any matter under investigation or hearing may be signed and issued as follows:

(a) Hearings before the Commission en banc or before a Committee of Commissioners: By a Commissioner;

(b) Hearings before a presiding officer: By a Commissioner or by the presiding officer.

§ 1.832 Requests; verification and content. A subpena, other than one directed by the Commission on its own initiative, will be issued only upon request in writing, unless such request is made on the record while a hearing is in progress, in which case such request on the record may be accepted in lieu of written request. Any request for a subpena shall be supported by a showing of the general relevance and materiality of the evidence sought. A request for a subpena to compel a witness to produce documentary evidence shall be in writing, duly subscribed and verified, and shall specify with particularity the books, papers, and documents desired and the facts expected to be proved thereby. Such requests need not be served upon other parties to the hearing. Prompt notice, including a brief statement of the reasons therefor, will be given of the denial, in whole or in part, of a request for a subpena.

§1.833 Witness fees. Witnesses who are subpenaed and respond thereto are entitled to the same fees including mileage as are paid for like service in the courts of the United States. The party at whose instance the testimony is taken shall pay such fees at the time the subpena is served.

§ 1.834 Service of subpenas; return. (a) A subpena may be served by a United States marshal or his deputy or by any other person who is not a party and is not less than 18 years of age. Service of a subpena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day's attendance and the mileage allowed by law. If the subpena is issued on behalf of the United States or an officer or agency thereof fees and mileage need not be tendered.

(b) If service of the subpena is made by a person other than a United States marshal or his deputy, such person shall make affidavit thereof, stating the date, time, and manner of service; and return such affidavit on, or with, the original subpena in accordance with the form

thereon. In case of failure to make service the reasons for the failure shall be stated on the original subpena. In making service, the original subpena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpena, bearing or accompanied by the required return affidavit, or statement, shall be returned forthwith to the Secretary of the Commission, or, if so directed on the subpena, to the official before whom the person named in the subpena is required to appear.

HEARINGS AND DECISIONS

§ 1.840 Applicability. Sections 1.843, 1.851 and 1.858 shall apply only to (a) cases which have been designated for hearing on or after December 11, 1946; (b) cases which were designated for hearing prior to December 11, 1946, and which after the record was closed were designated for further hearing on and after December 11, 1946, before a Commissioner or a Hearing Examiner appointed pursuant to the Administrative Procedure Act; and (c) cases designated for a hearing prior to December 11, 1946, if consolidated with a case designated for hearing on or after said date.

§ 1.841 Exchange of exhibits and information; commencement of hearing procedure in cases involving broadcast applications for authority to construct broadcast facilities. (a) Each applicant in a hearing upon broadcast applications for authority to construct broadcast facilities shall provide all parties to the hearing with a full set of exhibits to be offered in the hearing as the direct case of the said applicant. Such exchange of exhibits shall be made in accordance with such agreements and rulings as may result from the pre-hearing conference held pursuant to § 1.813, and unless otherwise directed by the Examiner, shall take place at least twenty days in advance of the date for commencement of the hearing. The exhibits required to be exchanged by this paragraph shall comprise the full direct case of the applicant, i. e., all data desired to be submitted by the applicant in connection with his qualifications and proposals.

(b) Oral testimony by an applicant or his witnesses in connection with his direct case will be limited to (1) such appropriate qualification and explanation as may be necessary of the applicant's exhibits and (2) testimony con

cerning any portion of the applicant's affirmative case in substitution of exhibits or portions thereof which are rejected by the Examiner on grounds of competency or form rather than for reasons of lack of materiality or relevance. Such substituted oral testimony, however, is to be limited to the scope of the rejected exhibit or portions thereof: Provided, however, That the provision of this paragraph shall not be construed to preclude or limit normal cross-examination, rebuttal testimony, or the submission of appropriate exhibits in connection therewith.

(c) Except for good cause found in advance by the presiding officer, in all broadcast hearings involving applications for authority to construct broadcast facilities, there shall be held prior to the exchange of exhibits pursuant to this section a pre-hearing conference," in accordance with § 1.813, and a further conference following such exchange of exhibits. Unless otherwise ordered by the Examiner such further conference shall be held at least ten days prior to the date for the commencement of the hearing looking toward agreement on all matters relating to the conduct of the hearing and not already the subject of agreement. At this conference the Examiner and the parties, including Commission counsel, should be prepared to discuss (1) the possibility of agreements disposing of any evidentiary issues raised with respect to the exhibits previously exchanged between the parties; (2) the limitation on cumulative evidence; (3) number of witnesses and

