[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16229-16230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8456]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[FCC 95-471]


Authority To Issue Subpoenas

AGENCY: Federal Communications Commission.

ACTION: Final rule; Order on Reconsideration.

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SUMMARY: The Commission ruled on two petitions for reconsideration of 
its earlier order (FCC 94-319; released November 21, 1994) adopting 
rules to permit the Chief, Common Carrier Bureau, to issue subpoenas in 
matters involving allegations of unlawful conduct by common carriers 
under Title II of the Communications Act of 1934, as amended. One 
petitioner argued that the Commission should reconsider its delegation 
of authority and should issue a notice of proposed rulemaking to 
solicit comments on the proper scope of delegation. The other 
petitioner argued that the delegation of subpoena power is 
unconstitutional and that the Commission should limit the scope of 
subpoena power granted to the Bureau accordingly. The Commission found 
that the petitioners arguments were without merit. The Commission 
decided on reconsideration, however, that some modification of the 
earlier order was appropriate. On its own motion, the Commission issued 
an order (``Amendment of Part 0'') delegating similar authority to 
other bureaus within the Commission (FCC 95-213; released June 9, 
1995). This modification of the rules required that the delegation of 
authority to other bureaus be conditioned on an approval from the 
Office of General Counsel, that the bureaus only be authorized to issue 
``non-hearing-related'' subpoenas, and that the bureaus have a broad 
delegation of subpoena authority over matters within their 
jurisdiction. The Commission will amend its rules for the purpose of 
authorizing the Chief of the Common Carrier Bureau, with the approval 
of the Office of the General Counsel, to issue non-hearing related 
subpoenas for the attendance of witnesses and the production of 
documents deemed relevant by the Bureau, to add language making it 
consistent with the Commission's Amendment of Part 0.

EFFECTIVE DATE: April 12, 1996.

FOR FURTHER INFORMATION CONTACT: Heather McDowell, Enforcement 
Division, Common Carrier Bureau, (202) 418-0960.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's order 
in FCC 95-471, adopted November 27, 1995, and released February 9, 
1996. The full text of the rule is available for inspection and copying 
during normal business hours in the FCC Reference Center, Room 239, 
1919 M Street, N.W., Washington, D.C. 20554. The full text of this rule 
may also be purchased from the Commission's duplicating contractor, 
International Transcription Services, 2100 M Street, N.W., Suite 140, 
Washington, D. C. 20037, (202) 857-3800.

Summary of Order

    1. In this Order on Reconsideration, the Commission addresses 
petitions filed by ICORE and the Personal Communications Industry 
Association (``PCIA'') seeking reconsideration of the Commission's 
order (``Subpoena Order'') (59 FR 66487, published December 27, 1994) 
delegating certain investigative authority to the Chief, Common Carrier 
Bureau (``Bureau''). For the reasons set forth below, the Commission 
denies both petitions. The Commission does, however, on its own motion, 
add several modifications to the Bureau's delegated authority to issue 
subpoenas.
    2. In its petition, PCIA argues that the Commission should 
reconsider its delegation of subpoena authority to the Bureau and 
should instead issue a notice of proposed rulemaking to solicit comment 
on the proper scope of the delegation and to allow for an exploration 
of the concerns as well of the benefits of such a delegation. ICORE, in 
its petition, asserts that the delegation of subpoena authority to the 
Bureau is unconstitutional to the extent that it can be construed as 
applicable to the

[[Page 16230]]

investigation of connecting carriers. ICORE contends that because the 
Commission itself does not have the authority to issue subpoenas to 
connecting carriers under Title II of the Communications Act of 1934, 
as amended, it should limit the scope of the subpoena power granted to 
the Bureau accordingly.

