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than thirty days from the receipt of such order.
(c) To avail himself of such opportunity for hearing, the respondent, personally or by his attorney, shall file with the Commission, within thirty days of the service of the order or such shorter period as may be specified therein, a written appearance stating that he will appear at the hearing and present evidence on the matters specified in the order. The Commission in its discretion may accept a late appearance. However, an appearance tendered after the specified time has expired will not be accepted unless accompanied by a petition stating with particularity the facts and reasons relied on to Justify such late filing. Such petition for acceptance of late appearance will be granted only if the Commission determines that the facts and reasons stated therein constitute good cause for failure to file on time.
(d) Hearings on the matters specified In such orders to show cause shall accord with the practice and procedure prescribed In this subpart and Subpart B of this part, with the following exceptions: (1) In all such revocation and/ or cease and desist hearings, the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission; and (2) the Commission may specify in a show cause order, when the circumstances of the proceeding require expedition, a time less than that prescribed In H 1.276 and 1.277 within which the Initial decision in the proceeding shall become effective, exceptions to such Initial decision must be filed, parties must file requests for oral argument, and parties must file notice of intention to participate in oral argument.
(e) Correction of or promise to correct the conditions or matters complained of in a show cause order shall not preclude the issuance of a cease and desist order. Corrections or promises to correct the conditions or matters complained of, and the past record of the licensee, may, however, be considered in determining whether a revocation and/or a cease and desist order should be issued.
(f) Any order of revocation and/or
and desist order issued after
hearing pursuant to this section shall include a statement of findings and the grounds therefor, shall specify the effective date of the order, and shall be served on the person to whom such order is directed.
(Sec. 312. 48 suit 1086. as amended; 47 U.S.C. 312)
S 1-92 Revocation and/or cease and deslat proceedings; after waiver of hearing.
(a) After the issuance of an order to show cause, pursuant to §1.91, calling upon a person to appear at a hearing before the Commission, the occurrence of any one of the following events or circumstances will constitute a waiver of such hearing and the proceeding thereafter will be conducted in accordance with the provisions of this section.
(1) The respondent falls to file a • imely written appearance as prescribed in §1.91(0 indicating that he will appear at a hearing and present evidence on the matters specified In the order.
(2) The respondent, having filed a timely written appearance as prescribed in il.91(c). falls In fact to appear in person or by his attorney at the time and place of the duly scheduled hearing.
(3) The respondent files with the Commission, within the time specified for a written appearance In §1.91(c), a written statement expressly waiving his rights to a hearing.
(b) When a hearing Is waived under the provisions of paragraph (a) (1) or (3) of this section, a written statement signed by the respondent denying or seeking to mitigate or justify the circumstances or conduct complained of in the order to show cause may be submitted within the time specified in §1.91(c). The Commission in its discretion may accept a late statement. However, a statement tendered after the specified time has expired will not be accepted unless accompanied by a petition stating with particularity the facts and reasons relied on to Justify such late filing. Such petitions for acceptance of a late statement will be granted only if the Commission determines that the facts and reasons stated
therein constitute good cause for failure to file on time.
(c) Whenever a hearing is waived by the occurrence of any of the events or circumstances listed in paragraph (a) of this section, the Chief Administrative Law Judge (or the presiding officer if one has been designated) shall, at the earliest practicable date, issue an order reciting the events or circumstances constituting a waiver of hearing, terminating the hearing proceeding, and certifying the case to the Commission. Such order shall be served upon the respondent.
(d) After a hearing proceeding has been terminated pursuant to paragraph (c) of this section, the Commission will act upon the matters specified in the order to show cause in the regular course of business. The Commission will determine on the basis of all the information available to it from any source. Including such further proceedings as may be warranted, if a revocation order and/or a cease and desist order should issue, and if so, will issue such order. Otherwise, the Commission will issue an order dismissing the proceeding. All orders specified in this paragraph will include a statement of the findings of the Commission and the grounds and reasons therefor, will specify the effective date thereof, and will be served upon the respondent.
