public notice of the decision, as that date is defined in § 1.4(b). These applications for review oppositions and replies in Accelerated Docket proceedings shall be served on parties to the proceeding by hand or facsimile transmission.
(f) * * * When permitted (see paragraph (e)(1) of this section), reply pleadings shall not exceed 5 double-spaced typewritten pages. * * * When permitted (see paragraph (e)(1) 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.
Subpart B—Hearing Proceedings
26. Amend § 1.201 by redesignating the note as note 2 to § 1.201, adding note 1 to § 1.201, and revising the newly redesignated note 2 to § 1.201 to read as follows:
Note 1 to § 1.201:
For special provisions relating to hearing proceedings under this subpart that the Commission determines shall be conducted and resolved on a written record, see §§ 1.370 through 1.377.
Note 2 to § 1.201:
For special provisions relating to AM broadcast station applications involving other North American countries see § 73.23.
27. Revise § 1.202 to read as follows:
The Commission will designate an official reporter for the recording and transcribing of hearing proceedings as necessary. Transcripts will be transmitted to the Secretary for inclusion in the Commission's Electronic Comment Filing System.
28. Revise § 1.203 to read as follows:
The evidence submitted by the parties, together with all papers and requests filed in the proceeding and any transcripts, shall constitute the exclusive record for decision. Where any decision rests on official notice of a material fact not appearing in the record, any party shall on timely request be afforded an opportunity to show the contrary.
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
29. Revise § 1.209 to read as follows:
Each pleading filed in a hearing proceeding shall indicate in its caption whether it is to be acted upon by the Commission or, if the Commission is not the presiding officer, by the presiding officer. Unless it is to be acted upon by the Commission, the presiding officer shall be identified by name.
30. Add § 1.210 to read as follows:
All pleadings filed in a hearing proceeding, as well as all letters, documents, or other written submissions, shall be filed using the Commission's Electronic Comment Filing System, excluding confidential material as set forth in § 1.314. A courtesy copy of all submissions shall be contemporaneously provided to the presiding officer, as directed by the Commission.
31. Amend § 1.221 by revising paragraphs (b) through (e), removing paragraphs (f) and (g), redesignating paragraph (h) as paragraph (f) and revising it, and revising the authority citation.
The revisions read as follows:
(b) The order designating an application for hearing shall be mailed to the applicant and the order, or a summary thereof, shall be published in the Federal Register. Reasonable notice of hearing will be given to the parties in all proceedings.
(c) In order to avail themselves of the opportunity to be heard, applicants or their attorney shall file, within 20 days of the mailing of the order designating a matter for hearing, a written appearance stating that the applicant will present evidence on the matters specified in the order and, if required by the order, appear before the presiding officer at a date and time to be determined. Where an applicant fails to file such a written appearance within the time specified, or has not filed prior to the expiration of that time a petition to dismiss without prejudice, or a petition to accept, for good cause shown, such written appearance beyond expiration of said 20 days, the application will be dismissed with prejudice for failure to prosecute.
(d) The Commission will on its own motion name as parties to the hearing proceeding any person found to be a party in interest.
(e) In order to avail themselves of the opportunity to be heard, any persons named as parties pursuant to paragraph (d) of this section shall, within 20 days of the mailing of the order designating them as parties to a hearing proceeding, file personally or by attorney a written appearance that they will present evidence on the matters specified in the order and, if required by the order, appear before the presiding officer at a date and time to be determined. Any persons so named who fail to file this written appearance within the time specified, shall, unless good cause for such failure is shown, forfeit their hearing rights.
(f)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer, each party, in person or by attorney, shall file a written appearance within five calendar days after the party informs the presiding officer that it elects not to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter or, if the parties have mutually elected to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter, within five calendar days after the parties inform the presiding officer that they have failed to resolve their dispute through alternative dispute resolution. The written appearance shall state that the party will appear for hearing and present evidence on the issues specified in the hearing designation order.
(2) If the complainant fails to file a written appearance by this deadline, or fails to file prior to the deadline either a petition to dismiss the proceeding without prejudice or a petition to accept, for good cause shown, a written appearance beyond such deadline, the presiding officer shall dismiss the complaint with prejudice for failure to prosecute.
(3) If the defendant fails to file a written appearance by this deadline, or fails to file prior to this deadline a petition to accept, for good cause shown, a written appearance beyond such deadline, its opportunity to present evidence at hearing will be deemed to have been waived. If the hearing is so waived, the presiding officer shall expeditiously terminate the proceeding and certify to the Commission the complaint for resolution based on the existing record. When the Commission has designated itself as the presiding officer, it shall expeditiously terminate the proceeding and resolve the complaint based on the existing record.
(5 U.S.C. 554; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
32. Revise § 1.223 to read as follows:
(a) Where the order designating a matter for hearing has failed to notify and name as a party to the hearing proceeding any person who qualifies as a party in interest, such person may acquire the status of a party by filing, under oath and not more than 30 days after the publication in the Federal Register of the hearing issues or any substantial amendment thereto, a petition for intervention showing the basis of its interest. Where the person's status as a party in interest is established, the petition to intervene will be granted.
(b) Any other person desiring to participate as a party in any hearing proceeding may file a petition for leave to intervene not later than 30 days after the publication in the Federal Register of the full text or a summary of the order designating the matter for hearing or any substantial amendment thereto. The petition must set forth the interest of petitioner in the proceedings, must show how such petitioner's participation will assist the Commission in the determination of the issues in question, must set forth any proposed issues in addition to those already designated for hearing, and must be accompanied by the affidavit of a person with knowledge as to the facts set forth in the petition. The presiding officer, in his or her discretion, may grant or deny such petition or may permit intervention by such persons limited to a particular stage of the proceeding.
(c) Any person desiring to file a petition for leave to intervene later than 30 days after the publication in the Federal Register of the full text or a summary of the order designating the matter for hearing or any substantial amendment thereto shall set forth the interest of petitioner in the proceeding, show how such petitioner's participation will assist the Commission in the determination of the issues in question, must set forth any proposed issues in addition to those already designated for hearing, and must set forth reasons why it was not possible to file a petition within the time prescribed by paragraphs (a) and (b) of this section. If, in the opinion of the presiding officer, good cause is shown for the delay in filing, the presiding officer may in his or her discretion grant such petition or may permit intervention limited to particular issues or to a particular stage of the proceeding.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
33. Amend § 1.225 by revising paragraphs (b) and (c) to read as follows:
(b) No persons shall be precluded from giving any relevant, material, and competent testimony because they lack a sufficient interest to justify their intervention as parties in the matter.
