« PreviousContinue »
be completed at such location before the hearing is moved therefrom. When such proceedings are completed, the presiding officer may move the hearing from the field location specified to another appropriate field location or to the District of Columbia.
§1.254 Nature of the hearing; burden of proof.
Any hearing upon an application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate but in which both the burden of proceeding with the introduction of evidence upon any issue specified by the Commission, 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.8.C. 309)
§ 1.255 Order of procedure.
(a) At hearings on a formal complaint or petition or in a proceeding for any instrument of authorization which the Commission is empowered to issue, the complainant, petitioner, or applicant, as the case may be, shall, unless the Commission otherwise orders, open and close. At hearings on protests, the protestant opens and closes the proceedings in case the issues are not specifically adopted by the Commission; otherwise the grantee does so. At hearings on orders to show cause, to cease and desist, to revoke or modify a station license under sections 312 and 316 of the Communications Act, or other like proceedings Instituted by the Commission, the Commission shall open and close.
(b) At all hearings under Title II of the Communications Act, other than hearings on formal complaints, petitions, or applications, the respondent shall open and close unless otherwise specified by the Commission.
(c) In all other cases, the Commission or presiding officer shall designate the order of presentation. Interveners shall follow the party In whose behalf intervention is made, and in all cases where the intervention is not in support of an original party, the Commission or presiding officer shall designate at what stage such interveners shall be heard.
[28 FR 12425, Nov. 22, 1963. as amended at S FR 463, Jan. 12.1968]
i 1.258 Closing of the hearing.
The record of hearing shall be closed by an announcement to that effect at the hearing by the presiding officer when the taking of testimony has been concluded. In the discretion of the presiding officer, the record may be closed as of a future specified date in order to permit the admission into the record of exhibits to be prepared: Provided, The parties to the proceeding stipulate on the record that they waive the opportunity to cross-examine or present evidence with respect to such exhibits. The record in any hearing which has been adjourned may not be closed by such officer prior to the day on which the hearing is to resume, except upon 10 days' notice to all parties to the proceeding.
§1.260 Certification of transcript.
After the close of the hearing, the complete transcript of testimony, together with all exhibits, shall be certified as to identity by the presiding officer and filed in the office of the Secretary of the Commission. Notice of such certification shall be served on all parties to the proceedings.
91.261 Corrections to transcript.
At any time during the course of the proceeding, or as directed by the presiding officer, but not later than 10 days after the date of notice of certification of the transcript, any party to the proceeding may file with the presiding officer a motion requesting' the correction of the transcript, which motion shall be accompanied by proof of service thereof upon all other parties to the proceeding. Within 5 days after the filing of such a motion, other parties may file a pleading in support of or in opposition to such motion. Thereafter, the presiding officer shall, by order, specify the corrections to be made in the transcript, and a copy of the order shall be served upon all parties and made a part of the record. The presiding officer, on his own initiative, may specify corrections to be made in the transcript on S days' notice.
[40 FR 51441, Nov. 5.1975]
$1,263 Proposed findings and conclusions.
(a) Each party to the proceeding: may file proposed findings of fact and conclusions, briefs, or memoranda of law: Provided, however. That the presiding officer may direct any party other than Commission counsel to file proposed findings of fact and conclusions, briefs, or memoranda of law. Such proposed findings of fact, conclusions, briefs, and memoranda of law shall be filed within 20 days after the record is closed, unless additional time is allowed.
(b) All pleadings and other papers filed pursuant to this section shall be accompanied by proof of service thereof upon all other counsel in the proceeding; if a party is not represented by counsel, proof of service upon such party shall be made.
(c) In the absence of a showing of good cause therefor, the failure to file proposed findings of fact, conclusions, briefs, or memoranda of law, when directed to do so, may be deemed a waiver of the right to participate further in the proceeding.
(5 U.8.C. 567)
§1.264 Contents of findings of fact and conclusions.
