Pt. 1 47 CFR Ch. I (10–1–97 Edition) - TSCM

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47 CFR Ch. I (10–1–97 Edition)Pt. 1

copies of the transcript available di-rectly, free of charge, if it serves the fi-nancial or regulatory interests of theUnited States.

(c) The Commission will maintain acopy of the transcript or minutes for aperiod of at least two years after themeeting, or until at least one yearafter conclusion of the proceeding towhich the meeting relates, whicheveroccurs later.

(d) The Commissioner presiding atthe meeting will prepare a statementsetting out the time and place of themeeting, the names of persons otherthan Commission personnel who werepresent at the meeting, and the namesof Commission personnel who partici-pated in the discussion. These state-ments will be retained in a public filein the Minute and Rules Branch, Officeof the Secretary.

PART 1—PRACTICE ANDPROCEDURE

Subpart A—General Rules of Practice andProcedure

GENERAL

Sec.1.1 Proceedings before the Commission.1.2 Declaratory rulings.1.3 Suspension, amendment, or waiver of

rules.1.4 Computation of time.1.5 Mailing address furnished by licensee.1.6 Availability of station logs and records

for Commission inspection.1.7 Documents are filed upon receipt.1.8 Withdrawal of papers.1.10 Transcript of testimony; copies of docu-

ments submitted.1.12 Notice to attorneys of Commission doc-

uments.1.13 Filing of petitions for review and no-

tices of appeals of Commission orders.1.14 Citation of Commission documents.1.16 Unsworn declarations under penalty of

perjury in lieu of affidavits.1.17 Truthful written statements and re-

sponses to Commission inquiries and cor-respondence.

1.18 Administrative Dispute Resolution.1.19 Use of metric units required.

PARTIES, PRACTITIONERS, AND WITNESSES

1.21 Parties.1.22 Authority for representation.1.23 Persons who may be admitted to prac-

tice.1.24 Censure, suspension, or disbarment of

attorneys.

1.25 [Reserved]1.26 Appearances.1.27 Witnesses; right to counsel.1.28 [Reserved]1.29 [Reserved]

PLEADINGS, BRIEFS, AND OTHER PAPERS

1.41 Informal requests for Commission ac-tion.

1.42 Applications, reports, complaints;cross-reference.

1.43 Requests for stay; cross-reference.1.44 Separate pleadings for different re-

quests.1.45 Pleadings; filing periods.1.46 Motions for extension of time.1.47 Service of documents and proof of serv-

ice.1.48 Length of pleadings.1.49 Specifications as to pleadings and docu-

ments.1.50 Specifications as to briefs.1.51 Number of copies of pleadings, briefs

and other papers.1.52 Subscription and verification.

GENERAL APPLICATION PROCEDURES

1.61 Procedures for handling applicationsrequiring special aeronautical study.

1.62 Operation pending action on renewalapplication.

1.65 Substantial and significant changes ininformation furnished by applicants tothe Commission.

1.68 Action on application for license tocover construction permit.

1.77 Detailed application procedures; crossreferences.

MISCELLANEOUS PROCEEDINGS

1.80 Forfeiture proceedings.1.83 Applications for radio operator li-

censes.1.84 Procedure with respect to commercial

radio operator license applications.1.85 Suspension of operator licenses.1.87 Modification of license or construction

permit on motion of the Commission.1.88 Predesignation pleading procedure.1.89 Notice of violations.1.91 Revocation and/or cease and desist pro-

ceedings; hearings.1.92 Revocation and/or cease and desist pro-

ceedings; after waiver of hearing.1.93 Consent orders.1.94 Consent order procedures.1.95 Violation of consent orders.

RECONSIDERATION AND REVIEW OF ACTIONSTAKEN BY THE COMMISSION AND PURSUANTTO DELEGATED AUTHORITY; EFFECTIVEDATES AND FINALITY DATES OF ACTIONS

1.101 General provisions.

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Federal Communications Commission Pt. 1

1.102 Effective dates of actions taken pursu-ant to delegated authority.

1.103 Effective dates of Commission actions;finality of Commission actions.

1.104 Preserving the right of review; de-ferred consideration of application for re-view.

1.106 Petitions for reconsideration.1.108 Reconsideration on Commission’s own

motion.1.110 Partial grants; rejection and designa-

tion for hearing.1.113 Action modified or set aside by person,

panel, or board.1.115 Application for review of action taken

pursuant to delegated authority.1.117 Review on motion of the Commission.1.120 Protests of grants without hearing.

Subpart B—Hearing Proceedings

GENERAL

1.201 Scope.1.202 Official reporter; transcript.1.203 The record.1.204 Pleadings; definition.1.205 Continuances and extensions.1.207 Interlocutory matters, reconsideration

and review; cross references.1.209 Identification of responsible officer in

caption to pleading.1.211 Service.

PARTICIPANTS AND ISSUES

1.221 Notice of hearing; appearances.1.223 Petitions to intervene.1.224 Motion to proceed in forma pauperis.1.225 Participation by non-parties; consider-

ation of communications.1.227 Consolidations.1.229 Motions to enlarge, change, or delete

issues.

PRESIDING OFFICER

1.241 Designation of presiding officer.1.243 Authority of presiding officer.1.244 Designation of a settlement judge.1.245 Disqualification of presiding officer.

PREHEARING PROCEDURES

1.246 Admission of facts and genuineness ofdocuments.

1.248 Prehearing conferences; hearing con-ferences.

1.249 Prehearing statement.

HEARING AND INTERMEDIATE DECISION

1.250 Discovery and preservation of evi-dence; cross-reference.

1.251 Summary decision.1.253 Time and place of hearing.1.254 Nature of the hearing; burden of proof.1.255 Order of procedure.1.258 Closing of the hearing.1.260 Certification of transcript.1.261 Corrections to transcript.

1.263 Proposed findings and conclusions.1.264 Contents of findings of fact and con-

clusions.1.267 Initial and recommended decisions.

REVIEW PROCEEDINGS

1.271 Delegation of review function.1.273 Waiver of initial or recommended deci-

sion.1.274 Certification of the record to the Com-

mission for initial or final decision.1.276 Appeal and review of initial decision.1.277 Exceptions; oral arguments.1.279 Limitation of matters to be reviewed.1.282 Final decision of the Commission.

INTERLOCUTORY ACTIONS IN HEARINGPROCEEDINGS

1.291 General provisions.1.294 Oppositions and replies.1.296 Service.1.297 Oral argument.1.298 Rulings; time for action.

APPEAL AND RECONSIDERATION OF PRESIDINGOFFICER’S RULING

1.301 Appeal from presiding officer’s inter-locutory ruling; effective date of ruling.

1.302 Appeal from presiding officer’s finalruling; effective date of ruling.

THE DISCOVERY AND PRESERVATION OFEVIDENCE

1.311 General.1.313 Protective orders.1.315 Depositions upon oral examination—

notice and preliminary procedure.1.316 Depositions upon written interrog-

atories—notice and preliminary proce-dure.

1.318 The taking of depositions.1.319 Objections to the taking of deposi-

tions.1.321 Use of depositions at the hearing.1.323 Interrogatories to parties.1.325 Discovery and production of docu-

ments and things for inspection, copying,or photographing.

SUBPENAS

1.331 Who may sign and issue.1.333 Requests for issuance of subpena.1.334 Motions to quash.1.335 Rulings.1.336 Service of subpenas.1.337 Return of service.1.338 Subpena forms.1.339 Witness fees.1.340 Attendance of witness; disobedience.

EVIDENCE

1.351 Rules of evidence.1.352 Cumulative evidence.1.353 Further evidence during hearing.1.354 Documents containing matter not ma-

terial.


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1.355 Documents in foreign language.1.356 Copies of exhibits.1.357 Mechanical reproductions as evidence.1.358 Tariffs as evidence.1.359 Proof of official record; authentication

of copy.1.360 Proof of lack of record.1.361 Other proof of official record.1.362 Production of statements.1.363 Introduction of statistical data.1.364 Testimony by speakerphone.

Subpart C—Rulemaking Proceedings

GENERAL

1.399 Scope.1.400 Definitions.

PETITIONS AND RELATED PLEADINGS

1.401 Petitions for rulemaking.1.403 Notice and availability.1.405 Responses to petitions; replies.1.407 Action on petitions.

RULEMAKING PROCEEDINGS

1.411 Commencement of rulemaking pro-ceedings.

1.412 Notice of proposed rulemaking.1.413 Content of notice.1.415 Comments and replies.1.419 Form of comments and replies; num-

ber of copies.1.420 Additional procedures in proceedings

for amendment of the FM or TV Tablesof Allotments.

1.421 Further notice of rulemaking.1.423 Oral argument and other proceedings.1.425 Commission action.1.427 Effective date of rules.1.429 Petition for reconsideration.

INQUIRIES

1.430 Proceedings on a notice of inquiry.

Subpart D—Broadcast Applications andProceedings

1.502 Emergency Broadcast Authorizations.

GENERAL FILING REQUIREMENTS

1.511 Applications required.1.512 Where to file; number of copies.1.513 Who may sign applications.1.514 Content of applications.1.516 Specification of facilities.1.517 Contingent applications.1.518 Inconsistent or conflicting applica-

tions.1.519 Repetitious applications.1.520 Multiple applications.1.522 Amendment of applications.1.525 Agreements between parties for

amendment or dismissal of, or failure toprosecute, broadcast applications.

1.526 Records to be maintained locally forpublic inspection by commercial appli-cants, permittees and licensees.

1.527 Records to be maintained locally forpublic inspection by noncommercial edu-cational applicants, permittees and li-censees.

1.531 Formal and informal applications.1.533 Application forms for authority to

construct a new station or make changesin an existing station.

1.534 Application for extension of construc-tion permit or for construction permit toreplace expired construction permit.

1.536 Application for license to cover con-struction permit.

1.538 Application for modification of li-cense.

1.539 Application for renewal of license.1.540 Application for voluntary assignment

or transfer of control.1.541 Application for involuntary assign-

ment of license or transfer of control.1.542 Application for temporary authoriza-

tion.1.543 Application for renewal or modifica-

tion of special service authorization.1.544 Application for broadcast station to

conduct field strength measurements andfor experimental operation.

1.545 Application for permit to deliver pro-grams to foreign countries.

1.546 Application to determine operatingpower by direct measurement of antennapower.

1.549 Requests for extension of authority tooperate without required monitors, indi-cating instruments, and EBS AttentionSignal devices.

1.550 Requests for new or modified call signassignments.

1.561 Staff consideration of applicationswhich receive action by the Commission.

1.562 Staff consideration of applicationswhich do not require action by the Com-mission.

1.564 Acceptance of applications.1.566 Defective applications.1.568 Dismissal of applications.1.570 AM broadcast station applications in-

volving other North American countries.1.571 Processing AM broadcast station ap-

plications.1.572 Processing TV broadcast and trans-

lator station applications.1.573 Processing FM broadcast and trans-

lator station applications.1.574 Processing of international broadcast

station applications.1.578 Amendments to applications for re-

newal, assignment or transfer of control.1.580 Local public notice of filing of broad-

cast applications.1.584 Petitions to deny.1.587 Procedure for filing informal applica-

tions.1.591 Grants without hearing.


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1.592 Conditional grant.1.593 Designation for hearing.1.594 Local public notice of designation for

hearing.1.597 Procedures on transfer and assignment

applications.1.598 Period of construction.1.599 Forfeiture of construction permit.1.601 Simultaneous modification and re-

newal of license.1.603 Special waiver procedure relative to

applications.1.605 Retention of applications in hearing

status after designation for hearing.1.612 Annual employment report.1.613 Filing of contracts.1.615 Ownership reports.

Subpart E—Complaints, Applications, Tar-iffs, and Reports Involving CommonCarriers

GENERAL

1.701 Show cause orders.1.703 Appearances.

COMPLAINTS

1.711 Formal or informal complaints.

INFORMAL COMPLAINTS

1.716 Form.1.717 Procedure.1.718 Unsatisfied informal complaints; for-

mal complaints relating back to the fil-ing dates of informal complaints.

FORMAL COMPLAINTS

1.720 General pleading requirements.1.721 Format and content.1.722 Damages.1.723 Joinder of complainants and causes of

action.1.724 Answers.1.725 Cross complaints.1.726 Replies.1.727 Motions.1.728 Formal complaints not stating a cause

of action; defective pleadings.1.729 Interrogatories to parties.1.730 Other forms of discovery.1.731 Confidentiality of information pro-

duced through discovery.1.732 Other required written submissions.1.733 Status conference.1.734 Specifications as to pleadings, briefs,

and other documents; subscription.1.735 Copies; service; separate filings

against multiple defendants.

APPLICATIONS

1.741 Scope.1.742 Place of filing, fees, and number of

copies.1.743 Who may sign applications.1.744 Amendments.

1.745 Additional statements.1.746 Defective applications.1.747 Inconsistent or conflicting applica-

tions.1.748 Dismissal of applications.1.749 Action on application under delegated

authority.

SPECIFIC TYPES OF APPLICATIONS UNDERTITLE II OF COMMUNICATIONS ACT

1.761 Cross reference.1.762 Interlocking directorates.1.763 Construction, extension, acquisition

or operation of lines.1.764 Discontinuance, reduction, or impair-

ment of service.1.765 Consolidation or acquisition of tele-

phone companies.1.766 Consolidation of domestic telegraph

carriers.1.767 Cable landing licenses.

TARIFFS

1.771 Filing.1.772 Application for special tariff permis-

sion.1.773 Petitions for suspension or rejection of

new tariff filings.

CONTRACTS, REPORTS, AND REQUESTSREQUIRED TO BE FILED BY CARRIERS

1.781 Requests for extension of filing time.

CONTRACTS

1.783 Filing.

FINANCIAL AND ACCOUNTING REPORTS ANDREQUESTS

1.785 Annual financial reports.1.786 [Reserved]1.787 Reports of proposed changes in depre-

ciation rates.1.788 Reports regarding pensions and bene-

fits.1.789 Reports regarding division of inter-

national telegraph communicationcharges.

1.790 Reports relating to traffic by inter-national carriers.

1.791 Reports and requests to be filed underpart 32 of this chapter.

1.795 Reports regarding interstate rates ofreturn.

SERVICES AND FACILITIES REPORTS

1.802 Reports relating to continuing author-ity to supplement facilities or to providetemporary or emergency service.

1.803 Reports relating to reduction in tem-porary experimental service.

1.805 Reports relating to service by carriersengaged in public radio service oper-ations.


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MISCELLANEOUS REPORTS

1.811 Reports regarding amendments tocharters, by-laws and partnership agree-ments of carriers engaged in domesticpublic radio services.

1.813 Reports of negotiations regarding for-eign communication matters.

1.814 Reports regarding free service ren-dered the Government for national de-fense.

1.815 Reports of annual employment.

GRANTS BY RANDOM SELECTION

1.821 Scope.1.822 General selection procedures.1.823 Random selection procedures for the

Public Mobile Services.1.824 Random selection procedures for Mul-

tichannel Multipoint Distribution Serv-ice and Multipoint Distribution ServiceH–Channel stations.

1.825 Random selection procedures for Digi-tal Electronic Message Service.

Subpart F—Private Radio ServicesApplications and Proceedings

GENERAL

1.901 Scope.


1.911 Applications required.1.912 Where applications are to be filed.1.913 Who may sign applications.1.914 Full disclosures.1.916 Repetitious applications.1.918 Amendment of applications.

APPLICATION FORMS AND PARTICULAR FILINGREQUIREMENTS

1.921 Procedure for obtaining a radio sta-tion authorization and for commence-ment of operation.

1.922 Forms to be used.1.923 Waiver of construction permit require-

ment.1.924 Assignment or transfer of control, vol-

untary and involuntary.1.925 Application for special temporary au-

thorization, temporary permit or tem-porary operating authority.

1.926 Application for renewal of license.1.931 Requests for waiver of private radio

rules.1.933 Installation or removal of apparatus.1.934 Procedure with respect to amateur

radio operator license.

APPLICATION PROCESSING PROCEDURES

1.951 How applications are distributed.1.952 How file numbers are assigned.1.953 How applications are processed.1.955 Frequency coordination, Canada.1.958 Defective applications.1.959 Resubmitted applications.

1.961 Dismissal of applications.1.962 Public notice of acceptance for filing;

petitions to deny applications of speci-fied categories.

ACTION ON APPLICATIONS

1.971 Grants without a hearing.1.972 Grants by random selection.1.973 Designation for hearing.

REPORTS TO BE FILED WITH THE COMMISSION

1.981 Reports, annual and semiannual.

Subpart G—Schedule of Statutory Chargesand Procedures for Payment

1.1101 Authority.1.1102 Schedule of charges for applications

and other filings in the wireless tele-communications services.

1.1103 Schedule of charges for equipmentauthorization, experimental radio serv-ices, ship inspections and internationaltelecommunications settlements.

1.1104 Schedule of charges for applicationsand other filings in the mass media serv-ices.

1.1105 Schedule of charges for applicationsand other filings in the common carrierservices.

1.1106 Schedule of charges for applicationsand other filings in the cable televisionservices.

1.1107 Schedule of charges for applicationsand other filings in the internationalservices.

1.1108 Attachment of charges.1.1109 Payment of charges.1.1110 Form of payment.1.1111 Filing locations.1.1112 Conditionality of Commission or staff

authorizations.1.1113 Return or refund of charges.1.1114 General exemptions to charges.1.1115 Adjustments to charges.1.1116 Penalty for late or insufficient pay-

ments.1.1117 Petitions and applications for review.1.1118 Error claims.1.1119 Billing procedures.1.1151 Authority to prescribe and collect

regulatory fees.1.1152 Schedule of annual regulatory fees

and filing locations for wireless radioservices.

1.1153 Schedule of annual regulatory feesand filing locations for mass media serv-ices.

1.1154 Schedule of annual regulatorycharges and filing locations for commoncarrier services.

1.1155 Schedule of regulatory fees and filinglocations for cable television services.

1.1156 Schedule of regulatory fees and filinglocations for international services.


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1.1157 Payment of charges for regulatoryfees.

1.1158 Form of payment for regulatory.1.1159 Filing locations and receipts for regu-

latory fees.1.1160 Refunds of regulatory fees.1.1161 Conditional license grants and dele-

gated authorizations.1.1162 General exemptions from regulatory

fees.1.1163 Adjustments to regulatory fees.1.1164 Penalties for late or insufficient regu-

latory fee payments.1.1165 Payment by cashier’s check for regu-

latory fees.1.1166 Waivers, reductions, and deferrals of

regulatory fees.1.1167 Error claims related to regulatory

fees.1.1181 Authority to prescribe and collect

fees for competitive bidding-related serv-ices and products.

1.1182 Schedule of fees for products andservices provided by the Commission inconnection with competitive bidding pro-cedures.

Subpart H—Ex Parte Communications

GENERAL

1.1200 Introduction.1.1202 Definitions.

SUNSHINE PERIOD PROHIBITION

1.1203 Sunshine period prohibition.

GENERAL EXEMPTIONS

1.1204 Exempt ex parte presentations andproceedings.

NON-RESTRICTED PROCEEDINGS

1.1206 Permit-but-disclose proceedings.

RESTRICTED PROCEEDINGS

1.1208 Restricted proceedings.

PROHIBITION ON SOLICITATION OFPRESENTATIONS

1.1210 Prohibition on solicitation of presen-tations.

PROCEDURES FOR HANDLING OF PROHIBITED EXPARTE PRESENTATIONS

1.1212 Procedures for handling of prohibitedex parte presentations.

1.1214 Disclosure of information concerningviolations of this subpart.

SANCTIONS

1.1216 Sanctions.

Subpart I—Procedures Implementing theNational Environmental Policy Act of 1969

1.1301 Basis and purpose.

1.1302 Cross-reference; Regulations of theCouncil on Environmental Quality.

1.1303 Scope.1.1304 Information and assistance.1.1305 Actions which normally will have a

significant impact upon the environ-ment, for which Environmental ImpactStatements must be prepared.

1.1306 Actions which are categorically ex-cluded from environmental processing.

1.1307 Actions that may have a significantenvironmental effect, for which Environ-mental Assessments (EAs) must be pre-pared.

1.1308 Consideration of environmental as-sessments (EAs); findings of no signifi-cant impact.

1.1309 Application amendments.1.1310 Radiofrequency radiation exposure

limits.1.1311 Environmental information to be in-

cluded in the environmental assessment(EA).

1.1312 Facilities for which nopreconstruction authorization is re-quired.

1.1313 Objections.1.1314 Environmental impact statements

(EISs).1.1315 The Draft Environmental Impact

Statement (DEIS); Comments.1.1317 The Final Environmental Impact

Statement (FEIS).1.1319 Consideration of the environmental

impact statements.

Subpart J—Pole Attachment ComplaintProcedures

1.1401 Purpose.1.1402 Definitions.1.1403 Duty to provide access; modifica-

tions; notice of removal, increase ormodification; petition for temporarystay.

1.1404 Complaint.1.1405 File numbers.1.1406 Dismissal of complaints.1.1407 Response and reply.1.1408 Number of copies and form of plead-

ings.1.1409 Commission consideration of the

complaint.1.1410 Remedies.1.1411 Meetings and hearings.1.1412 Enforcement.1.1413 Forfeiture.1.1414 State certification.1.1415 Other orders.1.1416 Imputation of rates; modification

costs.


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Subpart K—Implementation of the EqualAccess to Justice Act (EAJA) in Agen-cy Proceedings

GENERAL PROVISIONS

1.1501 Purpose of these rules.1.1502 When the EAJA applies.1.1503 Proceedings covered.1.1504 Eligibility of applicants.1.1505 Standards for awards.1.1506 Allowable fees and expenses.1.1507 Rulemaking on maximum rates for

attorney fees.1.1508 Awards against other agencies.

INFORMATION REQUIRED FROM APPLICANTS

1.1511 Contents of application.1.1512 Net worth exhibit.1.1513 Documentation of fees and expenses.1.1514 When an application may be filed.

PROCEDURES FOR CONSIDERING APPLICATIONS

1.1521 Filing and service of documents.1.1522 Answer to application.1.1523 Reply.1.1524 Comments by other parties.1.1525 Settlement.1.1526 Further proceedings.1.1527 Decision.1.1528 Commission review.1.1529 Judicial review.1.1530 Payment of award.

Subpart L—Random Selection Proceduresfor Mass Media Services

GENERAL PROCEDURES

1.1601 Scope.1.1602 Designation for random selection.1.1603 Conduct of random selection.1.1604 Post-selection hearings.1.1621 Definitions.1.1622 Preferences.1.1623 Probability calculation.

Subpart M [Reserved]

Subpart N—Enforcement of Nondiscrimina-tion on the Basis of Handicap in Pro-grams or Activities Conducted by theFederal Communications Commission

1.1801 Purpose.1.1802 Applications.1.1803 Definitions.1.1804–1.1809 [Reserved]1.1810 Self-evaluation.1.1811 Notice.1.1812–1.1829 [Reserved]1.1830 General prohibitions against dis-

crimination.1.1831–1.1839 [Reserved]1.1840 Employment.1.1841–1.1848 [Reserved]

1.1849 Program accessibility: Discrimina-tion prohibited.

1.1850 Program accessibility: Existing fa-cilities.

1.1851 Program accessibility: New construc-tion and alterations.

1.1852–1.1859 [Reserved]1.1860 Communications.1.1861–1.1869 [Reserved]1.1870 Compliance procedures.1.1871–1.1899 [Reserved]

Subpart O—Collection of Claims Owed theUnited States

GENERAL PROVISIONS

1.1901 Definitions.1.1902 Exceptions.1.1903 Use of procedures.1.1904 Conformance to law and regulations.1.1905 Other procedures; collection of for-

feiture penalties.1.1906 Informal action.1.1907 Return of property.1.1908 Omissions not a defense.

ADMINISTRATIVE OFFSET—CONSUMER REPORT-ING AGENCIES—CONTRACTING FOR COLLEC-TION

1.1911 Demand for payment.1.1912 Collection by administrative offset.1.1913 Administrative offset against

amounts payable from Civil Retirementand Disability Fund.

1.1914 Collection in installments.1.1915 Exploration of compromise.1.1916 Suspending or terminating collection

action.1.1917 Referrals to the Department of Jus-

tice or the General Accounting Office.1.1918 Use of consumer reporting agencies.1.1919 Contracting for collection services.

SALARY OFFSET

1.1925 Purpose.1.1926 Scope.1.1927 Notification.1.1928 Hearing.1.1929 Deduction from pay.1.1930 Liquidation from final check or re-

covery from other payment.1.1931 Non-waiver of rights by payments.1.1932 Refunds.1.1933 Interest, penalties and administrative

costs.1.1934 Recovery when paying agency is not

creditor agency.1.1935 Obtaining the services of a hearing

official.

INTEREST, PENALTIES, ADMINISTRATIVE COSTSAND OTHER SANCTIONS

1.1940 Assessment.1.1941 Exemptions.1.1942 Other sanctions.


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Federal Communications Commission § 1.2

COOPERATION WITH THE INTERNAL REVENUESERVICE

1.1950 Reporting discharged debts to the In-ternal Revenue Service.

1.1951 Offset against tax refunds.

GENERAL PROVISIONS CONCERNINGINTERAGENCY REQUESTS

1.1952 Interagency requests.

Subpart P—Implementation of the Anti-Drug Abuse Act of 1988

1.2001 Purpose.1.2002 Applicants required to submit infor-

mation.1.2003 Applications affected.

Subpart Q—Competitive BiddingProceedings

GENERAL PROCEDURES

1.2101 Purpose.1.2102 Eligibility of applications for com-

petitive bidding.1.2103 Competitive bidding design options.1.2104 Competitive bidding mechanisms.1.2105 Bidding application and certification

procedures; prohibition of collusion.1.2106 Submission of upfront payments.1.2107 Submission of down payment and fil-

ing of long-form applications.1.2108 Procedures for filing petitions to

deny against long-form applications.1.2109 License grant, denial, default, and

disqualification.1.2110 Designated entities.1.2111 Assignment or transfer of control: un-

just enrichment.

Subpart R—Implementation of Section4(g)(3) of the Communications Act:Procedures Governing Acceptance ofUnconditional Gifts, Donations and Be-quests

1.3000 Purpose and scope.1.3001 Definitions.1.3002 Structural rules and prohibitions.1.3003 Mandatory factors for evaluating

conflicts of interest.1.3004 Public disclosure and reporting re-

quirements.

Subpart S—Preemption of Restrictions That‘‘Impair’’ a Viewer’s Ability To ReceiveTelevision Broadcast Signals, DirectBroadcast Satellite Services or Multi-channel Multipoint Distribution Services

1.4000 Restrictions impairing reception oftelevision broadcast signals, directbroadcast satellite services or multi-channel multipoint distribution services.

Subpart T—Exempt TelecommunicationsCompanies

1.5000 Purpose.1.5001 Definitions.1.5002 Contents of application and procedure

for filing.1.5003 Effect of filing.1.5004 Commission action.1.5005 Notification of Commission action to

the Securities and Exchange Commis-sion.

1.5006 Procedure for notifying Commissionof material change in facts.

1.5007 Comments.APPENDIX A TO PART 1—A PLAN OF COOPERA-

TIVE PROCEDURE IN MATTERS AND CASESUNDER THE PROVISIONS OF SECTION 410 OFTHE COMMUNICATIONS ACT OF 1934

AUTHORITY: 15 U.S.C. 79 et seq.; 47 U.S.C.151, 154(i), 154(j), 155, 225, and 303(r).

Subpart A—General Rules ofPractice and Procedure

SOURCE: 28 FR 12415, Nov. 22, 1963, unlessotherwise noted.

GENERAL

§ 1.1 Proceedings before the Commis-sion.

The Commission may on its own mo-tion or petition of any interested partyhold such proceedings as it may deemnecessary from time to time in connec-tion with the investigation of any mat-ter which it has power to investigateunder the law, or for the purpose of ob-taining information necessary or help-ful in the determination of its policies,the carrying out of its duties or theformulation or amendment of its rulesand regulations. For such purposes itmay subpena witnesses and require theproduction of evidence. Procedures tobe followed by the Commission shall,unless specifically prescribed in thispart, be such as in the opinion of theCommission will best serve the pur-poses of such proceedings.

(Sec. 403, 48 Stat. 1094; 47 U.S.C. 403)

§ 1.2 Declaratory rulings.The Commission may, in accordance

with section 5(d) of the AdministrativeProcedure Act, on motion or on its ownmotion issue a declaratory ruling ter-minating a controversy or removinguncertainty.


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47 CFR Ch. I (10–1–97 Edition)§ 1.3

(5 U.S.C. 554)

§ 1.3 Suspension, amendment, or waiv-er of rules.

The provisions of this chapter may besuspended, revoked, amended, orwaived for good cause shown, in wholeor in part, at any time by the Commis-sion, subject to the provisions of theAdministrative Procedure Act and theprovisions of this chapter. Any provi-sion of the rules may be waived by theCommission on its own motion or onpetition if good cause therefor isshown.

CROSS REFERENCE: See subpart C of thispart for practice and procedure involvingrulemaking.

§ 1.4 Computation of time.(a) Purpose. The purpose of this rule

section is to detail the method for com-puting the amount of time withinwhich persons or entities must act inresponse to deadlines established bythe Commission. It also applies to com-putation of time for seeking both re-consideration and judicial review ofCommission decisions.

(b) General Rule—Computation of Be-ginning Date When Action is Initiated byCommission or Staff. Unless otherwiseprovided, the first day to be countedwhen a period of time begins with anaction taken by the Commission, anAdministrative Law Judge or by mem-bers of the Commission or its staff pur-suant to delegated authority is the dayafter the day on which public notice ofthat action is given. See § 1.4(b) (1)–(5)of this section. Unless otherwise pro-vided, all Rules measuring time fromthe date of the issuance of a Commis-sion document entitled ‘‘Public No-tice’’ shall be calculated in accordancewith this section. See § 1.4(b)(4) of thissection for a description of the ‘‘PublicNotice’’ document. Unless otherwiseprovided in § 1.4 (g) and (h) of this sec-tion, it is immaterial whether the firstday is a ‘‘holiday.’’ For purposes of thissection, the term public notice meansthe date of any of the following events:See § 1.4(e)(1) of this section for defini-tion of ‘‘holiday.’’

(1) For documents in notice and com-ment rule making proceedings, includ-ing summaries thereof, the date of pub-lication in the FEDERAL REGISTER.

Example 1: A document in a Commissionrule making proceeding is published in theFEDERAL REGISTER on Wednesday, May 6,1987. Public notice commences on Wednes-day, May 6, 1987. The first day to be countedin computing the beginning date of a periodof time for action in response to the docu-ment is Thursday, May 7, 1987, the ‘‘day afterthe day’’ of public notice.

Example 2: Section 1.429(e) provides thatwhen a petition for reconsideration is timelyfiled in proper form, public notice of its fil-ing is published in the FEDERAL REGISTER.Section 1.429(f) provides that oppositions to apetition for reconsideration shall be filedwithin 15 days after public notice of the peti-tion’s filing in the FEDERAL REGISTER. Pub-lic notice of the filing of a petition for recon-sideration is published in the FEDERAL REG-ISTER on Wednesday, June 10, 1987. For pur-poses of computing the filing period for anopposition, the first day to be counted isThursday, June 11, 1987, which is the dayafter the date of public notice. Therefore, op-positions to the reconsideration petitionmust be filed by Thursday, June 25, 1987, 15days later.

(2) For non-rulemaking documentsreleased by the Commission or staff,whether or not published in the FED-ERAL REGISTER, the release date. A doc-ument is ‘‘released’’ by making the fulltext available to the press and publicin the Commission’s Office of PublicAffairs. The release date appears on theface of the document.

Example 3: The Chief, Mass Media Bureau,adopts an order on Thursday, April 2, 1987.The text of that order is not released to thepublic until Friday, April 3, 1987. Public no-tice of this decision is given on Friday, April3, 1987. Saturday, April 4, 1987, is the firstday to be counted in computing filing peri-ods.

(3) For rule makings of particular ap-plicability, if the rule making docu-ment is to be published in the FEDERALREGISTER and the Commission so statesin its decision, the date of public noticewill commence on the day of the FED-ERAL REGISTER publication date. If thedecision fails to specify FEDERAL REG-ISTER publication, the date of publicnotice will commence on the releasedate, even if the document is subse-quently published in the FEDERAL REG-ISTER. See Declaratory Ruling, 51 FR23059 (June 25, 1986).

Example 4: An order establishing an inves-tigation of a tariff, and designating issues tobe resolved in the investigation, is releasedon Wednesday, April 1, 1987, and is publishedin the FEDERAL REGISTER on Friday, April 10,1987. If the decision itself specifies FEDERAL


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REGISTER publication, the date of public no-tice is Friday, April 10, 1987. If this decisiondoes not specify FEDERAL REGISTER publica-tion, public notice occurs on Wednesday,April 1, 1987, and the first day to be countedin computing filing periods is Thursday,April 2, 1987.

(4) If the full text of an action docu-ment is not to be released by the Com-mission, but a descriptive documententitled ‘‘Public Notice’’ describing theaction is released, the date on whichthe descriptive ‘‘Public Notice’’ is re-leased.

Example 5: At a public meeting the Com-mission considers an uncontested applica-tion to transfer control of a broadcast sta-tion. The Commission grants the applicationand does not plan to issue a full text of itsdecision on the uncontested matter. Fivedays after the meeting, a descriptive ‘‘PublicNotice’’ announcing the action is publicly re-leased. The date of public notice commenceson the day of the release date.

Example 6: A Public Notice of petitions forrule making filed with the Commission is re-leased on Wednesday, September 2, 1987; pub-lic notice of these petitions is given on Sep-tember 2, 1987. The first day to be counted incomputing filing times is Thursday, Septem-ber 3, 1987.

(5) If a document is neither publishedin the FEDERAL REGISTER nor released,and if a descriptive document entitled‘‘Public Notice’’ is not released, thedate appearing on the document sent(e.g., mailed, telegraphed, etc.) to per-sons affected by the action.

Example 7: A Bureau grants a license to anapplicant, or issues a waiver for non-con-forming operation to an existing licensee,and no ‘‘Public Notice’’ announcing the ac-tion is released. The date of public noticecommences on the day appearing on the li-cense mailed to the applicant or appearingon the face of the letter granting the waivermailed to the licensee.

(c) General Rule—Computation of Be-ginning Date When Action is Initiated byAct, Event or Default. Commission pro-cedures frequently require the com-putation of a period of time where theperiod begins with the occurrence of anact, event or default and terminates aspecific number of days thereafter. Un-less otherwise provided, the first day tobe counted when a period of time be-gins with the occurrence of an act,event or default is the day after theday on which the act, event or defaultoccurs.

Example 8: Commission Rule § 21.39(d) re-quires the filing of an application requesting

consent to involuntary assignment or con-trol of the permit or license within thirtydays after the occurrence of the death orlegal disability of the licensee or permittee.If a licensee passes away on Sunday, March1, 1987, the first day to be counted pursuantto § 1.4(c) is the day after the act or event.Therefore, Monday, March 2, 1987, is the firstday of the thirty day period specified in§ 21.39(d).

(d) General Rule—Computation of Ter-minal Date. Unless otherwise provided,when computing a period of time thelast day of such period of time is in-cluded in the computation, and any ac-tion required must be taken on or be-fore that day.

Example 9: Paragraph 1.4(b)(1) of this sec-tion provides that ‘‘public notice’’ in a no-tice and comment rule making proceedingbegins on the day of FEDERAL REGISTER pub-lication. Paragraph 1.4(b) of this section pro-vides that the first day to be counted in com-puting a terminal date is the ‘‘day after theday’’ on which public notice occurs. There-fore, if the commission allows or requires anaction to be taken 20 days after public noticein the FEDERAL REGISTER, the first day to becounted is the day after the date of the FED-ERAL REGISTER publication. Accordingly, ifthe FEDERAL REGISTER document is pub-lished on Thursday, July 23, 1987, public no-tice is given on Thursday, July 23, and thefirst day to be counted in computing a 20 dayperiod is Friday, July 24, 1987. The 20th dayor terminal date upon which action must betaken is Wednesday, August 12, 1987.

(e) Definitions for purposes of thissection:

(1) The term holiday means Saturday,Sunday, officially recognized federallegal holidays and any other day onwhich the Commission’s offices areclosed and not reopened prior to 5:30p.m. For example, a regularly sched-uled Commission business day may be-come a holiday if its offices are closedprior to 5:30 p.m. due to adverse weath-er, emergency or other closing.

NOTE: As of August 1987, officially recog-nized federal legal holidays are New Year’sDay, January 1; Martin Luther King’s Birth-day, third Monday in January; Washington’sBirthday, third Monday in February; Memo-rial Day, last Monday in May; IndependenceDay, July 4; Labor Day, first Monday in Sep-tember; Columbus Day, second Monday inOctober; Veterans Day, November 11;Thanksgiving Day, fourth Thursday in No-vember; Christmas Day, December 25. If alegal holiday falls on Saturday or Sunday,the holiday is taken, respectively, on thepreceding Friday or the following Monday.In addition, January 20, (Inauguration Day)


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47 CFR Ch. I (10–1–97 Edition)§ 1.4

following a Presidential election year is alegal holiday in the metropolitan Washing-ton, DC area. If Inauguration Day falls onSunday, the next succeeding day is a legalholiday. See 5 U.S.C. 6103; Executive OrderNo. 11582, 36 FR 2957 (Feb. 11, 1971). The de-termination of a ‘‘holiday’’ will apply onlyto the specific Commission location(s) des-ignated as on ‘‘holiday’’ on that particularday.

(2) The term business day means alldays, including days when the Commis-sion opens later than the time specifiedin Rule § 0.403, which are not ‘‘holi-days’’ as defined above.

(3) The term filing period means thenumber of days allowed or prescribedby statute, rule, order, notice or otherCommission action for filing any docu-ment with the Commission. It does notinclude any additional days allowed forfiling any document pursuant to para-graphs (g), (h) and (j) of this section.

(4) The term filing date means thedate upon which a document must befiled after all computations of time au-thorized by this section have beenmade.

(f) Except as provided in § 0.401(b) ofthe Rules, all petitions, pleadings, tar-iffs or other documents not required tobe accompanied by a fee and which arehand-delivered must be tendered for fil-ing in complete form before 5:30 p.m. inthe Office of the Secretary, either inWashington or Gettysburg, as directedby the Rules. The Secretary will deter-mine whether a tendered documentmeets the pre-5:30 deadline.

(g) Unless otherwise provided (e.g.,§§ 1.773 and 76.1502(e)(1) of this chapter),if the filing period is less than 7 days,intermediate holidays shall not becounted in determining the filing date.

Example 10: A reply is required to be filedwithin 5 days after the filing of an oppositionin a license application proceeding. The op-position is filed on Wednesday, June 10, 1987.The first day to be counted in computing the5 day time period is Thursday, June 11, 1987.Saturday and Sunday are not counted be-cause they are holidays. The document mustbe filed with the Commission on or beforethe following Wednesday, June 17, 1987.

(h) If a document is required to beserved upon other parties by statute orCommission regulation and the docu-ment is in fact served by mail (see§ 1.47(f)), and the filing period for a re-sponse is 10 days or less, an additional3 days (excluding holidays) will be al-

lowed to all parties in the proceedingfor filing a response. This paragraph(§ 1.4(h)) shall not apply to documentsfiled pursuant to § 1.89, § 1.120(d),§ 1.315(b) or § 1.316. For purposes of thisparagraph service by facsimile shall bedeemed equivalent to hand delivery.

Example 11: A reply to an opposition for apetition for reconsideration must be filedwithin 7 days after the opposition is filed. 47CFR 1.106(h). The rules require that the op-position be served on the person seeking re-consideration. 47 CFR 1.106(g). If the opposi-tion is served on the party seeking reconsid-eration by mail and the opposition is filedwith the Commission on Monday, November9, 1987, the first day to be counted is Tues-day, November 10, 1987 (the day after the dayon which the event occurred, § 1.4(c)), and theseventh day is Monday, November 16. An ad-ditional 3 days (excluding holidays) is thenadded at the end of the 7 day period, and thereply must be filed no later than Thursday,November 19, 1987.

Example 12: Assume that oppositions to apetition in a particular proceeding are due 10days after the petition is filed and must beserved on the parties to the proceeding. Ifthe petition is filed on October 28, 1993, thelast day of the filing period for oppositions isSunday, November 7. If service is made bymail, the opposition is due three days afterNovember 7, or Wednesday, November 10.

(i) If both paragraphs (g) and (h) ofthis section are applicable, make theparagraph (g) computation before theparagraph (h) computation.

Example 13: Section 1.45(b) requires the fil-ing of replies to oppositions within five daysafter the time for filing oppositions has ex-pired. If an opposition has been filed on thelast day of the filing period (Friday, July 10,1987), and was served on the replying partyby mail, § 1.4(i) of this section specifies thatthe paragraph (g) computation should bemade before the paragraph (h) computation.Therefore, since the specified filing period isless than seven days, paragraph (g) is appliedfirst. The first day of the filing period isMonday, July 13, 1987, and Friday, July 17,1987 is the fifth day (the intervening weekendwas not counted). Paragraph (h) is then ap-plied to add three days for mailing (exclud-ing holidays). That period begins on Monday,July 20, 1987. Therefore, Wednesday, July 22,1987, is the date by which replies must befiled, since the intervening weekend is againnot counted.

(j) Unless otherwise provided (e.g.§ 76.1502(e) of this chapter) if, aftermaking all the computations providedfor in this section, the filing date fallson a holiday, the document shall be


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filed on the next business day. Seeparagraph (e)(1) of this section.

Example 14: The filing date falls on Friday,December 25, 1987. The document is requiredto be filed on the next business day, which isMonday, December 28, 1987.

(k) Where specific provisions of part 1conflict with this section, those spe-cific provisions of part 1 are control-ling. See, e.g.,§§ 1.45(d), 1.773(a)(3) and1.773(b)(2). Additionally, where§ 76.1502(e) of this chapter conflictswith this section, those specific provi-sions of § 76.1502 are controlling. Seee.g. 47 CFR 76.1502(e).

[52 FR 49159, Dec. 30, 1987; 53 FR 44196, Nov.2, 1988, as amended at 56 FR 40567, 40568, Aug.15, 1991; 58 FR 17529, Apr. 5, 1993; 61 FR 11749,Mar. 22, 1996; 62 FR 4170, Jan. 29, 1997; 62 FR26238, May 13, 1997]

§ 1.5 Mailing address furnished by li-censee.

(a) Each licensee shall furnish theCommission with an address to be usedby the Commission in serving docu-ments or directing correspondence tothat licensee. Unless any licensee ad-vises the Commission to the contrary,the address contained in the licensee’smost recent application will be used bythe Commission for this purpose.

(b) The licensee is responsible formaking any arrangements which maybe necessary in his particular cir-cumstances to assure that Commissiondocuments or correspondence deliveredto this address will promptly reach himor some person authorized by him toact in his behalf.

§ 1.6 Availability of station logs andrecords for Commission inspection.

(a) Station records and logs shall bemade available for inspection or dupli-cation at the request of the Commis-sion or its representative. Such logs orrecords may be removed from the li-censee’s possession by a Commissionrepresentative or, upon request, shallbe mailed by the licensee to the Com-mission by either registered mail, re-turn receipt requested, or certifiedmail, return receipt requested. The re-turn receipt shall be retained by the li-censee as part of the station recordsuntil such records or logs are returnedto the licensee. A receipt shall be fur-nished when the logs or records are re-moved from the licensee’s possession

by a Commission representative andthis receipt shall be retained by the li-censee as part of the station recordsuntil such records or logs are returnedto the licensee. When the Commissionhas no further need for such records orlogs, they shall be returned to the li-censee. The provisions of this rule shallapply solely to those station logs andrecords which are required to be main-tained by the provisions of this chap-ter.

(b) Where records or logs are main-tained as the official records of a rec-ognized law enforcement agency andthe removal of the records from thepossession of the law enforcementagency will hinder its law enforcementactivities, such records will not be re-moved pursuant to this section if thechief of the law enforcement agencypromptly certifies in writing to theFederal Communications Commissionthat removal of the logs or records willhinder law enforcement activities ofthe agency, stating insofar as feasiblethe basis for his decision and the datewhen it can reasonably be expectedthat such records will be released tothe Federal Communications Commis-sion.

§ 1.7 Documents are filed upon receipt.Unless otherwise provided in this

Title, by Public Notice, or by decisionof the Commission or of the Commis-sion’s staff acting on delegated author-ity, pleadings and other documents areconsidered to be filed with the Com-mission upon their receipt at the loca-tion designated by the Commission.

[60 FR 16055, Mar. 29, 1995]

§ 1.8 Withdrawal of papers.The granting of a request to dismiss

or withdraw an application or a plead-ing does not authorize the removal ofsuch application or pleading from theCommission’s records.

§ 1.10 Transcript of testimony; copiesof documents submitted.

In any matter pending before theCommission, any person submittingdata or evidence, whether acting undercompulsion or voluntarily, shall havethe right to retain a copy thereof, or toprocure a copy of any document sub-mitted by him, or of any transcript


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47 CFR Ch. I (10–1–97 Edition)§ 1.12

made of his testimony, upon paymentof the charges therefor to the personfurnishing the same, which person maybe designated by the Commission. TheCommission itself shall not be respon-sible for furnishing the copies.

[29 FR 14406, Oct. 20, 1964]

§ 1.12 Notice to attorneys of Commis-sion documents.

In any matter pending before theCommission in which an attorney hasappeared for, submitted a document onbehalf of or been otherwise designatedby a person, any notice or other writ-ten communication pertaining to thatmatter issued by the Commission andwhich is required or permitted to befurnished to the person will be commu-nicated to the attorney, or to one ofsuch attorneys if more than one is des-ignated. If direct communication withthe party is appropriate, a copy of suchcommunication will be mailed to theattorney.

[29 FR 14406, Oct. 20, 1964]

§ 1.13 Filing of petitions for reviewand notices of appeals of Commis-sion orders.

(a)(1) This section pertains to eachparty filing a petition for review in anyUnited States court of appeals of aCommission Order, pursuant to section402(a) of the Communications Act, 47U.S.C. 402(a), and 28 U.S.C. 2342(l), thatwishes to avail itself of procedures es-tablished for selection of a court in thecase of multiple appeals, pursuant to 28U.S.C. 2112(a). Each such party shall,within ten days after the issuance ofthat order, file with the General Coun-sel in the Office of General Counsel,Room 614, 1919 M Street NW., Washing-ton, DC 20554, a copy of its petition forreview as filed and date-stamped by thecourt of appeals within which it wasfiled. Such copies of petitions for re-view must be filed by 5:30 p.m. EasternTime on the tenth day of the filing pe-riod. A stamp indicating the time anddate received by the Office of GeneralCounsel will constitute proof of filing.Upon receipt of any copies of petitionsfor review, the Commission shall followthe procedures established in section 28U.S.C. 2112(a) to determine the court inwhich to file the record in that case.

(2) Computation of time of the ten-day period for filing copies of petitionsfor review of a Commission order shallbe governed by § 1.4 of the Commis-sion’s Rules, 47 CFR 1.4. The date of is-suance of a Commission order for pur-poses of filing copies of petitions for re-view shall be the date of public noticeas defined in § 1.4(b), 47 CFR 1.4(b).

(b) Copies of notices of appeals filedpursuant to 47 U.S.C. 402(b) shall beserved upon the General Counsel.

NOTE: For administrative efficiency, theCommission requests that any petitionerseeking judicial review of Commission ac-tions pursuant to 47 U.S.C. 402(a) serve acopy of its petition on the General Counselregardless of whether it wishes to avail itselfof the procedures for multiple appeals setforth in 47 U.S.C. 2112(a).

