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first designated for hearing the prior application or applications with which such application is in conflict.
(3) Common carrier cases: (i) General rule. Where an application is mutually exclusive with a previously filed application, the second application will be entitled to comparative consideration with the first or entitled to be included in a random selection process, only if the second has been properly filed at least one day before the Commission takes action on the first application. Specifically, the later filed application must have been received by the Commission, in a condition acceptable for filing, before the close of business on the day prior to the grant date or designation date of the earlier filed application.
(ii) Domestic public fired and public mobile. See Rule $821.31 and 22.31 for the requirements as to mutually exclusive applications. See also Rule $821.23 and 22.23 for the requirements as to amendments of applications.
(iii) Public coast stations (Maritime mobile service). See paragraph (b)(4) of this section.
(4) This paragraph applies when mutually-exclusive applications subject to section 309(b) of the Communications Act are filed in the Private Radio Services or when there are more such applications for initial licenses than can be accommodated on available frequencies. In such cases, the applications either will be consolidated for hearing or designated for random selection (see $1.972 of this part). An application which is substantially amended (as defined by $1.962(c) of this part) will, for the purpose of this section, be considered to be a newly-filed application as of the receipt date of the amendment. Except for applications filed under part 94, Private Operational Fixed Microwave Service, mutual exclusivity will occur if the later application or applications are received by the Commission's offices in Gettysburg, PA (or Pittsburgh, PA for applications requiring the fees set forth at part 1, subpart G of the rules) in a condition acceptable for filing within 30 days after the release date of public notice listing the first prior filed application (with which subsequent applications are in conflict) as having been accepted for
filing or within such other period as specified by the Commission. For applications in the Private Operational Fixed Microwave Service, mutual exclusivity will occur if two or more acceptable applications that are in conflict are filed on the same day.
(5) Any mutually exclusive application filed after the date prescribed in paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section will be dismissed without prejudice and will be eligible for refiling only after a final decision is rendered by the Commission with respect to the prior application or applications or after such application or applications are dismissed or removed from the hearing docket.
(6) An application which is mutually exclusive with an application for renewal of license of a broadcast station will be designated for comparative hearing with such license renewal application if it is substantially complete and tendered for filing no later than the date prescribed in $1.516(e). (28 FR 12425, Nov. 22, 1963, as amended at 34 FR 7966, May 21, 1969; 37 FR 13983, July 15, 1972; 38 FR 26202, Sept. 19, 1973; 48 FR 27200, June 13, 1983; 48 FR 34039, July 27, 1983; 52 FR 10229, Mar. 31, 1987; 55 FR 46008, Oct. 31, 1990; 55 FR 46513, Nov. 5, 1990)
$ 1.229 Motions to enlarge, change, or
delete issues. (a) A motion to enlarge, change or delete the issues may be filed by any party to a hearing. Except as provided for in paragraph (b) of this section, such motions must be filed within 15 days after the full text or a summary of the order designating the case for hearing has been published in the FEDERAL REGISTER.
(b)(1) In comparative broadcast proceedings involving applicants for only new facilities, such motions shall be filed within 30 days of the release of the designation order, except that persons not named as parties to the proceeding in the designation order may file such motions with their petitions to intervene up to 30 days after publication of the full text or a summary of the designation order in the FEDERAL REGISTER. (See $1.223 of this part).
(2) In comparative broadcast proceedings involving renewal applicants, such motions shall be filed within 30 days
after publication of the full text or a discovery requests, and, if granted, summary of the designation order in such additional discovery will be the FEDERAL REGISTER.
scheduled to be completed within 30 (3) Any person desiring to file a mo- days of the action on the motion. tion to modify the issues after the ex- (2) The moving party may file supplepiration of periods specified in para mental discovery requests on the basis graphs (a), (b)(1), and (b)(2), of this sec- of information provided in responsive tion, shall set forth the reason why it pleadings or discovered as a result of was not possible to file the motion initial discovery on the enlarged issue. within the prescribed period. Except as The grant or denial of any such suppleprovided in paragraph (c) of this sec- mental requests and the timing of the tion, the motion will be granted only if completion of such supplemental disgood cause is shown for the delay in fil- covery are subject to the discretion of ing. Motions for modifications of issues the presiding judge. which are based on new facts or newly (3) The 30-day time limit for complediscovered facts shall be filed within 15 tion of discovery on enlarged issues days after such facts are discovered by shall not apply where the persons subthe moving party.