(c) No communication will be considered in determining the merits of any matter unless it has been received into evidence. The admissibility of any communication shall be governed by the applicable rules of evidence in § 1.351, and no communication shall be admissible on the basis of a stipulation unless Commission counsel as well as counsel for all of the parties shall join in such stipulation.
34. Revise § 1.227 to read as follows:
The Commission, upon motion or upon its own motion, may, where such action will best conduce to the proper dispatch of business and to the ends of justice, consolidate in a hearing proceeding any cases that involve the same applicant or substantially the same issues, or that present conflicting claims.
35. Amend § 1.229 by:
a. Revising paragraphs (a) and (b);
b. Removing paragraph (e); and
c. Redsignating paragraph (f) as paragraph (e) and revising it.
The revisions read as follows:
(a) A motion to enlarge, change or delete the issues may be filed by any party to a hearing proceeding. Except as provided for in paragraph (b) of this section, such motions must be filed within 15 days after the full text or a summary of the order designating the case for hearing has been published in the Federal Register.
(b)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer, such motions shall be filed within 15 calendar days after the deadline for submitting written appearances pursuant to § 1.221(f), 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 § 1.223).
(2) Any person desiring to file a motion to modify the issues after the expiration of periods specified in paragraphs (a) and (b)(1) of this section shall set forth the reason why it was not possible to file the motion within the prescribed period. Except as provided in paragraph (c) of this section, the motion will be granted only if good cause is shown for the delay in filing. Motions for modifications of issues which are based on new facts or newly discovered facts shall be filed within 15 days after such facts are discovered by the moving party.
(e) In any case in which the presiding officer grants a motion to enlarge the issues to inquire into allegations that an applicant made misrepresentations to the Commission or engaged in other misconduct during the application process, the enlarged issues include notice that, after hearings on the enlarged issue and upon a finding that the alleged misconduct occurred and warrants such penalty, in addition to or in lieu of denying the application, the applicant may be liable for a forfeiture of up to the maximum statutory amount. See 47 U.S.C. 503(b)(2)(A).
36. Revise § 1.241 to read as follows:
(a) Hearing proceedings will be conducted by a presiding officer. The designated presiding officer will be identified in the order designating a matter for hearing. Only the Commission, one or more commissioners, or an administrative law judge designated pursuant to 5 U.S.C. 3105 may be designated as a presiding officer. Unless otherwise stated, the term presiding officer will include the Commission when the Commission designates itself to preside over a hearing proceeding.
(b) If a presiding officer becomes unavailable during the course of a hearing proceeding, another presiding officer will be designated.
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
37. Add § 1.242 to read as follows:
When the Commission designates itself as the presiding officer in a hearing proceeding, it may delegate authority to a case manager to develop the record in a written hearing (see §§ 1.370 through 1.377). The case manager must be a staff attorney who qualifies as a neutral under 5 U.S.C. 571 and 573. The Commission shall not designate any of the following persons to serve as case manager in a case, and they may not advise or assist the case manager: Staff who participated in identifying the specific issues designated for hearing; staff who have taken or will take an active part in investigating, prosecuting, or advocating in the case; or staff who are expected to investigate and act upon petitions to deny (including challenges thereto). A case manager shall have authority to perform any of the functions generally performed by the presiding officer, except that a case manager shall have no authority to resolve any new or novel issues, to issue an order on the merits resolving any issue designated for hearing in a case, to issue an order on the merits of any motion for summary decision filed under § 1.251, or to perform any other functions that the Commission reserves to itself in the order appointing a case manager.
38. Amend § 1.243 by revising the introductory text, paragraphs (g), (i) through (l), adding paragraphs (m) and (n), and revising the authority citation to read as follows:
From the time the presiding officer is designated until issuance of the presiding officer's decision or the transfer of the proceeding to the Commission or to another presiding officer, the presiding officer shall have such authority as granted by law and by the provisions of this chapter, including authority to:
(g) Require the filing of memoranda of law and the presentation of oral argument with respect to any question of law upon which the presiding officer or the Commission is required to rule during the course of the hearing proceeding;
(i) Dispose of procedural requests and ancillary matters, as appropriate;
(j) Take actions and make decisions in conformity with governing law;
(k) Act on motions to enlarge, modify or delete the hearing issues;
(l) Act on motions to proceed in forma pauperis pursuant to § 1.224;
(m) Decide a matter upon the existing record or request additional information from the parties; and
(n) Issue such orders and conduct such proceedings as will best conduce to the proper dispatch of business and the ends of justice.
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
39. Revise § 1.244 to read as follows:
(a) Parties may request that the presiding officer appoint a settlement officer to facilitate the resolution of the case by settlement.
(b) Where all parties in a case agree that such procedures may be beneficial, such requests may be filed with the presiding officer no later than 15 days prior to the date scheduled for the commencement of hearings or, in hearing proceedings conducted pursuant to §§ 1.370 through 1.377, no later than 15 days before the date set as the deadline for filing the affirmative case. The presiding officer shall suspend the procedural dates in the case pending action upon such requests.
(c) If, in the discretion of the presiding officer, it appears that the appointment of a settlement officer will facilitate the settlement of the case, the presiding officer shall appoint a “neutral” as defined in 5 U.S.C. 571 and 573 to act as the settlement officer.
(1) The parties may request the appointment of a settlement officer of their own choosing so long as that person is a “neutral” as defined in 5 U.S.C. 571 and 573.
(2) The appointment of a settlement officer in a particular case is subject to the approval of all the parties in the proceeding.
(3) Neither the Commission, nor any sitting members of the Commission, nor the presiding officer shall serve as the settlement officer in any case.
(4) Other members of the Commission's staff who qualify as neutrals may be appointed as settlement officers. The presiding officer shall not appoint a member of the Commission's staff as a settlement officer in any case if the staff member's duties include, or have included, drafting, reviewing, and/or recommending actions on the merits of the issues designated for hearing in that case.