Proposed findings of fact shall be set forth in serially numbered paragraphs and shall set out in detail and with particularity all basic evidentiary facts developed on the record (with appropriate citations to the transcript of record or exhibit relied on for each evidentiary fact) supporting the conclusions proposed by the party filing same. Proposed conclusions shall be separately stated. Proposed findings of fact and conclusions submitted by a person other than an applicant may be limited to those issues in connection with the hearing which affect the interests of such person.
! 1.267 l«t*i«l and recommended decisions.
(a) Except as provided in this paragraph, in Hl-94. 1 251 and 1.274, or where the proceeding is terminated on motion (see §1.302). the presiding officer shall prepare an initial (or recommended) decision, which shall be
transmitted to the Secretary of the Commission. In the case of rate making proceedings conducted under sections 201-205 of the Communications Act, the presumption shall be that the presiding officer shall prepare an initial or recommended decision. The Secretary will make the decision public immediately and file it in the docket of the case.
(b) Each initial and recommended decision shall contain findings of fact and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; each initial decision shall also contain the appropriate rule or order, and the sanction, relief or denial thereof; and each recommended decision shall contain recommendations as to what disposition of the case should be made by the Commission. Each initial decision will show the date upon which it will become effective in accordance with the rules in this part in the absence of exceptions, appeal, or review.
(c) The authority of the Presiding Officer over the proceedings shall cease when he has filed his Initial or Recommended Decision, or if it is a case in which he is to file no decision, when he has certified the case for decision: Provided, however. That he shall retain limited jurisdiction over the proceeding for the purpose of effecting certification of the transcript and corrections to the transcript, as provided in §§1.260 and 1.261, respectively, and for the purpose of ruling initially on applications for awards of fees and expenses under the Equal Access to Justice Act.
(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C.
409. 5 U.S.C. 557; sees. 4. 303. 307, 48 Stat., as
amended, 1066. 1082. 1083: 47 U.S.C. 154. 303,
[28 FR 12425, Nov. 22. 1963. as amended at 41
FR 14873, Apr. 8. 1976; 47 FR 3786, Jan. 27.
§ 1.271 Delegation of review function.
The Commission may direct, by order or rule, that its review function in a case or category of cases be performed by a commissioner, a panel of commissioners, or by the Review Board, in which event the commissioner, panel. or board shall exercise the authority and perform the functions which would otherwise have been performed by the Commission under §§1.273 through 1.282.
Note: Parties to any proceeding designated for hearing prior to August 31, 1961, are entitled to file exceptions to initial decisions with the Commission and to oral argument before the Commission en banc. (Sec. 5. 48 Stat. 1068. as amended; 47 U.S.C. 156)
S 1.273 Waiver of initial or recommended decision.
At the conclusion of the hearing or within 20 days thereafter, 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, a panel of commissioners, or by the Review Board, the request shall be directed to the appropriate review authority. The Commission or such review authority may in its discretion grant the request, in whole or in part, if such action will best conduce to the proper dispatch of business and to the ends of Justice.
S1-274 Certification of the record to the Commission for initial or final decision.
(a) Where the presiding officer is available to the Commission, and where the Commission finds upon the record that due and timely execution of Its functions imperatively and unavoidably so requires, the Commission may direct that the record in a pending proceeding be certified to it for initial or final decision. Unless the Commission finds that due and timely execution of its functions imperatively and unavoidably requires that no recommended decision be issued, the presiding officer will prepare and file a recommended decision, which will be released with the Commission's initial or final decision.
(b) Where the presiding officer becomes unavailable to the Commission after the taking of testimony has been concluded, the Commission may direct that the record in a pending proceeding be certified to It for initial or final de
cision. In that event, the record shall be certified to the Commission by the Chief Administrative Law Judge.
(cXD Where the presiding officer becomes unavailable to the Commission after the taking of evidence has commenced but before it has been concluded, the Commission may order a rehearing before another presiding officer designated in accordance with §1.241.