[54 FR 12453, Mar. 27, 1989]

§ 1.14 Citation of Commission docu-ments.

The appropriate reference to the FCCRecord shall be included as part of thecitation to any document that has beenprinted in the Record. The citationshould provide the volume, page num-ber and year, in that order (e.g., 1 FCCRcd. 1 (1986). Older documents maycontinue to be cited to the FCC Re-ports, first or second series, if theywere printed in the Reports (e.g., 1 FCC2d 1 (1965)).

[51 FR 45890, Dec. 23, 1986]

§ 1.16 Unsworn declarations underpenalty of perjury in lieu of affida-vits.

Any document to be filed with theFederal Communications Commissionand which is required by any law, ruleor other regulation of the UnitedStates to be supported, evidenced, es-tablished or proved by a written sworndeclaration, verification, certificate,statement, oath or affidavit by the per-son making the same, may be sup-ported, evidenced, established orproved by the unsworn declaration,certification, verification, or state-ment in writing of such person, exceptthat, such declaration shall not be usedin connection with: (a) A deposition,(b) an oath of office, or (c) an oath re-quired to be taken before a specified of-ficial other than a notary public. Such


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declaration shall be subscribed by thedeclarant as true under penalty of per-jury, and dated, in substantially thefollowing form:

(1) If executed without the UnitedStates:

‘‘I declare (or certify, verify, or state) underpenalty of perjury under the laws of theUnited States of America that the foregoingis true and correct. Executed on (date).

(Signature)’’.

(2) If executed within the UnitedStates, its territories, possessions, orcommonwealths:‘‘I declare (or certify, verify, or state) underpenalty of perjury that the foregoing is trueand correct. Executed on (date).

(Signature)’’.

[48 FR 8074, Feb. 25, 1983]

§ 1.17 Truthful written statements andresponses to Commission inquiriesand correspondence.

The Commission or its representa-tives may, in writing, require from anyapplicant, permittee or licensee writ-ten statements of fact relevant to a de-termination whether an applicationshould be granted or denied, or to a de-termination whether a license shouldbe revoked, or to some other matterwithin the jurisdiction of the Commis-sion. No applicant, permittee or li-censee shall in any response to Com-mission correspondence or inquiry orin any application, pleading, report orany other written statement submittedto the Commission, make any mis-representation or willful materialomission bearing on any matter withinthe jurisdiction of the Commission.

NOTE: Section 1.17 is limited in applicationto written matter. It implies no change inthe Commission’s existing policies respect-ing the obligation of applicants, permitteesand licensees in all instances to respondtruthfully to requests for informationdeemed necessary to the proper execution ofthe Commission’s functions.

[55 FR 23084, June 6, 1990]

§ 1.18 Administrative Dispute Resolu-tion.

(a) The Commission has adopted aninitial policy statement that supportsand encourages the use of alternativedispute resolution procedures in its ad-ministrative proceedings and proceed-

ings in which the Commission is aparty, including the use of regulatorynegotiation in Commission rulemakingmatters, as authorized under the Ad-ministrative Dispute Resolution Actand Negotiated Rulemaking Act.

(b) In accordance with the Commis-sion’s policy to encourage the fullestpossible use of alternative dispute reso-lution procedures in its administrativeproceedings, procedures contained inthe Administrative Dispute ResolutionAct, including the provisions dealingwith confidentiality, shall also be ap-plied in Commission alternative dis-pute resolution proceedings in whichthe Commission itself is not a party tothe dispute.

[56 FR 51178, Oct. 10, 1991, as amended at 57FR 32181, July 21, 1992]

§ 1.19 Use of metric units required.Where parenthesized English units

accompany metric units throughoutthis chapter, and the two figures arenot precisely equivalent, the metricunit shall be considered the sole re-quirement; except, however, that theuse of metric paper sizes is not cur-rently required, and compliance withthe English unit shall be consideredsufficient when the Commission formrequests that data showing compliancewith that particular standard be sub-mitted in English units.

[58 FR 44893, Aug. 25, 1993]

PARTIES, PRACTITIONERS, ANDWITNESSES

§ 1.21 Parties.(a) Any party may appear before the

Commission and be heard in person orby attorney.

(b) The appropriate Bureau Chief(s)of the Commission shall be deemed tobe a party to every adjudicatory pro-ceeding (as defined in the Administra-tive Procedure Act) without the neces-sity of being so named in the order des-ignating the proceeding for hearing.

(c) When, in any proceeding, a plead-ing is filed on behalf of either the Gen-eral Counsel or the Chief Engineer, heshall thereafter be deemed a party tothe proceeding.

(d) Except as otherwise expressly pro-vided in this chapter, a duly authorized


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47 CFR Ch. I (10–1–97 Edition)§ 1.22

corporate officer or employee may actfor the corporation in any matterwhich has not been designated for anevidentiary hearing and, in the discre-tion of the presiding officer, may ap-pear and be heard on behalf of the cor-poration in an evidentiary hearing pro-ceeding.

[28 FR 12415, Nov. 22, 1963, as amended at 37FR 8527, Apr. 28, 1972; 44 FR 39180, July 5,1979; 51 FR 12616, Apr. 14, 1986]

§ 1.22 Authority for representation.Any person, in a representative ca-

pacity, transacting business with theCommission, may be required to showhis authority to act in such capacity.

§ 1.23 Persons who may be admitted topractice.

(a) Any person who is a member ingood standing of the bar of the Su-preme Court of the United States or ofthe highest court of any state, terri-tory or the District of Columbia, andwho is not under any final order of anyauthority having power to suspend ordisbar an attorney in the practice oflaw within any state, territory or theDistrict of Columbia that suspends, en-joins, restrains, disbars, or otherwiserestricts him or her in the practice oflaw, may represent others before theCommission.

(b) When such member of the bar act-ing in a representative capacity ap-pears in person or signs a paper inpractice before the Commission, hispersonal appearance or signature shallconstitute a representation to theCommission that, under the provisionsof this chapter and the law, he is au-thorized and qualified to represent theparticular party in whose behalf heacts. Further proof of authority to actin a representative capacity may be re-quired.

[28 FR 12415, Nov. 22, 1963, as amended at 57FR 38285, Aug. 24, 1992]

§ 1.24 Censure, suspension, or disbar-ment of attorneys.

(a) The Commission may censure,suspend, or disbar any person who haspracticed, is practicing or holding him-self out as entitled to practice before itif it finds that such person:

(1) Does not possess the qualifica-tions required by § 1.23;

(2) Has failed to conform to standardsof ethical conduct required of practi-tioners at the bar of any court of whichhe is a member;

(3) Is lacking in character or profes-sional integrity; and/or

(4) Displays toward the Commissionor any of its hearing officers conductwhich, if displayed toward any court ofthe United States or any of its Terri-tories or the District of Columbia,would be cause for censure, suspension,or disbarment.

(b) Except as provided in paragraph(c) of this section, before any memberof the bar of the Commission shall becensured, suspended, or disbarred,charges shall be preferred by the Com-mission against such practitioner, andhe or she shall be afforded an oppor-tunity to be heard thereon.

(c) Upon receipt of official noticefrom any authority having power tosuspend or disbar an attorney in thepractice of law within any state, terri-tory, or the District of Columbia whichdemonstrates that an attorney practic-ing before the Commission is subject toan order of final suspension (not mere-ly temporary suspension pending fur-ther action) or disbarment by such au-thority, the Commission may, withoutany preliminary hearing, enter anorder temporarily suspending the at-torney from practice before it pendingfinal disposition of a disciplinary pro-ceeding brought pursuant to § 1.24(a)(2),which shall afford such attorney an op-portunity to be heard and directing theattorney to show cause within thirtydays from the date of said order whyidentical discipline should not be im-posed against such attorney by theCommission.

(d) Allegations of attorney mis-conduct in Commission proceedingsshall be referred under seal to the Of-fice of General Counsel. Pending actionby the General Counsel, the decisionmaker may proceed with the merits ofthe matter but in its decision maymake findings concerning the attor-ney’s conduct only if necessary to re-solve questions concerning an appli-cant and may not reach any conclu-sions regarding the ethical ramifica-tions of the attorney’s conduct. TheGeneral Counsel will determine if theallegations are substantial, and, if so,


103


shall immediately notify the attorneyand direct him or her to respond to theallegations. No notice will be providedto other parties to the proceeding. TheGeneral Counsel will then determinewhat further measures are necessary toprotect the integrity of the Commis-sion’s administrative process, includ-ing but not limited to one or more ofthe following:

(1) Recommending to the Commis-sion the institution of a proceedingunder paragraph (a) of this section;

(2) Referring the matter to the appro-priate State, territorial, or District ofColumbia bar; or

(3) Consulting with the Departmentof Justice.

[28 FR 12415, Nov. 22, 1963, as amended at 57FR 38285, Aug. 24, 1992; 60 FR 53277, Oct. 13,1995]

§ 1.25 [Reserved]

§ 1.26 Appearances.Rules relating to appearances are set

forth in §§ 1.87, 1.91, 1.221, and 1.703.

§ 1.27 Witnesses; right to counsel.Any individual compelled to appear

in person in any Commission proceed-ing may be accompanied, represented,and advised by counsel as provided inthis section. (Regulations as to personsseeking voluntarily to appear and giveevidence are set forth in § 1.225.)

(a) Counsel may advise his client inconfidence, either upon his own initia-tive or that of the witness, before, dur-ing, and after the conclusion of theproceeding.

(b) Counsel for the witness will bepermitted to make objections on therecord, and to state briefly the basisfor such objections, in connection withany examination of his client.

(c) At the conclusion of the examina-tion of his client, counsel may askclarifying questions if in the judgmentof the presiding officer such question-ing is necessary or desirable in order toavoid ambiguity or incompleteness inthe responses previously given.

(d) Except as provided by paragraph(c) of this section, counsel for the wit-ness may not examine or cross-examineany witness, or offer documentary evi-dence, unless authorized by the Com-mission to do so.

(5 U.S.C. 555)

[29 FR 12775, Sept. 10, 1964]

§§ 1.28–1.29 [Reserved]

PLEADINGS, BRIEFS, AND OTHER PAPERS

§ 1.41 Informal requests for Commis-sion action.

Except where formal procedures arerequired under the provisions of thischapter, requests for action may besubmitted informally. Requests shouldset forth clearly and concisely thefacts relied upon, the relief sought, thestatutory and/or regulatory provisions(if any) pursuant to which the requestis filed and under which relief issought, and the interest of the personsubmitting the request.

§ 1.42 Applications, reports, com-plaints; cross-reference.

(a) Rules governing applications andreports are contained in subparts D, E,and F of this part.

(b) Special rules governing com-plaints against common carriers aris-ing under the Communications Act areset forth in subpart E of this part.

§ 1.43 Requests for stay; cross-ref-erence.

General rules relating to requests forstay of any order or decision are setforth in §§ 1.41, 1.44(e), 1.45 (d) and (e),and 1.298(a). See also §§ 1.102, 1.106(n),and 1.115(h).

§ 1.44 Separate pleadings for differentrequests.

(a) Requests requiring action by theCommission shall not be combined in apleading with requests for action by anadministrative law judge or by any per-son or persons acting pursuant to dele-gated authority.

(b) Requests requiring action by anadministrative law judge shall not becombined in a pleading with requestsfor action by the Commission or by anyperson or persons acting pursuant todelegated authority.

(c) Requests requiring action by anyperson or persons pursuant to dele-gated authority shall not be combinedin a pleading with requests for actionby any other person or persons actingpursuant to delegated authority.


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(d) Pleadings which combine requestsin a manner prohibited by paragraph(a), (b), or (c) of this section may be re-turned without consideration to theperson who filed the pleading.

(e) Any request to stay the effective-ness of any decision or order of theCommission shall be filed as a separatepleading. Any such request which isnot filed as a separate pleading will notbe considered by the Commission.

NOTE: Matters which are acted on pursuantto delegated authority are set forth in sub-part B of part 0 of this chapter. Mattersacted on by the hearing examiner are setforth in § 0.341.

§ 1.45 Pleadings; filing periods.Except as otherwise provided in this

chapter, pleadings in Commission pro-ceedings shall be filed in accordancewith the provisions of this section.

(a) Oppositions. Oppositions to anymotion, petition, or request may befiled within 10 days after the originalpleading is filed. For matters related topart 22 of the rules, these microfichecopies must be filed within 15 calendardays of the paper filing (see § 22.6).

(b) Replies. The person who filed theoriginal pleading may reply to opposi-tions within 5 days after the time forfiling oppositions has expired. Thereply shall be limited to matters raisedin the oppositions, and the response toall such matters shall be set forth in asingle pleading; separate replies to in-dividual oppositions shall not be filed.For matters related to part 22 of therules, three microfiche copies must befiled within 15 calendar days of thepaper filing (see § 22.6).

(c) Additional pleadings. Additionalpleadings may be filed only if specifi-cally requested or authorized by theCommission.

(d) Requests for temporary relief; short-er filing periods. Oppositions to a re-quest for stay of any order or to a re-quest for other temporary relief shallbe filed within 7 days after the requestis filed. Replies to oppositions shouldnot be filed and will not be considered.The provisions of § 1.4(h) shall notapply in computing the filing date foroppositions to a request for stay or forother temporary relief.

(e) Ex parte disposition of certain plead-ings. As a matter of discretion, the

Commission may rule ex parte upon re-quests for continuances and extensionsof time, requests for permission to filepleadings in excess of the length pre-scribed in this chapter, and requestsfor temporary relief, without waitingfor the filing of oppositions or replies.

NOTE: Where specific provisions containedin part 1 conflict with this section, thosespecific provisions are controlling. See, inparticular, §§ 1.294(c), 1.298(a), and 1.773.

[28 FR 12415, Nov. 22, 1963, as amended at 33FR 7153, May 15, 1968; 45 FR 64190, Sept. 29,1980; 54 FR 31032, July 26, 1989; 54 FR 37682,Sept. 12, 1989]

§ 1.46 Motions for extension of time.

(a) It is the policy of the Commissionthat extensions of time shall not beroutinely granted.

(b) Motions for extension of time inwhich to file responses to petitions forrulemaking, replies to such responses,comments filed in response to notice ofproposed rulemaking, replies to suchcomments and other papers in rule-making proceedings conducted undersubpart C of this part shall be filed atleast 7 days before the filing date. If atimely motion is denied, the responsesand comments, replies thereto, orother papers need not be filed until 2business days after the Commissionacts on the motion. In emergency situ-ations, the Commission will consider alate-filed motion for a brief extensionof time related to the duration of theemergency and will consider motionsfor acceptance of comments, replycomments or other papers filed afterthe filing date.

(c) If a motion for extension of timein which to file papers in proceedingsother than notice and comment rulemaking proceedings is filed less than 7days prior to the day for filing the pa-pers, the party filing the motion shall(in addition to serving the motion onother parties) orally notify other par-ties and Commission staff personnel re-sponsible for acting on the motion thatthe motion has been (or is being) filed.

[39 FR 43301, Dec. 12, 1974, as amended at 41FR 9550, Mar. 5, 1976; 41 FR 14871, Apr. 8, 1976;42 FR 28887, June 6, 1977]


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§ 1.47 Service of documents and proofof service.

(a) Where the Commission or any per-son is required by statute or by theprovisions of this chapter to serve anydocument upon any person, serviceshall (in the absence of specific provi-sions in this chapter to the contrary)be made in accordance with the provi-sions of this section.

(b) Where any person is required toserve any document filed with theCommission, service shall be made bythat person or by his representative onor before the day on which the docu-ment is filed: Provided, however, Thatformal complaints filed under section208 of the Communications Act will beserved by the Commission.

(c) Commission counsel who formallyparticipate in any proceeding shall beserved in the same manner as otherpersons who participate in that pro-ceeding. The filing of a document withthe Commission does not constituteservice upon Commission counsel.

(d) Documents may be served upon aparty, his attorney, or other duly con-stituted agent by delivering a copy orby mailing a copy to the last knownaddress. When a party is represented byan attorney of record in a formal pro-ceeding, service shall be made uponsuch attorney.

(e) Delivery of a copy pursuant tothis section means handing it to theparty, his attorney, or other duly con-stituted agent; or leaving it with theclerk or other person in charge of theoffice of the person being served; or, ifthere is no one in charge of such office,leaving it in a conspicuous place there-in; or, if such office is closed or the per-son to be served has no office, leavingit at his dwelling house or usual placeof abode with some person of suitableage and discretion then residing there-in.

(f) Service by mail is complete uponmailing.

(g) Proof of service, as provided inthis section, shall be filed before actionis taken. The proof of service shallshow the time and manner of service,and may be by written acknowledge-ment of service, by certificate of theperson effecting the service, or byother proof satisfactory to the Com-mission. Failure to make proof of serv-

ice will not affect the validity of theservice. The Commission may allowthe proof to be amended or supplied atany time, unless to do so would resultin material prejudice to a party.

[28 FR 12415, Nov. 22, 1963, as amended at 40FR 55644, Dec. 1, 1975; 53 FR 11852, Apr. 11,1988]

§ 1.48 Length of pleadings.(a) Affidavits, statements, tables of

contents and summaries of filings, andother materials which are submittedwith and factually support a pleadingare not counted in determining thelength of the pleading. If other mate-rials are submitted with a pleading,they will be counted in determining itslength; and if the length of the plead-ings, as so computed, is greater thanpermitted by the provisions of thischapter, the pleading will be returnedwithout consideration.

(b) It is the policy of the Commissionthat requests for permission to filepleadings in excess of the length pre-scribed by the provisions of this chap-ter shall not be routinely granted.Where the filing period is 10 days orless, the request shall be made within 2business days after the period begins torun. Where the period is more than 10days, the request shall be filed at least10 days before the filing date. (See§ 1.4.) If a timely request is made, thepleading need not be filed earlier than2 business days after the Commissionacts upon the request.

[41 FR 14871, Apr. 8, 1976, and 49 FR 40169,Oct. 15, 1984]

§ 1.49 Specifications as to pleadingsand documents.

(a) All pleadings and documents filedin any Commission proceeding shall betypewritten or prepared by mechanicalprocessing methods, and shall be filedon A4 (21 cm. × 29.7 cm.) or on 81⁄2 × 11inch (21.6 cm. × 27.9 cm.) paper with themargins set so that the printed mate-rial does not exceed 61⁄2 × 91⁄2 inches(16.5 cm. × 24.1 cm.). The printed mate-rial may be in any typeface of at least12-point (0.42333 cm. or 12⁄72″) in height.The body of the text must be doublespaced with a minimum distance of 7⁄32

of an inch (0.5556 cm.) between eachline of text. Footnotes and long, in-dented quotations may be single


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spaced, but must be in type that is 12-point or larger in height, with at least1⁄16 of an inch (0.158 cm.) between eachline of text. Counsel are cautionedagainst employing extended singlespaced passages or excessive footnotesto evade prescribed pleading lengths. Ifsingle-spaced passages or footnotes areused in this manner the pleading will,at the discretion of the Commission,either be rejected as unacceptable forfiling or dismissed with leave to berefiled in proper form. Pleadings maybe printed on both sides of the paper.Pleadings that use only one side of thepaper shall be stapled, or otherwisebound, in the upper left-hand corner;those using both sides of the papershall be stapled twice, or otherwisebound, along the left-hand margin sothat it opens like a book. The fore-going shall not apply to printed briefsspecifically requested by the Commis-sion, official publications, charted ormaps, original documents (or admissi-ble copies thereof) offered as exhibits,specially prepared exhibits, or if other-wise specifically provided. All copiesshall be clearly legible.

(b) Except as provided in paragraph(d) of this section, all pleadings anddocuments filed with the Commission,the length of which as computed underthis chapter exceeds ten pages, shallinclude, as part of the pleading or doc-ument, a table of contents with pagereferences.

(c) Except as provided in paragraph(d) of this section, all pleadings anddocuments filed with the Commission,the length of which filings as computedunder this chapter exceeds ten pages,shall include, as part of the pleading ordocument, a summary of the filing,suitably paragraphed, which should bea succinct, but accurate and clear con-densation of the substance of the filing.It should not be a mere repetition ofthe headings under which the filing isarranged. For pleadings and documentsexceeding ten but not twenty-fivepages in length, the summary shouldseldom exceed one and never two pages;for pleadings and documents exceedingtwenty-five pages in length, the sum-mary should seldom exceed two andnever five pages.

(d) The requirements of paragraphs(b) and (c) of this section shall notapply to:

(1) Interrogatories or answers to in-terrogatories, and depositions;

(2) FCC forms or applications;(3) Transcripts;(4) Contracts and reports;(5) Letters; or(6) Hearing exhibits, and exhibits or

appendicies accompanying any docu-ment or pleading submitted to theCommission.

(e) In addition to the provisionsabove, pleadings related to Part 22 ofthe rules, must also be submitted onmicrofiche. See § 22.6 for specifications.

NOTE: The table of contents and the sum-mary pages shall not be included in comply-ing with any page limitation requirementsas set forth by Commission rule.

[40 FR 19198, May 2, 1975, as amended at 47FR 26393, June 18, 1982; 51 FR 16322, May 2,1986; 54 FR 31032, July 26, 1989; 58 FR 44893,Aug. 25, 1993; 59 FR 37721, July 25, 1994]

§ 1.50 Specifications as to briefs.

The Commission’s preference is forbriefs that are typewritten or preparedby mechanical processing methods.Printed briefs will be accepted only ifspecifically requested by the Commis-sion. Typewritten or mechanically pro-duced briefs must conform to all of thespecifications for pleadings and docu-ments set forth in § 1.49.

[59 FR 37721, July 25, 1994]

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

Except as otherwise specifically pro-vided in the Commission’s rules andregulations, the number of copies ofpleadings, briefs, and other papers tobe filed is as follows:

(a) In hearing proceedings, the fol-lowing number of copies shall be filed:

(1) If the paper filed relates to a mat-ter to be acted upon by the presidingofficer or the Chief AdministrativeLaw Judge, an original and 6 copiesshall be filed.

(2) If the paper filed relates to mat-ters to be acted on by the Commission,an original and 14 copies shall be filed.


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(3) If more than one person presided(is presiding) at the hearing an addi-tional copy shall be filed for each suchadditional person.

(b) In rulemaking proceedings whichhave not been designated for hearing,see section 1.419 of this chapter.

(c) In matters other than rule mak-ing and hearing cases, the followingnumber of copies shall be filed:

(1) If the paper filed relates to mat-ters to be acted on by the Commission,an original and 4 copies shall be filed.If the matter relates to Part 22 of therules, see § 22.6.

(2) If the paper filed related to mat-ters to be acted on by staff officialsunder delegated authority, an originaland 4 copies shall be filed. If the matterrelates to Part 22 of the rules, see § 22.6.

(d) Where statute or regulation pro-vides for service by the Commission ofpapers filed with the Commission, anadditional copy of such papers shall befiled for each person to be served.

(e) The parties to any proceedingmay, on notice, be required to file addi-tional copies of any or all papers filedin that proceeding.

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

[40 FR 48136, Oct. 14, 1975, as amended at 41FR 50399, Nov. 16, 1976; 45 FR 64190, Sept. 29,1980; 45 FR 79486, Dec. 1, 1980; 50 FR 26567,June 27, 1985; 54 FR 29037, July 11, 1989; 54 FR31032, July 26, 1989; 62 FR 4170, Jan. 29, 1997]

§ 1.52 Subscription and verification.The original of all petitions, motions,

pleadings, briefs, and other documentsfiled by any party represented by coun-sel shall be signed by at least one at-torney of record in his individualname, whose address shall be stated. Aparty who is not represented by an at-torney shall sign and verify the docu-ment and state his address. Either theoriginal document, or an electronic re-production of such original documentcontaining the facsimile signature ofthe attorney or unrepresented party isacceptable for filing. If a facsimilecopy of a document is filed, the signa-tory shall retain the original until theCommission’s decision is final and nolonger subject to judicial review. Ex-cept when otherwise specifically pro-vided by rule or statute, documentssigned by the attorney for a party need

not be verified or accompanied by affi-davit. The signature or electronic re-production thereof by an attorney con-stitutes a certificate by him that hehas read the document; that to the bestof his knowledge, information, and be-lief there is good ground to support it;and that it is not interposed for delay.If the original of a document is notsigned or is signed with intent to de-feat the purpose of this section, or anelectronic reproduction does not con-tain a facsimile signature, it may bestricken as sham and false, and thematter may proceed as though the doc-ument had not been filed. An attorneymay be subjected to appropriate dis-ciplinary action, pursuant to § 1.24, fora willful violation of this rule or ifscandalous or indecent matter is in-serted.

[50 FR 19360, May 8, 1985]

GENERAL APPLICATION PROCEDURES

§ 1.61 Procedures for handling applica-tions requiring special aeronauticalstudy.

(a) Antenna Structure Registrationis conducted by the Wireless Tele-communications Bureau as follows:

(1) Each antenna structure ownerthat must notify the FAA of proposedconstruction using FAA Form 7460–1shall, upon proposing new or modifiedconstruction, register that antennastructure with the Wireless Tele-communications Bureau using FCCForm 854.

(2) If an Environmental Assessmentis required under § 1.1307, the Bureauwill address the environmental con-cerns prior to processing the registra-tion.

(3) If a final FAA determination of‘‘no hazard’’ is not submitted alongwith FCC Form 854, processing of theregistration may be delayed or dis-approved.

(4) If the owner of the antenna struc-ture cannot file FCC Form 854 becauseit is subject to a denial of federal bene-fits under the Anti-Drug Abuse Act of1988, 21 U.S.C. 862, the first licensee au-thorized to locate on the structuremust register the structure using FCCForm 854, and provide a copy of the An-tenna Structure Registration (FCC


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Form 854R) to the owner. The owner re-mains responsible for providing a copyof FCC Form 854R to all tenant licens-ees on the structure and for posting theregistration number as required by§ 17.4(g) of this chapter.

(5) Upon receipt of FCC Form 854, andattached final FAA determination of‘‘no hazard,’’ the Bureau prescribes an-tenna structure painting and/or light-ing specifications or other conditionsin accordance with the FAA airspacerecommendation and returns a com-pleted Antenna Structure Registration(FCC Form 854R) to the registrant. Ifthe proposed structure is disapprovedthe registrant is so advised.

(b) Each operating Bureau or Officeexamines the applications for Commis-sion authorization for which it is re-sponsible to ensure compliance withFAA notification procedures as well asCommission Antenna Structure Reg-istration as follows:

(1) If Antenna Structure Registrationis required, the operating Bureau re-views the application for the AntennaStructure Registration Number andproceeds as follows:

(i) If the application contains the An-tenna Structure Registration Numberor if the applicant seeks a Cellular orPCS system authorization, the operat-ing Bureau processes the application.

(ii) If the application does not con-tain the Antenna Structure Registra-tion Number, but the structure ownerhas already filed FCC Form 854, the op-erating Bureau places the applicationon hold until Registration can be con-firmed, so long as the owner exhibitsdue diligence in filing.

(iii) If the application does not con-tain the Antenna Structure Registra-tion Number, and the structure ownerhas not filed FCC Form 854, the operat-ing Bureau notifies the applicant thatFCC Form 854 must be filed and placesthe application on hold until Registra-tion can be confirmed, so long as theowner exhibits due diligence in filing.

(2) If Antenna Structure Registrationis not required, the operating Bureauprocesses the application.

(c) Where one or more antenna farmareas have been designated for a com-munity or communities (see § 17.9 ofthis chapter), an application proposingthe erection of an antenna structure

over 1,000 feet in height above groundto serve such community or commu-nities will not be accepted for filingunless:

(1) It is proposed to locate the an-tenna structure in a designated an-tenna farm area, or

(2) It is accompanied by a statementfrom the Federal Aviation Administra-tion that the proposed structure willnot constitute a menace to air naviga-tion, or

(3) It is accompanied by a request forwaiver setting forth reasons sufficient,if true, to justify such a waiver.

NOTE: By Commission Order (FCC 65–455),30 FR 7419, June 5, 1965, the Commission is-sued the following policy statement concern-ing the height of radio and television an-tenna towers:

‘‘We have concluded that this objective canbest be achieved by adopting the followingpolicy: Applications for antenna towers high-er than 2,000 feet above ground will be pre-sumed to be inconsistent with the public in-terest, and the applicant will have a burdenof overcoming that strong presumption. Theapplicant must accompany its applicationwith a detailed showing directed to meetingthis burden. Only in the exceptional case,where the Commission concludes that a clearand compelling showing has been made thatthere are public interest reasons requiring atower higher than 2,000 feet above ground,and after the parties have complied with ap-plicable FAA procedures, and full Commis-sion coordination with FAA on the questionof menace to air navigation, will a grant bemade. Applicants and parties in interest will,of course, be afforded their statutory hearingrights.’’

[28 FR 12415, Nov. 22, 1963, as amended at 32FR 8813, June 21, 1967; 32 FR 20860, Dec. 28,1967; 34 FR 6481, Apr. 15, 1969; 45 FR 55201,Aug. 19, 1980; 58 FR 13021, Mar. 9, 1993, 61 FR4361, Feb. 6, 1996]

§ 1.62 Operation pending action on re-newal application.

(a)(1) Where there is pending beforethe Commission at the time of expira-tion of license any proper and timelyapplication for renewal of license withrespect to any activity of a continuingnature, in accordance with the provi-sions of section 9(b) of the Administra-tive Procedure Act, such license shallcontinue in effect without further ac-tion by the Commission until suchtime as the Commission shall make afinal determination with respect to the


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renewal application. No operation byany licensee under this section shall beconstrued as a finding by the Commis-sion that the operation will serve thepublic interest, convenience, or neces-sity, nor shall such operation in anyway affect or limit the action of theCommission with respect to any pend-ing application or proceeding.

(2) A licensee operating by virtue ofthis paragraph shall, after the date ofexpiration specified in the license,post, in addition to the original li-cense, any acknowledgment receivedfrom the Commission that the renewalapplication has been accepted for filingor a signed copy of the application forrenewal of license which has been sub-mitted by the licensee, or in servicesother than broadcast and common car-rier, a statement certifying that the li-censee has mailed or filed a renewal ap-plication, specifying the date of mail-ing or filing.

(b) Where there is pending before theCommission at the time of expirationof license any proper and timely appli-cation for renewal or extension of theterm of a license with respect to anyactivity not of a continuing nature, theCommission may in its discretiongrant a temporary extension of such li-cense pending determination of suchapplication. No such temporary exten-sion shall be construed as a finding bythe Commission that the operation ofany radio station thereunder will servethe public interest, convenience, or ne-cessity beyond the express terms ofsuch temporary extension of license,nor shall such temporary extension inany way affect or limit the action ofthe Commission with respect to anypending application or proceeding.

(c) Except where an instrument ofauthorization clearly states on its facethat it relates to an activity not of acontinuing nature, or where the non-continuing nature is otherwise clearlyapparent upon the face of the author-ization, all licenses issued by the Com-mission shall be deemed to be relatedto an activity of a continuing nature.

(5 U.S.C. 558)

§ 1.65 Substantial and significantchanges in information furnishedby applicants to the Commission.

(a) Each applicant is responsible forthe continuing accuracy and complete-ness of information furnished in apending application or in Commissionproceedings involving a pending appli-cation. Except where paragraph (b) ofthis section applies, whenever the in-formation furnished in the pending ap-plication is no longer substantially ac-curate and complete in all significantrespects, the applicant shall as prompt-ly as possible and in any event within30 days, unless good cause is shown,amend or request the amendment of hisapplication so as to furnish such addi-tional or corrected information as maybe appropriate. Except where para-graph (b) of this section applies, when-ever there has been a substantialchange as to any other matter whichmay be of decisional significance in aCommission proceeding involving thepending application, the applicantshall as promptly as possible and inany event within 30 days, unless goodcause is shown, submit a statementfurnishing such additional or correctedinformation as may be appropriate,which shall be served upon parties ofrecord in accordance with § 1.47. Wherethe matter is before any court for re-view, statements and requests toamend shall in addition be served uponthe Commission’s General Counsel. Forthe purposes of this section, an applica-tion is ‘‘pending’’ before the Commis-sion from the time it is accepted forfiling by the Commission until a Com-mission grant or denial of the applica-tion is no longer subject to reconsider-ation by the Commission or to reviewby any court.

(b) Changes in information relatingto § 1.1622, lottery preferences, must befurnished to the Commission no morethan 7 days after the changes occuruntil: (1) In the case of a non-mutuallyexclusive application, the Commissionreleases the Public Notice proposingthe application for grant; or (2) in thecase of a mutually exclusive applica-tion, the Commission releases the final


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Public Notice announcing the accept-ance of the last-filed mutually exclu-sive application.

(c) All broadcast permittees and li-censees must report annually to theCommission any adverse finding or ad-verse final action taken by any courtor administrative body that involvesconduct bearing on the permittee’s orlicensee’s character qualifications andthat would be reportable in connectionwith an application for renewal as re-flected in the renewal form. If a reportis required by this paragraph(s), itshall be filed on the anniversary of thedate that the licensee’s renewal appli-cation is required to be filed, exceptthat licensees owning multiple stationswith different anniversary dates needfile only one report per year on the an-niversary of their choice, provided thattheir reports are not more than oneyear apart. Permittees and licenseesbear the obligation to make diligent,good faith efforts to become knowl-edgeable of any such reportable adju-dicated misconduct.

NOTE: The terms adverse finding and adversefinal action as used in paragraph (c) of thissection include adjudications made by an ul-timate trier of fact, whether a governmentagency or court, but do not include factualdeterminations which are subject to reviewde novo unless the time for taking such re-view has expired under the relevant proce-dural rules. The pendency of an appeal of anadverse finding or adverse final action doesnot relieve a permittee or licensee from itsobligation to report the finding or action.

[48 FR 27200, June 13, 1983, as amended at 55FR 23084, June 6, 1990; 56 FR 25635, June 5,1991; 56 FR 44009, Sept. 6, 1991; 57 FR 47412,Oct. 16, 1992]

§ 1.68 Action on application for licenseto cover construction permit.

(a) An application for license by thelawful holder of a construction permitwill be granted without hearing wherethe Commission, upon examination ofsuch application, finds that all theterms, conditions, and obligations setforth in the application and permithave been fully met, and that no causeor circumstance arising or first comingto the knowledge of the Commissionsince the granting of the permit would,in the judgment of the Commission,make the operation of such stationagainst the public interest.

(b) In the event the Commission isunable to make the findings in para-graph (a) of this section, the Commis-sion will designate the application forhearing upon specified issues.

(Sec. 319, 48 Stat. 1089, as amended; 47 U.S.C.319)

§ 1.77 Detailed application procedures;cross references.

The application procedures set forthin §§ 1.61 through 1.68 are general in na-ture. More detailed procedures are setforth in this chapter as follows:

(a) Rules governing applications forauthorizations in the Broadcast RadioServices are set forth in subpart D ofthis part.

(b) Rules governing applications forauthorizations in the Common CarrierRadio Services are set forth in subpartE of this part.

(c) Rules governing applications forauthorizations in the Private RadioServices are set forth in subpart F ofthis part.

(d) Rules governing applications forauthorizations in the ExperimentalRadio Services (other than broadcast)are set forth in part 5 of this chapter.

(e) Rules governing applications forauthorizations in the Domestic PublicRadio Services are set forth in part 21of this chapter.

(f) Rules governing applications forauthorizations in the Industrial, Sci-entific, and Medical Service are setforth in part 18 of this chapter.

(g) Rules governing applications fortype approval and type acceptance ofequipment are set forth in part 2, sub-part F, of this chapter.

(h) Rules governing applications forcommercial radio operator licenses areset forth in part 13 of this chapter.

(i) Rules governing applications forauthorizations in the Common Carrierand Private Radio terrestrial micro-wave services and Local MultipointDistribution Services are set out inpart 101 of this chapter.

[28 FR 12415, Nov. 22, 1963, as amended at 44FR 39180, July 5, 1979; 47 FR 53378, Nov. 26,1982; 61 FR 26670, May 28, 1996; 62 FR 23162,Apr. 29, 1997]


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MISCELLANEOUS PROCEEDINGS

§ 1.80 Forfeiture proceedings.(a) Persons against whom and viola-

tions for which a forfeiture may be as-sessed. A forfeiture penalty may be as-sessed against any person found tohave:

(1) Willfully or repeatedly failed tocomply substantially with the termsand conditions of any license, permit,certificate, or other instrument of au-thorization issued by the Commission;

(2) Willfully or repeatedly failed tocomply with any of the provisions ofthe Communications Act of 1934, asamended; or of any rule, regulation ororder issued by the Commission underthat Act or under any treaty, conven-tion, or other agreement to which theUnited States is a party and which isbinding on the United States;

(3) Violated any provision of section317(c) or 508(a) of the CommunicationsAct; or

(4) Violated any provision of section1304, 1343, or 1464 of Title 18, UnitedStates Code.

A forfeiture penalty assessed underthis section is in addition to any otherpenalty provided for by the Commu-nications Act, except that the pen-alties provided for in paragraphs (b)(1),(b)(2) and (b)(3) of this section shall notapply to conduct which is subject to aforfeiture penalty under sections 202(c),203(e), 205(b), 214(d), 219(b), 220(d),223(b), 362(a), 362(b), 386(a), 386(b),503(b), 506, and 634 of the Communica-tions Act. The remaining provisions ofthis section are applicable to such con-duct.

(b) Limits on the amount of forfeitureassessed. (1) If the violator is a broad-cast station licensee or permittee, acable television operator, or an appli-cant for any broadcast or cable tele-vision operator license, permit, certifi-cate, or other instrument of authoriza-tion issued by the Commission, exceptas otherwise noted in this paragraph,the forfeiture penalty under this sec-tion shall not exceed $27,500 for eachviolation or each day of a continuingviolation, except that the amount as-sessed for any continuing violationshall not exceed a total of $275,000 forany single act or failure to act de-

scribed in paragraph (a) of this section.There is no limit on forfeiture assess-ments for EEO violations by cable op-erators that occur after notification bythe Commission of a potential viola-tion. See section 634(f)(2) of the Com-munications Act.

(2) If the violator is a common car-rier subject to the provisions of theCommunications Act or an applicantfor any common carrier license, per-mit, certificate, or other instrument ofauthorization issued by the Commis-sion, the amount of any forfeiture pen-alty determined under this sectionshall not exceed $110,000 for each viola-tion or each day of a continuing viola-tion, except that the amount assessedfor any continuing violation shall notexceed a total of $1,100,000 for any sin-gle act or failure to act described inparagraph (a) of this section.

(3) In any case not covered in para-graphs (b)(1) or (b)(2) of this section,the amount of any forfeiture penaltydetermined under this section shall notexceed $11,000 for each violation oreach day of a continuing violation, ex-cept that the amount assessed for anycontinuing violation shall not exceed atotal of $82,500 for any single act orfailure to act described in paragraph(a) of this section.

NOTE: For information concerning noticesof apparent liability and notices of oppor-tunity for hearing, see paragraphs (e), (f),and (g) of this section.

(4) Factors considered in determiningthe amount of the forfeiture penalty. Indetermining the amount of the forfeit-ure penalty, the Commission or its des-ignee will take into account the na-ture, circumstances, extent and grav-ity of the violations and, with respectto the violator, the degree of culpabil-ity, any history of prior offenses, abil-ity to pay, and such other matters asjustice may require.

Note to paragraph (b)(4):

GUIDELINES FOR ASSESSING FORFEITURES

The Commission and its staff may usethese guidelines in particular cases. TheCommission and its staff retain the discre-tion to issue a higher or lower forfeiturethan provided in the guidelines, to issue noforfeiture at all, or to apply alternative oradditional sanctions as permitted by thestatute. The forfeiture ceiling per violationor per day for a continuing violation stated


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in Section 503 of the Communications Actand the Commission’s Rules are $25,000 forbroadcasters and cable operators or appli-cants, $100,000 for common carriers or appli-cants, and $10,000 for all others. These baseamounts listed are for a single violation orsingle day of a continuing violation. 47U.S.C. 503(b)(2); 47 CFR 1.80. For continuingviolations involving a single act or failure toact, the statute limits the forfeiture to$250,000 for broadcasters and cable operatorsor applicants, $1,000,000 for common carriersor applicants, and $75,000 for all others. Id.Pursuant to the Debt Collection Improve-ment Act of 1996 (DCIA), Public Law 104–134,section 31001, 110 Stat. 1321 (1996), civil mone-tary penalties assessed by the federal gov-ernment, whether set by statutory maximaor specific dollar amounts as provided byfederal law, must be adjusted for inflation atleast every four years based on the formulaoutlined in the DCIA. Thus, the statutorymaxima increased to $27,500 for broadcastersand cable operators or applicants; $110,000 forcommon carriers or applicants, and $11,000for others. For continuing violations, thestatutory maxima increased to $27,500 forbroadcasters, cable operators, or applicants;$1,100,000 for common carriers or applicants;and $82,500 for others. The increased statu-tory maxima became effective March 5, 1997.There is an upward adjustment factor for re-peated or continuous violations, see SectionII, infra. That upward adjustment is not nec-essarily applied on a per violation or per daybasis. Id. Unless Commission authorizationis required for the behavior involved, a Sec-tion 503 forfeiture proceeding against a non-licensee or non-applicant who is not a cableoperator or common carrier can only be ini-tiated for a second violation, after issuanceof a citation in connection with a first viola-tion. 47 U.S.C. 503(b)(5). A prior citation isnot required, however, for non-licensee towerowners who have previously received noticeof the obligations imposed by Section 303(q)and part 17 of the Commission’s rules fromthe Commission. Forfeitures issued underother sections of the Act are dealt with sepa-rately in Section III of this note.

Section I.—Base Amounts for Section 503Forfeitures

Forfeitures ViolationAmount

Misrepresentation/lack of candor ............................ (1)Construction and/or operation without an instru-

ment of authorization for the service ................... $10,000Failure to comply with prescribed lighting and/or

marking ................................................................ 10,000Violation of public file rules ..................................... 10,000Violation of political rules: reasonable access, low-

est unit charge, equal opportunity, and discrimi-nation ................................................................... 9,000

Unauthorized substantial transfer of control ........... 8,000Violation of children’s television commercialization

or programming requirements ............................. 8,000

Forfeitures ViolationAmount

Violations of rules relating to distress and safetyfrequencies ........................................................... 8,000

False distress communications ............................... 8,000EAS equipment not installed or operational ............ 8,000Alien ownership violation ......................................... 8,000Failure to permit inspection ..................................... 7,000Transmission of indecent/obscene materials .......... 7,000Interference .............................................................. 7,000Importation or marketing of unauthorized equip-

ment ..................................................................... 7,000Exceeding of authorized antenna height ................. 5,000Fraud by wire, radio or television ............................ 5,000Unauthorized discontinuance of service ................. 5,000Use of unauthorized equipment .............................. 5,000Exceeding power limits ............................................ 4,000Failure to respond to Commission communications 4,000Violation of sponsorship ID requirements ............... 4,000Unauthorized emissions .......................................... 4,000Using unauthorized frequency ................................. 4,000Failure to engage in required frequency coordina-

tion ....................................................................... 4,000Construction or operation at unauthorized location 4,000Violation of requirements pertaining to broadcast-

ing of lotteries or contests ................................... 4,000Violation of transmitter control and metering re-

quirements ........................................................... 3,000Failure to file required forms or information ............ 3,000Failure to make required measurements or con-

duct required monitoring ...................................... 2,000Failure to provide station ID .................................... 1,000Unauthorized pro forma transfer of control ............. 1,000Failure to maintain required records ....................... 1,000

1 Statutory Maximum for each Service.

Violations Unique to the Service

Violation Services affected Amount

Unauthorized conver-sion of long distancetelephone service.

Common Carrier .......... $40,000

Violation of operatorservices requirements.

Common Carrier .......... 7,000

Violation of pay-per-callrequirements.

Common Carrier .......... 7,000

Failure to implementrate reduction or re-fund order.

Cable ............................ 7,500

Violation of cable pro-gram access rules.

Cable ............................ 7,500

Violation of cable leasedaccess rules.

Cable ............................ 7,500

Violation of cable cross-ownership rules.

Cable ............................ 7,500

Violation of cable broad-cast carriage rules.

Cable ............................ 7,500

Violation of pole attach-ment rules.

Cable ............................ 7,500

Failure to maintain di-rectional pattern with-in prescribed param-eters.

Broadcast ..................... 7,000

Violation of main studiorule.

Broadcast ..................... 7,000

Violation of broadcasthoax rule.

Broadcast ..................... 7,000

AM tower fencing .......... Broadcast ..................... 7,000Broadcasting telephone

conversations withoutauthorization.

Broadcast ..................... 4,000


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Violation Services affected Amount

Violation of enhancedunderwriting require-ments.

Broadcast ..................... 2,000

Section II. Adjustment Criteria for Section 503Forfeitures

Upward Adjustment Criteria

(1) Egregious misconduct.(2) Ability to pay/relative disincentive.(3) Intentional violation.(4) Substantial harm.(5) Prior violations of any FCC require-

ments.(6) Substantial economic gain.(7) Repeated or continuous violation.

Downward Adjustment Criteria

(1) Minor violation.(2) Good faith or voluntary disclosure.(3) History of overall compliance.(4) Inability to pay.

Section III. Non-Section 503 Forfeitures ThatAre Affected by the Downward AdjustmentFactors

Unlike Section 503 of the Act, which estab-lishes maximum forfeiture amounts, othersections of the Act, with one exception, stateprescribed amounts of forfeitures for viola-tions of the relevant section. These amountsare then subject to mitigation or remissionunder Section 504 of the Act. The one excep-tion is Section 223 of the Act, which providesa maximum of $50,000 per day. For conven-ience, the Commission will treat the $50,000set forth in Section 223 as if it were a pre-scribed base amount, subject to downwardadjustments. The following amounts wereadjusted for inflation pursuant to the DebtCollection Improvement Act of 1996 (DCIA)Public Law 104–134, section 31001, 110 Stat1321 (1996). The new amounts became effec-tive on March 5, 1997. These non-Section 503forfeitures may be adjusted downward usingthe ‘‘Downward Adjustment Criteria’’ shownfor Section 503 forfeitures in Section II ofthis note.

Violation Statutoryamount ($)

Sec. 202(c) Common Carrier Discrimination .... 6,600 330/day

Sec. 203(e) Common Carrier Tariffs ................. 6,600 330/day

Sec. 205(b) Common Carrier Prescriptions ...... 13,200Sec. 214(d) Common Carrier Line Extensions 1,200/daySec. 219(b) Common Carrier Reports .............. 1,200Sec. 220(d) Common Carrier Records & Ac-

counts ............................................................. 6,600/daySec. 223(b) Dial-a-Porn ..................................... 55,000

maximum/day

Sec. 364(a) Ship Station Inspection .................. 5,500(owner)

Violation Statutoryamount ($)

Sec. 364(b) Ship Station Inspection .................. 1,100(vesselmaster)

Sec. 386(a) Forfeitures ...................................... 5,500/day(owner)

Sec. 386(b) Forfeitures ...................................... 1,100(vesselmaster)

Sec. 634 Cable EEO ......................................... 500/day

(5) Inflation adjustments to the maxi-mum forfeiture amount. (i) Pursuant tothe Debt Collection Improvement Actof 1996, Public Law 104–134 (110 Stat.1321–358), which amends the FederalCivil Monetary Penalty Inflation Ad-justment Act of 1990, Public Law 101–410 (104 Stat. 890; 28 U.S.C. 2461 note),the statutory maximum amount of aforfeiture penalty assessed under thissection shall be adjusted for inflationat least once every four years using thefollowing formula. First, obtain the in-flation factor by dividing the CPI forJune of the preceding year by the CPIfor June of the year the forfeiture waslast set or adjusted. Then, multiply theinflation factor by the statutory maxi-mum amount. Round off this resultusing the rules in paragraph (b)(5)(ii) ofthis section. Add the rounded result tothe statutory maximum forfeiture pen-alty amount. The sum is the statutorymaximum amount, adjusted for infla-tion.