ject to such additional discovery are (c) In the absence of good cause for not parties to the proceeding. In such late filing of a motion to modify the is- case, additional time will be required sues, the motion to enlarge will be con- to afford such persons adequate notice sidered fully on its merits if (and only of the discovery procedures being emif) initial examination of the motion ployed. demonstrates that it raises a question (1) In any case in which the presiding of probable decisional significance and judge, the Review Board or the Comsuch substantial public interest impor- mission grants a motion to enlarge the tance as to warrant consideration in issues to inquire into allegations that spite of its untimely filing.
an applicant made misrepresentations (d) Such motions, opposition thereto, to the Commission or engaged in other and replies to oppositions shall contain misconduct during the application specific allegations of fact sufficient to process, the enlarged issues include nosupport the action requested. Such al- tice that, after hearings on the enlegations of fact, except for those of larged issue and upon a finding that which official notice may be taken, the alleged misconduct occurred and shall be supported by affidavits of a warrants such penalty, in addition to person or persons having personal or in lieu of denying the application, knowledge thereof. The failure to file the applicant may be liable for a foran opposition or a reply will not nec- feiture of up to the maximum statuessarily be construed as an admission tory amount. See 47 U.S.C. 503(b)(2)(A). of any fact or argument contained in a pleading.
[41 FR 14872, Apr. 8, 1976, as amended at 44
FR 34947, June 18, 1979; 51 FR 19347, May 29, (e) In comparative broadcast proceed
1986; 56 FR 792, Jan. 9, 1991; 56 FR 25639, June ings involving applicants for only new 5, 1991) facilities, in addition to the showing with respect to the requested issue
PRESIDING OFFICER modification described in paragraph (d) of this section, the party requesting $1.241 Designation of presiding offithe enlargement of issues against an
cer. applicant in the proceeding shall iden- (a) Hearings will be conducted by the tify those documents the moving party Commission, by one or more commiswishes to have produced and any other sioners, or by a law judge designated discovery procedures the moving party pursuant to section 11 of the Adminiswishes to employ in the event the re- trative Procedure Act. If a presiding ofquested issue is added to the proceed- ficer becomes unavailable to the Coming.
mission prior to the taking of testi(1) In the event the motion to enlarge mony another presiding officer will be issues is granted, the Commission or designated. delegated authority acting on the mo- (b) Unless the Commission detertion will also rule on the additional mines that due and timely execution of its functions requires otherwise, pre- (b) Where all applicants in the case siding officers shall be designated, and agree that such procedures may be bennotice thereof released to the public, at eficial, such requests may be filed with least 10 days prior to the date set for the presiding judge no later than 15 hearing.
days prior to the date scheduled by the (5 U.S.C. 556)
presiding judge for the commencement
of hearings. The presiding judge shall $1.243 Authority of presiding officer. suspend the procedural dates in the
case and forward the request to the From the time he is designated to
Chief Administrative Law Judge for acpreside until issuance of his decision or
tion. the transfer of the proceeding to the
(c) If, in the discretion of the Chief Commission or to another presiding of
Administrative Law Judge, it appears ficer the presiding officer shall have
that the appointment of a settlement such authority as is vested in him by
judge will facilitate the settlement of law and by the provisions of this chap
the case, the Chief Judge will appoint a ter, including authority to:
"neutral" as defined in 5 U.S.C. 581 and (a) Administer oaths and affirma
583(a) to act as the settlement judge. tions; (b) Issue subpenas;
(1) The parties may request the ap
pointment of a settlement judge of (c) Examine witnesses;
their own choosing so long as that per(d) Rule upon questions of evidence; (e) Take or cause depositions to be
son is a "neutral" as defined in 5 U.S.C.
