[Federal Register Volume 84, Number 194 (Monday, October 7, 2019)]
[Proposed Rules]
[Pages 53355-53375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20568]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 76

[EB Docket No. 19-214; FCC 19-86]


Procedural Streamlining of Administrative Hearings

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes procedural changes 
to administrative hearings under the Communications Act of 1934,

[[Page 53356]]

as amended. The proposals would supplement the Commission's current 
administrative law judge referral process and promote more efficient 
resolution of hearings. The Commission seeks comment on proposals to 
codify and expand the use of written testimony and documentary evidence 
in lieu of live testimony and cross-examination. The Commission also 
seeks comment on proposals that would enable Commission staff to act as 
a case manager that would supervise development of the written hearing 
record when the Commission designates itself as the presiding officer 
at a hearing. Finally, the Commission seeks comment on a proposal to 
dispense with the preparation of an intermediate opinion whenever the 
record of a proceeding can be certified to the Commission for final 
decision.

DATES: Comments are due on or before November 6, 2019 and reply 
comments are due on or before November 21, 2019.

ADDRESSES: You may submit comments, identified by EB Docket No. 19-214, 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.
    People with Disabilities: Contact the FCC to request reasonable 
accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Lisa Boehley of the Market Disputes Resolution 
Division, Enforcement Bureau, at [email protected] or (202) 418-
7395.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 19-86, EB Docket No. 19-214, adopted on 
September 3, 2019 and released on September 6, 2019. The full text of 
this document is available for public inspection during regular 
business hours in the FCC Reference Center, 445 12th Street SW, Room 
CY-A257, Washington, DC 20554, or online at https://ecfsapi.fcc.gov/file/090628688258/FCC-19-86A1.pdf. To request this document in 
accessible formats for people with disabilities (e.g., Braille, large 
print, electronic files, audio format, etc.) or to request reasonable 
accommodations (e.g., accessible format documents, sign language 
interpreters, CART, etc.), send an email to [email protected] or call the 
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. In the Notice of Proposed Rulemaking (NPRM), we seek comment on 
procedural changes that, if adopted, would streamline many 
administrative hearings under the Communications Act of 1934, as 
amended (Communications Act or Act). Currently, these hearings 
typically are conducted like trials in civil litigation and include, 
among other things, live testimony before an administrative law judge, 
cross-examination of witnesses, and an initial decision by the 
administrative law judge that is subject to review by the Commission. 
The Commission has observed that such trial-type hearings are costly 
and impose significant burdens and delays on both applicants and the 
agency that may not be necessary.
    2. The procedures outlined here are designed to supplement the 
Commission's current administrative law judge referral process and 
promote more efficient resolution of hearings. If adopted, the 
proposals would (a) codify and expand the use of a process that would 
rely on written testimony and documentary evidence in lieu of live 
testimony and cross-examination; (b) enable Commission staff to act as 
a case manager that would supervise development of the written hearing 
record when the Commission designates itself as the presiding officer 
at a hearing; and (c) dispense with the preparation of an intermediate 
opinion whenever the record of a proceeding can be certified to the 
Commission for final decision. The proposed procedures would expedite 
the Commission's hearing processes consistent with the requirements of 
the Communications Act and the Administrative Procedure Act (APA) while 
ensuring transparency and procedural fairness.
    3. Several provisions of the Communications Act require or permit 
the Commission to conduct an adjudicatory hearing to resolve a matter. 
These provisions generally do not identify particular procedures that 
the Commission must follow. For example,
     Section 309(e) requires the Commission, when a substantial 
and material fact is presented or when it is unable to make the public 
interest finding in section 309(a), to designate a license application 
for a ``full hearing'';
     Section 309(k)(3) requires a section 309(e) ``full 
hearing'' when the Commission is unable to make the requisite findings 
to grant a broadcast station renewal request;
     Section 312(c) requires the Commission to conduct a 
``hearing'' before revoking a station license or construction permit 
pursuant to section 312(a);
     Section 316(a) and (b) provide that a ``hearing'' may be 
conducted before the Commission modifies a station license or 
construction permit;
     Section 9(c)(3) requires a ``hearing'' before the 
Commission may revoke an instrument of authorization for failure to pay 
a regulatory fee if ``the licensee's response [to a notice of intent to 
revoke] presents a substantial and material question of fact'';
     Section 204(a) authorizes the Commission to conduct a 
``hearing'' concerning the lawfulness of a tariff;
     Sections 208 and 209 require the Commission to conduct a 
``hearing'' to resolve a complaint that a common carrier engaged in 
unlawful conduct, and to award damages when appropriate;
     Section 214(b) grants a right ``to be heard'' to parties 
receiving Commission notice of a carrier request to construct, extend, 
acquire, operate, or discontinue service, and section 214(d) provides 
that the Commission may ``after a full opportunity for hearing'' 
require a carrier to provide itself with adequate facilities.

[[Page 53357]]

    4. The Commission has applied a variety of processes in these 
hearings. Traditionally, the Commission has designated most disputes 
concerning spectrum license applicants, permittees, or licensees under 
sections 309 and 312 for resolution in hearings before an 
administrative law judge using procedures similar to the formal 
adjudication provisions of the APA. By rule, the administrative law 
judge may grant a motion for summary decision on a written record only 
if ``there is no genuine issue as to any material fact'' and ``a party 
is otherwise entitled to summary decision.'' In contrast, the 
Commission has traditionally resolved section 204 hearings on the 
lawfulness of tariffs on a written record, and hearing rights for 
common carriers under section 214 are comparatively limited. The 
Commission has also delegated authority to the Enforcement Bureau to 
conduct hearings on section 208 complaints, in which all issues are 
resolved on a written record.
    5. Under certain circumstances, the Commission has taken steps to 
streamline its hearing processes even for spectrum licensing matters. 
In 1981, the Commission adopted a streamlined approach for evaluating 
competing initial cellular applications under section 309(e) on a 
written record. More recently, the Commission ruled that certain 
license renewal proceedings may be resolved in a written hearing 
proceeding administered by the Commission itself in lieu of an 
administrative law judge when there are no substantial issues of 
material fact or credibility issues. The Commission has likewise 
required parties to certain broadcast proceedings to submit all or a 
portion of their affirmative direct cases in writing where the 
presiding officer determines that doing so will contribute 
significantly to the disposition of the proceeding. The Commission also 
adopted expedited procedures under section 309(j)(5) permitting 
``employees other than [administrative law judges] to preside at the 
taking of written evidence.'' Relatedly, the Commission has delegated 
authority to particular operating Bureaus to act on certain licensing 
and permitting applications when the relevant Bureau determines that 
the application raises no ``substantial and material questions of 
fact.''
    6. To further streamline the Commission's hearing processes, we 
propose to codify and expand the Commission's use of hearings on a 
written record. The Commission's hearing rules provide that ``[a]ny 
hearing upon an application shall be a full hearing in which the 
applicant and all other parties in interest shall be permitted to 
participate.'' The Commission has on numerous occasions curtailed the 
use of oral testimony and cross examination in particular proceedings 
in order to expedite the hearing process. In our experience, disputes 
in Commission proceedings typically involve criticisms by one party of 
the evidence proffered by another party or the legal significance of 
that evidence, not actual conflicts in testimony between two witnesses 
concerning outcome determinative facts. Section 208 formal complaint 
proceedings amply demonstrate this point. We contemplate codifying and 
expanding the use of a written hearing process that can be used in most 
adjudicative proceedings, including those conducted by an 
administrative law judge. In particular, we propose to authorize the 
presiding officer to conduct a written hearing whenever factual 
disputes can be adequately resolved on a written record.
    7. We propose that the Commission may, in any order designating a 
matter for hearing (designation order), require the administrative law 
judge or other presiding officer to conduct a hearing on a written 
record. We also propose that, in the absence of such a directive in a 
designation order, the presiding officer may conduct the hearing on a 
written record on her own initiative or on motion of a party. The 
presiding officer should include the date for filing such a motion in 
the scheduling order issued following release of the designation order. 
We seek comment on these proposals and on whether any additional 
procedural safeguards are warranted in this regard. We note that our 
current hearing rules allow parties to take depositions, which enable 
parties to examine witnesses in a live setting and may render live 
testimony unnecessary at a hearing.
    8. We propose that parties in written hearing proceedings be 
required to file pleadings that include all evidence and arguments that 
support their respective positions. Consistent with the Commission's 
rules on summary decision and its formal complaint rules, such written 
submissions must be supported by evidence in the form of sworn 
statements based on personal knowledge and supporting documentation. 
The Commission, in its designation order, or the presiding officer will 
adopt a schedule for sequential filing of written evidentiary 
submissions. Enforcement Bureau staff will continue to represent the 
public interest in these proceedings and will have the opportunity, 
along with other interested parties, to file pleadings and submit 
evidence. We believe these procedures will expedite the resolution of 
hearing proceedings while safeguarding the rights of parties to a full 
and fair hearing. We seek comment on these proposals.
    9. We also propose to require parties to demonstrate why oral 
argument may be necessary in a case. In our experience, oral argument 
does not materially aid in the resolution of the vast majority of 
cases, and routinely accommodating requests for oral argument 
unnecessarily prolongs the resolution of hearing proceedings.
    10. Selection of a Presiding Officer. Each designation order will 
indicate whether the Commission itself, one or more Commissioners, or 
an administrative law judge will serve as the presiding officer. We 
tentatively conclude that the selection of a presiding officer should 
take into consideration who would ``most fairly and reasonably 
accommodate'' ``the proper dispatch of [the Commission's] business and 
the ends of justice'' in each case. To that end, we seek comment on if 
there are particular types of proceedings where it is or is not 
appropriate, on legal or policy grounds, for the Commission itself to 
serve as presiding officer. For example, if a case is likely to involve 
primarily interpretations of law or policy determinations, would the 
Commission itself be best suited to administer the hearing in such a 
case?
    11. The APA provisions governing formal hearing proceedings 
generally identify only the agency, one or more agency heads, or one or 
more administrative law judges among those who may preside at formal 
hearings, but no such limitation applies to informal adjudications 
under the APA. Similarly, although section 5(c)(1) of the 
Communications Act limits delegations of authority to conduct hearings 
to individuals identified in 5 U.S.C. 556(b)(2) (members of the agency) 
and (b)(3) (administrative law judges), that limitation expressly 
applies only to hearings subject to APA formal hearing requirements. 
Accordingly, although we are not proposing any rule changes in this 
regard, we seek comment on whether there are other officials on the 
Commission's staff who may serve as the presiding officer in suitable 
circumstances. Would directing such individuals to administer hearing 
proceedings expedite our hearings process by making available 
additional neutral qualified personnel to conduct Commission hearings? 
We will address any proposed rule changes on this issue in a Further 
Notice of Proposed Rulemaking in this proceeding.

[[Page 53358]]

    12. We also propose to direct the Chief of the Wireline Competition 
Bureau to exercise certain authority previously held by the Chief of 
the Common Carrier Bureau, the former's predecessor bureau, under 
section 214 of the Act. In particular, the Commission ``delegate[d] to 
the Chief, Common Carrier Bureau, authority to issue orders revoking a 
common carrier's operating authority pursuant to [s]ection 214 of the 
Act, and to issue orders to cease and desist such operations, in cases 
where the Chief Administrative Law Judge, or the Presiding Officer 
designated, has issued a certification order to the Commission pursuant 
to [s]ection 1.92(c) of our rules that the carrier has waived its 
opportunity for hearing under that section.'' We propose to direct the 
Chief of the Wireline Competition Bureau to issue such orders whenever 
the presiding officer assigned to a hearing proceeding determines that 
a common carrier has waived its opportunity for hearing. We seek 
comment on this proposal.
    13. Selection of a Case Manager. The Commission's current hearing 
rules provide that ``[h]earings will be conducted by the Commission, by 
one or more commissioners, or by a law judge designated pursuant to 
section 11 of the [APA].'' We seek comment on directing designated 
Commission staff to perform specific case management functions when the 
Commission itself serves as the presiding officer in a hearing 
proceeding. A case manager could issue scheduling orders, rule on 
discovery motions and other interlocutory matters, administer the 
intake of evidence, hold conferences in order to settle or simplify the 
issues, and certify the record for decision by the Commission at the 
conclusion of a hearing. Under this proposal, a case manager's 
responsibilities may include one or more of the duties that are 
typically performed by the presiding officer, but a case manager would 
not have authority to resolve any new or novel issues or to issue 
orders on the merits resolving any issue designated for hearing in a 
case. We tentatively conclude that this proposal would significantly 
expedite our hearing processes when the Commission designates itself as 
the presiding officer. We seek comment on this tentative conclusion and 
on the relevance to this proposal, if any, of the Appointments Clause 
to the U.S. Constitution and the Supreme Court's decision in Lucia v. 
SEC.
    14. We recognize that designated staff must demonstrate sufficient 
training and expertise to act as a case manager. We seek comment on the 
minimum training and qualifications, including adjudicatory and subject 
matter expertise, that individuals must possess to successfully perform 
this role. The Administrative Conference's ``best practice'' pertaining 
to presiding officer qualifications recommends that agencies ``use 
adjudicators--rather than agency heads, boards, or panels--to conduct 
hearings and provide initial decisions[.]'' Should this recommendation 
apply to Commission staff whose eligibility to act as a case manager is 
under consideration? We note that various staff within the Enforcement 
Bureau and the Commission's Office of General Counsel have extensive 
adjudicatory experience, and we therefore seek comment on whether we 
should direct particular staff within the Enforcement Bureau or Office 
of General Counsel to act as a case manager in hearing proceedings. We 
similarly seek comment on the qualifications of staff within the 
Commission's other bureaus to serve in this role.
    15. The case manager in a hearing should be neutral. In formal 
adjudications, the APA formal hearing provisions prohibit agency staff 
from performing both prosecutorial and decisional activities. This 
``separation of functions'' principle shields agency decisionmakers 
from off-record presentations by staff who have presented evidence or 
argument on behalf of or against a party to a proceeding and prohibits 
such staff from participating in the hearing decision. The separation 
of functions requirement in section 409(c)(1) of the Communications 
Act, which applies to both formal and informal adjudications, prevents 
a person who has participated in the presentation of a case at a 
hearing or upon review from making any additional presentation 
respecting such case to the presiding officer or to any authority 
within the Commission performing a review function, absent notice and 
opportunity for all parties to participate. The Administrative 
Conference recommends that agencies require internal separation of 
decisional and adversarial personnel in adjudications that are not 
subject to formal APA hearing requirements. In this context, an 
``adversary'' refers to a staff member who took an active part in 
investigating, prosecuting, or advocating in the same case.
    16. We propose to adopt the Administrative Conference's 
recommendation to ``prohibit staff who took an active part in 
investigating, prosecuting, or advocating in a case'' from serving as a 
case manager and from advising or assisting the case manager ``in that 
same case.'' Thus, we propose that staff who participated in 
identifying the specific issues designated for hearing; staff who take 
an active part in investigating, prosecuting, or advocating in a case; 
and staff who are expected to investigate and act upon petitions to 
deny (including administrative challenges thereto) may not serve as the 
case manager in that case. We seek comment on these proposals.
    17. Unless otherwise designated, Commission hearings are 
``restricted'' proceedings and thus ex parte presentations to or from 
Commission decision-making personnel are prohibited. ``Decision-making 
personnel'' include ``[a]ny member, officer, or employee of the 
Commission . . . who is or may reasonably be expected to be involved in 
formulating a decision, rule or order in a proceeding.'' Decision-
making personnel also include ``[u]nseparated Bureau or Office staff . 
. . with respect to decisions, rules, and orders in which their Bureau 
or Office participates in enacting, preparing, or reviewing.'' We 
tentatively conclude that any Commission staff serving as a case 
manager in a case should be considered ``decision-making personnel'' 
for purposes of our ex parte rules. Finally, we tentatively conclude 
that the existing definition of ``ex parte presentation'' in section 
1.1202 of the Commission's rules would continue to apply. We seek 
comment on these tentative conclusions and on whether other or 
additional measures are needed to ensure the impartiality of staff 
serving as the case manager.
    18. Dispensing with Initial Decision When Appropriate. Section 
409(a) of the Communications Act generally requires that the presiding 
officer prepare an initial, tentative, or recommended decision. With 
limited exceptions, the Commission's rules likewise state that ``the 
presiding officer shall prepare an initial (or recommended) decision'' 
at the close of a hearing. Upon agreement of the parties or where the 
Commission finds ``that due and timely execution of its functions 
imperatively and unavoidably so requires,'' however, ``the Commission 
may direct that the record in a pending proceeding be certified to it 
for initial or final decision.''
    19. We seek comment on whether the Commission should forego initial 
decisions whenever it serves as the presiding officer at a hearing, 
including cases in which the Commission directs that the record of the 
proceeding be certified to it for decision. Initial decisions have no 
apparent utility when the Commission is the presiding officer.