(ii) The rounding rules are as follows:(A) Round increase to the nearest

multiple of $10 if the penalty is from $0to $100;

(B) Round increase to the nearestmultiple of $100 if the penalty is from$101 to $1,000;

(C) Round increase to the nearestmultiple of $1,000 if the penalty is from$1,001 to $10,000;

(D) Round increase to the nearestmultiple of $5,000 if the penalty is from$10,001 to $100,000;

(E) Round increase to the nearestmultiple of $10,000 if the penalty isfrom $100,001 to $200,000; or

(F) Round increase to the nearestmultiple of $25,000 if the penalty is over$200,001.

(iii) The first application of the infla-tion adjustments required by PublicLaw 104–134 results in the following ad-justments to the statutory forfeitures


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currently authorized by the Commu-nications Act:

U.S. Code citation

Currentstatutorymaximumpenalty

Maximumpenalty afterPublic Law104–134

adjustment

47 USC 202(c) ........................... $6,000 $6,600300 330

47 USC 203(e) .......................... 6,000 6,600300 330

47 USC 205(b) .......................... 12,000 13,20047 USC 214(d) .......................... 1,200 1,20047 USC 219(b) .......................... 1,200 1,20047 USC 220(d) .......................... 6,000 6,60047 USC 223(b) .......................... 50,000 55,00047 USC 362(a) .......................... 5,000 5,50047 USC 362(b) .......................... 1,000 1,10047 USC 386(a) .......................... 5,000 5,50047 USC 386(b) .......................... 1,000 1,10047 USC 503(b)(2)(A) ................. 25,000 27,500

250,000 275,00047 USC 503(b)(2)(B) ................. 100,000 110,000

1,000,000 1,100,00047 USC 503(b)(2)(C) ................. 10,000 11,000

75,000 82,50047 USC 506(a) .......................... 500 55047 USC 506(b) .......................... 100 11047 USC 554 ............................... 500 500

NOTE: Pursuant to Public Law 104–134, the first inflationadjustment cannot exceed 10 percent of the statutory maxi-mum amount.

(c) Limits on the time when a proceed-ing may be initiated. (1) In the case of abroadcast station, no forfeiture penaltyshall be imposed if the violation oc-curred more than 1 year prior to the is-suance of the appropriate notice orprior to the date of commencement ofthe current license term, whichever isearlier. For purposes of this paragraph,‘‘date of commencement of the currentlicense term’’ means the date of com-mencement of the last term of licensefor which the licensee has been granteda license by the Commission. A sepa-rate license term shall not be deemedto have commenced as a result of con-tinuing a license in effect under sec-tion 307(c) pending decision on an ap-plication for renewal of the license.

(2) In the case of a forfeiture imposedagainst a carrier under sections 202(c),203(e), and 220(d), no forfeiture will beimposed if the violation occurred morethan 5 years prior to the issuance of anotice of apparent liability.

(3) In all other cases, no penalty shallbe imposed if the violation occurredmore than 1 year prior to the date onwhich the appropriate notice is issued.

(d) Preliminary procedure in some cases;citations. No forfeiture penalty shall beimposed upon any person under this

section, if such person does not hold alicense, permit, certificate, or otherauthorization issued by the Commis-sion, and if such person is not an appli-cant for a license, permit, certificate,or other authorization issued by theCommission, unless, prior to the issu-ance of the appropriate notice, suchperson: (1) Is sent a citation recitingthe violation charged; (2) is given areasonable opportunity (usually 30days) to request a personal interviewwith a Commission official, at the fieldoffice which is nearest to such person’splace of residence; and (3) subsequentlyengages in conduct of the type de-scribed in the citation. However, a for-feiture penalty may be imposed, if suchperson is engaged in (and the violationrelates to) activities for which a li-cense, permit, certificate, or other au-thorization is required or if such per-son is a cable television operator, or inthe case of violations of section 303(q),if the person involved is a nonlicenseetower owner who has previously re-ceived notice of the obligations im-posed by section 303(q) from the Com-mission or the permittee or licenseewho uses that tower. Paragraph (c) ofthis section does not limit the issuanceof citations. When the requirements ofthis paragraph have been satisfied withrespect to a particular violation by aparticular person, a forfeiture penaltymay be imposed upon such person forconduct of the type described in the ci-tation without issuance of an addi-tional citation.

(e) Alternative procedures. In the dis-cretion of the Commission, a forfeitureproceeding may be initiated either: (1)By issuing a notice of apparent liabil-ity, in accordance with paragraph (f) ofthis section, or (2) a notice of oppor-tunity for hearing, in accordance withparagraph (g).

(f) Notice of apparent liability. Beforeimposing a forfeiture penalty under theprovisions of this paragraph, the Com-mission or its designee will issue awritten notice of apparent liability.

(1) Content of notice. The notice of ap-parent liability will:

(i) Identify each specific provision,term, or condition of any act, rule, reg-ulation, order, treaty, convention, orother agreement, license, permit, cer-tificate, or instrument of authorization


115


which the respondent has apparentlyviolated or with which he has failed tocomply,

(ii) Set forth the nature of the act oromission charged against the respond-ent and the facts upon which suchcharge is based,

(iii) State the date(s) on which suchconduct occurred, and

(iv) Specify the amount of the appar-ent forfeiture penalty.

(2) Delivery. The notice of apparent li-ability will be sent to the respondent,by certified mail, at his last known ad-dress (see § 1.5).

(3) Response. The respondent will beafforded a reasonable period of time(usually 30 days from the date of thenotice) to show, in writing, why a for-feiture penalty should not be imposedor should be reduced, or to pay the for-feiture. Any showing as to why the for-feiture should not be imposed or shouldbe reduced shall include a detailed fac-tual statement and such documenta-tion and affidavits as may be pertinent.

(4) Forfeiture order. If the proposedforfeiture penalty is not paid in full inresponse to the notice of apparent li-ability, the Commission, upon consid-ering all relevant information avail-able to it, will issue an order cancelingor reducing the proposed forfeiture orrequiring that it be paid in full andstating the date by which the forfeit-ure must be paid.

(5) Judicial enforcement of forfeitureorder. If the forfeiture is not paid, thecase will be referred to the Departmentof Justice for collection under section504(a) of the Communications Act.

(g) Notice of opportunity for hearing.The procedures set out in this para-graph will ordinarily be followed onlywhen a hearing is being held for somereason other than the assessment of aforfeiture (such as, to determinewhether a renewal application shouldbe granted) and a forfeiture is to beconsidered as an alternative or in addi-tion to any other Commission action.However, these procedures may be fol-lowed whenever the Commission, in itsdiscretion, determines that they willbetter serve the ends of justice.

(1) Before imposing a forfeiture pen-alty under the provisions of this para-graph, the Commission will issue a no-tice of opportunity for hearing. The

hearing will be a full evidentiary hear-ing before an administrative law judge,conducted under procedures set out insubpart B of this part, including proce-dures for appeal and review of initialdecisions. A final Commission order as-sessing a forfeiture under the provi-sions of this paragraph is subject to ju-dicial review under section 402(a) of theCommunications Act.

(2) If, after a forfeiture penalty is im-posed and not appealed or after a courtenters final judgment in favor of theCommission, the forfeiture is not paid,the Commission will refer the matterto the Department of Justice for col-lection. In an action to recover the for-feiture, the validity and appropriate-ness of the order imposing the forfeit-ure are not subject to review.

(3) Where the possible assessment ofa forfeiture is an issue in a hearingcase to determine which pending appli-cation should be granted, and the ap-plicant facing a potential forfeiture isdismissed pursuant to a settlementagreement or otherwise, and the pre-siding judge has not made a determina-tion on the forfeiture issue, the orderof dismissal shall be forwarded to theattention of the full Commission.Within the time provided by § 1.117, theCommission may, on its own motion,proceed with a determination of wheth-er a forfeiture against the dismissingapplicant is warranted. If the Commis-sion so proceeds, it will provide the ap-plicant with a reasonable opportunityto respond to the forfeiture issue (seeparagraph (f)(3) of this section) andmake a determination under the proce-dures outlined in paragraph (f) of thissection.

(h) Payment. The forfeiture should bepaid by check or money order drawn tothe order of the Federal Communica-tions Commission. The Commissiondoes not accept responsibility for cashpayments sent through the mails. Thecheck or money order should be mailedto: Federal Communications Commis-sion, P.O. Box 73482, Chicago, Illinois60673–7482.

(i) Remission and mitigation. In its dis-cretion, the Commission, or its des-ignee, may remit or reduce any forfeit-ure imposed under this section. Afterissuance of a forfeiture order, any re-quest that it do so shall be submitted


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47 CFR Ch. I (10–1–97 Edition)§ 1.83

as a petition for reconsideration pursu-ant to § 1.106.

(j) Effective date. Amendments toparagraph (b) of this section imple-menting Pub. L. No. 101–239 are effec-tive December 19, 1989.

[43 FR 49308, Oct. 23, 1978, as amended at 48FR 15631, Apr. 12, 1983; 50 FR 40855, Oct. 7,1985; 55 FR 25605, June 22, 1990; 56 FR 25638,June 5, 1991; 57 FR 23161, June 2, 1992; 57 FR47006, Oct. 14, 1992; 57 FR 48333, Oct. 23, 1992;58 FR 6896, Feb. 3, 1993; 58 FR 27473, May 10,1993; 62 FR 4918, Feb. 3, 1997; 62 FR 43475, Aug.14, 1997]

EFFECTIVE DATE NOTE: At 62 FR 43475, Aug.14, 1997, the note to paragraph (b)(4) wasadded, effective Oct. 14, 1997.

§ 1.83 Applications for radio operatorlicenses.

(a) Application filing procedures foramateur radio operator licenses are setforth in part 97 of this chapter.

(b) Application filing procedures forcommercial radio operator licenses areset forth in part 13 of this chapter. De-tailed information about applicationforms, filing procedures, and where tofile applications for commercial radiooperator licenses is contained in thebulletin ‘‘Commercial Radio OperatorLicenses and Permits.’’ This bulletin isavailable from the Private Radio Bu-reau, Licensing Division, Consumer As-sistance Branch, 1270 Fairfield Road,Gettysburg, PA 17325–7245.

[47 FR 53378, Nov. 26, 1982, as amended at 58FR 13021, Mar. 9, 1993]

§ 1.84 Procedure with respect to com-mercial radio operator license ap-plications.

(a) Upon acceptance of an applicationfor a commercial radio operator li-cense, filed in accordance with part 13of this chapter, an examination, if re-quired, is conducted. If the applicant isfound qualified and eligible in all re-spects, the license will be issued. If ad-ditional information is necessary to de-termine an applicant’s qualificationsor eligibility, or if it appears that agrant of an application would not servethe public interest, the applicant willbe notified in writing and given an op-portunity to provide additional perti-nent information in writing. If, fromthe information available, it appearsthat the applicant is not qualified or is

ineligible, or that a grant of the appli-cation would not serve the public inter-est, the applicant will be advised there-of in writing and given an opportunityto request, within a specified period oftime, that the application be set forhearing. If the applicant does not re-quest, within the specified period, thatthe application be set for hearing, theapplication will be denied.

(b)–(c) [Reserved](d) Failure to prosecute an applica-

tion, or failure to respond to officialcorrespondence or request for addi-tional information, will be cause fordismissal. Such dismissal will be with-out prejudice where an application hasnot yet been designated for hearing;such dismissal may be made with prej-udice after an application has been des-ignated for hearing.

(Sec. 303(l), 48 Stat. 1082, as amended; 47U.S.C. 303(l))

[29 FR 15965, Nov. 24, 1964, as amended at 47FR 53378, Nov. 26, 1982]

§ 1.85 Suspension of operator licenses.

Whenever grounds exist for suspen-sion of an operator license, as providedin section 303(m) of the Communica-tions Act, the Chief of the PrivateRadio Bureau, with respect to amateurand commercial radio operator li-censes, may issue an order suspendingthe operator license. No order of sus-pension of any operator’s license shalltake effect until 15 days’ notice inwriting of the cause for the proposedsuspension has been given to the opera-tor licensee, who may make writtenapplication to the Commission at anytime within the said 15 days for a hear-ing upon such order. The notice to theoperator licensee shall not be effectiveuntil actually received by him, andfrom that time he shall have 15 days inwhich to mail the said application. Inthe event that physical conditions pre-vent mailing of the application beforethe expiration of the 15-day period, theapplication shall then be mailed assoon as possible thereafter, accom-panied by a satisfactory explanation ofthe delay. Upon receipt by the Commis-sion of such application for hearing,said order of suspension shall be des-ignated for hearing by the Chief, Pri-vate Radio Bureau and said suspension


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shall be held in abeyance until the con-clusion of the hearing. Upon the con-clusion of said hearing, the Commis-sion may affirm, modify, or revoke saidorder of suspension. If the license is or-dered suspended, the operator shallsend his operator license to the officeof the Commission in Washington, DC,on or before the effective date of theorder, or, if the effective date haspassed at the time notice is received,the license shall be sent to the Com-mission forthwith.

(Sec. 303(m), 48 Stat. 1082, as amended; 47U.S.C. 303(m))

[28 FR 10415, Nov. 22, 1963, as amended at 44FR 39180, July 5, 1979; 58 FR 13021, Mar. 9,1993]

§ 1.87 Modification of license or con-struction permit on motion of theCommission.

(a) Whenever it appears that a sta-tion license or construction permitshould be modified, the Commissionshall notify the licensee or permitteein writing of the proposed action andreasons therefor, and afford the li-censee or permittee at least thirtydays to protest such proposed order ofmodification, except that, where safetyof life or property is involved, the Com-mission may by order provide a shorterperiod of time.

(b) The notification required in para-graph (a) of this section may be effec-tuated by a notice of proposed rulemaking in regard to a modification oraddition of an FM or television channelto the Table of Allotments (§§ 73.202 and73.504) or Table of Assignments(§ 73.606). The Commission shall send acopy of any such notice of proposedrule making to the affected licensee orpermittee by certified mail, return re-ceipt requested.

(c) Any other licensee or permitteewho believes that its license or permitwould be modified by the proposed ac-tion may also protest the proposed ac-tion before its effective date.

(d) Any protest filed pursuant to thissection shall be subject to the require-ments of section 309 of the Communica-tions Act of 1934, as amended, for peti-tions to deny.

(e) In any case where a hearing isconducted pursuant to the provisionsof this section, both the burden of pro-

ceeding with the introduction of evi-dence and the burden of proof shall beupon the Commission except that, withrespect to any issue that pertains tothe question of whether the proposedaction would modify the license or per-mit of a person filing a protest pursu-ant to paragraph (c) of this section,such burdens shall be as described bythe Commission.

(f) In order to utilize the right to ahearing and the opportunity to appearand give evidence upon the issues spec-ified in any hearing order, the licenseeor permittee, in person or by attorney,shall, within the period of time as maybe specified in the hearing order, filewith the Commission a written state-ment stating that he or she will appearat the hearing and present evidence onthe matters specified in the hearingorder.

(g) The right to file a protest or havea hearing shall, unless good cause isshown in a petition to be filed not laterthan 5 days before the lapse of timespecified in paragraph (a) or (f) of thissection, be deemed waived:

(1) In case of failure to timely file theprotest as required by paragraph (a) ofthis section or a written statement asrequired by paragraph (f) of this sec-tion.

(2) In case of filing a written state-ment provided for in paragraph (f) ofthis section but failing to appear at thehearing, either in person or by counsel.

(h) Where the right to file a protestor have a hearing is waived, the li-censee or permittee will be deemed tohave consented to the modification asproposed and a final decision may be is-sued by the Commission accordingly.Irrespective of any waiver as providedfor in paragraph (g) of this section orfailure by the licensee or permittee toraise a substantial and material ques-tion of fact concerning the proposedmodification in his protest, the Com-mission may, on its own motion, des-ignate the proposed modification forhearing in accordance with this sec-tion.

(i) Any order of modification issuedpursuant to this section shall include astatement of the findings and thegrounds and reasons therefor, shall


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47 CFR Ch. I (10–1–97 Edition)§ 1.88

specify the effective date of the modi-fication, and shall be served on the li-censee or permittee.

[52 FR 22654, June 15, 1987]

§ 1.88 Predesignation pleading proce-dure.

In cases where an investigation isbeing conducted by the Commission inconnection with the operation of abroadcast station or a pending applica-tion for renewal of a broadcast license,the licensee may file a written state-ment to the Commission setting forthits views regarding the matters underinvestigation; the staff, in its discre-tion, may in writing, advise such li-censee of the general nature of the in-vestigation, and advise the licensee ofits opportunity to submit such a state-ment to the staff. Any filing by the li-censee will be forwarded to the Com-mission in conjunction with any staffmemorandum recommending that theCommission take action as a result ofthe invesigation. Nothing in this ruleshall supersede the application of ourex parte rules to situations described in§ 1.1203 of these rules.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066,1082, 1083; (47 U.S.C. 154, 303, 307))

[45 FR 65597, Oct. 3, 1980]

§ 1.89 Notice of violations.(a) Except in cases of willfulness or

those in which public health, interest,or safety requires otherwise, any per-son who holds a license, permit orother authorization appearing to haveviolated any provision of the Commu-nications Act or any provision of thischapter will, before revocation, suspen-sion, or cease and desist proceedingsare instituted, be served with a writtennotice calling these facts to his or herattention and requesting a statementconcerning the matter. FCC Form 793may be used for this purpose. The No-tice of Violation may be combined witha Notice of Apparent Liability to Mon-etary Forfeiture. In such event, not-withstanding the Notice of Violation,the provisions of § 1.80 apply and notthose of § 1.89.

(b) Within 10 days from receipt of no-tice or such other period as may bespecified, the recipient shall send awritten answer, in duplicate, directly

to the Commission office originatingthe official notice. If an answer cannotbe sent or an acknowledgment cannotbe made within such 10-day period byreason of illness or other unavoidablecircumstance, acknowledgment and an-swer shall be made at the earliest prac-ticable date with a satisfactory expla-nation of the delay.

(c) The answer to each notice shall becomplete in itself and shall not be ab-breviated by reference to other com-munications or answers to other no-tices. In every instance the answershall contain a statement of actiontaken to correct the condition or omis-sion complained of and to preclude itsrecurrence. In addition:

(1) If the notice relates to violationsthat may be due to the physical orelectrical characteristics of transmit-ting apparatus and any new apparatusis to be installed, the answer shallstate the date such apparatus was or-dered, the name of the manufacturer,and the promised date of delivery. Ifthe installation of such apparatus re-quires a construction permit, the filenumber of the application shall begiven, or if a file number has not beenassigned by the Commission, such iden-tification shall be given as will permitready identification of the application.

(2) If the notice of violation relatesto lack of attention to or improper op-eration of the transmitter, the nameand license number of the operator incharge (where applicable) shall begiven.

[48 FR 24890, June 3, 1983]

§ 1.91 Revocation and/or cease and de-sist proceedings; hearings.

(a) If it appears that a station licenseor construction permit should be re-voked and/or that a cease and desistorder should be issued, the Commissionwill issue an order directing the personto show cause why an order of revoca-tion and/or a cease and desist order, asthe facts may warrant, should not beissued.

(b) An order to show cause why anorder of revocation and/or a cease anddesist order should not be issued willcontain a statement of the matterswith respect to which the Commission


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is inquiring and will call upon the per-son to whom it is directed (the re-spondent) to appear before the Com-mission at a hearing, at a time andplace stated in the order, but not lessthan thirty days after the receipt ofsuch order, and given evidence uponthe matters specified in the order toshow cause. However, if safety of life orproperty is involved, the order to showcause may specify a hearing date lessthan thirty days from the receipt ofsuch order.

(c) To avail himself of such oppor-tunity for hearing, the respondent, per-sonally or by his attorney, shall filewith the Commission, within thirtydays of the service of the order or suchshorter period as may be specifiedtherein, a written appearance statingthat he will appear at the hearing andpresent evidence on the matters speci-fied in the order. The Commission inits discretion may accept a late ap-pearance. However, an appearance ten-dered after the specified time has ex-pired will not be accepted unless ac-companied by a petition stating withparticularity the facts and reasons re-lied on to justify such late filing. Suchpetition for acceptance of late appear-ance will be granted only if the Com-mission determines that the facts andreasons stated therein constitute goodcause for failure to file on time.

(d) Hearings on the matters specifiedin such orders to show cause shall ac-cord with the practice and procedureprescribed in this subpart and subpartB of this part, with the following ex-ceptions: (1) In all such revocation and/or cease and desist hearings, the bur-den of proceeding with the introduc-tion of evidence and the burden ofproof shall be upon the Commission;and (2) the Commission may specify ina show cause order, when the cir-cumstances of the proceeding requireexpedition, a time less than that pre-scribed in §§ 1.276 and 1.277 within whichthe initial decision in the proceedingshall become effective, exceptions tosuch initial decision must be filed, par-ties must file requests for oral argu-ment, and parties must file notice ofintention to participate in oral argu-ment.

(e) Correction of or promise to cor-rect the conditions or matters com-

plained of in a show cause order shallnot preclude the issuance of a ceaseand desist order. Corrections or prom-ises to correct the conditions or mat-ters complained of, and the past recordof the licensee, may, however, be con-sidered in determining whether a rev-ocation and/or a cease and desist ordershould be issued.

(f) Any order of revocation and/orcease and desist order issued afterhearing pursuant to this section shallinclude a statement of findings and thegrounds therefor, shall specify the ef-fective date of the order, and shall beserved on the person to whom suchorder is directed.


§ 1.92 Revocation and/or cease and de-sist proceedings; after waiver ofhearing.

(a) After the issuance of an order toshow cause, pursuant to § 1.91, callingupon a person to appear at a hearingbefore the Commission, the occurrenceof any one of the following events orcircumstances will constitute a waiverof such hearing and the proceedingthereafter will be conducted in accord-ance with the provisions of this sec-tion.

(1) The respondent fails to file atimely written appearance as pre-scribed in § 1.91(c) indicating that hewill appear at a hearing and presentevidence on the matters specified inthe order.

(2) The respondent, having filed atimely written appearance as pre-scribed in § 1.91(c), fails in fact to ap-pear in person or by his attorney at thetime and place of the duly scheduledhearing.

(3) The respondent files with theCommission, within the time specifiedfor a written appearance in § 1.91(c), awritten statement expressly waivinghis rights to a hearing.

(b) When a hearing is waived underthe provisions of paragraph (a) (1) or (3)of this section, a written statementsigned by the respondent denying orseeking to mitigate or justify the cir-cumstances or conduct complained ofin the order to show cause may be sub-mitted within the time specified in


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47 CFR Ch. I (10–1–97 Edition)§ 1.93

§ 1.91(c). The Commission in its discre-tion may accept a late statement. How-ever, a statement tendered after thespecified time has expired will not beaccepted unless accompanied by a peti-tion stating with particularity thefacts and reasons relied on to justifysuch late filing. Such petitions for ac-ceptance of a late statement will begranted only if the Commission deter-mines that the facts and reasons statedtherein constitute good cause for fail-ure to file on time.

(c) Whenever a hearing is waived bythe occurrence of any of the events orcircumstances listed in paragraph (a)of this section, the Chief Administra-tive Law Judge (or the presiding officerif one has been designated) shall, at theearliest practicable date, issue an orderreciting the events or circumstancesconstituting a waiver of hearing, ter-minating the hearing proceeding, andcertifying the case to the Commission.Such order shall be served upon the re-spondent.

(d) After a hearing proceeding hasbeen terminated pursuant to paragraph(c) of this section, the Commission willact upon the matters specified in theorder to show cause in the regularcourse of business. The Commissionwill determine on the basis of all theinformation available to it from anysource, including such further proceed-ings as may be warranted, if a revoca-tion order and/or a cease and desistorder should issue, and if so, will issuesuch order. Otherwise, the Commissionwill issue an order dismissing the pro-ceeding. All orders specified in thisparagraph will include a statement ofthe findings of the Commission and thegrounds and reasons therefor, willspecify the effective date thereof, andwill be served upon the respondent.

(e) Corrections or promise to correctthe conditions or matters complainedof in a show cause order shall not pre-clude the issuance of a cease and desistorder. Corrections or promises to cor-rect the conditions or matters com-plained of, and the past record of the li-censee, may, however, be considered indetermining whether a revocation and/or a cease and desist order should be is-sued.


[28 FR 12415, Nov. 22, 1963, as amended at 29FR 6443, May 16, 1964; 37 FR 19372, Sept. 20,1972]

§ 1.93 Consent orders.(a) As used in this subpart, a ‘‘con-

sent order’’ is a formal decree accept-ing an agreement between a party toan adjudicatory hearing proceedingheld to determine whether that partyhas violated statutes or Commissionrules or policies and the appropriateoperating Bureau, with regard to suchparty’s future compliance with suchstatutes, rules or policies, and dispos-ing of all issues on which the proceed-ing was designated for hearing. Theorder is issued by the officer designatedto preside at the hearing or (if no offi-cer has been designated) by the ChiefAdministrative Law Judge.

(b) Where the interests of timely en-forcement or compliance, the nature ofthe proceeding, and the public interestpermit, the Commission, by its operat-ing Bureaus, may negotiate a consentorder with a party to secure futurecompliance with the law in exchangefor prompt disposition of a matter sub-ject to administrative adjudicativeproceedings. Consent orders may not benegotiated with respect to matterswhich involve a party’s basic statutoryqualifications to hold a license (see 47U.S.C. 308 and 309).

[41 FR 14871, Apr. 8, 1976]

§ 1.94 Consent order procedures.(a) Negotiations leading to a consent

order may be initiated by the operatingBureau or by a party whose possibleviolations are issues in the proceeding.Negotiations may be initiated at anytime after designation of a proceedingfor hearing. If negotiations are initi-ated the presiding officer shall be noti-fied. Parties shall be prepared at theinitial prehearing conference to statewhether they are at that time willingto enter negotiations. See § 1.248(c)(7).If either party is unwilling to enter ne-gotiations, the hearing proceedingshall proceed. If the parties agree toenter negotiations, they will be af-forded an appropriate opportunity tonegotiate before the hearing is com-menced.


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(b) Other parties to the proceedingare entitled, but are not required, toparticipate in the negotiations, andmay join in any agreement which isreached.

(c) Every agreement shall containthe following:

(1) An admission of all jurisdictionalfacts;

(2) A waiver of the usual proceduresfor preparation and review of an initialdecision;

(3) A waiver of the right of judicialreview or otherwise to challenge orcontest the validity of the consentorder;

(4) A statement that the designationorder may be used in construing theconsent order;

(5) A statement that the agreementshall become a part of the record of theproceeding only if the consent order issigned by the presiding officer and thetime for review has passed without re-jection of the order by the Commission;

(6) A statement that the agreementis for purposes of settlement only andthat its signing does not constitute anadmission by any party of any viola-tion of law, rules or policy (see 18U.S.C. 6002); and

(7) A draft order for signature of thepresiding officer resolving by consent,and for the future, all issues specifiedin the designation order.

(d) If agreement is reached, it shallbe submitted to the presiding officer orChief Administrative Law Judge, asthe case may be, who shall either signthe order, reject the agreement, or sug-gest to the parties that negotiationscontinue on such portion of the agree-ment as he considers unsatisfactory oron matters not reached in the agree-ment. If he rejects the agreement, thehearing shall proceed. If he suggestsfurther negotiations, the hearing willproceed or negotiations will continue,depending on the wishes of parties tothe agreement. If he signs the consentorder, he shall close the record.

(e) Any party to the proceeding whohas not joined in any agreement whichis reached may appeal the consentorder under § 1.302, and the Commissionmay review the agreement on its ownmotion under the provisions of thatsection. If the Commission rejects theconsent order, the proceeding will be

remanded for further proceedings. Ifthe Commission does not reject theconsent order, it shall be entered in therecord as a final order and is subject tojudicial review on the initiative only ofparties to the proceeding who did notjoin in the agreement. The Commissionmay revise the agreement and consentorder. In that event, private parties tothe agreement may either accept therevision or withdraw from the agree-ment. If the party whose possible viola-tions are issues in the proceeding with-draws from the agreement, the consentorder will not be issued or made a partof the record, and the proceeding willbe remanded for further proceedings.

(f) The provisions of this sectionshall not alter any existing procedurefor informal settlement of any matterprior to designation for hearing (see,e.g., 47 U.S.C. 208) or for summary deci-sion after designation for hearing.

(g) Consent orders, pleadings relatingthereto, and Commission orders withrespect thereto shall be served on par-ties to the proceeding. Public noticewill be given of orders issued by an ad-ministrative law judge, the Chief Ad-ministrative Law Judge, or the Com-mission. Negotiating papers constitutework product, are available to partiesparticipating in negotiations, but arenot routinely available for public in-spection.

[41 FR 14871, Apr. 8, 1976]

§ 1.95 Violation of consent orders.

Violation of a consent order shallsubject the consenting party to anyand all sanctions which could havebeen imposed in the proceeding result-ing in the consent order if all of the is-sues in that proceeding had been de-cided against the consenting party andto any further sanctions for violationnoted as agreed upon in the consentorder. The Commission shall have theburden of showing that the consentorder has been violated in some (butnot in every) respect. Violation of theconsent order and the sanctions to beimposed shall be the only issues consid-ered in a proceeding concerning suchan alleged violation.

[41 FR 14871, Apr. 8, 1976]


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47 CFR Ch. I (10–1–97 Edition)§ 1.101

RECONSIDERATION AND REVIEW OF AC-TIONS TAKEN BY THE COMMISSION ANDPURSUANT TO DELEGATED AUTHORITY;EFFECTIVE DATES AND FINALITYDATES OF ACTIONS

§ 1.101 General provisions.Under section 5(c) of the Communica-

tions Act of 1934, as amended, the Com-mission is authorized, by rule or order,to delegate certain of its functions to apanel of commissioners, an individualcommissioner, an employee board, oran individual employee. Section0.201(a) of this chapter describes in gen-eral terms the basic categories of dele-gations which are made by the Com-mission. Subpart B of part 0 of thischapter sets forth all delegations whichhave been made by rule. Sections 1.102through 1.120 set forth procedural rulesgoverning reconsideration and reviewof actions taken pursuant to authoritydelegated under section 5(c) of theCommunications Act, and reconsider-ation of actions taken by the Commis-sion. As used in §§ 1.102 through 1.117,the term designated authority meansany person, panel, or board which hasbeen authorized by rule or order to ex-ercise authority under section 5(c) ofthe Communications Act.

[28 FR 12415, Nov. 22, 1963, as amended at 62FR 4170, Jan. 29, 1997]

§ 1.102 Effective dates of actions takenpursuant to delegated authority.

(a) Final actions following review of aninitial decision. (1) Final decisions of acommissioner, or panel of commis-sioners following review of an initialdecision shall be effective 40 days afterpublic release of the full text of suchfinal decision.

(2) If a petition for reconsideration ofsuch final decision is filed, the effect ofthe decision is stayed until 40 daysafter release of the final order dispos-ing of the petition.

(3) If an application for review ofsuch final decision is filed, or if theCommission on its own motion ordersthe record of the proceeding before itfor review, the effect of the decision isstayed until the Commission’s reviewof the proceeding has been completed.

(b) Non-hearing and interlocutory ac-tions. (1) Non-hearing or interlocutoryactions taken pursuant to delegated

authority shall, unless otherwise or-dered by the designated authority, beeffective upon release of the documentcontaining the full text of such action,or in the event such a document is notreleased, upon release of a public no-tice announcing the action in question.

(2) If a petition for reconsideration ofa non-hearing action is filed, the des-ignated authority may in its discretionstay the effect of its action pendingdisposition of the petition for reconsid-eration. Petitions for reconsiderationof interlocutory actions will not be en-tertained.

(3) If an application for review of anon-hearing or interlocutory action isfiled, or if the Commission reviews theaction on its own motion, the Commis-sion may in its discretion stay the ef-fect of any such action until its reviewof the matters at issue has been com-pleted.


§ 1.103 Effective dates of Commissionactions; finality of Commission ac-tions.

(a) Unless otherwise specified by lawor Commission rule (e.g. §§ 1.102 and1.427), the effective date of any Com-mission action shall be the date of pub-lic notice of such action as that latterdate is defined in § 1.4(b) of these rules:Provided, That the Commission may, onits own motion or on motion by anyparty, designate an effective date thatis either earlier or later in time thanthe date of public notice of such action.The designation of an earlier or latereffective date shall have no effect onany pleading periods.

(b) Notwithstanding any determina-tions made under paragraph (a) of thissection, Commission action shall bedeemed final, for purposes of seekingreconsideration at the Commission orjudicial review, on the date of publicnotice as defined in § 1.4(b) of theserules.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066,1082, 1083; 47 U.S.C. 154, 303, 307)

[46 FR 18556, Mar. 25, 1981]


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§ 1.104 Preserving the right of review;deferred consideration of applica-tion for review.

(a) The provisions of this sectionapply to all final actions taken pursu-ant to delegated authority, includingfinal actions taken by members of theCommission’s staff on nonhearing mat-ters. They do not apply to interlocu-tory actions of the Chief Administra-tive Law Judge in hearing proceedings,or to hearing designation orders issuedunder delegated authority. See §§ 0.351,1.106(a) and 1.115(e).

(b) Any person desiring Commissionconsideration of a final action takenpursuant to delegated authority shallfile either a petition for reconsider-ation or an application for review (butnot both) within 30 days from the dateof public notice of such action, as thatdate is defined in § 1.4(b) of these rules.The petition for reconsideration will beacted on by the designated authorityor referred by such authority to theCommission: Provided, That a petitionfor reconsideration of an order des-ignating a matter for hearing will inall cases be referred to the Commis-sion. The application for review will inall cases be acted upon by the Commis-sion.

NOTE: In those cases where the Commissiondoes not intend to release a document con-taining the full text of its action, it willstate that fact in the public notice announc-ing its action.

(c) If in any matter one party files apetition for reconsideration and a sec-ond party files an application for re-view, the Commission will withhold ac-tion on the application for review untilfinal action has been taken on the peti-tion for reconsideration.

(d) Any person who has filed a peti-tion for reconsideration may file an ap-plication for review within 30 daysfrom the date of public notice of suchaction, as that date is defined in § 1.4(b)of these rules. If a petition for recon-sideration has been filed, any personwho has filed an application for reviewmay: (1) Withdraw his application forreview, or (2) substitute an amendedapplication therefor.

NOTE: In those cases where the Commissiondoes not intend to release a document con-taining the full text of its action, it will

state that fact in the public notice announc-ing its action.


[28 FR 12415, Nov. 22, 1963, as amended at 41FR 14871, Apr. 8, 1976; 44 FR 60294, Oct. 19,1979; 46 FR 18556, Mar. 25, 1981; 62 FR 4170,Jan. 29, 1997]

§ 1.106 Petitions for reconsideration.(a)(1) Petitions requesting reconsid-

eration of a final Commission actionwill be acted on by the Commission.Petitions requesting reconsideration ofother final actions taken pursuant todelegated authority will be acted on bythe designated authority or referred bysuch authority to the Commission. Apetition for reconsideration of an orderdesignating a case for hearing will beentertained if, and insofar as, the peti-tion relates to an adverse ruling withrespect to petitioner’s participation inthe proceeding. Petitions for reconsid-eration of other interlocutory actionswill not be entertained. (For provisionsgoverning reconsideration of Commis-sion action in notice and comment rulemaking proceedings, see § 1.429. This§ 1.106 does not govern reconsiderationof such actions.)

(2) Within the period allowed for fil-ing a petition for reconsideration, anyparty to the proceeding may requestthe presiding officer to certify to theCommission the question as to wheth-er, on policy in effect at the time ofdesignation or adopted since designa-tion, and undisputed facts, a hearingshould be held. If the presiding officerfinds that there is substantial doubt,on established policy and undisputedfacts, that a hearing should be held, hewill certify the policy question to theCommission with a statement to thateffect. No appeal may be filed from anorder denying such a request. See also,§§ 1.229 and 1.251.

(b)(1) Subject to the limitations setforth in paragraph (b)(2) of this section,any party to the proceeding, or anyother person whose interests are ad-versely affected by any action taken bythe Commission or by the designatedauthority, may file a petition request-ing reconsideration of the actiontaken. If the petition is filed by a per-son who is not a party to the proceed-ing, it shall state with particularity


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47 CFR Ch. I (10–1–97 Edition)§ 1.106

the manner in which the person’s inter-ests are adversely affected by the ac-tion taken, and shall show good reasonwhy it was not possible for him to par-ticipate in the earlier stages of the pro-ceeding.

(2) Where the Commission has deniedan application for review, a petition forreconsideration will be entertainedonly if one or more of the following cir-cumstances is present:

(i) The petition relies on facts whichrelate to events which have occurred orcircumstances which have changedsince the last opportunity to presentsuch matters; or

(ii) The petition relies on facts un-known to petitioner until after his lastopportunity to present such matterswhich could not, through the exerciseof ordinary diligence, have beenlearned prior to such opportunity.

(3) A petition for reconsideration ofan order denying an application for re-view which fails to rely on new facts orchanged circumstances may be dis-missed by the staff as repetitious.

(c) A petition for reconsiderationwhich relies on facts not previouslypresented to the Commission or to thedesignated authority may be grantedonly under the following cir-cumstances:

(1) The facts fall within one or moreof the categories set forth in§ 1.106(b)(2); or

(2) The Commission or the designatedauthority determines that consider-ation of the facts relied on is requiredin the public interest.

(d)(1) The petition shall state withparticularity the respects in which pe-titioner believes the action taken bythe Commission or the designated au-thority should be changed. The peti-tion shall state specifically the form orrelief sought and, subject to this re-quirement, may contain alternative re-quests.

(2) The petition for reconsiderationshall also, where appropriate, cite thefindings of fact and/or conclusions oflaw which petitioner believes to be er-roneous, and shall state with particu-larity the respects in which he believessuch findings and conclusions should bechanged. The petition may requestthat additional findings of fact andconclusions of law be made.

(e) Where a petition for reconsider-ation is based upon a claim of elec-trical interference, under appropriaterules in this chapter, to an existingstation or a station for which a con-struction permit is outstanding, suchpetition, in addition to meeting theother requirements of this section,must be accompanied by an affidavit ofa qualified radio engineer. Such affida-vit shall show, either by following theprocedures set forth in this chapter fordetermining interference in the ab-sence of measurements, or by actualmeasurements made in accordancewith the methods prescribed in thischapter, that electrical interferencewill be caused to the station within itsnormally protected contour.

(f) The petition for reconsiderationand any supplement thereto shall befiled within 30 days from the date ofpublic notice of the final Commissionaction, as that date is defined in § 1.4(b)of these rules, and shall be served uponparties to the proceeding. The petitionfor reconsideration shall not exceed 25double spaced typewritten pages. Nosupplement or addition to a petitionfor reconsideration which has not beenacted upon by the Commission or bythe designated authority, filed after ex-piration of the 30 day period, will beconsidered except upon leave grantedupon a separate pleading for leave tofile, which shall state the groundstherefor.

(g) Oppositions to a petition for re-consideration shall be filed within 10days after the petition is filed, andshall be served upon petitioner and par-ties to the proceeding. Oppositionsshall not exceed 25 double spaced type-written pages.

(h) Petitioner may reply to opposi-tions within seven days after the lastday for filing oppositions, and any suchreply shall be served upon parties tothe proceeding. Replies shall not ex-ceed 10 double spaced typewrittenpages, and shall be limited to mattersraised in the opposition.

(i) Petitions for reconsideration, op-positions, and replies shall conform tothe requirements of §§ 1.49, 1.51, and 1.52and shall be submitted to the Sec-retary, Federal Communications Com-mission, Washington, D.C., 20554.


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(j) The Commission or designated au-thority may grant the petition for re-consideration in whole or in part ormay deny the petition. Its order willcontain a concise statement of the rea-sons for the action taken. Where thepetition for reconsideration relates toan instrument of authorization grantedwithout hearing, the Commission ordesignated authority will take such ac-tion within 90 days after the petition isfiled.

(k)(1) If the Commission or the des-ignated authority grants the petitionfor reconsideration in whole or in part,it may, in its decision:

(i) Simultaneously reverse or modifythe order from which reconsideration issought;

(ii) Remand the matter to a bureauor other Commission personnel forsuch further proceedings, including re-hearing, as may be appropriate; or

(iii) Order such other proceedings asmay be necessary or appropriate.

(2) If the Commission or designatedauthority initiates further proceedings,a ruling on the merits of the matterwill be deferred pending completion ofsuch proceedings. Following comple-tion of such further proceedings, theCommission or designated authoritymay affirm, reverse, or modify itsoriginal order, or it may set aside theorder and remand the matter for suchfurther proceedings, including rehear-ing, as may be appropriate.

(3) Any order disposing of a petitionfor reconsideration which reverses ormodifies the original order is subjectto the same provisions with respect toreconsideration as the original order.In no event, however, shall a rulingwhich denies a petition for reconsider-ation be considered a modification ofthe original order. A petition for recon-sideration of an order which has beenpreviously denied on reconsiderationmay be dismissed by the staff as repeti-tious.

NOTE: For purposes of this section, theword ‘‘order’’ refers to that portion of its ac-tion wherein the Commission announces itsjudgment. This should be distinguished fromthe ‘‘memorandum opinion’’ or other mate-rial which often accompany and explain theorder.

(l) No evidence other than newly dis-covered evidence, evidence which has

become available only since the origi-nal taking of evidence, or evidencewhich the Commission or the des-ignated authority believes should havebeen taken in the original proceedingshall be taken on any rehearing or-dered pursuant to the provisions of thissection.

(m) The filing of a petition for recon-sideration is not a condition precedentto judicial review of any action takenby the Commission or by the des-ignated authority, except where theperson seeking such review was not aparty to the proceeding resulting inthe action, or relies on questions offact or law upon which the Commissionor designated authority has been af-forded no opportunity to pass. (See§ 1.115(c).) Persons in those categorieswho meet the requirements of this sec-tion may qualify to seek judicial re-view by filing a petition for reconsider-ation.

(n) Without special order of the Com-mission, the filing of a petition for re-consideration shall not excuse any per-son from complying with or obeyingany decision, order, or requirement ofthe Commission, or operate in anymanner to stay or postpone the en-forcement thereof. However, upon goodcause shown, the Commission will staythe effectiveness of its order or re-quirement pending a decision on thepetition for reconsideration. (Thisparagraph applies only to actions ofthe Commission en banc. For provi-sions applicable to actions under dele-gated authority, see § 1.102.)

(Secs. 4, 303, 307, 405, 48 Stat., as amended,1066, 1082, 1083, 1095; 47 U.S.C. 154, 303, 307, 405)

[28 FR 12415, Nov. 22, 1963, as amended at 37FR 7507, Apr. 15, 1972; 41 FR 1287, Jan. 7, 1976;44 FR 60294, Oct. 19, 1979; 46 FR 18556, Mar. 25,1981; 62 FR 4170, Jan. 29, 1997]

§ 1.108 Reconsideration on Commis-sion’s own motion.

The Commission may, on its own mo-tion, set aside any action made ortaken by it within 30 days from thedate of public notice of such action, asthat date is defined in § 1.4(b) of theserules.


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47 CFR Ch. I (10–1–97 Edition)§ 1.110



§ 1.110 Partial grants; rejection anddesignation for hearing.

Where the Commission without ahearing grants any application in part,or with any privileges, terms, or condi-tions other than those requested, orsubject to any interference that mayresult to a station if designated appli-cation or applications are subsequentlygranted, the action of the Commissionshall be considered as a grant of suchapplication unless the applicant shall,within 30 days from the date on whichsuch grant is made or from its effectivedate if a later date is specified, filewith the Commission a written requestrejecting the grant as made. Upon re-ceipt of such request, the Commissionwill vacate its original action upon theapplication and set the application forhearing in the same manner as otherapplications are set for hearing.

§ 1.113 Action modified or set aside byperson, panel, or board.

(a) Within 30 days after public noticehas been given of any action taken pur-suant to delegated authority, the per-son, panel, or board taking the actionmay modify or set it aside on its ownmotion.

(b) Within 60 days after notice of anysanction imposed under delegated au-thority has been served on the personaffected, the person, panel, or boardwhich imposed the sanction may mod-ify or set it aside on its own motion.

(c) Petitions for reconsideration andapplications for review shall be di-rected to the actions as thus modified,and the time for filing such pleadingsshall be computed from the date uponwhich public notice of the modified ac-tion is given or notice of the modifiedsanction is served on the person af-fected.

§ 1.115 Application for review of actiontaken pursuant to delegated au-thority.

(a) Any person aggrieved by any ac-tion taken pursuant to delegated au-thority may file an application re-questing review of that action by the

Commission. Any person filing an ap-plication for review who has not pre-viously participated in the proceedingshall include with his application astatement describing with particular-ity the manner in which he is ag-grieved by the action taken and show-ing good reason why it was not possiblefor him to participate in the earlierstages of the proceeding. Any applica-tion for review which fails to make anadequate showing in this respect willbe dismissed.

(b)(1) The application for review shallconcisely and plainly state the ques-tions presented for review with ref-erence, where appropriate, to the find-ings of fact or conclusions of law.

(2) Except as provided in paragraph(b)(5) of this section, the applicationfor review shall specify with particu-larity, from among the following, thefactor(s) which warrant Commissionconsideration of the questions pre-sented:

(i) The action taken pursuant to dele-gated authority is in conflict with stat-ute, regulation, case precedent, or es-tablished Commission policy.

(ii) The action involves a question oflaw or policy which has not previouslybeen resolved by the Commission.

(iii) The action involves applicationof a precedent or policy which shouldbe overturned or revised.

(iv) An erroneous finding as to an im-portant or material question of fact.

(v) Prejudicial procedural error.(3) The application for review shall

state with particularity the respects inwhich the action taken by the des-ignated authority should be changed.

(4) The application for review shallstate the form of relief sought and,subject to this requirement, may con-tain alternative requests.

(c) No application for review will begranted if it relies on questions of factor law upon which the designated au-thority has been afforded no oppor-tunity to pass.

NOTE: Subject to the requirements of§ 1.106, new questions of fact or law may bepresented to the designated authority in apetition for reconsideration.

(d) Except as provided in paragraph(e) of this section, the application forreview and any supplemental theretoshall be filed within 30 days of public


127


notice of such action, as that date isdefined in section 1.4(b). Opposition tothe application shall be filed within 15days after the application for review isfiled. Except as provided in paragraph(e)(3) of this section, replies to opposi-tions shall be filed within 10 days afterthe opposition is filed and shall be lim-ited to matters raised in the opposi-tion.

(e)(1) Applications for review of in-terlocutory rulings made by the ChiefAdministrative Law Judge (see § 0.351)shall be deferred until the time whenexceptions are filed unless the ChiefJudge certifies the matter to the Com-mission for review. A matter shall becertified to the Commission only if theChief Judge determines that it presentsa new or novel question of law or pol-icy and that the ruling is such thaterror would be likely to require remandshould the appeal be deferred andraised as an exception. The request tocertify the matter to the Commissionshall be filed within 5 days after theruling is made. The applicaton for re-view shall be filed within 5 days afterthe order certifying the matter to theCommission is released or such rulingis made. Oppositions shall be filedwithin 5 days after the application isfiled. Replies to oppositions shall befiled only if they are requested by theCommission. Replies (if allowed) shallbe filed within 5 days after they are re-quested. A ruling certifying or not cer-tifying a matter to the Commission isfinal: Provided, however, That the Com-mission may, on its own motion, dis-miss the application for review on theground that objections to the rulingshould be deferred and raised as an ex-ception.

