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Interlocutory Actions In Hearing

Proceedings

11.391 General provisions.

(aXl) The Commission acts on petitions to amend, modify, enlarge or delete the issues in hearing proceedings which involve rule making matters exclusively. It also acts on interlocutory pleadings filed in matters or proceedings which are before the Commission.

(2) The Review Board acts on interlocutory pleadings In proceedings which are before the Board.

(3) The Chief Administrative Law Judge acts on those interlocutory matters listed in $0,351 of this chapter.

(4) All other interlocutory matters in hearing proceedings are acted on by the presiding officer. See $$0,218 and 0.341 of this chapter.

(5) Each Interlocutory pleading shall indicate In its caption whether the pleading is to be acted upon by the Commission, the Review Board, the Chief Administrative Law Judge, or the presiding officer. If the pleading is to be acted upon by the presiding officer, he shall be identified by name.

(b) All interlocutory pleadings shall be submitted in accordance with the provisions of $$1.4. 1.44, 1.47, 1.48, 1.49, and 1.52.

(cXD Procedural rules governing interlocutory pleadings are set forth in HI 294—1.298.

(2) Rules governing appeal from, and reconsideration of, interlocutory rulings made by the presiding officer are set forth In $$ 1.301 and 1.303.

(3) Rules governing the review of interlocutory rulings made by the Review Board or the Chief Administrative Law Judge are set forth in $$ 1.101, 1.102(b), 1.115. and 1.117. Petitions requesting reconsideration of an interlocutory ruling made by the Commission, the Review Board, or the Chief Administrative Law Judge will not be entertained. See, however, $ 1.113.

(d) No Initial decision shall become effective under $ 1.276(e) until all interlocutory matters pending before the Review Board or 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 or the Review Board has expired.

(Sees. 4(1), 303(r) and 8(d)(1) of the Communications Act of 1934, as amended; 47 CFR 0.61 and 0.283)

[29 FR 6443, May 16, 1964, as amended at 29 FR 12773, Sept. 10, 1964; 37 FR 19372, Sept. 20. 1972; 41 FR 14873, Apr. 8, 1976; 49 FR 4381. Feb. 6,1984]

5 1.294 Oppositions and replies.

(a) Any party to a hearing may file an opposition to an interlocutory request filed in that proceeding.

(b) Except as provided in paragraph (c) of this section, oppositions shall be filed within 4 days after the original pleading is filed, and replies to oppositions will not be entertained. See, however, $1,732.

(c) Oppositions to pleadings in the following categories shall be filed within 10 days after the pleading is filed. Replies to such oppositions shall be filed within 5 days after the opposition is filed, and shall be limited to matters raised in the opposition.

(1) Petitions to amend, modify, enlarge, or delete the issues upon which the hearing was ordered.

(2) [Reserved]

(3) Petitions by adverse parties requesting dismissal of an application.

(4) Joint requests for approval of agreements filed pursuant to $ 1.525.

(d) Additional pleadings may be filed only If specifically requested or authorized by the person(s) who is to make the ruling.

[29 FR 6444, May 16, 1964, as amended at 39 FR 10909. Mar. 22. 1974]

$1,296 Service.

No pleading filed pursuant to $1.51 or $1,294 will be considered unless it is accompanied by proof of service upon the parties to the proceeding.

(Sees. 4(1), 303(r) and 5(d)(1) of the Communications Act of 1934, as amended; 47 CFR 0.61 and 0.283) [49 FR 4381. Feb. 6. 1984]

$ 1.297 Oral argument.

Oral argument with respect to any contested interlocutory matter will be held when, in the opinion of the person(s) who is to make the ruling, the ends of justice will be best served thereby. Timely notice will be given of the date, time, and place of any such oral argument.

[29 PR 6444. May 16. 1964]

§ 1.298 Rulings; time for action.

(a) Unless it is found that irreparable injury would thereby be caused one of the parties, or that the public interest requires otherwise, or unless all parties have consented to the contrary, consideration of interlocutory requests will be withheld until the time for filing oppositions (and replies, if replies are allowed) has expired. As a matter of discretion, however, requests for continuances and extensions of time, requests for permission to file pleadings in excess of the length prescribed in this chapter, and requests for temporary relief may be ruled upon ex parte without waiting for the filing of responsive pleadings.

(b) In the discretion of the presiding officer, rulings on interlocutory matters may be made orally at the hearing. The presiding officer may, in his discretion, state his reasons on the record or subsequently issue a written statement of the reasons for his ruling, either separately or as part of the initial decision.

[28 FR 12425, Nov. 22, 1963, as amended at 29 PR 6444, May 16, 1964; 41 FR 14874, Apr. 8, 1976]

Appeal And Reconsideration Of
Presiding Officer's Ruling

S 1.301 Appeal from presiding officer's interlocutory ruling; 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 the presiding officer's 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 the presiding officer's 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 the presiding officer's ruling denies a motion to disqualify the presiding judge, the ruling is appealable as a matter of right.