I. Discussion

    3. Neither PCIA's nor ICORE's arguments are meritorious. PCIA makes 
no persuasive argument to support its claim that the Commission should 
have initiated a notice and comment rulemaking proceeding to consider 
the adoption of rules delegating subpoena authority to the Bureau. The 
Commission emphasizes again that its decision to amend Section 0.291 of 
its rules to grant the Bureau subpoena power pertains to agency 
organization, procedure, or practice. Consequently, the notice and 
comment requirement and the effective date provisions contained in 
Sections 553(b) and 553(d) of the Administrative Procedure Act do not 
apply.
    4. Similarly, ICORE's argument that the Commission does not have 
the authority to issue subpoenas to connecting carriers and, therefore, 
should limit the Bureau's subpoena power accordingly is unavailing. The 
Commission determined that it need not resolve in this proceeding the 
question of whether it has the authority to issue subpoenas to 
connecting carriers. The Subpoena Order simply delegates to the Bureau 
subpoena authority properly exercised by the Commission. ICORE has 
provided no support for its contention that this delegation is beyond 
the scope of the Commission's authority or jurisdiction.
    5. The Commission determined, however, that some modification to 
the Bureau's subpoena authority is appropriate. The Commission recently 
issued, on its own motion, an order (``Amendment of Part 0'') (60 FR 
35503, published July 10, 1995) delegating similar authority to other 
bureaus within the Commission. The delegation of authority in that 
order differed from the delegation contained in the Subpoena Order in 
three respects. First, the Commission delegated subpoena authority to 
the bureaus on the condition that before the issuance of a subpoena, 
each bureau would obtain the approval of the Office of General Counsel 
(``OGC''). In conformance with this order, and in keeping with the 
Commission's intent to make language in the delegations of authority to 
issue subpoenas of all bureaus conform to a requirement for prior 
approval by OGC, the Commission will amend Section 0.291(h) to add 
additional language requiring OGC approval before a subpoena is issued.
    6. Second, in Amendment of Part 0, the Commission qualified the 
type of subpoena that may be authorized by the bureaus. Specifically, 
the Commission stated that they are authorized to issue only ``non-
hearing related'' subpoenas. The delegation of subpoena authority to 
the Bureau under Section 0.291(h) will be revised to include this 
qualification.
    7. Third, instead of limiting the other bureaus' subpoena authority 
to investigations involving violations of particular sections or titles 
within the Act, the Commission generally granted each of them a broad 
delegation of subpoena authority over matters within their 
jurisdiction. The Commission will, therefore, modify the delegation of 
authority to the Common Carrier Bureau to be consistent in this regard.

II. Conclusion and Ordering Clauses

    8. For the reasons set forth herein, the Commission denies the 
petitions for reconsideration submitted by PCIA and ICORE. The 
Commission also makes certain revisions to its delegation of subpoena 
authority to the Bureau. On its own motion, the Commission amends 
Section 0.291(h) to require the Chief, Common Carrier Bureau to obtain 
the approval of OGC prior to the issuance of a subpoena, to qualify the 
type of subpoena that may be authorized, and to extend the delegation 
of the Bureau's subpoena authority.
    9. Accordingly, it is ordered, pursuant to Sections 4(i), 4(j), and 
405(a) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 
154(j), and 405(a), that the Petitions for Reconsideration filed by 
PCIA and ICORE ARE DENIED.
    10. It is further ordered, pursuant to Sections 4(i) and 4(j) of 
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 
154(j), that Section 0.291(j) of the Commission's rules, 47 CFR 0.291, 
IS AMENDED as set forth below. The requirement of notice and comment 
rule making contained in 5 U.S.C. 553(b) and the effective date 
provisions of 5 U.S.C. 553(d) do not apply because this amendment 
concerns matters of agency organization, procedure, or practice. See 5 
U.S.C. 553(b)(A), (d).
    11. It is further ordered that this revision to Section 0.291(h), 
as set forth below, is effective April 12, 1996.

List of Subjects in 47 CFR Part 0

    Organization and functions: (Government agencies).

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

Rule Changes

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

PART 0--COMMISSION ORGANIZATION

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

    Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.

    2. Section 0.291(h) is revised to read as follows:


Sec. 0.291  Authority delegated.

* * * * *
    (h) Authority concerning the issuance of subpoenas. The Chief of 
the Common Carrier Bureau or her/his designee is authorized to issue 
non-hearing related subpoenas for the attendance and testimony of 
witnesses and the production of books, papers, correspondence, 
memoranda, schedules of charges, contracts, agreements, and any other 
records deemed relevant to the investigation of matters within the 
jurisdiction of the Common Carrier Bureau. Before issuing a subpoena, 
the Bureau shall obtain the approval of the Office of General Counsel.

[FR Doc. 96-8456 Filed 4-11-96; 8:45 am]
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