[[Page 53359]]

Dispensing with initial decisions under these circumstances would 
greatly promote efficient resolution of disputes. We seek comment on 
this proposal. Although the APA's formal hearing requirements do not 
apply here, we note that they authorize agencies to require an 
administrative law judge to certify the record for decision by the 
agency without an initial decision. We seek comment on whether a case 
manager could likewise certify the hearing record for decision directly 
by the Commission.
    20. Evidentiary Rules. The Commission's current hearing rules 
provide that the Federal Rules of Evidence (28 U.S.C. Rules 101-1103) 
govern Commission hearings, but that these rules may be ``relaxed if 
the ends of justice will be better served by so doing.'' In practice, 
however, the Federal Rules of Evidence are not necessarily applied and 
instead serve merely as guidelines in determining the admissibility of 
evidence. This lack of clarity as to the relevant evidentiary standard 
has the potential to cause confusion for parties and to lead to 
evidentiary disputes between those who expect the Federal Rules of 
Evidence to apply and those who seek to avoid their application in a 
particular case.
    21. We propose to amend this rule and adopt the more permissive 
evidentiary standard in the formal APA hearing requirements, which 
states, in relevant part, that ``the agency as a matter of policy shall 
provide for the exclusion of irrelevant, immaterial, or unduly 
repetitious evidence.'' We seek comment on this proposal and on the 
conclusion of the Asimow Report that the more lenient standard in 5 
U.S.C. 556(d) will result in fewer time-consuming disputes over 
``esoteric rules of evidence, such as the many exceptions to the 
hearsay rule,'' and will be simpler for self-represented parties to 
navigate.
    22. Proposed Rule Changes. Several rule changes are proposed in 
this proceeding. Specifically, we propose to add sections 1.370-1.377 
to our Part 1 hearing rules to establish procedures for hearings to be 
resolved on a written record. We otherwise generally retain the current 
Part 0 and Part 1 hearing related rules with the proposed 
modifications. We seek comment on these proposed rules and on any other 
changes necessary to conform our rules to these proposals.
    23. Related Issues. Finally, we seek comment on any other proposed 
rule changes that would streamline or expedite the Commission's hearing 
processes. We may address any such proposals in a Further Notice of 
Proposed Rulemaking in this proceeding.
    24. Legal Authority. The Commission has broad authority ``[to] 
conduct its proceedings in such manner as will best conduce to the 
proper dispatch of business and to the ends of justice.'' Congress 
``left largely to [the Commission's] judgment the determination of the 
manner of conducting its business which would most fairly and 
reasonably accommodate'' the ends of justice.
    25. In PBGC v. LTV Corp., the Supreme Court identified three 
potential sources of procedural requirements for agency hearings--the 
APA, the agency's governing statute, and the Due Process Clause. 
``[C]ourts are not free to impose upon agencies specific procedural 
requirements that have no basis in'' those sources.
    26. The APA prescribes procedural standards governing formal and 
informal adjudications before federal agencies. The APA provisions 
governing formal adjudications appear in sections 554, 556, and 557 of 
title 5, 74 which require a formal hearing process that includes 
elements of a judicial trial in a civil action. Informal adjudication 
commonly refers to procedures for conducting cases when formal 
adjudication is not required. The APA prescribes minimum procedural 
requirements for informal adjudications. Section 555 of title 5 
requires only that an agency afford participants the right to appear 
with counsel, the right to procure copies or transcripts of any 
evidence they have provided, and prompt notice of, and grounds for, the 
agency's denial of an application or petition. Section 558(c) includes 
certain additional procedures specific to proceedings involving 
licenses or other agency authorizations. That section generally 
requires an agency, prior to instituting proceedings to suspend or 
revoke a license, to provide the licensee with written notice of the 
facts that may warrant the agency's contemplated action and an 
opportunity to demonstrate compliance with all lawful requirements.
    27. The APA, by itself, does not establish when agencies must 
follow the formal hearing procedures in Sections 554, 556, and 557. 
Instead, agencies must apply the APA in conjunction with the relevant 
enabling statute and use formal hearing procedures in ``every case of 
adjudication required by statute to be determined on the record after 
opportunity for an agency hearing.'' Where an agency's enabling statute 
does not expressly require an ``on the record'' hearing and, instead, 
calls simply for a ``hearing,'' a ``full hearing,'' or uses similar 
terminology, the statute does not trigger the APA formal adjudication 
procedures absent clear evidence of congressional intent to impose the 
full panoply of trial type procedures of a formal hearing.
    28. No express ``on the record'' language appears in the 
Communications Act's hearing provisions that would trigger the APA 
formal adjudication requirements. In addition, nothing in the text of 
the Act unambiguously requires trial-type hearings in all such 
proceedings. When Congress intended to require the Commission to 
conduct formal adjudication under the APA, it said so explicitly--
section 503 of the Communications Act authorizes the Commission to 
impose a forfeiture penalty on a person after ``a hearing before the 
Commission or an administrative law judge thereof in accordance with 
section 554 of'' the APA. Consequently, we tentatively conclude that 
Commission hearings generally are subject only to the APA's informal 
adjudication requirements.
    29. We also believe that the streamlined procedures proposed in 
this NPRM comport with any constitutional due process requirements that 
may apply, as articulated by the Supreme Court in Mathews v. Eldridge. 
The Fifth Amendment to the United States Constitution provides that 
``No person shall . . . be deprived of life, liberty, or property, 
without due process of law.'' The essential elements of due process are 
notice and an opportunity to be heard when a governmental decision 
places an individual's ``liberty'' or ``property'' interests in 
jeopardy. The government must give a party an opportunity to be heard 
at a meaningful time and in a meaningful manner before depriving the 
party of a protected interest. In Mathews v. Eldridge, the Supreme 
Court held that: [I]dentification of the specific dictates of due 
process generally requires consideration of three distinct factors: [1] 
The private interest that will be affected by the official action; [2] 
the risk of an erroneous deprivation of such interest through the 
procedures used, and the probable value, if any, of additional . . . 
procedural safeguards; and [3] the Government's interest, including . . 
. the fiscal and administrative burdens that the additional . . . 
procedural requirement would entail.
    30. Courts have applied the Mathews v. Eldridge balancing test to 
determine whether, in the absence of a statutory requirement to conduct 
a formal ``on the record'' APA hearing, due process requires a trial-
type hearing. In

[[Page 53360]]

Chemical Waste Management, the D.C. Circuit held that the Environmental 
Protection Agency was not required to conduct a trial-type hearing 
before issuing a ``corrective action order'' because ``formal 
procedures do not promise a sufficient lowering of the risk of error to 
justify their significant expense to the Government.'' In California ex 
rel. Lockyer v. FERC, the Ninth Circuit upheld the Federal Energy 
Regulatory Commission's approval of a utility's reorganization in an 
informal hearing ``[i]n light of the private interests affected, the 
small risk of erroneous deprivation through the procedures used, and 
the government's strong interest in expedient decision making.'' And in 
Blumenthal v. FERC, the D.C. Circuit upheld FERC's approval of a 
utility's executive compensation plan without a trial-type hearing, 
noting that ``[t]his Court has never held that an in-person evidentiary 
hearing is constitutionally required whenever FERC makes decisions. 
Indeed, we have frequently suggested the opposite.''
    31. In other recent opinions, courts have found that agencies may 
resolve factual disputes on a written record. In a series of cases 
involving FERC, the D.C. Circuit has consistently held that ``[e]ven 
when there are disputed factual issues, FERC does not need to conduct 
an evidentiary hearing if it can adequately resolve the issues on a 
written record.'' We therefore tentatively conclude that the Commission 
need not conduct an oral hearing if it can adequately resolve factual 
disputes on a written record.
    32. Although the D.C. Circuit has upheld an agency's resolution of 
an issue of intent on a written record, the court has suggested in 
dicta in other cases that it may be inappropriate for an agency to 
resolve issues of intent or motive on a written record in certain 
circumstances. We seek comment on what those circumstances may be. For 
example, we seek comment on when the Commission cannot, consistent with 
the Mathews v. Eldridge balancing test, decide a motive, intent, or 
credibility issue on a written record, bearing in mind that the 
existence of such an issue is but one factor to be considered in 
applying the due process balancing test. We note that when an agency 
reviews an administrative law judge's initial decision, the agency is 
not bound by the judge's findings of fact, and may reject the judge's 
credibility findings as long as the agency's decision is supported by 
substantial evidence. What is the additional benefit of a trial-type 
hearing when the Commission ultimately reviews initial decisions on a 
written record and can overrule an administrative law judge's 
credibility determinations when evidence in the written record supports 
the Commission's decision? We seek comment on whether that benefit, if 
any, outweighs the government's legitimate interests in expediting 
resolution of proceedings and avoiding the expense of a trial-type 
hearing.
    33. We emphasize that when we designate a matter for hearing on a 
written record, we intend to give parties a ``full'' hearing, with 
ample notice of the issues under consideration, an opportunity to 
present all evidence and arguments that support the parties' respective 
positions, and an opportunity to confront and rebut opposing evidence 
and arguments. To that end, we seek comment on the Administrative 
Conference's recommended ``best practices'' for agency hearings that 
are not subject to APA formal hearing requirements (referred to herein 
as informal hearings), and whether and how to incorporate those 
recommendations in our rules.
    34. Initial Regulatory Flexibility Act Certification. As required 
by the Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has 
prepared an Initial Regulatory Flexibility Certification reflecting its 
analysis that there will be no significant economic impact on small 
entities by the implementation of the policies and rules addressed in 
this NPRM. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that an initial regulatory flexibility analysis be prepared 
for notice-and-comment rule making proceedings, unless the agency 
certifies that ``the rule will not, if promulgated, have a significant 
economic impact on a substantial number of small entities.'' The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).
    35. In this NPRM, the Commission seeks comment on proposals to 
expedite and streamline the Commission's hearing processes. The 
proposed rule changes stem from longstanding criticisms of the 
Commission's current trial-type hearings as costly, burdensome, and, in 
many cases, unnecessary. The proposals upon which the NPRM seeks 
comment are designed to supplement the Commission's current formal 
hearing processes by allowing the Commission to select the personnel 
and procedures that are best suited to the issues raised in a 
particular case and that will achieve the purposes of that hearing 
without undue cost or delay. These procedures, if adopted, would 
establish an alternative path for resolving hearing proceedings in 
appropriate cases.
    36. The Commission estimates that the rule changes proposed in this 
NPRM would reduce the time and attendant costs associated with hearing 
proceedings for the Commission and for applicants, petitioners, and 
other parties. In particular, the NPRM proposes to (1) codify and 
expand the use of a ``written hearing'' process that would rely on 
written testimony and documentary evidence in lieu of live testimony 
and cross-examination unless the designated presiding officer 
determines that oral testimony is needed to resolve any issues; (2) 
direct designated Commission staff to act as a case manager that would 
supervise the development of the written hearing record when the 
Commission designates itself as the presiding officer in a hearing 
proceeding; and (3) dispense with the preparation of an intermediate 
opinion whenever the record of a proceeding can be certified to the 
Commission for final decision. The NPRM tentatively concludes that the 
proposed procedures will expedite the Commission's hearing processes 
while ensuring appropriate standards of transparency and procedural 
fairness. It seeks comment on various aspect of these proposals and on 
any alternative approaches.
    37. The Commission believes that the proposals on which it seeks 
comment in this NPRM would reduce costs and burdens currently 
shouldered by parties to hearing proceedings in certain cases, 
including small entities. Because only a small percentage of matters 
before the Commission necessitate a hearing, we anticipate that the 
number of small entities impacted would not be substantial for RFA 
purposes. In addition, the proposed modifications to the hearing rules 
in this NPRM do not propose substantive new responsibilities for 
regulated entities or for potential parties to Commission hearings. 
Therefore, we certify that the proposals in this NPRM, if adopted, will 
not have a significant economic impact on a substantial number of small 
entities.
    38. The Commission will send a copy of the NPRM, including a copy 
of this Initial Regulatory Flexibility Certification, to the Chief 
Counsel for