(2) The failure to file an applicationfor review of an interlocutory rulingmade by the Chief Administrative LawJudge or the denial of such applicationby the Commission, shall not precludeany party entitled to file exceptions tothe initial decision from requesting re-view of the ruling at the time when ex-ceptions are filed. Such requests willbe considered in the same manner asexceptions are considered.

(3) Applications for review of a hear-ing designation order issued under del-egated authority shall be deferred untilexceptions to the initial decision in the

case are filed, unless the presiding Ad-ministrative Law Judge certifies suchan application for review to the Com-mission. A matter shall be certified tothe Commission only if the presidingAdministrative Law Judge determinesthat the matter involves a controllingquestion of law as to which there issubstantial ground for difference ofopinion and that immediate consider-ation of the question would materiallyexpedite the ultimate resolution of thelitigation. A ruling refusing to certifya matter to the Commission is not ap-pealable. In addition, the Commissionmay dismiss, without stating reasons,an application for review that has beencertified, and direct that the objectionsto the hearing designation order be de-ferred and raised when exceptions inthe initial decision in the case arefiled. A request to certify a matter tothe Commission shall be filed with thepresiding Administrative Law Judgewithin 5 days after the designationorder is released. Any application forreview authorized by the Administra-tive Law Judge shall be filed within 5days after the order certifying the mat-ter to the Commission is released orsuch a ruling is made. Oppositionsshall be filed within 5 days after theapplication for review is filed. Repliesto oppositions shall be filed only ifthey are requested by the Commission.Replies (if allowed) shall be filed with-in 5 days after they are requested.

(f) Applications for review, opposi-tions, and replies shall conform to therequirements of §§ 1.49, 1.51, and 1.52,and shall be submitted to the Sec-retary, Federal Communications Com-mission, Washington, DC 20554. Exceptas provided below, applications for re-view and oppositions thereto shall notexceed 25 double-space typewrittenpages. Applications for review of inter-locutory actions in hearing proceedings(including designation orders) and op-positions thereto shall not exceed 5double-spaced typewritten pages. Whenpermitted (see paragraph (e)(3) of thissection), reply pleadings shall not ex-ceed 5 double-spaced typewritten pages.The application for review shall beserved upon the parties to the proceed-ing. Oppositions to the application forreview shall be served on the personseeking review and on parties to the


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proceeding. When permitted (see para-graph (e)(3) of this section), replies tothe opposition(s) to the application forreview shall be served on the person(s)opposing the application for review andon parties to the proceeding.

(g) The Commission may grant theapplication for review in whole or inpart, or it may deny the applicationwith or without specifying reasonstherefor. A petition requesting recon-sideration of a ruling which denies anapplication for review will be enter-tained only if one or more of the fol-lowing circumstances is present:

(1) The petition relies on facts whichrelated to events which have occurredor circumstances which have changedsince the last opportunity to presentsuch matters; or

(2) The petition relies on facts un-known to petitioner until after his lastopportunity to present such matterswhich could not, through the exerciseof ordinary diligence, have beenlearned prior to such opportunity.

(h)(1) If the Commission grants theapplication for review in whole or inpart, it may, in its decision:

(i) Simultaneously reverse or modifythe order from which review is sought;

(ii) Remand the matter to the des-ignated authority for reconsiderationin accordance with its instructions,and, if an evidentiary hearing has beenheld, the remand may be to the per-son(s) who conducted the hearing; or

(iii) Order such other proceedings, in-cluding briefs and oral argument, asmay be necessary or appropriate.

(2) In the event the Commission or-ders further proceedings, it may staythe effect of the order from which re-view is sought. (See § 1.102.) Followingthe completion of such further proceed-ings the Commission may affirm, re-verse or modify the order from whichreview is sought, or it may set asidethe order and remand the matter to thedesignated authority for reconsider-ation in accordance with its instruc-tions. If an evidentiary hearing hasbeen held, the Commission may re-mand the matter to the person(s) whoconducted the hearing for rehearing onsuch issues and in accordance withsuch instructions as may be appro-priate.

NOTE: For purposes of this section, theword ‘‘order’’ refers to that portion of its ac-tion wherein the Commission announces itsjudgment. This should be distinguished fromthe ‘‘memorandum opinion’’ or other mate-rial which often accompany and explain theorder.

(i) An order of the Commission whichreverses or modifies the action takenpursuant to delegated authority is sub-ject to the same provisions with re-spect to reconsideration as an originalorder of the Commission. In no event,however, shall a ruling which denies anapplication for review be considered amodification of the action taken pursu-ant to delegated authority.

(j) No evidence other than newly dis-covered evidence, evidence which hasbecome available only since the origi-nal taking of evidence, or evidencewhich the Commission believes shouldhave been taken in the original pro-ceeding shall be taken on any rehear-ing ordered pursuant to the provisionsof this section.

(k) The filing of an application for re-view shall be a condition precedent tojudicial review of any action takenpursuant to delegated authority.


[28 FR 12415, Nov. 22, 1963, as amended at 41FR 14871, Apr. 8, 1976; 44 FR 60295, Oct. 19,1979; 46 FR 18556, Mar. 25, 1981; 48 FR 12719,Mar. 28, 1983; 50 FR 39000, Sept. 26, 1985; 54 FR40392, Oct. 2, 1989; 55 FR 36641, Sept. 6, 1990; 57FR 19387, May 6, 1992; 62 FR 4170, Jan. 29,1997]

§ 1.117 Review on motion of the Com-mission.

(a) Within 40 days after public noticeis given of any action taken pursuantto delegated authority, the Commis-sion may on its own motion order therecord of the proceeding before it forreview.

(b) If the Commission reviews theproceeding on its own motion, it mayorder such further procedure as may beuseful to it in its review of the actiontaken pursuant to delegated authority.

(c) With or without such further pro-cedure, the Commission may either af-firm, reverse, modify, or set aside theaction taken, or remand the proceedingto the designated authority for recon-sideration in accordance with its in-structions. If an evidentiary hearing


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has been held, the Commission may re-mand the proceeding to the person(s)who conducted the hearing for rehear-ing on such issues and in accordancewith such instructions as may be ap-propriate. An order of the Commissionwhich reverses or modifies the actiontaken pursuant to delegated authority,or remands the matter for further pro-ceedings, is subject to the same provi-sions with respect to reconsiderationas an original action of the Commis-sion.

§ 1.120 Protests of grants withouthearing.

(a) The provisions of this sectionshall not be applicable to any applica-tion: (1) Filed on or after December 12,1960; (2) filed before December 12, 1960,but substantially amended (as definedin the applicable provisions of thischapter) on or after that date; or (3)filed before December 12, 1960, and notthereafter substantially amended, butwith respect to which the rules in thischapter provide an opportunity for pe-titions to deny to be filed under section309 of the Communications Act, asamended. See §§ 1.580 and 1.962.

(b) Where any instrument of author-ization for a radio station, other than alicense pursuant to a construction per-mit, has been granted without a hear-ing, any party in interest may file aprotest directed to such grant and re-quest a hearing on the applicationgranted. Such protest shall be signedby the protestant and subscribed tounder oath. Such protest must be filedwith the Commission within 30 daysafter release of the document contain-ing the full text of such action, or incase such a document is not released,after release of a ‘‘Public Notice’’ an-nouncing the action in question andmust separately set forth:

(1) Such allegations of fact as willshow the protestant to be a party in in-terest, i.e., a person aggrieved or whoseinterests are adversely affected by theCommission’s authorization, protest ofwhich is sought. Each such allegationof fact shall be separately stated.

(2) Facts indicating the reasons whythe grant was improperly made orwould otherwise not be in the publicinterest. Each such reason shall be sep-arately stated, and facts in support

thereof shall be specified in detail andshall not include general non-specificconclusory arguments and allegations.

(3) The specific issues upon whichprotestant wishes a hearing to be held,which issues must relate directly to amatter specified with particularity aspart of paragraph (b)(2) of this section.

(c) Arguments and citations of au-thority may be set forth in a brief ac-companying the protest but must beexcluded from the protest itself.

(d) Oppositions to protests and briefsin support thereof shall contain all ma-terial, including that pertinent to thedetermination referred to in paragraph(i) of this section, deemed appropriateto the Commission’s resolution of theprotest. Such oppositions and support-ing briefs must be filed within 10 daysafter the filing of such protest, and anyreplies to such oppositions must befiled within 5 days after the filing ofthe oppositions.

(e) Protests, oppositions, and repliesshall be filed with the Commission inoriginal and 14 copies and shall be ac-companied by proof of service upon thegrantee or the protestant, as the casemay be, and/or their respective attor-neys.

(f) The Commission may upon consid-eration of a protest direct either theprotestant or grantee or both to sub-mit further statements of fact underoath relating to the matters raised inthe protest.

(g) Within 30 days from the date ofthe filing of the protest, the Commis-sion will enter findings as to whethersuch protest meets the requirementsset forth in paragraphs (b) (1) and (2) ofthis section. If the Commission findsthat one of these requirements is notmet, it will dismiss the protest. If theCommission finds that these require-ments are met, it will designate the ap-plication in question for hearing. As toissues which the Commission believespresent no grounds for setting asidethe grant, even if the facts alleged wereto be proven, the Commission may des-ignate such issues for oral argumentonly. The other issues will be des-ignated for evidentiary hearing exceptthat the Commission may redraft theissues in accordance with the facts or


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substantive matters alleged in the pro-test and may also specify such addi-tional issues as it deems desirable. Inany evidentiary hearing subsequentlyheld upon issues specified by the Com-mission, upon its own initiative oradopted by it, both the burden of pro-ceeding with the introduction of evi-dence and the burden of proof shall beupon the grantee. With respect to is-sues resulting from facts set forth inthe protest and not adopted or speci-fied by the Commission on its own mo-tion, both the burden of proceedingwith the introduction of evidence andthe burden of proof shall be upon theprotestant.

(h) The procedure in such protesthearing shall be governed by the provi-sions of subpart B of this part, exceptas otherwise provided in this section.

(i) Pending hearing and decision, theeffective date of the Commission’s ac-tion to which protest is made shall bepostponed to the effective date of theCommission’s decision after hearing,unless the authorization involved isnecessary to the maintenance or con-duct of an existing service or unlessthe Commission affirmatively findsthat the public interest requires thatthe grant remain in effect, in whichevent the Commission shall authorizethe applicant to utilize the facilities orauthorization in question pending theCommission’s decision after hearing.

(Sec. 7, 66 Stat. 715, as amended. See, in par-ticular, sec. 4 (a) and (d), 74 Stat. 889, 892; 47U.S.C. 309)

[28 FR 12415, Nov. 22, 1963, as amended at 28FR 14503, Dec. 31, 1963]

Subpart B—Hearing Proceedings


EDITORIAL NOTE: Nomenclature changes tosubpart B appear at 37 FR 19372, Sept. 20,1972.

GENERAL

§ 1.201 Scope.This subpart shall be applicable to

the following cases which have beendesignated for hearing:

(a) Adjudication (as defined by theAdministrative Procedure Act); and

(b) Rule making proceedings whichare required by law to be made on therecord after opportunity for a Commis-sion hearing.

NOTE: For special provisions relating toAM broadcast station applications involvingother North American countries see § 73.3570.

[28 FR 12425, Nov. 22, 1963, as amended at 51FR 32088, Sept. 9, 1986]

§ 1.202 Official reporter; transcript.The Commission will designate from

time to time an official reporter forthe recording and transcribing of hear-ing proceedings. The transcript of thetestimony taken, or argument had, atany hearing will not be furnished bythe Commission, but will be open to in-spection under § 0.453(a)(1) of this chap-ter. Copies of such transcript, if de-sired, may be obtained from the officialreporter upon payment of the chargestherefor.

(5 U.S.C. 556)

[32 FR 20861, Dec. 28, 1967]

§ 1.203 The record.The transcript of testimony and ex-

hibits, together with all papers and re-quests filed in the proceeding, shallconstitute the exclusive record for de-cision. Where any decision rests on of-ficial notice of a material fact not ap-pearing in the record, any party shallon timely request be afforded an oppor-tunity to show the contrary.

(5 U.S.C. 556)

§ 1.204 Pleadings; definition.As used in this subpart, the term

pleading means any written notice, mo-tion, petition, request, opposition,reply, brief, proposed findings, excep-tions, memorandum of law, or otherpaper filed with the Commission in ahearing proceeding. It does not includeexhibits or documents offered in evi-dence. See § 1.356.

[29 FR 8219, June 30, 1964]

§ 1.205 Continuances and extensions.Continuances of any proceeding or

hearing and extensions of time formaking any filing or performing anyact required or allowed to be donewithin a specified time may be granted


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by the Commission or the presiding of-ficer upon motion for good causeshown, unless the time for performanceor filing is limited by statute.

§ 1.207 Interlocutory matters, recon-sideration and review; cross ref-erences.

(a) Rules governing interlocutorypleadings in hearing proceedings areset forth in §§ 1.291 through 1.298.

(b) Rules governing appeal from rul-ings made by the presiding officer areset forth as §§ 1.301 and 1.302.

(c) Rules governing the reconsider-ation and review of actions taken pur-suant to delegated authority, and thereconsideration of actions taken by theCommission, are set forth in §§ 1.101through 1.120.

[28 FR 12425, Nov. 22, 1963, as amended at 29FR 6443, May 16, 1964; 36 FR 19439, Oct. 6,1971]

§ 1.209 Identification of responsible of-ficer in caption to pleading.

Each pleading filed in a hearing pro-ceeding shall indicate in its captionwhether it is to be acted upon by theCommission, the Chief AdministrativeLaw Judge, or the presiding officer. Ifit is to be acted upon by the presidingofficer, he shall be identified by name.

[29 FR 8219, June 30, 1964, as amended at 37FR 19372, Sept. 20, 1972; 62 FR 4171, Jan. 29,1997]

§ 1.211 Service.Except as otherwise expressly pro-

vided in this chapter, all pleadingsfiled in a hearing proceeding shall beserved upon all other counsel in theproceeding or, if a party is not rep-resented by counsel, then upon suchparty. All such papers shall be accom-panied by proof of service. For provi-sions governing the manner of service,see § 1.47.

[29 FR 8219, June 30, 1964]

PARTICIPANTS AND ISSUES

§ 1.221 Notice of hearing; appearances.(a) Upon designation of an applica-

tion for hearing, the Commission issuesan order containing the following:

(1) A statement as to the reasons forthe Commission’s action.

(2) A statement as to the matters offact and law involved, and the issuesupon which the application will beheard.

(3) A statement as to the time, place,and nature of the hearing. (If the timeand place are not specified, the orderwill indicate that the time and placewill be specified at a later date.)

(4) A statement as to the legal au-thority and jurisdiction under whichthe hearing is to be held.

(b) The order designating an applica-tion for hearing is mailed to the appli-cant by the Secretary of the Commis-sion and this order or a summarythereof is published in the FEDERALREGISTER. Reasonable notice of hearingwill be given to the parties in all pro-ceedings; and, whenever possible, theCommission will give at least 60 daysnotice of comparative hearings.

(c) In order to avail himself of the op-portunity to be heard, the applicant, inperson or by his attorney, shall, within20 days of the mailing of the notice ofdesignation for hearing by the Sec-retary, file with the Commission, intriplicate, a written appearance statingthat he will appear on the date fixedfor hearing and present evidence on theissues specified in the order. Where anapplicant fails to file such a writtenappearance within the time specified,or has not filed prior to the expirationof that time a petition to dismiss with-out prejudice, or a petition to accept,for good cause shown, such written ap-pearance beyond expiration of said 20days, the application will be dismissedwith prejudice for failure to prosecute.

(d) The Commission will on its ownmotion name as parties to the hearingany person found to be a party in inter-est.

(e) In order to avail himself of the op-portunity to be heard, any personnamed as a party pursuant to para-graph (d) of this section shall, within 20days of the mailing of the notice of hisdesignation as a party, file with theCommission, in person or by attorney,a written appearance in triplicate,stating that he will appear at the hear-ing. Any person so named who fails tofile this written statement within thetime specified, shall, unless good causefor such failure is shown, forfeit hishearing rights.


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47 CFR Ch. I (10–1–97 Edition)§ 1.223

(f) A fee must accompany each writ-ten appearance filed with the Commis-sion in certain cases designated forhearing. See subpart G, part 1 for theamount due. Except as provided inparagraph (g) of this section, the feemust accompany each written appear-ance at the time of its filing and mustbe in conformance with the require-ments of subpart G of the rules. A writ-ten appearance that does not containthe proper fee, or is not accompaniedby a deferral request as per § 1.1115 ofthe rules, shall be dismissed and re-turned to the applicant by the fee proc-essing staff. The presiding judge will benotified of this action and may dismissthe applicant with prejudice for failureto prosecute if the written appearanceis not resubmitted with the correct feewithin the original 20 day filing period.

NOTE: If the parties file a settlement agree-ment prior to filing the Notice of Appearanceor simultaneously with it, the hearing feeneed not accompany the Notice of Appear-ance. In filing the Notice of Appearance, theapplicant should clearly indicate that a set-tlement agreement has been filed. (The factthat there are ongoing negotiations thatmay lead to a settlement does not affect therequirement to pay the fee.) If a settlementagreement is not effectuated, the PresidingJudge will require immediate payment of thefee.

(g) In comparative broadcast pro-ceedings involving applicants for newfacilities, where the hearing fee waspaid before designation of the applica-tions for hearing as required by thePublic Notice described at § 73.3571(c),§ 73.3572(d), or § 73.3573(g) of this chap-ter, a hearing fee payment should notbe made with the filing of the Notice ofAppearance.

(5 U.S.C. 554. Sec. 309, 48 Stat. 1085, as amend-ed; 47 U.S.C. 309)

[28 12424, Nov. 22, 1963, as amended at 51 FR19347, May 29, 1986; 52 FR 5288, Feb. 20, 1987;55 FR 19154, May 8, 1990; 56 FR 25638, June 5,1991]

§ 1.223 Petitions to intervene.(a) Where, in cases involving applica-

tions for construction permits and sta-tion licenses, or modifications or re-newals thereof, the Commission hasfailed to notify and name as a party tothe hearing any person who qualifies asa party in interest, such person may

acquire the status of a party by filing,under oath and not more than 30 daysafter the publication in the FEDERALREGISTER of the hearing issues or anysubstantial amendment thereto, a peti-tion for intervention showing the basisof its interest. Where such person’s in-terest is based upon a claim that agrant of the application would causeobjectionable interference under appli-cable provisions of this chapter to suchperson as a licensee or permittee of anexisting or authorized station, the peti-tion to intervene must be accompaniedby an affidavit of a qualified radio en-gineer which shall show, either by fol-lowing the procedures prescribed inthis chapter for determining inter-ference in the absence of measure-ments or by actual measurementsmade in accordance with the methodsprescribed in this chapter, the extentof such interference. Where the per-son’s status as a party in interest is es-tablished, the petition to intervene willbe granted.

(b) Any other person desiring to par-ticipate as a party in any hearing mayfile a petition for leave to intervenenot later than 30 days after the publi-cation in the FEDERAL REGISTER of thefull text or a summary of the order des-ignating an application for hearing orany substantial amendment thereto.The petition must set forth the inter-est of petitioner in the proceedings,must show how such petitioner’s par-ticipation will assist the Commissionin the determination of the issues inquestion, must set forth any proposedissues in addition to those already des-ignated for hearing, and must be ac-companied by the affidavit of a personwith knowledge as to the facts setforth in the petition. The presiding of-ficer, in his discretion, may grant ordeny such petition or may permitintervention by such persons limited toa particular stage of the proceeding.

(c) Any person desiring to file a peti-tion for leave to intervene later than 30days after the publication in the FED-ERAL REGISTER of the full text or asummary of the order designating anapplication for hearing or any substan-tial amendment thereto shall set forththe interest of petitioner in the pro-ceeding, show how such petitioner’s


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participation will assist the Commis-sion in the determination of the issuesin question, must set forth any pro-posed issues in addition to those al-ready designated for hearing, and mustset forth reasons why it was not pos-sible to file a petition within the timeprescribed by paragraphs (a) and (b) ofthis section. Such petition shall be ac-companied by the affidavit of a personwith knowledge of the facts set forth inthe petition, and where petitionerclaims that a grant of the applicationwould cause objectionable interferenceunder applicable provisions of thischapter, the petition to intervene mustbe accompanied by the affidavit of aqualified radio engineer showing theextent of such alleged interference ac-cording to the methods prescribed inparagraph (a) of this section. If, in theopinion of the presiding officer, goodcause is shown for the delay in filing,he may in his discretion grant such pe-tition or may permit intervention lim-ited to particular issues or to a par-ticular stage of the proceeding.


[28 FR 12425, Nov. 22, 1963, as amended at 29FR 7821, June 19, 1964; 41 FR 14872, Apr. 8,1976; 51 FR 19347, May 29, 1986]

§ 1.224 Motion to proceed in formapauperis.

(a) A motion to proceed in formapauperis may be filed by an individual,a corporation, and unincorporated en-tity, an association or other similargroup, if the moving party is either ofthe following:

(1) A respondent in a revocation pro-ceeding, or a renewal applicant, whocannot carry on his livelihood withoutthe radio license at stake in the pro-ceeding; or

(2) An intervenor in a hearing pro-ceeding who is in a position to intro-duce testimony which is of probabledecisional significance, on a matter ofsubstantial public interest importance,which cannot, or apparently will not,be introduced by other parties to theproceeding, and who is not seeking per-sonal financial gain.

(b) In the case of a licensee, the mo-tion to proceed in forma pauperis shallcontain specific allegations of fact suf-ficient to show that the moving party

is eligible under paragraph (a) of thissection and that he cannot, because ofhis poverty, pay the expenses of litiga-tion and still be able to provide himselfand his dependents with the necessitiesof life. Such allegations of fact shall besupported by affidavit of a person orpersons with personal knowledge there-of. The information submitted shall de-tail the income and assets of the indi-vidual and his financial obligations andresponsibilities, and shall contain anestimate of the cost of participation inthe proceeding. Personal financial in-formation may be submitted to thepresiding officer in confidence.

(c)(1) In the case of an individual in-tervenor, the motion to proceed informa pauperis shall contain specificallegations of fact sufficient to showthat he is eligible under paragraph (a)of this section and that he has dedi-cated financial resources to sustain hisparticipation which are reasonable inlight of his personal resources andother demands upon them but are inad-equate for effective participation inthe proceeding. Such allegations offact shall be supported by affidavit of aperson or persons with personal knowl-edge thereof. The information submit-ted shall detail the income and assetsof the individual and his immediatefamily and his financial obligationsand responsibilities, and shall containan estimate of the cost of participa-tion. Personal financial informationmay be submitted to the presiding offi-cer in confidence.

(2) In the case of an interveninggroup, the motion to proceed in formapauperis shall contain specific allega-tions of fact sufficient to show that themoving party is eligible under para-graph (a) of this section and that itcannot pay the expenses of litigationand still be able to carry out the ac-tivities and purposes for which it wasorganized. Such allegations of factshall be supported by affidavit of thePresident and Treasurer of the group,and/or by other persons having per-sonal knowledge thereof. The informa-tion submitted shall include a copy ofthe corporate charter or other docu-ments that describe the activities andpurposes of the organization; a current


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47 CFR Ch. I (10–1–97 Edition)§ 1.225

balance sheet and profit and loss state-ment; facts showing, under all the cir-cumstances, that it would not be rea-sonable to expect added resources of in-dividuals composing the group to bepooled to meet the expenses of partici-pating in the proceeding; and an esti-mate of the cost of participation. Per-sonal financial information pertainingto members of the group may be sub-mitted to the presiding officer in con-fidence.

(d) If the motion is granted, the pre-siding officer may direct that a freecopy of the transcript of testimony bemade available to the moving partyand may relax the rules of procedure inany manner which will ease his finan-cial burden, is fair to other parties tothe proceeding, and does not involvethe payment of appropriated funds to aparty.

[41 FR 53021, Dec. 3, 1976]

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

(a) Any person who wishes to appearand give evidence on any matter andwho so advises the Secretary, will benotified by the Secretary if that mat-ter is designated for hearing. In thecase of requests bearing more than onesignature, notice of hearing will begiven to the person first signing unlessthe request indicates that such noticeshould be sent to someone other thansuch person.

(b) No person shall be precluded fromgiving any relevant, material, andcompetent testimony at a hearing be-cause he lacks a sufficient interest tojustify his intervention as a party inthe matter.

(c) When a hearing is held, no com-munication will be considered in deter-mining the merits of any matter unlessit has been received into evidence. Theadmissibility of any communicationshall be governed by the applicablerules of evidence, and no communica-tion shall be admissible on the basis ofa stipulation unless Commission coun-sel as well as counsel for all of the par-ties shall join in such stipulation.

§ 1.227 Consolidations.(a) The Commission, upon motion or

upon its own motion, will, where suchaction will best conduce to the proper

dispatch of business and to the ends ofjustice, consolidate for hearing:

(1) Any cases which involve the sameapplicant or involve substantially thesame issues, or

(2) Any applications which presentconflicting claims, except where a ran-dom selection process is used.

(b)(1) In broadcast cases, except asprovided in paragraph (b)(5) of this sec-tion, and except as otherwise providedin § 1.1601, et seq., no application will beconsolidated for hearing with a pre-viously filed application or applica-tions unless such application, or suchapplication as amended, if amended soas to require a new file number, is sub-stantially complete and tendered forfiling by the close of business on theday preceding the day designated byPublic Notice as the day any one of thepreviously filed applications is avail-able and ready for processing.

(2) In other than broadcast, commoncarrier, and safety and special radioservices cases, any application that ismutually exclusive with another appli-cation or applications already des-ignated for hearing will be consoli-dated for hearing with such other ap-plication or applications only if thelater application in question has beenfiled within 5 days after public noticehas been given in the FEDERAL REG-ISTER of the Commission’s order whichfirst designated for hearing the priorapplication or applications with whichsuch application is in conflict.

(3) Common carrier cases: (i) Generalrule. Where an application is mutuallyexclusive with a previously filed appli-cation, the second application will beentitled to comparative considerationwith the first or entitled to be includedin a random selection process, only ifthe second has been properly filed atleast one day before the Commissiontakes action on the first application.Specifically, the later filed applicationmust have been received by the Com-mission, in a condition acceptable forfiling, before the close of business onthe day prior to the grant date or des-ignation date of the earlier filed appli-cation.

(ii) Domestic public fixed and publicmobile. See Rule §§ 21.31 and 22.31 for therequirements as to mutually exclusiveapplications. See also Rule §§ 21.23 and


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22.23 for the requirements as to amend-ments of applications.

(iii) Public coast stations (Maritime mo-bile service). See paragraph (b)(4) of thissection.

(4) This paragraph applies when mu-tually-exclusive applications subject tosection 309(b) of the CommunicationsAct are filed in the Private Radio Serv-ices or when there are more such appli-cations for initial licenses than can beaccommodated on available fre-quencies. In such cases, the applica-tions either will be consolidated forhearing or designated for random selec-tion (see § 1.972 of this part). An appli-cation which is substantially amended(as defined by § 1.962(c) of this part)will, for the purpose of this section, beconsidered to be a newly-filed applica-tion as of the receipt date of theamendment. Except for applicationsfiled under part 94, Private OperationalFixed Microwave Service, mutual ex-clusivity will occur if the later applica-tion or applications are received by theCommission’s offices in Gettysburg, PA(or Pittsburgh, PA for applications re-quiring the fees set forth at part 1, sub-part G of the rules) in a condition ac-ceptable for filing within 30 days afterthe release date of public notice listingthe first prior filed application (withwhich subsequent applications are inconflict) as having been accepted forfiling or within such other period asspecified by the Commission. For appli-cations in the Private OperationalFixed Microwave Service, mutual ex-clusivity will occur if two or more ac-ceptable applications that are in con-flict are filed on the same day.

(5) Any mutually exclusive applica-tion filed after the date prescribed inparagraph (b)(1), (b)(2), (b)(3), or (b)(4)of this section will be dismissed with-out prejudice and will be eligible for re-filing only after a final decision is ren-dered by the Commission with respectto the prior application or applicationsor after such application or applica-tions are dismissed or removed fromthe hearing docket.

(6) An application which is mutuallyexclusive with an application for re-newal of license of a broadcast stationfiled on or before May 1, 1995 will bedesignated for comparative hearingwith such license renewal application

if it is substantially complete and ten-dered for filing no later than the dateprescribed in § 73.3516(e).

[28 FR 12425, Nov. 22, 1963, as amended at 34FR 7966, May 21, 1969; 37 FR 13983, July 15,1972; 38 FR 26202, Sept. 19, 1973; 48 FR 27200,June 13, 1983; 48 FR 34039, July 27, 1983; 52 FR10229, Mar. 31, 1987; 55 FR 46008, Oct. 31, 1990;55 FR 46513, Nov. 5, 1990; 61 FR 18291, Apr. 25,1996]

§ 1.229 Motions to enlarge, change, ordelete issues.

(a) A motion to enlarge, change ordelete the issues may be filed by anyparty to a hearing. Except as providedfor in paragraph (b) of this section,such motions must be filed within 15days after the full text or a summaryof the order designating the case forhearing has been published in the FED-ERAL REGISTER.

(b)(1) In comparative broadcast pro-ceedings involving applicants for onlynew facilities, such motions shall befiled within 30 days of the release ofthe designation order, except that per-sons not named as parties to the pro-ceeding in the designation order mayfile such motions with their petitionsto intervene up to 30 days after publi-cation of the full text or a summary ofthe designation order in the FEDERALREGISTER. (See § 1.223 of this part).

(2) In comparative broadcast proceed-ings involving renewal applicants, suchmotions shall be filed within 30 daysafter publication of the full text or asummary of the designation order inthe FEDERAL REGISTER.

(3) Any person desiring to file a mo-tion to modify the issues after the ex-piration of periods specified in para-graphs (a), (b)(1), and (b)(2), of this sec-tion, shall set forth the reason why itwas not possible to file the motionwithin the prescribed period. Except asprovided in paragraph (c) of this sec-tion, the motion will be granted only ifgood cause is shown for the delay in fil-ing. Motions for modifications of issueswhich are based on new facts or newlydiscovered facts shall be filed within 15days after such facts are discovered bythe moving party.

(c) In the absence of good cause forlate filing of a motion to modify the is-sues, the motion to enlarge will be con-sidered fully on its merits if (and only


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47 CFR Ch. I (10–1–97 Edition)§ 1.241

if) initial examination of the motiondemonstrates that it raises a questionof probable decisional significance andsuch substantial public interest impor-tance as to warrant consideration inspite of its untimely filing.

(d) Such motions, opposition thereto,and replies to oppositions shall containspecific allegations of fact sufficient tosupport the action requested. Such al-legations of fact, except for those ofwhich official notice may be taken,shall be supported by affidavits of aperson or persons having personalknowledge thereof. The failure to filean opposition or a reply will not nec-essarily be construed as an admissionof any fact or argument contained in apleading.

(e) In comparative broadcast proceed-ings involving applicants for only newfacilities, in addition to the showingwith respect to the requested issuemodification described in paragraph (d)of this section, the party requestingthe enlargement of issues against anapplicant in the proceeding shall iden-tify those documents the moving partywishes to have produced and any otherdiscovery procedures the moving partywishes to employ in the event the re-quested issue is added to the proceed-ing.

(1) In the event the motion to enlargeissues is granted, the Commission ordelegated authority acting on the mo-tion will also rule on the additionaldiscovery requests, and, if granted,such additional discovery will bescheduled to be completed within 30days of the action on the motion.

(2) The moving party may file supple-mental discovery requests on the basisof information provided in responsivepleadings or discovered as a result ofinitial discovery on the enlarged issue.The grant or denial of any such supple-mental requests and the timing of thecompletion of such supplemental dis-covery are subject to the discretion ofthe presiding judge.

(3) The 30-day time limit for comple-tion of discovery on enlarged issuesshall not apply where the persons sub-ject to such additional discovery arenot parties to the proceeding. In suchcase, additional time will be requiredto afford such persons adequate notice

of the discovery procedures being em-ployed.

(f) In any case in which the presidingjudge or the Commission grants a mo-tion to enlarge the issues to inquireinto allegations that an applicantmade misrepresentations to the Com-mission or engaged in other mis-conduct during the application process,the enlarged issues include notice that,after hearings on the enlarged issueand upon a finding that the allegedmisconduct occurred and warrantssuch penalty, in addition to or in lieuof denying the application, the appli-cant may be liable for a forfeiture of upto the maximum statutory amount.See 47 U.S.C. 503(b)(2)(A).

[41 FR 14872, Apr. 8, 1976, as amended at 44FR 34947, June 18, 1979; 51 FR 19347, May 29,1986; 56 FR 792, Jan. 9, 1991; 56 FR 25639, June5, 1991; 62 FR 4171, Jan. 29, 1997]

PRESIDING OFFICER

§ 1.241 Designation of presiding offi-cer.

(a) Hearings will be conducted by theCommission, by one or more commis-sioners, or by a law judge designatedpursuant to section 11 of the Adminis-trative Procedure Act. If a presiding of-ficer becomes unavailable to the Com-mission prior to the taking of testi-mony another presiding officer will bedesignated.

(b) Unless the Commission deter-mines that due and timely execution ofits functions requires otherwise, pre-siding officers shall be designated, andnotice thereof released to the public, atleast 10 days prior to the date set forhearing.

(5 U.S.C. 556)

§ 1.243 Authority of presiding officer.From the time he is designated to

preside until issuance of his decision orthe transfer of the proceeding to theCommission or to another presiding of-ficer the presiding officer shall havesuch authority as is vested in him bylaw and by the provisions of this chap-ter, including authority to:

(a) Administer oaths and affirma-tions;

(b) Issue subpenas;(c) Examine witnesses;(d) Rule upon questions of evidence;


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(e) Take or cause depositions to betaken;

(f) Regulate the course of the hear-ing, maintain decorum, and excludefrom the hearing any person engagingin contemptuous conduct or otherwisedisrupting the proceedings;

(g) Require the filing of memorandaof law and the presentation of oral ar-gument with respect to any question oflaw upon which he is required to ruleduring the course of the hearing;

(h) Hold conferences for the settle-ment or simplification of the issues byconsent of the parties;

(i) Dispose of procedural requests orsimilar matters, as provided for in§ 0.341 of this chapter;

(j) Take actions and make decisionsin conformity with the AdministrativeProcedure Act;

(k) Act on motions to enlarge, mod-ify or delete the hearing issues; and

(l) Act on motions to proceed informa pauperis pursuant to § 1.224.

(5 U.S.C. 556)

[28 FR 12425, Nov. 22, 1963, as amended at 41FR 53022, Dec. 3, 1976]

§ 1.244 Designation of a settlementjudge.

(a) In broadcast comparative casesinvolving applicants for only new fa-cilities, the applicants may request theappointment of a settlement judge tofacilitate the resolution of the case bysettlement.

(b) Where all applicants in the caseagree that such procedures may be ben-eficial, such requests may be filed withthe presiding judge no later than 15days prior to the date scheduled by thepresiding judge for the commencementof hearings. The presiding judge shallsuspend the procedural dates in thecase and forward the request to theChief Administrative Law Judge for ac-tion.

(c) If, in the discretion of the ChiefAdministrative Law Judge, it appearsthat the appointment of a settlementjudge will facilitate the settlement ofthe case, the Chief Judge will appoint a‘‘neutral’’ as defined in 5 U.S.C. 581 and583(a) to act as the settlement judge.

(1) The parties may request the ap-pointment of a settlement judge oftheir own choosing so long as that per-

son is a ‘‘neutral’’ as defined in 5 U.S.C.581.

(2) The appointment of a settlementjudge in a particular case is subject tothe approval of all the applicants inthe proceeding. See 5 U.S.C. 583(b).

(3) The Commission’s AdministrativeLaw Judges are eligible to act as set-tlement judges, except that an Admin-istrative Law Judge will not be ap-pointed as a settlement judge in anycase in which the Administrative LawJudge also acts as the presiding officer.

(4) Other members of the Commis-sion’s staff who qualify as neutralsmay be appointed as settlement judges,except that staff members whose dutiesinclude drafting, review, and/or rec-ommendations in adjudicatory matterspending before the Commission shallnot be appointed as settlement judges.

(d) The settlement judge shall havethe authority to require applicants tosubmit their Standardized IntegrationStatements and/or their written directcases for review. The settlement judgemay also meet with the applicants and/or their counsel, individually and/or atjoint conferences, to discuss their casesand the cases of their competitors. Allsuch meetings will be off-the-record,and the settlement judge may expressan opinion as to the relative compara-tive standing of the applicants and rec-ommend possible means to resolve theproceeding by settlement. The proceed-ings before the settlement judge shallbe subject to the confidentiality provi-sions of 5 U.S.C. 574. Moreover, nostatements, offers of settlement, rep-resentations or concessions of the par-ties or opinions expressed by the settle-ment judge will be admissible as evi-dence in any Commission licensing pro-ceeding.

[56 FR 793, Jan. 9, 1991, as amended at 62 FR4171, Jan. 29, 1997]

§ 1.245 Disqualification of presiding of-ficer.

(a) In the event that a presiding offi-cer deems himself disqualified and de-sires to withdraw from the case, heshall notify the Commission of hiswithdrawal at least 7 days prior to thedate set for hearing.

(b) Any party may request the presid-ing officer to withdraw on the grounds


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47 CFR Ch. I (10–1–97 Edition)§ 1.246

of personal bias or other disqualifica-tion.

(1) The person seeking disqualifica-tion shall file with the presiding officeran affidavit setting forth in detail thefacts alleged to constitute grounds fordisqualification. Such affidavit shall befiled not later than 5 days before thecommencement of the hearing unless,for good cause shown, additional timeis necessary.

(2) The presiding officer may file aresponse to the affidavit; and if he be-lieves himself not disqualified, shall sorule and proceed with the hearing.

(3) The person seeking disqualifica-tion may appeal a ruling of disquali-fication, and, in that event, shall do soat the time the ruling is made. Unlessan appeal of the ruling is filed at thistime, the right to request withdrawalof the presiding officer shall be deemedwaived.

(4) If an appeal of the ruling is filed,the presiding officer shall certify thequestion, together with the affidavitand any response filed in connectiontherewith, to the Commission. Thehearing shall be suspended pending aruling on the question by the Commis-sion.

(5) The Commission may rule on thequestion without hearing, or it may re-quire testimony or argument on the is-sues raised.

(6) The affidavit, response, testimonyor argument thereon, and the Commis-sion’s decision shall be part of therecord in the case.

(5 U.S.C. 556)

[28 FR 12425, Nov. 22, 1963, as amended at 55FR 36641, Sept. 6, 1990; 62 FR 4171, Jan. 29,1997]

PREHEARING PROCEDURES

§ 1.246 Admission of facts and genuine-ness of documents.

(a) Within 20 days after the time forfiling a notice of appearance has ex-pired; or within 20 days after the re-lease of an order adding parties to theproceeding (see §§ 1.223 and 1.227) orchanging the issues (see § 1.229); orwithin such shorter or longer time asthe presiding officer may allow on mo-tion or notice, a party may serve uponany other party a written request forthe admission by the latter of the

genuineness of any relevant documentsidentified in and exhibited by a clearcopy with the request or of the truth ofany relevant matters of fact set forthin the request.

(b) Each of the matters of which anadmission is requested shall be deemedadmitted unless, within a period des-ignated in the request, not less than 10days after service thereof, or withinsuch shorter or longer time as the pre-siding officer may allow on motion ornotice, the party to whom the requestis directed serves upon the party re-questing the admission either: (1) Asworn statement denying specificallythe matters of which an admission isrequested or setting forth in detail thereasons why he cannot truthfullyadmit or deny those matters, or (2)written objections on the ground thatsome or all of the requested admissionsare privileged or irrelevant or that therequest is otherwise improper in wholeor in part. If written objections to apart of the request are made, the re-mainder of the request shall be an-swered within the period designated inthe request. A denial shall fairly meetthe substance of the requested admis-sion, and when good faith requires thata party deny only a part or a qualifica-tion of a matter of which an admissionis requested, he shall specify so muchof it as is true and deny only the re-mainder.

(c) A copy of the request and of anyanswer shall be served by the party fil-ing on all other parties to the proceed-ing and upon the presiding officer.

(d) Written objections to the re-quested admissions may be ruled uponby the presiding officer without addi-tional pleadings.

[33 FR 463, Jan. 12, 1968, as amended at 35 FR17333, Nov. 11, 1970]

§ 1.248 Prehearing conferences; hear-ing conferences.

(a) The Commission, on its own ini-tiative or at the request of any party,may direct the parties or their attor-neys to appear at a specified time andplace for a conference prior to a hear-ing, or to submit suggestions in writ-ing, for the purpose of considering,among other things, the matters setforth in paragraph (c) of this section.The initial prehearing conference shall


139


be scheduled 30 days after the effectivedate of the order designating a case forhearing, unless good cause is shown forscheduling such conference at a laterdate.

(b)(1) The presiding officer (or theCommission or a panel of commis-sioners in a case over which it pre-sides), on his own initiative or at therequest of any party, may direct theparties or their attorneys to appear ata specified time and place for a con-ference prior to or during the course ofa hearing, or to submit suggestions inwriting, for the purpose of consideringany of the matters set forth in para-graph (c) of this section. The initialprehearing conference shall be sched-uled 30 days after the effective date ofthe order designating a case for hear-ing, unless good cause is shown forscheduling such conference at a laterdate.

(2) Except as circumstances other-wise require, the presiding officer shallallow a reasonable period prior to com-mencement of the hearing for the or-derly completion of all prehearing pro-cedures, including discovery, and forthe submission and disposition of allprehearing motions. Where the cir-cumstances so warrant, the presidingofficer shall, promptly after the hear-ing is ordered, call a preliminary pre-hearing conference, to inquire into theuse of available procedures con-templated by the parties and the timerequired for their completion, to for-mulate a schedule for their completion,and to set a date for commencement ofthe hearing.

(c) In conferences held, or in sugges-tions submitted, pursuant to para-graphs (a) and (b) of this section, thefollowing matters, among others, maybe considered:

(1) The necessity or desirability ofsimplification, clarification, amplifi-cation, or limitation of the issues;

(2) The admission of facts and of thegenuineness of documents (see § 1.246),and the possibility of stipulating withrespect to facts;

(3) The procedure at the hearing;(4) The limitation of the number of

witnesses;(5) In cases arising under Title II of

the Communications Act, the necessityor desirability of amending the plead-

ings and offers of settlement or propos-als of adjustment; and

(6) In cases involving comparativebroadcast applications:

(i) Narrowing the issues or the areasof inquiry and proof at the hearing;

(ii) [Reserved](iii) Reports and letters relating to

surveys or contacts;(iv) Assumptions regarding the avail-

ability of equipment;(v) Network programming;(vi) Assumptions regarding the avail-

ability of networks proposed;(vii) Offers of letters in general;(viii) The method of handling evi-

dence relating to the past cooperationof existing stations owned and/or oper-ated by the applicants with organiza-tions in the area;

(ix) Proof of contracts, agreements,or understandings reduced to writing;

(x) Stipulations;(xi) Need for depositions;(xii) The numbering of exhibits;(xiii) The order or offer of proof with

relationship to docket number;(xiv) The date for the formal hearing;

and(xv) Such other matters as may expe-

dite the conduct of the hearing.(7) In proceedings in which consent

agreements may be negotiated (see§ 1.93), the parties shall be prepared tostate at the initial prehearing con-ference whether they are at that timewilling to enter negotiations leading toa consent agreement.

(d) This paragraph applies to broad-cast proceedings only.

(1) At the prehearing conference pre-scribed by this section, the parties tothe proceeding shall be prepared to dis-cuss the advisability of reducing any orall phases of their affirmative directcases to written form.

(2) In hearings involving applicationsfor new, improved and changed facili-ties and in comparative hearings in-volving only applications for new fa-cilities, where it appears that it willcontribute significantly to the disposi-tion of the proceeding for the parties tosubmit all or any portion of their af-firmative direct cases in writing, thepresiding officer may, in his discretion,require them to do so.

(3) In other broadcast proceedings,where it appears that it will contribute


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47 CFR Ch. I (10–1–97 Edition)§ 1.249

significantly to the disposition of theproceeding for the parties to submit allor any portion of their affirmative di-rect cases in writing, it is the policy ofthe Commission to encourage them todo so. However, the phase or phases ofthe proceeding to be submitted in writ-ing, the dates for the exchange of thewritten material, and other limitationsupon the effect of adopting the writtencase procedure (such as whether mate-rial ruled out as incompetent may berestored by other competent testi-mony) is to be left to agreement of theparties as approved by the presiding of-ficer.

(4) In broadcast comparative cases in-volving applicants for only new facili-ties, oral testimony and cross examina-tion will be permitted only where, inthe discretion of the presiding judge,material issues of decisional fact can-not be resolved without oral evi-dentiary hearing procedures or thepublic interest otherwise requires oralevidentiary proceedings.

(e) An official transcript of all con-ferences shall be made.

(f) The presiding officer may, uponthe written request of a party or par-ties, approve the use of a speakerphoneas a means of attendance at a prehear-ing conference if such use is found toconduce to the proper dispatch of busi-ness and the ends of justice.

[28 FR 12425, Nov. 22, 1963, as amended at 33FR 463, Jan. 12, 1968; 36 FR 14133, July 30,1971; 37 FR 7507, Apr. 15, 1972; 41 FR 14873,Apr. 8, 1976; 43 FR 33251, July 31, 1978; 56 FR793, Jan. 9, 1991]

§ 1.249 Prehearing statement.

Immediately upon convening the for-mal hearing in any proceeding, the pre-siding officer shall enter upon therecord a statement reciting all actionstaken at the prehearing conferences,and incorporating into the record all ofthe stipulations and agreements of theparties which are approved by him, andany special rules which he may deemnecessary to govern the course of theproceeding.

[28 FR 12425, Nov. 22, 1963. Redesignated at 33FR 463, Jan. 12, 1968]

HEARING AND INTERMEDIATE DECISION

§ 1.250 Discovery and preservation ofevidence; cross-reference.

For provisions relating to prehearingdiscovery and preservation of admissi-ble evidence, see §§ 1.311 through 1.325.

[33 FR 463, Jan. 12, 1968]

§ 1.251 Summary decision.(a)(1) Any party to an adjudicatory

proceeding may move for summary de-cision of all or any of the issues set forhearing. The motion shall be filed atleast 20 days prior to the date set forcommencement of the hearing. Theparty filing the motion may not restupon mere allegations or denials butmust show, by affidavit or by othermaterials subject to consideration bythe presiding officer, that there is nogenuine issue of material fact for de-termination at the hearing.

(2) With the permission of the presid-ing officer, or upon his invitation, amotion for summary decision may befiled at any time before or after thecommencement of the hearing. No ap-peal from an order granting or denyinga request for permission to file a mo-tion for summary decision shall be al-lowed. If the presiding officer author-izes a motion for summary decisionafter the commencement of the hear-ing, proposed findings of fact and con-clusions of law on those issues whichthe moving party believes can be re-solved shall be attached to the motion,and any other party may file findingsof fact and conclusions of law as an at-tachment to pleadings filed by himpursuant to paragraph (b) of this sec-tion.

