Procedural Streamlining of Administrative Hearings, 63166-63185 [2020-21090]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Rules and Regulations]
[Pages 63166-63185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21090]



[[Page 63165]]

Vol. 85

Tuesday,

No. 194

October 6, 2020

Part II





Federal Communications Commission





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47 CFR Parts 0, 1 and 76





Procedural Streamlining of Administrative Hearings; Final Rule

Federal Register / Vol. 85 , No. 194 / Tuesday, October 6, 2020 / 
Rules and Regulations

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 76

[EB Docket No. 19-214; FCC 20-125; FRS 17090]


Procedural Streamlining of Administrative Hearings

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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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 [email protected] 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 
[email protected] 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.

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    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

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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

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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

[[Page 63170]]

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

0
1. The authority citation for part 0 is revised to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.

Subpart A--[Amended]

0
2. The authority citation for subpart A is revised to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.


0
3. Amend Sec.  0.5 by revising paragraph (c) to read as follows:


Sec.  0.5   General description of Commission organization and 
operations.

* * * * *
    (c) Delegations of authority to the staff. Pursuant to section 5(c) 
of the Communications Act, the Commission has delegated authority to 
its staff to act on matters which are minor or routine or settled in 
nature and those in which immediate action may be necessary. See 
subpart B of this part. Actions taken under delegated authority are 
subject to review by the Commission, on its own motion or on an 
application for review filed by a person aggrieved by the action. 
Except for the possibility of review, actions taken under delegated 
authority have the same force and effect as actions taken by the 
Commission. The delegation of authority to a staff officer, however, 
does not mean that the staff officer will exercise that authority in 
all matters subject to the delegation. The staff is at liberty to refer 
any matter at any stage to the Commission for action, upon concluding 
that it involves matters warranting the Commission's consideration, and 
the Commission may instruct the staff to do so.
* * * * *

0
4. Amend Sec.  0.51 by adding paragraph (t) to read as follows:


Sec.  0.51   Functions of the Bureau.

* * * * *
    (t) Issue orders revoking a common carrier's operating authority 
pursuant to

[[Page 63171]]

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.

0
5. Amend Sec.  0.91 by adding paragraph (q) to read as follows:


Sec.  0.91   Functions of the Bureau.

* * * * *
    (q) Issue orders revoking a common carrier's operating authority 
pursuant to section 214 of the Act, and issue orders to cease and 
desist such operations, in cases where the presiding officer has issued 
a certification order to the Commission that the carrier has waived its 
opportunity for hearing under that section.

0
6. Amend Sec.  0.111 by revising paragraphs (a)(18) and (b) to read as 
follows:


Sec.  0.111   Functions of the Bureau.

    (a) * * *
    (18) Issue or draft orders taking or recommending appropriate 
action in response to complaints or investigations, including, but not 
limited to, admonishments, damage awards where authorized by law or 
other affirmative relief, notices of violation, notices of apparent 
liability and related orders, notices of opportunity for hearing 
regarding a potential forfeiture, hearing designation orders, orders 
designating licenses or other authorizations for a revocation hearing 
and consent decrees. Issue or draft appropriate orders after a hearing 
proceeding has been terminated by the presiding officer on the basis of 
waiver. Issue or draft appropriate interlocutory orders and take or 
recommend appropriate action in the exercise of its responsibilities.
* * * * *
    (b) Serve as a party in hearing proceedings conducted pursuant to 
47 CFR part 1, subpart B.
* * * * *

0
7. Revise Sec.  0.151 to read as follows:


Sec.  0.151   Functions of the Office.

    The Office of Administrative Law Judges consists of as many 
Administrative Law Judges qualified and appointed pursuant to the 
requirements of 5 U.S.C. 3105 as the Commission may find necessary. It 
is responsible for hearing and conducting adjudicatory cases designated 
for hearing other than those designated to be heard by the Commission 
en banc, or by one or more commissioners. The Office of Administrative 
Law Judges is also responsible for conducting such other hearing 
proceedings as the Commission may assign.

Subpart B--[Amended]

0
8. The authority citation for subpart B is revised to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409.


0
9. Amend Sec.  0.201 by revising paragraph (a)(2) and removing the note 
to paragraph (a)(2).
    The revision reads as follows:


Sec.  0.201   General provisions.

    (a) * * *
    (2) Delegations to rule on interlocutory matters in hearing 
proceedings. Delegations in this category are made to any person, other 
than the Commission, designated to serve as the presiding officer in a 
hearing proceeding pursuant to Sec.  1.241.
* * * * *

0
10. Revise Sec.  0.341 to read as follows:


Sec.  0.341   Authority of Administrative Law Judges and other 
presiding officers.

    (a) After a presiding officer (other than the Commission) has been 
designated to conduct a hearing proceeding, and until he or she has 
issued an initial decision or certified the record to the Commission 
for decision, or the proceeding has been transferred to another 
presiding officer, all motions, petitions and other matters that may 
arise during the proceeding shall be acted upon by such presiding 
officer, except those which are to be acted upon by the Commission. See 
Sec.  1.291(a)(1) of this chapter.
    (b) Any question which would be acted upon by the presiding officer 
if it were raised by the parties to the proceeding may be raised and 
acted upon by the presiding officer on his or her own motion.
    (c) Any question which would be acted upon by the presiding officer 
(other than the Commission) may be certified to the Commission on the 
presiding officer's own motion.
    (d) Except for actions taken during the course of a hearing and 
upon the record thereof, actions taken by a presiding officer pursuant 
to the provisions of this section shall be recorded in writing and 
filed in the official record of the proceeding.
    (e) The presiding officer may waive any rule governing the conduct 
of Commission hearings upon motion or upon the presiding officer's own 
motion for good cause, subject to the provisions of the Administrative 
Procedure Act and the Communications Act of 1934, as amended.
    (f) The presiding officer may issue such orders and conduct such 
proceedings as will best conduce to the proper dispatch of business and 
the ends of justice.
    (g)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer for an initial decision, the presiding officer shall 
release an initial decision in compliance with one of the following 
deadlines:
    (i) 240 calendar days after a party informs the presiding officer 
that it elects not to pursue alternative dispute resolution as set 
forth in Sec.  76.7(g)(2) of this chapter; or
    (ii) If the parties have mutually elected to pursue alternative 
dispute resolution pursuant to Sec.  76.7(g)(2) of this chapter, within 
240 calendar days after the parties inform the presiding officer that 
they have failed to resolve their dispute through alternative dispute 
resolution.
    (2) The presiding officer may toll these deadlines under the 
following circumstances:
    (i) If the complainant and defendant jointly request that the 
presiding officer toll these deadlines in order to pursue settlement 
discussions or alternative dispute resolution or for any other reason 
that the complainant and defendant mutually agree justifies tolling; or
    (ii) If complying with the deadline would violate the due process 
rights of a party or would be inconsistent with fundamental fairness; 
or
    (iii) In extraordinary situations, due to a lack of adjudicatory 
resources available at the time.

0
11. Revise Sec.  0.347 to read as follows:


Sec.  0.347   Record of actions taken.

    The record of actions taken by a presiding officer, including 
initial and recommended decisions and actions taken pursuant to Sec.  
0.341, is available through the Commission's Electronic Comment Filing 
System (ECFS). ECFS serves as the repository for records in the 
Commission's docketed proceedings from 1992 to the present. The public 
may use ECFS to retrieve all such records, as well as selected pre-1992 
documents. The Office of the Secretary maintains copies of documents 
that include nonpublic information.


Sec.  Sec.  0.351 and 0.357   [Removed and Reserved]

0
12. Remove the undesignated center heading ``Chief Administrative Law 
Judge'' remove and reserve Sec. Sec.  0.351 and 0.357.

[[Page 63172]]

PART 1--PRACTICE AND PROCEDURE

0
13. The authority citation for part 1 continues to read as follows:

    Authority:  47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461, unless 
otherwise noted.

Subpart A--General Rules of Practice and Procedure

0
14. Amend Sec.  1.21 by revising paragraph (d) to read as follows:


Sec.  1.21   Parties.

* * * * *
    (d) Except as otherwise expressly provided in this chapter, a duly 
authorized corporate officer or employee may act for the corporation in 
any matter which has not been designated for hearing and, in the 
discretion of the presiding officer, may appear and be heard on behalf 
of the corporation in a hearing proceeding.

0
15. Amend Sec.  1.49 by revising paragraphs (f)(1)(vii) and (viii) and 
adding paragraph (f)(1)(ix) to read as follows:


Sec.  1.49   Specifications as to pleadings and documents.

* * * * *
    (f)(1) * * *
    (vii) Domestic section 214 discontinuance applications pursuant to 
Sec.  63.63 and/or Sec.  63.71 of this chapter;
    (viii) Notices of network change and associated certifications 
pursuant to Sec.  51.325 et seq. of this chapter; and
    (ix) Hearing proceedings under Sec. Sec.  1.201 through 1.377.
* * * * *

0
16. Amend Sec.  1.51 by revising paragraph (a) to read as follows:


Sec.  1.51   Submission of pleadings, briefs, and other papers.