[[Page 53361]]

Advocacy of the Small Business Administration. This initial 
certification will also be published in the Federal Register.
    39. Paperwork Reduction Act. This document does not contain any 
proposed new information collection(s) subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4).
    40. Ex Parte Rules. This proceeding shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must list all persons attending or otherwise participating 
in the meeting at which the ex parte presentation was made, and 
summarize all data presented and arguments made during the 
presentation. If the presentation consisted in whole or in part of the 
presentation of data or arguments already reflected in the presenter's 
written comments, memoranda or other filings in the proceeding, the 
presenter may provide citations to such data or arguments in his or her 
prior comments, memoranda, or other filings (specifying the relevant 
page and/or paragraph numbers where such data or arguments can be 
found) in lieu of summarizing them in the memorandum. Documents shown 
or given to Commission staff during ex parte meetings are deemed to be 
written ex parte presentations and must be filed consistent with 
Section 1.1206(b) of the Commission's rules. In proceedings governed by 
Section 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable.pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    41. Ordering Clauses. Accordingly, it is ordered that, pursuant to 
the authority found in sections 1, 4(i), 4(j), 5, 9, 214, 303, 309, 
312, 316, and 409 of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 154(i), 154(j), 155, 159, 214, 303, 309, 312, 316, and 409, 
this Notice of Proposed Rulemaking is adopted.
    42. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Act Certification, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Parts 0, 1, and 76

    Administrative practice and procedure.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 0, 1, and 76 
as follows:

PART 0--COMMISSION ORGANIZATION

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

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.

Subpart A--[Amended]

0
2. Amend Subpart A by revising the authority citation to read as 
follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, 
unless otherwise noted.

0
3. Amend Sec.  0.5 by revising paragraph (c) to read as follows:


Sec.  0.5   General description of Commission organization and 
operations.

* * * * *
    (c) Delegations of authority to the staff. Pursuant to section 5(c) 
of the Communications Act, the Commission has delegated authority to 
its staff to act on matters which are minor or routine or settled in 
nature and those in which immediate action may be necessary. See 
subpart B of this part. Actions taken under delegated authority are 
subject to review by the Commission, on its own motion or on an 
application for review filed by a person aggrieved by the action. 
Except for the possibility of review, actions taken under delegated 
authority have the same force and effect as actions taken by the 
Commission. The delegation of authority to a staff officer, however, 
does not mean that the staff officer will exercise that authority in 
all matters subject to the delegation. The staff is at liberty to refer 
any matter at any stage to the Commission for action, upon concluding 
that it involves matters warranting the Commission's consideration, and 
the Commission may instruct the staff to do so.
* * * * *
0
4. Amend Sec.  0.91 by adding paragraph (q) to read as follows:


Sec.  0.91   Functions of the Bureau.

* * * * *
    (q) Issue orders revoking a common carrier's operating authority 
pursuant to section 214 of the Act, and issue orders to cease and 
desist such operations, in cases where the presiding officer has issued 
a certification order to the Commission pursuant to Sec.  1.92(c) of 
our rules that the carrier has waived its opportunity for hearing under 
that section.
* * * * *
0
5. Amend Sec.  0.111 by revising paragraphs (a)(18) and (b) to read as 
follows:


Sec.  0.111   Functions of the Bureau.

    (a) * * *
    (18) Issue or draft orders taking or recommending appropriate 
action in response to complaints or investigations, including, but not 
limited to, admonishments, damage awards where authorized by law or 
other affirmative relief, notices of violation, notices of apparent 
liability and related orders, notices of opportunity for hearing 
regarding a potential forfeiture, hearing designation orders, orders 
designating licenses or other authorizations for a revocation hearing 
and consent decrees. Issue or draft appropriate orders after a hearing 
proceeding has been terminated by the presiding officer on the basis of 
waiver. Issue or draft appropriate interlocutory orders and take or 
recommend appropriate action in the exercise of its responsibilities.
* * * * *
    (b) Serve as trial staff in hearing proceedings conducted pursuant 
to Sec.  1.201(a) regarding applications, revocation, forfeitures and 
other matters designated for hearing.
* * * * *
0
6. Revise Sec.  0.151 to read as follows:


Sec.  0.151   Functions of the Office.

    The Office of Administrative Law Judges consists of as many 
Administrative Law Judges qualified and appointed pursuant to the

[[Page 53362]]

requirements of 5 U.S.C. 3105 as the Commission may find necessary. It 
is responsible for hearing and conducting adjudicatory cases designated 
for hearing other than those designated to be heard by the Commission 
en banc, or by one or more commissioners. The Office of Administrative 
Law Judges is also responsible for conducting such other hearing 
proceedings as the Commission may assign.

Subpart B--[Amended]

0
7. Amend Subpart B by revising the authority citation to read as 
follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409.

0
8. Amend Sec.  0.201 by revising paragraph (a)(2) and removing the Note 
to paragraph (a)(2) as follows:


Sec.  0.201   General provisions.

    (a) * * *
    (2) Delegations to rule on interlocutory matters in hearing 
proceedings. Delegations in this category are made to any person, other 
than the Commission, designated to serve as the presiding officer in a 
hearing proceeding pursuant to Sec.  1.241.
* * * * *
0
9. Revise Sec.  0.341 to read as follows:


Sec.  0.341   Authority of Administrative Law Judges and other 
presiding officers designated under Sec.  1.241.

    (a) After a presiding officer (other than the Commission) has been 
designated to conduct a hearing proceeding, and until he or she has 
issued an initial decision or certified the record to the Commission 
for decision, or the proceeding has been transferred to another 
presiding officer, all motions, petitions and other matters that may 
arise during the proceeding shall be acted upon by such presiding 
officer, except those which are to be acted upon by the Commission. See 
Sec.  1.291(a)(1) of this chapter.
    (b) Any question which would be acted upon by the presiding officer 
if it were raised by the parties to the proceeding may be raised and 
acted upon by the presiding officer on his or her own motion.
    (c) Any question which would be acted upon by the presiding officer 
(other than the Commission) may be certified to the Commission on the 
presiding officer's own motion.
    (d) Except for actions taken during the course of a hearing and 
upon the record thereof, actions taken by a presiding officer pursuant 
to the provisions of this section shall be recorded in writing and 
filed in the official record of the proceeding.
    (e) The presiding officer may waive any rule governing the conduct 
of Commission hearings upon motion or upon the presiding officer's own 
motion for good cause, subject to the provisions of the Administrative 
Procedure Act and the Communications Act of 1934, as amended.
    (f) The presiding officer may issue such orders and conduct such 
proceedings as will best conduce to the proper dispatch of business and 
the ends of justice.
    (g)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer for an initial decision, the presiding officer shall 
release an initial decision in compliance with one of the following 
deadlines:
    (i) 240 calendar days after a party informs the presiding officer 
that it elects not to pursue alternative dispute resolution as set 
forth in Sec.  76.7(g)(2) of this chapter; or
    (ii) If the parties have mutually elected to pursue alternative 
dispute resolution pursuant to Sec.  76.7(g)(2) of this chapter, within 
240 calendar days after the parties inform the presiding officer that 
they have failed to resolve their dispute through alternative dispute 
resolution.
    (2) The presiding officer may toll these deadlines under the 
following circumstances:
    (i) If the complainant and defendant jointly request that the 
presiding officer toll these deadlines in order to pursue settlement 
discussions or alternative dispute resolution or for any other reason 
that the complainant and defendant mutually agree justifies tolling; or
    (ii) If complying with the deadline would violate the due process 
rights of a party or would be inconsistent with fundamental fairness; 
or
    (iii) In extraordinary situations, due to a lack of adjudicatory 
resources available at the time.
0
10. Revise Sec.  0.347 to read as follows:


Sec.  0.347   Record of actions taken.

    The record of actions taken by a presiding officer, including 
initial and recommended decisions and actions taken pursuant to Sec.  
0.341, is available through the Commission's Electronic Comment Filing 
System (ECFS). ECFS serves as the repository for records in the 
Commission's docketed proceedings from 1992 to the present. The public 
may use ECFS to retrieve all such records, as well as selected pre-1992 
documents. The Office of the Secretary maintains copies of documents 
that include nonpublic information.


Sec. Sec.  0.351 and 0.357   [Removed and reserved]

0
11. Remove and reserve Sec. Sec.  0.351 and 0.357.

PART 1--PRACTICE AND PROCEDURE

0
12. The authority citation for part 1 is revised to read as follows:

    Authority:  47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, 
unless otherwise noted.

0
13. Amend Sec.  1.21 by revising paragraph (d) to read as follows:


Sec.  1.21   Parties.

* * * * *
    (d) Except as otherwise expressly provided in this chapter, a duly 
authorized corporate officer or employee may act for the corporation in 
any matter which has not been designated for hearing and, in the 
discretion of the presiding officer, may appear and be heard on behalf 
of the corporation in a hearing proceeding.
* * * * *
0
14. Amend Sec.  1.49 by revising paragraphs (f)(1)(vii) and (viii), and 
adding paragraph (f)(1)(ix) to read as follows:


Sec.  1.49   Specifications as to pleadings and documents.

* * * * *
    (f)(1) * * *
    (vii) Domestic Section 214 discontinuance applications pursuant to 
Sec. Sec.  63.63 and/or 63.71 of this chapter;
    (viii) Notices of network change and associated certifications 
pursuant to Sec.  51.325 et seq. of this chapter; and
    (ix) Hearing proceedings under Sec. Sec.  1.201 through 1.377.
* * * * *
0
15. Amend Sec.  1.51 by revising paragraph (a) to read as follows:


Sec.  1.51   Number of copies of pleadings, briefs, and other papers.

    (a) In hearing proceedings, all pleadings, letters, documents, or 
other written submissions, shall be filed using the Commission's 
Electronic Comment Filing System, excluding confidential material as 
set forth in Sec.  1.314 of these rules. An original and one copy of 
each written submission that includes confidential material shall be 
filed, along with an additional copy for each additional presiding 
officer, if more than one. Additional courtesy copies of electronically 
filed submissions shall be emailed as directed by the Commission.
* * * * *
0
16. Amend Sec.  1.80 by revising the introductory text of paragraph (g) 
and paragraphs (g)(1) and (3) to read as follows:

[[Page 53363]]

Sec.  1.80   Forfeiture proceedings.

* * * * *
    (g) Notice of opportunity for hearing. The procedures set out in 
this paragraph apply only when a formal hearing under section 
503(b)(3)(A) of the Communications Act is being held to determine 
whether to assess a forfeiture penalty.
    (1) Before imposing a forfeiture penalty, the Commission may, in 
its discretion, issue a notice of opportunity for hearing. The formal 
hearing proceeding shall be conducted by an administrative law judge 
under procedures set out in subpart B of this part, including 
procedures for appeal and review of initial decisions. A final 
Commission order assessing a forfeiture under the provisions of this 
paragraph is subject to judicial review under section 402(a) of the 
Communications Act.
* * * * *
    (3) Where the possible assessment of a forfeiture is an issue in a 
hearing proceeding to determine whether a pending application should be 
granted, and the application is dismissed pursuant to a settlement 
agreement or otherwise, and the presiding judge has not made a 
determination on the forfeiture issue, the presiding judge shall 
forward the order of dismissal to the attention of the full Commission. 
Within the time provided by Sec.  1.117, the Commission may, on its own 
motion, proceed with a determination of whether a forfeiture against 
the applicant is warranted. If the Commission so proceeds, it will 
provide the applicant with a reasonable opportunity to respond to the 
forfeiture issue (see paragraph (f)(3) of this section) and make a 
determination under the procedures outlined in paragraph (f) of this 
section.
* * * * *
0
17. Revise Sec.  1.85 to read as follows:


Sec.  1.85   Suspension of operator licenses.

    Whenever grounds exist for suspension of an operator license, as 
provided in Sec.  303(m) of the Communications Act, the Chief of the 
Wireless Telecommunications Bureau, with respect to amateur and 
commercial radio operator licenses, may issue an order suspending the 
operator license. No order of suspension of any operator's license 
shall take effect until 15 days' notice in writing of the cause for the 
proposed suspension has been given to the operator licensee, who may 
make written application to the Commission at any time within the said 
15 days for a hearing upon such order. The notice to the operator 
licensee shall not be effective until actually received by the operator 
licensee, and from that time the operator licensee shall have 15 days 
in which to mail the said application. In the event that physical 
conditions prevent mailing of the application before the expiration of 
the 15-day period, the application shall then be mailed as soon as 
possible thereafter, accompanied by a satisfactory explanation of the 
delay. Upon receipt by the Commission of such application for hearing, 
said order of suspension shall be designated for hearing and said 
suspension shall be held in abeyance until the conclusion of the 
hearing proceeding. If the license is ordered suspended, the operator 
shall send his, her, or its operator license to the Mobility Division, 
Wireless Telecommunications Bureau, in Washington, DC, on or before the 
effective date of the order, or, if the effective date has passed at 
the time notice is received, the license shall be sent to the 
Commission forthwith.
0
18. Amend Sec.  1.87 by revising paragraphs (e) and (f), and the 
introductory text of paragraph (g) to read as follows:


Sec.  1.87   Modification of license or construction permit on motion 
of the Commission.