(e) Corrections or promise to correct the conditions or matters complained of in a show cause order shall not preclude the issuance of a cease and desist order. Corrections or promises to correct the conditions or matters complained of, and the past record of the licensee, may, however, be considered in determining whether a revocation and/ or a cease and desist order should be issued.
(Sec. 312. 48 Stat. 1066, as amended; 47 U.S.C.
[28 FR 12415, Nov. 22, 1963, as amended at 29
FR 6443. May 16. 1964; 37 FR 19372. Sept. 20.
J 1.93 Consent orders.
(a) As used In this subpart, a "consent order" Is a formal decree accepting an agreement between a party to an adjudicatory hearing proceeding held to determine whether that party has violated statutes or Commission
rules or policies and the appropriate operating Bureau, with regard to such party's future compliance with such statutes, rules or policies, and disposing of all issues on which the proceeding was designated for hearing. The order is issued by the officer designated to preside at the hearing or (if no officer has been designated) by the Chief Administrative Law Judge.
(b) Where the interests of timely enforcement or compliance, the nature of the proceeding, and the public interest permit, the Commission, by its operating Bureaus, may negotiate a consent order with a party to secure future compliance with the law in exchange for prompt disposition of a matter subject to administrative adjudicative proceedings. Consent orders may not be negotiated with respect to matters which involve a party's basic statutory qualifications to hold a license (see 47 U.S.C. 308 and 309).
[41 FR 14871. Apr. 8. 1976]
$ 1.94 Consent order procedures.
(a) Negotiations leading to a consent order may be initiated by the operating Bureau or by a party whose possible violations are issues in the proceeding. Negotiations may be initiated at any time after designation of a proceeding for hearing. If negotiations are initiated the presiding officer shall be notified. Parties shall be prepared at the Initial prehearing conference to state whether they are at that time willing to enter negotiations. See § 1.248(c)(7) If either party is unwilling to enter negotiations, the hearing proceeding shall proceed. If the parties agree to enter negotiations, they will be afforded an appropriate opportunity to negotiate before the hearing is commenced.
(b) Other parties to the proceeding are entitled, but are not required, to participate in the negotiations, and may join in any agreement which is reached.
(c) Every agreement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) A waiver of the usual procedures for preparation and review of an Initial decision;
(3) A waiver of the right of judicial review or otherwise to challenge or contest the validity of the consent order;
(4) A statement that the designation order may be used in construing the consent order;
(5) A statement that the agreement shall become a part of the record of the proceeding only if the consent order is signed by the presiding officer and the time for review has passed without rejection of the order by the Commission;
(6) A statement that the agreement is for purposes of settlement only and that its signing does not constitute an admission by any party of any violation of law, rules or policy (see 18 U.S.C. 6002); and
(7) A draft order for signature of the presiding officer resolving by consent, and for the future, all issues specified in the designation order.
(d) If agreement is reached, it shall be submitted to the presiding officer or Chief Administrative Law Judge, as the case may be, who shall either sign the order, reject the agreement, or suggest to the parties that negotiations continue on such portion of the agreement as he considers unsatisfactory or on matters not reached in the agreement. If he rejects the agreement, the hearing shall proceed. If he suggests farther negotiations, the hearing will proceed or negotiations will continue, depending on the wishes of parties to the agreement. If he signs the consent order, he shall close the record.
(e) Any party to the proceeding who has not joined in any agreement which is reached may appeal the consent order under §1.302, and the Commission may review the agreement on its own motion under the provisions of that section. If the Commission rejects the consent order, the proceeding will be remanded for further proceedings. If the Commission does not reject the consent order, it shall be entered In the record as a final order and is subject to judicial review on the initiative only of parties to the proceeding who did not join in the agreement. The Commission may revise the agreement and consent order. In that event, private parties to the agreement may either accept the revision or withdraw from the agreement. If the party whose possible viola
tions are issues in the proceeding withdraws from the agreement, the consent order will not be Issued or made a part of the record, and the proceeding will be remanded for further proceedings.