    (a) In hearing proceedings, all pleadings, letters, documents, or 
other written submissions, shall be filed using the Commission's 
Electronic Comment Filing System, excluding confidential material as 
set forth in Sec.  1.314 of these rules. 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.
* * * * *

0
17. Amend Sec.  1.80 by revising paragraphs (g) introductory text and 
(g)(1) and (3) to read as follows:


Sec.  1.80   Forfeiture proceedings.

* * * * *
    (g) Notice of opportunity for hearing. The procedures set out in 
this paragraph apply only when a formal hearing under section 
503(b)(3)(A) of the Communications Act is being held to determine 
whether to assess a forfeiture penalty.
    (1) Before imposing a forfeiture penalty, the Commission may, in 
its discretion, issue a notice of opportunity for hearing. The formal 
hearing proceeding shall be conducted by an administrative law judge 
under procedures set out in subpart B of this part, including 
procedures for appeal and review of initial decisions. A final 
Commission order assessing a forfeiture under the provisions of this 
paragraph is subject to judicial review under section 402(a) of the 
Communications Act.
* * * * *
    (3) Where the possible assessment of a forfeiture is an issue in a 
hearing proceeding to determine whether a pending application should be 
granted, and the application is dismissed pursuant to a settlement 
agreement or otherwise, and the presiding judge has not made a 
determination on the forfeiture issue, the presiding judge shall 
forward the order of dismissal to the attention of the full Commission. 
Within the time provided by Sec.  1.117, the Commission may, on its own 
motion, proceed with a determination of whether a forfeiture against 
the applicant is warranted. If the Commission so proceeds, it will 
provide the applicant with a reasonable opportunity to respond to the 
forfeiture issue (see paragraph (f)(3) of this section) and make a 
determination under the procedures outlined in paragraph (f) of this 
section.
* * * * *

0
18. Revise Sec.  1.85 to read as follows:


Sec.  1.85   Suspension of operator licenses.

    Whenever grounds exist for suspension of an operator license, as 
provided in Sec.  303(m) of the Communications Act, the Chief of the 
Wireless Telecommunications Bureau, with respect to amateur and 
commercial radio operator licenses, may issue an order suspending the 
operator license. No order of suspension of any operator's license 
shall take effect until 15 days' notice in writing of the cause for the 
proposed suspension has been given to the operator licensee, who may 
make written application to the Commission at any time within the said 
15 days for a hearing upon such order. The notice to the operator 
licensee shall not be effective until actually received by the operator 
licensee, and from that time the operator licensee shall have 15 days 
in which to mail the said application. In the event that physical 
conditions prevent mailing of the application before the expiration of 
the 15-day period, the application shall then be mailed as soon as 
possible thereafter, accompanied by a satisfactory explanation of the 
delay. Upon receipt by the Commission of such application for hearing, 
said order of suspension shall be designated for hearing and said 
suspension shall be held in abeyance until the conclusion of the 
hearing proceeding. If the license is ordered suspended, the operator 
shall send his, her, or its operator license to the Mobility Division, 
Wireless Telecommunications Bureau, in Washington, DC, on or before the 
effective date of the order, or, if the effective date has passed at 
the time notice is received, the license shall be sent to the 
Commission forthwith.

0
19. Amend Sec.  1.87 by revising paragraphs (e), (f), and (g) 
introductory text to read as follows:


Sec.  1.87   Modification of license or construction permit on motion 
of the Commission.

* * * * *
    (e) In any case where a hearing proceeding is conducted pursuant to 
the provisions of this section, both the burden of proceeding with the 
introduction of evidence and the burden of proof shall be upon the 
Commission except that, with respect to any issue that pertains to the 
question of whether the proposed action would modify the license or 
permit of a person filing a protest pursuant to paragraph (c) of this 
section, such burdens shall be as described by the Commission.
    (f) In order to 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:
* * * * *

0
20. Amend Sec.  1.91 by revising paragraphs (b), (c), and (d) to read 
as follows:

[[Page 63173]]

Sec.  1.91   Revocation and/or cease and desist proceedings; hearings.

* * * * *
    (b) An order to show cause why an order of revocation and/or a 
cease and desist order should not be issued will designate for hearing 
the matters with respect to which the Commission is inquiring and will 
call upon the person to whom it is directed (the respondent) to file 
with the Commission a written appearance stating that the respondent 
will present evidence upon the matters specified in the order to show 
cause and, if required, appear before a presiding officer at a time and 
place to be determined, but no earlier than thirty days after the 
receipt of such order. However, if safety of life or property is 
involved, the order to show cause may specify a deadline of less than 
thirty days from the receipt of such order.
    (c) To avail themselves of such opportunity for a hearing, 
respondents, personally or by counsel, shall file with the Commission, 
within twenty days of the mailing of the order or such shorter period 
as may be specified therein, a written appearance stating that they 
will present evidence on the matters specified in the order and, if 
required, appear before the presiding officer at a time and place to be 
determined. The presiding officer in his or her discretion may accept a 
late-filed appearance. However, a written appearance tendered after the 
specified time has expired will not be accepted unless accompanied by a 
petition stating with particularity the facts and reasons relied on to 
justify such late filing. Such petition for acceptance of a late-filed 
appearance will be granted only if the presiding officer determines 
that the facts and reasons stated therein constitute good cause for 
failure to file on time.
    (d) Hearing proceedings on the matters specified in such orders to 
show cause shall accord with the practice and procedure prescribed in 
this subpart and subpart B of this part, with the following exceptions:
    (1) In all such revocation and/or cease and desist hearings, the 
burden of proceeding with the introduction of evidence and the burden 
of proof shall be upon the Commission; and
    (2) The Commission may specify in a show cause order, when the 
circumstances of the proceeding require expedition, a time less than 
that prescribed in Sec. Sec.  1.276 and 1.277 within which the initial 
decision in the proceeding shall become effective, exceptions to such 
initial decision must be filed, parties must file requests for oral 
argument, and parties must file notice of intention to participate in 
oral argument.
* * * * *

0
21. Amend Sec.  1.92 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  1.92   Revocation and/or cease and desist proceedings; after 
waiver of hearing.

    (a) After the issuance of an order to show cause, pursuant to Sec.  
1.91, designating a matter for hearing, the occurrence of any one of 
the following events or circumstances will constitute a waiver of such 
hearing and the proceeding thereafter will be conducted in accordance 
with the provisions of this section.
    (1) The respondent fails to file a timely written appearance as 
prescribed in Sec.  1.91(c) indicating that the respondent will present 
evidence on the matters specified in the order and, if required by the 
order, that the respondent will appear before the presiding officer.
    (2) The respondent, having filed a timely written appearance as 
prescribed in Sec.  1.91(c), fails in fact to present evidence on the 
matters specified in the order or appear before the presiding officer 
in person or by counsel at the time and place duly scheduled.
    (3) The respondent files with the Commission, within the time 
specified for a written appearance in Sec.  1.91(c), a written 
statement expressly waiving his or her rights to a hearing.
* * * * *
    (c) Whenever a hearing is waived by the occurrence of any of the 
events or circumstances listed in paragraph (a) of this section, the 
presiding officer shall, at the earliest practicable date, issue an 
order reciting the events or circumstances constituting a waiver of 
hearing and terminating the hearing proceeding. A presiding officer 
other than the Commission also shall certify the case to the 
Commission. Such order shall be served upon the respondent.
* * * * *

0
22. Amend Sec.  1.93 by revising paragraph (a) to read as follows:


Sec.  1.93   Consent orders.

    (a) As used in this subpart, a ``consent order'' is a formal decree 
accepting an agreement between a party to an adjudicatory hearing 
proceeding held to determine whether that party has violated statutes 
or Commission rules or policies and the appropriate operating Bureau, 
with regard to such party's future compliance with such statutes, rules 
or policies, and disposing of all issues on which the proceeding was 
designated for hearing. The order is issued by the officer designated 
to preside at the hearing proceeding.
* * * * *

0
23. Amend Sec.  1.94 by revising paragraphs (d) and (g) to read as 
follows:


Sec.  1.94   Consent order procedures.

* * * * *
    (d) If agreement is reached, it shall be submitted to the presiding 
officer, who shall either sign the order, reject the agreement, or 
suggest to the parties that negotiations continue on such portion of 
the agreement as the presiding officer considers unsatisfactory or on 
matters not reached in the agreement. If the presiding officer signs 
the consent order, the record shall be closed. If the presiding officer 
rejects the agreement, the hearing proceeding shall continue. If the 
presiding officer suggests further negotiations and the parties agree 
to resume negotiating, the presiding officer may, in his or her 
discretion, decide whether to hold the hearing proceeding in abeyance 
pending the negotiations.
* * * * *
    (g) Consent orders, pleadings relating thereto, and Commission 
orders with respect thereto shall be served on parties to the 
proceeding. Public notice will be given of orders issued by the 
Commission or by the presiding officer. Negotiating papers constitute 
work product, are available to parties participating in negotiations, 
but are not routinely available for public inspection.

0
24. Amend Sec.  1.104 by revising paragraph (a) to read as follows:


Sec.  1.104   Preserving the right of review; deferred consideration of 
application for review.