(d) The settlement officer shall have the authority to require parties to submit their written direct cases for review. The settlement officer may also meet with the parties and/or their counsel, individually and/or at joint conferences, to discuss their cases and the cases of their competitors. All such meetings will be off-the-record, and the settlement officer may express an opinion as to the relative merit of the parties' positions and recommend possible means to resolve the proceeding by settlement. The proceedings before the settlement officer shall be subject to the confidentiality provisions of 5 U.S.C. 574. Moreover, no statements, offers of settlement, representations or concessions of the parties or opinions expressed by the settlement officer will be admissible as evidence in any Commission proceeding.
40. Amend § 1.245 by revising paragraphs (a), (b)(1) through (3), and the authority citation to read as follows:
(a) In the event that a presiding officer (other than the Commission) deems himself or herself disqualified and desires to withdraw from the case, the presiding officer shall immediately so notify the Commission.
(b) * * *
(1) The person seeking disqualification shall file with the presiding officer an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification.
(2) The presiding officer may file a response to the affidavit; and if the presiding officer believes he or she is not disqualified, he or she shall so rule and continue with the hearing proceeding.
(3) The person seeking disqualification may appeal a ruling denying the request for withdrawal of the presiding officer, and, in that event, shall do so within five days of release of the presiding officer's ruling. Unless an appeal of the ruling is filed at this time, the right to request withdrawal of the presiding officer shall be deemed waived.
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
41. Revise § 1.248 to read as follows:
(a) The presiding officer may direct the parties or their attorneys to appear at a specified time and place for a status conference during the course of a hearing proceeding, or to submit suggestions in writing, for the purpose of considering, among other things, the matters set forth in paragraph (c) of this section. Any party may request a status conference at any time after release of the order designating a matter for hearing. During a status conference, the presiding officer may issue rulings regarding matters relevant to the conduct of the hearing proceeding including, inter alia, procedural matters, discovery, and the submission of briefs or evidentiary materials.
(b) The presiding officer shall schedule an initial status conference promptly after written appearances have been submitted under § 1.91 or § 1.221. At or promptly after the initial status conference, the presiding officer shall adopt a schedule to govern the hearing proceeding. If the Commission designated a matter for hearing on a written record under §§ 1.370 through 1.376, the scheduling order shall include a deadline for filing a motion to request an oral hearing in accordance with § 1.376. If the Commission did not designate the matter for hearing on a written record, the scheduling order shall include a deadline for filing a motion to conduct the hearing on a written record. Except as circumstances otherwise require, the presiding officer shall allow a reasonable period prior to commencement of the hearing for the orderly completion of all prehearing procedures, including discovery, and for the submission and disposition of all motions.
(c) In status conferences, the following matters, among others, may be considered:
(1) Clarifying, amplifying, or narrowing issues designated for hearing;
(2) Scheduling;
(3) Admission of facts and of the genuineness of documents (see § 1.246), and the possibility of stipulating with respect to facts;
(4) Discovery;
(5) Motions;
(6) Hearing procedure;
(7) Settlement (see § 1.93); and
(8) Such other matters that may aid in resolution of the issues designated for hearing.
(d) Status conferences may be conducted in person or by telephone conference call or similar technology, at the discretion of the presiding officer. An official transcript of all status conferences shall be made unless the presiding officer and the parties agree to forego a transcript, in which case any rulings by the presiding officer during the status conference shall be promptly memorialized in writing.
(e) The failure of any attorney or party, following reasonable notice, to appear at a scheduled status conference may be deemed a waiver by that party of its rights to participate in the hearing proceeding and shall not preclude the presiding officer from conferring with parties or counsel present.
42. Revise § 1.249 to read as follows:
The presiding officer shall enter upon the record a statement reciting all actions taken at a status conference convened under § 1.248 and incorporating into the record all of the stipulations and agreements of the parties which were approved by the presiding officer, and any special rules which the presiding officer may deem necessary to govern the course of the proceeding.
43. Revise § 1.250 to read as follows:
For provisions relating to prehearing discovery and preservation of admissible evidence in hearing proceedings under this subpart B, see §§ 1.311 through 1.325.
44. Amend § 1.251 by revising paragraphs (a) and (d) through (f) to read as follows:
(a)(1) Any party to an adjudicatory proceeding may move for summary decision of all or any of the issues designated for hearing. The motion shall be filed at least 20 days prior to the date set for commencement of the hearing or, in hearing proceedings conducted pursuant to §§ 1.370 through 1.377, at least 20 days before the date that the presiding officer sets as the deadline for filing the affirmative case. See § 1.372. The party filing the motion may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the presiding officer, that there is no genuine issue of material fact for determination in the hearing proceeding.
(2) A party may file a motion for summary decision after the deadlines in paragraph (a)(1) of this section only with the presiding officer's permission, or upon the presiding officer's invitation. No appeal from an order granting or denying a request for permission to file a motion for summary decision shall be allowed. If the presiding officer authorizes a motion for summary decision after the deadlines in paragraph (a)(1) of this section, proposed findings of fact and conclusions of law on those issues which the moving party believes can be resolved shall be attached to the motion, and any other party may file findings of fact and conclusions of law as an attachment to pleadings filed by the party pursuant to paragraph (b) of this section.
(3) Motions for summary decision should be addressed to the Commission in any hearing proceeding in which the Commission is the presiding officer and it has appointed a case manager pursuant to § 1.242. The Commission, in its discretion, may defer ruling on any such motion until after the case manager has certified the record for decision by the Commission pursuant to § 1.377.
(d) The presiding officer may, in his or her discretion, set the matter for argument and may call for the submission of proposed findings, conclusions, briefs or memoranda of law. The presiding officer, giving appropriate weight to the nature of the proceeding, the issue or issues, the proof, and the need for cross-examination, if any, may grant a motion for summary decision to the extent that the pleadings, affidavits, materials obtained by discovery or otherwise, admissions, or matters officially noticed, show that there is no genuine issue as to any material fact and that a party is otherwise entitled to summary decision. If it appears from the affidavits of a party opposing the motion that the party cannot, for good cause shown, present by affidavit or otherwise facts essential to justify the party's opposition, the presiding officer may deny the motion, may order a continuance to permit affidavits to be obtained or discovery to be had, or make such other order as is just.
(e) If all of the issues (or a dispositive issue) are determined on a motion for summary decision, the hearing proceeding shall be terminated. When a presiding officer (other than the Commission) issues a Summary Decision, it is subject to appeal or review in the same manner as an Initial Decision. See §§ 1.271 through 1.282. If some of the issues only (including no dispositive issue) are decided on a motion for summary decision, or if the motion is denied, the presiding officer will issue a memorandum opinion and order, interlocutory in character, and the hearing proceeding will continue on the remaining issues. Appeal from interlocutory rulings is governed by § 1.301.