* * * * *
    (e) In any case where a hearing proceeding is conducted pursuant to 
the provisions of this section, both the burden of proceeding with the 
introduction of evidence and the burden of proof shall be upon the 
Commission except that, with respect to any issue that pertains to the 
question of whether the proposed action would modify the license or 
permit of a person filing a protest pursuant to paragraph (c) of this 
section, such burdens shall be as described by the Commission.
    (f) In order to utilize the right to a hearing and the opportunity 
to give evidence upon the issues specified in any order designating a 
matter for hearing, any licensee, or permittee, itself or by counsel, 
shall, within the period of time as may be specified in that order, 
file with the Commission a written appearance stating that it will 
present evidence on the matters specified in the order and, if 
required, appear before the presiding officer at a date and time to be 
determined.
    (g) The right to file a protest or the right to a hearing 
proceeding shall, unless good cause is shown in a petition to be filed 
not later than 5 days before the lapse of time specified in paragraph 
(a) or (f) of this section, be deemed waived:
* * * * *
0
19. Amend Sec.  1.91 by revising paragraphs (b), (c), and (d) to read 
as follows:


Sec.  1.91   Revocation and/or cease and desist proceedings; hearings.

* * * * *
    (b) An order to show cause why an order of revocation and/or a 
cease and desist order should not be issued will designate for hearing 
the matters with respect to which the Commission is inquiring and will 
call upon the person to whom it is directed (the respondent) to file 
with the Commission a written appearance stating that the respondent 
will present evidence upon the matters specified in the order to show 
cause and, if required, appear before a presiding officer at a time and 
place to be determined, but no earlier than thirty days after the 
receipt of such order. However, if safety of life or property is 
involved, the order to show cause may specify a deadline of less than 
thirty days from the receipt of such order.
    (c) To avail themselves of such opportunity for a hearing, 
respondents, personally or by counsel, shall file with the Commission, 
within twenty days of the mailing of the order or such shorter period 
as may be specified therein, a written appearance stating that they 
will present evidence on the matters specified in the order and, if 
required, appear before the presiding officer at a time and place to be 
determined. The presiding officer in his or her discretion may accept a 
late-filed appearance. However, a written appearance tendered after the 
specified time has expired will not be accepted unless accompanied by a 
petition stating with particularity the facts and reasons relied on to 
justify such late filing. Such petition for acceptance of a late-filed 
appearance will be granted only if the presiding officer determines 
that the facts and reasons stated therein constitute good cause for 
failure to file on time.
    (d) Hearing proceedings on the matters specified in such orders to 
show cause shall accord with the practice and procedure prescribed in 
this subpart and subpart B of this part, with the following exceptions: 
(1) In all such revocation and/or cease and desist hearings, the burden 
of proceeding with the introduction of evidence and the burden of proof 
shall be upon the Commission; and (2) the Commission may specify in a 
show cause order, when the circumstances of the proceeding require 
expedition, a time less than that prescribed in Sec. Sec.  1.276 and 
1.277 within which the initial decision in the proceeding shall become 
effective, exceptions to such initial decision must be filed, parties 
must file

[[Page 53364]]

requests for oral argument, and parties must file notice of intention 
to participate in oral argument.
* * * * *
0
20. Amend Sec.  1.92 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  1.92   Revocation and/or cease and desist proceedings; after 
waiver of hearing.

    (a) After the issuance of an order to show cause, pursuant to Sec.  
1.91, designating a matter for hearing, the occurrence of any one of 
the following events or circumstances will constitute a waiver of such 
hearing and the proceeding thereafter will be conducted in accordance 
with the provisions of this section.
    (1) The respondent fails to file a timely written appearance as 
prescribed in Sec.  1.91(c) indicating that the respondent will present 
evidence on the matters specified in the order and, if required by the 
order, that the respondent will appear before the presiding officer.
    (2) The respondent, having filed a timely written appearance as 
prescribed in Sec.  1.91(c), fails in fact to present evidence on the 
matters specified in the order or appear before the presiding officer 
in person or by counsel at the time and place duly scheduled.
    (3) The respondent files with the Commission, within the time 
specified for a written appearance in Sec.  1.91(c), a written 
statement expressly waiving his or her rights to a hearing.
* * * * *
    (c) Whenever a hearing is waived by the occurrence of any of the 
events or circumstances listed in paragraph (a) of this section, the 
presiding officer shall, at the earliest practicable date, issue an 
order reciting the events or circumstances constituting a waiver of 
hearing and terminating the hearing proceeding. A presiding officer 
other than the Commission also shall certify the case to the 
Commission. Such order shall be served upon the respondent.
* * * * *
0
21. Amend Sec.  1.93 by revising paragraph (a) to read as follows:


Sec.  1.93   Consent orders.

    (a) As used in this subpart, a ``consent order'' is a formal decree 
accepting an agreement between a party to an adjudicatory hearing 
proceeding held to determine whether that party has violated statutes 
or Commission rules or policies and the appropriate operating Bureau, 
with regard to such party's future compliance with such statutes, rules 
or policies, and disposing of all issues on which the proceeding was 
designated for hearing. The order is issued by the officer designated 
to preside at the hearing proceeding.
* * * * *
0
22. Amend Sec.  1.94 by revising paragraphs (d) and (g) to read as 
follows:


Sec.  1.94   Consent order procedures.

* * * * *
    (d) If agreement is reached, it shall be submitted to the presiding 
officer, who shall either sign the order, reject the agreement, or 
suggest to the parties that negotiations continue on such portion of 
the agreement as the presiding officer considers unsatisfactory or on 
matters not reached in the agreement. If the presiding officer signs 
the consent order, the record shall be closed. If the presiding officer 
rejects the agreement, the hearing proceeding shall continue. If the 
presiding officer suggests further negotiations and the parties agree 
to resume negotiating, the presiding officer may, in his or her 
discretion, decide whether to hold the hearing proceeding in abeyance 
pending the negotiations.
* * * * *
    (g) Consent orders, pleadings relating thereto, and Commission 
orders with respect thereto shall be served on parties to the 
proceeding. Public notice will be given of orders issued by the 
Commission or by the presiding officer. Negotiating papers constitute 
work product, are available to parties participating in negotiations, 
but are not routinely available for public inspection.
* * * * *
0
23. Amend Sec.  1.104 by revising paragraph (a) to read as follows:


Sec.  1.104   Preserving the right of review; deferred consideration of 
application for review.

    (a) The provisions of this section apply to all final actions taken 
pursuant to delegated authority, including final actions taken by 
members of the Commission's staff on nonhearing matters. They do not 
apply to interlocutory actions of a presiding officer in hearing 
proceedings, or to orders designating a matter for hearing issued under 
delegated authority. See Sec. Sec.  1.106(a) and 1.115(e).
* * * * *
0
24. Amend Sec.  1.115 by removing paragraphs (e)(1) and (e)(2), 
redesignating paragraph (e)(3) as paragraph (e)(1) and paragraph (e)(4) 
as paragraph (e)(2), and revising newly redesignated paragraph (e)(1) 
to read as follows:


Sec.  1.115   Application for review of action taken pursuant to 
delegated authority.

* * * * *
    (e)(1) Applications for review of an order designating a matter for 
hearing that was issued under delegated authority shall be deferred 
until exceptions to the initial decision in the case are filed, unless 
the presiding officer certifies such an application for review to the 
Commission. A matter shall be certified to the Commission if the 
presiding officer determines that the matter involves a controlling 
question of law as to which there is substantial ground for difference 
of opinion and that immediate consideration of the question would 
materially expedite the ultimate resolution of the litigation. A 
request to certify a matter to the Commission shall be filed with the 
presiding officer within 5 days after the designation order is 
released. A ruling refusing to certify a matter to the Commission is 
not appealable. Any application for review authorized by the presiding 
officer shall be filed within 5 days after the order certifying the 
matter to the Commission is released or such a ruling is made. 
Oppositions shall be filed within 5 days after the application for 
review is filed. Replies to oppositions shall be filed only if they are 
requested by the Commission. Replies (if allowed) shall be filed within 
5 days after they are requested. The Commission may dismiss, without 
stating reasons, an application for review that has been certified, and 
direct that the objections to the order designating the matter for 
hearing be deferred and raised when exceptions in the initial decision 
in the case are filed.
* * * * *
0
25. Amend Sec.  1.201 by redesignating the Note as Note 2 to Sec.  
1.201 and adding Note 1 to Sec.  1.201 and revising the newly 
redesignating Note 2 to Sec.  1.201 to read as follows:


Sec.  1.201   Scope.

* * * * *

    Note 1 to Sec.  1.201:  For special provisions relating to 
hearing proceedings under this subpart that the Commission 
determines shall be conducted and resolved on a written record, see 
Sec. Sec.  1.370-1.377.


    Note 2 to Sec.  1.201:  For special provisions relating to AM 
broadcast station applications involving other North American 
countries see Sec.  73.23.

0
26. Revise Sec.  1.202 to read as follows:


Sec.  1.202   Official reporter; transcript.

    The Commission will designate an official reporter for the 
recording and transcribing of hearing proceedings as necessary. 
Transcripts will be transmitted to the Secretary for inclusion in the 
Commission's Electronic Comment Filing System.

[[Page 53365]]

0
27. Revise Sec.  1.203 and the authority citation to read as follows:


Sec.  1.203   The record.

    The evidence submitted by the parties, together with all papers and 
requests filed in the proceeding and any transcripts, shall constitute 
the exclusive record for decision. Where any decision rests on official 
notice of a material fact not appearing in the record, any party shall 
on timely request be afforded an opportunity to show the contrary. (5 
U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
0
28. Revise Sec.  1.209 to read as follows:


Sec.  1.209   Identification of responsible officer in caption to 
pleading.

0
29. Each pleading filed in a hearing proceeding shall indicate in its 
caption whether it is to be acted upon by the Commission or, if the 
Commission is not the presiding officer, by the presiding officer. 
Unless it is to be acted upon by the Commission, the presiding officer 
shall be identified by name.
0
30. Add Sec.  1.210 to Subpart B to read as follows:

Subpart B--Hearing Proceedings


Sec.  1.210   Electronic filing.

    All pleadings filed in a hearing proceeding, as well as all 
letters, documents, or other written submissions, shall be filed using 
the Commission's Electronic Comment Filing System, excluding 
confidential material as set forth in Sec.  1.314 of these rules. A 
courtesy copy of all submissions shall be contemporaneously provided to 
the presiding officer via electronic mail.
0
31. Amend Sec.  1.221 by revising paragraphs (b) through (e), removing 
paragraphs (f) and (g), revising and redesignating paragraph (h) as 
paragraph (f), and revising the authority citation to read as follows:


Sec.  1.221   Notice of hearing; appearances.

* * * * *
    (b) The order designating an application for hearing shall be 
mailed to the applicant and the order, or a summary thereof, shall be 
published in the Federal Register. Reasonable notice of hearing will be 
given to the parties in all proceedings.
    (c) In order to avail themselves of the opportunity to be heard, 
applicants or their attorney shall file, within 20 days of the mailing 
of the order designating a matter for hearing, a written appearance 
stating that the applicant will present evidence on the matters 
specified in the order and, if required by the order, appear before the 
presiding officer at a date and time to be determined. Where an 
applicant fails to file such a written appearance within the time 
specified, or has not filed prior to the expiration of that time a 
petition to dismiss without prejudice, or a petition to accept, for 
good cause shown, such written appearance beyond expiration of said 20 
days, the application will be dismissed with prejudice for failure to 
prosecute.
    (d) The Commission will on its own motion name as parties to the 
hearing proceeding any person found to be a party in interest.
    (e) In order to avail themselves of the opportunity to be heard, 
any persons named as parties pursuant to paragraph (d) of this section 
shall, within 20 days of the mailing of the order designating them as 
parties to a hearing proceeding, file personally or by attorney a 
written appearance that they will present evidence on the matters 
specified in the order and, if required by the order, appear before the 
presiding officer at a date and time to be determined. Any persons so 
named who fail to file this written appearance within the time 
specified, shall, unless good cause for such failure is shown, forfeit 
their hearing rights.
    (f)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer, each party, in person or by attorney, shall file a 
written appearance within five calendar days after the party informs 
the presiding officer that it elects not to pursue alternative dispute 
resolution pursuant to Sec.  76.7(g)(2) of this chapter or, if the 
parties have mutually elected to pursue alternative dispute resolution 
pursuant to Sec.  76.7(g)(2) of this chapter, within five calendar days 
after the parties inform the presiding officer that they have failed to 
resolve their dispute through alternative dispute resolution. The 
written appearance shall state that the party will appear for hearing 
and present evidence on the issues specified in the hearing designation 
order.
    (2) If the complainant fails to file a written appearance by this 
deadline, or fails to file prior to the deadline either a petition to 
dismiss the proceeding without prejudice or a petition to accept, for 
good cause shown, a written appearance beyond such deadline, the 
presiding officer shall dismiss the complaint with prejudice for 
failure to prosecute.
    (3) If the defendant fails to file a written appearance by this 
deadline, or fails to file prior to this deadline a petition to accept, 
for good cause shown, a written appearance beyond such deadline, its 
opportunity to present evidence at hearing will be deemed to have been 
waived. If the hearing is so waived, the presiding officer shall 
expeditiously terminate the proceeding and certify to the Commission 
the complaint for resolution based on the existing record. When the 
Commission has designated itself as the presiding officer, it shall 
expeditiously terminate the proceeding and resolve the complaint based 
on the existing record.

(5 U.S.C. 554; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)

0
32. Revise Sec.  1.223 to read as follows:


Sec.  1.223  Petitions to intervene.