    (a) The provisions of this section apply to all final actions taken 
pursuant to delegated authority, including final actions taken by 
members of the Commission's staff on nonhearing matters. They do not 
apply to interlocutory actions of a presiding officer in hearing 
proceedings, or to orders designating a matter for hearing issued under 
delegated authority. See Sec. Sec.  1.106(a) and 1.115(e).
* * * * *

0
25. Amend Sec.  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:


Sec.  1.115   Application for review of action taken pursuant to 
delegated authority.

* * * * *
    (d) * * * Except as provided in paragraph (e)(1) of this section, 
replies to oppositions shall be filed within 10

[[Page 63174]]

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., Sec.  1.730) shall be filed 
within 15 days of public notice of the decision, as that date is 
defined in Sec.  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

0
26. Amend Sec.  1.201 by redesignating the note as note 2 to Sec.  
1.201, adding note 1 to Sec.  1.201, and revising the newly 
redesignated note 2 to Sec.  1.201 to read as follows:


Sec.  1.201   Scope.

* * * * *

    Note 1 to Sec.  1.201:  For special provisions relating to 
hearing proceedings under this subpart that the Commission 
determines shall be conducted and resolved on a written record, see 
Sec. Sec.  1.370 through 1.377.


    Note 2 to Sec.  1.201:  For special provisions relating to AM 
broadcast station applications involving other North American 
countries see Sec.  73.23.


0
27. Revise Sec.  1.202 to read as follows:


Sec.  1.202   Official reporter; transcript.

    The Commission will designate an official reporter for the 
recording and transcribing of hearing proceedings as necessary. 
Transcripts will be transmitted to the Secretary for inclusion in the 
Commission's Electronic Comment Filing System.

0
28. Revise Sec.  1.203 to read as follows:


Sec.  1.203   The record.

    The evidence submitted by the parties, together with all papers and 
requests filed in the proceeding and any transcripts, shall constitute 
the exclusive record for decision. Where any decision rests on official 
notice of a material fact not appearing in the record, any party shall 
on timely request be afforded an opportunity to show the contrary.

(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)

0
29. Revise Sec.  1.209 to read as follows:


Sec.  1.209   Identification of responsible officer in caption to 
pleading.

    Each pleading filed in a hearing proceeding shall indicate in its 
caption whether it is to be acted upon by the Commission or, if the 
Commission is not the presiding officer, by the presiding officer. 
Unless it is to be acted upon by the Commission, the presiding officer 
shall be identified by name.

0
30. Add Sec.  1.210 to read as follows:


Sec.  1.210   Electronic filing.

    All pleadings filed in a hearing proceeding, as well as all 
letters, documents, or other written submissions, shall be filed using 
the Commission's Electronic Comment Filing System, excluding 
confidential material as set forth in Sec.  1.314. A courtesy copy of 
all submissions shall be contemporaneously provided to the presiding 
officer, as directed by the Commission.

0
31. Amend Sec.  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:


Sec.  1.221   Notice of hearing; appearances.

* * * * *
    (b) The order designating an application for hearing shall be 
mailed to the applicant and the order, or a summary thereof, shall be 
published in the Federal Register. Reasonable notice of hearing will be 
given to the parties in all proceedings.
    (c) In order to avail themselves of the opportunity to be heard, 
applicants or their attorney shall file, within 20 days of the mailing 
of the order designating a matter for hearing, a written appearance 
stating that the applicant will present evidence on the matters 
specified in the order and, if required by the order, appear before the 
presiding officer at a date and time to be determined. Where an 
applicant fails to file such a written appearance within the time 
specified, or has not filed prior to the expiration of that time a 
petition to dismiss without prejudice, or a petition to accept, for 
good cause shown, such written appearance beyond expiration of said 20 
days, the application will be dismissed with prejudice for failure to 
prosecute.
    (d) The Commission will on its own motion name as parties to the 
hearing proceeding any person found to be a party in interest.
    (e) In order to avail themselves of the opportunity to be heard, 
any persons named as parties pursuant to paragraph (d) of this section 
shall, within 20 days of the mailing of the order designating them as 
parties to a hearing proceeding, file personally or by attorney a 
written appearance that they will present evidence on the matters 
specified in the order and, if required by the order, appear before the 
presiding officer at a date and time to be determined. Any persons so 
named who fail to file this written appearance within the time 
specified, shall, unless good cause for such failure is shown, forfeit 
their hearing rights.
    (f)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer, each party, in person or by attorney, shall file a 
written appearance within five calendar days after the party informs 
the presiding officer that it elects not to pursue alternative dispute 
resolution

[[Page 63175]]

pursuant to Sec.  76.7(g)(2) of this chapter or, if the parties have 
mutually elected to pursue alternative dispute resolution pursuant to 
Sec.  76.7(g)(2) of this chapter, within five calendar days after the 
parties inform the presiding officer that they have failed to resolve 
their dispute through alternative dispute resolution. The written 
appearance shall state that the party will appear for hearing and 
present evidence on the issues specified in the hearing designation 
order.
    (2) If the complainant fails to file a written appearance by this 
deadline, or fails to file prior to the deadline either a petition to 
dismiss the proceeding without prejudice or a petition to accept, for 
good cause shown, a written appearance beyond such deadline, the 
presiding officer shall dismiss the complaint with prejudice for 
failure to prosecute.
    (3) If the defendant fails to file a written appearance by this 
deadline, or fails to file prior to this deadline a petition to accept, 
for good cause shown, a written appearance beyond such deadline, its 
opportunity to present evidence at hearing will be deemed to have been 
waived. If the hearing is so waived, the presiding officer shall 
expeditiously terminate the proceeding and certify to the Commission 
the complaint for resolution based on the existing record. When the 
Commission has designated itself as the presiding officer, it shall 
expeditiously terminate the proceeding and resolve the complaint based 
on the existing record.

(5 U.S.C. 554; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)


0
32. Revise Sec.  1.223 to read as follows:


Sec.  1.223   Petitions to intervene.

    (a) Where the order designating a matter for hearing has failed to 
notify and name as a party to the hearing proceeding any person who 
qualifies as a party in interest, such person may acquire the status of 
a party by filing, under oath and not more than 30 days after the 
publication in the Federal Register of the hearing issues or any 
substantial amendment thereto, a petition for intervention showing the 
basis of its interest. Where the person's status as a party in interest 
is established, the petition to intervene will be granted.
    (b) Any other person desiring to participate as a party in any 
hearing proceeding may file a petition for leave to intervene not later 
than 30 days after the publication in the Federal Register of the full 
text or a summary of the order designating the matter for hearing or 
any substantial amendment thereto. The petition must set forth the 
interest of petitioner in the proceedings, must show how such 
petitioner's participation will assist the Commission in the 
determination of the issues in question, must set forth any proposed 
issues in addition to those already designated for hearing, and must be 
accompanied by the affidavit of a person with knowledge as to the facts 
set forth in the petition. The presiding officer, in his or her 
discretion, may grant or deny such petition or may permit intervention 
by such persons limited to a particular stage of the proceeding.
    (c) Any person desiring to file a petition for leave to intervene 
later than 30 days after the publication in the Federal Register of the 
full text or a summary of the order designating the matter for hearing 
or any substantial amendment thereto shall set forth the interest of 
petitioner in the proceeding, show how such petitioner's participation 
will assist the Commission in the determination of the issues in 
question, must set forth any proposed issues in addition to those 
already designated for hearing, and must set forth reasons why it was 
not possible to file a petition within the time prescribed by 
paragraphs (a) and (b) of this section. If, in the opinion of the 
presiding officer, good cause is shown for the delay in filing, the 
presiding officer may in his or her discretion grant such petition or 
may permit intervention limited to particular issues or to a particular 
stage of the proceeding.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)


0
33. Amend Sec.  1.225 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1.225   Participation by non-parties; consideration of 
communications.

* * * * *
    (b) No persons shall be precluded from giving any relevant, 
material, and competent testimony because they lack a sufficient 
interest to justify their intervention as parties in the matter.
    (c) No communication will be considered in determining the merits 
of any matter unless it has been received into evidence. The 
admissibility of any communication shall be governed by the applicable 
rules of evidence in Sec.  1.351, and no communication shall be 
admissible on the basis of a stipulation unless Commission counsel as 
well as counsel for all of the parties shall join in such stipulation.

0
34. Revise Sec.  1.227 to read as follows:


Sec.  1.227   Consolidations.

    The Commission, upon motion or upon its own motion, may, where such 
action will best conduce to the proper dispatch of business and to the 
ends of justice, consolidate in a hearing proceeding any cases that 
involve the same applicant or substantially the same issues, or that 
present conflicting claims.

0
35. Amend Sec.  1.229 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing paragraph (e); and
0
c. Redsignating paragraph (f) as paragraph (e) and revising it.
    The revisions read as follows:


Sec.  1.229   Motions to enlarge, change, or delete issues.