(2) Upon a finding that due and timely execution of its functions imperatively and unavoidably so requires, the Commission may (as an alternative) order that the hearing be continued by another presiding officer designated In accordance with $1,241 or by the Commission itself. In that event, the officer continuing the hearing shall, upon completion of the hearing, certify the proceeding to the Commission for an initial or final decision. Unless the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably requires that no recommended decision be issued, the officer continuing the hearing shall prepare and file a recommended decision to be released with the Commission's initial or final decision. If all the parties expressly consent, and if the Commission does not order otherwise, the officer continuing: the hearing may prepare an initial decision.
(Sec. 409. 48 Stat. 1096. as amended; 47 U.S.C 409)
i 1.276 Appeal and review of initial decision.
(a)(1) Within 30 days after the date on which public release of the full text of an initial decision is made, or such other time as the Commission may specify, any of the parties may appeal to the Commission by filing exception! to the initial decision, and such dec: sion shall not become effective and shall then be reviewed by the Commission, whether or not such exceptions may thereafter be withdrawn. It is the Commission's policy that extensions of time for filing exceptions shall not be routinely granted.
(2) Exceptions shall be consolidated with the argument in a supporting brief and shall not be submitted separately. As used in this subpart, the term "exceptions" means the document consolidating the exceptions and supporting brief. The brief shall contain (1) a table of contents, (11) a table of citations, (ill) a concise statement of the case, (lv) a statement of the questions of law presented, and (v) the argument, presenting clearly the points of fact and law relied upon in support of the position taken on each question, with specific reference to the record and all legal or other materials relied on.
(b) The Commission may on its own initiative provide, by order adopted not later than 20 days after the time for filing exceptions expires, that an initial decision shall not become final, and that It shall be further reviewed or considered by the Commission.
(c) In any case in which an Initial decision is subject to review in accordance with paragraph (a) or (b) of this section, the Commission may, on its own initiative or upon appropriate requests by a party, take any one or more of the following actions:
(1) Hear oral argument on the exceptions;
(2) Require the filing of briefs;
(3) Prior to or after oral argument or the filing of exceptions or briefs, reopen the record and/or remand the proceedings to the presiding officer to take further testimony or evidence;
(4) Prior to or after oral argument or the filing of exceptions or briefs, remand the proceedings to the presiding officer to make further findings or conclusions; and
(5) Prior to or after oral argument or the filing of exceptions or briefs, issue, or cause to be issued by the presiding officer, a supplemental initial decision.
(d) No Initial decision shall become effective before 50 days after public release of the full text thereof is made unless otherwise ordered by the Commission. The timely filing of exceptions, the further review or consideration of an initial decision on the Commission's initiative, or the taking of action by the Commission under paragraph (c) of this section shall stay the effectiveness of the initial decision until the Commission's review thereof has been completed. If the effective date of an Initial decision falls within any further time allowed for the filing
of exceptions, it shall be postponed automatically until 30 days after time for filing exceptions has expired.
(e) If no exceptions are filed, and the Commission has not ordered the review of an initial decision on its initiative, or has not taken action under paragraph (c) of this section, the initial decision shall become effective, an appropriate notation to that effect shall be entered In the docket of the case, and a "Public Notice" thereof shall be given by the Commission. The provisions of §1.108 shall not apply to such public notices.
(f) When any party falls to file exceptions within the specified time to an initial decision which proposes to deny its application, such party shall be deemed to have no interest In further prosecution of Its application, and its application may be dismissed with prejudice for failure to prosecute.
(Sec. 40, 48 Stat. 1096, as amended; 47 U.S.a
[28 FR 12425, Nov. 22. 1963. as amended at 41
FR 14873. Apr. 8, 1976]
§1.277 Exceptions; oral arguments.
(a) The consolidated supporting brief and exceptions to the initial decision (see S 1.276(a)(2)), including rulings upon motions or objections, shall point out with particularity alleged material errors in the decision or ruling and shall contain specific references to the page or pages of the transcript of hearing, exhibit or order if any on which the exception is based. Any objection not saved by exception filed pursuant to this section is waived.