(0 The provisions of this section shall not alter any existing procedure for informal settlement of any matter prior to designation for hearing (see, e.g., 47 U.S.C. 208) or for summary decision after designation for hearing.
(g) Consent orders, pleadings relating thereto, and Commission orders with respect thereto shall be served on parties to the proceeding. Public notice will be given of orders Issued by an administrative law judge, the Chief Administrative Law Judge, or the Commission. Negotiating papers constitute work product, are available to parties participating in negotiations, but are not routinely available for public inspection.
[41 FR 14871, Apr. 8. 1976]
S 1.95 Violation of consent orders.
Violation of a consent order shall subject the consenting party to any and all sanctions which could have been Imposed in the proceeding resulting in the consent order if all of the issues in that proceeding had been decided against the consenting party and to any further sanctions for violation noted as agreed upon in the consent order. The Commission shall have the burden of showing that the consent order has been violated in some (but not in every) respect. Violation of the consent order and the sanctions to be imposed shall be the only issues considered in a proceeding concerning such an alleged violation.
[41 FR 14871, Apr. 8, 1976]
Reconsideration And Revdsw Of AcTions Taken Bt The Commission And Pursuant To Delegated AuThority; Effective Dates And FiNality Dates Of Actions
§1.101 General provisions.
Under section 5(d) of the Communications Act of 1934, as amended, the Commission is authorized, by rule or order, to delegate certain of its functions to a panel of commissioners, an individual commissioner, an employee board, or an individual employee. Section 0.201(a) of this chapter describes in general terms the basic categories of delegations which are made by the Commission. Subpart B of Part 0 of this chapter sets forth all delegations which have been made by rule. Sections 1.102 through 1.120 set forth procedural rules governing reconsideration and review of actions taken pursuant to authority delegated under section 5(d) of the Communications Act, and reconsideration of actions taken by the Commission. As used in §§1.102 through 1.117, the term "designated authority" means any person, panel, or board which has been authorized by rule or order to exercise authority under section 5(d) of the Communications Act.
§ 1.102 Effective dates of actions taken pursuant to delegated authority.
(a) Final actions following review of an initial decision. (1) Final decisions of the Review Board, a commissioner, or panel of commissioners following review of an initial decision shall be effective 40 days after public release of the full text of such final decision.
(2) If a petition for reconsideration of such final decision is filed, the effect of the decision is stayed until 40 days after release of the final order disposing of the petition.
(3) If an application for review of such final decision is filed, or if the Commission on its own motion orders the record of the proceeding before it for review, the effect of the decision is stayed until the Commission's review of the proceeding has been completed.
(b) Non-hearing and interlocutory actions. (1) Non-hearing or interlocutory actions taken pursuant to delegated authority shall, unless otherwise ordered by the designated authority, be effective upon release of the document containing the full text of such action, or in the event such a document is not released, upon release of a public notice announcing the action in question.
(2) If a petition for reconsideration of a non-hearing action is filed, the designated authority may in its discretion stay the effect of its action pending disposition of the petition for reconsideration. Petitions for reconsideration of interlocutory actions will not be entertained.
(3) If an application for review of a non-hearing or interlocutory action Is filed, or if the Commission reviewB the action on its own motion, the Commission may in its discretion stay the effect of any such action until its review of the matters at issue has been completed.
§1.103 Effective dates of Commission actions; finality of Commission actions.
(a) Unless otherwise specified by law or Commission rule (e.g. §§1.102 and 1.427), the effective date of any Commission action shall be the date of public notice of such action as that latter date Is defined in § 1.4(b) of these rules: Provided, That the Commission may, on its own motion or on motion by any party, designate an effective date that is either earlier or later in time than the date of public notice of such action. The designation of an earlier or later effective date shall have no effect on any pleading periods.
(b) Notwithstanding any determinations made under paragraph (a) of this section. Commission action shall be deemed final, for purposes of seeking reconsideration at the Commission or judicial review, on the date of public notice as defined in § 1.4(b) of these rules.