(b) Within 14 days after a motion forsummary decision is filed, any otherparty to the proceeding may file an op-position or a countermotion for sum-mary decision. A party opposing themotion may not rest upon mere allega-tions or denials but must show, by affi-davit or by other materials subject toconsideration by the presiding officer,that there is a genuine issue of mate-rial fact for determination at the hear-ing, that he cannot, for good cause,present by affidavit or otherwise factsessential to justify his opposition, orthat summary decision is otherwise in-appropriate.


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(c) Affidavits shall be made on per-sonal knowledge, shall set forth suchfacts as would be admissible in evi-dence, and shall show affirmativelythat the affiant is competent to testifyto the matters stated therein.

(d) The presiding officer may, in hisdiscretion, set the matter for argumentand call for the submission of proposedfindings, conclusions, briefs or memo-randa of law. The presiding officer, giv-ing appropriate weight to the nature ofthe proceeding, the issue or issues, theproof, and to the need for cross-exam-ination, may grant a motion for sum-mary decision to the extent that thepleadings, affidavits, materials ob-tained by discovery or otherwise, ad-missions, or matters officially noticed,show that there is no genuine issue asto any material fact and that a party isotherwise entitled to summary deci-sion. If it appears from the affidavits ofa party opposing the motion that hecannot, for good cause shown, presentby affidavit or otherwise facts essentialto justify his opposition, the presidingofficer may deny the motion, mayorder a continuance to permit affida-vits to be obtained or discovery to behad, or make such other order as isjust.

(e) If all of the issues (or a dispositiveissue) are determined on a motion forsummary decision no hearing (or fur-ther hearing) will be held. The presid-ing officer will issue a Summary Deci-sion, which is subject to appeal or re-view in the same manner as an InitialDecision. See §§ 1.271 through 1.282. Ifsome of the issues only (including nodispositive issue) are decided on a mo-tion for summary decision, or if themotion is denied, the presiding officerwill issue a memorandum opinion andorder, interlocutory in character, andthe hearing will proceed on the remain-ing issues. Appeal from interlocutoryrulings is governed by § 1.301.

(f) The presiding officer may takeany action deemed necessary to assurethat summary decision procedures arenot abused. He may rule in advance ofa motion that the proceeding is not ap-propriate for summary decision, andmay take such other measures as arenecessary to prevent any unwarranteddelay.

(1) Should it appear to the satisfac-tion of the presiding officer that a mo-tion for summary decision has beenpresented in bad faith or solely for thepurpose of delay, or that such a motionis patently frivolous, he will enter a de-termination to that effect upon therecord.

(2) If, on making such determination,the presiding officer concludes that thefacts warrant disciplinary actionagainst an attorney, he will certify thematter to the Commission with hisfindings and recommendations, for con-sideration under § 1.24.

(3) If, on making such determination,the presiding officer concludes that thefacts warrant a finding of bad faith onthe part of a party to the proceeding,he will certify the matter to the Com-mission, with his findings and rec-ommendations, for a determination asto whether the facts warrant additionof an issue as to the character quali-fications of that party.

[37 FR 7507, Apr. 15, 1972, as amended at 42FR 56508, Oct. 26, 1977]

§ 1.253 Time and place of hearing.(a) The Commission will specify the

day on which and the place at whichany hearing is to commence.

(b) The presiding officer will specifythe days on which subsequent hearingsessions are to be held.

(c) If the Commission specifies that ahearing is to commence in the Districtof Columbia, it shall be moved there-from only by order of the Commission.

(d) If the Commission specifies that ahearing is to commence at a field loca-tion, all appropriate proceedings willbe completed at such location beforethe hearing is moved therefrom. Whensuch proceedings are completed, thepresiding officer may move the hearingfrom the field location specified to an-other appropriate field location or tothe District of Columbia.

§ 1.254 Nature of the hearing; burdenof proof.

Any hearing upon an applicationshall be a full hearing in which the ap-plicant and all other parties in interestshall be permitted to participate but inwhich both the burden of proceedingwith the introduction of evidence uponany issue specified by the Commission,


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47 CFR Ch. I (10–1–97 Edition)§ 1.255

as well as the burden of proof upon allsuch issues, shall be upon the applicantexcept as otherwise provided in theorder of designation.


§ 1.255 Order of procedure.(a) At hearings on a formal com-

plaint or petition or in a proceeding forany instrument of authorization whichthe Commission is empowered to issue,the complainant, petitioner, or appli-cant, as the case may be, shall, unlessthe Commission otherwise orders, openand close. At hearings on protests, theprotestant opens and closes the pro-ceedings in case the issues are not spe-cifically adopted by the Commission;otherwise the grantee does so. At hear-ings on orders to show cause, to ceaseand desist, to revoke or modify a sta-tion license under sections 312 and 316of the Communications Act, or otherlike proceedings instituted by theCommission, the Commission shallopen and close.

(b) At all hearings under Title II ofthe Communications Act, other thanhearings on formal complaints, peti-tions, or applications, the respondentshall open and close unless otherwisespecified by the Commission.

(c) In all other cases, the Commissionor presiding officer shall designate theorder of presentation. Intervenors shallfollow the party in whose behalf inter-vention is made, and in all cases wherethe intervention is not in support of anoriginal party, the Commission or pre-siding officer shall designate at whatstage such intervenors shall be heard.


§ 1.258 Closing of the hearing.The record of hearing shall be closed

by an announcement to that effect atthe hearing by the presiding officerwhen the taking of testimony has beenconcluded. In the discretion of the pre-siding officer, the record may be closedas of a future specified date in order topermit the admission into the record ofexhibits to be prepared: Provided, Theparties to the proceeding stipulate onthe record that they waive the oppor-tunity to cross-examine or present evi-

dence with respect to such exhibits.The record in any hearing which hasbeen adjourned may not be closed bysuch officer prior to the day on whichthe hearing is to resume, except upon10 days’ notice to all parties to the pro-ceeding.

§ 1.260 Certification of transcript.After the close of the hearing, the

complete transcript of testimony, to-gether with all exhibits, shall be cer-tified as to identity by the presiding of-ficer and filed in the office of the Sec-retary of the Commission. Notice ofsuch certification shall be served on allparties to the proceedings.

§ 1.261 Corrections to transcript.At any time during the course of the

proceeding, or as directed by the pre-siding officer, but not later than 10days after the date of notice of certifi-cation of the transcript, any party tothe proceeding may file with the pre-siding officer a motion requesting thecorrection of the transcript, which mo-tion shall be accompanied by proof ofservice thereof upon all other partiesto the proceeding. Within 5 days afterthe filing of such a motion, other par-ties may file a pleading in support of orin opposition to such motion. There-after, the presiding officer shall, byorder, specify the corrections to bemade in the transcript, and a copy ofthe order shall be served upon all par-ties and made a part of the record. Thepresiding officer, on his own initiative,may specify corrections to be made inthe transcript on 5 days’ notice.

[40 FR 51441, Nov. 5, 1975]

§ 1.263 Proposed findings and conclu-sions.

(a) Each party to the proceeding mayfile proposed findings of fact and con-clusions, briefs, or memoranda of law:Provided, however, That the presidingofficer may direct any party other thanCommission counsel to file proposedfindings of fact and conclusions, briefs,or memoranda of law. Such proposedfindings of fact, conclusions, briefs, andmemoranda of law shall be filed within20 days after the record is closed, un-less additional time is allowed.

(b) All pleadings and other papersfiled pursuant to this section shall be


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accompanied by proof of service there-of upon all other counsel in the pro-ceeding; if a party is not representedby counsel, proof of service upon suchparty shall be made.

(c) In the absence of a showing ofgood cause therefor, the failure to fileproposed findings of fact, conclusions,briefs, or memoranda of law, when di-rected to do so, may be deemed a waiv-er of the right to participate further inthe proceeding.

(5 U.S.C. 557)

§ 1.264 Contents of findings of fact andconclusions.

Proposed findings of fact shall be setforth in serially numbered paragraphsand shall set out in detail and withparticularity all basic evidentiaryfacts developed on the record (with ap-propriate citations to the transcript ofrecord or exhibit relied on for each evi-dentiary fact) supporting the conclu-sions proposed by the party filingsame. Proposed conclusions shall beseparately stated. Proposed findings offact and conclusions submitted by aperson other than an applicant may belimited to those issues in connectionwith the hearing which affect the in-terests of such person.

(5 U.S.C. 557)

§ 1.267 Initial and recommended deci-sions.

(a) Except as provided in this para-graph, in §§ 1.94, 1.251 and 1.274, orwhere the proceeding is terminated onmotion (see § 1.302), the presiding offi-cer shall prepare an initial (or rec-ommended) decision, which shall betransmitted to the Secretary of theCommission. In the case of rate mak-ing proceedings conducted under sec-tions 201–205 of the CommunicationsAct, the presumption shall be that thepresiding officer shall prepare an ini-tial or recommended decision. The Sec-retary will make the decision publicimmediately and file it in the docket ofthe case.

(b) Each initial and recommended de-cision shall contain findings of fact andconclusions, as well as the reasons orbasis therefor, upon all the material is-sues of fact, law, or discretion pre-sented on the record; each initial deci-

sion shall also contain the appropriaterule or order, and the sanction, reliefor denial thereof; and each rec-ommended decision shall contain rec-ommendations as to what dispositionof the case should be made by the Com-mission. Each initial decision willshow the date upon which it will be-come effective in accordance with therules in this part in the absence of ex-ceptions, appeal, or review.

(c) The authority of the Presiding Of-ficer over the proceedings shall ceasewhen he has filed his Initial or Rec-ommended Decision, or if it is a case inwhich he is to file no decision, when hehas certified the case for decision: Pro-vided, however, That he shall retainlimited jurisdiction over the proceed-ing for the purpose of effecting certifi-cation of the transcript and correctionsto the transcript, as provided in §§ 1.260and 1.261, respectively, and for the pur-pose of ruling initially on applicationsfor awards of fees and expenses underthe Equal Access to Justice Act.

(Sec. 409, 48 Stat. 1096, as amended; 47 U.S.C.409, 5 U.S.C. 557; secs. 4, 303, 307, 48 Stat., asamended, 1066, 1082, 1083: 47 U.S.C. 154, 303,307)

[28 FR 12425, Nov. 22, 1963, as amended at 41FR 14873, Apr. 8, 1976; 47 FR 3786, Jan. 27,1982]

REVIEW PROCEEDINGS

§ 1.271 Delegation of review function.The Commission may direct, by order

or rule, that its review function in acase or category of cases be performedby a commissioner, or a panel of com-missioners, in which event the commis-sioner or panel shall exercise the au-thority and perform the functionswhich would otherwise have been per-formed by the Commission under§§ 1.273 through 1.282.

NOTE: To provide for an orderly completionof cases, exceptions and related pleadingsfiled after March 1, 1996, shall be directed tothe Commission and will not be acted uponby the Review Board.

[62 FR 4171, Jan. 29, 1997]

§ 1.273 Waiver of initial or rec-ommended decision.

At the conclusion of the hearing orwithin 20 days thereafter, all parties to


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the proceeding may agree to waive aninitial or recommended decision, andmay request that the Commission issuea final decision or order in the case. Ifthe Commission has directed that itsreview function in the case be per-formed by a commissioner, a panel ofcommissioners, the request shall be di-rected to the appropriate review au-thority. The Commission or such re-view authority may in its discretiongrant the request, in whole or in part,if such action will best conduce to theproper dispatch of business and to theends of justice.


§ 1.274 Certification of the record tothe Commission for initial or finaldecision.

(a) Where the presiding officer isavailable to the Commission, andwhere the Commission finds upon therecord that due and timely executionof its functions imperatively and un-avoidably so requires, the Commissionmay direct that the record in a pendingproceeding be certified to it for initialor final decision. Unless the Commis-sion finds that due and timely execu-tion of its functions imperatively andunavoidably requires that no rec-ommended decision be issued, the pre-siding officer will prepare and file arecommended decision, which will bereleased with the Commission’s initialor final decision.

(b) Where the presiding officer be-comes unavailable to the Commissionafter the taking of testimony has beenconcluded, the Commission may directthat the record in a pending proceedingbe certified to it for initial or final de-cision. In that event, the record shallbe certified to the Commission by theChief Administrative Law Judge.

(c)(1) Where the presiding officer be-comes unavailable to the Commissionafter the taking of evidence has com-menced but before it has been con-cluded, the Commission may order arehearing before another presiding offi-cer designated in accordance with§ 1.241.

(2) Upon a finding that due and time-ly execution of its functions impera-tively and unavoidably so requires, theCommission may (as an alternative)

order that the hearing be continued byanother presiding officer designated inaccordance with § 1.241 or by the Com-mission itself. In that event, the officercontinuing the hearing shall, uponcompletion of the hearing, certify theproceeding to the Commission for aninitial or final decision. Unless theCommission finds upon the record thatdue and timely execution of its func-tions imperatively and unavoidably re-quires that no recommended decisionbe issued, the officer continuing thehearing shall prepare and file a rec-ommended decision to be released withthe Commission’s initial or final deci-sion. If all the parties expressly con-sent, and if the Commission does notorder otherwise, the officer continuingthe hearing may prepare an initial de-cision.


§ 1.276 Appeal and review of initial de-cision.

(a)(1) Within 30 days after the date onwhich public release of the full text ofan initial decision is made, or suchother time as the Commission mayspecify, any of the parties may appealto the Commission by filing exceptionsto the initial decision, and such deci-sion shall not become effective andshall then be reviewed by the Commis-sion, whether or not such exceptionsmay thereafter be withdrawn. It is theCommission’s policy that extensions oftime for filing exceptions shall not beroutinely granted.

(2) Exceptions shall be consolidatedwith the argument in a supportingbrief and shall not be submitted sepa-rately. As used in this subpart, theterm exceptions means the documentconsolidating the exceptions and sup-porting brief. The brief shall contain (i)a table of contents, (ii) a table of cita-tions, (iii) a concise statement of thecase, (iv) a statement of the questionsof law presented, and (v) the argument,presenting clearly the points of factand law relied upon in support of theposition taken on each question, withspecific reference to the record and alllegal or other materials relied on.

(b) The Commission may on its owninitiative provide, by order adopted not


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later than 20 days after the time for fil-ing exceptions expires, that an initialdecision shall not become final, andthat it shall be further reviewed orconsidered by the Commission.

(c) In any case in which an initial de-cision is subject to review in accord-ance with paragraph (a) or (b) of thissection, the Commission may, on itsown initiative or upon appropriate re-quests by a party, take any one ormore of the following actions:

(1) Hear oral argument on the excep-tions;

(2) Require the filing of briefs;(3) Prior to or after oral argument or

the filing of exceptions or briefs, re-open the record and/or remand the pro-ceedings to the presiding officer totake further testimony or evidence;

(4) Prior to or after oral argument orthe filing of exceptions or briefs, re-mand the proceedings to the presidingofficer to make further findings or con-clusions; and

(5) Prior to or after oral argument orthe filing of exceptions or briefs, issue,or cause to be issued by the presidingofficer, a supplemental initial decision.

(d) No initial decision shall becomeeffective before 50 days after public re-lease of the full text thereof is madeunless otherwise ordered by the Com-mission. The timely filing of excep-tions, the further review or consider-ation of an initial decision on the Com-mission’s initiative, or the taking ofaction by the Commission under para-graph (c) of this section shall stay theeffectiveness of the initial decisionuntil the Commission’s review thereofhas been completed. If the effectivedate of an initial decision falls withinany further time allowed for the filingof exceptions, it shall be postponedautomatically until 30 days after timefor filing exceptions has expired.

(e) If no exceptions are filed, and theCommission has not ordered the reviewof an initial decision on its initiative,or has not taken action under para-graph (c) of this section, the initial de-cision shall become effective, an appro-priate notation to that effect shall beentered in the docket of the case, anda ‘‘Public Notice’’ thereof shall begiven by the Commission. The provi-sions of § 1.108 shall not apply to suchpublic notices.

(f) When any party fails to file excep-tions within the specified time to aninitial decision which proposes to denyits application, such party shall bedeemed to have no interest in furtherprosecution of its application, and itsapplication may be dismissed withprejudice for failure to prosecute.


[28 FR 12425, Nov. 22, 1963, as amended at 41FR 14873, Apr. 8, 1976]

§ 1.277 Exceptions; oral arguments.

(a) The consolidated supporting briefand exceptions to the initial decision(see § 1.276(a)(2)), including rulings uponmotions or objections, shall point outwith particularity alleged material er-rors in the decision or ruling and shallcontain specific references to the pageor pages of the transcript of hearing,exhibit or order if any on which the ex-ception is based. Any objection notsaved by exception filed pursuant tothis section is waived.

(b) Within the period of time allowedin § 1.276(a) for the filing of exceptions,any party may file a brief in support ofan initial decision, in whole or in part,which may contain exceptions andwhich shall be similar in form to thebrief in support of exceptions (see§ 1.276(a)(2)).

(c) Except by special permission, theconsolidated brief and exceptions willnot be accepted if the exceptions andargument exceed 25 double-spacedtypewritten pages in length. (The tableof contents and table of citations arenot counted in the 25 page limit; how-ever, all other contents of and attach-ments to the brief are counted.) Within10 days, or such other time as the Com-mission or delegated authority mayspecify, after the time for filing excep-tions has expired, any other party mayfile a reply brief, which shall not ex-ceed 25 double spaced typewrittenpages and shall contain a table of con-tents and a table of citations. If excep-tions have been filed, any party mayrequest oral argument not later thanfive days after the time for filing re-plies to the exceptions has expired. TheCommission or delegated authority, inits discretion, will grant oral argumentby order only in cases where such oral


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presentations will assist in the resolu-tion of the issues presented. Withinfive days after release of an order des-ignating an initial decision for oral ar-gument, as provided in paragraph (d) ofthis section, any party who wishes toparticipate in oral argument shall filea written notice of intention to appearand participate in oral argument. Fail-ure to file a written notice shall con-stitute a waiver of the opportunity toparticipate.

(d) Each order scheduling a case fororal argument will contain the allot-ment of time for each party for oral ar-gument before the Commission. TheCommission will grant, in its discre-tion, upon good cause shown, an exten-sion of such time upon petition by aparty, which petition must be filedwithin 5 days after issuance of saidorder for oral argument.

(e) Within 10 days after a transcriptof oral argument has been filed in theoffice of the Secretary of the Commis-sion, any party who participated in theoral argument may file with the Com-mission a motion requesting correctionof the transcript, which motion shallbe accompanied by proof of servicethereof upon all other parties who par-ticipated in the oral argument. Within5 days after the filing of such a motion,other parties may file a pleading insupport of or in opposition to such mo-tion. Thereafter, the officer who pre-sided at the oral argument shall, byorder, specify the corrections to bemade in the transcript, and a copy ofthe order shall be served upon all par-ties to the proceeding. The officer whopresided at the oral argument may, onhis own initiative, by order, specifycorrections to be made in the tran-script on 5 days notice of the proposedcorrections to all parties who partici-pated in the oral argument.

(f) Any commissioner who is notpresent at oral argument and who isotherwise authorized to participate ina final decision may participate inmaking that decision after reading thetranscript of oral argument.


[28 FR 12425, Nov. 22, 1963, as amended at 41FR 14873, Apr. 8, 1976; 41 FR 34259, Aug. 13,1976; 44 FR 12426, Mar. 7, 1979; 56 FR 793, Jan.9, 1991; 62 FR 4171, Jan. 29, 1997]

§ 1.279 Limitation of matters to be re-viewed.

Upon review of any initial decision,the Commission may, in its discretion,limit the issues to be reviewed to thosefindings and conclusions to which ex-ceptions have been filed, or to thosefindings and conclusions specified inthe Commission’s order of review is-sued pursuant to § 1.276(b).

§ 1.282 Final decision of the Commis-sion.

(a) After opportunity has been af-forded for the filing of proposed find-ings of fact and conclusions, excep-tions, supporting statements, briefs,and for the holding of oral argument asprovided in this subpart, the Commis-sion will issue a final decision in eachcase in which an initial decision hasnot become final.

(b) The final decision shall contain:(1) Findings of fact and conclusions,

as well as the reasons or basis therefor,upon all the material issues of fact, lawor discretion presented on the record;

(2) Rulings on each relevant and ma-terial exception filed; the Commissionwill deny irrelevant exceptions, orthose which are not of decisional sig-nificance, without a specific statementof reasons prescribed by paragraph(b)(1) of this section; and

(3) The appropriate rule or oder andthe sanction, relief or denial thereof.

(Sec. 8(b), 60 Stat. 2422; 5 U.S.C. 1007(b))


INTERLOCUTORY ACTIONS IN HEARINGPROCEEDINGS

§ 1.291 General provisions.(a)(1) The Commission acts on peti-

tions to amend, modify, enlarge or de-lete the issues in hearing proceedingswhich involve rule making matters ex-clusively. It also acts on interlocutorypleadings filed in matters or proceed-ings which are before the Commission.

(2) The Chief Administrative LawJudge acts on those interlocutory mat-ters listed in § 0.351 of this chapter.

(3) All other interlocutory matters inhearing proceedings are acted on bythe presiding officer. See §§ 0.218 and0.341 of this chapter.


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(4) Each interlocutory pleading shallindicate in its caption whether thepleading is to be acted upon by theCommission, the Chief AdministrativeLaw Judge, or the presiding officer. Ifthe pleading is to be acted upon by thepresiding officer, he shall be identifiedby name.

(b) All interlocutory pleadings shallbe submitted in accordance with theprovisions of §§ 1.4, 1.44, 1.47, 1.48, 1.49,and 1.52.

(c)(1) Procedural rules governing in-terlocutory pleadings are set forth in§§ 1.294–1.298.

(2) Rules governing appeal from, andreconsideration of, interlocutory rul-ings made by the presiding officer areset forth in §§ 1.301 and 1.303.

(3) Rules governing the review of in-terlocutory rulings made by the ChiefAdministrative Law Judge are setforth in §§ 1.101, 1.102(b), 1.115, and 1.117.Petitions requesting reconsideration ofan interlocutory ruling made by theCommission, or the Chief Administra-tive Law Judge will not be entertained.See, however, § 1.113.

(d) No initial decision shall becomeeffective under § 1.276(e) until all inter-locutory matters pending before theCommission in the proceeding at thetime the initial decision is issued havebeen disposed of and the time allowedfor appeal from interlocutory rulings ofthe presiding officer has expired.

(Secs. 4(i), 303(r) and 5(c)(1) of the Commu-nications Act of 1934, as amended; 47 CFR0.61 and 0.283)

[29 FR 6443, May 16, 1964, as amended at 29FR 12773, Sept. 10, 1964; 37 FR 19372, Sept. 20,1972; 41 FR 14873, Apr. 8, 1976; 49 FR 4381, Feb.6, 1984; 62 FR 4171, Jan. 29, 1997]

§ 1.294 Oppositions and replies.(a) Any party to a hearing may file

an opposition to an interlocutory re-quest filed in that proceeding.

(b) Except as provided in paragraph(c) of this section, oppositions shall befiled within 4 days after the originalpleading is filed, and replies to opposi-tions will not be entertained. See, how-ever, § 1.732.

(c) Oppositions to pleadings in thefollowing categories shall be filed with-in 10 days after the pleading is filed.Replies to such oppositions shall befiled within 5 days after the opposition

is filed, and shall be limited to mattersraised in the opposition.

(1) Petitions to amend, modify, en-large, or delete the issues upon whichthe hearing was ordered.

(2) [Reserved](3) Petitions by adverse parties re-

questing dismissal of an application.(4) Joint requests for approval of

agreements filed pursuant to § 1.525.(d) Additional pleadings may be filed

only if specifically requested or au-thorized by the person(s) who is tomake the ruling.

[29 FR 6444, May 16, 1964, as amended at 39FR 10909, Mar. 22, 1974]

§ 1.296 Service.No pleading filed pursuant to § 1.51 or

§ 1.294 will be considered unless it is ac-companied by proof of service upon theparties to the proceeding.

(Secs. 4(i), 303(r) and 5(c)(1) of the Commu-nications Act of 1934, as amended; 47 CFR0.61 and 0.283)

[49 FR 4381, Feb. 6, 1984, as amended at 62 FR4171, Jan. 29, 1997]

§ 1.297 Oral argument.Oral argument with respect to any

contested interlocutory matter will beheld when, in the opinion of the per-son(s) who is to make the ruling, theends of justice will be best servedthereby. Timely notice will be given ofthe date, time, and place of any suchoral argument.

[29 FR 6444, May 16, 1964]

§ 1.298 Rulings; time for action.(a) Unless it is found that irreparable

injury would thereby be caused one ofthe parties, or that the public interestrequires otherwise, or unless all partieshave consented to the contrary, consid-eration of interlocutory requests willbe withheld until the time for filing op-positions (and replies, if replies are al-lowed) has expired. As a matter of dis-cretion, however, requests for continu-ances and extensions of time, requestsfor permission to file pleadings in ex-cess of the length prescribed in thischapter, and requests for temporary re-lief may be ruled upon ex parte withoutwaiting for the filing of responsivepleadings.


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(b) In the discretion of the presidingofficer, rulings on interlocutory mat-ters may be made orally at the hear-ing. The presiding officer may, in hisdiscretion, state his reasons on therecord or subsequently issue a writtenstatement of the reasons for his ruling,either separately or as part of the ini-tial decision.

[28 FR 12425, Nov. 22, 1963, as amended at 29FR 6444, May 16, 1964; 41 FR 14874, Apr. 8,1976]

APPEAL AND RECONSIDERATION OFPRESIDING OFFICER’S RULING

§ 1.301 Appeal from presiding officer’sinterlocutory ruling; effective dateof ruling.

(a) Interlocutory rulings which are ap-pealable as a matter of right. Rulingslisted in this paragraph are appealableas a matter of right. An appeal fromsuch a ruling may not be deferred andraised as an exception to the initial de-cision.

(1) If the presiding officer’s ruling de-nies or terminates the right of any per-son to participate as a party to a hear-ing proceeding, such person, as a mat-ter of right, may file an appeal fromthat ruling.

(2) If the presiding officer’s ruling re-quires testimony or the production ofdocuments, over objection based on aclaim of privilege, the ruling on theclaim of privilege is appealable as amatter of right.

(3) If the presiding officer’s ruling de-nies a motion to disqualify the presid-ing judge, the ruling is appealable as amatter of right.

(4) Rulings granting a joint requestfiled under § 1.525 without terminatingthe proceeding are appealable by anyparty as a matter of right.

(5) A ruling removing counsel fromthe hearing is appealable as a matter ofright, by counsel on his own behalf orby his client. (In the event of such rul-ing, the presiding officer will adjournthe hearing for such period as is rea-sonably necessary for the client to se-cure new counsel and for counsel to fa-miliarize himself with the case).

(b) Other interlocutory rulings. Exceptas provided in paragraph (a) of this sec-tion, appeals from interlocutory rul-ings of the presiding officer shall be

filed only if allowed by the presidingofficer. Any party desiring to file anappeal shall first file a request for per-mission to file appeal. The requestshall be filed within 5 days after theorder is released or (if no writtenorder) after the ruling is made. Plead-ings responsive to the request shall befiled only if they are requested by thepresiding officer. The request shallcontain a showing that the appeal pre-sents a new or novel question of law orpolicy and that the ruling is such thaterror would be likely to require remandshould the appeal be deferred andraised as an exception. The presidingofficer shall determine whether theshowing is such as to justify an inter-locutory appeal and, in accordancewith his determination, will eitherallow or disallow the appeal or modifythe ruling. If the presiding officer al-lows or disallows the appeal, his rulingis final: Provided, however, That theCommission may, on its own motion,dismiss an appeal allowed by the pre-siding officer on the ground that objec-tion to the ruling should be deferredand raised as an exception. In the dis-cretion of the presiding officer, the re-quest for permission to file appeal maybe made orally, on the record of theproceeding. The request may be dis-posed of orally.

(1) If an appeal is not allowed, or isdismissed by the Commission, or if per-mission to file an appeal is not re-quested, objection to the ruling may beraised on review of the initial decision.

(2) If an appeal is allowed and is con-sidered on its merits, the dispositionon appeal is final. Objection to the rul-ing or to the action on appeal may notbe raised on review of the initial deci-sion.

(3) If the presiding officer modifiesthe ruling, any party adversely af-fected by the modified ruling may filea request for permission to file appeal,pursuant to the provisions of this para-graph.

(c) Procedures, effective date. (1) Un-less the presiding officer orders other-wise, rulings made by him shall be ef-fective when the order is released or (ifno written order) when the ruling ismade. The Commission may stay theeffect of any ruling which comes beforeit for consideration on appeal.


149


(2) Appeals filed under paragraph (a)of this section shall be filed within 5days after the order is released or (if nowritten order) after the ruling is made.Appeals filed under paragraph (b) ofthis section shall be filed within 5 daysafter the appeal is allowed.

(3) The appeal shall conform with thespecifications set out in § 1.49 and shallbe subscribed and verified as providedin § 1.52.

(4) The appeal shall be served on par-ties to the proceeding (see §§ 1.47 and1.211), and shall be filed with the Sec-retary, Federal Communications Com-mission, Washington, D.C. 20554.

(5) The appeal shall not exceed 5 dou-ble-spaced typewritten pages.

(6) Appeals are acted on by the Com-mission.

(7) Oppositions and replies shall beserved and filed in the same manner asappeals and shall be served on appel-lant if he is not a party to the proceed-ing. Oppositions shall be filed within 5days after the appeal is filed. Repliesshall not be permitted, unless the Com-mission specifically requests them. Op-positions shall not exceed 5 double-spaced typewritten pages. Replies shallnot exceed 5 double-spaced typewrittenpages.


[35 FR 17333, Nov. 11, 1970, as amended at 40FR 39509, Aug. 28, 1975; 41 FR 14874, Apr. 8,1976; 41 FR 28789, July 13, 1976; 46 FR 58682,Dec. 3, 1981; 55 FR 36641, Sept. 6, 1990; 62 FR4171, Jan. 29, 1997]

§ 1.302 Appeal from presiding officer’sfinal ruling; effective date of ruling.

(a) If the presiding officer’s rulingterminates a hearing proceeding, anyparty to the proceeding, as a matter ofright, may file an appeal from that rul-ing within 30 days after the ruling isreleased.

(b) Any party who desires to preservethe right to appeal shall file a notice ofappeal within 10 days after the rulingis released. If a notice of appeal is notfiled within 10 days, the ruling shall beeffective 30 days after the ruling is re-leased and within this period, may bereviewed by the Commission on its ownmotion. If an appeal is not filed follow-ing notice of appeal, the ruling shall beeffective 50 days after the day of its re-

lease and, within this period, may bereviewed by the Commission on its ownmotion. If an appeal is filed, or if theCommission reviews the ruling on itsown motion, the effect of the ruling isfurther stayed pending the completionof proceedings on appeal or review.

(c) The appeal shall conform with thespecifications set out in § 1.49 and shallbe subscribed and verified as providedin § 1.52.

(d) The appeal shall be served on par-ties to the proceeding (see §§ 1.47 and1.211), and shall be filed with the Sec-retary, Federal Communications Com-mission, Washington, D.C. 20554.

(e) The appeal shall not exceed 25double-spaced typewritten pages.

(f) The Commission will act on theappeal.

(g) Oppositions and replies shall befiled and served in the same manner asthe appeal. Oppositions to an appealshall be filed within 15 days after theappeal is filed. Replies to oppositionsshall be filed within 10 days after theopposition is filed and shall be limitedto matters raised in the oppositions.Oppositions shall not exceed 25 double-spaced typewritten pages. Replies shallnot exceed 10 double-spaced type-written pages.

[35 FR 17333, Nov. 11, 1970, as amended at 36FR 7423, Apr. 20, 1971; 62 FR 4171, Jan. 29,1997]

THE DISCOVERY AND PRESERVATION OFEVIDENCE

AUTHORITY: Sections 1.311 through 1.325 areissued under secs. 4, 303, 409, 48 Stat., asamended, 1066, 1082, 1096; 47 U.S.C. 154, 303,409, 5 U.S.C. 552.

§ 1.311 General.Sections 1.311 through 1.325 provide

for taking the deposition of any person(including a party), for interrogatoriesto parties, and for orders to parties re-lating to the production of documentsand things and for entry upon realproperty. These procedures may beused for the discovery of relevant facts,for the production and preservation ofevidence for use at the hearing, or forboth purposes.

(a) Applicability. For purposes of dis-covery, these proecdures may be usedin any case of adjudication (as definedin the Administrative Procedure Act)


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which has been designated for hearing.For the preservation of evidence, theymay be used in any case which hasbeen designated for hearing and is con-ducted under the provisions of this sub-part (see § 1.201).

(b) Scope of examination. Persons andparties may be examined regarding anymatter, not privileged, which is rel-evant to the hearing issues, includingthe existence, description, nature, cus-tody, condition and location of anybooks, documents, or other tangiblethings and the identity and location ofpersons having knowledge of relevantfacts. It is not ground for objection touse of these procedures that the testi-mony will be inadmissible at the hear-ing if the testimony sought appearsreasonably calculated to lead to thediscovery of admissible evidence. Theuse of these procedures against theCommission is subject to the followingadditional limitations:

(1) The informer’s privilege shall en-compass information which may leadto the disclosure of an informer’s iden-tity.

(2) Commission personnel may not bequestioned by deposition for the pur-poses of discovery except on specialorder of the Commission, but may bequestioned by written interrogatoriesunder § 1.323. Interrogatories shall beserved on the appropriate Bureau Chief(see § 1.21(b)). They will be answeredand signed by those personnel withknowledge of the facts. The answerswill be served by the Secretary of theCommission upon parties to the pro-ceeding.

(3) Commission records are not sub-ject to discovery under § 1.325. The in-spection of Commission records is gov-erned by the Freedom of InformationAct, as amended, and by §§ 0.451through 0.467 of this chapter. Commis-sion employees may be questioned bywritten interrogatories regarding theexistence, nature, description, custody,condition and location of Commissionrecords, but may not be questionedconcerning their contents unless therecords are available (or are madeavailable) for inspection under §§ 0.451through 0.467. See § 0.451(b)(5) of thischapter.

(4) Subject to paragraphs (b) (1)through (3) of this section, Commission

personnel may be questioned generallyby written interrogatories regardingthe existence, description, nature, cus-tody, condition and location of rel-evant documents and things and re-garding the identity and location ofpersons having knowledge of relevantfacts, and may otherwise only be exam-ined regarding facts of the case as towhich they have direct personal knowl-edge.

(c) Schedule for use of the procedures.(1) In comparative broadcast proceed-ings involving applicants for only newfacilities, discovery commences withthe release of the hearing designationorder, and, in routine cases, the discov-ery phase of the proceeding will be con-ducted in a manner intended to con-clude that portion of the case within 90days of the release of the designationorder.

(2) In all other proceedings, except asprovided by special order of the presid-ing officer, discovery may be initiatedbefore or after the prehearing con-ference provided for in § 1.248 of thispart.

(3) In all proceedings, the presidingofficer may at any time order the par-ties or their attorneys to appear at aconference to consider the proper useof these procedures, the time to be al-lowed for such use, and/or to hearagrument and render a ruling on dis-putes that arise under these rules.

(d) Who shall act. Actions provided forin §§ 1.311 through 1.325 will, in mostcases, be taken by the officer des-ignated to preside at the hearing (see§ 1.241). If the proceeding, or a particu-lar matter to which the action relates,is before the Commission, a commis-sioner or panel of commissioners, orthe Chief Administrative Law Judge,the action will be taken by such officeror body. The term presiding officer, asused in §§ 1.311 through 1.325 shall beunderstood to refer to the appropriateofficer or body. See §§ 0.341, 0.351, 0.365,and 1.271 of this chapter.

(e) Stipulations regarding the taking ofdepositions. If all of the parties so stipu-late in writing and if there is no inter-ference to the conduct of the proceed-ing, depositions may be taken beforeany person, at any time (subject to thelimitation below) or place, upon anynotice and in any manner, and when so


151


taken may be used like other deposi-tions. An original and one copy of thestipulation shall be filed with the Sec-retary of the Commission, and a copyof the stipulation shall be served onthe presiding officer, at least 3 days be-fore the scheduled taking of the deposi-tion.

[33 FR 463, Jan. 12, 1968, as amended at 40 FR39509, Aug. 28, 1975; 47 FR 51873, Nov. 18, 1982;56 FR 794, Jan. 9, 1991; 62 FR 4171, Jan. 29,1997]

§ 1.313 Protective orders.

The use of the procedures set forth in§§ 1.311 through 1.325 of this part is sub-ject to control by the presiding officer,who may issue any order consistentwith the provisions of those sectionswhich is appropriate and just for thepurpose of protecting parties and depo-nents or of providing for the properconduct of the proceeding. Wheneverdoing so would be conducive to the effi-cient and expeditious conduct of theproceeding, the presiding officer mayconvene a conference to hear argumentand issue a ruling on any disputes thatmay arise under these rules. The rul-ing, whether written or delivered onthe record at a conference, may specifyany measures, including the followingto assure proper conduct of the pro-ceeding or to protect any party or de-ponent from annoyance, expense,embarassment or oppression:

(a) That depositions shall not betaken or that interrogatories shall notbe answered.

(b) That certain matters shall not beinquired into.

(c) That the scope of the examinationor interrogatories shall be limited tocertain matters.

(d) That depositions may be takenonly at some designated time or place,or before an officer, other than thatstated in the notice.

(e) That depositions may be takenonly by written interrogatories or onlyupon oral examination.

(f) That, after being sealed, the depo-sition shall be opened only by order ofthe presiding officer.

[33 FR 463, Jan. 12, 1968, as amended at 56 FR794, Jan. 9, 1991]

§ 1.315 Depositions upon oral examina-tion—notice and preliminary proce-dure.

(a) Notice. A party to a hearing pro-ceeding desiring to take the depositionof any person upon oral examinationshall give a minimum of 21 days noticein writing to every other party, to theperson to be examined, and to the pre-siding officer. An original and threecopies of the notice shall be filed withthe Secretary of the Commission. Re-lated pleadings shall be served andfiled in the same manner. The noticeshall contain the following informa-tion:

(1) The name and address of each per-son to be examined, if known, and ifthe name is not known, a general de-scription sufficient to identify him orthe particular class or group to whichhe belongs.

(2) The time and place for taking thedeposition of each person to be exam-ined, and the name or descriptive titleand address of the officer before whomthe deposition is to be taken.

(3) The matters upon which each per-son will be examined. See § 1.319.

(b) Responsive pleadings. (1) Within 7days after service of the notice to takedepositions, a motion opposing the tak-ing of depositions may be filed by anyparty to the proceeding or by the per-son to be examined. See § 1.319(a).

(2) Within 14 days after service of thenotice to take depositions, a responseto the opposition motion may be filedby any party to the proceeding.

(3) Additional pleadings should not befiled and will not be considered.

(4) The computation of time provi-sions set forth in § 1.4(g) shall not applyto pleadings filed under the provisionsof this paragraph.

(c) Protective order. On an oppositionmotion filed under paragraph (b) of thissection, or on his own motion, the pre-siding officer may issue a protectiveorder. See § 1.313. A protective order is-sued by the presiding officer on his ownmotion may be issued at any time priorto the date specified in the notice forthe taking of depositions.

(d) Authority to take depositions. (1) Ifan opposition motion is not filed with-in 7 days after service of the notice totake depositions, and if the presidingofficer does not on his own motion


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issue a protective order prior to thetime specified in the notice for the tak-ing of depositions, the depositions de-scribed in the notice may be taken. Anorder for the taking of depositions isnot required.

(2) If an opposition motion is filed,the depositions described in the noticeshall not be taken until the presidingofficer has acted on that motion. If thepresiding officer authorizes the takingof depositions, he may specify a time,place or officer for taking them dif-ferent from that specified in the noticeto take depositions.

(3) If the presiding officer issues aprotective order, the depositions de-scribed in the notice may be taken (ifat all) only in accordance with the pro-visions of that order.

(e) Broadcast comparative proceedingsinvolving applicants for only new facili-ties. In these cases, the 21-day advancenotice provision of paragraph (a) ofthis section shall be inapplicable todepositions of active and passive own-ers of applicants in the proceeding. Allapplicants in such proceedings shouldbe prepared to make their active andpassive owners available for deposi-tions during the period commencingwith the deadline for filing notices ofappearance and ending 90 days afterthe release of the designation order, ifsuch depositions are requested by aparty to the proceeding. All such depo-sitions will be conducted in Washing-ton, DC or in the community of licenseof the proposed station, at the depo-nent’s option, unless all parties agreeto some other location.

[33 FR 10571, July 25, 1968, as amended at 56FR 794, Jan. 9, 1991]

§ 1.316 Depositions upon written inter-rogatories—notice and preliminaryprocedure.

(a) Service of interrogatories; notice. Aparty to the hearing proceeding desir-ing to take the deposition of any per-son upon written interrogatories shallserve the interrogatories upon everyother party and shall give a minimumof 35 days notice in writing to everyother party and to the person to be ex-amined. An original and three copies ofthe interrogatories and the notice (andof all related pleadings) shall be filedwith the Secretary of the Commission.

A copy of the interrogatories and thenotice (and of all related pleadings)shall be served on the presiding officer.The notice shall contain the followinginformation:

(1) The name and address of each per-son to be examined, if known, and ifthe name is not known, a general de-scription sufficient to identify him orthe particular class or group to whichhe belongs.

(2) The time and place for taking thedeposition of each person to be exam-ined, and the name or descriptive titleand address of the officer before whomthe deposition is to be taken.

(3) The matters upon which each per-son will be examined. See § 1.319.

(b) Additional interrogatories. Within 7days after the filing and service of theoriginal interrogatories, any otherparty to the proceeding may, in thesame manner, file and serve additionalinterrogatories to be asked of the samewitness at the same time and place,with notice to the witness of any addi-tional matters upon which he will beexamined.

(c) Cross interrogatories. Within 14days after the filing and service of theoriginal interrogatories, any party tothe proceeding may, in the same man-ner, file and serve cross interrog-atories, which shall be limited to mat-ters raised in the original or in the ad-ditional interrogatories.

(d) Responsive pleadings. (1) Within 21days after service of the original inter-rogatories, any party to the proceedingmay move to limit or suppress anyoriginal, additional or cross interrog-atory, and the person to be examinedmay file a motion opposing the takingof depositions. See § 1.319(a).

(2) Within 28 days after service of theoriginal interrogatories, a response toa motion to limit or suppress any in-terrogatory or to a motion opposingthe taking of depositions may be filedby any party to the proceeding.

(3) Additional pleadings should not befiled and will not be considered.

(e) Protective order. On a motion tolimit or suppress or an opposition mo-tion filed under paragraph (d) of thissection, or on his own motion, the pre-siding officer may issue a protectiveorder. See § 1.313. A protective order is-sued by the presiding officer on his own


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motion may be issued at any time priorto the date specified in the notice forthe taking of depositions.

(f) Authority to take depositions. (1) Ifan opposition motion is not filed with-in 21 days after service of the notice totake depositions, and if the presidingofficer does not on his own motionissue a protective order prior to thetime specified in the notice for the tak-ing of depositions, the depositions de-scribed in the notice may be taken. Anorder for the taking of depositions isnot required.

(2) If an opposition motion is filed,the depositions described in the noticeshall not be taken until the presidingofficer has acted on that motion. If thepresiding officer authorizes the takingof depositions, he may specify a time,place or officer for taking them dif-ferent from that specified in the noticeto take depositions.

(3) If the presiding officer issues aprotective order, the depositions de-scribed in the notice may be taken (ifat all) only in accordance with the pro-visions of that order.

NOTE: The computation of time provisionsof § 1.4(g) shall not apply to interrogatoriesand pleadings filed under the provisions ofthis section.

[33 FR 10571, July 25, 1968]

§ 1.318 The taking of depositions.(a) Persons before whom depositions

may be taken. Depositions shall betaken before any judge of any court ofthe United States; any U.S. Commis-sioner; any clerk of a district court;any chancellor, justice or judge of a su-preme or superior court; the mayor orchief magistrate of a city; any judge ofa county court, or court of commonpleas of any of the United States; anynotary public, not being of counsel orattorney to any party, nor interestedin the event of the proceeding; or pre-siding officers, as provided in § 1.243.

(b) Attendance of witnesses. The at-tendance of witnesses at the taking ofdepositions may be compelled by theuse of subpena as provided in §§ 1.331through 1.340.

(c) Oath; transcript. The officer beforewhom the deposition is to be takenshall administer an oath or affirmationto the witness and shall personally, or

by someone acting under his directionand in his presence record the testi-mony of the witness. The testimonymay be taken stenographically or,upon approval by the presiding officer,testimony may be taken through theuse of telephonically or electronicallyrecorded methods, including videotape.In the event these latter methods areused for the deposition, the partiesmay agree to the waiver of the provi-sions of paragraphs (e) and (f) as appro-priate and as approved by the presidingofficer.

(d) Examination. (1) In the taking ofdepositions upon oral examination, theparties may proceed with examinationand cross-examination of deponents aspermitted at the hearing. In lieu ofparticipating in the oral examination,parties served with the notice to takedepositions may transmit written in-terrogatories to the officer designatedin the notice, who shall propound themto the witness and record the answersverbatim.

(2) In the taking of depositions uponwritten interrogatories, the party whoserved the original interrogatoriesshall transmit copies of all interrog-atories to the officer designated in thenotice, who shall propound them to thewitness and record the answers ver-batim.

(e) Submission of deposition to witness;changes; signing. When the testimony isfully transcribed, the deposition ofeach witness shall be submitted to himfor examination and shall be read to orby him, unless such examination andreading are waiver by the witness andby the parties. Any changes in form orsubstance which the witness desires tomake shall be entered upon the deposi-tion by the officer with a statement ofthe reasons given by the witness formaking them. The deposition shallthen be signed by the witness, unlessthe parties by stipulation waive thesigning, or the witness is ill, cannot befound, or refuses to sign. If the deposi-tion is not signed by the witness, theofficer shall sign it and state on therecord the fact of the waiver, the ill-ness or absence of the witness, or of hisrefusal to sign, together with the rea-son (if any) given therefor; and the dep-osition may then be used as fully asthough signed, unless upon a motion to


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suppress, the presiding officer holdsthat the reason given for the refusal tosign requires rejection of the deposi-tion in whole or in part.

(f) Certification of deposition and filingby officer; copies. The officer shall cer-tify on the deposition that the witnesswas duly sworn by him, that the depo-sition is a true record of the testimonygiven by the witness, and that said offi-cer is not of counsel or attorney to ei-ther of the parties, nor interested inthe event of the proceeding or inves-tigation. He shall then securely sealthe deposition in an envelope endorsedwith the title of the action and marked‘‘Deposition of (here insert name ofwitness)’’ and shall promptly send theoriginal and two copies of the deposi-tion and of all exhibits, together withthe notice and any interrogatories re-ceived by him, by certified mail to theSecretary of the Commission.

[33 FR 463, Jan. 12, 1968, as amended at 47 FR51873, Nov. 18, 1982]

§ 1.319 Objections to the taking ofdepositions.

(a) Objections to be made by motionprior to the taking of depositions. If thereis objection to the substance of any in-terrogatory or to examination on anymatter clearly covered by the notice totake depositions, the objection shall bemade in a motion opposing the takingof depositions or in a motion to limitor suppress the interrogatory as pro-vided in §§ 1.315(b) and 1.316(d) and shallnot be made at the taking of the depo-sition.

