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(c) No additional pleadings may be filed unless specifically requested by the Commission or authorized by it.

(d) The Commission may act on a petition for rule making at any time after the deadline for the filing of replies to statements in support of or in opposition to the petition. Statements In support of or in opposition to a petition for rule making, and replies thereto, shall not be filed after Commission action.

(Sees. 4, 303. 307. 48 Stat., as amended, 1066, 1082. 1083: 47 U.S.C. 154. 303, 307) [28 FR 12413, Nov. 22, 1963. as amended at 28 FR 14503. Dec. 31, 1963; 45 FR 42621, June 25. 1980; 46 FR 60404. Dec. 9. 1981]

11.407 Action on petitions.

If the Commission determines that the petition discloses sufficient reasons in support of the action requested to Justify the institution of a rulemaking proceeding, and notice and public procedure thereon are required or deemed desirable by the Commission, an appropriate notice of proposed rule making will be Issued. In those cases where notice and public procedure thereon are not required, the Commission may issue a final order amending the rules. In all other cases the petition for rule making will be denied and the petitioner will be notified of the Commission's action with the grounds therefor.

Rulemaking Proceedings

J 1.411 Commencement of rulemaking proceedings.

Rulemaking proceedings are commenced by the Commission, either on it own motion or on the basis of a petition for rulemaking. See §§1.401-1.407.

11.411 Notice of proposed rulemaking.

(a) Except as provided in paragraphs (b) and (c) of this section, prior notice of proposed rulemaking will be given.

(1) Notice is ordinarily given by publication of a "Notice of Proposed Rule Making" in the FEDERAL REGISTER. A summary of the full decision adopted by the Commission constitutes a "Notice of Proposed Rulemaking" for purposes of Federal Register publication.

(2) If all persons subject to the proposed rules are named, the proposal

may (in lieu of publication) be personally served upon those persons.

(3) If all persons subject to the proposed rules are named and have actual notice of the proposal as a matter of law, further prior notice of proposed rulemaking is not required.

(b) Rule changes (including adoption, amendment, or repeal of a rule or rules) relating to the following matters will ordinarily be adopted without prior notice:

(1) Any military, naval, or foreign affairs function of the United States.

(2) Any matter relating to Commission management or personnel or to public property, loans, grants, benefits, or contracts.

(3) Interpretative rules.

(4) General statements of policy.

(5) Rules of Commission organization, procedure, or practice.

(c) Rule changes may in addition be adopted without prior notice in any situation in which the Commission for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. The finding of good cause and a statement of the basis for that finding are in such situations published with the rule changes.

(d) In addition to the notice provisions of paragraph (a) of this section, the Commission, before prescribing any requirements as to accounts, records, or memoranda to be kept by carriers, will notify the appropriate State agencies having Jurisdiction over any carrier involved of the proposed requirements.

[28 FR 12432. Nov. 22. 1963. as amended at 51 FR 7445, Mar. 4,1986]

S 1.413 Content of notice.

A notice of the proposed issuance, amendment, or repeal of a rule will include the following:

(a) A statement of the time, nature and place of any public rulemaking proceeding to be held.

(b) Reference to the authority under which the issuance, amendment or repeal of a rule is proposed.

(c) Either the terms or substance of the proposed rule or a description of the subjects and issues Involved.

(d) The docket number assigned to the proceeding.

(e) A statement of the time for filing: comments and replies thereto.

S 1.415 Comment* and replies.

(a) After notice of proposed rulemaking is issued, the Commission will afford interested persons an opportunity to participate in the rulemaking proceeding through submission of written data, views, or arguments, with or without opportunity to present the same orally in any manner.

(b) A reasonable time will be provided for submission of comments in support of or in opposition to proposed rules, and the time provided will be specified in the notice of proposed rulemaking.

(c) A reasonable time will be provided for filing comments in reply to the original comments, and the time provided will be specified in the notice of proposed rulemaking.

(d) No additional comments may be filed unless specifically requested or authorized by the Commission.

Note: In some (but not all) rulemaking proceedings. Interested persons may also communicate with the Commission and its staff on an ex parte basis, provided certain procedures are followed. See §51-420and 1.1200

et seq. See also FCC 2d (1980) (I.e.,

this order).