(f) The presiding officer may take any action deemed necessary to assure that summary decision procedures are not abused. The presiding officer may rule in advance of a motion that the proceeding is not appropriate for summary decision, and may take such other measures as are necessary to prevent any unwarranted delay.
(1) Should it appear to the satisfaction of the presiding officer that a motion for summary decision has been presented in bad faith or solely for the purpose of delay, or that such a motion is patently frivolous, the presiding officer will enter a determination to that effect upon the record.
(2) If, on making such determination, the presiding officer concludes that the facts warrant disciplinary action against an attorney, the matter, together with any findings and recommendations, will be referred to the Commission for consideration under § 1.24.
(3) If, on making such determination, the presiding officer concludes that the facts warrant a finding of bad faith on the part of a party to the proceeding, the presiding officer will certify the matter to the Commission, with findings and recommendations, for a determination as to whether the facts warrant the addition of an issue to the hearing proceeding as to the character qualifications of that party.
45. Revise § 1.253 to read as follows:
The presiding officer shall specify the time and place of oral hearings. All oral hearings will take place at Commission Headquarters unless the presiding officer designates another location.
46. Revise § 1.254 to read as follows:
Any hearing upon an application shall be a full hearing proceeding in which the applicant and all other parties in interest shall be permitted to participate but in which both the burden of proceeding with the introduction of evidence upon any issue specified by the Commission, as well as the burden of proof upon all such issues, shall be upon the applicant except as otherwise provided in the order of designation.
(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)
47. Remove and reserve § 1.258.
48. Remove and reserve § 1.260.
49. Revise § 1.261 to read as follows:
At any time during the course of the proceeding, or as directed by the presiding officer, but not later than 10 days after the transmission to the parties of the transcript of any oral conference or hearing, any party to the proceeding may file with the presiding officer a motion requesting corrections to the transcript, which motion shall be accompanied by proof of service thereof upon all other parties to the proceeding. Within 5 days after the filing of such a motion, other parties may file a pleading in support of or in opposition to such motion. Thereafter, the presiding officer shall, by order, specify the corrections to be made in the transcript, and a copy of the order shall be served upon all parties and made a part of the record. The presiding officer may sua sponte specify corrections to be made in the transcript on 5 days' notice.
50. Amend § 1.263 by revising paragraph (a) and the authority citation to read as follows:
(a) The presiding officer may direct any party to file proposed findings of fact and conclusions, briefs, or memoranda of law. If the presiding officer does not so order, any party to the proceeding may seek leave to file proposed findings of fact and conclusions, briefs, or memoranda of law. Such proposed findings of fact, conclusions, briefs, and memoranda of law shall be filed within the time prescribed by the presiding officer.
(5 U.S.C. 557; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
51. Add § 1.265 to read as follows:
At the conclusion of hearing proceedings, the presiding officer shall promptly close the record after the parties have submitted their evidence, filed any proposed findings and conclusions under § 1.263, and submitted any other information required by the presiding officer. After the record is closed, it shall be certified by the presiding officer and filed in the Office of the Secretary. Notice of such certification shall be served on all parties to the proceedings.
52. Amend § 1.267 by revising paragraphs (a) and (c) to read as follows:
(a) Except as provided in §§ 1.94, 1.251, and 1.274, when the proceeding is terminated on motion, or when the presiding officer is the Commission, the presiding officer shall prepare an initial (or recommended) decision, which shall be transmitted to the Secretary of the Commission. In the case of rate making proceedings conducted under sections 201-205 of the Communications Act, the presumption shall be that the presiding officer shall prepare an initial or recommended decision. The Secretary will make the decision public immediately and file it in the docket of the case.
(c) When the Commission is not the presiding officer, the authority of the presiding officer over the proceedings shall cease when the presiding officer has filed an Initial or Recommended Decision, or if it is a case in which the presiding officer is to file no decision, when they have certified the case for decision: Provided, however, That the presiding officer shall retain limited jurisdiction over the proceeding for the purpose of effecting certification of the record and corrections to the transcript, as provided in §§ 1.265 and 1.261, respectively, and for the purpose of ruling initially on applications for awards of fees and expenses under the Equal Access to Justice Act.
53. Revise § 1.273 to read as follows:
When the Commission serves as the presiding officer, it will not issue an initial or recommended decision. When the Commission is not the presiding officer, at any time before the record is closed all parties to the proceeding may agree to waive an initial or recommended decision, and may request that the Commission issue a final decision or order in the case. If the Commission has directed that its review function in the case be performed by a commissioner or a panel of commissioners, the request shall be directed to the appropriate review authority. The Commission or such review authority may in its discretion grant the request, in whole or in part, if such action will best conduce to the proper dispatch of business and to the ends of justice.
54. Revise § 1.274 to read as follows:
(a) When the Commission is not the presiding officer, and where the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires, the Commission may direct that the record in a pending proceeding be certified to it for decision.
(b) When a presiding officer becomes unavailable to the Commission after the taking of evidence has been concluded, the Commission shall direct that the record be certified to it for decision. In that event, the Commission shall designate a new presiding officer in accordance with § 1.241 for the limited purpose of certifying the record to the Commission.
(c) In all other circumstances when the Commission is not the presiding officer, the presiding officer shall prepare and file an initial or recommended decision, which will be released in accordance with § 1.267.
(d) When a presiding officer becomes unavailable to the Commission after the taking of evidence has commenced but before it has been concluded, the Commission shall designate another presiding officer in accordance with § 1.241 to continue the hearing proceeding. Oral testimony already introduced shall not be reheard unless observation of the demeanor of the witness is essential to the resolution of the case.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)
55. Revise § 1.279 to read as follows:
(a) Upon review of any initial decision, the Commission may, in its discretion, limit the issues to be reviewed to those findings and conclusions to which exceptions have been filed, or to those findings and conclusions specified in the Commission's order of review issued pursuant to § 1.276(b).
(b) No party may file an exception to the presiding officer's ruling that all or part of the hearing be conducted and resolved on a written record, unless that party previously filed an interlocutory motion to request an oral hearing in accordance with § 1.376.