    (a) Where the order designating a matter for hearing has failed to 
notify and name as a party to the hearing proceeding any person who 
qualifies as a party in interest, such person may acquire the status of 
a party by filing, under oath and not more than 30 days after the 
publication in the Federal Register of the hearing issues or any 
substantial amendment thereto, a petition for intervention showing the 
basis of its interest. Where the person's status as a party in interest 
is established, the petition to intervene will be granted.
    (b) Any other person desiring to participate as a party in any 
hearing proceeding may file a petition for leave to intervene not later 
than 30 days after the publication in the Federal Register of the full 
text or a summary of the order designating the matter for hearing or 
any substantial amendment thereto. The petition must set forth the 
interest of petitioner in the proceedings, must show how such 
petitioner's participation will assist the Commission in the 
determination of the issues in question, must set forth any proposed 
issues in addition to those already designated for hearing, and must be 
accompanied by the affidavit of a person with knowledge as to the facts 
set forth in the petition. The presiding officer, in his or her 
discretion, may grant or deny such petition or may permit intervention 
by such persons limited to a particular stage of the proceeding.
    (c) Any person desiring to file a petition for leave to intervene 
later than 30 days after the publication in the Federal Register of the 
full text or a summary of the order designating the matter for hearing 
or any substantial amendment thereto shall set forth the interest of 
petitioner in the proceeding, show how such petitioner's participation 
will assist the Commission in the determination of the issues in 
question, must set forth any proposed issues in addition to those 
already designated for hearing, and must set

[[Page 53366]]

forth reasons why it was not possible to file a petition within the 
time prescribed by paragraphs (a) and (b) of this section. If, in the 
opinion of the presiding officer, good cause is shown for the delay in 
filing, the presiding officer may in his or her discretion grant such 
petition or may permit intervention limited to particular issues or to 
a particular stage of the proceeding.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)

0
33. Amend Sec.  1.225 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1.225  Participation by non-parties; consideration of 
communications.

* * * * *
    (b) No persons shall be precluded from giving any relevant, 
material, and competent testimony because they lack a sufficient 
interest to justify their intervention as parties in the matter.
    (c) No communication will be considered in determining the merits 
of any matter unless it has been received into evidence. The 
admissibility of any communication shall be governed by the applicable 
rules of evidence in Sec.  1.351, and no communication shall be 
admissible on the basis of a stipulation unless Commission counsel as 
well as counsel for all of the parties shall join in such stipulation.
0
34. Revise Sec.  1.227 to read as follows:


Sec.  1.227  Consolidations.

    The Commission, upon motion or upon its own motion, may, where such 
action will best conduce to the proper dispatch of business and to the 
ends of justice, consolidate in a hearing proceeding any cases that 
involve the same applicant or substantially the same issues, or that 
present conflicting claims.
0
35. Amend Sec.  1.229 by removing paragraphs (b)(1) and (e), 
redesignating paragraph (b)(2) as (b)(1), redesignating paragraph 
(b)(3) as (b)(2), redesignating paragraph (f) as paragraph (e), and 
revising paragraph (a) and redesignated paragraphs (b)(1), (2), and (e) 
to read as follows:


Sec.  1.229  Motions to enlarge, change, or delete issues.

    (a) A motion to enlarge, change or delete the issues may be filed 
by any party to a hearing proceeding. Except as provided for in 
paragraph (b) of this section, such motions must be filed within 15 
days after the full text or a summary of the order designating the case 
for hearing has been published in the Federal Register.
    (b)(1) For program carriage complaints filed pursuant to Sec.  
76.1302 of this chapter that the Chief, Media Bureau refers to a 
presiding officer, such motions shall be filed within 15 calendar days 
after the deadline for submitting written appearances pursuant to Sec.  
1.221(h), except that persons not named as parties to the proceeding in 
the designation order may file such motions with their petitions to 
intervene up to 30 days after publication of the full text or a summary 
of the designation order in the Federal Register. (See Sec.  1.223).
    (2) Any person desiring to file a motion to modify the issues after 
the expiration of periods specified in paragraphs (a) and (b)(1) of 
this section shall set forth the reason why it was not possible to file 
the motion within the prescribed period. Except as provided in 
paragraph (c) of this section, the motion will be granted only if good 
cause is shown for the delay in filing. Motions for modifications of 
issues which are based on new facts or newly discovered facts shall be 
filed within 15 days after such facts are discovered by the moving 
party.
* * * * *
    (e) In any case in which the presiding officer grants a motion to 
enlarge the issues to inquire into allegations that an applicant made 
misrepresentations to the Commission or engaged in other misconduct 
during the application process, the enlarged issues include notice 
that, after hearings on the enlarged issue and upon a finding that the 
alleged misconduct occurred and warrants such penalty, in addition to 
or in lieu of denying the application, the applicant may be liable for 
a forfeiture of up to the maximum statutory amount. See 47 U.S.C. 
503(b)(2)(A).
* * * * *
0
36. Revise Sec.  1.241 to read as follows:


Sec.  1.241  Designation of presiding officer.

    (a) Hearing proceedings will be conducted by a presiding officer. 
The designated presiding officer will be identified in the order 
designating a matter for hearing. Only the Commission, one or more 
commissioners, or an administrative law judge designated pursuant to 5 
U.S.C. 3105 may be designated as a presiding officer. Unless otherwise 
stated, the term presiding officer will include the Commission when the 
Commission designates itself to preside over a hearing proceeding.
    (b) If a presiding officer becomes unavailable during the course of 
a hearing proceeding, another presiding officer will be designated.
0
37. Add Sec.  1.242 to Subpart B to read as follows:


Sec.  1.242  Appointment of case manager when Commission is the 
presiding officer.

    When the Commission designates itself as the presiding officer in a 
hearing proceeding, it may delegate authority to a case manager to 
develop the record in a written hearing (see Sec. Sec.  1.370-1.377). 
The case manager must be a staff attorney who qualifies as a neutral 
under 5 U.S.C. 571 and 573. The Commission shall not designate any of 
the following persons to serve as case manager in a case, and they may 
not advise or assist the case manager: Staff who participated in 
identifying the specific issues designated for hearing; staff who have 
taken or will take an active part in investigating, prosecuting, or 
advocating in the case; or staff who are expected to investigate and 
act upon petitions to deny (including challenges thereto). A case 
manager shall have authority to perform any of the functions generally 
performed by the presiding officer, except that a case manager shall 
have no authority to resolve any new or novel issues, to issue an order 
on the merits resolving any issue designated for hearing in a case, to 
issue an order on the merits of any motion for summary decision filed 
under Sec.  1.251, or to perform any other functions that the 
Commission reserves to itself in the order appointing a case manager.
0
38. Amend Sec.  1.243 by revising the introductory text, paragraphs 
(g), (i) through (l), the authority citation, and adding paragraphs (m) 
and (n) to read as follows:


Sec.  1.243  Authority of presiding officer.

    From the time the presiding officer is designated until issuance of 
the presiding officer's decision or the transfer of the proceeding to 
the Commission or to another presiding officer, the presiding officer 
shall have such authority as granted by law and by the provisions of 
this chapter, including authority to:
* * * * *
    (g) Require the filing of memoranda of law and the presentation of 
oral argument with respect to any question of law upon which the 
presiding officer or the Commission is required to rule during the 
course of the hearing proceeding;
* * * * *
    (i) Dispose of procedural requests and ancillary matters, as 
appropriate;
    (j) Take actions and make decisions in conformity with governing 
law;
    (k) Act on motions to enlarge, modify or delete the hearing issues;
    (l) Act on motions to proceed in forma pauperis pursuant to Sec.  
1.224;

[[Page 53367]]

    (m) Decide a matter upon the existing record or request additional 
information from the parties; and
    (n) Issue such orders and conduct such proceedings as will best 
conduce to the proper dispatch of business and the ends of justice.

(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)

* * * * *
0
39. Revise Sec.  1.244 to read as follows:


Sec.  1.244  Designation of a settlement officer.

    (a) Parties may request that the presiding officer appoint a 
settlement officer to facilitate the resolution of the case by 
settlement.
    (b) Where all parties in a case agree that such procedures may be 
beneficial, such requests may be filed with the presiding officer no 
later than 15 days prior to the date scheduled for the commencement of 
hearings or, in hearing proceedings conducted pursuant to Sec. Sec.  
1.370-1.377, no later than 15 days before the date set as the deadline 
for filing the affirmative case. The presiding officer shall suspend 
the procedural dates in the case pending action upon such requests.
    (c) If, in the discretion of the presiding officer, it appears that 
the appointment of a settlement officer will facilitate the settlement 
of the case, the presiding officer shall appoint a ``neutral'' as 
defined in 5 U.S.C. 571 and 573 to act as the settlement officer.
    (1) The parties may request the appointment of a settlement officer 
of their own choosing so long as that person is a ``neutral'' as 
defined in 5 U.S.C. 571 and 573.
    (2) The appointment of a settlement officer in a particular case is 
subject to the approval of all the parties in the proceeding.
    (3) Neither the Commission, nor any sitting members of the 
Commission, nor the presiding officer shall serve as the settlement 
officer in any case.
    (4) Other members of the Commission's staff who qualify as neutrals 
may be appointed as settlement officers. The presiding officer shall 
not appoint a member of the Commission's staff as a settlement officer 
in any case if the staff member's duties include, or have included, 
drafting, reviewing, and/or recommending actions on the merits of the 
issues designated for hearing in that case.
    (d) The settlement officer shall have the authority to require 
parties to submit their written direct cases for review. The settlement 
officer may also meet with the parties and/or their counsel, 
individually and/or at joint conferences, to discuss their cases and 
the cases of their competitors. All such meetings will be off-the-
record, and the settlement officer may express an opinion as to the 
relative merit of the parties' positions and recommend possible means 
to resolve the proceeding by settlement. The proceedings before the 
settlement officer shall be subject to the confidentiality provisions 
of 5 U.S.C. 574. Moreover, no statements, offers of settlement, 
representations or concessions of the parties or opinions expressed by 
the settlement officer will be admissible as evidence in any Commission 
proceeding.
0
40. Amend Sec.  1.245 by revising paragraphs (a), (b)(1) through (3), 
and the authority citation to read as follows:


Sec.  1.245  Disqualification of presiding officer.

    (a) In the event that a presiding officer (other than the 
Commission) deems himself or herself disqualified and desires to 
withdraw from the case, the presiding officer shall immediately so 
notify the Commission.
    (b) * * *
    (1) The person seeking disqualification shall file with the 
presiding officer an affidavit setting forth in detail the facts 
alleged to constitute grounds for disqualification.
    (2) The presiding officer may file a response to the affidavit; and 
if the presiding officer believes he or she is not disqualified, he or 
she shall so rule and continue with the hearing proceeding.
    (3) The person seeking disqualification may appeal a ruling denying 
the request for withdrawal of the presiding officer, and, in that 
event, shall do so within five days of release of the presiding 
officer's ruling. Unless an appeal of the ruling is filed at this time, 
the right to request withdrawal of the presiding officer shall be 
deemed waived.
* * * * *

(5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)

* * * * *
0
41. Revise Sec.  1.248 to read as follows:


Sec.  1.248  Status conferences.

    (a) The presiding officer may direct the parties or their attorneys 
to appear at a specified time and place for a status conference during 
the course of a hearing proceeding, or to submit suggestions in 
writing, for the purpose of considering, among other things, the 
matters set forth in paragraph (c) of this section. Any party may 
request a status conference at any time after release of the order 
designating a matter for hearing. During a status conference, the 
presiding officer may issue rulings regarding matters relevant to the 
conduct of the hearing proceeding including, inter alia, procedural 
matters, discovery, and the submission of briefs or evidentiary 
materials.
    (b) The presiding officer shall schedule an initial status 
conference promptly after written appearances have been submitted under 
Sec.  1.91 or Sec.  1.221. At or promptly after the initial status 
conference, the presiding officer shall adopt a schedule to govern the 
hearing proceeding. If the Commission designated a matter for hearing 
on a written record under Sec. Sec.  1.370-1.376, the scheduling order 
shall include a deadline for filing a motion to request an oral hearing 
in accordance with Sec.  1.376. If the Commission did not designate the 
matter for hearing on a written record, the scheduling order shall 
include a deadline for filing a motion to conduct the hearing on a 
written record. Except as circumstances otherwise require, the 
presiding officer shall allow a reasonable period prior to commencement 
of the hearing for the orderly completion of all prehearing procedures, 
including discovery, and for the submission and disposition of all 
motions.
    (c) In status conferences, the following matters, among others, may 
be considered:
    (1) Clarifying, amplifying, or narrowing issues designated for 
hearing;
    (2) Scheduling;
    (3) Admission of facts and of the genuineness of documents (see 
Sec.  1.246), and the possibility of stipulating with respect to facts;
    (4) Discovery;
    (5) Motions;
    (6) Hearing procedure;
    (7) Settlement (see Sec.  1.93); and
    (8) Such other matters that may aid in resolution of the issues 
designated for hearing.
    (d) Status conferences may be conducted in person or by telephone 
conference call or similar technology, at the discretion of the 
presiding officer. An official transcript of all status conferences 
shall be made unless the presiding officer and the parties agree to 
forego a transcript, in which case any rulings by the presiding officer 
during the status conference shall be promptly memorialized in writing.
    (e) The failure of any attorney or party, following reasonable 
notice, to appear at a scheduled status conference may be deemed a 
waiver by that party of its rights to participate in the hearing 
proceeding and shall not preclude the presiding officer from conferring 
with parties or counsel present.
* * * * *

[[Page 53368]]

0
42. Revise Sec.  1.249 to read as follows:


Sec.  1.249  Presiding officer statement.

    The presiding officer shall enter upon the record a statement 
reciting all actions taken at a status conference convened under Sec.  
1.248 and incorporating into the record all of the stipulations and 
agreements of the parties which were approved by the presiding officer, 
and any special rules which the presiding officer may deem necessary to 
govern the course of the proceeding.
0
43. Revise Sec.  1.250 to read as follows:


Sec.  1.250  Discovery and preservation of evidence; cross-reference.

    For provisions relating to prehearing discovery and preservation of 
admissible evidence in hearing proceedings under this Subpart B, see 
Sec. Sec.  1.311 through 1.325.
0
44. Amend Sec.  1.251 by revising paragraphs (a)(1) and (2), adding 
paragraph (a)(3), and revising paragraphs (d), (e), and (f)(1) through 
(3) to read as follows:


Sec.  1.251  Summary decision.