(2) The appointment of a settlement (1) Regulate the course of the hearing, maintain decorum, and exclude
judge in a particular case is subject to
the approval of all the applicants in from the hearing any person engaging
the proceeding. See 5 U.S.C. 583(b). in contemptuous conduct or otherwise
(3) The Commission's Administrative disrupting the proceedings; (g) Require the filing of memoranda
Law Judges are eligible to act as set
tlement judges, except that an Adminof law and the presentation of oral ar
istrative Law Judge will not be apgument with respect to any question of pointed as a settlement judge in any law upon which he is required to rule
case in which the Administrative Law during the course of the hearing;
Judge also acts as the presiding officer. (h) Hold conferences for the settle
(4) Other members of the Commisment or simplification of the issues by
sion's staff who qualify as neutrals consent of the parties;
may bve appointed as settlement (1) Dispose of procedural requests or similar matters, as provided for in whose duties include drafting, review,
judges, except that staff members $0.341 of this chapter; () Take actions and make decisions
and/or recommendations in adjudica
tory matters pending before the Rein conformity with the Administrative
view Board or the Commission shall Procedure Act; (k) Act on motions to enlarge, mod
not be appointed as settlement judges.
(d) The settlement judge will have ify or delete the hearing issues; and
the authority to require applicants to (1) Act on motions to proceed in forma pauperis pursuant to $1.224.
submit their Standardized Integration
Statements and/or their written direct (5 U.S.C. 556)
cases for review. The settlement judge [28 FR 12425, Nov. 22, 1963, as amended at 41 may also meet with the applicants and FR 53022, Dec. 3, 1976)
or their counsel, individually and/or at
joint conferences, to discuss their cases $1.244 Designation of a settlement and the cases of their competitors. All judge.
such meetings will be off-the-record, (a) In broadcast comparative cases and the settlement judge may express involving applicants for only new fa- an opinion as to the relative comparacilities, the applicants may request the tive standing of the applicants and recappointment of a settlement judge to ommend possible means to resolve the facilitate the resolution of the case by proceeding by settlement. The proceedsettlement.
ings before the settlement judge shall be subject to the confidentiality provi- (5 U.S.C. 556) sions of 5 U.S.C. 584. Moreover, no [28 FR 12425, Nov. 22, 1963, as amended at 55 statements, offers of settlement, rep- FR 36641, Sept. 6, 1990) resentations or concessions of the parties or opinions expressed by the settle
PREHEARING PROCEDURES ment judge will be admissible as evidence in any Commission licensing pro
$ 1.246 Admission of facts and genuineceeding.
ness of documents.
(a) Within 20 days after the time for (56 FR 793, Jan. 9, 1991)
filing a notice of appearance has ex$ 1.245 Disqualification of presiding of
pired; or within 20 days after the reficer.
lease of an order adding parties to the
proceeding (see $$1.223 and 1.227) or (a) In the event that a presiding offi
changing the issues (see $1.229); or cer deems himself disqualified and de
within such shorter or longer time as sires to withdraw from the case, he
the presiding officer may allow on moshall notify the Commission of his
tion or notice, a party may serve upon withdrawal at least 7 days prior to the
any other party a written request for date set for hearing.
the admission by the latter of the (b) Any party may request the presid
genuineness of any relevant documents ing officer to withdraw on the grounds
identified in and exhibited by a clear of personal bias or other disqualifica
copy with the request or of the truth of tion.
any relevant matters of fact set forth (1) The person seeking disqualifica- in the request. tion shall file with the presiding officer
(b) Each of the matters of which an an affidavit setting forth in detail the
admission is requested shall be deemed facts alleged to constitute grounds for
admitted unless, within a period desdisqualification. Such affidavit shall be
ignated in the request, not less than 10 filed not later than 5 days before the days after service thereof, or within commencement of the hearing unless,
such shorter or longer time as the prefor good cause shown, additional time
siding officer may allow on motion or is necessary.
notice, the party to whom the request (2) The presiding officer may file a is directed serves upon the party reresponse to the affidavit; and if he be
questing the admission either: (1) A lieves himself not disqualified, shall so sworn statement denying specifically rule and proceed with the hearing.
