[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Rules and Regulations]
[Pages 10688-10689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6208]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[FCC 96-92]


Delegated Authority to Process Mutually Exclusive ITFS 
Applications

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: On February 8, 1996, President Clinton signed into law the 
Telecommunications Act of 1996 (Telecom Act).1 Section 403(c) of 
the Telecom Act authorizes the Commission to delegate to the staff the 
authority to process and grant from among mutually exclusive 
applications for Instructional Television Fixed Service (ITFS) 
facilities. By this Order, we exercise this option and delegate such 
authority to the staff.

    \1\ Public Law No. 104-104, 110 Stat. 56 (1996).
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EFFECTIVE DATE: March 15, 1996.

FOR FURTHER INFORMATION CONTACT: Paul R. Gordon, Mass Media Bureau, 
Policy and Rules Division, Legal Branch, (202) 418-2130.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
FCC 96-92, adopted March 7, 1996 and released March 8, 1996. The full 
text of this Commission decision is available for inspection and 
copying during normal business hours in the FCC Dockets Branch (Room 
239), 1919 M Street, N.W., Washington, D.C. The complete text of this 
decision may also be purchased from the Commission's copy contractor, 
International Transcription Services, (202) 857-3800, 2100 M Street, 
N.W., Suite 140, Washington, DC 20037.

Synopsis of Order

    1. Statutory Authority to Delegate. Mutually exclusive applications 
for new ITFS facilities currently are resolved by the full Commission 
in a paper hearing by means of a point accumulation system. After 
calculating each applicant's score based on information submitted with 
the application, the Commission determines which applicant is the most 
qualified to serve the public interest. Because this is considered a 
comparative hearing, the processing staff has been statutorily barred 
from granting or denying any of the applications. Pursuant to the 
Administrative Procedure Act (``APA''), the Commission itself must 
preside in the taking of evidence in a comparative hearing, or it may 
delegate this function to either (1) one or more members of the 
Commission, or (2) one or more administrative law judges.2 
However, the APA adds that these limitations do not supersede agency 
delegation authority that is designated under statute.3

    \2\ 5 U.S.C. 556(b)(2) and (3).
    \3\ 47 U.S.C. 556(b) (``this subchapter does not supersede the 
conduct of specified classes of proceedings, in whole or in part, by 
or before boards or other employees specially provided for or 
designated under statute'').
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    2. Section 403(c) of the Telecom Act authorizes such a delegation 
with regard to the processing of ITFS applications, expressly 
superseding the APA's restrictions. It replaces the last sentence of 
Section 5(c)(1) of the Communications Act of 1934 with the following:

    Except for cases involving the authorization of service in the 
instructional television fixed service, or as otherwise provided in 
this Act, nothing in this paragraph shall authorize the Commission 
to provide for the conduct, by any person or persons other than 
persons referred to in paragraph (2) or (3) of section 556(b) of 
title 5, United States Code [the APA], of any hearing to which such 
section applies.4

    \4\ To be codified at 47 U.S.C. 155(c)(1).
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    3. Exercise of the Commission's Delegation Authority. We believe 
that delegation to the staff of ITFS processing authority will speed 
the processing of ITFS applications, complementing recent rule changes 
designed to increase ITFS processing efficiency. Moreover, the 
Commission has conducted a substantial number of hearings for ITFS 
facilities over the past several years and has developed a large body 
of case law addressing a variety of issues. Educational applicants, 
their wireless cable lessees, and Commission staff have become familiar 
with the many legal and technical issues involved in applying for ITFS 
facilities. Thus, we believe that delegation will serve the public 
interest by increasing processing efficiency and allowing more rapid 
authorization and initiation of service to the public.
    Administrative Matters. Because this action involves rules of 
agency organization and procedure, the notice

[[Page 10689]]
and comment requirements of the APA, 5 U.S.C. 553(b)(A), are 
inapplicable.
    Ordering Clauses. Therefore, it is ordered That the authority to 
conduct a hearing and to select from among mutually exclusive 
applications in the Instructional Television Fixed Service is delegated 
to the staff.
    4. It is further ordered That, pursuant to authority contained in 
sections 4(i) and 303 of the Communications Act of 1934, as amended, 
Secs. 0.151 and 0.283 of the Commission's Rules, 47 CFR 0.151, 0.283, 
are amended as set forth below.
    5. Because this involves an internal procedural matter not 
affecting the substantive rights of any entity, and in order to 
expedite the processing of ITFS applications, it is further ordered 
that for good cause shown pursuant to the provisions of 5 U.S.C. 
553(d)(3), this Order shall become effective immediately upon 
publication in the Federal Register.
    6. It is further ordered That this proceeding is terminated.
    7. Authority for the adoption of the foregoing revision is 
contained in sections 5(b), 5(c)(1), and 303(r) of the Communications 
Act of 1934, as amended, 47 U.S.C. 155(b), 155(c)(1), and 303(r).

List of Subjects in 47 CFR Part 0

    Organization and functions (Government agencies).

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rule Changes

    Part 0 of title 47 of the Code of Federal Regulations is amended as 
follows:

PART 0--COMMISSION ORGANIZATION

    1. The authority citation for part 0 continues to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C 155, 225, 
unless otherwise noted.

    2. Section 0.151 is revised to read as follows:


Sec. 0.151  Functions of the Office.

    The Office of Administrative Law Judges consists of a Chief 
Administrative Law Judge, an Assistant Chief Administrative Law Judge, 
and as many other Administrative Law Judges qualified and appointed 
pursuant to the requirements of section 11 of the Administrative 
Procedure Act as the Commission may find necessary. It is responsible 
for hearing and conducting all adjudicatory cases designated for any 
evidentiary adjudicatory hearing other than those designated to be 
heard by the Commission en banc, those designated to be heard by one or 
more members of the Commission, and those involving the authorization 
of service in the Instructional Television Fixed Service. The Office of 
Administrative Law Judges is also responsible for conducting such other 
hearings as the Commission may assign.
    3. Section 0.283 is amended by revising paragraph (a)(9)(i) to read 
as follows:


Sec. 0.283  Authority delegated.

* * * * *
    (a) * * *
    (9) * * *
    (i) Mutually exclusive applications not in the Instructional 
Television Fixed Service, including renewal and construction permit 
applications, involving non-routine hearing issues.
* * * * *
[FR Doc. 96-6208 Filed 3-14-96; 8:45 am]
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