    (a)(1) Any party to an adjudicatory proceeding may move for summary 
decision of all or any of the issues designated for hearing. The motion 
shall be filed at least 20 days prior to the date set for commencement 
of the hearing or, in hearing proceedings conducted pursuant to 
Sec. Sec.  1.370-1.377, at least 20 days before the date that the 
presiding officer sets as the deadline for filing the affirmative case. 
See Sec.  1.372. The party filing the motion may not rest upon mere 
allegations or denials but must show, by affidavit or by other 
materials subject to consideration by the presiding officer, that there 
is no genuine issue of material fact for determination in the hearing 
proceeding.
    (2) A party may file a motion for summary decision after the 
deadlines in paragraph (a)(1) of this section only with the presiding 
officer's permission, or upon the presiding officer's invitation. No 
appeal from an order granting or denying a request for permission to 
file a motion for summary decision shall be allowed. If the presiding 
officer authorizes a motion for summary decision after the deadlines in 
paragraph (a)(1) of this section, proposed findings of fact and 
conclusions of law on those issues which the moving party believes can 
be resolved shall be attached to the motion, and any other party may 
file findings of fact and conclusions of law as an attachment to 
pleadings filed by the party pursuant to paragraph (b) of this section.
    (3) Motions for summary decision should be addressed to the 
Commission in any hearing proceeding in which the Commission is the 
presiding officer and it has appointed a case manager pursuant to Sec.  
1.242. The Commission, in its discretion, may defer ruling on any such 
motion until after the case manager has certified the record for 
decision by the Commission pursuant to Sec.  1.377.
* * * * *
    (d) The presiding officer may, in his or her discretion, set the 
matter for argument and may call for the submission of proposed 
findings, conclusions, briefs or memoranda of law. The presiding 
officer, giving appropriate weight to the nature of the proceeding, the 
issue or issues, the proof, and the need for cross-examination, if any, 
may grant a motion for summary decision to the extent that the 
pleadings, affidavits, materials obtained by discovery or otherwise, 
admissions, or matters officially noticed, show that there is no 
genuine issue as to any material fact and that a party is otherwise 
entitled to summary decision. If it appears from the affidavits of a 
party opposing the motion that the party cannot, for good cause shown, 
present by affidavit or otherwise facts essential to justify the 
party's opposition, the presiding officer may deny the motion, may 
order a continuance to permit affidavits to be obtained or discovery to 
be had, or make such other order as is just.
    (e) If all of the issues (or a dispositive issue) are determined on 
a motion for summary decision, the hearing proceeding shall be 
terminated. When a presiding officer (other than the Commission) issues 
a Summary Decision, it is subject to appeal or review in the same 
manner as an Initial Decision. See Sec. Sec.  1.271 through 1.282. If 
some of the issues only (including no dispositive issue) are decided on 
a motion for summary decision, or if the motion is denied, the 
presiding officer will issue a memorandum opinion and order, 
interlocutory in character, and the hearing proceeding will continue on 
the remaining issues. Appeal from interlocutory rulings is governed by 
Sec.  1.301.
    (f) The presiding officer may take any action deemed necessary to 
assure that summary decision procedures are not abused. The presiding 
officer may rule in advance of a motion that the proceeding is not 
appropriate for summary decision, and may take such other measures as 
are necessary to prevent any unwarranted delay.
    (1) Should it appear to the satisfaction of the presiding officer 
that a motion for summary decision has been presented in bad faith or 
solely for the purpose of delay, or that such a motion is patently 
frivolous, the presiding officer will enter a determination to that 
effect upon the record.
    (2) If, on making such determination, the presiding officer 
concludes that the facts warrant disciplinary action against an 
attorney, the matter, together with any findings and recommendations, 
will be referred to the Commission for consideration under Sec.  1.24.
    (3) If, on making such determination, the presiding officer 
concludes that the facts warrant a finding of bad faith on the part of 
a party to the proceeding, the presiding officer will certify the 
matter to the Commission, with findings and recommendations, for a 
determination as to whether the facts warrant the addition of an issue 
to the hearing proceeding as to the character qualifications of that 
party.
* * * * *
0
45. Revise Sec.  1.253 to read as follows:


Sec.  1.253  Time and place of hearing.

    The presiding officer shall specify the time and place of oral 
hearings. All oral hearings will take place at Commission Headquarters 
unless the presiding officer designates another location.
0
46. Revise Sec.  1.254 to read as follows:


Sec.  1.254  Nature of the hearing proceeding; burden of proof.

    Any hearing upon an application shall be a full hearing proceeding 
in which the applicant and all other parties in interest shall be 
permitted to participate but in which both the burden of proceeding 
with the introduction of evidence upon any issue specified by the 
Commission, as well as the burden of proof upon all such issues, shall 
be upon the applicant except as otherwise provided in the order of 
designation.

(Sec. 309, 48 Stat. 1085, as amended; 47 U.S.C. 309)

Sec.  1.258  [Removed and reserved]

0
47. Remove and reserve Sec.  1.258.


Sec.  1.260  [Removed and reserved]

0
48. Remove and reserve Sec.  1.260.
0
49. Revise Sec.  1.261 to read as follows:


Sec.  1.261  Corrections to transcript.

    At any time during the course of the proceeding, or as directed by 
the presiding officer, but not later than 10 days after the 
transmission to the parties of the transcript of any oral conference or 
hearing, any party to the proceeding may file with the presiding 
officer a motion requesting corrections to the transcript, which motion 
shall be

[[Page 53369]]

accompanied by proof of service thereof upon all other parties to the 
proceeding. Within 5 days after the filing of such a motion, other 
parties 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 presiding 
officer may sua sponte specify corrections to be made in the transcript 
on 5 days' notice.
0
50. Amend Sec.  1.263 by revising paragraph (a) and the authority 
citation to read as follows:


Sec.  1.263   Proposed findings and conclusions.

    (a) The presiding officer may direct any party to file proposed 
findings of fact and conclusions, briefs, or memoranda of law. If the 
presiding officer does not so order, any party to the proceeding may 
seek leave to file 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 the time prescribed 
by the presiding officer.
* * * * *

(5 U.S.C. 557; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 
409)


0
51. Add Sec.  1.265 to Subpart B to read as follows:


Sec.  1.265  Closing the record.

    At the conclusion of hearing proceedings, the presiding officer 
shall promptly close the record after the parties have submitted their 
evidence, filed any proposed findings and conclusions under Sec.  
1.263, and submitted any other information required by the presiding 
officer. After the record is closed, it shall be certified by the 
presiding officer and filed in the Office of the Secretary. Notice of 
such certification shall be served on all parties to the proceedings.
0
52. Amend Sec.  1.267 by revising paragraphs (a) and (c) to read as 
follows:


Sec.  1.267  Initial and recommended decisions.

    (a) Except as provided in Sec. Sec.  1.94, 1.251 and 1.274, when 
the proceeding is terminated on motion, or when the presiding officer 
is the Commission, the presiding officer shall prepare an initial (or 
recommended) decision, which shall be transmitted to the Secretary of 
the Commission. In the case of rate making proceedings conducted under 
sections 201-205 of the Communications Act, the presumption shall be 
that the presiding officer shall prepare an initial or recommended 
decision. The Secretary will make the decision public immediately and 
file it in the docket of the case.
* * * * *
    (c) When the Commission is not the presiding officer, the authority 
of the presiding officer over the proceedings shall cease when the 
presiding officer has filed an Initial or Recommended Decision, or if 
it is a case in which the presiding officer is to file no decision, 
when they have certified the case for decision: Provided, however, That 
the presiding officer shall retain limited jurisdiction over the 
proceeding for the purpose of effecting certification of the record and 
corrections to the transcript, as provided in Sec. Sec.  1.265 and 
1.261, respectively, and for the purpose of ruling initially on 
applications for awards of fees and expenses under the Equal Access to 
Justice Act.
* * * * *
0
53. Revise Sec.  1.273 to read as follows:


Sec.  1.273  Waiver of initial or recommended decision.

    When the Commission serves as the presiding officer, it will not 
issue an initial or recommended decision. When the Commission is not 
the presiding officer, at any time before the record is closed all 
parties to the proceeding may agree to waive an initial or recommended 
decision, and may request that the Commission issue a final decision or 
order in the case. If the Commission has directed that its review 
function in the case be performed by a commissioner or a panel of 
commissioners, the request shall be directed to the appropriate review 
authority. The Commission or such review authority 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.
0
54. Revise Sec.  1.274 to read as follows:


Sec.  1.274  Certification of the record to the Commission for decision 
when the Commission is not the presiding officer; presiding officer 
unavailability.

    (a) When the Commission is not the presiding officer, and where the 
Commission finds upon the record that due and timely execution of its 
functions imperatively and unavoidably so requires, the Commission may 
direct that the record in a pending proceeding be certified to it for 
decision.
    (b) When a presiding officer becomes unavailable to the Commission 
after the taking of evidence has been concluded, the Commission shall 
direct that the record be certified to it for decision. In that event, 
the Commission shall designate a new presiding officer in accordance 
with Sec.  1.241 for the limited purpose of certifying the record to 
the Commission.
    (c) In all other circumstances when the Commission is not the 
presiding officer, the presiding officer shall prepare and file an 
initial or recommended decision, which will be released in accordance 
with Sec.  1.267.
    (d) When a presiding officer becomes unavailable to the Commission 
after the taking of evidence has commenced but before it has been 
concluded, the Commission shall designate another presiding officer in 
accordance with Sec.  1.241 to continue the hearing proceeding. Oral 
testimony already introduced shall not be reheard unless observation of 
the demeanor of the witness is essential to the resolution of the case.
* * * * *
0
55. Revise Sec.  1.279 to read as follows:


Sec.  1.279  Limitation of matters to be reviewed.

    (a) Upon review of any initial decision, the Commission may, in its 
discretion, limit the issues to be reviewed to those findings and 
conclusions to which exceptions have been filed, or to those findings 
and conclusions specified in the Commission's order of review issued 
pursuant to Sec.  1.276(b).
    (b) No party may file an exception to the presiding officer's 
ruling that all or part of the hearing be conducted and resolved on a 
written record, unless that party previously filed an interlocutory 
motion to request an oral hearing in accordance with Sec.  1.376.
0
56. Revise Sec.  1.291 to read as follows:


Sec.  1.291  General provisions.

    (a)(1) The Commission acts on petitions to amend, modify, enlarge 
or delete the issues in hearing proceedings which involve rule making 
matters exclusively.
    (2) All other interlocutory matters in hearing proceedings are 
acted on by the presiding officer.
    (3) Each interlocutory pleading shall identify the presiding 
officer in its caption. Unless the pleading is to be acted upon by the 
Commission, the presiding officer shall be identified by name.
    (b) All interlocutory pleadings shall be submitted in accordance 
with the provisions of Sec. Sec.  1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 
1.51, and 1.52.
    (c)(1) Procedural rules governing interlocutory pleadings are set 
forth in Sec. Sec.  1.294-1.298.
    (2) Rules governing appeal from, and reconsideration of, 
interlocutory rulings made by the presiding officer are set forth in 
Sec.  1.301.

[[Page 53370]]

    (3) Petitions requesting reconsideration of an interlocutory ruling 
will not be entertained.
    (d) No initial decision shall become effective under Sec.  1.276(e) 
until all interlocutory matters pending before the Commission in the 
proceeding at the time the initial decision is issued have been 
disposed of and the time allowed for appeal from interlocutory rulings 
of the presiding officer has expired.

(Secs. 4(i), 303(r) and 5(c)(1) of the Communications Act of 1934, 
as amended; 47 CFR 0.61 and 0.283)


0
57. Revise Sec.  1.294 to read as follows:


Sec.  1.294  Oppositions and replies.

    (a) Any party to a hearing proceeding may file an opposition to an 
interlocutory request filed in that proceeding.
    (b) Except as provided in paragraph (c) of this section or as 
otherwise ordered by the presiding officer, oppositions to 
interlocutory requests shall be filed within 4 days after the original 
pleading is filed, and replies to oppositions will not be entertained.
    (c) Additional pleadings may be filed only if specifically 
requested or authorized by the person(s) who is to make the ruling.
* * * * *
0
58. Amend Sec.  1.298 by revising paragraph (b) to read as follows:


Sec.  1.298  Rulings; time for action.

* * * * *
    (b) In the discretion of the presiding officer, rulings on 
interlocutory matters may be made orally to the parties. The presiding 
officer may, in his or her discretion, state reasons therefor on the 
record if the ruling is being transcribed, or may promptly issue a 
written statement of the reasons for the ruling, either separately or 
as part of an initial decision.
* * * * *
0
59. Amend Sec.  1.301 by revising the section heading and paragraphs 
(a), (b), and (c)(1) to read as follows:


Sec.  1.301  Appeal from interlocutory rulings by a presiding officer, 
other than the Commission, or a case manager; effective date of ruling.

    (a) Interlocutory rulings which are appealable as a matter of 
right. Rulings listed in this paragraph are appealable as a matter of 
right. An appeal from such a ruling may not be deferred and raised as 
an exception to the initial decision.
    (1) If a ruling denies or terminates the right of any person to 
participate as a party to a hearing proceeding, such person, as a 
matter of right, may file an appeal from that ruling.
    (2) If a ruling requires testimony or the production of documents, 
over objection based on a claim of privilege, the ruling on the claim 
of privilege is appealable as a matter of right.
    (3) If a ruling denies a motion to disqualify the presiding officer 
or case manager, the ruling is appealable as a matter of right.
    (4) A ruling removing counsel from the hearing is appealable as a 
matter of right, by counsel on his own behalf or by his client. (In the 
event of such ruling, the presiding officer will adjourn the hearing 
proceeding for such period as is reasonably necessary for the client to 
secure new counsel and for counsel to become familiar with the case).
    (b) Other interlocutory rulings. Except as provided in paragraph 
(a) of this section, appeals from interlocutory rulings shall be filed 
only if allowed by the presiding officer. Any party desiring to file an 
appeal shall first file a request for permission to file appeal. The 
request shall be filed within 5 days after the order is released or (if 
no written order) after the ruling is made. Pleadings responsive to the 
request shall be filed only if they are requested by the presiding 
officer. If the presiding officer made the ruling, the request shall 
contain a showing that the appeal presents a new or novel question of 
law or policy and that the ruling is such that error would be likely to 
require remand should the appeal be deferred and raised as an 
exception. If a case manager made the ruling, the request shall contain 
a showing that the appeal presents a question of law or policy that the 
case manager lacks authority to resolve. The presiding officer shall 
determine whether the showing is such as to justify an interlocutory 
appeal and, in accordance with his determination, will either allow or 
disallow the appeal or modify the ruling. Such ruling is final: 
Provided, however, That the Commission may, on its own motion, dismiss 
an appeal allowed under this section on the ground that objection to 
the ruling should be deferred and raised after the record is certified 
for decision by the Commission or as an exception to an initial 
decision.
    (1) If an appeal is not allowed, or is dismissed by the Commission, 
or if permission to file an appeal is not requested, objection to the 
ruling may be raised after the record is certified for decision by the 
Commission or on review of the initial decision.
    (2) If an appeal is allowed and is considered on its merits, the 
disposition on appeal is final. Objection to the ruling or to the 
action on appeal may not be raised after the record is certified for 
decision by the Commission or on review of the initial decision.
    (3) If the presiding officer modifies their initial ruling, any 
party adversely affected by the modified ruling may file a request for 
permission to file appeal, pursuant to the provisions of this 
paragraph.
    (c) * * *
    (1) Unless the presiding officer orders otherwise, rulings made 
shall be effective when the order is released or (if no written order) 
when the ruling is made. The Commission may stay the effect of any 
ruling that comes before it for consideration on appeal.
* * * * *
0
60. Amend Sec.  1.302 by revising the section heading to read as 
follows:


Sec.  1.302  Appeal from final ruling by presiding officer other than 
the Commission; effective date of ruling.