56. Revise § 1.291 to read as follows:
(a)(1) The Commission acts on petitions to amend, modify, enlarge or delete the issues in hearing proceedings which involve rule making matters exclusively.
(2) All other interlocutory matters in hearing proceedings are acted on by the presiding officer.
(3) Each interlocutory pleading shall identify the presiding officer in its caption. Unless the pleading is to be acted upon by the Commission, the presiding officer shall be identified by name.
(b) All interlocutory pleadings shall be submitted in accordance with the provisions of §§ 1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51, and 1.52.
(c)(1) Procedural rules governing interlocutory pleadings are set forth in §§ 1.294 through 1.298.
(2) Rules governing appeal from, and reconsideration of, interlocutory rulings made by the presiding officer are set forth in § 1.301.
(3) Petitions requesting reconsideration of an interlocutory ruling will not be entertained.
(d) No initial decision shall become effective under § 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)
57. Revise § 1.294 to read as follows:
(a) Any party to a hearing proceeding may file an opposition to an interlocutory request filed in that proceeding.
(b) Except as provided in paragraph (c) of this section or as otherwise ordered by the presiding officer, oppositions to interlocutory requests shall be filed within 4 days after the original pleading is filed, and replies to oppositions will not be entertained.
(c) Additional pleadings may be filed only if specifically requested or authorized by the person(s) who is to make the ruling.
58. Amend § 1.298 by revising paragraph (b) to read as follows:
(b) In the discretion of the presiding officer, rulings on interlocutory matters may be made orally to the parties. The presiding officer may, in his or her discretion, state reasons therefor on the record if the ruling is being transcribed, or may promptly issue a written statement of the reasons for the ruling, either separately or as part of an initial decision.
59. Amend § 1.301 by revising the section heading and paragraphs (a), (b), and (c)(1) to read as follows:
(a) Interlocutory rulings which are appealable as a matter of right. Rulings listed in this paragraph are appealable as a matter of right. An appeal from such a ruling may not be deferred and raised as an exception to the initial decision.
(1) If a ruling denies or terminates the right of any person to participate as a party to a hearing proceeding, such person, as a matter of right, may file an appeal from that ruling.
(2) If a ruling requires testimony or the production of documents, over objection based on a claim of privilege, the ruling on the claim of privilege is appealable as a matter of right.
(3) If a ruling denies a motion to disqualify the presiding officer or case manager, the ruling is appealable as a matter of right.
(4) A ruling removing counsel from the hearing is appealable as a matter of right, by counsel on his own behalf or by his client. (In the event of such ruling, the presiding officer will adjourn the hearing proceeding for such period as is reasonably necessary for the client to secure new counsel and for counsel to become familiar with the case).
(b) Other interlocutory rulings. Except as provided in paragraph (a) of this section, appeals from interlocutory rulings shall be filed only if allowed by the presiding officer. Any party desiring to file an appeal shall first file a request for permission to file appeal. The request shall be filed within 5 days after the order is released or (if no written order) after the ruling is made. Pleadings responsive to the request shall be filed only if they are requested by the presiding officer. If the presiding officer made the ruling, the request shall contain a showing that the appeal presents a new or novel question of law or policy and that the ruling is such that error would be likely to require remand should the appeal be deferred and raised as an exception. If a case manager made the ruling, the request shall contain a showing that the appeal presents a question of law or policy that the case manager lacks authority to resolve. The presiding officer shall determine whether the showing is such as to justify an interlocutory appeal and, in accordance with his determination, will either allow or disallow the appeal or modify the ruling. Such ruling is final: Provided, however, That the Commission may, on its own motion, dismiss an appeal allowed under this section on the ground that objection to the ruling should be deferred and raised after the record is certified for decision by the Commission or as an exception to an initial decision.
(1) If an appeal is not allowed, or is dismissed by the Commission, or if permission to file an appeal is not requested, objection to the ruling may be raised after the record is certified for decision by the Commission or on review of the initial decision.
(2) If an appeal is allowed and is considered on its merits, the disposition on appeal is final. Objection to the ruling or to the action on appeal may not be raised after the record is certified for decision by the Commission or on review of the initial decision.
(3) If the presiding officer modifies their initial ruling, any party adversely affected by the modified ruling may file a request for permission to file appeal, pursuant to the provisions of this paragraph.
(c) * * *
(1) Unless the presiding officer orders otherwise, rulings made shall be effective when the order is released or (if no written order) when the ruling is made. The Commission may stay the effect of any ruling that comes before it for consideration on appeal.
60. Amend § 1.302 by revising the section heading to read as follows:
61. Amend § 1.311 by revising the introductory text and paragraphs (a) and (c), removing paragraph (d), and redesignating paragraph (e) as paragraph (d) and revising it.
The revisions read as follows:
Sections 1.311 through 1.325 provide for taking the deposition of any person (including a party), for interrogatories to parties, and for orders to parties relating to the production of documents and things and for entry upon real property. These procedures may be used for the discovery of relevant facts, for the production and preservation of evidence for use in a hearing proceeding, or for both purposes.
(a) Applicability. For purposes of discovery, these procedures may be used in any case of adjudication (as defined in the Administrative Procedure Act) which has been designated for hearing. For the preservation of evidence, they may be used in any case which has been designated for hearing and is conducted under the provisions of this subpart (see § 1.201).
(c) Schedule for use of the procedures. (1) Except as provided by special order of the presiding officer, discovery may be initiated after the initial conference provided for in § 1.248(b) of this part.
(2) In all proceedings, the presiding officer may at any time order the parties or their attorneys to appear at a conference to consider the proper use of these procedures, the time to be allowed for such use, and/or to hear argument and render a ruling on disputes that arise under these rules.
(d) Stipulations regarding the taking of depositions. If all of the parties so stipulate in writing and if there is no interference to the conduct of the proceeding, depositions may be taken before any person, at any time (subject to the limitation below) or place, upon any notice and in any manner, and when so taken may be used like other depositions. A copy of the stipulation shall be filed using the Commission's Electronic Comment Filing System, and a copy of the stipulation shall be served on the presiding officer or case manager at least 3 days before the scheduled taking of the deposition.