(b) Objections to be made at the takingof depositions. Errors and irregularitiesoccurring at the oral examination inthe manner of taking the deposition, inthe form of the questions or answers,in the oath or affirmation, or in theconduct of parties, and errors of anykind which might be obviated, re-moved, or cured if promptly presented,are waived unless reasonable objectionthereto is made at the taking of thedeposition. If such objection is made,counsel shall, if possible, agree uponthe measures required to obviate, re-move, or cure such errors. The meas-ures agreed upon shall be taken. Ifagreement cannot be reached, the ob-jection shall be noted on the depositionby the officer taking it, and the testi-

mony objected to shall be taken sub-ject to the objection.

(c) Additional objections which may bemade at the taking of depositions. Objec-tion may be made at the taking ofdepositions on the ground of relevancyor privilege, if the notice to take depo-sitions does not clearly indicate thatthe witness is to be examined on thematters to which the objection relates.See paragraph (a) of this section. Ob-jection may also be made on theground that the examination is beingconducted in such manner as to unrea-sonably annoy, embarrass, or oppress adeponent or party.

(1) When there is objection to a lineof questioning, as permitted by thisparagraph, counsel shall, if possible,reach agreement among themselves re-garding the proper limits of the exam-ination.

(2) If counsel cannot agree on theproper limits of the examination thetaking of depositions shall continue onmatters not objected to and counselshall, within 24 hours, either jointly orindividually, telegraph statements oftheir positions to the presiding officer,together with the telephone numbersat which they and the officer takingthe depositions can be reached, or shallotherwise jointly confer with the pre-siding officer. If individual statementsare submitted, copies shall be providedto all counsel participating in the tak-ing of depositions.

(3) The presiding officer shallpromptly rule upon the question pre-sented or take such other action asmay be appropriate under § 1.313, andshall give notice of his ruling, by tele-phone, to counsel who submitted state-ments and to the officer taking thedepositions. The presiding officer shallthereafter reduce his ruling to writing.

(4) The taking of depositions shallcontinue in accordance with the presid-ing officer’s ruling. Such rulings arenot subject to appeal.

[33 FR 463, Jan. 12, 1968]

§ 1.321 Use of depositions at the hear-ing.

(a) No inference concerning the ad-missibility of a deposition in evidenceshall be drawn because of favorable ac-tion on the notice to take depositions.


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(b) Except as provided in this para-graph and in § 1.319, objection may bemade at the hearing to receiving inevidence any deposition or part thereoffor any reason which would require theexclusion of the evidence if the witnesswere then present and testifying.

(1) Objections to the competency of awitness, or the competency, relevancyor materiality of testimony are waivedby failure to make them before or dur-ing the taking of depositions if (andonly if) the ground of the objection isone which might have been obviated orremoved if presented at that time.

(2) Objection on the ground of privi-lege is waived by failure to make it be-fore or during the taking of deposi-tions.

(c) A party shall not be deemed tomake a person his own witness for anypurpose by taking his deposition. Theintroduction in evidence of the deposi-tion or any part thereof for any pur-pose other than that of contradictingor impeaching the deponent makes thedeponent the witness of the party in-troducing the deposition, but this shallnot apply to the use by an adverseparty of a deposition as described inparagraph (d)(2) of this section. At thehearing any party may rebut any rel-evant evidence contained in a deposi-tion whether introduced by him or byany other party.

(d) At the hearing (or in a pleading),any part or all of a deposition, so far asadmissible, may be used against anyparty who was present or representedat the taking of the deposition or whohad due notice thereof, in accordancewith any one of the following provi-sions:

(1) Any deposition may be used byany party for the purpose of con-tradicting or impeaching the testi-mony of deponent as a witness.

(2) The deposition of a party or ofany one who at the time of taking thedeposition was an officer, director, ormanaging agent of a public or privatecorporation, partnership or associationwhich is a party may be used by an ad-verse party for any purpose.

(3) To the extent that the affirmativedirect case of a party is made in writ-ing pursuant to § 1.248(d), the deposi-tion of any witness, whether or not aparty, may be used by any party for

any purpose, provided the witness ismade available for cross-examination.In all cases, the deposition of a wit-ness, whether or not a party, may beused by any party for any purpose ifthe presiding officer finds: (i) That thewitness is dead; or (ii) that the witnessis out of the United States, unless itappears that the absence of the witnesswas procured by the party offering thedeposition; or (iii) that the witness isunable to attend or testify because ofage, sickness, infirmity, or imprison-ment; or (iv) upon application and no-tice, that such exceptional cir-cumstances exist as to make it desir-able in the interest of justice and withdue regard to the importance of pre-senting the testimony of witnessesorally in open hearing, to allow thedeposition to be used.

(4) If only part of a deposition is of-fered in evidence by a party, an adverseparty may require him to introduce allof it which is relevant to the part in-troduced, and any party may introduceany other parts.

(5) Substitution of parties does notaffect the right to use depositions pre-viously taken; and, when an action inany hearing has been dismissed and an-other action involving the same sub-ject matter is afterward brought be-tween the same parties or their rep-resentatives or successors in interest,all depositions lawfully taken and dulyfiled in the former action may be usedin the latter as if originally takentherefor.

[33 FR 463, Jan. 12, 1968, as amended at 41 FR14874, Apr. 8, 1976]

§ 1.323 Interrogatories to parties.

(a) Interrogatories. Any party mayserve upon any other party written in-terrogatories to be answered in writingby the party served or, if the partyserved is a public or private corpora-tion or a partnership or association, byany officer or agent, who shall furnishsuch information as is available to theparty. A copy of the interrogatoriesshall be served upon all parties to theproceeding. An original and three cop-ies of the interrogatories, answers, andall related pleadings shall be filed withthe Secretary of the Commission. Acopy of the interrogatories, answers


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and all related pleadings shall beserved on the presiding officer.

(1) Except as otherwise provided in aprotective order, the number of inter-rogatories or sets of interrogatories isnot limited.

(2) Except as provided in such anorder, interrogatories may be servedafter a deposition has been taken, anda deposition may be sought after inter-rogatories have been answered.

(b) Answers and objections. Each inter-rogatory shall be answered separatelyand fully in writing under oath or affir-mation, unless it is objected to, inwhich event the reasons for objectionshall be stated in lieu of an answer.The answers shall be signed by the per-son making them, and the objectionsby the attorney making them. Theparty upon whom the interrogatorieswere served shall serve a copy of theanswers and objections upon all partiesto the proceeding within 14 days afterservice of the interrogatories, or with-in such shorter or longer period as thepresiding officer may allow. Answersmay be used in the same manner asdepositions of a party (see § 1.321(d)).

(c) Motion to compel an answer. Anyparty to the proceeding may, within 7days, move for an order with respect toany objection or other failure to an-swer an interrogatory. For purposes ofthis paragraph, an evasive or incom-plete answer is a failure to answer; andif the motion is based on the assertionthat the answer is evasive or incom-plete, it shall contain a statement asto the scope and detail of an answerwhich would be considered responsiveand complete. The party upon whomthe interrogatories were served mayfile a response within 7 days after themotion is filed, to which he may ap-pend an answer or an amended answer.Additional pleadings should not be sub-mitted and will not be considered.

(d) Action by the presiding officer. Ifthe presiding officer determines thatan objection is not justified, he shallorder that the answer be served. If aninterrogatory has not been answered,the presiding officer may rule that theright to object has been waived andmay order that an answer be served. Ifan answer does not comply fully withthe requirements of this section, thepresiding officer may order that an

amended answer be served, may specifythe scope and detail of the matters tobe covered by the amended answer, andmay specify any appropriate proce-dural consequences (including adversefindings of fact and dismissal with prej-udice) which will follow from the fail-ure to make a full and responsive an-swer. If a full and responsive answer isnot made, the presiding officer mayissue an order invoking any of the pro-cedural consequences specified in theorder to compel an answer.

(e) Appeal. As order to compel an an-swer is not subject to appeal.

[33 FR 10572, July 25, 1968, as amended at 35FR 17334, Nov. 11, 1970]

§ 1.325 Discovery and production ofdocuments and things for inspec-tion, copying, or photographing.

(a) A party to a Commission proceed-ing may request any other party exceptthe Commission to produce and permitinspection and copying orphotographing, by or on behalf of therequesting party, of any designateddocuments, papers, books, accounts,letters, photographs, objects, or tan-gible things which constitute or con-tain evidence within the scope of theexamination permitted by § 1.311(b) ofthis part and which are in his posses-sion, custody, or control or to permitentry upon designated land or otherproperty in his possession or controlfor purposes of inspecting, measuring,surveying, or photographing the prop-erty or any designated object or oper-ation thereon within the scope of theexamination permitted by § 1.311(b) ofthis part.

(1) Such requests need not be filedwith the presiding officer, but copies ofthe request shall be served on all otherparties to the proceeding.

(2) The party against whom the re-quest was made must, within 10 days,comply with the request or object tothe request, claiming a privilege orraising other proper objections. If therequest is not complied with in wholeor in part, the requesting party mayfile a motion to compel production ofdocuments or access to property withthe presiding officer. A motion to com-pel must be accompanied by a copy ofthe original request and the respondingparty’s objection or claim of privilege.


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Motions to compel must be filed withinfive business days of the objection orclaim of privilege.

(3) In resolving any disputes involv-ing the production of documents or ac-cess to property, the presiding officermay direct that the materials objectedto be presented to him for in camera in-spection.

(b) Any party seeking the productionof Commission records should proceedunder § 0.460 or § 0.461 of this chapter.See §§ 0.451 through 0.467.

(c) In comparative broadcast proceed-ings involving applicants for only newfacilities, all applicants will serve thematerials listed in the Standard Docu-ment Production Order and the Stand-ardized Integration Statement on allother parties in the case that have filedNotices of Appearance. The exchange ofthese materials must be accomplishedwithin five days after the date estab-lished for filing notices of appearance(see § 1.221).

(1) Standard Document ProductionOrder. The following documents mustbe produced or objected to on groundsof privilege (Unless otherwise directedby the presiding officer, copies of thesedocuments should not be filed with thepresiding officer):

(i) All formation and organizationaldocuments, including articles of incor-poration, by laws, partnership agree-ments, voting rights, proxies, and anyamendments to the foregoing docu-ments;

(ii) All minutes of meetings relatingto the application;

(iii) All documents relating to therights or plans of persons or entities topurchase an interest in the applicantor of current owners to alineate theirinterests;

(iv) All documents relating topledges, mortgages, security interests,or other encumbrances of any kindwith respect to the applicant;

(v) All bank letters and other financ-ing documents with the dollar amountsunexpurgated;

(vi) All documents relating to the ap-plicant’s proposed transmitter site;

(vii) All documents relating to com-munications by proposed integratedprincipals with respect to their pro-posed participation in the management

of the station and the disposition oftheir current employment;

(viii) All documents relating to priorintegration pledges made by principalswho propose to be integrated into themanagement of the station at issue;

(ix) All documents relating to com-munications by and between principalsof the applicant concerning the appli-cation, including communications be-tween active and passive principals;

(x) Representative documents relat-ing to enhancement credits and pref-erences sought by the applicant’s prin-cipals for local residence, civic partici-pation, past broadcast experience, mi-nority/female status, and the like;

(xi) All documents relating to com-mitments to divest other media inter-ests; and

(xii) All documents that identify ordescribe the principals who are respon-sible for completing the application,arranging financing, obtaining the ap-plicant’s transmitter site, publishingthe required notices, establishing thelocal public inspection file, and retain-ing lawyers, engineers, and other pro-fessionals.

(2) Standardized Integration Statement.On the same day that documents areexchanged pursuant to the Standard-ized Document Production Order, thefollowing information must also beprovided by all applicants (Copies ofthis statement should be filed with thepresiding officer and served on all par-ties to the proceeding that have filedNotices of Appearance):

(i) The ownership structure of the ap-plicant, i.e., whether it is a partner-ship, limited partnership, or a corpora-tion (if a corporation, indicate whetherit has voting and non-voting stock);

(ii) The ownership percentage of eachowner;

(iii) The identity of the owners whowill work at the proposed station, whattitles and duties they will have, howmany hours they will work per week,and how they will reconcile any cur-rent business interests or employmentwith that commitment to the station;

(iv) All other media interests held bythe persons identified under paragraph(c)(2)(ii), of this section;


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(v) Whether the integrated ownerswill claim credit for minority or fe-male ownership and if so, specificallyon what basis;

(vi) Whether the integrated ownerswill claim credit for local residenceand civic involvement in the city of li-cense or service area and if so, specifi-cally on what basis (including a de-tailed chronology of past residence anda description of civic activities andtheir duration);

(vii) Whether the integrated ownerswill claim credit for previous broadcastexperience and if so, provide a detailedlist of the stations they worked at, thetitles and duties they had, and theyears in which they were so employed;and

(viii) Whether the applicant willclaim a daytimer preference and if so,specifically on what basis.

(3) Supplemental document production.Parties may request additional rel-evant documents, not called for in theStandard Document Production Order,at any time after the release of the des-ignation order. Supplemental requestsfor documents based on materials ex-changed pursuant to the StandardizedDocument Production Order andStandardized Integration Statementmust be filed no later than ten daysafter those standardized exchanges.Other supplemental document requestsmust be filed no later than ten daysafter receipt of the information onwhich those requests are based. Supple-mental document requests will be han-dled under the procedures establishedin paragraph (a) of this section. To fa-cilitate the resolution of disputes con-cerning the production of documents,the presiding officer may convene apre-hearing conference to hear argu-ment on and dispose of any such dis-putes.

[33 FR 463, Jan. 12, 1968, as amended at 40 FR39509, Aug. 28, 1975; 56 FR 794, Jan. 9, 1991; 56FR 25639, June 5, 1991]

SUBPENAS

AUTHORITY: Sections 1.331 and 1.333through 1.340 are issued under sec. 409, 48Stat. 1096; 47 U.S.C. 409.

§ 1.331 Who may sign and issue.

Subpenas requiring the attendanceand testimony of witnesses, and subpe-nas requiring the production of anybooks, papers, schedules of charges,contracts, agreements, and documentsrelating to any matter under investiga-tion or hearing, may be signed and is-sued as follows:

(a) Hearings before the Commissionen banc, an individual commissioner,or a panel of commissioners: By anycommissioner participating in the con-duct of the hearing.

(b) Hearings before an administrativelaw judge: By the administrative lawjudge or, in his absence, by the ChiefAdministrative Law Judge.

§ 1.333 Requests for issuance of sub-pena.

(a) Unless submitted on the recordwhile a hearing is in progress, requestsfor a subpena ad testificandum shall besubmitted in writing.

(b) Requests for a subpena ducestecum shall be submitted in writing,duly subscribed and verified, and shallspecify with particularity the books,papers, and documents desired and thefacts expected to be proved thereby.Where the subpena duces tecum requestis directed to a nonparty to the pro-ceeding, the presiding officer may issuethe same, upon request, without an ac-companying subpena to enforce a no-tice to take depositions, provided for inparagraph (e) of this section, where itappears that the testimony of said per-son is not required in connection withthe subpena duces tecum.

(c) All requests for subpenas shall besupported by a showing of the generalrelevance and materiality of the evi-dence sought.

(d) Requests for subpenas shall besubmitted in triplicate, but need not beserved on the parties to the proceeding.

(e) Requests for issuance of a subpenaad testificandum to enforce a notice totake depositions shall be submitted inwriting. Such requests may be submit-ted with the notice or at a later date.The request shall not be granted untilthe period for the filing of motions op-posing the taking of depositions has ex-pired or, if a motion has been filed,until that motion has been acted on.


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Regardless of the time when the sub-pena request is submitted, it need notbe accompanied by a showing that rel-evant and material evidence will be ad-duced, but merely that the person willbe examined regarding a nonprivilegedmatter which is relevant to the hearingissues. The subpena request may askthat a subpena duces tecum be contem-poraneously issued commanding theperson to whom it is directed toproduce designated books, papers, doc-uments, or tangible things which con-stitute or contain evidence relating toany of the matters within the scope ofthe examination permitted by § 1.311(b)but in that event the subpena requestwill be subject to the provisions of§ 1.313 and paragraph (b) of this section.

(f) Requests for issuance of a subpenaduces tecum to enforce an order for theproduction of documents and things forinspection and copying under § 1.325may be submitted with the motion re-questing the issuance of such an order.Regardless of the time when the sub-pena request is submitted, it need notbe accompanied by a showing that rel-evant and material evidence will be ad-duced, but merely that the documentsand things to be examined contain non-privileged matter which is relevant tothe subject matter of the proceeding.

[28 FR 12425, Nov. 22, 1963, as amended at 33FR 466, Jan. 12, 1968; 47 FR 51873, Nov. 18,1982]

§ 1.334 Motions to quash.Any person against whom a subpena

is directed may file a motion to quashor limit the subpena, setting forth thereasons why the subpena should not becomplied with or why it should be lim-ited in scope.

§ 1.335 Rulings.Prompt notice, including a brief

statement of the reasons therefor, willbe given of the denial, in whole or inpart, of a request for subpena or of amotion to quash.

§ 1.336 Service of subpenas.(a) A subpena may be served by a

United States marshal or his deputy,by Commission personnel, or by anyperson who is not a party to the pro-ceeding and is not less than 18 years ofage.

(b) Service of a subpena upon the per-son named therein shall be made by ex-hibiting the original subpena to him,by reading the original subpena to himif he is unable to read, by deliveringthe duplicate subpena to him, and bytendering to him the fees for one day’sattendance at the proceeding to whichhe is summoned and the mileage al-lowed by law. If the subpena is issuedon behalf of the United States or an of-ficer or agency thereof, attendance feesand mileage need not be tendered.

§ 1.337 Return of service.(a) If service of the subpena is made

by a person other than a United Statesmarshal or his deputy such personshall make affidavit thereof, statingthe date, time, and manner of service.

(b) In case of failure to make service,the reasons for the failure shall bestated on the original subpena by theperson who attempted to make service.

(c) The original subpena, bearing oraccompanied by the required return af-fidavit or statement, shall be returnedforthwith to the Secretary of the Com-mission or, if so directed on the sub-pena, to the official before whom theperson named in the subpena is re-quired to appear.

§ 1.338 Subpena forms.(a) Subpena forms, marked ‘‘Origi-

nal’’, ‘‘Duplicate’’, and ‘‘Triplicate’’,and bearing the Commission’s seal,may be obtained from the Commis-sion’s Dockets Division. These formsare to be completed and submittedwith any request for issuance of a sub-pena.

(b) If the request for issuance of asubpena is granted, the ‘‘Original’’ and‘‘Duplicate’’ copies of the subpena arereturned to the person who submittedthe request. The ‘‘Triplicate’’ copy isretained for the Commission’s files.

(c) The ‘‘Original’’ copy of the sub-pena includes a form for proof of serv-ice. This form is to be executed by theperson who effects service and returnedby him to the Secretary of the Com-mission or, if so directed on the sub-pena, to the official before whom theperson named in the subpena is re-quired to appear.

(d) The ‘‘Duplicate’’ copy of the sub-pena shall be served upon the person


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named therein and retained by him.This copy should be presented in sup-port of any claim for witness fees ormileage allowances for testimony onbehalf of the Commission.

§ 1.339 Witness fees.

Witnesses who are subpenaed and re-spond thereto are entitled to the samefees, including mileage, as are paid forlike service in the courts of the UnitedStates. Fees shall be paid by the partyat whose instance the testimony istaken.

§ 1.340 Attendance of witness; disobe-dience.

The attendance of witnesses and theproduction of documentary evidencemay be required from any place in theUnited States at any designated placeof hearing. In case of disobedience to asubpena, the Commission or any partyto a proceeding before the Commissionmay invoke the aid of any court of theUnited States in requiring the attend-ance and testimony of witnesses andthe production of documentary evi-dence.

EVIDENCE

§ 1.351 Rules of evidence.

Except as otherwise provided in thissubpart, the rules of evidence govern-ing civil proceedings in matters not in-volving trial by jury in the courts ofthe United States shall govern formalhearings. Such rules may be relaxed ifthe ends of justice will be better servedby so doing.

§ 1.352 Cumulative evidence.

The introduction of cumulative evi-dence shall be avoided, and the numberof witnesses that may be heard in be-half of a party on any issue may belimited.

§ 1.353 Further evidence during hear-ing.

At any stage of a hearing, the presid-ing officer may call for further evi-dence upon any issue and may requiresuch evidence to be submitted by anyparty to the proceeding.

§ 1.354 Documents containing matternot material.

If material and relevant matter of-fered in evidence is embraced in a doc-ument containing other matter notmaterial or relevant, and not intendedto be put in evidence, such documentwill not be received, but the party of-fering the same shall present to othercounsel, and to the presiding officer,the original document, together withtrue copies of such material and rel-evant matter taken therefrom, as it isdesired to introduce. Upon presen-tation of such matter, material andrelevant, in proper form, it may be re-ceived in evidence, and become a partof the record. Other counsel will be af-forded an opportunity to introduce inevidence, in like manner, other por-tions of such document if found to bematerial and relevant.

§ 1.355 Documents in foreign language.Every document, exhibit, or other

paper written in a language other thanEnglish, which shall be filed in anyproceeding, or in response to any order,shall be filed in the language in whichit is written together with an Englishtranslation thereof duly verified underoath to be a true translation. Eachcopy of every such document, exhibit,or other paper filed shall be accom-panied by a separate copy of the trans-lation.

§ 1.356 Copies of exhibits.No document or exhibit, or part

thereof, shall be received as, or admit-ted in, evidence unless offered in dupli-cate. In addition, when exhibits of adocumentary character are to be of-fered in evidence, copies shall be fur-nished to other counsel unless the pre-siding officer otherwise directs.

§ 1.357 Mechanical reproductions asevidence.

Unless offered for the sole purpose ofattempting to prove or demonstratesound effect, mechanical or physicalreproductions of sound waves shall notbe admitted in evidence. Any party de-siring to offer any matter alleged to becontained therein or thereupon shallhave such matter typewritten on paperof the size prescribed by § 1.49, and thesame shall be identified and offered in


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duplicate in the same manner as otherexhibits.

§ 1.358 Tariffs as evidence.In case any matter contained in a

tariff schedule on file with the Com-mission is offered in evidence, such tar-iff schedule need not be produced ormarked for identification, but the mat-ter so offered shall be specified withparticularity (tariff and page number)in such manner as to be readily identi-fied, and may be received in evidenceby reference subject to check with theoriginal tariff schedules on file.

§ 1.359 Proof of official record; authen-tication of copy.

An official record or entry therein,when admissible for any purpose, maybe evidenced by an official publicationthereof or by a copy attested by the of-ficer having legal custody of therecord, or by his deputy, and accom-panied with a certificate that such offi-cer has the custody. If the office inwhich the record is kept is within theUnited States or within a territory orinsular possession subject to the do-minion of the United States, the cer-tificate may be made by the judge of acourt of record of the district or politi-cal subdivision in which the record iskept, authenticated by the seal of thecourt, or may be made by any publicofficer having a seal of office having of-ficial duties in the district or politicalsubdivision in which the record is kept,authenticated by the seal of his office.If the office in which the record is keptis in a foreign state or country, thecertificate may be made by a secretaryof embassy or legation, consul general,consul, vice consul, or consular agent,or by any officer in the foreign serviceof the United States stationed in theforeign state or country in which therecord is kept, and authenticated bythe seal of his office.

§ 1.360 Proof of lack of record.The absence of an official record or

entry of a specified tenor in an officialrecord may be evidenced by a writtenstatement signed by an officer, or byhis deputy, who would have custody ofthe official record, if it existed, thatafter diligent search no record or entryof a specified tenor is found to exist in

the records of his office, accompaniedby a certificate as provided in § 1.359.Such statement and certificate are ad-missible as evidence that the records ofhis office contain no such record orentry.

§ 1.361 Other proof of official record.Sections 1.359 and 1.360 do not pre-

vent the proof of official records or ofentry or lack of entry therein by anymethod authorized by any applicablestatute or by the rules of evidence atcommon law.

§ 1.362 Production of statements.After a witness is called and has

given direct testimony in a hearing,and before he is excused, any partymay move for the production of anystatement of such witness, or partthereof, pertaining to his direct testi-mony, in possession of the party call-ing the witness, if such statement hasbeen reduced to writing and signed orotherwise approved or adopted by thewitness. Such motion shall be directedto the presiding officer. If the party de-clines to furnish the statement, thetestimony of the witness pertaining tothe requested statement shall bestricken.

[33 FR 466, Jan. 12, 1968]

§ 1.363 Introduction of statistical data.(a) All statistical studies, offered in

evidence in common carrier hearingproceedings, including but not limitedto sample surveys, econometric analy-ses, and experiments, and those partsof other studies involving statisticalmethodology shall be described in asummary statement, with supple-mentary details added in appendices soas to give a comprehensive delineationof the assumptions made, the studyplan utilized and the procedures under-taken. In the case of sample surveys,there shall be a clear description of thesurvey design, including the definitionof the universe under study, the sam-pling frame, and the sampling units; anexplanation of the method of selectingthe sample and the characteristicsmeasured or counted. In the case ofeconometric investigations, the econo-metric model shall be completely de-scribed and the reasons given for each


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47 CFR Ch. I (10–1–97 Edition)§ 1.364

assumption and statistical specifica-tion. The effects on the final results ofchanges in the assumptions should bemade clear. When alternative modelsand variables have been employed, arecord shall be kept of these alter-native studies, so as to be availableupon request. In the case of experi-mental analyses, a clear and completedescription of the experimental designshall be set forth, including a specifica-tion of the controlled conditions andhow the controls were realized. In addi-tion, the methods of making observa-tions and the adjustments, if any, toobserved data shall be described. In thecase of every kind of statistical study,the following items shall be set forthclearly: The formulas used for statis-tical estimates, standard errors andtest statistics, the description of sta-tistical tests, plus all related computa-tions, computer programs and final re-sults. Summary descriptions of inputdata shall be submitted. Upon request,the actual input data shall be madeavailable.

(b) In the case of all studies and anal-yses offered in evidence in commoncarrier hearing proceedings, other thanthe kinds described in paragraph (a) ofthis section, there shall be a clearstatement of the study plan, all rel-evant assumptions and a description ofthe techniques of data collection, esti-mation and/or testing. In addition,there shall be a clear statement of thefacts and judgments upon which con-clusions are based and a statement ofthe relative weights given to the var-ious factors in arriving at each conclu-sion, together with an indication of thealternative courses of action consid-ered. Lists of input data shall be madeavailable upon request.

[35 FR 16254, Oct. 16, 1970]

§ 1.364 Testimony by speakerphone.

(a) If all parties to the proceedingconsent and the presiding officer ap-proves, the testimony of a witness maybe taken by speakerphone.

(b) Documents used by the witnessshall be made available to counsel bythe party calling the witness in ad-vance of the speakerphone testimony.The taking of testimony byspeakerphone shall be subject to such

other ground rules as the parties mayagree upon.

[43 FR 33251, July 31, 1978]

Subpart C—RulemakingProceedings

AUTHORITY: 5 U.S.C. 553.


GENERAL

§ 1.399 Scope.This subpart shall be applicable to

notice and comment rulemakings pro-ceedings conducted under 5 U.S.C. 553,and shall have no application to formalrulemaking (or rate making) proceed-ings unless the Commission directsthat it shall govern the conduct of aparticular proceeding.

[42 FR 25735, May 19, 1977]

§ 1.400 Definitions.As used in this subpart, the term

party refers to any person who partici-pates in a proceeding by the timely fil-ing of a petition for rule making, com-ments on a notice of proposed rulemaking, a petition for reconsideration,or responsive pleadings in the mannerprescribed by this subpart. The termdoes not include those who submit let-ters, telegrams or other informal mate-rials.

[41 FR 1287, Jan. 7, 1976]

PETITIONS AND RELATED PLEADINGS

§ 1.401 Petitions for rulemaking.(a) Any interested person may peti-

tion for the issuance, amendment or re-peal of a rule or regulation.

(b) The petition for rule making shallconform to the requirements of §§ 1.49,1.52 and 1.419(b) (or § 1.420(e), if applica-ble), and shall be submitted or ad-dressed to the Secretary, Federal Com-munications Commission, Washington,DC 20554.

(c) The petition shall set forth thetext or substance of the proposed rule,amendment, or rule to be repealed, to-gether with all facts, views, argumentsand data deemed to support the actionrequested, and shall indicate how theinterests of petitioner will be affected.


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(d) Petitions for amendment of theFM Table of Assignments (§ 73.202 ofthis chapter) or the Television Table ofAssignments (§ 73.606) shall be servedby petitioner on any Commission li-censee or permittee whose channel as-signment would be changed by grant ofthe petition. The petition shall be ac-companied by a certificate of serviceon such licensees or permittees. A draftNotice of Proposed Rule Making maybe submitted with a petition foramendment of the FM or TelevisionTable of Assignments.

(e) Petitions which are moot, pre-mature, repetitive, frivolous, or whichplainly do not warrant considerationby the Commission may be denied ordismissed without prejudice to the pe-titioner.

[28 FR 12432, Nov. 22, 1963, as amended at 28FR 14503, Dec. 31, 1963; 40 FR 53391, Nov. 18,1975; 45 FR 42621, June 25, 1980]

§ 1.403 Notice and availability.

All petitions for rule making (otherthan petitions to amend the FM, Tele-vision, and Air-Ground Tables of As-signments) meeting the requirementsof § 1.401 will be given a file numberand, promptly thereafter, a ‘‘PublicNotice’’ will be issued (by means of aCommission release entitled ‘‘Petitionsfor Rule Making Filed’’) as to the peti-tion, file number, nature of the pro-posal, and date of filing. Petitions forrule making are available at the Com-mission’s Dockets Reference Center(1919 M Street NW., Room 239, Wash-ington, DC).

[60 FR 13637, Mar. 14, 1995]

§ 1.405 Responses to petitions; replies.

Except for petitions to amend the FMTelevision or Air-Ground Tables of As-signments:

(a) Any interested person may file astatement in support of or in opposi-tion to a petition for rule making priorto Commission action on the petitionbut not later than 30 days after ‘‘PublicNotice’’, as provided for in § 1.403, isgiven of the filing of such a petition.Such a statement shall be accompaniedby proof of service upon the petitioneron or prior to the date of filing in con-formity with § 1.47 and shall conform in

other aspects with the requirements of§§ 1.49, 1.52, and 1.419(b).

(b) Any interested person may file areply to statements in support of or inopposition to a petition for rule mak-ing prior to Commission action on thepetition but not later than 15 daysafter the filing of such a statement.Such a reply shall be accompanied byproof of service upon the party or par-ties filing the statement or statementsto which the reply is directed on orprior to the date of filing in conformitywith § 1.47 and shall conform in otheraspects with the requirements of §§ 1.49,1.52, and 1.419(b).

(c) No additional pleadings may befiled unless specifically requested bythe Commission or authorized by it.

(d) The Commission may act on a pe-tition for rule making at any timeafter the deadline for the filing of re-plies to statements in support of or inopposition to the petition. Statementsin support of or in opposition to a peti-tion for rule making, and replies there-to, shall not be filed after Commissionaction.


[28 FR 12413, Nov. 22, 1963, as amended at 28FR 14503, Dec. 31, 1963; 45 FR 42621, June 25,1980; 46 FR 60404, Dec. 9, 1981]

§ 1.407 Action on petitions.

If the Commission determines thatthe petition discloses sufficient reasonsin support of the action requested tojustify the institution of a rulemakingproceeding, and notice and public pro-cedure thereon are required or deemeddesirable by the Commission, an appro-priate notice of proposed rule makingwill be issued. In those cases where no-tice and public procedure thereon arenot required, the Commission mayissue a final order amending the rules.In all other cases the petition for rulemaking will be denied and the peti-tioner will be notified of the Commis-sion’s action with the grounds therefor.

RULEMAKING PROCEEDINGS

§ 1.411 Commencement of rulemakingproceedings.

Rulemaking proceedings are com-menced by the Commission, either on


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47 CFR Ch. I (10–1–97 Edition)§ 1.412

it own motion or on the basis of a peti-tion for rulemaking. See §§ 1.401–1.407.

§ 1.412 Notice of proposed rulemaking.

(a) Except as provided in paragraphs(b) and (c) of this section, prior noticeof proposed rulemaking will be given.

(1) Notice is ordinarily given by pub-lication of a ‘‘Notice of Proposed RuleMaking’’ in the FEDERAL REGISTER. Asummary of the full decision adoptedby the Commission constitutes a ‘‘No-tice of Proposed Rulemaking’’ for pur-poses of FEDERAL REGISTER publica-tion.

(2) If all persons subject to the pro-posed rules are named, the proposalmay (in lieu of publication) be person-ally served upon those persons.

(3) If all persons subject to the pro-posed rules are named and have actualnotice of the proposal as a matter oflaw, further prior notice of proposedrulemaking is not required.

(b) Rule changes (including adoption,amendment, or repeal of a rule orrules) relating to the following matterswill ordinarily be adopted withoutprior notice:

(1) Any military, naval, or foreign af-fairs function of the United States.

(2) Any matter relating to Commis-sion management or personnel or topublic property, loans, grants, benefits,or contracts.

(3) Interpretative rules.(4) General statements of policy.(5) Rules of Commission organiza-

tion, procedure, or practice.(c) Rule changes may in addition be

adopted without prior notice in anysituation in which the Commission forgood cause finds that notice and publicprocedure are impracticable, unneces-sary, or contrary to the public interest.The finding of good cause and a state-ment of the basis for that finding arein such situations published with therule changes.

(d) In addition to the notice provi-sions of paragraph (a) of this section,the Commission, before prescribing anyrequirements as to accounts, records,or memoranda to be kept by carriers,will notify the appropriate State agen-cies having jurisdiction over any car-

rier involved of the proposed require-ments.


§ 1.413 Content of notice.

A notice of the proposed issuance,amendment, or repeal of a rule will in-clude the following:

(a) A statement of the time, natureand place of any public rulemakingproceeding to be held.

(b) Reference to the authority underwhich the issuance, amendment or re-peal of a rule is proposed.

(c) Either the terms or substance ofthe proposed rule or a description ofthe subjects and issues involved.

(d) The docket number assigned tothe proceeding.

(e) A statement of the time for filingcomments and replies thereto.

§ 1.415 Comments and replies.

(a) After notice of proposed rule-making is issued, the Commission willafford interested persons an oppor-tunity to participate in the rulemakingproceeding through submission of writ-ten data, views, or arguments, with orwithout opportunity to present thesame orally in any manner.

(b) A reasonable time will be pro-vided for submission of comments insupport of or in opposition to proposedrules, and the time provided will bespecified in the notice of proposed rule-making.

(c) A reasonable time will be pro-vided for filing comments in reply tothe original comments, and the timeprovided will be specified in the noticeof proposed rulemaking.

(d) No additional comments may befiled unless specifically requested orauthorized by the Commission.

NOTE: In some (but not all) rulemakingproceedings, interested persons may alsocommunicate with the Commission and itsstaff on an ex parte basis, provided certainprocedures are followed. See §§ 1.420 and1.1200 et seq. See also ll FCC 2d ll (1980)(i.e., this order).

(e) For time limits for filing motionsfor extension of time for filing re-sponses to petitions for rulemaking, re-plies to such responses, comments filed


165


in response to notices of proposed rule-making, replies to such comments, see§ 1.46(b).

[28 FR 12432, Nov. 22, 1963, as amended at 42FR 28888, June 6, 1977; 45 FR 45591, July 7,1980; 52 FR 37460, Oct. 7, 1987]

§ 1.419 Form of comments and replies;number of copies.

(a) Comments, replies, and other doc-uments filed in a rulemaking proceed-ing shall conform to the requirementsof § 1.49.

(b) An original and 4 copies of allcomments, briefs and other documentsfiled in a rulemaking proceeding shallbe furnished the Commission. The dis-tribution of such copies shall be as fol-lows:Secretary (original and 1) ..................... 2Bureau .................................................. 2Information office ................................ 1

Total ............................................ 5

Participants filing the required 5 cop-ies who also wish each Commissionerto have a personal copy of the com-ments may file an additional 5 copies.The distribution of such copies shall beas follows:Commissioners ..................................... 5Secretary .............................................. 2Bureau .................................................. 2Information office ................................ 1

Total ............................................ 10

However, members of the generalpublic who wish to express their inter-est by participating informally in arulemaking proceeding may do so bysubmitting an original and one copy oftheir comments, without regard toform, provided only that the DocketNumber is specified in the heading. In-formal comments filed after close ofthe reply comment period, or, if on re-consideration, the reconsiderationreply comment period, should be la-beled ‘‘ex parte’’ pursuant to section1.1206(a) of this chapter. Letters sub-mitted to Commissioners or Commis-sion staff will be treated in the sameway as informal comments, as set forthabove. Also such informal participantswho wish the responsible members ofthe staff and the Commissioners tohave personal copies may file an addi-

tional 7 copies. The distribution ofsuch copies shall be as follows:Commissioners ..................................... 5Secretary .............................................. 2Bureau .................................................. 2

Total ............................................ 9

(c) Any person desiring to file iden-tical documents in more than onedocketed rulemaking proceeding shallfurnish the Commission two additionalcopies of any such document for eachadditional docket. This requirementdoes not apply if the proceedings havebeen consolidated.

[28 FR 12432, Nov. 22, 1963, as amended at 41FR 50399, Nov. 16, 1976; 50 FR 26567, June 27,1985; 54 FR 29037, July 11, 1989]

§ 1.420 Additional procedures in pro-ceedings for amendment of the FMor TV Tables of Allotments.

(a) Comments filed in proceedings foramendment of the FM Table of Allot-ments (§ 73.202 of this chapter) or theTelevision Table of Allotments (§ 73.606of this chapter) which are initiated ona petition for rule making shall beserved on petitioner by the person whofiles the comments.

(b) Reply comments filed in proceed-ings for amendment of the FM or Tele-vision Tables of Allotments shall beserved on the person(s) who filed thecomments to which the reply is di-rected.

(c) Such comments and reply com-ments shall be accompanied by a cer-tificate of service.

(d) Counterproposals shall be ad-vanced in initial comments only andwill not be considered if they are ad-vanced in reply comments.

(e) An original and 4 copies of all pe-titions for rulemaking, comments,reply comments, and other pleadingsshall be filed with the Commission.

(f) Petitions for reconsideration andresponsive pleadings shall be served onparties to the proceeding and on any li-censee or permittee whose authoriza-tion may be modified to specify oper-ation on a different channel, and shallbe accompanied by a certificate ofservice.

(g) The Commission may modify thelicense or permit of an FM station toanother class of channel or of a UHF


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47 CFR Ch. I (10–1–97 Edition)§ 1.421

TV station to a VHF channel in thesame community in the course of therule making proceeding to amend§ 73.202(b), § 73.504(a) or § 73.606(b) if anyof the following conditions are met:

(1) There is no other timely filed ex-pression of interest, or

(2) If another interest in the proposedchannel is timely filed an additionalequivalent class of channel is also al-lotted, assigned or available for appli-cation, or

(3) With respect to FM, the modifica-tion of license or permit would occuron a mutually exclusive higher classadjacent or co-channel.

NOTE 1: In certain situations, a licensee orpermittee may seek an adjacent, intermedi-ate frequency or co-channel upgrade by ap-plication. See § 73.203(b) of this chapter.

(h) Where licensees (or permittees) oftelevision broadcast stations jointlypetition to amend § 73.606(b) and to ex-change channels, and where one of thelicensees (or permittees) operates on acommercial channel while the otheroperates on a reserved noncommercialeducational channel within the sameband, and the stations serve substan-tially the same market, then the Com-mission may amend § 73.606(b) and mod-ify the licenses (or permits) of the peti-tioners to specify operation on the ap-propriate channels upon a finding thatsuch action will promote the public in-terest, convenience, and necessity.

NOTE 2: Licensees and permittees operatingClass A FM stations who seek to upgradetheir facilities to Class B1, B, C3, C2, C1, orC on Channel 221, and whose proposed 1 mV/m signal contours would overlap the Grade Bcontour of a television station operating onChannel 6 must meet a particularly heavyburden by demonstrating that grants of theirupgrade requests are in the public interest.In this regard, the Commission will examinethe record in rule making proceedings to de-termine the availability of existing and po-tential non-commercial education service.

(i) In the course of the rule makingproceeding to amend § 73.202(b) or§ 73.606(b), the Commission may modifythe license or permit of an FM or tele-vision broadcast station to specify anew community of license where theamended allotment would be mutuallyexclusive with the licensee’s or permit-tee’s present assignment.

(j) Whenever an expression of interestin applying for, constructing, and oper-ating a station has been filed in a pro-ceeding to amend the FM or TV Tableof Allotments, and the filing partyseeks to dismiss or withdraw the ex-pression of interest, either unilaterallyor in exchange for financial consider-ation, that party must file with theCommission a request for approval ofthe dismissal or withdrawal, a copy ofany written agreement related to thedismissal or withdrawal, and an affida-vit setting forth:

(1) A certification that neither theparty withdrawing its interest nor itsprincipals has received or will receiveany money or other consideration inexcess of legitimate and prudent ex-penses in exchange for the dismissal orwithdrawal of the expression of inter-est;

(2) The exact nature and amount ofany consideration received or prom-ised;

(3) An itemized accounting of the ex-penses for which it seeks reimburse-ment; and

(4) The terms of any oral agreementrelated to the dismissal or withdrawalof the expression of interest.

(5) In addition, within 5 days of a par-ty’s request for approval, each remain-ing party to any written or oral agree-ment must submit an affidavit settingforth:

(i) A certification that neither it norits principals has paid or will paymoney or other consideration in excessof the legitimate and prudent expensesof the party withdrawing its expressionof interest; and

(ii) The terms of any oral agreementrelating to the dismissal or withdrawalof the expression of interest.


[39 FR 44022, Dec. 20, 1974, as amended at 40FR 53391, Nov. 18, 1975; 41 FR 1287, Jan. 7,1976; 51 FR 15629, Apr. 25, 1986; 51 FR 20291,June 4, 1986; 52 FR 8260, Mar. 17, 1987; 52 FR25866, July 9, 1987; 54 FR 16366, Apr. 24, 1989;54 FR 26201, June 22, 1989; 55 FR 28914, July16, 1990; 58 FR 38535, July 19, 1993; 59 FR 59503,Nov. 17, 1994; 61 FR 43472, Aug. 23, 1996]

§ 1.421 Further notice of rulemaking.In any rulemaking proceeding where

the Commission deems it warranted, a


167


further notice of proposed rulemakingwill be issued with opportunity for par-ties of record and other interested per-sons to submit comments in conform-ity with §§ 1.415 and 1.419.

§ 1.423 Oral argument and other pro-ceedings.

In any rulemaking where the Com-mission determines that an oral argu-ment, hearing or any other type of pro-ceeding is warranted, notice of thetime, place and nature of such proceed-ing will be published in the FEDERAL

REGISTER.

[58 FR 66300, Dec. 20, 1993]

§ 1.425 Commission action.

The Commission will consider all rel-evant comments and material of recordbefore taking final action in a rule-making proceeding and will issue a de-cision incorporating its finding and abrief statement of the reasons therefor.

§ 1.427 Effective date of rules.

(a) Any rule issued by the Commis-sion will be made effective not lessthan 30 days from the time it is pub-lished in the FEDERAL REGISTER exceptas otherwise specified in paragraphs (b)and (c) of this section.

(b) For good cause found and pub-lished with the rule, any rule issued bythe Commission may be made effectivewithin less than 30 days from the timeit is published in the FEDERAL REG-ISTER. Rules involving any military,naval or foreign affairs function of theUnited States; matters relating toagency management or personnel, pub-lic property, loans, grants, benefits orcontracts; rules granting or recogniz-ing exemption or relieving restriction;rules of organization, procedure orpractice; or interpretative rules; andstatements of policy may be made ef-fective without regard to the 30-day re-quirement.

(c) In cases of alterations by theCommission in the required manner orform of keeping accounts by carriers,notice will be served upon affected car-riers not less than 6 months prior tothe effective date of such alterations.

§ 1.429 Petition for reconsideration.(a) Any interested person may peti-

tion for reconsideration of a final ac-tion in a proceeding conducted underthis subpart (see §§ 1.407 and 1.425).Where the action was taken by theCommission, the petition will be actedon by the Commission. Where actionwas taken by a staff official under dele-gated authority, the petition may beacted on by the staff official or referredto the Commission for action.

NOTE: The staff has been authorized to acton rulemaking proceedings described in§ 1.420 and is authorized to make editorialchanges in the rules (see § 0.231(d)).

(b) A petition for reconsiderationwhich relies on facts which have notpreviously been presented to the Com-mission will be granted only under thefollowing circumstances:

(1) The facts relied on relate toevents which have occurred or cir-cumstances which have changed sincethe last opportunity to present them tothe Commission;

(2) The facts relied on were unknownto petitioner until after his last oppor-tunity to present them to the Commis-sion, and he could not through the ex-ercise of ordinary diligence havelearned of the facts in question prior tosuch opportunity; or

(3) The Commission determines thatconsideration of the facts relied on isrequired in the public interest.

(c) The petition for reconsiderationshall state with particularity the re-spects in which petitioner believes theaction taken should be changed.

(d) The petition for reconsiderationand any supplement thereto shall befiled within 30 days from the date ofpublic notice of such action, as thatdate is defined in § 1.4(b) of these rules.No supplement to a petition for recon-sideration filed after expiration of the30 day period will be considered, exceptupon leave granted pursuant to a sepa-rate pleading stating the grounds foracceptance of the supplement. The pe-tition for reconsideration shall not ex-ceed 25 double-spaced typewrittenpages.

(e) Except as provided in § 1.420(f), pe-titions for reconsideration need not beserved on parties to the proceeding.(However, where the number of parties


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47 CFR Ch. I (10–1–97 Edition)§ 1.430

is relatively small, the Commission en-courages the service of petitions for re-consideration and other pleadings, andagreements among parties to exchangecopies of pleadings.) When a petitionfor reconsideration is timely filed inproper form, public notice of its filingis published in the FEDERAL REGISTER.The time for filing oppositions to thepetition runs from the date of publicnotice. See § 1.4(b).

(f) Oppositions to a petition for re-consideration shall be filed within 15days after the date of public notice ofthe petition’s filing and need be servedonly on the person who filed the peti-tion. See § 1.4(b). Oppositions shall notexceed 25 double-spaced typewrittenpages.

(g) Replies to an opposition shall befiled within 10 days after the time forfiling oppositions has expired and needbe served only on the person who filedthe opposition. Replies shall not exceed10 double-spaced typewritten pages.

(h) Petitions for reconsideration, op-positions and replies shall conform tothe requirements of §§ 1.49 and 1.52, ex-cept that they need not be verified. Ex-cept as provided in § 1.420(e), an origi-nal and 11 copies shall be submitted tothe Secretary, Federal Communica-tions Commission, Washington, DC20554.

(i) The Commission may grant thepetition for reconsideration in whole orin part or may deny the petition. Itsorder will contain a concise statementof the reasons for the action taken.Any order disposing of a petition forreconsideration which modifies rulesadopted by the original order is, to theextent of such modification, subject toreconsideration in the same manner asthe original order. Except in such cir-cumstance, a second petition for recon-sideration may be dismissed by thestaff as repetitious.

(j) The filing of a petition for recon-sideration is not a condition precedentto judicial review of any action takenby the Commission, except where theperson seeking such review was not aparty to the proceeding resulting inthe action or relies on questions of factor law upon which the Commission hasbeen afforded no opportunity to pass.Subject to the provisions of paragraph(b) of this section, such a person may

qualify to seek judicial review by filinga petition for reconsideration.

(k) Without special order of the Com-mission, the filing of a petition for re-consideration shall not excuse any per-son from complying with any rule oroperate in any manner to stay or post-pone its enforcement. However, upongood cause shown, the Commission willstay the effective date of a rule pend-ing a decision on a petition for recon-sideration. See, however, § 1.420(f).