the matters of which an admission is (3) The person seeking disqualifica requested or setting forth in detail the tion may appeal a ruling of disquali- reasons why he cannot truthfully fication, and, in that event, shall do so admit or deny those matters, or (2) at the time the ruling is made. Unless written objections on the ground that an appeal of the ruling is filed at this some or all of the requested admissions time, the right to request withdrawal are privileged or irrelevant or that the of the presiding officer shall be deemed request is otherwise improper in whole waived.
or in part. If written objections to a (4) If an appeal of the ruling is filed, part of the request are made, the rethe presiding officer shall certify the mainder of the request shall be anquestion, together with the affidavit swered within the period designated in and any response filed in connection the request. A denial shall fairly meet therewith, to the Review Board. The the substance of the requested admishearing shall be suspended pending a sion, and when good faith requires that ruling on the question by the Board. a party deny only a part or a qualifica
(5) The Board may rule on the ques- tion of a matter of which an admission tion without hearing, or it may require is requested, he shall specify so much testimony or argument on the issues of it as is true and deny only the reraised.
mainder. (6) The affidavit, response, testimony (c) A copy of the request and of any or argument thereon, and the Board's answer shall be served by the party fildecision shall be part of the record in ing on all other parties to the proceedthe case.
ing and upon the presiding officer.
(d) Written objections to the requested admissions may be ruled upon by the presiding officer without additional pleadings. [33 FR 463, Jan. 12, 1968, as amended at 35 FR 17333, Nov. 11, 1970)
$1.248 Prehearing conferences; hear
ing conferences. (a) The Commission, on its own initiative or at the request of any party, may direct the parties or their attorneys to appear at a specified time and place for a conference prior to a hearing, or to submit suggestions in writing, for the purpose of considering, among other things, the matters set forth in paragraph (c) of this section. The initial prehearing conference shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date.
(b)(1) The presiding officer (or the Commission or a panel of commissioners in a case over which it presides), on his own initiative or at the request of any party, may direct the parties or their attorneys to appear at a specified time and place for a conference prior to or during the course of a hearing, or to submit suggestions in writing, for the purpose of considering any of the matters set forth in paragraph (c) of this section. The initial prehearing conference shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date.
(2) Except as circumstances otherwise require, the presiding officer shall allow a reasonable period prior to commencement of the hearing for the orderly completion of all prehearing procedures, including discovery, and for the submission and disposition of all prehearing motions. Where the circumstances so warrant, the presiding officer shall, promptly after the hearing is ordered, call a preliminary prehearing conference, to inquire into the use of available procedures contemplated by the parties and the time required for their completion, to formulate a schedule for their completion,
and to set a date for commencement of the hearing.
(c) In conferences held, or in suggestions submitted, pursuant to paragraphs (a) and (b) of this section, the following matters, among others, may be considered:
(1) The necessity or desirability of simplification, clarification, amplification, or limitation of the issues;
(2) The admission of facts and of the genuineness of documents (see $1.246), and the possibility of stipulating with respect to facts;
(3) The procedure at the hearing;
(4) The limitation of the number of witnesses;
(5) In cases arising under Title II of the Communications Act, the necessity or desirability of amending the pleadings and offers of settlement or proposals of adjustment; and
(6) In cases involving comparative broadcast applications:
(i) Narrowing the issues or the areas of inquiry and proof at the hearing;
(iii) Reports and letters relating to surveys or contacts;
(iv) Assumptions regarding the availability of equipment;
(v) Network programming;
(vi) Assumptions regarding the availability of networks proposed;
(vii) Offers of letters in general;
(viii) The method of handling evidence relating to the past cooperation of existing stations owned and/or operated by the applicants with organizations in the area;
(ix) Proof of contracts, agreements, or understandings reduced to writing;
(xiii) The order or offer of proof with relationship to docket number;
(xiv) The date for the formal hearing; and
(XV) Such other matters as may expedite the conduct of the hearing.
(7) In proceedings in which consent agreements may be negotiated (see $1.93), the parties shall be prepared to state at the initial prehearing conference whether they are at that time willing to enter negotiations leading to a consent agreement.