62. Add § 1.314 to read as follows:
(a) Any information produced in the course of a hearing proceeding may be designated as confidential by any parties to the proceeding, or third parties, pursuant to § 0.457, § 0.459, or § 0.461 of these rules. Any parties or third-parties asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a confidential designation is claimed. The parties or third parties claiming confidentiality should restrict their designations to encompass only the specific information that they assert is confidential. If a confidential designation is challenged, the party or third party claiming confidentiality shall have the burden of demonstrating, by a preponderance of the evidence, that the materials designated as confidential fall under the standards for nondisclosure enunciated in the FOIA and that the designation is narrowly tailored to encompass only confidential information.
(2) File with the Commission, using the Commission's Electronic Comment Filing System, a public version of the materials that redacts any confidential information and clearly marks each page of the redacted public version with a header stating “Public Version.” The Public Version shall be machine-readable whenever technically possible. Where the document to be filed electronically contains metadata that is confidential or protected from disclosure by a legal privilege (including, for example, the attorney-client privilege), the filer may remove such metadata from the Public Version before filing it electronically.
(3) File an unredacted version of the materials containing confidential information, as directed by the Commission. Each page of the unredacted version shall display a header stating “Confidential Version.” The unredacted version must be filed on the same day as the Public Version.
(4) Serve one copy of the Public Version and one copy of the Confidential Version on the attorney of record for each party to the proceeding or on a party if not represented by an attorney, either by hand delivery, overnight delivery, or email, together with a proof of such service in accordance with the requirements of § 1.47(g). A copy of the Public Version and Confidential Version shall also be served on the presiding officer, as directed by the Commission.
(b) An attorney of record for any party or any party that receives unredacted materials marked as confidential may disclose such materials solely to the following persons, only for use in prosecuting or defending a party to the hearing proceeding, and only to the extent necessary to assist in the prosecution or defense of the case:
(1) Employees of counsel of record representing the parties in the hearing proceeding;
(2) Officers or employees of the receiving party who are directly involved in the prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the parties; and
(4) Court reporters and stenographers in accordance with the terms and conditions of this section.
(c) The individuals identified above in paragraph (b) shall not disclose information designated as confidential to any person who is not authorized under this section to receive such information, and shall not use the information in any activity or function other than the prosecution or defense in the hearing proceeding. Each such individual who is provided access to the information shall sign a declaration or affidavit stating that the individual has personally reviewed the Commission's rules and understands the limitations they impose on the signing party.
(d) Parties may make copies of materials marked confidential solely for use by the Commission or persons designated in paragraph (b) of this section. Each party shall maintain a log recording the number of copies made of all confidential material and the persons to whom the copies have been provided.
(e) The presiding officer may adopt a protective order as appropriate.
(f) Upon final termination of a hearing proceeding, including all appeals and applications for review, the parties shall ensure that all originals and reproductions of any confidential materials, along with the log recording persons who received copies of such materials, shall be provided to the producing party. In addition, upon final termination of the proceeding, any notes or other work product derived in whole or in part from the confidential materials of an opposing or third party shall be destroyed.
63. Amend § 1.315 by revising paragraph (a) introductory text and removing paragraph (e).
The revision reads as follows:
(a) Notice. A party to a hearing proceeding desiring to take the deposition of any person upon oral examination shall give a minimum of 21 days' notice to every other party, to the person to be examined, and to the presiding officer or case manager. A copy of the notice shall be filed with the Secretary of the Commission for inclusion in the Commission's Electronic Comment Filing System. Related pleadings shall be served and filed in the same manner. The notice shall contain the following information:
64. Remove and reserve § 1.316.
65. Amend § 1.319 by revising the first sentence in each of paragraphs (c)(2) and (3) to read as follows:
(c) * * *
(2) If counsel cannot agree on the proper limits of the examination the taking of depositions shall continue on matters not objected to and counsel shall, within 24 hours, either jointly or individually, provide 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.
(3) The presiding officer shall promptly rule upon the question presented or take such other action as may be appropriate under § 1.313, and shall give notice of his ruling, expeditiously, to counsel who submitted statements and to the officer taking the depositions. The presiding officer shall thereafter reduce his ruling to writing.
66. Amend § 1.321 by revising the section heading and paragraphs (b) introductory text and (d)(3) to read as follows:
(b) Except as provided in this paragraph and in § 1.319, objection may be made 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.
(d) * * *
(3) The deposition of any witness, whether or not a party, may be used by any party for any lawful purpose.
67. Amend § 1.323 by revising paragraph (a) introductory text to read as follows:
(a) Interrogatories. Any party may serve upon any other party written interrogatories to be answered in writing by the party served or, if the party served is a public or private corporation, partnership, association, or similar entity, by any officer or agent, who shall furnish such information as is available to the party. Copies of the interrogatories, answers, and all related pleadings shall be filed with the Commission and served on the presiding officer and all other parties to the hearing proceeding.
68. Amend § 1.325 by revising paragraph (a)(1) to read as follows:
(a) * * *
(1) Copies of the request shall be filed with the Commission and served on the presiding officer and all other parties to the hearing proceeding.
69. Revise § 1.331 to read as follows:
Subpenas requiring the attendance and testimony of witnesses, and subpenas requiring the production of any books, papers, schedules of charges, contracts, agreements, and documents relating to any matter under investigation or hearing, may be signed and issued by the presiding officer.
70. Amend § 1.338 by revising paragraph (a) to read as follows:
(a) Subpena forms are available on the Commission's internet site, www.fcc.gov, as FCC Form 766. These forms are to be completed and submitted with any request for issuance of a subpena.
71. Revise § 1.351 to read as follows:
In hearings subject to this subpart B, any oral or documentary evidence may be adduced, but the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence.
72. Revise § 1.362 to read as follows:
After a witness is called and has given direct testimony in an oral hearing, and before he or she is excused, any party may move for the production of any statement of such witness, or part thereof, pertaining to his or her direct testimony, in possession of the party calling the witness, if such statement has been reduced to writing and signed or otherwise approved or adopted by the witness. Such motion shall be directed to the presiding officer. If the party declines to furnish the statement, the testimony of the witness pertaining to the requested statement shall be stricken.
73. Add an undesignated center heading and §§ 1.370 through 1.377 to read as follows:
Hearings on a Written Record
- 1.370
- Purpose.
- 1.371
- General pleading requirements.
- 1.372
- The affirmative case.
- 1.373
- The responsive case.
- 1.374
- The reply case.
- 1.375
- Other written submissions.
- 1.376
- Oral hearing or argument.
- 1.377
- Certification of the written hearing record to the Commission for decision.