[41 FR 1287, Jan. 7, 1976, as amended at 44 FR5436, Jan. 26, 1979; 46 FR 18556, Mar. 25, 1981;52 FR 49161, Dec. 30, 1987]

INQUIRIES

§ 1.430 Proceedings on a notice of in-quiry.

The provisions of this subpart alsogovern proceedings commenced by is-suing a ‘‘Notice of Inquiry,’’ exceptthat such proceedings do not result inthe adoption of rules, and Notices ofInquiry are not required to be pub-lished in the FEDERAL REGISTER.

[51 FR 7445, Mar. 4, 1986]

Subpart D—BroadcastApplications and Proceedings

SOURCE: 44 FR 38483, July 2, 1979, unlessotherwise noted.

§ 1.502 Emergency Broadcast Author-izations.

See § 73.913.


§ 1.511 Applications required.See § 73.3511.

§ 1.512 Where to file; number of copies.See § 73.3512.

§ 1.513 Who may sign applications.See § 73.3513.

§ 1.514 Content of applications.See § 73.3514.

§ 1.516 Specification of facilities.See § 73.3516.


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§ 1.517 Contingent applications.See § 73.3517.

§ 1.518 Inconsistent or conflicting ap-plications.

See § 73.3518.

§ 1.519 Repetitious applications.See § 73.3519.

§ 1.520 Multiple applications.See § 73.3520.

§ 1.522 Amendment of applications.See § 73.3522.

§ 1.525 Agreements between parties foramendment or dismissal of, or fail-ure to prosecute, broadcast applica-tions.

See § 73.3525.

§ 1.526 Records to be maintained lo-cally for public inspection by com-mercial applicants, permittees andlicensees.

See § 73.3526.

§ 1.527 Records to be maintained lo-cally for public inspection by non-commercial educational applicants,permittees and licensees.

See § 73.3527.

§ 1.531 Formal and informal applica-tions.

See § 73.3511.

§ 1.533 Application forms for authorityto construct a new station or makechanges in an existing station.

See § 73.3533.

§ 1.534 Application for extension ofconstruction permit or for construc-tion permit to replace expired con-struction permit.

See § 73.3534.

§ 1.536 Application for license to coverconstruction permit.

See § 73.3536.

§ 1.538 Application for modification oflicense.

See § 73.3538.

§ 1.539 Application for renewal of li-cense.

See § 73.3539.

§ 1.540 Application for voluntary as-signment or transfer of control.

See § 73.3540.

§ 1.541 Application for involuntary as-signment of license or transfer ofcontrol.

See § 73.3541.

§ 1.542 Application for temporary au-thorization.

See § 73.3542.

§ 1.543 Application for renewal ormodification of special service au-thorization.

See § 73.3543.

§ 1.544 Application for broadcast sta-tion to conduct field strength meas-urements and for experimental op-eration.

See §§ 73.157 and 73.1510.

§ 1.545 Application for permit to de-liver programs to foreign countries.

See § 73.3545.

§ 1.546 Application to determine oper-ating power by direct measurementof antenna power.

See § 73.45.

§ 1.549 Requests for extension of au-thority to operate without requiredmonitors, indicating instruments,and EBS Attention Signal devices.

See § 73.3549.

§ 1.550 Requests for new or modifiedcall sign assignments.

See § 73.3550.

§ 1.561 Staff consideration of applica-tions which receive action by theCommission.

See § 73.3561.

§ 1.562 Staff consideration of applica-tions which do not require actionby the Commission.

See § 73.3562.

§ 1.564 Acceptance of applications.

See § 73.3564.

§ 1.566 Defective applications.

See § 73.3566.


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47 CFR Ch. I (10–1–97 Edition)§ 1.568

§ 1.568 Dismissal of applications.See § 73.3568.

§ 1.570 AM broadcast station applica-tions involving other North Amer-ican countries.

See § 73.3570.

§ 1.571 Processing AM broadcast sta-tion applications.

See § 73.3571.

§ 1.572 Processing TV broadcast andtranslator station applications.

See § 73.3572.

§ 1.573 Processing FM broadcast andtranslator station applications.

See § 73.3573.

§ 1.574 Processing of internationalbroadcast station applications.

See § 73.3574.

§ 1.578 Amendments to applicationsfor renewal, assignment or transferof control.

See § 73.3578.

§ 1.580 Local public notice of filing ofbroadcast applications.

See § 73.3580.

§ 1.584 Petitions to deny.See § 73.3584.

§ 1.587 Procedure for filing informalapplications.

See § 73.3587.

§ 1.591 Grants without hearing.See § 73.3591.

§ 1.592 Conditional grant.See § 73.3592.

§ 1.593 Designation for hearing.See § 73.3593.

§ 1.594 Local public notice of designa-tion for hearing.

See § 73.3594.

§ 1.597 Procedures on transfer and as-signment applications.

See § 73.3597.

§ 1.598 Period of construction.See § 73.3598.

§ 1.599 Forfeiture of construction per-mit.

See § 73.3599.

§ 1.601 Simultaneous modification andrenewal of license.

See § 73.3601.

§ 1.603 Special waiver procedure rel-ative to applications.

See § 73.3603.

§ 1.605 Retention of applications inhearing status after designation forhearing.

See § 73.3605.

§ 1.612 Annual employment report.See § 73.3612.

§ 1.613 Filing of contracts.See § 73.3613.

§ 1.615 Ownership reports.See § 73.3615.

Subpart E—Complaints, Applica-tions, Tariffs, and Reports In-volving Common Carriers


GENERAL

§ 1.701 Show cause orders.(a) The Commission may commence

any proceeding within its jurisdictionagainst any common carrier by servingupon the carrier an order to showcause. The order shall contain a state-ment of the particulars and mattersconcerning which the Commission isinquiring and the reasons for such ac-tion, and will call upon the carrier toappear before the Commission at aplace and time therein stated and giveevidence upon the matters specified inthe order.

(b) Any carrier upon whom an orderhas been served under this section shallfile its answer within the time speci-fied in the order. Such answer shallspecifically and completely respond toall allegations and matters containedin the show cause order.

(c) All papers filed by a carrier in aproceeding under this section shall


171


conform with the specifications of§§ 1.49 and 1.50 and the subscription andverification requirements of § 1.52.


§ 1.703 Appearances.(a) Hearings. Except as otherwise re-

quired by § 1.221 regarding applicationproceedings, by § 1.91 regarding pro-ceedings instituted under section 312 ofthe Communications Act of 1934, asamended, or by Commission order inany proceeding, no written statementindicating intent to appear need befiled in advance of actual appearanceat any hearing by any person or his at-torney.

(b) Oral arguments. Within 5 daysafter release of an order designating aninitial decision for oral argument orwithin such other time as may be spec-ified in the order, any party who wish-es to participate in the oral argumentshall file a written statement indicat-ing that he will appear and participate.Within such time as may be specifiedin an order designating any other mat-ter for oral argument, any person wish-ing to participate in the The Commis-sion will advise him whether he mayparticipate. (See § 1.277 for penalties forfailure to file appearance statements inproceedings involving oral argumentson initial decisions.)

(c) Commission counsel. The require-ment of paragraph (b) of this sectionshall not apply to counsel representingthe Commission or the Chief of theCommon Carrier Bureau.

COMPLAINTS

§ 1.711 Formal or informal complaints.Complaints filed against carriers

under section 208 of the Communica-tions Act may be either formal or in-formal.

INFORMAL COMPLAINTS

§ 1.716 Form.An informal complaint shall be in

writing and should contain: (a) Thename, address and telephone number ofthe complaint, (b) the name of the car-rier against which the complaint ismade, (c) a complete statement of thefacts tending to show that such carrier

did or omitted to do anything in con-travention of the Communications Act,and (d) the specific relief of satisfac-tion sought.

[51 FR 16039, Apr. 30, 1986]

§ 1.717 Procedure.

The Commission will forward infor-mal complaints to the appropriate car-rier for investigation. The carrier will,within such time as may be prescribed,advise the Commission in writing, witha copy to the complainant, of its satis-faction of the complaint or of its re-fusal or inability to do so. Where thereare clear indications from the carrier’sreport or from other communicationswith the parties that the complaint hasbeen satisfied, the Commission may, inits discretion, consider a complaintproceeding to be closed, without re-sponse to the complainant. In all othercases, the Commission will contact thecomplainant regarding its review anddisposition of the matters raised. If thecomplainant is not satisfied by the car-rier’s response and the Commission’sdisposition, it may file a formal com-plaint in accordance with § 1.721 of thispart.

[51 FR 16039, Apr. 30, 1986]

§ 1.718 Unsatisfied informal com-plaints; formal complaints relatingback to the filing dates of informalcomplaints.

When an informal complaint has notbeen satisfied pursuant to § 1.717, thecomplainant may file a formal com-plaint with this Commission in theform specified in § 1.721. Such filing willbe deemed to relate back to the filingdate of the informal complaint: Pro-vided, That the formal complaint: (a) Isfiled within 6 months from the date ofthe carrier’s report, (b) makes ref-erence to the date of the informal com-plaint, and (c) is based on the samecause of action as the informal com-plaint. If no formal complaint is filedwithin the 6-month period, the com-plainant will be deemed to have aban-doned the unsatisfied informal com-plaint.

[51 FR 16040, Apr. 30, 1986]


172

47 CFR Ch. I (10–1–97 Edition)§ 1.720

FORMAL COMPLAINTS

§ 1.720 General pleading requirements.

Formal complaint proceedings aregenerally resolved on a written recordconsisting of a complaint, answer andreply but may also include other writ-ten submissions such as briefs andwritten interrogatories. All writtensubmissions, both substantive and pro-cedural, must conform to the followingstandards:

(a) Pleadings must be clear, concise,and explicit. All matters concerning aclaim, defense or requested remedy, in-cluding damages, should be pleadedfully and with specificity.

(b) Pleadings must contain factswhich, if true, are sufficient to con-stitute a violation of the Act or Com-mission order or regulation, or a de-fense to such alleged violation.

(c) Facts must be supported by rel-evant documentation or affidavit.

(d) Legal arguments must be sup-ported by appropriate judicial, Com-mission, or statutory authority.

(e) Opposing authorities must be dis-tinguished.

(f) Copies must be provided of allnon-Commission authorities reliedupon which are not routinely availablein national reporting systems, such asunpublished decisions or slip opinionsof courts or administrative agencies.

(g) Parties are responsible for thecontinuing accuracy and completenessof all information and supporting au-thority furnished in a pending com-plaint proceeding. Information submit-ted, as well as relevant legal authori-ties, must be current and updated asnecessary and in a timely manner atany time before a decision is renderedon the merits of the complaint.

(h) Specific reference must be madeto any tariff provision relied on in sup-port of a claim or defense. Parties areencouraged to provide copies of the tar-iff or relevant portions thereof.

(i) All statements purporting to sum-marize or explain Commission ordersor policies must cite, in standard legalform, the Commission ruling uponwhich such statements are based.

[53 FR 11852, Apr. 11, 1988, as amended at 58FR 25572, Apr. 27, 1993]

§ 1.721 Format and content.(a) A formal complaint shall contain:(1) The name of each complainant

and defendant;(2) The occupation, address and tele-

phone number of each complainantand, to the extent known, each defend-ant;

(3) The name, address, and telephonenumber of complainant’s attorney, ifrepresented by counsel;

(4) Citation to the section of theCommunications Act and/or order and/or regulation of the Commission al-leged to have been violated.

(5) A complete statement of factswhich, if proven true, would constitutesuch a violation;

(6) Complete identification or de-scription, including relevant time pe-riod, of the communications, trans-missions, services, or other carrier con-duct complained of and nature of theinjury sustained;

(7) The relief sought, including recov-ery of damages and the amount of dam-ages claimed, if known; and

(8) Whether suit has been filed in anycourt or other government agency onthe basis of the same cause of action.

(b) The following format may be usedin cases to which it is applicable, withsuch modifications as the cir-cumstances may render necessary:

BEFORE THE FEDERAL COMMUNICATIONSCOMMISSION, WASHINGTON, DC 20554

In the matter of

————————————————————————Complainant,

v.

————————————————————————Defendant.

File No. (To be inserted by the Common Car-rier Bureau)

Complaint

To: The Commission.The complainant (here insert full name of

each complainant and, if a corporation, thecorporate title of such complainant) showsthat:

1. (Here state occupation, post office ad-dress, and telephone number of each com-plainant).

2. (Here insert the name, occupation and,to the extent known, address and telephonenumber of defendants).

3. (Here insert fully and clearly the specificact or thing complained of, together with


173


such facts as are necessary to give a full un-derstanding of the matter, including rel-evant legal and documentary support).

Wherefore, complainant asks (here statespecifically the relief desired).

————————————————————————(Date)

————————————————————————(Name of each complainant)

————————————————————————

(Name, address, and telephone number of at-torney, if any)

[53 FR 11853, Apr. 11, 1988]

§ 1.722 Damages.

(a) In case recovery of damages issought, the complaint shall contain ap-propriate allegations showing such evi-dence that will identify, with reason-able certainty, the amount of damagesfor which recovery is sought.

(b) Damages will not be awardedupon a complaint unless specificallyrequested. Damages may be awarded,however, upon a supplemental com-plaint based upon a finding of the Com-mission in the original proceeding. Pro-vided that:

(1) If recovery of damages or over-charges is first sought by supplementalcomplaint, such supplemental com-plaint must be filed within, and recov-ery is limited to, the statutory periodsof limitations contained in section 415of the Communications Act;

(2) A claim for recovery of damagescontained in a supplemental complaintbased on a finding of the Commissionin the original proceeding which meetsthe requirements of paragraph (a) ofthis section shall relate back to the fil-ing date of the original formal com-plaint if:

(i) The original complaint clearlyand unequivocally requests the recov-ery of damages (even if the preciseamount and other specific details areunknown), and

(ii) Such supplemental complaint isfiled no later than 60 days after publicnotice (as defined in § 1.4(b) of therules) of a decision on the merits of theoriginal complaint.

[53 FR 11853, Apr. 11, 1988]

§ 1.723 Joinder of complainants andcauses of action.

(a) Two or more complainants mayjoin in one complaint if their respec-tive causes of action are against thesame defendant and concern substan-tially the same facts and alleged viola-tion of the Communications Act.

(b) Two or more grounds of complaintinvolving the same principle, subject,or statement of facts may be includedin one complaint, but should be sepa-rately stated and numbered.

[53 FR 11853, Apr. 11, 1988]

§ 1.724 Answers.(a) Any carrier upon which a copy of

a formal complaint, supplemental com-plaint, amended complaint, or crosscomplaint is served under this subpartshall answer within 30 days of serviceof the pleading to which the answer ismade, unless otherwise directed by theCommission.

(b) The answer shall advise the par-ties and the Commission fully and com-pletely of the nature of any defense,and shall respond specifically to allmaterial allegations of the complaint.Collateral or immaterial issues shall beavoided in answers and every effortshould be made to narrow the issues.Any party failing to file and serve ananswer within the time and in themanner prescribed by these rules maybe deemed in default and an order maybe entered against defendant in accord-ance with the allegations contained inthe complaint.

(c) A party shall state concisely itsdefenses to each claim asserted andshall admit or deny the averments onwhich the adverse party relies. If theparty is without knowledge or informa-tion sufficient to form a belief as to thetruth of an averment, the party shallso state and this has the effect of a de-nial. When a pleader intends in goodfaith to deny only part of an averment,the pleader shall specify so much of itas is true and shall deny only the re-mainder. The pleader may make its de-nials as specific denials of designatedaverments or paragraphs, or may gen-erally deny all the averments exceptsuch designated averments or para-graphs as the pleader expressly admits.When the pleader intends to controvert


174

47 CFR Ch. I (10–1–97 Edition)§ 1.725

all averments, the pleader may do soby general denial.

(d) Averments in a pleading to whicha responsive pleading is required, otherthan those as to the amount of dam-ages, are deemed to be admitted whennot denied in this responsive pleading.

(e) Affirmative defenses to allega-tions contained in the complaint shallbe specifically captioned as such andpresented separately from any denialsmade in accordance with paragraph (c)of this section.


§ 1.725 Cross complaints.A cross complaint, seeking any relief

within the jurisdiction of the Commis-sion against any carrier which is aparty (complainant or defendant) tothe proceeding, may be filed by a de-fendant with its answer. For the pur-pose of this subpart, the term crosscomplaint shall include counterclaim.

[53 FR 11854, Apr. 11, 1988]

§ 1.726 Replies.Within 10 days after service of an an-

swer containing affirmative defensespresented in accordance with § 1.724(e),a complainant may file and serve areply, which shall be responsive to onlythose allegations contained in affirma-tive defenses.

[58 FR 25572, Apr. 27, 1993]

§ 1.727 Motions.(a) A request to the Commission for

an order shall be by written motion,stating with particularly the groundsand authority therefor, and settingforth the relief or order sought.

(b) A motion that the allegations inthe complaint be made more definiteand certain shall be filed within 15 daysafter service of a complaint by theCommission.

(c) Where the matter involved in themotion is one of procedure or discov-ery, the moving party shall provide aproposed order for adoption, which ap-propriately incorporates the basistherefor.

(d) A party opposing any motion con-cerning procedure or discovery shallalso provide a proposed order for adop-

tion, which appropriately incorporatesthe basis therefor.

(e) Oppositions to motions may befiled within ten days after the motionis filed. Oppositions shall be limited tothe specific issues and allegations con-tained in the motion; when a motion isincorporated in an answer to a com-plaint, an opposition to the motionshall not address any issues presentedin the answer that are not also specifi-cally raised in the motion.

(f) No reply may be filed to an opposi-tion to a motion.


§ 1.728 Formal complaints not statinga cause of action; defective plead-ings.

(a) Any document purporting to be aformal complaint which does not statea cause of action under the Commu-nications Act will be dismissed. In suchcase, any amendment or supplement tosuch document will be considered anew filing which must be made withinthe statutory periods of limitations ofactions contained in section 415 of theCommunications Act.

(b) Any other pleading filed in a for-mal complaint proceeding not in con-formity with the requirements of theapplicable rules in this part may bedeemed defective. In such case theCommission may strike the pleading orrequest that specified defects be cor-rected and that proper pleadings befiled with the Commission and servedon all parties within a prescribed timeas a condition to being made a part ofthe record in the proceeding.

[53 FR 11854, Apr. 11, 1988]

§ 1.729 Interrogatories to parties.

(a) During the time period beginningwith service of the complaint and end-ing 30 days after the date an answer isdue to be filed, any party may serveany other party written interrog-atories, to be answered in writing bythe party served or, if the party servedis a public or private corporation orpartnership or association, by any offi-cer or agent who shall furnish such in-formation as is available to the party.


175


All interrogatories served on an oppos-ing party shall be filed with the Com-mission at the time of service. Partiesshall propound no more than 30 singleinterrogatories without prior Commis-sion approval. Subparts of an interrog-atory will be counted as separate inter-rogatories for purposes of compliancewith this limit. This procedure may beused for the discovery of any nonprivi-leged matter which is relevant to thepleadings. Interrogatories may not beemployed for the purpose of delay, har-assment or to obtain informationwhich is beyond the scope of permis-sible inquiry relating to the subjectmatter of the pleadings.

(b) Parties on whom interrogatoriesare served shall respond without wait-ing to be ordered to do so by the Com-mission. Each interrogatory shall beanswered separately and fully in writ-ing under oath or affirmation, unless itis objected to, in which event the rea-sons for objection shall be stated inlieu of an answer. The answers shall besigned by the person making them. Theparty on whom the interrogatorieswere served shall serve a copy of theanswers and objections, if any, within30 days after service of the interrog-atories, except that a defendant mayserve answers or objections within 15days after filing its answer to the com-plaint, whichever period is longer. Onproper motion being made, the Com-mission may allow a shorter or longertime for the filing of answers or objec-tions.

(c) Where the responding party hasfailed to respond, or has objected, toany interrogatory, the party propound-ing the interrogatories may, within 15days of the date the response was due ifno response is filed or the date of serv-ice of the objection, move to compel aresponse thereto. The motion shouldstate with specificity the relevance ofand necessity for the requested infor-mation and must also comply with therequirements of § 1.727 of this part per-taining to motions generally. Alter-nately, the party may request that an-swers to interrogatories be discussedduring a status conference, pursuant to§ 1.733.

(d) Answers to interrogatories shallnot be filed with the Commission un-

less so ordered by the Commission orits staff.

(e) The Commission may in its dis-cretion limit the scope of permissibleinquiry so that matters pertainingsolely to the amount or computation ofdamages are not addressed until after afinding of liability has been madeagainst the complainant. Inquiries thatrelate dually to liability and damageswill be permitted during initial discov-ery conducted during the liabilityphase. If a bifurcated framework is im-plemented and a finding of liability ismade, the parties shall, within 5 work-ing days, inform the Commissionwhether they wish to defer damagesdiscovery in order to enter negotia-tions for the purpose of settling theirdispute. If the parties commence set-tlement negotiations, damages discov-ery shall not be undertaken prior to 20days after release of the liability order.


§ 1.730 Other forms of discovery.(a) If a party believes it needs to en-

gage in some form of discovery otherthan by written interrogatories under§ 1.729, including but not limited to theproduction of documents, the taking ofdepositions, or the propounding of ad-ditional interrogatories, the party mayfile a motion with the Commission re-questing that such discovery be per-mitted. The motion should state withspecificity the type of discovery re-quested, the information which is ex-pected to be elicited, the relevance ofsuch information to the resolution ofthe proceeding, and must also complywith the requirements of § 1.727 hereof,pertaining to motions generally. Suchmotions will not be routinely grantedexcept for good cause shown.

(b) The party from whom the discov-ery is sought may file an opposition toa motion seeking discovery within 10days after the motion is filed. No replyis permitted.

(c) Motions seeking discovery may befiled only during the period beginningwith the service of a complaint andending 30 days after the date an answeris filed or 15 days after responses to in-terrogatories under § 1.729 are filed,whichever period is longer, exceptwhere the movant demonstrates that


176

47 CFR Ch. I (10–1–97 Edition)§ 1.731

the need for such discovery could not,even with due diligence, have beenascertained within this period.

(d) Documents produced through dis-covery shall not be filed with the Com-mission unless so ordered by the Com-mission or its staff.


§ 1.731 Confidentiality of informationproduced through discovery.

(a) Any materials generated or pro-vided by a party in response to discov-ery may be designated as proprietaryby that party if the party believes ingood faith that the materials fall with-in an exemption to disclosure con-tained in the Freedom of InformationAct (FOIA), 5 U.S.C. 552(b)(1)–(9). Anyparty asserting confidentiality for suchmaterials shall so indicate by clearlymarking each page, or portion thereof,for which a proprietary designation isclaimed. If a proprietary designation ischallenged, the party claiming con-fidentiality shall have the burden ofdemonstrating, by a preponderance ofthe evidence, that the material des-ignated as proprietary falls under thestandards for nondisclosure enunciatedin the FOIA.

(b) Materials marked as proprietarymay be disclosed solely to the follow-ing persons, only for use in prosecutingor defending a party to the complaintaction, and only to the extent nec-essary to assist in the prosecution ordefense of the case:

(1) Counsel of record representing theparties in the complaint action andany support personnel employed bysuch attorneys;

(2) Officers or employees of the op-posing party who are named by the op-posing party as being directly involvedin the prosecution or defense of thecase;

(3) Consultants or expert witnessesretained by the parties;

(4) The Commission and its staff; and(5) Court reporters and stenographers

in accordance with the terms and con-ditions of this section.

(c) These individuals shall not dis-close information designated as propri-etary to any person who is not author-ized under this section to receive suchinformation, and shall not use the in-

formation in any activity or functionother than the prosecution or defensein the case before the Commission.Each individual who is provided accessto the information shall sign a nota-rized statement affirmatively statingthat the individual has personally re-viewed the Commission’s rules and un-derstands the limitations they imposeon the signing party.

(d) No copies of materials markedproprietary may be made except copiesto be used by persons designated inparagraph (b) of this section. Eachparty shall maintain a log recordingthe number of copies made of all pro-prietary material and the persons towhom the copies have been provided.

(e) Upon termination of a formalcomplaint proceeding, including all ap-peals and petitions, all originals andreproductions of any proprietary mate-rials, along with the log recording per-sons who received copies of such mate-rials, shall be provided to the produc-ing party. In addition, upon final ter-mination of the complaint proceeding,any notes or other work product de-rived in whole or in part from the pro-prietary materials of an opposing orthird party shall be destroyed.

[58 FR 25573, Apr. 27, 1993]

§ 1.732 Other required written submis-sions.

(a) The Commission may, in its dis-cretion, require the parties to filebriefs summarizing the facts and issuespresented in the pleadings and otherrecord evidence. These briefs shall con-tain the findings of fact and conclu-sions of law which that party is urgingthe Commission to adopt, with specificcitation to the record, and supportedby relevant authority and analysis. Ab-sent an order by the Commission thatbriefs be filed, the parties may volun-tarily submit briefs in accordance withthe provisions of paragraphs (b)through (e) of this section.

(b) In cases when discovery is notconducted, briefs shall be filed concur-rently by both complainant and defend-ant within 90 days from the date acomplaint is served. Such briefs shallbe no longer than 35 pages.


177


(c) In cases when discovery is con-ducted, briefs shall be filed concur-rently by both complainant and defend-ant at such time designated by thestaff, typically within 30 days after dis-covery is completed. Such briefs shallbe no longer than 50 pages.

(d) Reply briefs may be submitted byeither party within 20 days from thedate initial briefs are due. Reply briefsshall be no longer than 20 pages incases when discovery is not conducted,and 30 pages in cases when discovery isconducted.

(e) Briefs containing informationwhich is claimed by an opposing orthird party to be proprietary under§ 1.731 shall be submitted to the Com-mission in confidence pursuant to therequirements of § 0.459 of this chapterand clearly marked ‘‘Not for Public In-spection.’’ An edited version removingall proprietary data shall also be filedwith the Commission for inclusion inthe public file. Edited versions shall befiled within five days from the date theunedited brief is submitted, and servedon opposing parties.

(f) Either on its own motion or uponproper motion by a party, the Commis-sion may establish other deadlines orpage limits for briefs.

(g) The Commission may require theparties to submit any additional infor-mation it deems appropriate for a full,fair, and expeditious resolution of theproceeding, including affidavits and ex-hibits.

[53 FR 11855, Apr. 11, 1988. Redesignated andamended at 58 FR 25573, Apr. 27, 1993]

§ 1.733 Status conference.(a) In any complaint proceeding, the

Commission may in its discretion di-rect the attorneys and/or the parties toappear before it for a conference toconsider:

(1) Simplification or narrowing of theissues;

(2) The necessity for or desirability ofamendments to the pleadings, or of ad-ditional pleadings or evidentiary sub-missions;

(3) Obtaining admissions of fact orstipulations between the parties as toany or all of the matters in con-troversy;

(4) Settlement of the matters in con-troversy by agreement of the parties;

(5) The necessity and extent of dis-covery, including objections to inter-rogatories or requests for production ofdocuments;

(6) The need and schedule for filingbriefs, and the date for further con-ferences; and

(7) Such other matters that may aidin the disposition of the complaint.

(b) While a conference normally willbe scheduled after the answer has beenfiled, any party may request that aconference be held at any time afterthe complaint has been filed.

(c) During a status conference, theCommission staff may issue oral rul-ings pertaining to a variety of inter-locutory matters relevant to the con-duct of a formal complaint proceedingincluding, inter alia, procedural mat-ters, discovery, and the submission ofbriefs or other evidentiary materials.These rulings will be promptly memo-rialized in writing and served on theparties. When such rulings require aparty to undertake affirmative actionnot subject to deadlines established byanother provision of this subpart, suchaction will be required within 10 daysfrom the date of the written memori-alization unless the staff designates alater deadline.

(d) Conferences will be scheduled bythe Commission at such time and placeas it may designate, to be conducted inperson or by telephone conference call.

(e) The failure of any attorney orparty, following reasonable notice, toappear at a scheduled conference willbe deemed a waiver and will not pre-clude the Commission from conferringwith those parties or counsel present.

[53 FR 11855, Apr. 11, 1988. Redesignated andamended at 58 FR 25573, Apr. 27, 1993]

§ 1.734 Specifications as to pleadings,briefs, and other documents; sub-scription.

(a) All papers filed in any formalcomplaint proceeding must be drawn inconformity with the requirements of§§ 1.49 and 1.50.

(b) All averments of claims or de-fenses in complaints and answers shallbe made in numbered paragraphs. Thecontents of each paragraph shall belimited as far as practicable to a state-ment of a single set of circumstances.Each claim founded on a separate


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47 CFR Ch. I (10–1–97 Edition)§ 1.735

transaction or occurrence and each af-firmative defense shall be separatelystated to facilitate the clear presen-tation of the matters set forth.

(c) The original of all pleadings andother submissions filed by any partyshall be signed by that party, or by theparty’s attorney. The signing partyshall state his or her address and tele-phone number and the date on whichthe document was signed. Copiesshould be conformed to the original.Except when otherwise specificallyprovided by rule or statute, pleadingsneed not be verified. The signature ofan attorney or party shall be a certifi-cate that the attorney or party hasread the pleading, motion, or otherpaper; that to the best of his or herknowledge, information, and beliefformed after reasonable inquiry, it iswell grounded in fact and is warrantedby existing law or a good faith argu-ment for the extension, modification,or reversal of existing law; and that itis not interposed for any improper pur-pose.

[53 FR 11855, Apr. 11, 1988. Redesignated at 58FR 25573, Apr. 27, 1993]

§ 1.735 Copies; service; separate filingsagainst multiple defendants.

(a) Complaints may generally bebrought against only one named car-rier; such actions may not be broughtagainst multiple defendants unless thedefendant carriers are commonlyowned or controlled, are alleged tohave acted in concert, are alleged to bejointly liable to complainant, or thecomplaint concerns common questionsof law or fact. Complaints may, how-ever, be consolidated by the Commis-sion for disposition.

(b) The complainant must file anoriginal plus three copies of the com-plaint, accompanied by the correct fee,in accordance with subpart G of thispart. See 47 CFR 1.1105(1)(c). However,if a complaint is addressed againstmultiple defendants, complainant shallpay separate fee and supply three addi-tional copies of the complaint for eachadditional defendant.

(c) Generally, a separate file is set upfor each defendant. An original plustwo copies shall be filed of all plead-ings and documents, other than the

complaint, for each file number as-signed.

(d) The Commission will serve a copyof any formal complaint filed with iton the named defendant, together witha notice of the filing of the complaint.Such notice shall call upon the defend-ant to satisfy the complaint or to an-swer the complaint in writing withinthe time specified in the notice.

(e) All subsequent pleadings andbriefs filed in any formal complaintproceeding, including any supple-mental, amended, or cross complaint,as well as all letters, documents orother written submissions, shall beserved by the filing party on all otherparties to the proceeding, togetherwith a proof of such service in accord-ance with the requirements of § 1.47.

(f) The parties to any complaint pro-ceeding may be required to file addi-tional copies of any or all papers filedin the proceeding.

[53 FR 11855, Apr. 11, 1988. Redesignated andamended at 58 FR 25573, 25574, Apr. 27, 1993]

APPLICATIONS

§ 1.741 Scope.The general rules relating to applica-

tions contained in §§ 1.742 through 1.748apply to all applications filed by car-riers except those filed by public cor-respondence radio stations pursuant toparts 80, 87, and 101 of this chapter, andthose filed by common carriers pursu-ant to part 25 of this chapter. Parts 21and 101 of this chapter contain generalrules applicable to applications filedpursuant to these parts. For generalrules applicable to applications filedpursuant to parts 80 and 87 of thischapter, see such parts and subpart Fof this part. For rules applicable to ap-plications filed pursuant to part 25, seesaid part.

[61 FR 26670, May 28, 1996]

§ 1.742 Place of filing, fees, and num-ber of copies.

All applications which do not requirea fee shall be filed at the Commission’smain office in Washington, DC., Atten-tion: Office of the Secretary. Hand-de-livered applications will be dated bythe Secretary upon receipt (mailed ap-plications will be dated by the MailBranch) and then forwarded to the


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Common Carrier Bureau. All applica-tions accompanied by a fee paymentshould be filed with the Commission’slockbox bank in accordance with§ 1.1105, Schedule of Fees. The numberof copies required for each applicationand the nonrefundable processing feesand any applicable regulatory fees (seesubpart G of this part) which must ac-company each application in order toqualify it for acceptance for filing andconsideration are set forth in the rulesin this chapter relating to varioustypes of applications. However, if anyapplication is not of the type coveredby this chapter, an original and twocopies of each such application shall besubmitted.

[59 FR 30998, June 16, 1994]

§ 1.743 Who may sign applications.(a) Except as provided in paragraph

(b) of this section, applications, amend-ments thereto, and related statementsof fact required by the Commissionmust be signed by the applicant, if theapplicant is an individual; by one ofthe partners, if the applicant is a part-nership; by an officer or duly author-ized employee, if the applicant is a cor-poration; or by a member who is an of-ficer, if the applicant is an unincor-porated association. Applications,amendments, and related statements offact filed on behalf of eligible govern-ment entities such as states and terri-tories of the United States, their polit-ical subdivisions, the District of Co-lumbia, and units of local government,including incorporated municipalities,must be signed by a duly elected or ap-pointed official who is authorized to doso under the laws of the applicable ju-risdiction.

(b) Applications, amendments there-to, and related statements of fact re-quired by the Commission may besigned by the applicant’s attorney incase of the applicant’s physical disabil-ity or of his absence from the UnitedStates. The attorney shall in thatevent separately set forth the reasonwhy the application is not signed bythe applicant. In addition, if any mat-ter is stated on the basis of the attor-ney’s belief only (rather than hisknowledge), he shall separately setforth his reasons for believing thatsuch statements are true.

(c) Only the original of applications,amendments, or related statements offact need be signed; copies may be con-formed.

(d) Applications, amendments, andrelated statements of fact need not besigned under oath. Willful false state-ments made therein, however, are pun-ishable by fine and imprisonment, U.S.Code, Title 18, section 1001, and by ap-propriate administrative sanctions, in-cluding revocation of station licensepursuant to section 312(a)(1) of theCommunications Act of 1934, as amend-ed.

(e) ‘‘Signed,’’ as used in this section,means an original hand-written signa-ture, except that by public notice inthe FEDERAL REGISTER the CommonCarrier Bureau may allow signature byany symbol executed or adopted by theapplicant with the intent that suchsymbol be a signature, including sym-bols formed by computer-generatedelectronic impulses.

[28 FR 12450, Nov. 22, 1963, as amended at 53FR 17193, May 16, 1988; 59 FR 59503, Nov. 17,1994]

§ 1.744 Amendments.

(a) Any application not designatedfor hearing may be amended at anytime by the filing of signed amend-ments in the same manner, and withthe same number of copies, as was theinitial application. If a petition todeny (or to designate for hearing) hasbeen filed, the amendment shall beserved on the petitioner.

(b) After any application is des-ignated for hearing, requests to amendsuch application may be granted by thepresiding officer upon good causeshown by petition, which petition shallbe properly served upon all other par-ties to the proceeding.

(c) The applicant may at any time beordered to amend his application so asto make it more definite and certain.Such order may be issued upon motionof the Commission (or the presiding of-ficer, if the application has been des-ignated for hearing) or upon petition ofany interested person, which petitionshall be properly served upon the appli-cant and, if the application has been


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47 CFR Ch. I (10–1–97 Edition)§ 1.745

designated for hearing, upon all partiesto the hearing.

[29 FR 6444, May 16, 1964, and 31 FR 14394,Nov. 9, 1966]

§ 1.745 Additional statements.The applicant may be required to

submit such additional documents andwritten statements of fact, signed andverified (or affirmed), as in the judg-ment of the Commission (or the presid-ing officer, if the application has beendesignated for hearing) may be nec-essary. Any additional documents andwritten statements of fact required inconnection with applications underTitle II of the Communications Actneed not be verified (or affirmed).

[29 FR 6444, May 16, 1964]

§ 1.746 Defective applications.(a) Applications not in accordance

with the applicable rules in this chap-ter may be deemed defective and re-turned by the Commission without ac-ceptance of such applications for filingand consideration. Such applicationswill be accepted for filing and consider-ation if accompanied by petition show-ing good cause for waiver of the rulewith which the application does notconform.

(b) The assignment of a file number,if any, to an application is for the ad-ministrative convenience of the Com-mission and does not indicate the ac-ceptance of the application for filingand consideration.

§ 1.747 Inconsistent or conflicting ap-plications.

When an application is pending orundecided, no inconsistent or conflict-ing application filed by the same appli-cant, his successor or assignee, or onbehalf or for the benefit of said appli-cant, his successor, or assignee, will beconsidered by the Commission.

§ 1.748 Dismissal of applications.(a) Before designation for hearing. Any

application not designated for hearingmay be dismissed without prejudice atany time upon request of the applicant.An applicant’s request for the return ofan application that has been acceptedfor filing and consideration, but notdesignated for hearing, will be deemed

a request for dismissal without preju-dice. The Commission may dismiss anapplication without prejudice before ithas been designated for hearing whenthe applicant fails to comply or justifynoncompliance with Commission re-quests for additional information inconnection with such application.

(b) After designation for hearing. A re-quest to dismiss an application withoutprejudice after it has been designatedfor hearing shall be made by petitionproperly served upon all parties to thehearing and will be granted only forgood cause shown. An application maybe dismissed with prejudice after it hasbeen designated for hearing when theapplicant:

(1) Fails to comply with the require-ments of § 1.221(c);

(2) Otherwise fails to prosecute hisapplication; or

(3) Fails to comply or justify non-compliance with Commission requestsfor additional information in connec-tion with such application.

[28 FR 12450, Nov. 22, 1963, as amended at 29FR 6445, May 16, 1964]

§ 1.749 Action on application underdelegated authority.

Certain applications do not requireaction by the Commission but, pursu-ant to the delegated authority con-tained in subpart B of part 0 of thischapter, may be acted upon by theTelegraph Committee, the TelephoneCommittee, or the Chief of the Com-mon Carrier Bureau, respectively, sub-ject to reconsideration by the Commis-sion.

SPECIFIC TYPES OF APPLICATIONS UNDERTITLE II OF COMMUNICATIONS ACT

§ 1.761 Cross reference.Specific types of applications under

Title III of the Communications Act in-volving public correspondence radiostations are specified in parts 23, 80, 87,and 101 of this chapter.

[61 FR 26671, May 28, 1996]

§ 1.762 Interlocking directorates.Applications under section 212 of the

Communications Act for authority tohold the position of officer or directorof more than one carrier subject to the


181


act or for a finding that two or morecarriers are commonly owned shall bemade in the form and manner, with thenumber of copies set forth in part 62 ofthis chapter. The Commission shall beinformed of any change in status ofany person authorized to hold the posi-tion of officer or director of more thanone carrier, as required by part 62 ofthis chapter.

[52 FR 5289, Feb. 20, 1987]

§ 1.763 Construction, extension, acqui-sition or operation of lines.

(a) Applications under section 214 ofthe Communications Act for authorityto construct a new line, extend anyline, acquire or operate any line or ex-tension thereof, or to engage in trans-mission over or by means of such addi-tional or extended line, to furnish tem-porary or emergency service, or to sup-plement existing facilities shall bemade in the form and manner, with thenumber of copies and accompanied bythe fees specified in part 63 of thischapter.

(b) In cases under this section requir-ing a certificate, notice is given to anda copy of the application is filed withthe Secretary of the Army, the Sec-retary of the Navy, and the Governor ofeach State involved. Hearing is held ifany of these persons desires to be heardor if the Commission determines that ahearing should be held. Copies of appli-cations for certificates are filed withthe regulatory agencies of the Statesinvolved.

§ 1.764 Discontinuance, reduction, orimpairment of service.

(a) Applications under section 214 ofthe Communications Act for the au-thority to discontinue, reduce, or im-pair service to a community or part ofa community or for the temporary,emergency, or partial discontinuance,reduction, or impairment of serviceshall be made in the form and manner,with the number of copies specified inpart 63 of this chapter (see also subpartG, part 1 of this chapter). Posted andpublic notice shall be given the publicas required by part 63 of this chapter.

(b) In cases under this section requir-ing a certificate, notice is given to anda copy of the application is filed withthe Secretary of Defense, the Secretary

of State (with respect to such applica-tions involving service to foreignpoints), and the Governor of each Stateinvolved. Hearing is held if any of thesepersons desires to be heard or if theCommission determines that a hearingshould be held. Copies of all formal ap-plications under this section request-ing authorizations (including certifi-cates) are filed with the Secretary ofDefense, the Secretary of State (withrespect to such applications involvingservice to foreign points) and the Gov-ernor of each State involved. Copies ofall applications under this section re-questing authorizations (including cer-tificates) are filed with the regulatoryagencies of the States involved.

[28 FR 12450, Nov. 22, 1963, as amended at 52FR 5289, Feb. 20, 1987]

§ 1.765 Consolidation or acquisition oftelephone companies.

Applications under section 221(a) ofthe Communications Act for authorityto consolidate or acquire telephonecompanies shall be made in the formand manner, with the number of copiesand accompanied by the fees shown inpart 66 of this chapter.

§ 1.766 Consolidation of domestic tele-graph carriers.

(a) Applications under section 22 ofthe Communications Act by two ormore domestic telegraph carriers forauthorization to effect a consolidationor merger or by any domestic telegraphcarrier to acquire all or any part of thedomestic telegraph properties, domes-tic telegraph facilities, or domestictelegraph operations of any carriershall contain such information as isnecessary for the Commission to actupon such application under the provi-sions of section 222 of the Act.

(b) These applications are acted uponby the Commission after public hear-ing. Reasonable notice in writing of thepublic hearing and an opportunity tobe heard is given by the Commission tothe Governor of each of the States inwhich any of the physical property in-volved in such proposed consolidationor merger is situated, to the Secretaryof State, the Secretary of the Army,the Attorney General of the United


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47 CFR Ch. I (10–1–97 Edition)§ 1.767

States, the Secretary of the Navy, rep-resentatives of employees where rep-resented by bargaining representativesknown to the Commission, and to suchother persons as the Commission maydeem advisable.

[28 FR 12450, Nov. 22, 1963, as amended at 52FR 5289, Feb. 20, 1987]

§ 1.767 Cable landing licenses.

(a) Applications for cable landing li-censes under 47 U.S.C. 34–39 and Execu-tive Order No. 10530, dated May 10, 1954,should be filed in duplicate and in ac-cordance with the provisions of thatExecutive Order. These applicationsshould contain:

(1) The name, address and telephonenumber(s) of the applicant;

(2) The Government, State, or Terri-tory under the laws of which each cor-porate or partnership applicant is orga-nized;

(3) The name, title, post office ad-dress, and telephone number of the offi-cer and any other contact point, suchas legal counsel, to whom correspond-ence concerning the application is tobe addressed;

(4) A description of the submarinecable, including the type and numberof channels and the capacity thereof;

(5) A specific description of the cablelanding location on the shore of theUnited States and in foreign countrieswhere the cable will land (including amap). Applicants initially may file ageneral geographic description of thelanding points; however, grant of theapplication will be conditioned on theCommission’s final approval of a morespecific description of the landingpoints to be filed by the applicant nolater than 90 days prior to construc-tion. The Commission will give publicnotice of the filing of this description,and grant of the license will be consid-ered final if the Commission does notnotify the applicant otherwise in writ-ing no later than 60 days after receiptof the specific description of the land-ing points.

(6) A statement as to whether thecable will be operated on a commoncarrier or non-common carrier basis,and if operation will be on a non-com-mon carrier basis, include the owner-ship information required in § 63.18

(e)(6) and (h) (1) through (2) of thischapter; and

(7) Any other information that maybe necessary to enable the Commissionto act on their application.

(b) These applications are acted uponby the Commission after obtaining theapproval of the Secretary of State andsuch assistance from any executive de-partment or establishment of the Gov-ernment as it may require.

(c) Original files relating to sub-marine cable landing licenses and ap-plications for licenses since June 30,1934, are kept by the Commission. Suchapplications for licenses (including alldocuments and exhibits filed with andmade a part thereof, with the exceptionof any maps showing the exact locationof the submarine cable or cables to belicensed) and the licenses issued pursu-ant thereto, with the exception of suchmaps, shall, unless otherwise orderedby the Commission, be open to publicinspection in the offices of the Com-mission in Washington, D.C.

(d) Original files relating to licensesand applications for licenses for thelanding operation of cables prior toJune 30, 1934, were kept by the Depart-ment of State, and such files prior to1930 have been transferred to the Exec-utive and Foreign Affairs Branch of theGeneral Records Office of the NationalArchives. Requests for inspection ofthese files should, however, be ad-dressed to the Federal Communica-tions Commission, Washington, D.C.,20554; and the Commission will obtainsuch files for a temporary period inorder to permit inspection at the of-fices of the Commission.

(e) A separate application shall befiled with respect to each individualcable system for which a license is re-quested, or for which modification oramendment of a previous license is re-quested.

(f) Applicants shall disclose to anyinterested member of the public, uponwritten request, accurate informationconcerning the location and timing forthe construction of a submarine cablesystem authorized under this section.This disclosure shall be made within 30days of receipt of the request.

[28 FR 12450, Nov. 22, 1963, as amended at 52FR 5289, Feb. 20, 1987; 61 FR 15726, Apr. 9,1996]


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TARIFFS

§ 1.771 Filing.Schedules of charges, and classifica-

tions, practices, and regulations affect-ing such charges, required under sec-tion 203 of the Communications Actshall be constructed, filed, and postedin accordance with and subject to therequirements of part 61 of this chapter.

§ 1.772 Application for special tariffpermission.

Applications under section 203 of theCommunications Act for special tariffpermission shall be made in the formand manner, with the number of copiesset out in part 61 of this chapter.

[52 FR 5289, Feb. 20, 1987]

§ 1.773 Petitions for suspension or re-jection of new tariff filings.

(a) Petition—(1) Content. Petitionsseeking investigation, suspension, orrejection of a new or revised tariff fil-ing or any provision thereof shallspecify the filing’s Federal Commu-nications Commission tariff numberand carrier transmittal number, theitems against which protest is made,and the specific reasons why the pro-tested tariff filing warrants investiga-tion, suspension, or rejection under theCommunications Act. No petition shallinclude a prayer that it also be consid-ered a formal complaint. Any formalcomplaint shall be filed as a separatepleading as provided in § 1.721.

(i) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filing or any provision ofsuch a publication, must specify thepertinent Federal CommunicationsCommission tariff number and carriertransmittal number; the matters pro-tested; and the specific reasons whythe tariff warrants investigation, sus-pension, or rejection. When a single pe-tition asks for more than one form ofrelief, it must separately and distinctlyplead and support each form of relief.However, no petiton may ask that italso be considered a formal complaint.Formal complaints must be separatelylodged, as provided in § 1.721.

(ii) For purposes of this section, tar-iff filings by nondominant carriers willbe considered prima facie lawful, andwill not be suspended by the Commis-

sion unless the petition requesting sus-pension shows:

(A) That there is a high probabilitythe tariff would be found unlawful afterinvestigation;

(B) That the harm alleged to com-petition would be more substantialthan the injury to the public arisingfrom the unavailability of the servicepursuant to the rates and conditionsproposed in the tariff filing;

(C) That irreparable injury will re-sult if the tariff filing is not suspended;and

(D) That the suspension would nototherwise be contrary to the public in-terest.

