Page images
PDF
EPUB

term "exceptions" means the docu- of exceptions, it shall be postponed ment consolidating the exceptions and automatically until 30 days after time supporting brief. The brief shall con- for filing exceptions has expired. tain (1) a table of contents, (il) a table (e) If no exceptions are filed, and the of citations, (iii) a concise statement of Commission has not ordered the review the case, (iv) a statement of the ques- of an initial decision on its initiative, tions of law presented, and (v) the ar- or has not taken action under paragument, presenting clearly the points graph (c) of this section, the initial deof fact and law relied upon in support

cision shall become effective, an approof the position taken on each question, priate notation to that effect shall be with specific reference to the record entered in the docket of the case, and and all legal or other materials relied a “Public Notice" thereof shall be on.

given by the Commission. The provi(b) The Commission may on its own sions of $1.108 shall not apply to such initiative provide, by order adopted not public notices. later than 20 days after the time for fil

(1) When any party fails to file excep ing exceptions expires, that an initial tions within the specified time to an decision shall not become final, and

initial decision which proposes to deny that it shall be further reviewed or its application, such party shall be considered by the Commission.

deemed to have no interest in further (c) In any case in which an initial de- prosecution of its application, and its cision is subject to review in accord

application may be dismissed with ance with paragraph (a) or (b) of this prejudice for failure to prosecute. section, the Commission may, on its (Sec. 40, 48 Stat. 1096, as amended; 47 U.S.C. own initiative or upon appropriate re- 409) quests by a party, take any one or (28 FR 12425, Nov. 22, 1963, as amended at 41 more of the following actions:

FR 14873, Apr. 8, 1976) (1) Hear oral argument on the excep tions;

81.277 Exceptions; oral arguments. (2) Require the filing of briefs;

(a) The consolidated supporting brief (3) Prior to or after oral argument or and exceptions to the initial decision the filing of exceptions or briefs, re- (see $1.276(a)(2)), including rulings upon open the record and/or remand the pro- motions or objections, shall point out ceedings to the presiding officer to with particularity alleged material ertake further testimony or evidence; rors in the decision or ruling and shall

(4) Prior to or after oral argument or contain specific references to the page the filing of exceptions or briefs, re- or pages of the transcript of hearing, mand the proceedings to the presiding exhibit or order if any on which the exofficer to make further findings or con- ception is based. Any objection not clusions; and

saved by exception filed pursuant to (5) Prior to or after oral argument or this section is waived. the filing of exceptions or briefs, issue, (b) Within the period of time allowed or cause to be issued by the presiding in $1.276(a) for the filing of exceptions, officer, a supplemental initial decision. any party may file a brief in support of

(d) No initial decision shall become an initial decision, in whole or in part, effective before 50 days after public re- which may contain exceptions and lease of the full text thereof is made which shall be similar in form to the unless otherwise ordered by the Com- brief in support of exceptions (see mission. The timely filing of excep- $1.276(a)(2)). tions, the further review or consider- (c) Except by special permission, the ation of an initial decision on the Com- consolidated brief and exceptions will mission's initiative, or the taking of not be accepted if the exceptions and action by the Commission under para- argument exceed 25 double-spaced graph (c) of this section shall stay the typewritten pages in length. (The table effectiveness of the initial decision of contents and table of citations are until the Commission's review thereof not counted in the 25 page limit; howhas been completed. If the effective ever, all other contents of and attachdate of an initial decision falls within ments to the brief are counted.) Within any further time allowed for the filing 10 days, or such other time as the Com

corrections to all parties who participated in the oral argument.

(1) 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. 409) [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. 9, 1991)

mission 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

8 1.279 Limitation of matters to be re

viewed. 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). 8 1.282 Final decision of the Commis

sion. (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)

INTERLOCUTORY ACTIONS IN HEARING (Secs. 4(1), 303(r) and 5(d)(1) of the CommuPROCEEDINGS

nications Act of 1934, as amended; 47 CFR

0.61 and 0.283) $1.291 General provisions.

[29 FR 6443, May 16, 1964, as amended at 29 (a)(1) The Commission acts on peti

FR 12773, Sept. 10, 1964; 37 FR 19372, Sept. 20,

1972; 41 FR 14873, Apr. 8, 1976; 49 FR 4381, Feb. tions to amend, modify, enlarge or de

6, 1984) lete the issues in hearing proceedings which involve rule making matters ex- $1.294 Oppositions and replies. clusively. It also acts on interlocutory

(a) Any party to a hearing may file pleadings filed in matters or proceedings which are before the Commission.

an opposition to an interlocutory re

quest filed in that proceeding. (2) The Review Board acts on inter

(b) Except as provided in paragraph locutory pleadings in proceedings

(c) of this section, oppositions shall be which are before the Board.

filed within 4 days after the original (3) The Chief Administrative Law

pleading is filed, and replies to opposiJudge acts on those interlocutory mat

tions will not be entertained. See, howters listed in 80.351 of this chapter.

ever, $1.732. (4) All other interlocutory matters in

(c) Oppositions to pleadings in the hearing proceedings are acted on by following categories shall be filed withthe presiding officer. See $80.218 and

in 10 days after the pleading is filed. 0.341 of this chapter.