    (a) A motion to enlarge, change or delete the issues may be filed 
by any party to a hearing proceeding. Except as provided for in 
paragraph (b) of this section, such motions must be filed within 15 
days after the full text or a summary of the order designating the case 
for hearing has been published in the Federal Register.
    (b)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer, such motions shall be filed within 15 calendar days 
after the deadline for submitting written appearances pursuant to Sec.  
1.221(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 Sec.  1.223).
    (2) Any person desiring to file a motion to modify the issues after 
the expiration of periods specified in paragraphs (a) and (b)(1) of 
this section shall set forth the reason why it was not possible to file 
the motion within the prescribed period. Except as provided in 
paragraph (c) of this section, the motion will be granted only if good 
cause is shown for the delay in filing. Motions for modifications of 
issues which are based on new facts or newly discovered facts shall be 
filed within 15 days after such facts are discovered by the moving 
party.
* * * * *
    (e) In any case in which the presiding officer grants a motion to 
enlarge the issues to inquire into allegations that an applicant made 
misrepresentations to the Commission or engaged in other misconduct 
during the application process, the enlarged issues include notice 
that, after hearings on the enlarged issue and upon a finding that the 
alleged misconduct occurred and warrants such penalty, in addition to 
or in lieu of denying the application, the applicant may be liable for 
a forfeiture

[[Page 63176]]

of up to the maximum statutory amount. See 47 U.S.C. 503(b)(2)(A).

0
36. Revise Sec.  1.241 to read as follows:


Sec.  1.241   Designation of presiding officer.

    (a) Hearing proceedings will be conducted by a presiding officer. 
The designated presiding officer will be identified in the order 
designating a matter for hearing. Only the Commission, one or more 
commissioners, or an administrative law judge designated pursuant to 5 
U.S.C. 3105 may be designated as a presiding officer. Unless otherwise 
stated, the term presiding officer will include the Commission when the 
Commission designates itself to preside over a hearing proceeding.
    (b) If a presiding officer becomes unavailable during the course of 
a hearing proceeding, another presiding officer will be designated.

(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)


0
37. Add Sec.  1.242 to read as follows:


Sec.  1.242   Appointment of case manager when Commission is the 
presiding officer.

    When the Commission designates itself as the presiding officer in a 
hearing proceeding, it may delegate authority to a case manager to 
develop the record in a written hearing (see Sec. Sec.  1.370 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 Sec.  1.251, or to perform any other functions that the 
Commission reserves to itself in the order appointing a case manager.

0
38. Amend Sec.  1.243 by revising the introductory text, paragraphs 
(g), (i) through (l), adding paragraphs (m) and (n), and revising the 
authority citation to read as follows:


Sec.  1.243   Authority of presiding officer.

    From the time the presiding officer is designated until issuance of 
the presiding officer's decision or the transfer of the proceeding to 
the Commission or to another presiding officer, the presiding officer 
shall have such authority as granted by law and by the provisions of 
this chapter, including authority to:
* * * * *
    (g) Require the filing of memoranda of law and the presentation of 
oral argument with respect to any question of law upon which the 
presiding officer or the Commission is required to rule during the 
course of the hearing proceeding;
* * * * *
    (i) Dispose of procedural requests and ancillary matters, as 
appropriate;
    (j) Take actions and make decisions in conformity with governing 
law;
    (k) Act on motions to enlarge, modify or delete the hearing issues;
    (l) Act on motions to proceed in forma pauperis pursuant to Sec.  
1.224;
    (m) Decide a matter upon the existing record or request additional 
information from the parties; and
    (n) Issue such orders and conduct such proceedings as will best 
conduce to the proper dispatch of business and the ends of justice.

(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)


0
39. Revise Sec.  1.244 to read as follows:


Sec.  1.244   Designation of a settlement officer.

    (a) Parties may request that the presiding officer appoint a 
settlement officer to facilitate the resolution of the case by 
settlement.
    (b) Where all parties in a case agree that such procedures may be 
beneficial, such requests may be filed with the presiding officer no 
later than 15 days prior to the date scheduled for the commencement of 
hearings or, in hearing proceedings conducted pursuant to Sec. Sec.  
1.370 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.

0
40. Amend Sec.  1.245 by revising paragraphs (a), (b)(1) through (3), 
and the authority citation to read as follows:


Sec.  1.245   Disqualification of presiding officer.

    (a) In the event that a presiding officer (other than the 
Commission) deems himself or herself disqualified and desires to 
withdraw from the case, the presiding officer shall immediately so 
notify the Commission.
    (b) * * *
    (1) The person seeking disqualification shall file with the 
presiding officer an affidavit setting forth in detail the facts 
alleged to constitute grounds for disqualification.
    (2) The presiding officer may file a response to the affidavit; and 
if the presiding officer believes he or she is not disqualified, he or 
she shall so rule and continue with the hearing proceeding.
    (3) The person seeking disqualification may appeal a ruling denying 
the request for withdrawal of

[[Page 63177]]

the presiding officer, and, in that event, shall do so within five days 
of release of the presiding officer's ruling. Unless an appeal of the 
ruling is filed at this time, the right to request withdrawal of the 
presiding officer shall be deemed waived.
* * * * *
(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)


0
41. Revise Sec.  1.248 to read as follows:


Sec.  1.248   Status conferences.

    (a) The presiding officer may direct the parties or their attorneys 
to appear at a specified time and place for a status conference during 
the course of a hearing proceeding, or to submit suggestions in 
writing, for the purpose of considering, among other things, the 
matters set forth in paragraph (c) of this section. Any party may 
request a status conference at any time after release of the order 
designating a matter for hearing. During a status conference, the 
presiding officer may issue rulings regarding matters relevant to the 
conduct of the hearing proceeding including, inter alia, procedural 
matters, discovery, and the submission of briefs or evidentiary 
materials.
    (b) The presiding officer shall schedule an initial status 
conference promptly after written appearances have been submitted under 
Sec.  1.91 or Sec.  1.221. At or promptly after the initial status 
conference, the presiding officer shall adopt a schedule to govern the 
hearing proceeding. If the Commission designated a matter for hearing 
on a written record under Sec. Sec.  1.370 through 1.376, the 
scheduling order shall include a deadline for filing a motion to 
request an oral hearing in accordance with Sec.  1.376. If the 
Commission did not designate the matter for hearing on a written 
record, the scheduling order shall include a deadline for filing a 
motion to conduct the hearing on a written record. Except as 
circumstances otherwise require, the presiding officer shall allow a 
reasonable period prior to commencement of the hearing for the orderly 
completion of all prehearing procedures, including discovery, and for 
the submission and disposition of all motions.
    (c) In status conferences, the following matters, among others, may 
be considered:
    (1) Clarifying, amplifying, or narrowing issues designated for 
hearing;
    (2) Scheduling;
    (3) Admission of facts and of the genuineness of documents (see 
Sec.  1.246), and the possibility of stipulating with respect to facts;
    (4) Discovery;
    (5) Motions;
    (6) Hearing procedure;
    (7) Settlement (see Sec.  1.93); and
    (8) Such other matters that may aid in resolution of the issues 
designated for hearing.
    (d) Status conferences may be conducted in person or by telephone 
conference call or similar technology, at the discretion of the 
presiding officer. An official transcript of all status conferences 
shall be made unless the presiding officer and the parties agree to 
forego a transcript, in which case any rulings by the presiding officer 
during the status conference shall be promptly memorialized in writing.
    (e) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled status conference may be deemed a 
waiver by that party of its rights to participate in the hearing 
proceeding and shall not preclude the presiding officer from conferring 
with parties or counsel present.

0
42. Revise Sec.  1.249 to read as follows:


Sec.  1.249   Presiding officer statement.

    The presiding officer shall enter upon the record a statement 
reciting all actions taken at a status conference convened under Sec.  
1.248 and incorporating into the record all of the stipulations and 
agreements of the parties which were approved by the presiding officer, 
and any special rules which the presiding officer may deem necessary to 
govern the course of the proceeding.

0
43. Revise Sec.  1.250 to read as follows:


Sec.  1.250   Discovery and preservation of evidence; cross-reference.

    For provisions relating to prehearing discovery and preservation of 
admissible evidence in hearing proceedings under this subpart B, see 
Sec. Sec.  1.311 through 1.325.

0
44. Amend Sec.  1.251 by revising paragraphs (a) and (d) through (f) to 
read as follows:


Sec.  1.251   Summary decision.

    (a)(1) Any party to an adjudicatory proceeding may move for summary 
decision of all or any of the issues designated for hearing. The motion 
shall be filed at least 20 days prior to the date set for commencement 
of the hearing or, in hearing proceedings conducted pursuant to 
Sec. Sec.  1.370 through 1.377, at least 20 days before the date that 
the presiding officer sets as the deadline for filing the affirmative 
case. See Sec.  1.372. The party filing the motion may not rest upon 
mere allegations or denials but must show, by affidavit or by other 
materials subject to consideration by the presiding officer, that there 
is no genuine issue of material fact for determination in the hearing 
proceeding.
    (2) A party may file a motion for summary decision after the 
deadlines in paragraph (a)(1) of this section only with the presiding 
officer's permission, or upon the presiding officer's invitation. No 
appeal from an order granting or denying a request for permission to 
file a motion for summary decision shall be allowed. If the presiding 
officer authorizes a motion for summary decision after the deadlines in 
paragraph (a)(1) of this section, proposed findings of fact and 
conclusions of law on those issues which the moving party believes can 
be resolved shall be attached to the motion, and any other party may 
file findings of fact and conclusions of law as an attachment to 
pleadings filed by the party pursuant to paragraph (b) of this section.
    (3) Motions for summary decision should be addressed to the 
Commission in any hearing proceeding in which the Commission is the 
presiding officer and it has appointed a case manager pursuant to Sec.  
1.242. The Commission, in its discretion, may defer ruling on any such 
motion until after the case manager has certified the record for 
decision by the Commission pursuant to Sec.  1.377.
* * * * *
    (d) The presiding officer may, in his or her discretion, set the 
matter for argument and may call for the submission of proposed 
findings, conclusions, briefs or memoranda of law. The presiding 
officer, giving appropriate weight to the nature of the proceeding, the 
issue or issues, the proof, and the need for cross-examination, if any, 
may grant a motion for summary decision to the extent that the 
pleadings, affidavits, materials obtained by discovery or otherwise, 
admissions, or matters officially noticed, show that there is no 
genuine issue as to any material fact and that a party is otherwise 
entitled to summary decision. If it appears from the affidavits of a 
party opposing the motion that the party cannot, for good cause shown, 
present by affidavit or otherwise facts essential to justify the 
party's opposition, the presiding officer may deny the motion, may 
order a continuance to permit affidavits to be obtained or discovery to 
be had, or make such other order as is just.
    (e) If all of the issues (or a dispositive issue) are determined on 
a motion for summary decision, the hearing proceeding shall be 
terminated. When a presiding officer (other than the Commission) issues 
a Summary