* * * * *
0
61. Amend Sec.  1.311 by revising the introductory text and paragraph 
(a), removing the introductory text to paragraph (c) and paragraph 
(c)(1), redesignating paragraphs (c)(2) and (3) as paragraphs (c)(1) 
and (2), revising the text of redesignated paragraph (c)(1), removing 
paragraph (d), redesignating paragraph (e) as paragraph (d), and 
revising newly redesignated paragraph (d) to read as follows:


Sec.  1.311  General.

    Sections 1.311 through 1.325 provide for taking the deposition of 
any person (including a party), for interrogatories to parties, and for 
orders to parties relating to the production of documents and things 
and for entry upon real property. These procedures may be used for the 
discovery of relevant facts, for the production and preservation of 
evidence for use in a hearing proceeding, or for both purposes.
    (a) Applicability. For purposes of discovery, these procedures may 
be used in any case of adjudication (as defined in the Administrative 
Procedure Act) which has been designated for hearing. For the 
preservation of evidence, they may be used in any case which has been 
designated for hearing and is conducted under the provisions of this 
subpart (see Sec.  1.201).
* * * * *
    (c)(1) Except as provided by special order of the presiding 
officer, discovery may be initiated after the initial conference 
provided for in Sec.  1.248(b) of this part.
    (2) In all proceedings, the presiding officer may at any time order 
the parties or their attorneys to appear at a conference to consider 
the proper use of these procedures, the time to be allowed

[[Page 53371]]

for such use, and/or to hear argument and render a ruling on disputes 
that arise under these rules.
    (d) Stipulations regarding the taking of depositions. If all of the 
parties so stipulate in writing and if there is no interference to the 
conduct of the proceeding, depositions may be taken before any person, 
at any time (subject to the limitation below) or place, upon any notice 
and in any manner, and when so taken may be used like other 
depositions. A copy of the stipulation shall be filed using the 
Commission's Electronic Comment Filing System, and a copy of the 
stipulation shall be served on the presiding officer or case manager at 
least 3 days before the scheduled taking of the deposition.
* * * * *
0
62. Add Sec.  1.314 to Subpart B to read as follows:


Sec.  1.314  Confidentiality of information produced or exchanged.

    (a) Any information produced in the course of a hearing proceeding 
may be designated as confidential by any parties to the proceeding, or 
third parties, pursuant to Sec. Sec.  0.457, 0.459, or 0.461 of these 
rules. Any parties or third-parties asserting confidentiality for such 
materials must:
    (1) Clearly mark each page, or portion thereof, for which a 
confidential designation is claimed. The parties or third parties 
claiming confidentiality should restrict their designations to 
encompass only the specific information that they assert is 
confidential. If a confidential designation is challenged, the party or 
third party claiming confidentiality shall have the burden of 
demonstrating, by a preponderance of the evidence, that the materials 
designated as confidential fall under the standards for nondisclosure 
enunciated in the FOIA and that the designation is narrowly tailored to 
encompass only confidential information.
    (2) File with the Commission, using the Commission's Electronic 
Comment Filing System, a public version of the materials that redacts 
any confidential information and clearly marks each page of the 
redacted public version with a header stating ``Public Version.'' The 
Public Version shall be machine-readable whenever technically possible. 
Where the document to be filed electronically contains metadata that is 
confidential or protected from disclosure by a legal privilege 
(including, for example, the attorney-client privilege), the filer may 
remove such metadata from the Public Version before filing it 
electronically.
    (3) File with the Secretary's Office an unredacted hard copy, 
meaning an unredacted version of the materials containing confidential 
information that clearly displays on each page of the unredacted 
version a header stating ``Confidential Version.'' The unredacted 
version must be filed on the same day as the Public Version.
    (4) Serve one hard copy of the Public Version and one hard copy of 
the Confidential Version on the attorney of record for each party to 
the proceeding, or, where a party is not represented by an attorney, 
each party to the proceeding either by hand delivery, overnight 
delivery, or email, together with a proof of such service in accordance 
with the requirements of Sec.  1.47(g). A hard copy of the Public 
Version and Confidential Version shall also be served on the presiding 
officer as identified in the caption.
    (b) An attorney of record for any party or any party that receives 
unredacted materials marked as confidential may disclose such materials 
solely to the following persons, only for use in prosecuting or 
defending a party to the hearing proceeding, and only to the extent 
necessary to assist in the prosecution or defense of the case:
    (1) Employees of counsel of record representing the parties in the 
hearing proceeding;
    (2) Officers or employees of the receiving party who are directly 
involved in the prosecution or defense of the case;
    (3) Consultants or expert witnesses retained by the parties; and
    (4) Court reporters and stenographers in accordance with the terms 
and conditions of this section.
    (c) The individuals identified above in paragraph (b) shall not 
disclose information designated as confidential to any person who is 
not authorized under this section to receive such information, and 
shall not use the information in any activity or function other than 
the prosecution or defense in the hearing proceeding. Each such 
individual who is provided access to the information shall sign a 
declaration or affidavit stating that the individual has personally 
reviewed the Commission's rules and understands the limitations they 
impose on the signing party.
    (d) Parties may make copies of materials marked confidential solely 
for use by the Commission or persons designated in paragraph (b) of 
this section. Each party shall maintain a log recording the number of 
copies made of all confidential material and the persons to whom the 
copies have been provided.
    (e) The presiding officer may adopt a protective order as 
appropriate.
    (f) Upon final termination of a hearing proceeding, including all 
appeals and applications for review, the parties shall ensure that all 
originals and reproductions of any confidential materials, along with 
the log recording persons who received copies of such materials, shall 
be provided to the producing party. In addition, upon final termination 
of the proceeding, any notes or other work product derived in whole or 
in part from the confidential materials of an opposing or third party 
shall be destroyed.
0
63. Amend Sec.  1.315 by revising paragraph (a) and deleting paragraph 
(e) to read as follows:


Sec.  1.315  Depositions upon oral examination--notice and preliminary 
procedure.

    (a) Notice. A party to a hearing proceeding desiring to take the 
deposition of any person upon oral examination shall give a minimum of 
21 days' notice to every other party, to the person to be examined, and 
to the presiding officer or case manager. A copy of the notice shall be 
filed with the Secretary of the Commission for inclusion in the 
Commission's Electronic Comment Filing System. Related pleadings shall 
be served and filed in the same manner. The notice shall contain the 
following information:
* * * * *


Sec.  1.316  [Removed and reserved]

0
64. Remove and reserve Sec.  1.316.
0
65. Amend Sec.  1.319 by revising the first sentence of paragraphs 
(c)(2) and (3) to read as follows:


Sec.  1.319  Objections to the taking of depositions.

* * * * *
    (c) * * *
    (2) If counsel cannot agree on the proper limits of the examination 
the taking of depositions shall continue on matters not objected to and 
counsel shall, within 24 hours, either jointly or individually, provide 
* * *
    (3) The presiding officer shall promptly rule upon the question 
presented or take such other action as may be appropriate under Sec.  
1.313, and shall give notice of his ruling, expeditiously * * *
* * * * *
0
66. Amend Sec.  1.321 by revising the heading and revising paragraphs 
(b) and (d)(3) to read as follows:


Sec.  1.321  Use of depositions in hearing proceedings.

* * * * *
    (b) Except as provided in this paragraph and in Sec.  1.319, 
objection may be made to receiving in evidence any deposition or part 
thereof for any reason

[[Page 53372]]

which would require the exclusion of the evidence if the witness were 
then present and testifying.
* * * * *
    (d) * * *
    (3) The deposition of any witness, whether or not a party, may be 
used by any party for any lawful purpose.
* * * * *
0
67. Amend Sec.  1.323 by revising paragraph (a) to read as follows:


Sec.  1.323  Interrogatories to parties.

    (a) Interrogatories. Any party may serve upon any other party 
written interrogatories to be answered in writing by the party served 
or, if the party served is a public or private corporation, 
partnership, association, or similar entity, by any officer or agent, 
who shall furnish such information as is available to the party. Copies 
of the interrogatories, answers, and all related pleadings shall be 
filed with the Commission and served on the presiding officer and all 
other parties to the hearing proceeding.
* * * * *
0
68. Amend Sec.  1.325 by revising paragraph (a)(1) to read as follows:


Sec.  1.325  Discovery and production of documents and things for 
inspection, copying, or photographing.

    (a) * * *
    (1) Copies of the request shall be filed with the Commission and 
served on the presiding officer and all other parties to the hearing 
proceeding.
* * * * *
0
69. Revise Sec.  1.331 to read as follows:


Sec.  1.331  Who may sign and issue.

    Subpenas requiring the attendance and testimony of witnesses, and 
subpenas requiring the production of any books, papers, schedules of 
charges, contracts, agreements, and documents relating to any matter 
under investigation or hearing, may be signed and issued by the 
presiding officer.
0
70. Amend Sec.  1.338 by revising paragraph (a) to read as follows:


Sec.  1.338  Subpena forms.

    (a) Subpena forms are available on the Commission's internet site, 
www.fcc.gov, as FCC Form 766. These forms are to be completed and 
submitted with any request for issuance of a subpena.
* * * * *
0
71. Revise Sec.  1.351 to read as follows:


Sec.  1.351  Rules of evidence.

    In hearings subject to this Subpart B, any oral or documentary 
evidence may be adduced, but the presiding officer shall exclude 
irrelevant, immaterial, or unduly repetitious evidence.
0
72. Revise Sec.  1.362 to read as follows:


Sec.  1.362  Production of statements.

    After a witness is called and has given direct testimony in an oral 
hearing, and before he or she is excused, any party may move for the 
production of any statement of such witness, or part thereof, 
pertaining to his or her direct testimony, in possession of the party 
calling the witness, if such statement has been reduced to writing and 
signed or otherwise approved or adopted by the witness. Such motion 
shall be directed to the presiding officer. If the party declines to 
furnish the statement, the testimony of the witness pertaining to the 
requested statement shall be stricken.
0
73. Amend Subpart B by adding a new heading and Sec. Sec.  1.370 
through 1.377 to read as follows:

PART 1--PRACTICE AND PROCEDURE

Subpart B--Hearing Proceedings

Hearings on a Written Record

Sec.
1.370 Purpose.
1.371 General pleading requirements.
1.372 The affirmative case.
1.373 The responsive case.
1.374 The reply case.
1.375 Other written submissions.
1.376 Oral hearing or argument.

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 
303(r), 309, 1403, 1404, 1451, and 1452.

Hearings on a Written Record


Sec.  1.370  Purpose.

    Hearings under this Subpart B that the Commission or one of its 
Bureaus, acting on delegated authority, determines shall be conducted 
and resolved on a written record are subject to Sec. Sec.  1.371-1.377. 
If an order designating a matter for hearing does not specify whether 
those rules apply to a hearing proceeding, and if the proceeding is not 
subject to 5 U.S.C. 554, the presiding officer may, in their 
discretion, conduct and resolve all or part of the hearing proceeding 
on a written record in accordance with Sec. Sec.  1.371-1.377.


Sec.  1.371  General pleading requirements.

    Written hearings shall be resolved on a written record consisting 
of affirmative case, responsive case, and reply case submissions, along 
with all associated evidence in the record, including stipulations and 
agreements of the parties and official notice of a material fact.
    (a) All pleadings filed in any proceeding subject to these written 
hearing rules must be submitted in conformity with the requirements of 
Sec. Sec.  1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51(a), and 1.52.
    (b) Pleadings must be clear, concise, and direct. All matters 
should be pleaded fully and with specificity.
    (c) Pleadings shall consist of numbered paragraphs and must be 
supported by relevant evidence. Assertions based on information and 
belief are prohibited unless made in good faith and accompanied by a 
declaration or affidavit explaining the basis for the party's belief 
and why the party could not reasonably ascertain the facts from any 
other source.
    (d) Legal arguments must be supported by appropriate statutory, 
judicial, or administrative authority.
    (e) Opposing authorities must be distinguished.
    (f) Copies must be provided of all non-Commission authorities 
relied upon which are not routinely available in national reporting 
systems, such as unpublished decisions or slip opinions of courts or 
administrative agencies. In addition, copies of state authorities 
relied upon shall be provided.
    (g) Parties are responsible for the continuing accuracy and 
completeness of all information and supporting authority furnished in a 
pending proceeding. Information submitted, as well as relevant legal 
authorities, must be current and updated as necessary and in a timely 
manner before a decision is rendered on the merits.
    (h) Pleadings shall identify the name, address, telephone number, 
and email address for either the filing party's attorney or, where a 
party is not represented by an attorney, the filing party. Pleadings 
may be signed by a party's attorney.
    (i) Attachments to any pleading shall be Bates-stamped or otherwise 
identifiable by party and numbered sequentially. Parties shall cite to 
Bates-stamped or otherwise identifiable page numbers in their 
pleadings.
    (j) Unless a schedule is specified in the order designating a 
matter for hearing, at the initial status conference under Sec.  
1.248(b), the presiding officer shall adopt a schedule for the 
sequential filing of pleadings required or permitted under these rules.
    (k) Pleadings shall be served on all parties to the proceeding in 
accordance with Sec.  1.211 and shall include a certificate of service. 
All pleadings shall be served on the presiding officer or case manager, 
as identified in the caption.
    (l) Each pleading must contain a written verification that the 
signatory has read the submission and, to the best

[[Page 53373]]

of their knowledge, information, and belief formed after reasonable 
inquiry, it is well grounded in fact and is warranted by existing law 
or a good faith argument for the extension, modification or reversal of 
existing law; and that it is not interposed for any improper purpose, 
such as to harass, cause unnecessary delay, or needlessly increase the 
cost of the proceeding. If any pleading or other submission is signed 
in violation of this provision, the Commission may upon motion or upon 
its own initiative impose appropriate sanctions.
    (m) Any party to the proceeding may file a motion seeking waiver of 
any of the rules governing pleadings in written hearings. Such waiver 
may be granted for good cause shown.
    (n) Any pleading that does not conform with the requirements of the 
applicable rules may be deemed defective. In such case, the presiding 
officer may strike the pleading or request that specified defects be 
corrected and that proper pleadings be filed with the Commission and 
served on the presiding officer or case manager and all parties within 
a prescribed time as a condition to being made a part of the record in 
the proceeding.
    (o) Any party that fails to respond to official correspondence, a 
request for additional information, or an order or directive from the 
presiding officer or case manager may be subject to appropriate 
sanctions.