(Sees. 4. 303, 307. 48 Stat., as amended. 1066. 10S2, 1083; 47 U.S.C. 154, 303. 307) [46 FR 18556. Mar. 25. 1961]
§ 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 decisions of the Review Board following review of an initial decision and final actions taken by members of the Commission's staff on nonhealing matters. They do not apply to interlocutory actions of the Chief Administrative Law Judge in hearing proceedings, or to hearing designation orders issued under delegated authority. See §§0.351 1.106(a) and 1.115(e).
(b) Any person desiring Commission consideration of a final action taken pursuant to delegated authority shall file either a petition for reconsideration or an application for review (but not both) within 30 days from the date of public notice of such action, as that date is defined In (1.4(b) of these rules. The petition for reconsideration will be acted on by the designated authority or referred by such authority to the Commission: Provided, That a petition for reconsideration of an order designating a matter for hearing will in all cases be referred to the Commission. The application for review will In all cases be acted upon by the Commission.
Note: In those cases where the Commission does not Intend to release a document containing the full text of its action. It will state that fact In the public notice announcing its action.
(c) If in any matter one party files a petition for reconsideration and a second party files an application for review, the Commission will withhold action on the application for review until final action has been taken on the petition for reconsideration.
(d) Any person who has filed a petition for reconsideration may file an application for review within 30 days from the date of public notice of such action, as that date is defined in (1.4(b) of these rules. If a petition for reconsideration has been filed, any person who has filed an application for review may: (1) Withdraw his application for review, or (2) substitute an amended application therefor.
Note In those cases where the Commission does not Intend to release a document containing the full text of its action. It will Rate that fact In the public notice announcing Its action.
(Sees. 4. 303, 307, 48 Stat., as amended. 1066, 1082.10(3: 47 U.S.C. 164. 303. 307)
[» FR 12415, Nov. 23, 1963, as amended at 41 PR 14871, Apr. 8, 1976; 44 FR 60294, Oct. 19, 1S79-, 46 FR 18S56, Mar. 25.1981]
i 1.106 Petitions for reconsideration.
(aXl) Petitions requesting reconsideration of a final Commission action will be acted on by the Commission. Petitions requesting reconsideration of a final decision of the Review Board will be acted on by the Board or certified to the Commission (see §0.361 (b) ind (c) of this chapter). Petitions requesting reconsideration of other final actions taken pursuant to delegated
authority will be acted on by the designated authority or referred by such authority to the Commission. A petition for reconsideration of an order designating a case for hearing will be entertained if, and insofar as, the petition relates to an adverse ruling with respect to petitioner's participation in the proceeding. Petitions for reconsideration of other interlocutory actions will not be entertained. (For provisions governing reconsideration of Commission action in notice and comment rule making proceedings, see 81.429. This S 1.106 does not govern reconsideration of such actions.)
(2) Within the period allowed for filing a petition for reconsideration, any party to the proceeding may request the presiding officer to certify to the Commission the question as to whether, on policy in effect at the time of designation or adopted since designation, and undisputed facts, a hearing should be held. If the presiding officer finds that there is substantial doubt, on established policy and undisputed facts, that a hearing should be held, he will certify the policy question to the Commission with a statement to that effect. No appeal may be filed from an order denying such a request. See also, §§1.229 and 1.261.
(b)(1) Subject to the limitations set forth in paragraph (b)(2) of this section, any party to the proceeding, or any other person whose interests are adversely affected by any action taken by the Commission or by the designated authority, may file a petition requesting reconsideration of the action taken. If the petition is filed by a person who is not a party to the proceeding, it shall state with particularity the manner in which the person's interests are adversely affected by the action taken, and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding.
(2) Where the Commission has denied an application for review, a petition for reconsideration will be entertained only if one or more of the following circumstances is present:
(i) The petition relies on facts which relate to events which have occurred or circumstances which have changed