[[Page 63178]]

Decision, it is subject to appeal or review in the same manner as an 
Initial Decision. See Sec. Sec.  1.271 through 1.282. If some of the 
issues only (including no dispositive issue) are decided on a motion 
for summary decision, or if the motion is denied, the presiding officer 
will issue a memorandum opinion and order, interlocutory in character, 
and the hearing proceeding will continue on the remaining issues. 
Appeal from interlocutory rulings is governed by Sec.  1.301.
    (f) The presiding officer may take any action deemed necessary to 
assure that summary decision procedures are not abused. The presiding 
officer may rule in advance of a motion that the proceeding is not 
appropriate for summary decision, and may take such other measures as 
are necessary to prevent any unwarranted delay.
    (1) Should it appear to the satisfaction of the presiding officer 
that a motion for summary decision has been presented in bad faith or 
solely for the purpose of delay, or that such a motion is patently 
frivolous, the presiding officer will enter a determination to that 
effect upon the record.
    (2) If, on making such determination, the presiding officer 
concludes that the facts warrant disciplinary action against an 
attorney, the matter, together with any findings and recommendations, 
will be referred to the Commission for consideration under Sec.  1.24.
    (3) If, on making such determination, the presiding officer 
concludes that the facts warrant a finding of bad faith on the part of 
a party to the proceeding, the presiding officer will certify the 
matter to the Commission, with findings and recommendations, for a 
determination as to whether the facts warrant the addition of an issue 
to the hearing proceeding as to the character qualifications of that 
party.

0
45. Revise Sec.  1.253 to read as follows:


Sec.  1.253   Time and place of hearing.

    The presiding officer shall specify the time and place of oral 
hearings. All oral hearings will take place at Commission Headquarters 
unless the presiding officer designates another location.

0
46. Revise Sec.  1.254 to read as follows:


Sec.  1.254   Nature of the hearing proceeding; burden of proof.

    Any hearing upon an application shall be a full hearing proceeding 
in which the applicant and all other parties in interest shall be 
permitted to participate but in which both the burden of proceeding 
with the introduction of evidence upon any issue specified by the 
Commission, as well as the burden of proof upon all such issues, shall 
be upon the applicant except as otherwise provided in the order of 
designation.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)


Sec.  1.258  [Removed and Reserved]

0
47. Remove and reserve Sec.  1.258.


Sec.  1.260  [Removed and Reserved]

0
48. Remove and reserve Sec.  1.260.

0
49. Revise Sec.  1.261 to read as follows:


Sec.  1.261   Corrections to transcript.

    At any time during the course of the proceeding, or as directed by 
the presiding officer, but not later than 10 days after the 
transmission to the parties of the transcript of any oral conference or 
hearing, any party to the proceeding may file with the presiding 
officer a motion requesting corrections to the transcript, which motion 
shall be accompanied by proof of service thereof upon all other parties 
to the proceeding. Within 5 days after the filing of such a motion, 
other parties may file a pleading in support of or in opposition to 
such motion. Thereafter, the presiding officer shall, by order, specify 
the corrections to be made in the transcript, and a copy of the order 
shall be served upon all parties and made a part of the record. The 
presiding officer may sua sponte specify corrections to be made in the 
transcript on 5 days' notice.

0
50. Amend Sec.  1.263 by revising paragraph (a) and the authority 
citation to read as follows:


Sec.  1.263   Proposed findings and conclusions.

    (a) The presiding officer may direct any party to file proposed 
findings of fact and conclusions, briefs, or memoranda of law. If the 
presiding officer does not so order, any party to the proceeding may 
seek leave to file proposed findings of fact and conclusions, briefs, 
or memoranda of law. Such proposed findings of fact, conclusions, 
briefs, and memoranda of law shall be filed within the time prescribed 
by the presiding officer.
* * * * *
(5 U.S.C. 557; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)

0
51. Add Sec.  1.265 to read as follows:


Sec.  1.265   Closing the record.

    At the conclusion of hearing proceedings, the presiding officer 
shall promptly close the record after the parties have submitted their 
evidence, filed any proposed findings and conclusions under Sec.  
1.263, and submitted any other information required by the presiding 
officer. After the record is closed, it shall be certified by the 
presiding officer and filed in the Office of the Secretary. Notice of 
such certification shall be served on all parties to the proceedings.

0
52. Amend Sec.  1.267 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  1.267   Initial and recommended decisions.

    (a) Except as provided in Sec. Sec.  1.94, 1.251, and 1.274, when 
the proceeding is terminated on motion, or when the presiding officer 
is the Commission, the presiding officer shall prepare an initial (or 
recommended) decision, which shall be transmitted to the Secretary of 
the Commission. In the case of rate making proceedings conducted under 
sections 201-205 of the Communications Act, the presumption shall be 
that the presiding officer shall prepare an initial or recommended 
decision. The Secretary will make the decision public immediately and 
file it in the docket of the case.
* * * * *
    (c) When the Commission is not the presiding officer, the authority 
of the presiding officer over the proceedings shall cease when the 
presiding officer has filed an Initial or Recommended Decision, or if 
it is a case in which the presiding officer is to file no decision, 
when they have certified the case for decision: Provided, however, That 
the presiding officer shall retain limited jurisdiction over the 
proceeding for the purpose of effecting certification of the record and 
corrections to the transcript, as provided in Sec. Sec.  1.265 and 
1.261, respectively, and for the purpose of ruling initially on 
applications for awards of fees and expenses under the Equal Access to 
Justice Act.
* * * * *

0
53. Revise Sec.  1.273 to read as follows:


Sec.  1.273   Waiver of initial or recommended decision.

    When the Commission serves as the presiding officer, it will not 
issue an initial or recommended decision. When the Commission is not 
the presiding officer, at any time before the record is closed all 
parties to the proceeding may agree to waive an initial or recommended 
decision, and may request that the Commission issue a final decision or 
order in the case. If the Commission has directed that its review 
function in the case be performed by a commissioner or a panel of 
commissioners, the request shall be directed to the appropriate review 
authority. The Commission or such review authority may in its 
discretion grant the request, in whole or in part, if such action will 
best conduce to the

[[Page 63179]]

proper dispatch of business and to the ends of justice.

0
54. Revise Sec.  1.274 to read as follows:


Sec.  1.274   Certification of the record to the Commission for 
decision when the Commission is not the presiding officer; presiding 
officer unavailability.

    (a) When the Commission is not the presiding officer, and where the 
Commission finds upon the record that due and timely execution of its 
functions imperatively and unavoidably so requires, the Commission may 
direct that the record in a pending proceeding be certified to it for 
decision.
    (b) When a presiding officer becomes unavailable to the Commission 
after the taking of evidence has been concluded, the Commission shall 
direct that the record be certified to it for decision. In that event, 
the Commission shall designate a new presiding officer in accordance 
with Sec.  1.241 for the limited purpose of certifying the record to 
the Commission.
    (c) In all other circumstances when the Commission is not the 
presiding officer, the presiding officer shall prepare and file an 
initial or recommended decision, which will be released in accordance 
with Sec.  1.267.
    (d) When a presiding officer becomes unavailable to the Commission 
after the taking of evidence has commenced but before it has been 
concluded, the Commission shall designate another presiding officer in 
accordance with Sec.  1.241 to continue the hearing proceeding. Oral 
testimony already introduced shall not be reheard unless observation of 
the demeanor of the witness is essential to the resolution of the case.

(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C. 409)

0
55. Revise Sec.  1.279 to read as follows:


Sec.  1.279   Limitation of matters to be reviewed.

    (a) Upon review of any initial decision, the Commission may, in its 
discretion, limit the issues to be reviewed to those findings and 
conclusions to which exceptions have been filed, or to those findings 
and conclusions specified in the Commission's order of review issued 
pursuant to Sec.  1.276(b).
    (b) No party may file an exception to the presiding officer's 
ruling that all or part of the hearing be conducted and resolved on a 
written record, unless that party previously filed an interlocutory 
motion to request an oral hearing in accordance with Sec.  1.376.

0
56. Revise Sec.  1.291 to read as follows:


Sec.  1.291   General provisions.