(e) For time limits for filing motions for extension of time for filing responses to petitions for rulemaking, replies to such responses, comments filed In response to notices of proposed rulemaking, replies to such comments, see §1460)).

[28 FR 12432. Nov. 22, 1963. as amended at 42 FR 28888. June 6. 1977; 45 FR 45591. July 7, 1980; 52 FR 37400. Oct. 7. 1987]

11.419 Form of comment! and replies; number of copies.

(a) Comments, replies, and other documents filed in a rulemaking proceeding shall conform to the requirements of S 1.49.

(b) An original and 4 copies of all comments, briefs and other documents filed in a rulemaking proceeding shall be furnished the Commission. The distribution of such copies shall be as follows:

Secretary (original and 1) 2

Bureau 1

Information office 1

Total I

Participants filing the required 5 copies who also wish each Commissioner to have a personal copy of the comments may file an additional 5 copies. The distribution of such copies shall be as follows:

Commissioners 5

Secretary 1

Bureau 1

Information office 1

Total 10

However, members of the general public who wish to express their interest by participating informally in a rulemaking proceeding may do so by submitting an original and one copy of their comments, without regard to form, provided only that the Docket Number is specified in the heading. Informal comments filed after close of the reply comment period, or, if on reconsideration, the reconsideration reply comment period, should be labeled "ex parte" pursuant to section 1.1206(a) of this Chapter. Letters submitted to Commissioners or Commission staff will be treated in the same way as informal comments, as set forth above. Also such informal participants who wish the responsible members of the staff and the Commissioners to have personal copies may file an additional 7 copies. The distribution of such copies shall be as follows:

Commissioners 6

Secretary I

Bureau I

Total 9

(c) Any person desiring to file Identical documents In more than one docketed rulemaking proceeding shall furnish the Commission two additional copies of any such document for each additional docket. This requirement does not apply if the proceedings have been consolidated.

[28 FR 12432. Nov. 22, 1983. as amended at 41 FR 50399. Nov. 16. 1976: 60 FR 26567. June 27. 1985; 54 FR 29037. July 11. 1989]

S 1.420 Additional procedure* in proceeding* for amendment of the FM, TV or Air-Ground Table of Allot

(a) Comments filed In proceedings for amendment of the FM Table of Allotments (47 CPR 73.202), the Television Table of Allotments (47 CFR 73.606), or the Table of Allotments for Air-Ground Stations in the Domestic Public Land Mobile Radio Service (47 CFR 22.521) which are initiated on a petition for rulemaklng shall be served on petitioner by the person who flies the comments.

(b) Reply comments filed in proceedings for amendment of the FM, Television or A.?- Ground Tables of Allotments shall be served on the person(s) who filed the comments to which the reply Is directed.

(c) Such comments and reply comments shall be accompanied by a certificate of service.

(d) Counterproposals shall be advanced In Initial comments only and will not be considered If they are advanced In reply comments.

(e) An original and 4 copies of all petitions for rulemaking, comments, reply comments, and other pleadings shall be filed with the Commission.

if) Petitions for reconsideration and responsive pleadings shall be served on parties to the proceeding and on any licensee or permittee whose authorization may be modified to specify operation on a different channel, and shall be accompanied by a certificate of service. The filing of a petition for reconsideration of an order modifying an authorization to specify operation on a different channel shall stay the effect of a change in the rules pending action on the petition.

(g) The Commission may modify the license or permit of an FM station to another class of channel or of a UHF TV station to a VHP channel in the St. me community in the course of the role making proceeding to amend §73.202(b). §73.504(a) or §73.606(b) If any of the following conditions are met:

(1) There is no other timely filed expression of Interest, or

(2) If another Interest in the proposed channel Is timely filed an additional equivalent class of channel is also al

lotted, assigned or available for application, or

(3) With respect to FM, the modification of license or permit would occur on a mutually exclusive higher class adjacent or co-channel.

Note 1: In certain situations, a licensee or permittee may seek an adjacent. Intermediate frequency or co-channel upgrade by application. See 5 73.203(b) of this chapter.