* Such conferences involving applications for broadcast stations in comparative hearings may include matters such as: (1) Narrowing the issues or the areas of inquiry and proof at the hearing; (2) admissions of fact and of documents which will avoid unnecessary proof; (3) reports and letters relating to surveys or contacts; (4) assumptions regarding the availability of equipment; (5) network programming; (6) assumptions regarding the availability of networks proposed: (7) offers of letters in general; (8) 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; (9) proof of contracts, agreements, or understandings reduced to writing: (10) stipulations; (11) need for depositions; (12) the numbering of exhibits; (13) the order of offer of proof with relationship to docket number; and (14) such other matters as will be conducive to an expeditious conduct of the hearing.

estimated length of testimony; (4) need for the use of depositions; and (5) any other matters which may aid the disposition of the hearing.

(d) The Hearing Examiner shall enIdeavor to issue an order at least five days prior to the date for commencement of hearing which recites the action taken at the further conference; the date for the hearing on the applicants' affirmative cases which, in the absence of special circumstances warranting greater delay, shall not be later than the date for commencement of the hearing specified by the Commission; agreements reached at the conference and any other matters relating to the subsequent course of the hearing. The orders issued by the Examiner as provided for herein shall control the course of the hearing unless modified by the Hearing Examiner for cause during the course of the hearing or by the Commission upon a review of the Hearing Examiner's ruling.

(e) Unless otherwise provided by agreement pursuant to § 1.813 (b), or by order of the Examiner in the light of the circumstances of a particular case, any party to a proceeding involving application for authority to construct broadcast facilities shall be entitled, upon written request therefor, to receive from any other party to the proceeding such detailed information relevant to the proposals of such other party as may reasonably and timely be requested, including information respecting the cost of station construction and operation, and including any material falling within the categories hereinafter specified:

(1) Background and experience. (2) Integration of ownership and management.

(3) Past operation of broadcast stations.

(4) Programs.

(5) Studies and surveys.

(6) Studio, transmitter, and auxiliary broadcast equipment.

(7) Studio, office, and transmitter building facilities.

(8) Management and staffing plans.

§ 1.842 Order of procedure. 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 open and close. At hearings on revocation or modification of a station license under section 312 of the act, on suspension of an operator's 11cense under section 303 of the act, or other like proceedings instituted by the Commission, the Commission shall open and close. At all hearings under Title II of the act, other than hearings on formal complaints, petitions or applications, the respondent shall open and close unless otherwise specified by the Commission. In all other cases, the Commission or presiding officer shall designate the order of presentation. Intervenors 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 intervenors shall be heard.

§ 1.843 Designation of presiding officers. (a) There shall be designated to preside at hearings one or more Commissioners, or a Hearing Examiner appointed pursuant to section 11 of the Administrative Procedure Act.

(b) So far as practicable, Hearing Examiners designated as presiding officers shall be assigned to cases in rotation, due consideration being given to the following factors: (1) The grade classification of the Hearing Examiner, (2) the nature of the case to be heard, (3) the specialized experience of the Hearing Examiner, and (4) the extent of the Hearing Examiner's workload.

(c) Unless the Commission determines that due and timely execution of its functions requires otherwise, presiding officers shall be so designated, and notice thereof made public, at least 10 days prior to the date set for hearing. In the event that a presiding officer deems himself disqualified and desires to withdraw from the case he shall notify the Commission of his withdrawal at least 7 days prior to the date set for hearing. Any party or the General Counsel of the Commission may request the presiding officer to withdraw on the grounds of personal bias or other disqualification. The person seeking disqualification shall file with the presiding officer an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification, and the presiding officer may file a response thereto. Such affidavit shall be filed not later than 5 days before the commencement of the hearing, unless for good cause shown, additional time is neces

sary; but in no event later than the close of the first day of the hearing. If the presiding officer believes himself not disqualified he shall so rule and proceed with the hearing. If the person seeking disqualification excepts to the ruling, he shall so state at the time the ruling is made, and the presiding officer shall certify the question together with the affidavit and any response filed in connection therewith, to the Commission. The Commission may rule on the question without hearing or it may require testimony or argument on the issues raised. The affidavit, response, testimony and decision thereon shall be part of the record in the case. Unless objection is made and exception is taken as required by this section, the right to request withdrawal of the presiding officer shall be deemed waived.

(d) If a presiding officer becomes unavailable to the Commission before the taking of testimony has been concluded, another presiding officer will be designated by order as provided in paragraph (a) of this section. If a presiding officer becomes unavailable to the Commission after the taking of testimony has been concluded, the record shall be certified by the Secretary to the Commission.