Hearings on a Written Record
Hearings under this subpart B that the Commission or one of its Bureaus, acting on delegated authority, determines shall be conducted and resolved on a written record are subject to §§ 1.371 through 1.377. If an order designating a matter for hearing does not specify whether those rules apply to a hearing proceeding, and if the proceeding is not subject to 5 U.S.C. 554, the presiding officer may, in their discretion, conduct and resolve all or part of the hearing proceeding on a written record in accordance with §§ 1.371 through 1.377.
Written hearings shall be resolved on a written record consisting of affirmative case, responsive case, and reply case submissions, along with all associated evidence in the record, including stipulations and agreements of the parties and official notice of a material fact.
(a) All pleadings filed in any proceeding subject to these written hearing rules must be submitted in conformity with the requirements of §§ 1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51(a), and 1.52.
(b) Pleadings must be clear, concise, and direct. All matters should be pleaded fully and with specificity.
(c) Pleadings shall consist of numbered paragraphs and must be supported by relevant evidence. Assertions based on information and belief are prohibited unless made in good faith and accompanied by a declaration or affidavit explaining the basis for the party's belief and why the party could not reasonably ascertain the facts from any other source.
(d) Legal arguments must be supported by appropriate statutory, judicial, or administrative authority.
(e) Opposing authorities must be distinguished.
(f) Copies must be provided of all non-Commission authorities relied upon which are not routinely available in national reporting systems, such as unpublished decisions or slip opinions of courts or administrative agencies. In addition, copies of state authorities relied upon shall be provided.
(g) Parties are responsible for the continuing accuracy and completeness of all information and supporting authority furnished in a pending proceeding. Information submitted, as well as relevant legal authorities, must be current and updated as necessary and in a timely manner before a decision is rendered on the merits.
(h) Pleadings shall identify the name, address, telephone number, and email address for either the filing party's attorney or, where a party is not represented by an attorney, the filing party. Pleadings may be signed by a party's attorney.
(i) Attachments to any pleading shall be Bates-stamped or otherwise identifiable by party and numbered sequentially. Parties shall cite to Bates-stamped or otherwise identifiable page numbers in their pleadings.
(j) Unless a schedule is specified in the order designating a matter for hearing, at the initial status conference under § 1.248(b), the presiding officer shall adopt a schedule for the sequential filing of pleadings required or permitted under these rules.
(k) Pleadings shall be served on all parties to the proceeding in accordance with § 1.211 and shall include a certificate of service. All pleadings shall be served on the presiding officer or case manager, as identified in the caption.
(l) Each pleading must contain a written verification that the signatory has read the submission and, to the best of their knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceeding. If any pleading or other submission is signed in violation of this provision, the Commission may upon motion or upon its own initiative impose appropriate sanctions.
(m) Any party to the proceeding may file a motion seeking waiver of any of the rules governing pleadings in written hearings. Such waiver may be granted for good cause shown.
(n) Any pleading that does not conform with the requirements of the applicable rules may be deemed defective. In such case, the presiding officer may strike the pleading or request that specified defects be corrected and that proper pleadings be filed with the Commission and served on the presiding officer or case manager and all parties within a prescribed time as a condition to being made a part of the record in the proceeding.
(o) Any party that fails to respond to official correspondence, a request for additional information, or an order or directive from the presiding officer or case manager may be subject to appropriate sanctions.
(a) Within 30 days after the completion of the discovery period as determined by the presiding officer, unless otherwise directed by the presiding officer, any party to the proceeding with the burden of proof shall file a pleading entitled “affirmative case” that fully addresses each of the issues designated for hearing. The affirmative case submission shall include:
(1) A statement of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis of each of the issues designated for hearing;
(2) Citation to relevant sections of the Communications Act or Commission regulations or orders; and
(3) The relief sought.
(b) The affirmative case submission shall address all factual and legal questions designated for hearing, and state in detail the basis for the response to each such question. Responses based on information and belief are prohibited unless made in good faith and accompanied by a declaration or affidavit explaining the basis for the party's belief and why the party could not reasonably ascertain the facts. When a party intends in good faith to deny only part of a designated question in the affirmative case, that party shall specify so much of it as is true and shall deny only the remainder.
(c) Failure to address in an affirmative case submission all factual and legal questions designated for hearing may result in inferences adverse to the filing party.
(a) Any other party may file a responsive case submission in the manner prescribed under this section within 30 calendar days of the filing of the affirmative case submission, unless otherwise directed by the presiding officer. The responsive case submission shall include:
(1) A statement of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis of any issues designated for hearing.
(2) Citation to relevant sections of the Communications Act or Commission regulations or orders; and
(3) Any relief sought.
(b) The responsive case submission shall respond specifically to all material allegations made in the affirmative case submission. Every effort shall be made to narrow the issues for resolution by the presiding officer.
(c) Statements of fact or law in an affirmative case filed pursuant to § 1.372 are deemed admitted when not rebutted in a responsive case submission.
(a) Any party who filed an affirmative case may file and serve a reply case submission within 15 days of the filing of any responsive case submission, unless otherwise directed by the presiding officer.
(b) The reply case submission shall contain statements of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis that responds only to the factual allegations and legal arguments made in any responsive case. Other allegations or arguments will not be considered by the presiding officer.
(c) Failure to submit a reply case submission shall not be deemed an admission of any allegations contained in any responsive case.
(a) The presiding officer may require or permit the parties to file other written submissions such as briefs, proposed findings of fact and conclusions of law, or other supplementary documents or pleadings. The presiding officer may limit the scope of any such pleadings to certain subjects or issues.
(b) The presiding officer may require the parties to submit any additional information deemed appropriate for a full, fair, and expeditious resolution of the proceeding.
(a) Notwithstanding any requirement in the designation order that the hearing be conducted and resolved on a written record, a party may file a motion to request an oral hearing pursuant to § 1.291. Any such motion shall be filed after the submission of all the pleadings but no later than the date established in the scheduling order. See §§ 1.248 and 1.372 through 1.374. The motion shall contain a list of genuine disputes as to outcome-determinative facts that the movant contends cannot adequately be resolved on a written record and a list of witnesses whose live testimony would be required to resolve such disputes. The motion also shall contain supporting legal analysis, including citations to relevant authorities and parts of the record. If the presiding officer finds that there is a genuine dispute as to an outcome-determinative fact that cannot adequately be resolved on a written record, the presiding officer shall conduct an oral hearing limited to testimony and cross-examination necessary to resolve that dispute.