    (a)(1) The Commission acts on petitions to amend, modify, enlarge 
or delete the issues in hearing proceedings which involve rule making 
matters exclusively.
    (2) All other interlocutory matters in hearing proceedings are 
acted on by the presiding officer.
    (3) Each interlocutory pleading shall identify the presiding 
officer in its caption. Unless the pleading is to be acted upon by the 
Commission, the presiding officer shall be identified by name.
    (b) All interlocutory pleadings shall be submitted in accordance 
with the provisions of Sec. Sec.  1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 
1.51, and 1.52.
    (c)(1) Procedural rules governing interlocutory pleadings are set 
forth in Sec. Sec.  1.294 through 1.298.
    (2) Rules governing appeal from, and reconsideration of, 
interlocutory rulings made by the presiding officer are set forth in 
Sec.  1.301.
    (3) Petitions requesting reconsideration of an interlocutory ruling 
will not be entertained.
    (d) No initial decision shall become effective under Sec.  1.276(e) 
until all interlocutory matters pending before the Commission in the 
proceeding at the time the initial decision is issued have been 
disposed of and the time allowed for appeal from interlocutory rulings 
of the presiding officer has expired.

(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, 
as amended; 47 CFR 0.61 and 0.283)


0
57. Revise Sec.  1.294 to read as follows:


Sec.  1.294   Oppositions and replies.

    (a) Any party to a hearing proceeding may file an opposition to an 
interlocutory request filed in that proceeding.
    (b) Except as provided in paragraph (c) of this section or as 
otherwise ordered by the presiding officer, oppositions to 
interlocutory requests shall be filed within 4 days after the original 
pleading is filed, and replies to oppositions will not be entertained.
    (c) Additional pleadings may be filed only if specifically 
requested or authorized by the person(s) who is to make the ruling.

0
58. Amend Sec.  1.298 by revising paragraph (b) to read as follows:


Sec.  1.298   Rulings; time for action.

* * * * *
    (b) In the discretion of the presiding officer, rulings on 
interlocutory matters may be made orally to the parties. The presiding 
officer may, in his or her discretion, state reasons therefor on the 
record if the ruling is being transcribed, or may promptly issue a 
written statement of the reasons for the ruling, either separately or 
as part of an initial decision.

0
59. Amend Sec.  1.301 by revising the section heading and paragraphs 
(a), (b), and (c)(1) to read as follows:


Sec.  1.301   Appeal from interlocutory rulings by a presiding officer, 
other than the Commission, or a case manager; effective date of ruling.

    (a) Interlocutory rulings which are appealable as a matter of 
right. Rulings listed in this paragraph are appealable as a matter of 
right. An appeal from such a ruling may not be deferred and raised as 
an exception to the initial decision.
    (1) If a ruling denies or terminates the right of any person to 
participate as a party to a hearing proceeding, such person, as a 
matter of right, may file an appeal from that ruling.
    (2) If a ruling requires testimony or the production of documents, 
over objection based on a claim of privilege, the ruling on the claim 
of privilege is appealable as a matter of right.
    (3) If a ruling denies a motion to disqualify the presiding officer 
or case manager, the ruling is appealable as a matter of right.
    (4) A ruling removing counsel from the hearing is appealable as a 
matter of right, by counsel on his own behalf or by his client. (In the 
event of such ruling, the presiding officer will adjourn the hearing 
proceeding for such period as is reasonably necessary for the client to 
secure new counsel and for counsel to become familiar with the case).
    (b) Other interlocutory rulings. Except as provided in paragraph 
(a) of this section, appeals from interlocutory rulings shall be filed 
only if allowed by the presiding officer. Any party desiring to file an 
appeal shall first file a request for permission to file appeal. The 
request shall be filed within 5 days after the order is released or (if 
no written order) after the ruling is made. Pleadings responsive to the 
request shall be filed only if they are requested by the presiding 
officer. If the presiding officer made the ruling, the request shall 
contain a showing that the appeal presents a new or novel question of 
law or policy and that the ruling is such that error would be likely to 
require remand should the appeal be deferred and raised as an 
exception. If a case manager made the ruling, the request shall contain 
a showing that the appeal presents a question of law or policy that the 
case manager lacks authority to resolve. The presiding officer shall 
determine whether the showing is such

[[Page 63180]]

as to justify an interlocutory appeal and, in accordance with his 
determination, will either allow or disallow the appeal or modify the 
ruling. Such ruling is final: Provided, however, That the Commission 
may, on its own motion, dismiss an appeal allowed under this section on 
the ground that objection to the ruling should be deferred and raised 
after the record is certified for decision by the Commission or as an 
exception to an initial decision.
    (1) If an appeal is not allowed, or is dismissed by the Commission, 
or if permission to file an appeal is not requested, objection to the 
ruling may be raised after the record is certified for decision by the 
Commission or on review of the initial decision.
    (2) If an appeal is allowed and is considered on its merits, the 
disposition on appeal is final. Objection to the ruling or to the 
action on appeal may not be raised after the record is certified for 
decision by the Commission or on review of the initial decision.
    (3) If the presiding officer modifies their initial ruling, any 
party adversely affected by the modified ruling may file a request for 
permission to file appeal, pursuant to the provisions of this 
paragraph.
    (c) * * *
    (1) Unless the presiding officer orders otherwise, rulings made 
shall be effective when the order is released or (if no written order) 
when the ruling is made. The Commission may stay the effect of any 
ruling that comes before it for consideration on appeal.
* * * * *

0
60. Amend Sec.  1.302 by revising the section heading to read as 
follows:


Sec.  1.302   Appeal from final ruling by presiding officer other than 
the Commission; effective date of ruling.

* * * * *

0
61. Amend Sec.  1.311 by revising the introductory text and paragraphs 
(a) and (c), removing paragraph (d), and redesignating paragraph (e) as 
paragraph (d) and revising it.
    The revisions read as follows:


Sec.  1.311   General.

    Sections 1.311 through 1.325 provide for taking the deposition of 
any person (including a party), for interrogatories to parties, and for 
orders to parties relating to the production of documents and things 
and for entry upon real property. These procedures may be used for the 
discovery of relevant facts, for the production and preservation of 
evidence for use in a hearing proceeding, or for both purposes.
    (a) Applicability. For purposes of discovery, these procedures may 
be used in any case of adjudication (as defined in the Administrative 
Procedure Act) which has been designated for hearing. For the 
preservation of evidence, they may be used in any case which has been 
designated for hearing and is conducted under the provisions of this 
subpart (see Sec.  1.201).
* * * * *
    (c) 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 Sec.  1.248(b) of this 
part.
    (2) In all proceedings, the presiding officer may at any time order 
the parties or their attorneys to appear at a conference to consider 
the proper use of these procedures, the time to be allowed for such 
use, and/or to hear argument and render a ruling on disputes that arise 
under these rules.
    (d) Stipulations regarding the taking of depositions. If all of the 
parties so stipulate in writing and if there is no interference to the 
conduct of the proceeding, depositions may be taken before any person, 
at any time (subject to the limitation below) or place, upon any notice 
and in any manner, and when so taken may be used like other 
depositions. A copy of the stipulation shall be filed using the 
Commission's Electronic Comment Filing System, and a copy of the 
stipulation shall be served on the presiding officer or case manager at 
least 3 days before the scheduled taking of the deposition.

0
62. Add Sec.  1.314 to read as follows:


Sec.  1.314   Confidentiality of information produced or exchanged.

    (a) Any information produced in the course of a hearing proceeding 
may be designated as confidential by any parties to the proceeding, or 
third parties, pursuant to Sec.  0.457, Sec.  0.459, or Sec.  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 Sec.  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

[[Page 63181]]

personally reviewed the Commission's rules and understands the 
limitations they impose on the signing party.
    (d) Parties may make copies of materials marked confidential solely 
for use by the Commission or persons designated in paragraph (b) of 
this section. Each party shall maintain a log recording the number of 
copies made of all confidential material and the persons to whom the 
copies have been provided.
    (e) The presiding officer may adopt a protective order as 
appropriate.
    (f) Upon final termination of a hearing proceeding, including all 
appeals and applications for review, the parties shall ensure that all 
originals and reproductions of any confidential materials, along with 
the log recording persons who received copies of such materials, shall 
be provided to the producing party. In addition, upon final termination 
of the proceeding, any notes or other work product derived in whole or 
in part from the confidential materials of an opposing or third party 
shall be destroyed.

0
63. Amend Sec.  1.315 by revising paragraph (a) introductory text and 
removing paragraph (e).
    The revision reads as follows:


Sec.  1.315   Depositions upon oral examination--notice and preliminary 
procedure.

    (a) Notice. A party to a hearing proceeding desiring to take the 
deposition of any person upon oral examination shall give a minimum of 
21 days' notice to every other party, to the person to be examined, and 
to the presiding officer or case manager. A copy of the notice shall be 
filed with the Secretary of the Commission for inclusion in the 
Commission's Electronic Comment Filing System. Related pleadings shall 
be served and filed in the same manner. The notice shall contain the 
following information:
* * * * *


Sec.  1.316  [Removed and Reserved]

0
64. Remove and reserve Sec.  1.316.