Sec.  1.372  The affirmative case.

    (a) Within 30 days after the completion of the discovery period as 
determined by the presiding officer, unless otherwise directed by the 
presiding officer, any party to the proceeding with the burden of proof 
shall file a pleading entitled ``affirmative case'' that fully 
addresses each of the issues designated for hearing. The affirmative 
case submission shall include:
    (1) A statement of relevant material facts, supported by sworn 
statements based on personal knowledge, documentation, or by other 
materials subject to consideration by the presiding officer, and a full 
legal analysis of each of the issues designated for hearing;
    (2) Citation to relevant sections of the Communications Act or 
Commission regulations or orders; and
    (3) The relief sought.
    (b) The affirmative case submission shall address all factual and 
legal questions designated for hearing, and state in detail the basis 
for the response to each such question. Responses based on information 
and belief are prohibited unless made in good faith and accompanied by 
a declaration or affidavit explaining the basis for the party's belief 
and why the party could not reasonably ascertain the facts. When a 
party intends in good faith to deny only part of a designated question 
in the affirmative case, that party shall specify so much of it as is 
true and shall deny only the remainder.
    (c) Failure to address in an affirmative case submission all 
factual and legal questions designated for hearing may result in 
inferences adverse to the filing party.


Sec.  1.373   The responsive case.

    (a) Any other party may file a responsive case submission in the 
manner prescribed under this section within 30 calendar days of the 
filing of the affirmative case submission, unless otherwise directed by 
the presiding officer. The responsive case submission shall include:
    (1) A statement of relevant material facts, supported by sworn 
statements based on personal knowledge, documentation, or by other 
materials subject to consideration by the presiding officer, and a full 
legal analysis of any issues designated for hearing.
    (2) Citation to relevant sections of the Communications Act or 
Commission regulations or orders; and
    (3) Any relief sought.
    (b) The responsive case submission shall respond specifically to 
all material allegations made in the affirmative case submission. Every 
effort shall be made to narrow the issues for resolution by the 
presiding officer.
    (c) Statements of fact or law in an affirmative case filed pursuant 
to Sec.  1.372 are deemed admitted when not rebutted in a responsive 
case submission.


Sec.  1.374   The reply case.

    (a) Any party who filed an affirmative case may file and serve a 
reply case submission within 15 days of the filing of any responsive 
case submission, unless otherwise directed by the presiding officer.
    (b) The reply case submission shall contain statements of relevant 
material facts, supported by sworn statements based on personal 
knowledge, documentation, or by other materials subject to 
consideration by the presiding officer, and a full legal analysis that 
responds only to the factual allegations and legal arguments made in 
any responsive case. Other allegations or arguments will not be 
considered by the presiding officer.
    (c) Failure to submit a reply case submission shall not be deemed 
an admission of any allegations contained in any responsive case.


Sec.  1.375   Other written submissions.

    (a) The presiding officer may require or permit the parties to file 
other written submissions such as briefs, proposed findings of fact and 
conclusions of law, or other supplementary documents or pleadings. The 
presiding officer may limit the scope of any such pleadings to certain 
subjects or issues.
    (b) The presiding officer may require the parties to submit any 
additional information deemed appropriate for a full, fair, and 
expeditious resolution of the proceeding.


Sec.  1.376   Oral hearing or argument.

    (a) Notwithstanding any requirement in the designation order that 
the hearing be conducted and resolved on a written record, a party may 
file a motion to request an oral hearing pursuant to Sec.  1.291. Any 
such motion shall be filed after the submission of all the pleadings 
but no later than the date established in the scheduling order. See 
Sec. Sec.  1.372-1.374, 1.248. The motion shall contain a list of 
genuine disputes as to outcome-determinative facts that the movant 
contends cannot adequately be resolved on a written record and a list 
of witnesses whose live testimony would be required to resolve such 
disputes. The motion also shall contain supporting legal analysis, 
including citations to relevant authorities and parts of the record. If 
the presiding officer finds that there is a genuine dispute as to an 
outcome-determinative fact that cannot adequately be resolved on a 
written record, the presiding officer shall conduct an oral hearing 
limited to testimony and cross-examination necessary to resolve that 
dispute.
    (b) The presiding officer may, on his or her own motion following 
the receipt of all written submissions, conduct an oral hearing to 
resolve a genuine dispute as to an outcome-determinative fact that the 
presiding officer finds cannot adequately be resolved on a written 
record. Any such oral hearing shall be limited to testimony and cross-
examination necessary to resolve that dispute.
    (c) Oral argument shall be permitted only if the presiding officer 
determines that oral argument is necessary to resolution of the 
hearing.


Sec.  1.377   Certification of the written hearing record to the 
Commission for decision.

    When the Commission is the presiding officer and it has appointed a 
case manager under Sec.  1.242, the case manager shall certify the 
record for decision to the Commission promptly after the hearing record 
is closed. Notice of such certification shall be served on all parties 
to the proceeding.

[[Page 53374]]

0
74. Amend Sec.  1.1202 by revising paragraphs (c) and (e) to read as 
follows:


Sec.  1.1202   Definitions.

* * * * *
    (c) Decision-making personnel. Any member, officer, or employee of 
the Commission, or, in the case of a Joint Board, its members or their 
staffs, who is or may reasonably be expected to be involved in 
formulating a decision, rule, or order in a proceeding. Any person who 
has been made a party to a proceeding or who otherwise has been 
excluded from the decisional process shall not be treated as a 
decision-maker with respect to that proceeding. Thus, any person 
designated as part of a separate trial staff shall not be considered a 
decision-making person in the designated proceeding. Unseparated Bureau 
or Office staff shall be considered decision-making personnel with 
respect to decisions, rules, and orders in which their Bureau or Office 
participates in enacting, preparing, or reviewing. Commission staff 
serving as the case manager in a hearing proceeding in which the 
Commission is the presiding officer shall be considered decision-making 
personnel with respect to that hearing proceeding.
* * * * *
    (e) Matter designated for hearing. Any matter that has been 
designated for hearing before a presiding officer.
* * * * *
0
75. Amend Sec.  1.1319 by revising the introductory text to paragraph 
(a) and paragraphs (a)(1) and (2) to read as follows:


Sec.  1.1319   Consideration of the environmental impact statements.

    (a) If the action is designated for hearing:
    (1) In rendering an initial decision, the presiding officer (other 
than the Commission) shall utilize the FEIS in considering the 
environmental issues, together with all other non-environmental issues.
    (2) When the Commission serves as the presiding officer or upon its 
review of an initial decision, the Commission will consider and assess 
all aspects of the FEIS and will render its decision, giving due 
consideration to the environmental and nonenvironmental issues.
* * * * *
0
76. Amend Sec.  1.1504 by revising paragraph (f) to read as follows:


Sec.  1.1504   Eligibility of applicants.

* * * * *
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the 
applicant directly or indirectly owns or controls a majority of the 
voting shares or other interest, will be considered an affiliate for 
purposes of this part, unless the presiding officer, as defined in 47 
CFR 1.241, determines that such treatment would be unjust and contrary 
to the purposes of the EAJA in light of the actual relationship between 
the affiliated entities. In addition, the presiding officer may 
determine that financial relationships of the applicant other than 
those described in this paragraph constitute special circumstances that 
would make an award unjust.
* * * * *
0
77. Amend Sec.  1.1506 by revising the introductory text in paragraph 
(c) to read as follows:


Sec.  1.1506   Allowable fees and expenses.

* * * * *
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the presiding officer shall consider 
the following:
* * * * *
0
78. Amend Sec.  1.1512 by revising the last sentence of paragraph (a) 
and by revising paragraph (b) to read as follows:


Sec.  1.1512   Net worth exhibit.

    (a) * * * The presiding officer may require an applicant to file 
additional information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure may 
submit that portion of the exhibit directly to the presiding officer in 
a sealed envelope labeled ``Confidential Financial Information'', 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on Bureau counsel, but need not be served on any other party to 
the proceeding. If the presiding officer finds that the information 
should not be withheld from disclosure, it shall be placed in the 
public record of the proceeding. Otherwise, any request to inspect or 
copy the exhibit shall be disposed of in accordance with the 
Commission's established procedures under the Freedom of Information 
Act, Sec. Sec.  0.441 through 0.466 of this chapter.
0
79. Amend Sec.  1.1513 by revising the last sentence to read as 
follows:


Sec.  1.1513   Documentation of fees and expenses.

     * * * The presiding officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.
* * * * *
0
80. Amend Sec.  1.1514 by revising paragraph (c)(1) to read as follows:


Sec.  1.1514   When an application may be filed.

* * * * *
    (c) * * *
    (1) The date on which an initial decision or other recommended 
disposition of the merits of the proceeding by a presiding officer 
(other than the Commission) becomes administratively final;
* * * * *
0
81. Amend Sec.  1.1522 by revising the second sentence of paragraph (b) 
to read as follows:


Sec.  1.1522   Answer to application.

* * * * *
    (b) * * * The filing of this statement shall extend the time for 
filing an answer for an additional 30 days, and further extensions may 
be granted by the presiding officer upon request by Bureau counsel and 
the applicant.
* * * * *
0
82. Amend Sec.  1.1524 by revising the second sentence to read as 
follows:


Sec.  1.1524   Comments by other parties.

     * * * A commenting party may not participate further in 
proceedings on the application unless the presiding officer determines 
that the public interest requires such participation in order to permit 
full exploration of matters raised in the comments.
* * * * *
0
83. Amend Sec.  1.1525 by revising the last sentence to read as 
follows:


Sec.  1.1525   Settlement.

     * * * If a presiding officer (other than the Commission) approves 
the proposed settlement, it shall be forwarded to the Commission for 
final determination. If the Commission is the presiding officer, it 
shall approve or deny the proposed settlement.

[[Page 53375]]

0
84. Amend Sec.  1.1526 by revising the second sentence of paragraph (a) 
and revising paragraph (b) to read as follows:


Sec.  1.1526   Further proceedings.

    (a) * * * However, on request of either the applicant or Bureau 
counsel, or on her own initiative, the presiding officer may order 
further proceedings, such as an informal conference, oral argument, 
additional written submissions or, as to issues other than excessive 
demand or substantial justification, an evidentiary hearing. * * *
    (b) A request that the presiding officer order further proceedings 
under this section shall specifically identify the information sought 
or the disputed issues and shall explain why the additional proceedings 
are necessary to resolve the issues.
* * * * *
0
85. Amend Sec.  1.1527 by revising the section heading and the first 
sentence, and adding a new last sentence to read as follows:


Sec.  1.1527   Initial decision.

    A presiding officer (other than the Commission) shall issue an 
initial decision on the application as soon as possible after 
completion of proceedings on the application. * * * When the Commission 
is the presiding officer, the Commission may, but is not required to, 
issue an initial or recommended decision.
0
86. Amend Sec.  1.1528 by revising the last sentence to read as 
follows:


Sec.  1.1528   Commission review.

     * * * If review is taken, the Commission will issue a final 
decision on the application or remand the application to the presiding 
officer (other than the Commission) for further proceedings.
* * * * *
0
87. Amend Sec.  1.1604 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1.1604   Post-selection hearings.

* * * * *
    (b) If, after such hearing proceeding as may be necessary, the 
Commission determines that the ``tentative selectee'' has met the 
requirements of Sec.  73.3591(a) it will make the appropriate grant. If 
the Commission is unable to make such a determination, it shall order 
that another random selection be conducted from among the remaining 
mutually exclusive applicants, in accordance with the provisions of 
this subpart.
    (c) If, on the basis of the papers before it, the Commission 
determines that a substantial and material question of fact exists, it 
shall designate that question for hearing. Hearing proceedings shall be 
conducted by a presiding officer. See Sec.  1.241.
* * * * *

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
88. The authority citation for part 76 continues to read as follows:

    Authority:  47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

0
89. Amend Sec.  76.7 by revising paragraph (g)(2) to read as follows:


Sec.  76.7   General special relief, waiver, enforcement, complaint, 
show cause, forfeiture, and declaratory ruling procedures.

* * * * *
    (g) * * *
    (2) Before designation for hearing, the staff shall notify, either 
orally or in writing, the parties to the proceeding of its intent to so 
designate, and the parties shall be given a period of ten (10) days to 
elect to resolve the dispute through alternative dispute resolution 
procedures, or to proceed with an adjudicatory hearing. Such election 
shall be submitted in writing to the Commission.

[FR Doc. 2019-20568 Filed 10-4-19; 8:45 am]
 BILLING CODE 6712-01-P