(h) Where licensees (or permittees) of television broadcast stations jointly petition to amend §73.606(b) and to exchange channels, and where one of the licensees (or permittees) operates on a commercial channel while the other operates on a reserved noncommercial educational channel within the same band, and the stations serve substantially the same market, then the Commission may amend §73.606<b) and modify the licenses (or permits) of the petitioners to specify operation on the appropriate channels upon a finding that such action will promote the public interest, convenience, and necessity.

Note 2: Licensees and permittees operating Class A FM stations who seek to upgrade their facilities to Class Bl. B, C3, C2, Cl, or C on Channel 221, and whose proposed 1 mV m signal contours would overlap the Grade B contour of a television station operating on Channel 6 must meet a particularly heavy burden by demonstrating that grant* of their upgrade requests are In the public Interest. In this regard, the Commission will examine the record In rule making proceedings to determine the availability of existing and potential non-commercial education service.

(i) In the course of the rule making proceeding to amend $73.202(b) or §73.606(b), the Commission may modify the license or permit of an FM or television broadcast station to specify a new community of license where the amended allotment would be mutually exclusive with the licensee's or permittee's present assignment.

(j) Whenever an expression of Interest in applying for, constructing, and operating a station has been filed in a proceeding to amend the FM or TV Table of Allotments, and the filing party seeks to dismiss or withdraw the expression of interest, either unilaterally or In exchange for financial consideration, that party must file with the Commission a request for approval of the dismissal or withdrawal, a copy of any written agreement related to the

dismissal or withdrawal, and an affidavit setting forth:

(1) A certification that neither the party withdrawing its interest nor its principals has received or will receive any money or other consideration in excess of legitimate and prudent expenses in exchange for the dismissal or withdrawal of the expression of Interest;

(2) The exact nature and amount of any consideration received or promised;

(3) An itemized accounting of the expenses for which it seeks reimbursement; and

(4) The terms of any oral agreement related to the dismissal or withdrawal of the expression of interest.

(5) In addition, within 5 days of a party's request for approval, each remaining party to any written or oral agreement must submit an affidavit setting forth:

(i) A certification that neither it nor its principals has paid or will pay money or other consideration in excess of the legitimate and prudent expenses of the party withdrawing its expression of interest; and

(ii) The terms of any oral agreement relating to the dismissal or withdrawal of the expression of interest.

(Sees. 4, 303. 307. 48 Stat., as amended, 1066, 1062, 1063; 47 U.S.C. 154. 303, 307)

[39 FR 44022, Dec. 20, 1974, as amended at 40 FR 53391, Nov. 18. 1975; 41 FR 1287, Jan. 7, 1976; 51 FR 15629. Apr. 25, 1986; 51 FR 20291. June 4. 1986; 52 FR 8280. Mar. 17. 1987; 52 FR 25866, July 9. 1967; 54 FR 16366. Apr. 24. 1989: 54 FR 26201, June 22. 1989; 55 FR 28914. July 16. 1990; 58 FR 38535, July 19. 1993]

i 1.421 Further notice of rulemaking.

In any rulemaking proceeding where the Commission deems it warranted, a further notice of proposed rulemaking will be issued with opportunity for parties of record and other Interested persons to submit comments in conformity with ff 1.416 and 1.419.

§ 1.423 Oral argument and other proceedings.

In any rulemaking proceeding where the Commission determines that an oral argument, hearing or any other type of proceeding is warranted, notice of the time, place and nature of such

proceeding will be published In the Federal Register and will be mailed to all parties to the proceeding.

i 1.425 Commission action.

The Commission will consider all relevant comments and material of record before taking final action in a rulemaking proceeding and will issue a decision incorporating its finding and a brief statement of the reasons therefor.

S 1.427 Effective date of rules.

(a) Any rule issued by the Commission will be made effective not less than 30 days from the time it is published in the Federal Register except as otherwise specified in paragraphs (b) and (c) of this section.

(b) For good cause found and published with the rule, any rule issued by the Commission may be made effective within less than 30 days from the time it Is published in the Federal RegIster. Rules involving any military, naval or foreign affairs function of the United States; matters relating to agency management or personnel, public property, loans, grants, benefits or contracts; rules granting or recognizing exemption or relieving restriction; rules of organization, procedure or practice; or interpretative rules: and statements of policy may be made effective without regard to the 30-day requirement.