0
65. Amend Sec.  1.319 by revising the first sentence in each of 
paragraphs (c)(2) and (3) to read as follows:


Sec.  1.319   Objections to the taking of depositions.

* * * * *
    (c) * * *
    (2) If counsel cannot agree on the proper limits of the examination 
the taking of depositions shall continue on matters not objected to and 
counsel shall, within 24 hours, either jointly or individually, provide 
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 Sec.  
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.
* * * * *

0
66. Amend Sec.  1.321 by revising the section heading and paragraphs 
(b) introductory text and (d)(3) to read as follows:


Sec.  1.321   Use of depositions in hearing proceedings.

* * * * *
    (b) Except as provided in this paragraph and in Sec.  1.319, 
objection may be made to receiving in evidence any deposition or part 
thereof for any reason which would require the exclusion of the 
evidence if the witness were then present and testifying.
* * * * *
    (d) * * *
    (3) The deposition of any witness, whether or not a party, may be 
used by any party for any lawful purpose.
* * * * *

0
67. Amend Sec.  1.323 by revising paragraph (a) introductory text to 
read as follows:


Sec.  1.323   Interrogatories to parties.

    (a) Interrogatories. Any party may serve upon any other party 
written interrogatories to be answered in writing by the party served 
or, if the party served is a public or private corporation, 
partnership, association, or similar entity, by any officer or agent, 
who shall furnish such information as is available to the party. Copies 
of the interrogatories, answers, and all related pleadings shall be 
filed with the Commission and served on the presiding officer and all 
other parties to the hearing proceeding.
* * * * *

0
68. Amend Sec.  1.325 by revising paragraph (a)(1) to read as follows:


Sec.  1.325   Discovery and production of documents and things for 
inspection, copying, or photographing.

    (a) * * *
    (1) Copies of the request shall be filed with the Commission and 
served on the presiding officer and all other parties to the hearing 
proceeding.
* * * * *

0
69. Revise Sec.  1.331 to read as follows:


Sec.  1.331   Who may sign and issue.

    Subpenas requiring the attendance and testimony of witnesses, and 
subpenas requiring the production of any books, papers, schedules of 
charges, contracts, agreements, and documents relating to any matter 
under investigation or hearing, may be signed and issued by the 
presiding officer.

0
70. Amend Sec.  1.338 by revising paragraph (a) to read as follows:


Sec.  1.338   Subpena forms.

    (a) Subpena forms are available on the Commission's internet site, 
www.fcc.gov, as FCC Form 766. These forms are to be completed and 
submitted with any request for issuance of a subpena.
* * * * *

0
71. Revise Sec.  1.351 to read as follows:


Sec.  1.351   Rules of evidence.

    In hearings subject to this subpart B, any oral or documentary 
evidence may be adduced, but the presiding officer shall exclude 
irrelevant, immaterial, or unduly repetitious evidence.

0
72. Revise Sec.  1.362 to read as follows:


Sec.  1.362   Production of statements.

    After a witness is called and has given direct testimony in an oral 
hearing, and before he or she is excused, any party may move for the 
production of any statement of such witness, or part thereof, 
pertaining to his or her direct testimony, in possession of the party 
calling the witness, if such statement has been reduced to writing and 
signed or otherwise approved or adopted by the witness. Such motion 
shall be directed to the presiding officer. If the party declines to 
furnish the statement, the testimony of the witness pertaining to the 
requested statement shall be stricken.

0
73. Add an undesignated center heading and Sec. Sec.  1.370 through 
1.377 to read as follows:

Hearings on a Written Record

Sec.
1.370 Purpose.
1.371 General pleading requirements.
1.372 The affirmative case.
1.373 The responsive case.
1.374 The reply case.
1.375 Other written submissions.
1.376 Oral hearing or argument.
1.377 Certification of the written hearing record to the Commission 
for decision.

Hearings on a Written Record


Sec.  1.370   Purpose.

    Hearings under this subpart B that the Commission or one of its 
Bureaus,

[[Page 63182]]

acting on delegated authority, determines shall be conducted and 
resolved on a written record are subject to Sec. Sec.  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 Sec. Sec.  1.371 
through 1.377.


Sec.  1.371   General pleading requirements.

    Written hearings shall be resolved on a written record consisting 
of affirmative case, responsive case, and reply case submissions, along 
with all associated evidence in the record, including stipulations and 
agreements of the parties and official notice of a material fact.
    (a) All pleadings filed in any proceeding subject to these written 
hearing rules must be submitted in conformity with the requirements of 
Sec. Sec.  1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51(a), and 1.52.
    (b) Pleadings must be clear, concise, and direct. All matters 
should be pleaded fully and with specificity.
    (c) Pleadings shall consist of numbered paragraphs and must be 
supported by relevant evidence. Assertions based on information and 
belief are prohibited unless made in good faith and accompanied by a 
declaration or affidavit explaining the basis for the party's belief 
and why the party could not reasonably ascertain the facts from any 
other source.
    (d) Legal arguments must be supported by appropriate statutory, 
judicial, or administrative authority.
    (e) Opposing authorities must be distinguished.
    (f) Copies must be provided of all non-Commission authorities 
relied upon which are not routinely available in national reporting 
systems, such as unpublished decisions or slip opinions of courts or 
administrative agencies. In addition, copies of state authorities 
relied upon shall be provided.
    (g) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending proceeding. Information submitted, as well as relevant legal 
authorities, must be current and updated as necessary and in a timely 
manner before a decision is rendered on the merits.
    (h) Pleadings shall identify the name, address, telephone number, 
and email address for either the filing party's attorney or, where a 
party is not represented by an attorney, the filing party. Pleadings 
may be signed by a party's attorney.
    (i) Attachments to any pleading shall be Bates-stamped or otherwise 
identifiable by party and numbered sequentially. Parties shall cite to 
Bates-stamped or otherwise identifiable page numbers in their 
pleadings.
    (j) Unless a schedule is specified in the order designating a 
matter for hearing, at the initial status conference under Sec.  
1.248(b), the presiding officer shall adopt a schedule for the 
sequential filing of pleadings required or permitted under these rules.
    (k) Pleadings shall be served on all parties to the proceeding in 
accordance with Sec.  1.211 and shall include a certificate of service. 
All pleadings shall be served on the presiding officer or case manager, 
as identified in the caption.
    (l) Each pleading must contain a written verification that the 
signatory has read the submission and, to the best of their knowledge, 
information, and belief formed after reasonable inquiry, it is well 
grounded in fact and is warranted by existing law or a good faith 
argument for the extension, modification or reversal of existing law; 
and that it is not interposed for any improper purpose, such as to 
harass, cause unnecessary delay, or needlessly increase the cost of the 
proceeding. If any pleading or other submission is signed in violation 
of this provision, the Commission may upon motion or upon its own 
initiative impose appropriate sanctions.
    (m) Any party to the proceeding may file a motion seeking waiver of 
any of the rules governing pleadings in written hearings. Such waiver 
may be granted for good cause shown.
    (n) Any pleading that does not conform with the requirements of the 
applicable rules may be deemed defective. In such case, the presiding 
officer may strike the pleading or request that specified defects be 
corrected and that proper pleadings be filed with the Commission and 
served on the presiding officer or case manager and all parties within 
a prescribed time as a condition to being made a part of the record in 
the proceeding.
    (o) Any party that fails to respond to official correspondence, a 
request for additional information, or an order or directive from the 
presiding officer or case manager may be subject to appropriate 
sanctions.


Sec.  1.372   The affirmative case.

    (a) Within 30 days after the completion of the discovery period as 
determined by the presiding officer, unless otherwise directed by the 
presiding officer, any party to the proceeding with the burden of proof 
shall file a pleading entitled ``affirmative case'' that fully 
addresses each of the issues designated for hearing. The affirmative 
case submission shall include:
    (1) A statement of relevant material facts, supported by sworn 
statements based on personal knowledge, documentation, or by other 
materials subject to consideration by the presiding officer, and a full 
legal analysis of each of the issues designated for hearing;
    (2) Citation to relevant sections of the Communications Act or 
Commission regulations or orders; and
    (3) The relief sought.
    (b) The affirmative case submission shall address all factual and 
legal questions designated for hearing, and state in detail the basis 
for the response to each such question. Responses based on information 
and belief are prohibited unless made in good faith and accompanied by 
a declaration or affidavit explaining the basis for the party's belief 
and why the party could not reasonably ascertain the facts. When a 
party intends in good faith to deny only part of a designated question 
in the affirmative case, that party shall specify so much of it as is 
true and shall deny only the remainder.
    (c) Failure to address in an affirmative case submission all 
factual and legal questions designated for hearing may result in 
inferences adverse to the filing party.


Sec.  1.373   The responsive case.

    (a) Any other party may file a responsive case submission in the 
manner prescribed under this section within 30 calendar days of the 
filing of the affirmative case submission, unless otherwise directed by 
the presiding officer. The responsive case submission shall include:
    (1) A statement of relevant material facts, supported by sworn 
statements based on personal knowledge, documentation, or by other 
materials subject to consideration by the presiding officer, and a full 
legal analysis of any issues designated for hearing.
    (2) Citation to relevant sections of the Communications Act or 
Commission regulations or orders; and
    (3) Any relief sought.
    (b) The responsive case submission shall respond specifically to 
all material allegations made in the affirmative case submission. Every 
effort shall be made to narrow the issues for resolution by the 
presiding officer.
    (c) Statements of fact or law in an affirmative case filed pursuant 
to Sec.  1.372

[[Page 63183]]

are deemed admitted when not rebutted in a responsive case submission.