(4) Rulings granting a joint request filed under §1.525 without terminating the proceeding are appealable by any party as a matter of right.

(5) 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 for such period as is reasonably necessary for the client to secure new counsel and for counsel to familiarize himself with the case).

(b) Other interlocutory rulings. Except as provided in paragraph (a) of this section, appeals from interlocutory rulings of the presiding officer 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. 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. The presiding officer shall determine whether the showing is such as to justify an Interlocutory appeal and, in accordance with his determination, will either allow or disallow the appeal or modify the ruling. If the presiding officer allows or disallows the appeal, his ruling is final: Provided, however, That the Commission may, on its own motion, dismiss an appeal allowed by the presiding officer on the ground that objection to the ruling should be deferred and raised as an exception. In the discretion of the presiding officer, the request for permission to file appeal may be made orally, on the record of the proceeding. The request may be disposed of orally.

(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 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 6 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 11.52.

(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. Oppositions shall not exceed 5 doublespaced typewritten pages. Replies shall not exceed 5 double-spaced typewritten pages.

(Sees. 4. 303. 307. 48 Slat., aa amended. 1066. 1082.1083; 47 U.8.C. 154. 303. 307) [3S FR 17333. Nov. 11. 1870. aa amended at 40 PR 39600. Aug. 28. 1976; 41 FR 14874. Apr. 8.

1976; 41 FR 38789, July 13. 1976; 46 FR 58682. Dec. 3,1981; 55 FR 36641. Sept. 6.1990]

J 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 60 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 H1.47 and 1.211). and shall be Hied with the Secretary. Federal Communications Commission, Washington, D.C. 20554.

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

(f) 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 caption of the appeal shall specify whether the appeal is to be acted on by the Commission or the Review Board.

(g) 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 filed. Replies to oppositions shall be filed within 10 days after the opposition is filed and shall be limited to matters raised in the oppositions. [29 FR 6444, May 16, 1964]

§ 1.298 Rulings; time for action.

(a) Unless it is found that irreparable injury would thereby be caused one of the parties, or that the public interest requires otherwise, or unless all parties have consented to the contrary, consideration of interlocutory requests will be withheld until the time for filing oppositions (and replies, if replies are allowed) has expired. As a matter of discretion, however, requests for continuances and extensions of time, requests for permission to file pleadings in excess of the length prescribed in this chapter, and requests for temporary relief may be ruled upon ex parte without waiting for the filing of responsive pleadings.

(b) In the discretion of the presiding officer, rulings on interlocutory matters may be made orally at the hearing. The presiding officer may, in his discretion, state his reasons on the record or subsequently issue a written statement of the reasons for his ruling, either separately or as part of the initial decision.

[28 FR 12425, Nov. 22. 1963, as amended at 29 FR 6444. May 16, 1964; 41 FR 14874. Apr. 8, 1976]

Appeal And Reconsideration Of
Presiding Officer's Ruldjg

11.301 Appeal from presiding officer's interlocutory ruling; 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 the presiding officer's 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 the presiding officer's 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 the presiding officer's ruling denies a motion to disqualify the presiding judge, the ruling is appealable as a matter of right.

(4) Rulings granting a joint request filed under §1.525 without terminating the proceeding are appealable by any party as a matter of right.

(5) 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 for such period as is reasonably necessary for the client to secure new counsel and for counsel to familiarize himself with the case).

(b) Other interlocutory rulings. Except as provided in paragraph (a) of this section, appeals from interlocutory rulings of the presiding officer 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. 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. The presiding officer shall determine whether the showing is such as to justify an interlocutory appeal and, in accordance with his determination, will either allow or disallow the appeal or modify the ruling. If the presiding officer allows or disallows the appeal, his ruling is final: Provided, however. That the Commission may, on its own motion, dismiss an appeal allowed by the presiding officer on the ground that objection to the ruling should be deferred and raised as an exception. In the discretion of the presiding officer, the request for permission to file appeal may be made orally, on the record of the proceeding. The request may be disposed of orally.

(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 on review of the initial decision.

(2) If an appeal is allowed and is considered on its merits, the disposition on appeal 1b 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 11.52.

(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 ia not a party to the proceeding. Oppositions shall be filed within 5 days after the appeal is filed. Replies snail not be permitted, unless the Commission specifically requests them. Oppositions shall not exceed 5 doublespaced typewritten pages. Replies shall not exceed 5 double-spaced typewritten pages.

'Sees. 4. 303, 307. 48 Stat., as amended. 1066. 1082.1083; 47 U.S.C. 164. 303. 307)

[X FR 17333. Nov. 11. 1970. as amended at 40 PR 39608. Aug. 28. 1975; 41 FR 14874. Apr. 8.

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

§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 §§1.47 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.

(f) 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 caption of the appeal shall specify whether the appeal is to be acted on by the Commission or the Review Board.

(g) 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 filed. Replies to oppositions shall be filed within 10 days after the opposition is filed and shall be limited to matters raised in the oppositions.

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