(b) The presiding officer may, on his or her own motion following the receipt of all written submissions, conduct an oral hearing to resolve a genuine dispute as to an outcome-determinative fact that the presiding officer finds cannot adequately be resolved on a written record. Any such oral hearing shall be limited to testimony and cross-examination necessary to resolve that dispute.
(c) Oral argument shall be permitted only if the presiding officer determines that oral argument is necessary to resolution of the hearing.
When the Commission is the presiding officer and it has appointed a case manager under § 1.242, the case manager shall certify the record for decision to the Commission promptly after the hearing record is closed. Notice of such certification shall be served on all parties to the proceeding.
Subpart H—Ex Parte Communications
74. Amend § 1.1202 by revising paragraphs (c) and (e) to read as follows:
(c) Decision-making personnel. Any member, officer, or employee of the Commission, or, in the case of a Joint Board, its members or their staffs, who is or may reasonably be expected to be involved in formulating a decision, rule, or order in a proceeding. Any person who has been made a party to a proceeding or who otherwise has been excluded from the decisional process shall not be treated as a decision-maker with respect to that proceeding. Thus, any person designated as part of a separate trial staff shall not be considered a decision-making person in the designated proceeding. Unseparated Bureau or Office staff shall be considered decision-making personnel with respect to decisions, rules, and orders in which their Bureau or Office participates in enacting, preparing, or reviewing. Commission staff serving as the case manager in a hearing proceeding in which the Commission is the presiding officer shall be considered decision-making personnel with respect to that hearing proceeding.
(e) Matter designated for hearing. Any matter that has been designated for hearing before a presiding officer.
Subpart I—Procedures Implementing the National Environment Policy Act of 1969
75. Amend § 1.1319 by revising paragraph (a) to read as follows:
(a) If the action is designated for hearing:
(1) In rendering an initial decision, the presiding officer (other than the Commission) shall use the FEIS in considering the environmental issues, together with all other non-environmental issues.
(2) When the Commission serves as the presiding officer or upon its review of an initial decision, the Commission will consider and assess all aspects of the FEIS and will render its decision, giving due consideration to the environmental and nonenvironmental issues.
Subpart K—Implementation of the Equal Access to Justice Act (EAJA) in Agency Proceedings
76. Amend § 1.1504 by revising paragraph (f) to read as follows:
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the presiding officer, as defined in 47 CFR 1.241, determines that such treatment would be unjust and contrary to the purposes of the EAJA in light of the actual relationship between the affiliated entities. In addition, the presiding officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
77. Amend § 1.1506 by revising paragraph (c) introductory text to read as follows:
(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the presiding officer shall consider the following:
78. Amend § 1.1512 by revising the last sentence of paragraph (a) and by revising paragraph (b) to read as follows:
(a) * * * The presiding officer may require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the presiding officer in a sealed envelope labeled “Confidential Financial Information”, accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1) through (9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on Bureau counsel, but need not be served on any other party to the proceeding. If the presiding officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Commission's established procedures under the Freedom of Information Act, §§ 0.441 through 0.466 of this chapter.
79. Amend § 1.1513 by revising the last sentence to read as follows:
* * * The presiding officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
80. Amend § 1.1514 by revising paragraph (c)(1) to read as follows:
(c) * * *
(1) The date on which an initial decision or other recommended disposition of the merits of the proceeding by a presiding officer (other than the Commission) becomes administratively final;
81. Amend § 1.1522 by revising the second sentence of paragraph (b) to read as follows:
(b) * * * The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the presiding officer upon request by Bureau counsel and the applicant.
82. Amend § 1.1524 by revising the second sentence to read as follows:
* * * A commenting party may not participate further in proceedings on the application unless the presiding officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
83. Amend § 1.1525 by revising the last sentence to read as follows:
* * * If a presiding officer (other than the Commission) approves the proposed settlement, it shall be forwarded to the Commission for final determination. If the Commission is the presiding officer, it shall approve or deny the proposed settlement.
84. Amend § 1.1526 by revising the second sentence of paragraph (a) and revising paragraph (b) to read as follows:
(a) * * * However, on request of either the applicant or Bureau counsel, or on her own initiative, the presiding officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than excessive demand or substantial justification, an evidentiary hearing. * * *
(b) A request that the presiding officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
85. Amend § 1.1527 by revising the section heading and the first sentence and adding a new last sentence to read as follows:
A presiding officer (other than the Commission) shall issue an initial decision on the application as soon as possible after completion of proceedings on the application. * * * When the Commission is the presiding officer, the Commission may, but is not required to, issue an initial or recommended decision.
86. Amend § 1.1528 by revising the last sentence to read as follows:
* * * If review is taken, the Commission will issue a final decision on the application or remand the application to the presiding officer (other than the Commission) for further proceedings.
Subpart L—Random Selection Procedures for Mass Media Services
87. Amend § 1.1604 by revising paragraphs (b) and (c) to read as follows:
(b) If, after such hearing proceeding as may be necessary, the Commission determines that the “tentative selectee” has met the requirements of § 73.3591(a) it will make the appropriate grant. If the Commission is unable to make such a determination, it shall order that another random selection be conducted from among the remaining mutually exclusive applicants, in accordance with the provisions of this subpart.
(c) If, on the basis of the papers before it, the Commission determines that a substantial and material question of fact exists, it shall designate that question for hearing. Hearing proceedings shall be conducted by a presiding officer. See § 1.241.
PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
88. The authority citation for part 76 continues to read as follows:
89. Amend § 76.7 by revising paragraph (g)(2) to read as follows:
(g) * * *
(2) Before designation for hearing, the staff shall notify, either orally or in writing, the parties to the proceeding of its intent to so designate, and the parties shall be given a period of ten (10) days to elect to resolve the dispute through alternative dispute resolution procedures, or to proceed with an adjudicatory hearing. Such election shall be submitted in writing to the Commission.
90. Amend § 76.1302 by revising paragraph (i)(2) to read as follows:
(i) * * *
(2) For program carriage complaints that the Chief, Media Bureau refers to an administrative law judge for an initial decision, the deadlines set forth in § 0.341(g) of this chapter apply.
[FR Doc. 2020-21090 Filed 10-2-20; 4:15 pm]
BILLING CODE 6712-01-P
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