Sec.  1.374   The reply case.

    (a) Any party who filed an affirmative case may file and serve a 
reply case submission within 15 days of the filing of any responsive 
case submission, unless otherwise directed by the presiding officer.
    (b) The reply case submission shall contain statements of relevant 
material facts, supported by sworn statements based on personal 
knowledge, documentation, or by other materials subject to 
consideration by the presiding officer, and a full legal analysis that 
responds only to the factual allegations and legal arguments made in 
any responsive case. Other allegations or arguments will not be 
considered by the presiding officer.
    (c) Failure to submit a reply case submission shall not be deemed 
an admission of any allegations contained in any responsive case.


Sec.  1.375   Other written submissions.

    (a) The presiding officer may require or permit the parties to file 
other written submissions such as briefs, proposed findings of fact and 
conclusions of law, or other supplementary documents or pleadings. The 
presiding officer may limit the scope of any such pleadings to certain 
subjects or issues.
    (b) The presiding officer may require the parties to submit any 
additional information deemed appropriate for a full, fair, and 
expeditious resolution of the proceeding.


Sec.  1.376   Oral hearing or argument.

    (a) Notwithstanding any requirement in the designation order that 
the hearing be conducted and resolved on a written record, a party may 
file a motion to request an oral hearing pursuant to Sec.  1.291. Any 
such motion shall be filed after the submission of all the pleadings 
but no later than the date established in the scheduling order. See 
Sec. Sec.  1.248 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.


Sec.  1.377   Certification of the written hearing record to the 
Commission for decision.

    When the Commission is the presiding officer and it has appointed a 
case manager under Sec.  1.242, the case manager shall certify the 
record for decision to the Commission promptly after the hearing record 
is closed. Notice of such certification shall be served on all parties 
to the proceeding.

Subpart H--Ex Parte Communications

0
74. Amend Sec.  1.1202 by revising paragraphs (c) and (e) to read as 
follows:


Sec.  1.1202   Definitions.

* * * * *
    (c) Decision-making personnel. Any member, officer, or employee of 
the Commission, or, in the case of a Joint Board, its members or their 
staffs, who is or may reasonably be expected to be involved in 
formulating a decision, rule, or order in a proceeding. Any person who 
has been made a party to a proceeding or who otherwise has been 
excluded from the decisional process shall not be treated as a 
decision-maker with respect to that proceeding. Thus, any person 
designated as part of a separate trial staff shall not be considered a 
decision-making person in the designated proceeding. Unseparated Bureau 
or Office staff shall be considered decision-making personnel with 
respect to decisions, rules, and orders in which their Bureau or Office 
participates in enacting, preparing, or reviewing. Commission staff 
serving as the case manager in a hearing proceeding in which the 
Commission is the presiding officer shall be considered decision-making 
personnel with respect to that hearing proceeding.
* * * * *
    (e) Matter designated for hearing. Any matter that has been 
designated for hearing before a presiding officer.

Subpart I--Procedures Implementing the National Environment Policy 
Act of 1969

0
75. Amend Sec.  1.1319 by revising paragraph (a) to read as follows:


Sec.  1.1319   Consideration of the environmental impact statements.

    (a) If the action is designated for hearing:
    (1) In rendering an initial decision, the presiding officer (other 
than the Commission) shall 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

0
76. Amend Sec.  1.1504 by revising paragraph (f) to read as follows:


Sec.  1.1504   Eligibility of applicants.

* * * * *
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the 
applicant directly or indirectly owns or controls a majority of the 
voting shares or other interest, will be considered an affiliate for 
purposes of this part, unless the presiding officer, as defined in 47 
CFR 1.241, determines that such treatment would be unjust and contrary 
to the purposes of the EAJA in light of the actual relationship between 
the affiliated entities. In addition, the presiding officer may 
determine that financial relationships of the applicant other than 
those described in this paragraph constitute special circumstances that 
would make an award unjust.
* * * * *

0
77. Amend Sec.  1.1506 by revising paragraph (c) introductory text to 
read as follows:


Sec.  1.1506   Allowable fees and expenses.

* * * * *
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent

[[Page 63184]]

or expert witness, the presiding officer shall consider the following:
* * * * *

0
78. Amend Sec.  1.1512 by revising the last sentence of paragraph (a) 
and by revising paragraph (b) to read as follows:


Sec.  1.1512   Net worth exhibit.

    (a) * * * The presiding officer may require an applicant to file 
additional information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure may 
submit that portion of the exhibit directly to the presiding officer in 
a sealed envelope labeled ``Confidential Financial Information'', 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1) 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, Sec. Sec.  0.441 through 0.466 of this chapter.

0
79. Amend Sec.  1.1513 by revising the last sentence to read as 
follows:


Sec.  1.1513   Documentation of fees and expenses.

    * * * The presiding officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.

0
80. Amend Sec.  1.1514 by revising paragraph (c)(1) to read as follows:


Sec.  1.1514   When an application may be filed.

* * * * *
    (c) * * *
    (1) The date on which an initial decision or other recommended 
disposition of the merits of the proceeding by a presiding officer 
(other than the Commission) becomes administratively final;
* * * * *

0
81. Amend Sec.  1.1522 by revising the second sentence of paragraph (b) 
to read as follows:


Sec.  1.1522   Answer to application.

* * * * *
    (b) * * * The filing of this statement shall extend the time for 
filing an answer for an additional 30 days, and further extensions may 
be granted by the presiding officer upon request by Bureau counsel and 
the applicant.
* * * * *

0
82. Amend Sec.  1.1524 by revising the second sentence to read as 
follows:


Sec.  1.1524   Comments by other parties.

    * * * A commenting party may not participate further in proceedings 
on the application unless the presiding officer determines that the 
public interest requires such participation in order to permit full 
exploration of matters raised in the comments.

0
83. Amend Sec.  1.1525 by revising the last sentence to read as 
follows:


Sec.  1.1525   Settlement.

    * * * If a presiding officer (other than the Commission) approves 
the proposed settlement, it shall be forwarded to the Commission for 
final determination. If the Commission is the presiding officer, it 
shall approve or deny the proposed settlement.

0
84. Amend Sec.  1.1526 by revising the second sentence of paragraph (a) 
and revising paragraph (b) to read as follows:


Sec.  1.1526   Further proceedings.

    (a) * * * However, on request of either the applicant or Bureau 
counsel, or on her own initiative, the presiding officer may order 
further proceedings, such as an informal conference, oral argument, 
additional written submissions or, as to issues other than excessive 
demand or substantial justification, an evidentiary hearing. * * *
    (b) A request that the presiding officer order further proceedings 
under this section shall specifically identify the information sought 
or the disputed issues and shall explain why the additional proceedings 
are necessary to resolve the issues.

0
85. Amend Sec.  1.1527 by revising the section heading and the first 
sentence and adding a new last sentence to read as follows:


Sec.  1.1527   Initial decision.

    A presiding officer (other than the Commission) shall issue an 
initial decision on the application as soon as possible after 
completion of proceedings on the application. * * * When the Commission 
is the presiding officer, the Commission may, but is not required to, 
issue an initial or recommended decision.

0
86. Amend Sec.  1.1528 by revising the last sentence to read as 
follows:


Sec.  1.1528   Commission review.

    * * * If review is taken, the Commission will issue a final 
decision on the application or remand the application to the presiding 
officer (other than the Commission) for further proceedings.

Subpart L--Random Selection Procedures for Mass Media Services

0
87. Amend Sec.  1.1604 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1.1604   Post-selection hearings.

* * * * *
    (b) If, after such hearing proceeding as may be necessary, the 
Commission determines that the ``tentative selectee'' has met the 
requirements of Sec.  73.3591(a) it will make the appropriate grant. If 
the Commission is unable to make such a determination, it shall order 
that another random selection be conducted from among the remaining 
mutually exclusive applicants, in accordance with the provisions of 
this subpart.
    (c) If, on the basis of the papers before it, the Commission 
determines that a substantial and material question of fact exists, it 
shall designate that question for hearing. Hearing proceedings shall be 
conducted by a presiding officer. See Sec.  1.241.

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
88. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.


0
89. Amend Sec.  76.7 by revising paragraph (g)(2) to read as follows:


Sec.  76.7   General special relief, waiver, enforcement, complaint, 
show cause, forfeiture, and declaratory ruling procedures.

* * * * *
    (g) * * *
    (2) Before designation for hearing, the staff shall notify, either 
orally or in writing, the parties to the proceeding of its intent to so 
designate, and the parties shall be given a period of ten (10) days

[[Page 63185]]

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.
* * * * *

0
90. Amend Sec.  76.1302 by revising paragraph (i)(2) to read as 
follows:


Sec.  76.1302   Carriage agreement proceedings.

* * * * *
    (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 Sec.  0.341(g) of this chapter apply.

[FR Doc. 2020-21090 Filed 10-2-20; 4:15 pm]
BILLING CODE 6712-01-P