(c) In cases of alterations by the Commission in the required manner or form of keeping accounts by carriers, notice will be served upon affected carriers not less than 6 months prior to the effective date of such alterations.

§ 1.429 Petition for reconsideration.

(a) Any interested person may petition for reconsideration of a final action in a proceeding conducted under this subpart (see §§1.407 and 1.425). Where the action was taken by the Commission, the petition will be acted on by the Commission. Where action was taken by a staff official under delegated authority, the petition may be acted on by the staff official or referred to the Commission for action.

Note: The staff has been authorised to act on rulemaking proceedings described In f 1.420 and Is authorized to make editorial changes In the rules (see 10.231(d)).

(b) A petition for reconsideration which relies on facts which have not previously been presented to the Commission will be granted only under the following: circumstances:

(1) The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present them to the Commission;

(2) The facts relied on were unknown to petitioner until after his last opportunity to present them to the Commission, and he could not throug-h the exercise of ordinary diligence have learned of the facts in question prior to such opportunity; or

(3) The Commission determines that consideration of the facts relied on Is required In the public interest.

(c) The petition for reconsideration shall state with particularity the respects in which petitioner believes the action taken should be changed.

(d) The petition for reconsideration and any supplement thereto shall be filed within 30 days from the date of public notice of such action, as that date is defined In fl.4(b) of these rules. No supplement to a petition for reconsideration filed after expiration of the 30 day period will be considered, except upon leave granted pursuant to a separate pleading stating the grounds for acceptance of the supplement. The petition for reconsideration shall not exceed 25 double-spaced typewritten pages.

(e) Except as provided in 11.420(0, petitions for reconsideration need not be served on parties to the proceeding. (However, where the number of parties is relatively small, the Commission encourages the service of petitions for reconsideration and other pleadings, and agreements among parties to exchange copies of pleadings.) When a petition for reconsideration is timely filed in proper form, public notice of its filing is published in the Federal Register. The time for filing oppositions to the petition runs from the date of public notice. See 11-Kb).

(f) Oppositions to a petition for reconsideration shall be filed within 16 days after the date of public notice of the petition's filing and need be served only on the person who filed the petition. See §1.4(b). Oppositions shall not

exceed 25 double-spaced typewritten pages.

(?) Replies to an opposition shall be filed within 10 days after the time for filing oppositions has expired and need be served only on the person who filed the opposition. Replies shall not exceed 10 double-spaced typewritten pages.

(h) Petitions for reconsideration, oppositions and replies shall conform to the requirements of §§1.49 and 1.52, except that they need not be verified. Except as provided in §1.420(e), an original and 11 copies shall be submitted to the Secretary, Federal Communications Commission, Washington. DC 20554.

(i) The Commission may grant the petition for reconsideration in whole or in part or may deny the petition. Its order will contain a concise statement of the reasons for the action taken. Any order disposing of a petition for reconsideration which modifies rules adopted by the original order is, to the extent of such modification, subject to reconsideration in the same manner as the original order. Except in such circumstance, a second petition for reconsideration may be dismissed by the staff as repetitious.

(j) The filing of a petition for reconsideration is not a condition precedent to judicial review of any action taken by the Commission, except where the person seeking such review was not a party to the proceeding resulting in the action or relies on questions of fact or law upon which the Commission has been afforded no opportunity to pass. Subject to the provisions of paragraph (b) of this section, such a person may qualify to seek judicial review by filing a petition for reconsideration.

(k) Without special order of the Commission, the filing of a petition for reconsideration shall not excuse any person from complying with any rule or operate In any manner to stay or postpone its enforcement. However, upon good cause shown, the Commission will stay the effective date of a rule pending a decision on a petition for reconsideration. See, however. 11.420(0.

(Sees. 4, 303, 307, 48 Stat., as amended, 1066, 1082.1083; 47 U.8.C. 154. 303. 307)

[41 Fit 1387. Jan. 7. 1976. as amended at 44 KR 5436, Jan. 36. 1979; 46 KR 18SG6. Mar. 25. 1961: 53 KR 49161. Deo. 30. 1987]

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