Replies to such oppositions shall be (5) Each interlocutory pleading shall

filed within 5 days after the opposition indicate in its caption whether the

is filed, and shall be limited to matters pleading is to be acted upon by the

raised in the opposition. Commission, the Review Board, the

(1) Petitions to amend, modify, enChief Administrative Law Judge, or

large, or delete the issues upon which the presiding officer. If the pleading is

the hearing was ordered. to be acted upon by the presiding offi

(2) (Reserved) cer, he shall be identified by name.

(3) Petitions by adverse parties re(b) All interlocutory pleadings shall

questing dismissal of an application. be submitted in accordance with the

(4) Joint requests for approval of provisions of $$1.4, 1.44, 1.47, 1.48, 1.49,

agreements filed pursuant to $1.525. and 1.52.

(d) Additional pleadings may be filed (c)(1) Procedural rules governing in

only if specifically requested or auterlocutory pleadings are set forth in thorized by the person(s) who is to $$1.2941.298.

make the ruling. (2) Rules governing appeal from, and reconsideration of, interlocutory rul

[29 FR 6444, May 16, 1964, as amended at 39 ings made by the presiding officer are

FR 10909, Mar. 22, 1974) set forth in $81.301 and 1.303.

$1.296 Service. (3) Rules governing the review of interlocutory rulings made by the Re

No pleading filed pursuant to $1.51 or view Board or the Chief Administrative $1.294 will be considered unless it is acLaw Judge are set forth in $$1.101,

companied by proof of service upon the 1.102(b), 1.115, and 1.117. Petitions re

parties to the proceeding. questing reconsideration of an inter- (Secs. 4(1), 303(r) and 5(d)(1) of the Commulocutory ruling made by the Commis- nications Act of 1934, as amended; 47 CFR sion, the Review Board, or the Chief 0.61 and 0.283) Administrative Law Judge will not be [49 FR 4381, Feb. 6, 1984) entertained. See, however, $1.113.

(d) No initial decision shall become $1.297 Oral argument. effective under $1.276(e) until all inter- Oral argument with respect to any locutory matters pending before the contested interlocutory matter will be Review Board or the Commission in the held when, in the opinion of the proceeding at the time the initial deci- person(s) who is to make the ruling, sion is issued have been disposed of and the ends of justice will be best served the time allowed for appeal from inter- thereby. Timely notice will be given of locutory rulings of the presiding officer the date, time, and place of any such or the Review Board has expired. oral argument.

[29 FR 6444, May 16, 1964)

(3) If the presiding officer's ruling de

nies a motion to disqualify the presid$ 1.298 Rulings; time for action.

ing judge, the ruling is appealable as a (a) Unless it is found that irreparable matter of right. injury would thereby be caused one of (4) Rulings granting a joint request the parties, or that the public interest filed under $1.525 without terminating requires otherwise, or unless all parties the proceeding are appealable by any have consented to the contrary, consid- party as a matter of right. eration of interlocutory requests will (5) A ruling removing counsel from be withheld until the time for filing op the hearing is appealable as a matter of positions (and replies, if replies are al- right, by counsel on his own behalf or lowed) has expired. As a matter of dis- by his client. (In the event of such rulcretion, however, requests for continu- ing, the presiding officer will adjourn ances and extensions of time, requests the hearing for such period as is reafor permission to file pleadings in ex- sonably necessary for the client to secess of the length prescribed in this cure new counsel and for counsel to fachapter, and requests for temporary re- miliarize himself with the case). lief may be ruled upon ex parte without (b) Other interlocutory rulings. Except waiting for the filing of responsive as provided in paragraph (a) of this secpleadings.

tion, appeals from interlocutory rul(b) In the discretion of the presiding ings of the presiding officer shall be officer, rulings on interlocutory mat- filed only if allowed by the presiding ters may be made orally at the hear- officer. Any party desiring to file an ing. The presiding officer may, in his appeal shall first file a request for perdiscretion, state his reasons on the mission to file appeal. The request record or subsequently issue a written shall be filed within 5 days after the statement of the reasons for his ruling, order is released or (if no written either separately or as part of the ini- order) after the ruling is made. Pleadtial decision.