§ 1.844 Authority of presiding officers. Presiding officers, with respect to cases assigned to them, from the date of their designations until the submission of their decisions or the transfer of the cases to the Commission, and in addition to and in accordance with the authority elsewhere specified in the rules in this part, shall have authority to:

(a) Administer oaths and affirmations,

(b) Examine witnesses.

(c) Rule upon questions of evidence, (d) Take or cause depositions to be taken,

(e) Regulate the course of the hearing, maintain discipline and decorum and exclude from the hearing any person found in contemptuous conduct,

(f) Require the filing of memoranda of law, and the presentation of oral argument with respect to any question of law upon which he is required to rule during the course of the hearing,

(g) Issue subpenas authorized by law,

(h) Hold conferences for the settlement or simplification of the issues by consent of the parties,

(1) Dispose of procedural requests or similar matters,

(j) Make decisions or recommended decisions in conformity with the Administrative Procedure Act.

§ 1.845 Hearing before more than one person. If more than one person is designated to preside at a hearing, the terms "presiding officer", "Commissioner designated to preside" or "Hearing Examiner" shall apply to all such persons, and authority to act shall be vested in a majority thereof, except as otherwise provided by order of the Commission.

§ 1.846 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 adjourned date except upon 10 days' notice to all parties to the proceeding and to the General Counsel of the Commission.

§ 1.847 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.

§ 1.848 Corrections to transcripts. Within ten days after the date of notice of certification of the transcript, any party to the proceeding or the General Counsel may file with the presiding offcer a motion requesting the correction of the transcript, which motion shall be accompanied by proof of service thereof upon all other parties to the proceedings. Within five days, other parties and the General Counsel 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 pre

siding officer, on his initiative, may specify corrections to be made in the transcript on 5 days' notice.

§ 1.849 Proposed findings and conclusions. (a) Each party to the proceeding and the General Counsel of the Commission may file proposed findings of fact and conclusions, briefs or memoranda of law: Provided, however, That the presiding officer may direct the filing of 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 the other counsel.

(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.

§ 1.850 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.

§ 1.851 Initial and recommended decisions. (a) Except as provided in paragraph (b) of this section, the presiding officer shall prepare an "Initial Decision" which shall be transmitted to the Secretary of the Commission who shall make it public immediately and file it in the docket of the case.

(b) In the order designating the presiding officer, or by subsequent order, the Commission may direct that the record in any case be certified to it for initial decision. If a case is certified to the

Commission for initial decision, the presiding officer shall first prepare a recommended decision which shall be transmitted to the Secretary and which shall be made public at the time of the issuance of the Commission's initial decision, except that if the case involves rule making or the determination of an application for an initial license, no recommended decision shall be prepared unless it is otherwise ordered by the Commission. If a presiding officer is not required to prepare an initial or a recommended decision, he shall, upon the completion of the testimony, transmit the record of the case to the Secretary.

(c) 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.

(d) 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 to the Commission for decision.

§ 1.852 Waiver of initial or recommended decision. At the conclusion of the hearing or within 20 days thereafter, all the parties to the proceeding and the General Counsel may agree to waive an initial or recommended decision, and may request that the Commission issue a final decision or order in the case. The Commission 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.

§ 1.853 Appeal and review of initial decision. (a) Within 20 days after the date on which public announcement of an initial decision is made, any of the parties or the General Counsel of the Commission may appeal to the Commission by filing exceptions to the initial decision and such decision shall not become effective and shall then be reviewed by

the Commission, whether or not such exceptions may thereafter be withdrawn. The time for filing such exceptions may be extended for good cause shown.

(b) The Commission may on its initiative provide, by order adopted within 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 further review in accordance with paragraphs (a) or (b) of this section, the Commission may take any one or more of the following actions: (1) Schedule the proceedings for oral argument;

(2) Require the filing of briefs;

(3) Prior to or after oral argument or the filing of briefs, reopen the record and remand the proceedings to the presiding officer to take further testimony or evidence;

(4) Prior to or after oral argument or the filing of 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 briefs, issue a supplemental initial decision.

(d) No initial decision shall become effective before 40 days after public announcement thereof is made unless otherwise ordered by the Commission. The timely filing of exceptions or the further review or consideration of an initial decision on the Commission's initiative shall stay the effectiveness thereof 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 20 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, the initial decision shall become effective, an appropriate notation to that effect shall be entered in the docket of the case and public notice thereof shall be given by the Commission. The provisions of 1.726 (c) shall not be applicable with respect to this paragraph.

(f) When any party fails to file exceptions within the specified time to an initial decision which proposes to deny its application, such party shall be