[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11748-11749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6658]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[FCC 96-88]


Computation of Time

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission makes three minor amendments to the 
Commission's computation of time rule. First, it adds an illustrative 
example to the rules to make more explicit that the three extra days 
added for service by mail where a response period is 10 days or less 
are calculated from the end of the filing period regardless of whether 
the last day of the filing period is a business day or a holiday. 
Second, it provides that where any party is served by mail, and the 
response period is 10 days or less, the filing period for all parties 
(not just the ones served by mail) shall be extended the additional 
three days. Third, it provides that service by facsimile machine shall 
be treated as hand delivery, not service by mail. The intended effect 
of this action is to make the rule clearer and more fair.

EFFECTIVE DATE: March 22, 1996.

FOR FURTHER INFORMATION CONTACT: David S. Senzel, Office of General 
Counsel (202) 418-1760.

SUPPLEMENTARY INFORMATION: Adopted: March 5, 1996; Released March 15, 
1996.
    1. In this order we make three minor amendments to the Commission's 
computation of time rule, 47 CFR 1.4. First, we add an illustrative 
example to the rules to make more explicit that the three extra days 
added for service by mail where a response period is 10 days or less 
are calculated from the end of the filing period regardless of whether 
the last day of the filing period is a business day or a holiday. 
Second, we provide that where any party is served by mail, and the 
response period is 10 days or less, the filing period for all parties 
(not just the ones served by mail) shall be extended the additional 
three days. Third, we provide that service by facsimile machine shall 
be treated as hand delivery, not service by mail.
    2. Section 1.4(h) addresses the filing period for responding to 
pleadings that have been served on a party by mail. The rule states:

    If a document is required to be served upon other parties by 
statute or Commission regulation and the document is in fact served 
by mail * * * and the filing period \1\ for a response is 10 days or 
less, an additional 3 days (excluding holidays) will be allowed for 
filing a response. * * *

    \1\ Section 1.4(e)(3) provides: The term filing period means the 
number of days allowed or prescribed by statute, rule, order, notice 
or other Commission action for filing any document with the 
Commission. It does not include any additional days allowed for 
filing any document pursuant to paragraphs (g), (h) and (j) of this 
section.

    3. Section 1.4(j) governs the filing date for pleadings that would 
otherwise be due on a holiday (when the Commission is closed for 
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business). It provides that:

    If, after making all the computations provided for in this 
section, the filing date \2\ falls on a holiday, the document shall 
be filed on the next business day. * * *

    \2\ Section 1.4(e)(4) provides: The term filing date means the 
date upon which a document must be filed after all computations of 
time authorized by this section have been made.

    4. Because Section 1.4(h) indicates that the three extra days for a 
response to a pleading served by mail where the response period is 10 
days or less is based on the ``filing period,'' not the ``filing 
date,'' and because Section 1.4(j) says that the ``filing date'' is not 
calculated until after all other computations are made, the additional 
three days for service by mail are added without regard to whether the 
last day of the filing period is a holiday and would therefore not be 
the filing date if service were by hand. Thus, the first day to be 
counted for the extra three days is the first business day after the 
end of the filing period whether the filing period ends on a business 
day or a holiday. How the rule applies is demonstrated in Summit 
Communications, Inc., 9 FCC Rcd 4833, n.1 (Cable Serv. Bur. 1994). In 
that case, a party filed a petition for reconsideration of a 
franchising authority's certification (47 CFR 76.911) on Thursday, 
October 28, 1993. The filing period for oppositions was 10 days (47 CFR 
1.106(g)), so the filing period ended on Sunday, November 7. Service 
was made by mail, an additional three days were added following the end 
of the filing period on Sunday, November 7, and the opposition was due 
Wednesday, November 10. The fact that the ``filing date'' would have 
been moved forward from Sunday to Monday if there had not been mail 
service was irrelevant, since under the rules the filing date is not 
determined until after all other computations. Because a more recent 
staff decision interpreted the rule differently and incorrectly added 
the extra three days from the date the filing date would have been if 
service was by hand rather than from the end of the filing period, see 
Falcon Cablevision, 10 FCC Rcd 10409 n.3 (Cable Serv. Bur. 1995), we 
are amending the rule to be more explicit by adding an illustrative 
example setting out the correct interpretation of the rule.
    5. We also amend Section 1.4(h) to provide that when one party is 
served by mail and the response period is 10 days or less, all parties 
should get the additional three days. This approach is most equitable 
because it avoids the possibility that some parties in multi-party 
litigation may be required to file their pleadings before others, 
giving others an opportunity to ``preview'' their arguments before 
filing their own pleading. We will therefore amend Section 1.4(h) to 
specify that if one party is served by mail and the response period is 
10 days or less, all parties will be given the additional three days.

[[Page 11749]]

    6. Finally, we amend Section 1.4(h) to treat service by facsimile 
machine the same as hand service. See 47 CFR 1.773(a)(4) (treating 
delivery by facsimile machine like hand service in the tariff context). 
See also SEC v. Stratton Oakmont, Inc., 1995 WL 46559 (D.D.C. 1995). 
Because service by facsimile, like hand delivery, is essentially 
instantaneous, we believe that this treatment is warranted generally.
    7. Because the rule amendments involve rules of agency 
organization, procedure, or practice, the notice and comment and 
effective date provisions of the Administrative Procedure Act are 
inapplicable. 5 U.S.C. 553(b)(A), (d).
    8. Accordingly, it is ordered, That pursuant to Sections 4(i), 
4(j), and 303(r)of the Communications Act, 47 U.S.C. 154(i), 154(j), 
and 303(r), 47 CFR part 1 is amended as set forth below, effective 
March 22, 1996.
    9. The text of this order is available for inspection and copying 
during normal business hours in the FCC Reference Center (Room 239), 
1919 M Street NW., Washington D.C. The text may also be purchased from 
the Commission's copy contractor, International Transcription Service, 
Inc., Suite 140, 2100 M Street NW., Washington, D.C. 20037.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Radio, Telecommunications, 
Television.

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

Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations is amended as 
follows:

PART 1--PRACTICE AND PROCEDURE

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

    Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 
U.S.C. 154, 303.

    2. Section 1.4 is amended in paragraph (h), by revising the text 
preceding Example 11, in paragraphs (i) and (j) by redesignating 
Examples 12 and 13 as Examples 13 and 14, respectively, and by adding 
new Example 12 in paragraph (h) to read as follows:


Sec. 1.4  Computation of time.

* * * * *
    (h) If a document is required to be served upon other parties by 
statute or Commission regulation and the document is in fact served by 
mail (see Sec. 1.47(f)), and the filing period for a response is 10 
days or less, an additional 3 days (excluding holidays) will be allowed 
to all parties in the proceeding for filing a response. This paragraph 
(Sec. 1.4(h)) shall not apply to documents filed pursuant to Sec. 1.89, 
Sec. 1.120(d), Sec. 1.315(b) or Sec. 1.316. For purposes of this 
paragraph service by facsimile shall be deemed equivalent to hand 
delivery.
* * * * *
    Example 12: Assume that oppositions to a petition in a particular 
proceeding are due 10 days after the petition is filed and must be 
served on the parties to the proceeding. If the petition is filed on 
October 28, 1993, the last day of the filing period for oppositions is 
Sunday, November 7. If service is made by mail, the opposition is due 
three days after November 7, or Wednesday, November 10.
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[FR Doc. 96-6658 Filed 3-21-96; 8:45 am]
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