ings responsive to the request shall be

filed only if they are requested by the [28 FR 12425, Nov. 22, 1963, as amended at 29 FR 6444, May 16, 1964; 41 FR 14874, Apr. 8,

presiding officer. The request shall 1976)

contain a showing that the appeal pre

sents a new or novel question of law or APPEAL AND RECONSIDERATION OF policy and that the ruling is such that PRESIDING OFFICER'S RULING error would be likely to require remand

should the appeal be deferred and $ 1.301 Appeal from presiding officer's raised as an exception. The presiding

interlocutory ruling; effective date officer shall determine whether the of ruling.

showing is such as to justify an inter(a) Interlocutory rulings which are ap- locutory appeal and, in accordance pealable as a matter of right. Rulings with his determination, will either listed in this paragraph are appealable allow or disallow the appeal or modify as a matter of right. An appeal from the ruling. If the presiding officer alsuch a ruling may not be deferred and lows or disallows the appeal, his ruling raised as an exception to the initial de- is final: Provided, however, that the cision.

Commission may, on its own motion, (1) If the presiding officer's ruling de- dismiss an appeal allowed by the prenies or terminates the right of any per- siding officer on the ground that objecson to participate as a party to a hear- tion to the ruling should be deferred ing proceeding, such person, as a mat- and raised as an exception. In the dister of right, may file an appeal from cretion of the presiding officer, the rethat ruling.

quest for permission to file appeal may (2) If the presiding officer's ruling re- be made orally, on the record of the quires testimony or the production of proceeding. The request may be disdocuments, over objection based on a posed of orally. claim of privilege, the ruling on the (1) If an appeal is not allowed, or is claim of privilege is appealable as a dismissed by the Commission, or if permatter of right.

mission to file an appeal is not re

1976; 41 FR 28789, July 13, 1976; 46 FR 58682, Dec. 3, 1981; 55 FR 36641, Sept. 6, 1990)

quested, objection to the ruling may be raised 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 on review of the initial decision.

(3) If the presiding officer modifies the 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) Procedures, effective date. (1) Unless the presiding officer orders otherwise, rulings made by him 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 which comes before it for consideration on appeal.

(2) Appeals filed under paragraph (a) of this section shall be filed within 5 days after the order is released or (if no written order) after the ruling is made. Appeals filed under paragraph (b) of this section shall be filed within 5 days after the appeal is allowed.

(3) The appeal shall conform with the specifications set out in $1.49 and shall be subscribed and verified as provided in $1.52.

(4) The appeal shall be served on parties to the proceeding (see $$1.47 and 1.211), and shall be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554.

(5) The appeal shall not exceed 5 double-spaced typewritten pages.

(6) Appeals are acted on by the Review Board.

(7) Oppositions and replies shall be served and filed in the same manner as appeals and shall be served on appellant if he is not a party to the proceeding. Oppositions shall be filed within 5 days after the appeal is filed. Replies shall not be permitted, unless the Commission specifically requests them. Op positions shall not exceed 5 doublespaced typewritten pages. Replies shall not exceed 5 double-spaced typewritten pages. (Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154, 303, 307) (35 FR 17333, Nov. 11, 1970, as amended at 40 PR 39509, Aug. 28, 1975; 41 FR 14874, Apr. 8,

$ 1.302 Appeal from presiding officer's

final ruling, effective date of ruling. (a) If the presiding officer's ruling terminates a hearing proceeding, any party to the proceeding, as a matter of right, may file an appeal from that ruling within 30 days after the ruling is released.

(b) Any party who desires to preserve the right to appeal shall file a notice of appeal within 10 days after the ruling is released. If a notice of appeal is not filed within 10 days, the ruling shall be effective 30 days after the ruling is released and within this period, may be reviewed by the Commission or the Review Board on its own motion. If an appeal is not filed following notice of appeal, the ruling shall be effective 50 days after the day of its release and, within this period, may be reviewed by the Commission or the Review Board on its own motion. If an appeal is filed, or if the Commission or the Review Board reviews the ruling on its own motion, the effect of the ruling is further stayed pending the completion of proceedings on appeal or review.

(c) The appeal shall conform with the specifications set out in $1.49 and shall be subscribed and verified as provided in $1.52.

(d) The appeal shall be served on parties to the proceeding (see $81.47 and 1.211), and shall be filed with the Secretary, Federal Communications Commission, Washington, D.C. 20554.

(e) The appeal shall not exceed 25 double-spaced typewritten pages.

(1) If the Commission would have reviewed an initial decision in the proceeding (see $0.365(a) of this chapter), the Commission will act on the appeal. In all other cases, the appeal will be acted on by the Review Board. The cap tion of the appeal shall specify whether the appeal is to be acted on by the Commission or the Review Board.

(8) Oppositions and replies shall be filed and served in the same manner as the appeal. Oppositions to an appeal shall be filed within 15 days after the appeal is filled. Replies to oppositions shall be filed within 10 days after the opposition is filed and shall be limited to matters raised in the oppositions.

« PreviousContinue »