(b) Within the period of time allowed in § 1.276(a) for the filing of exceptions, any party may file a brief in support of an initial decision, in whole or in part, which may contain exceptions and which shall be similar in form to the brief in support of exceptions (see $1.276(aX2)).
(c) Except by special permission, the consolidated brief and exceptions will not be accepted if the exceptions and argument exceed 25 double-spaced typewritten pages in length. (The table of contents and table of citations are not counted in the 25 page limit; however, all other contents of and attachments to the brief are counted.) Within 10 days, or such other time as the Commission or delegated authority may specify, after the time for filing exceptions has expired, any other party may file a reply brief, which shall not exceed 25 double spaced typewritten pages and shall contain a table of contents and a table of citations. If exceptions have been filed, any party may request oral argument not later than five days after the time for filing replies to the exceptions has expired. The Commission or delegated authority, in its discretion, will grant oral argument by order only in cases where such oral presentations will assist in the resolution of the issues presented. Within five days after release of an order designating an initial decision for oral argument, as provided in paragraph (d) of this section, any party who wishes to participate in oral argument shall file a written notice of intention to appear and participate in oral argument. Failure to file a written notice shall constitute a waiver of the opportunity to participate.
(d) Each order scheduling a case for oral argument will contain the allotment of time for each party for oral argument before the Commission. The Commission will grant, in its discretion, upon good cause shown, an extension of such time upon petition by a party, which petition must be filed within 5 days after issuance of said order for oral argument.
(e) Within 10 days after a transcript of oral argument has been filed in the office of the Secretary of the Commission, any party who participated in the oral argument may file with the Commission a motion requesting correction of the transcript, which motion shall be accompanied by proof of service thereof upon all other parties who participated in the oral argument. Within 5 days after the filing of such a motion, other parties may file a pleading in support of or in opposition to such motion. Thereafter, the officer who presided at the oral argument shall, by order, specify the corrections to be made in the transcript, and a copy of the order shall be served upon all parties to the proceeding. The officer who presided at the oral argument may, on his own initiative, by order, specify corrections to be made in the transcript on 5 days notice of the proposed
corrections to all parties who participated in the oral argument.
(f) Any commissioner or member of the Review Board who is not present at oral argument and who is otherwise authorized to participate in a final decision may participate in making that decision after reading the transcript of oral argument.
(Sec. 409, 48 Stat. 1096. as amended; 47 U.S.C
[28 FR 12425. Nov. 22. 1963, as amended at 41
FR 14873. Apr. 8, 1976; 41 FR 34259. Aug. 13.
1976; 44 FR 12426. Mar. 7. 1979; 56 FR 793, Jan.
§ 1.279 Limitation of matters to be reviewed.
Upon review of any initial decision, the Commission may, in its discretion, limit the issues to be reviewed to those findings and conclusions to which exceptions have been filed, or to those findings and conclusions specified in the Commission's order of review Issued pursuant to § 1.276(b).
S 1.282 Final decision of the Commission.
(a) After opportunity has been afforded for the filing of proposed findings of fact and conclusions, exceptions, supporting statements, briefs, and for the holding of oral argument as provided In this subpart, the Commission will issue a final decision in each case in which an initial decision has not become final.
(b) The final decision shall contain:
(1) Findings of fact and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record;
(2) Rulings on each relevant and material exception filed; the Commission will deny irrelevant exceptions, or those which are not of decisional significance, without a specific statement of reasons prescribed by paragraph (b) (1) of this section; and
(3) The appropriate rule or oder and the sanction, relief or denial thereof.
(Sec. 8(b), 60 Stat. 2422; 5 U.S.C. 1007(b))
[28 FR 12425. Nov. 22. 1963, as amended at 41
FR 14873, Apr. 8, 1976]