(iii) For the purpose of this section,any tariff filing by a local exchangecarrier filed pursuant to the require-ments of § 61.39 will be consideredprima facie lawful and will not be sus-pended by the Commission unless thepetition requesting suspension showsthat the cost and demand studies or av-erage schedule information was notprovided upon reasonable request. Ifsuch a showing is not made, then thefiling will be considered prima facielawful and will not be suspended by theCommission unless the petition re-questing suspension shows each of thefollowing:


(B) That any unreasonable ratewould not be corrected in a subsequentfiling;



(iv) For the purposes of this section,tariff filings made pursuant to § 61.49(b)by carriers subject to price cap regula-tion will be considered prima facie law-ful, and will not be suspended by theCommission unless the petition showsthat the support information requiredin § 61.49(b) was not provided, or unlessthe petition requesting suspensionshows each of the following:



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47 CFR Ch. I (10–1–97 Edition)§ 1.773

(B) That the suspension would notsubstantially harm other interestedparties;



(2) When filed. All petitions seekinginvestigation, suspension, or rejectionof a new or revised tariff filing shallmeet the filing requirements of thisparagraph. In case of emergency andwithin the time limits provided, a tele-graphic request for such relief may besent to the Commission setting forthsuccinctly the substance of the mattersrequired by paragraph (a)(1) of this sec-tion. A copy of any such telegraphic re-quest shall be sent simultaneously tothe Chief, Common Carrier Bureau, theChief, Tariff Division, and the publish-ing carrier. Thereafter, the requestshall be confirmed by petition filed andserved in accordance with § 1.773(a)(4).

(i) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filed pursuant to section204(a)(3) of the Communications Actmade on 7 days notice shall be filed andserved within 3 calendar days after thedate of the tariff filing.

(ii) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filing made on less than 15days notice shall be filed and servedwithin 6 days after the date of the tar-iff filing.

(iii) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filing made on at least 15but less than 30 days notice shall befiled and served within 7 days after thedate of the tariff filing.

(iv) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filing made on at least 30but less than 90 days notice shall befiled and served within 15 days afterthe date of the tariff filing.

(v) Petitions seeking investigation,suspension, or rejection of a new or re-vised tariff filing mode on 90 or moredays notice shall be filed and servedwithin 25 days after the date of the tar-iff filing.

(3) Computation of time. Intermediateholidays shall be counted in determin-

ing the above filing dates. If the datefor filing the petition falls on a holi-day, the petition shall be filed on thenext succeeding business day.

(4) Copies, service. An original andfour copies of each petition shall befiled with the Commission as follows:the original and three copies of eachpetition shall be filed with the Sec-retary, FCC room 222, 1991 M Street,NW., Washington, DC 20554; one copymust be delivered directly to the Com-mission’s copy contractor, Inter-national Transcription Service, Inc.,2100 M St., NW., Suite 140, Washington,DC. Additional, separate copies shall beserved simultaneously upon the Chief,Common Carrier Bureau; the Chief,Competitive Pricing Division; and theChief, Tariff and Price Analysis Branchof the Competitive Pricing Division.Petitions seeking investigation, sus-pension, or rejection of a new or re-vised tariff made on 15 days or less no-tice shall be served either personally orvia facsimile on the filing carrier. If apetition is served via facsimile, a copyof the petition must also be sent to thefiling carrier via first class mail on thesame day of the facsimile trans-mission. Petitions seeking investiga-tion, suspension, or rejection of a newor revised tariff filing made on morethan 15 days notice may be served onthe filing carrier by mail.

(b) Reply—(1) When filed. A publishingcarrier’s reply to a petition for relieffrom a tariff filing shall be filed in ac-cordance with the following periods:

(i) Replies to petitions seeking inves-tigation, suspension, or rejection of anew or revised tariff filed pursuant tosection 204(a)(3) of the Act made on 7days notice shall be filed and servedwithin 2 days after the date the peti-tion is filed with the Commission.

(ii) Replies to petitions seeking in-vestigation, suspension, or rejection ofa new or revised tariff filing made onless than 15 days notice shall be filedand served within 3 days after the datethe petition is due to be filed with theCommission.

(iii) Replies to petitions seeking in-vestigation, suspension, or rejection ofa new or revised tariff filing made onat least 15 but less than 30 days noticeshall be filed and served within 4 daysafter service of the petition.


185


(iv) Replies to petitions seeking in-vestigation, suspension, or rejection ofa new or revised tariff filing made onat least 30 but less than 90 days noticeshall be filed and served within 5 daysafter service of the petition.

(v) Replies to petitions seeking inves-tigation, suspension, or rejection of anew or revised tariff filing made on 90or more days notice shall be filed andserved within 8 days after service ofthe petition.

(vi) Where all petitions against a tar-iff filing have not been filed on thesame day, the publishing carrier mayfile a consolidated reply to all the peti-tions. The time for filing such a con-solidated reply will begin to run on thelast date for timely filed petitions, asfixed by paragraphs (a)(2) (i) through(iv) of this section, and the date onwhich the consolidated reply is due willbe governed by paragraphs (b)(1) (i)through (iv) of this section.

(2) Computation of time. Intermediateholidays shall be counted in determin-ing the 3-day filing date for replies topetitions seeking investigation, sus-pension, or rejection of a new or re-vised tariff filing made on less than 15days notice. Intermediate holidaysshall not be counted in determining fil-ing dates for replies to petitions seek-ing investigation, suspension, or rejec-tion of a new or revised tariff filingmade on 15 or more days notice. Whena petition is permitted to be servedupon the filing carrier by mail, an ad-ditional 3 days (counting holidays) maybe allowed for filing the reply. If thedate for filing the reply falls on a holi-day, the reply may be filed on the nextsucceeding business day.

(3) Copies, service. An original andfour copies of each reply shall be filedwith the Commission, as follows: theoriginal and three copies must be filedwith the Secretary, FCC room 222, 1919M Street, NW., Washington, DC 20554;one copy must be delivered directly tothe Commission’s Copy contractor,International Transcription Service,Inc., 2100 M St., NW/. Suite 140, Wash-ington, DC. Additional separate copiesshall be served simultaneously uponthe Chief, Common Carrier Bureau; theChief, Competitive Division; and theChief, Tariff and Price Analysis Branchof the Competitive Pricing Division

and the petitioner. Replies to petitionsseeking investigation, suspension, orrejection of a new or revised tariffmade on 15 days or less notice shall beserved on petitioners personally or viafacsimile. Replies to petitions seekinginvestigation, suspension, or rejectionof a new or revised tariff made on morethan 15 days notice may be served uponpetitioner personally, by mail or viafacsimile.

[45 FR 64190, Sept. 29, 1980, as amended at 49FR 40876, Oct. 18, 1984; 49 FR 49466, Dec. 20,1984; 52 FR 26682, July 16, 1987; 54 FR 19840,May 8, 1989; 58 FR 17529, Apr. 5, 1993; 58 FR51247, Oct. 1, 1993; 62 FR 5777, Feb. 7, 1997]

CONTRACTS, REPORTS, AND REQUESTSREQUIRED TO BE FILED BY CARRIERS

§ 1.781 Requests for extension of filingtime.

Requests for extension of time withinwhich to file contracts, reports, and re-quests referred to in §§ 1.783 through1.814 shall be made in writing and maybe granted for good cause shown.

CONTRACTS

§ 1.783 Filing.Copies of carrier contracts, agree-

ments, concessions, licenses, authoriza-tions or other arrangements, shall befiled as required by part 43 of this chap-ter.

FINANCIAL AND ACCOUNTING REPORTSAND REQUESTS

§ 1.785 Annual financial reports.(a) An annual financial report shall

be filed by telephone carriers and affili-ates as required by part 43 of this chap-ter on form M.

(b) Verified copies of annual reportsfiled with the Securities and ExchangeCommission on its Form 10–K, Form 1–MD, or such other form as may be pre-scribed by that Commission for filingof equivalent information, shall befiled annually with this Commission byeach person directly or indirectly con-trolling any communications commoncarrier in accordance with part 43 ofthis chapter.

(c) Carriers having separate depart-ments or divisions for carrier and non-carrier operations shall file separate


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supplemental annual reports with re-spect to such carrier and non-carrieroperations in accordance with part 43of this chapter.

[28 FR 12450, Nov. 22, 1963, as amended at 31FR 747, Jan. 20, 1966; 47 FR 50697, Nov. 9, 1982;49 FR 36503, Sept. 18, 1984; 50 FR 41152, Oct. 9,1985; 58 FR 36143, July 6, 1993]

§ 1.786 [Reserved]

§ 1.787 Reports of proposed changes indepreciation rates.

Carriers shall file reports regardingproposed changes in depreciation ratesas required by part 43 of this chapter.

§ 1.788 Reports regarding pensionsand benefits.

Carriers shall file reports regardingpensions and benefits as required bypart 43 of this chapter.

§ 1.789 Reports regarding division ofinternational telegraph communica-tion charges.

Carriers engaging in internationaltelegraph communication shall file re-ports in regard to the division of com-munication charges as required by part43 of this chapter.

§ 1.790 Reports relating to traffic byinternational carriers.

Carriers shall file periodic reports re-garding international point-to-pointtraffic as required by part 43 of thischapter.

[57 FR 8579, Mar. 11, 1992]

§ 1.791 Reports and requests to be filedunder part 32 of this chapter.

Reports and requests shall be filed ei-ther periodically, upon the happeningof specified events, or for specific ap-proval by class A and class B telephonecompanies in accordance with and sub-ject to the provisions of part 32 of thischapter.

[55 FR 30461, July 26, 1990]

§ 1.795 Reports regarding interstaterates of return.

Carriers shall file reports regardinginterstate rates of return on FCC Form492 as required by part 65 of this chap-ter.

[52 FR 274, Jan. 5, 1987]

SERVICES AND FACILITIES REPORTS

§ 1.802 Reports relating to continuingauthority to supplement facilitiesor to provide temporary or emer-gency service.

Carriers receiving authority underpart 63 of this chapter shall file quar-terly or semiannual reports as requiredtherein.

§ 1.803 Reports relating to reduction intemporary experimental service.

As required in part 63 of this chapter,carriers shall report reductions in serv-ice which had previously been expandedon an experimental basis for a tem-porary period.

§ 1.805 Reports relating to service bycarriers engaged in public radioservice operations.

Monthly and quarterly reports mustbe filed with the Commission in con-nection with certain fixed public radioservice operations. No form is pre-scribed. A complete description of thecontents of these reports is containedin part 23 of this chapter.

MISCELLANEOUS REPORTS

§ 1.811 Reports regarding amendmentsto charters, by-laws and partner-ship agreements of carriers en-gaged in domestic public radioservices.

Amendments to such documentsshall be reported and filed in accord-ance with part 21 of this chapter.

§ 1.813 Reports of negotiations regard-ing foreign communication matters.

Pursuant to the requirements of part43 of this chapter, carriers engaging orparticipating in foreign communica-tions shall file monthly reports cover-ing negotiations conducted.

§ 1.814 Reports regarding free servicerendered the Government for na-tional defense.

Carriers rendering free service inconnection with the national defenseto any agency of the United StatesGovernment shall file reports in ac-cordance with part 2 of this chapter.


187


§ 1.815 Reports of annual employment.(a) Each common carrier licensee or

permittee with 16 or more full timeemployees shall file with the Commis-sion, on or before May 31 of each year,on FCC Form 395, an annual employ-ment report.

(b) A copy of every annual employ-ment report filed by the licensee orpermittee pursuant to the provisionsherein; and copies of all exhibits, let-ters, and other documents filed as partthereof, all amendments thereto, allcorrespondence between the permitteeor licensee and the Commission per-taining to the reports after they havebeen filed and all documents incor-porated herein by reference are openfor public inspection at the offices ofthe Commission.

(c) Cross references—(1) Applicability ofcable television EEO reporting require-ments to MDS and MMDS facilities, see§ 21.920 of this chapter.

(2) Applicability of cable television EEOreporting requirements for FSS facilities,see § 25.601 of this chapter.

[35 FR 12894, Aug. 14, 1970, as amended at 36FR 3119, Feb. 18, 1971; 58 FR 42249, Aug. 9,1993]

GRANTS BY RANDOM SELECTION

§ 1.821 Scope.The provisions of §§ 1.822, 1.823, 1.824

and 1.825 apply as indicated to thoseapplications for permits, licenses orauthorizations in the Public MobileServices, Multichannel Multipoint Dis-tribution Service and Digital Elec-tronic Message Service for which ac-tion may be taken by the Chief, Com-mon Carrier Bureau pursuant to dele-gated authority.

[59 FR 59503, Nov. 17, 1994]

§ 1.822 General selection procedures.(a) Mutually exclusive applications

for permits and licenses in the servicesspecified in § 1.821 may be designatedfor random selection according to theprocedures established for each service.Following the random selection, theCommission shall determine whetherthe applicant is qualified to receive thepermit or license. If, after reviewingthe tentative selectee’s application andpleadings properly filed against it, the

Commission determines that a substan-tial and material question of fact ex-ists, it shall designate the qualifyingissue(s) for an expedited hearing.

(b) Expedited hearing procedures. (1)Hearings may be conducted by theCommission or an Administrative LawJudge. In the case of a question whichrequires oral testimony for its resolu-tion, the hearing will be conducted byan Administrative Law Judge.

(2) Parties have ten (10) days frompublication in the FEDERAL REGISTERof the hearing designation order to filenotices of appearance.

(3) When the Commission, under§ 1.221, issues an order stating the time,place, and nature of the hearing, thisorder shall instruct the applicant tosubmit its direct case in writing withinthirty (30) days from the order’s releasedate, or as otherwise specified in theorder. The direct written case must setforth all those facts and circumstancesrelated to the issues in the designationorder. Documentary evidence uponwhich the applicant relies must be at-tached. Each exhibit must be numberedand must be accompanied by an affida-vit from someone who has personalknowledge of the facts in the submis-sion and who attests to the truth of thesubmission.

(4) The order will also specify thosepetitioners that directly raised anissue which was designated and will in-form these parties of their opportunityto submit a written rebuttal case with-in twenty (20) days after the direct caseis due. The procedures in paragraph(b)(3) of this section will apply as todocumentary evidence, exhibits, andaffidavits.

(5) Appeal of initial decisions ren-dered by an Administrative Law Judgeshall lie with the Commission.

[48 FR 27201, June 13, 1983. Redesignated andamended at 50 FR 5991, Feb. 13, 1985]

§ 1.823 Random selection proceduresfor the Public Mobile Services.

(a) General Procedures. If there aremutually exclusive applications for aninitial license, the Commission mayuse a random selection process. Eachsuch random selection shall be con-ducted under the direction of the Chiefof the Common Carrier Bureau. Thedesignated Lottery Official shall select


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the winning applicant from among mu-tually exclusive applicants. The Lot-tery Official may select in rank order anumber of additional applicants. Thenumber of additional applicants se-lected will be determined by the Chiefof the Common Carrier Bureau and theManaging Director. No preferencesshall be awarded to participants. Fol-lowing the random selection, the Com-mission shall announce the tentativeselectee and determine whether thisapplicant is qualified to receive the li-cense. If the Commission determinesthat the tentative selectee is qualified,it shall grant the application.

(b) Petitions to Deny—(1) Public MobileServices other than the Cellular Radio-telephone Service. Petitions to Deny andother pleadings may be filed againstapplications but are not reviewed priorto the random selection process. Peti-tions filed against tentative selecteeapplications are reviewed after the ten-tative selectee is announced.

(2) [Reserved](3) Cellular Radiotelephone Service,

unserved areas. In the Phase I licensingphase, petitions to deny must be filedwithin 30 days after the date of publicnotice announcing the tentative se-lectee. If the tentative selectee isqualified, the Commission will grantits application and dismiss the losingapplications. If the tentative selectee’sapplication cannot be granted, it willbe either designated for hearing or dis-missed. If the winning application isdismissed or ultimately denied, an-other lottery will be held to select anapplication from the remaining appli-cations. In the Phase II licensingphase, petitions to deny must be filedwithin 30 days from the date of publicnotice accepting the application for fil-ing.

(c) Petitions for Reconsideration. Mo-tions to Stay or Applications for Re-view may be filed only at such time asthe Commission grants or denies thetentative selectee’s application. Thefiling periods specified in the Rulesshall apply for such pleadings.

[50 FR 5991, Feb. 13, 1985, as amended at 50FR 51527, Dec. 18, 1985; 53 FR 52425, Dec. 28,1988; 56 FR 58506, Nov. 20, 1991; 59 FR 59503,Nov. 17, 1994; 59 FR 59949, Nov. 21, 1994]

§ 1.824 Random selection proceduresfor Multichannel Multipoint Dis-tribution Service and MultipointDistribution Service H-Channel sta-tions.

(a) If there are mutually exclusiveapplications for an initial conditionallicense or license, the Commission mayuse the random selection process to se-lect the conditional licensee or li-censee. Each such random selectionshall be conducted under the directionof the Office of the Managing Directorin conjunction with the Office of theSecretary. Following the random selec-tion, the Commission shall announcethe tentative selectee and determinewhether the applicant is qualified toreceive the conditional license or li-cense. If the Commission determinesthat the tentative selectee is qualified,it shall grant the application. In theevent that the tentative selectee’s ap-plication is denied, a second randomselection will be conducted. Petitionsfor Reconsideration, Motions to Stayor Applications for Review may be sub-mitted at the time the Commissiongrants or denies the application of thetentative selectee. The filing periodsspecified in the rules shall apply forsuch pleadings.

(b) Competing applications for condi-tional licenses and licenses shall bedesignated for random selection in ac-cordance with §§ 1.1621, 1.1622 (a), (b),(c), (d), and (e), and 1.1623. No pref-erences pursuant to § 1.1622 (b)(2) or(b)(3) shall be granted to any MMDS orMDS H-channel applicant whose own-ers, when aggregated, have an owner-ship interest of more than 50 percent inthe media of mass communicationwhose service areas, as set forth at§ 1.1622 (e)(1) through (e)(7), wholly en-compass or are encompassed by theprotected service area contour, com-puted in accordance with § 21.902(d) ofthis chapter, for which the license orconditional license is sought.

(c) Petitions to Deny may be filedonly against the tentative selectee.These petitions must be filed within 30days of the Public Notice announcingsuch tentative selection. A consoli-dated reply may be filed within 15 daysof the due date for Petitions to Deny.

[50 FR 5992, Feb. 13, 1985, as amended at 56FR 57815, Nov. 14, 1991]


189


§ 1.825 Random selection proceduresfor Digital Electronic Message Serv-ice.

If there are mutually exclusive appli-cations for an initial permit or licensefor a digital termination system, theCommission may use the random selec-tion process to select the permittee orlicensee. Each such random selectionshall be conducted under the directionof the Office of Managing Director inconjunction with the Office of the Sec-retary. The random selection shallrank order the applications. No pref-erences shall be awarded to partici-pants. Following the random selection,the Commission shall announce therank order of the applications to deter-mine whether the first ranked ten-tative selectee is qualified to recievethe permit or license. If the Commis-sion determines that the tentative se-lectee is qualified, it shall grant theapplication. The Commission shallthen determine which of the alternateapplications in rank order, can also begranted and whether those alternatetentative selectees are qualified to re-ceive the permit or license. If the Com-mission determines that the alternatetentative selectees are qualified, itshall grant the applications.

[50 FR 45614, Nov. 1, 1985, as amended by 61FR 26671, May 28, 1996; 62 FR 24581, May 6,1997]

Subpart F—Private Radio ServicesApplications and Proceedings


GENERAL

§ 1.901 Scope.

In the case of any conflict betweenthe rules set forth in this subpart andthe rules set forth in part 13 of thischapter or the rules set forth for spe-cific services in parts 80 through 101 ofthis chapter, the rules in this subpartshall govern.

[61 FR 26671, May 28, 1996]


§ 1.911 Applications required.(a) Except as provided in paragraph

(b) of this section, station licenses asdefined in section 3(bb) of the Commu-nications Act; operator licenses ormodifications of renewals thereof; as-signments of station licenses or anyrights thereunder; and consent totransfer control of a corporation hold-ing a license, shall be granted onlyupon written and signed application.

(b) In cases (1) of an emergency foundby the Commission involving danger tolife or property or due to damage toequipment, or (2) of a national emer-gency proclaimed by the President ordeclared by the Congress and duringthe continuance of any war in whichthe United States is engaged, whensuch action is necessary for the na-tional defense or security or otherwisein furtherance of the war effort, or (3)of emergency where the Commissionfinds, in these services, that it wouldnot be feasible to secure renewal appli-cations from existing licensees or oth-erwise to follow normal licensing pro-cedure, the Commission may grant sta-tion licenses, or modifications or re-newals thereof, without the filing of aformal application; but no such author-ization shall be granted for or continuein effect beyond the period of the emer-gency or war requiring it. The proce-dure to be followed for requests sub-mitted under the provisions of thisparagraph is the same as for obtainingspecial temporary authority under§ 1.925.

(c) In case of vessels at sea, the Com-mission may issue by cable, telegraph,or radio a permit for the operation of astation until the vessel returns to aport of the continental United States.

(d) Canadian licensees desiring to op-erate in the United States under theterms of Articles 2 and 3 of the Conven-tion between the United States andCanada concerning Operation of Cer-tain Radio Equipment or Stations(which entered into force May 15, 1952)shall make application upon FCC Form410, which shall be filed with the Sec-retary, Federal Communications Com-mission, Washington, DC, 20554. Forms


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47 CFR Ch. I (10–1–97 Edition)§ 1.912

1 Form filed as part of original document.

may be obtained from the FCC Sec-retary, any field office of the Commis-sion, or from the Controller of Tele-communications, Department of Trans-port, Ottawa, Canada.

(e) An alien amateur desiring to oper-ate in the United States under provi-sions of sections 303(1)(2) and 310(a) ofthe Communications Act of 1934, asamended, and under the terms of a bi-lateral agreement in force between theapplicant’s country and the UnitedStaters concluded pursuant to the pro-visions of Pub. L. 88–313, must makeapplication on FCC Form 610–A,1 whichmust be filed with the Commission’s of-fices in Gettysburg, Pennsylvania (Fed-eral Communications Commission,Gettysburg, Pennsylvania 17325).Forms may be obtained from the Sec-retary, the Commission’s offices inGettysburg, Pennsylvania, any field of-fice of the Commission and, in some in-stances, from United States missionsabroad.


[28 FR 12454, Nov. 22, 1963, as amended at 34FR 19419, Dec. 9, 1969; 37 FR 15928, Aug. 8,1972; 40 FR 5365, Feb. 5, 1975; 49 FR 30943, Aug.2, 1984]

§ 1.912 Where applications are to befiled.

(a) Each application for a new ama-teur service operator/primary stationlicense and each application involvinga change in operator class must be sub-mitted to the volunteer examiners(VEs) administering the qualifying ex-amination. See § 97.17(c) of this chap-ter. The VEs are required to submit theapplications of persons passing theirrespective examinations for amateuroperator licenses to the Volunteer-Ex-aminer Coordinator (VEC). All otherapplications for amateur service li-censes must be submitted to FCC, 1270Fairfield Road, Gettysburg, PA 17325–7245.

(b) All applications for private landmobile licenses which require both fre-quency coordination and fees as setforth at part 1, subpart G of this chap-ter shall first be sent to the certifiedcoordinator for the radio service or fre-quency group concerned. After the ap-

propriate frequency coordination andattachment of the statutory fee, suchapplications shall be forwarded to theappropriate address in accordance with§ 0.401(b) of the rules.

(1) All applications for private landmobile licenses that require frequencycoordination but not a fee shall be sentto the certified frequency coordinatorfor the radio service or frequency groupconcerned. After appropriate frequencycoordination, such applications mustbe forwarded to the Federal Commu-nications Commission, 1270 FairfieldRoad, Gettysburg, Pennsylvania 17325–7245.

(2) All applications for private landmobile licenses that require a fee butnot frequency coordination shall besent to the appropriate address in ac-cordance with § 0.401(b) of the rules.

(3) All applications for private landmobile licenses that do not require ei-ther frequency coordination or a feemust be sent to Federal Communica-tions Commission, 1270 Fairfield Road,Gettysburg, Pennsylvania 17325–7245.

(c) Formal applications for ship sta-tion licenses for use of radiotelephoneor radar transmitting apparatus orboth, and applications for modificationof such licenses shall be filed on FCCForm 506 and in accordance with theinstructions on that form.

(d) Formal applications for ship sta-tion licenses (FCC Forms 506 and 405–B), for aircraft station licenses (FCCForms 404 and 405–B), and applicationsfor Maritime Coast and AviationGround Stations, requiring fees as setforth in part 1, subpart G of this chap-ter must be filed in accordance with§ 1.1102 of the rules.

(e) Applicants submitting long-formapplications pursuant to competitivebidding procedures (see § 1.2107(c)) mustmail or otherwise deliver their applica-tion to: Office of the Secretary, Fed-eral Communications Commission, 1919M Street NW., Room 222, Washington,DC 20554, Attention: Auction Applica-tion Processing Section.

(f) All other applications that do notrequire fees must be filed with theCommission’s offices in Gettysburg,Pennsylvania. Address the applicationsto: Federal Communications Commis-sion, 1270 Fairfield Road, Gettysburg,Pennsylvania 17325–7245. Applications


191


requiring fees as set forth at part 1,subpart G of of this chapter must befiled in accordance with § 0.401(b) of therules.

(Sec. 308, 48 Stat. 1084, as amended; 47 U.S.C.308; secs. 4, 303, 307, 48 Stat., as amended,1066, 1082, 1083; 47 U.S.C. 154, 303, 307)

[47 FR 9208, Mar. 4, 1982, as amended at 47 FR15334, Apr. 9, 1982; 48 FR 45658, Oct. 6, 1983; 52FR 10229, Mar. 31, 1987; 56 FR 64714, Dec. 12,1991; 58 FR 30717, May 27, 1993; 59 FR 543, Jan.5, 1994; 59 FR 24957, May 13, 1994]

§ 1.913 Who may sign applications.

(a) Except as provided in paragraph(b) of this section, applications, amend-ments thereto, and related statementsof fact required by the Commissionmust be signed by the applicant, if theapplicant is an individual; by one ofthe partners, if the applicant is a part-nership; by an officer, director, or dulyauthorized employee, if the applicantis a corporation; or by a member who isan officer, if the applicant is an unin-corporated association. Applications,amendments, and related statements offact filed on behalf of eligible govern-ment entities such as states and terri-tories of the United States, their polit-ical subdivisions, the District of Co-lumbia, and units of local government,including unincorporated municipali-ties, must be signed by a duly electedor appointed official who is authorizedto do so under the laws of the applica-ble jurisdiction.

(b) Applications, amendments there-to, and related statements of fact re-quired by the Commission may besigned by the applicant’s attorney incase of the applicant’s physical disabil-ity or absence from the United States,or by applicant’s designated vesselmaster when a temporary permit is re-quested for a vessel. The attorneyshall, when applicable, separately setforth the reason why the application isnot signed by the applicant. In addi-tion, if any matter is stated on thebasis of the attorney’s or master’s be-lief only (rather than knowledge), theattorney or master shall separately setforth the reasons for believing thatsuch statements are true.

(c) Only the original of applications,amendments, and related statements offact need be signed.

(d) Applications, amendments, andrelated statements of fact need not besigned under oath. Willful false state-ments made therein, however, are pun-ishable by fine and imprisonment, U.S.Code, Title 18, section 1001, and by ap-propriate administrative sanctions, in-cluding revocation of station licensepursuant to section 312(a)(1) of theCommunications Act of 1934, as amend-ed.

(e) ‘‘Signed,’’ as used in this section,means an original hand-written signa-ture, except that by public notice inthe FEDERAL REGISTER the PrivateRadio Bureau may allow signature byany symbol executed or adopted by theapplicant with the intent that suchsymbol be a signature, including sym-bols formed by computer-generatedelectronic impulses.


[28 FR 12450, Nov. 22, 1963, as amended at 43FR 27991, June 28, 1978; 49 FR 30944, Aug. 2,1984; 58 FR 21406, Apr. 21, 1993]

§ 1.914 Full disclosures.Each application shall contain full

and complete disclosures with regardto the real party or parties in interestand as to all matters and things re-quired to be disclosed by the applica-tion forms.


§ 1.916 Repetitious applications.Where the Commission has, for any

reason, denied an application for a newstation or for any modification of serv-ices or facilities, dismissed such appli-cation with prejudice, or revoked thelicense for a radio station in the Pri-vate Radio Services, the Commissionwill not consider a like or new applica-tion involving service of the same kindto substantially the same area by sub-stantially the same applicant, its suc-cessor or assignee, or on behalf of orfor the benefit of the original parties ininterest, until after the lapse of 12months from the effective date of theCommission’s order. The Commissionmay, for good cause shown, waive therequirements of this section.

[28 FR 12454, Nov. 22, 1963, as amended at 44FR 39181, July 5, 1979]


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47 CFR Ch. I (10–1–97 Edition)§ 1.918

§ 1.918 Amendment of applications.(a) Any amendment to an application

shall be signed and submitted in thesame manner and with the same num-ber of copies as was the original appli-cation.

(b) Any application may be amendedas a matter of right prior to the grantof that application. However, an appli-cation which is substantially amended,as defined by § 1.962(c), will be consid-ered a newly filed application as of thedate of the filing of the amendment.

(c) An application to amend an appli-cation after it has been designated forhearing will be considered only uponwritten petition addressed to the hear-ing examiner and served upon the par-ties of record, and will be granted onlyfor good cause shown. A petition whichrequests a substantial change or tochange the applicant’s position, or theissues, in a hearing, must be accom-panied by a signed statement of a per-son with knowledge of the facts as towhether or not consideration has beenpromised to or received by the peti-tioner, directly or indirectly, in con-nection with the filing of such petitionfor amendment. If consideration hasbeen promised, or received, the state-ment shall set forth in full detail allthe relevant facts with sufficient item-ization of the consideration to enablethe examiner to determine to what ex-tent, if any, that the consideration rep-resents only the reasonable costs ofprosecuting the petitioner’s applica-tion.

(d) A request to amend an applicationafter it has been designated for randomselection pursuant to § 1.972 will be con-sidered only upon written petition ad-dressed to the Chief, Private Radio Bu-reau and will be granted only for goodcause shown. A petition which requestsa substantial change in the applicationor which affects the lottery prob-abilities of other applicants must beaccompanied by a signed statement ofa person with knowledge of the rel-evant facts and must specify with par-ticularity why such change is nec-essary and whether or not consider-ation has been promised to or receivedby the petitioner, directly or indi-rectly, in connection with the filing ofsuch petition for amendment. If consid-eration has been promised or received,

the statement shall set forth all therelevant facts with sufficient detail toenable the Chief, Private Radio Bureauto determine whether and to what ex-tent, if any, the consideration rep-resents only the reasonable costs ofprosecuting the petitioner’s applica-tion.

(e) The Commission (or the presidingofficer, if the application has been des-ignated for hearing) may, upon its ownmotion or upon motion of any party toa proceeding, order the applicant toamend the application so as to makethe same more definite and certain,and may require an applicant to sub-mit such documents and written state-ments of fact as in its judgment maybe necessary.


[28 FR 12454, Nov. 22, 1963, as amended at 37FR 13984, July 15, 1972; 48 FR 27201, June 13,1983; 49 FR 30944, Aug. 2, 1984]

APPLICATION FORMS AND PARTICULARFILING REQUIREMENTS

§ 1.921 Procedure for obtaining a radiostation authorization and for com-mencement of operation.

(a) Persons desiring to install and op-erate radio transmitting equipmentshould first submit an application for aradio station authorization in accord-ance with the rules for the particularservice. A list of all application formsused by Private Radio Services Bureauis contained in § 1.922. Each form con-tains appropriate instructions concern-ing the number of required copies,where it may be filed, and the servicesin which it is intended to be used.

(b) Each application shall include allinformation called for by the particu-lar form on which the application is re-quired to be filed unless the informa-tion called for is inapplicable, in whichcase that fact shall be indicated.

(c) In some cases equipment and serv-ice tests are required before an author-ized station may be placed in regularoperation. Reference should be made tothe specific service regarding theseprovisions.


[28 FR 12454, Nov. 22, 1963, as amended at 44FR 39181, July 5, 1979]


193


§ 1.922 Forms to be used.

FCCform Title

175 Application To Participate in an FCC Auction.175–S Supplemental Application To Participate in an FCC

Auction.402 Application for Microwave Station Authorization in

the Safety and Special Radio Services.402–10 Instructions for Completion of FCC Form 402.402–A Annual Report of Licensees of Microwave and

Other Fixed Stations When Such Facilities AreUsed Cooperatively With Other Persons.

402–R Renewal Notice and Certification in the PrivateOperational-Fixed Microwave Radio Services.

404 Application for Aircraft Radio Station License.404–A Temporary Aircraft Radio Station Operating Author-

ity.405–A Application for Renewal of Station License.405–B License Expiration Notice and/or Renewal Applica-

tion.406 Application for Ground Station Authorization in the

Aviation Services.410 Registration of Canadian Radio Station Licensee

and Application for Permit to Operate.410–B Application for Permit To Operate a Canadian

General Radio Station in the United States.452–R Application for Renewal of Coast and Ground

Services.480 Application for Civil Air Patrol Radio Station Au-

thorization.490 Application for Assignment or Transfer of Control.503 Application for Land Radio Station License in the

Maritime Services.506 Application for Ship Radio Station License.506–A Temporary Operating Authority, Ship Radio Station

License and Restricted Radiotelephone OperatorPermit.

525 Application for Disaster Communications RadioStation Construction Permit and License.

572 Temporary Permit To Operate a Business RadioStation.

572C Conditional Temporary Authorization To Operate apart 90 Radio Station.

574 Application for Radio Station Authorization in theGeneral Mobile Radio Services.

574–R Application for Renewal of Radio Station License.574–T Temporary Permit To Operate a General Mobile

Radio Service System.577 Temporary Permit To Operate a Part 90 Radio

Station.600 Application for Mobile Radio Service Authorization.610 Application for Amateur Radio Station and/or Oper-

ator License.610–A Application for Alien Amateur Radio Licensee for

Permit To Operate in the United States.610–B Application for Amateur Club, Military Recreation,

or Radio Amateur Civil Emergency Service Sta-tion License.

660–B Interim Amateur Permit.602 Application for Consent to Assignment of Radio

Station Construction Permit or License (For Sta-tions in Services Other Than Broadcast).

703 Application for Consent To Transfer of Control ofCorporation Holding Construction Permit or Sta-tion License (For Station in Services Other ThanBroadcast).

714 Supplement to Application for New or ModifiedRadio Station Authorization (Concerning AntennaStructure Notification to FAA).

820 Application for Exemption from Ship Radio StationRequirements.

845 Amateur Code Credit Certificate.1046 Assignment of Authorization.

(Secs. 4, 5, 303, 308, 48 Stat. 1066, 1068, 1082,1084, as amended; 47 U.S.C. 154, 155, 303, 308;secs. 4, 303, 307, 48 Stat., as amended, 1066,1082, 1083; 47 U.S.C. 154, 303, 307)

[59 FR 59949, Nov. 21, 1994]

§ 1.923 Waiver of construction permitrequirement.

(a) A construction permit is not re-quired for any station in the PrivateRadio Services. However, certain pri-vate radio facilities must be con-structed within the time periods speci-fied in part 90. See, however, § 1.1311(c).

(b) Licensees must apply for modi-fication of station license for any an-tenna change which would be inconsist-ent with the terms of the station au-thorization or for which notification isrequired to be given to the FederalAviation Administration by that agen-cy. Part 17 of this chapter describedthe notification criteria.

[34 FR 9283, June 12, 1969, as amended at 48FR 9271, Mar. 4, 1983]

§ 1.924 Assignment or transfer of con-trol, voluntary and involuntary.

(a)(1) Radio station licenses are nottransferable; however, except for thoseset forth in paragraph (a)(2) of this sec-tion, they may be assigned. Licensesmay be assigned whenever there is achange of ownership of an authorizedradio station, for example, if the radiocommunication equipment is sold witha business. The new owner must applyfor assignment of the existing author-ization in accordance with the rulesunder which the station is authorized.

(2) Licenses for stations in the Ama-teur, Aviation (aircraft), Personal, andMaritime (ship) Radio Services cannotbe assigned. Whenever there is achange of ownership of one of these lat-ter stations, the new owner must applyfor a new license. Upon receipt of thenew license, the former license must besurrendered for cancellation.

(b)(1) Application for consent to vol-untary assignment of a license, or forconsent to voluntary transfer of con-trol of a corporation holding a license,must be filed with the Commission atleast 60 days prior to the contemplatedeffective date of assignment or transferof control.

(2) The following application formsshould be used:


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47 CFR Ch. I (10–1–97 Edition)§ 1.925

(i) FCC Form 600. For assignment ofstation authorization in services underpart 90 of this chapter, except as pro-vided in subparagraph (ii). Attachedthereto shall be an executed Form 1046or a signed letter from proposed as-signor stating the desire to assign thecurrent authorization in accordancewith the rules governing the particularradio service involved. Applications forconsent to assign authorizations of sta-tions operating in the 806–821 and 851–866 MHz bands shall be accompanied byFCC Form 574–A. Applications for as-signment of authorizations for stationsoperating on frequencies below 27.5MHz shall be accompanied by FCCForm 574–B.

(ii) FCC Form 402. For assignment ofstation authorizations in the PrivateOperational Fixed Microwave Service(part 101 of this chapter). Attachedthereto shall be an executed Form 1046or a signed letter from proposed as-signor stating the assignor’s desire toassign the current authorization in ac-cordance with the rules governing theparticular service involved.

(iii) FCC Form 406. For assignment ofground station authorizations in theAviation Services, except as providedin paragraph (b)(2)(ii) of this section.

(iv) FCC Form 503. For assignment ofcoast station authorizations in theMaritme Services and Alaska-PublicFixed Stations.

(v) [Reserved](vi) FCC Form 703. For consent to

transfer control of a corporation hold-ing any type of part 90 license except alicense to provide commercial mobileradio service.

(vii) FCC Form 490. For consent totransfer control of a corporation hold-ing a part 90 license to provide com-mercial mobile radio service.

(c)(1) In the event of the death orlegal disability of a permittee or li-censee, a member of a partnership, or aperson directly or indirectly in controlof a corporation which is a permitteeor licensee, the Commission shall benotified in writing promptly of the oc-currence of such death or legal disabil-ity.

(2) Within 30 days after the occur-rence of such death or legal disability(except in the case of a ship or amateurstation), application shall be filed for

consent to involuntary assignment ofsuch permit or license, or for involun-tary transfer of control of such cor-poration, to a person or entity legallyqualified to succeed to the foregoinginterests under the laws of the placehaving jurisdiction over the estate in-volved. The procedure and forms to befollowed are the same as those speci-fied in paragraph (b) of this section.

(3) In the case of stations in the Ama-teur, Aviation (aircraft), Personal, andMaritime (ship) Radio Services, invol-untary assignment of licenses will notbe made; such licenses shall be surren-dered for cancellation upon the deathor legal disability of the licensee.

(d) An applicant for voluntary trans-fer of control or assignment under thissection where the subject license wasacquired by the transferor or assignorthrough a system of random selectionshall, together with its application fortransfer of control or assignment, filewith the Commission the associatedcontracts for sale, option agreements,management agreements, or other doc-uments disclosing the total consider-ation that the applicant would receivein return for the transfer or assign-ment of its license. This informationshould include not only a monetarypurchase price, but also any future,contingent, in-kind, or other consider-ation (e.g., management or consultingcontracts either with or without an op-tion to purchase; below-market financ-ing).


[28 FR 12454, Nov. 22, 1963, as amended at 31FR 2600, Feb. 10, 1966; 36 FR 19439, Oct. 6, 1971;36 FR 21679, Nov. 12, 1971; 42 FR 8327, Feb. 9,1977; 44 FR 31651, June 1, 1979; 45 FR 55201,Aug. 19, 1980; 47 FR 57051, Dec. 22, 1982; 48 FR8455, Mar. 1, 1983; 49 FR 30944, Aug. 2, 1984; 51FR 2703, Jan. 21, 1986; 59 FR 9101, Feb. 25,1994; 59 FR 59949, Nov. 21, 1994; 61 FR 26671,May 28, 1996]

§ 1.925 Application for special tem-porary authorization, temporarypermit or temporary operating au-thority.

(a) A licensee of or an applicant for astation in the Private Radio Servicesmay file either a formal or informalapplication for a special temporary au-thority not to exceed 180 days for (1)


195


operation of a new station or (2) oper-ation of a licensed station in a mannerwhich is beyond the scope of that au-thorized by the existing license. (See§ 1.962 (b)(5) and (f). The nature of theextraordinary circumstance which, inthe opinion of the applicant justifiesissuance of a special temporary author-ization, must be fully described in therequest. Information presently on filewith the Commission may be includedby reference, except the applicationsfor special temporary authority underpart 90 must be clear and completewithin themselves and shall not rely onany pending applications. Applicationsfor special temporary authority mustbe filed at least 10 days prior to theproposed operation. Applications filedless than 10 days prior to the proposedoperation date will be accepted onlyupon a showing of good cause. In situa-tions involving the safety of life orproperty or where equipment has beendamaged, a request for special tem-porary authority may be made by tele-phone or telegraph provided a properlysigned application is filed within 10days of such request.

(b) [Reserved](c) An applicant for an Aircraft Radio

Station License may operate the radiostation pending issuance of an AircraftRadio Station License by the Commis-sion for a period of 90 days under atemporary operating authority, evi-denced by a properly executed certifi-cation made on FCC Form 404–A.

(d) [Reserved](e) Unless the FCC otherwise pre-

scribes, an applicant already licensedin the Amateur Radio Service, uponsuccessfully completing the amateurradio operator examination(s) requiredfor a higher class, may operate his/heramateur radio station consistent withthe rights and privileges of that higherclass for a period of one year from thedate of the most recently completedexamination(s) for that operator classin accord with the provisions of § 97.35.

(f) An applicant for a Ship Radio sta-tion license may operate the radio sta-tion pending issuance of the ship sta-tion authorization by the Commissionfor a period of 90 days, under a tem-porary operating authority, evidencedby a properly executed certificationmade on FCC Form 506–A.

(g) An applicant for a Business RadioStation license (other than an appli-cant who seeks to provide commercialmobile radio service as defined in part20 of this chapter) utilizing an alreadyauthorized facility may operate thestation for a period of 180 days, under atemporary permit, evidenced by a prop-erly executed certification made onFCC Form 572, after the mailing of aformal application for station licensetogether with evidence of frequency co-ordination, if required, to the Commis-sion. The temporary operation of sta-tions, other than mobile stations, with-in the Canadian coordination zone willbe limited to stations with a maximumof 5 watts effective radiated power anda maximum antenna height of 20 feet(6.1 meters) above average terrain.

(h) An applicant for a radio stationlicense under part 90, subpart S, of thischapter (other than an applicant whoseeks to provide commercial mobileradio service as defined in part 20 ofthis chapter) to utilize an already ex-isting Specialized Mobile Radio System(SMRS) facility or to utilize an alreadylicensed transmitter may operate theradio station for a period of up to 180days, under a temporary permit, evi-denced by a properly executed certifi-cation of FCC Form 572 after the mail-ing of a formal application for stationlicense, provided that the antenna em-ployed by the control station is a maxi-mum of 20 feet (6.1 meters) above aman-made structure (other than an an-tenna tower) to which it is affixed.

(i) An applicant for an itinerant sta-tion license, an applicant for a new pri-vate land mobile radio station licensein the frequency bands below 470 MHzand in the one-way paging 929–930 MHzband or an applicant seeking to modifyor acquire through assignment ortransfer an existing station below 470MHz or in the one-way paging 929–930MHz band may operate the proposedstation during the pendency of its ap-plication for a period of up to 180 daysunder a conditional permit. Condi-tional operations may commence uponthe filing of a properly completed for-mal application that complies with§ 90.127 if the application, when fre-quency coordination is required, is ac-companied by evidence of frequency co-ordination in accordance with §§ 90.175


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47 CFR Ch. I (10–1–97 Edition)§ 1.926

and 90.176. Operation under such a per-mit is evidenced by retaining with thestation records the original conditionallicensing 572C Certification Form con-taining the certifications that satisfythe provisions of § 90.159(b).

(j) An applicant for a General MobileRadio Service system license, sharing amultiple-licensed base station used asa mobile relay station, may operatethe system for a period of 180 days,under a temporary permit, evidencedby a properly executed certificationmade on FCC Form 574–T, after mailingFCC Form 574 to the Commission.

(Secs. 4(i), 303, Communications Act of 1934,as amended (47 U.S.C. 154(i) and 303); 47 CFR1.429)

[28 FR 12454, Nov. 22, 1963, as amended at 47FR 56637, Dec. 20, 1982; 48 FR 4785, Feb. 3,1983; 48 FR 24890, June 3, 1983; 48 FR 39072,Aug. 29, 1983; 48 FR 41770, Sept. 19, 1983; 48 FR45658, Oct. 6, 1983; 49 FR 30312, July 30, 1984;49 FR 37384, Sept. 24, 1984; 50 FR 37190, Sept.12, 1985; 51 FR 31304, Sept. 2, 1986; 54 FR 50238,Dec. 5, 1989; 54 FR 51550, Dec. 15, 1989; 59 FR59949, Nov. 21, 1994]

§ 1.926 Application for renewal of li-cense.

(a) Application for renewal of a sta-tion license shall be submitted on theappropriate FCC Form indicated below:

(1) Renewal of station or system au-thorizations in the Private Land Mo-bile Radio Services (part 90 of thischapter), the General Mobile RadioService (part 95, subpart A of this chap-ter), and the Interactive Video andDate Service (part 95, subpart F of thischapter) shall be submitted on FCCForm 574–R when the licensee has re-ceived that Form in the mail from theCommission. If the licensee has not re-ceived the Commission-generated Form574–R within sixty (60) days of expira-tion, application for renewal of stationor system license shall be submitted onFCC Form 405–A.

(2) Renewal of marine coast stationauthorizations (§ 80.19 of this chapter)and aviation ground station authoriza-tions (§ 87.33 of this chapter) must besubmitted on FCC Form 452–R.

(3) Renewal of aircraft radio stationauthorizations and ship radio stationauthorizations shall be submitted onFCC Form 405–B.

(4) Renewal of an amateur operatorlicense or a combined amateur opera-

tor/station license shall be submittedon FCC Form 610.

(5) Renewal of an amateur club, mili-tary recreation, or Radio AmateurCivil Emergency Service (RACES) sta-tion license shall be submitted on FCCForm 610–B.

(6) Renewal of station authorizationsin the Private Operational FixedMicrowave Service (part 101 of thischapter) shall be submitted on suchform as the Commission may designateby the public notice in accordance withthe provisions of § 101.13 of this chap-ter.

(b) All applications for renewal of li-cense must be made during the licenseterm and should be filed within 90 daysbut not later than 30 days prior to theend of the license term. In any case inwhich the licensee has, in accordancewith the provisions of this chapter,made timely and sufficient applicationfor renewal of license, no license withreference to any activity of a continu-ing nature shall expire until such ap-plication shall have been finally deter-mined.

(c) Reinstatement of an expired li-cense in the Private Land Mobile RadioServices may be requested up to thirty(30) days after the expiration dateusing FCC Form 574, 574–R or 405–A.See § 1.4.

(Secs. 4, 5, 303, 307, 308, 48 Stat., as amended,1066, 1068, 1082, 1083, 1084; 47 U.S.C. 154, 155,303, 307, 308)

[28 FR 12454, Nov. 22, 1963, as amended at 29FR 3229, Mar. 11, 1964; 48 FR 36105, Aug. 9,1983; 56 FR 64715, Dec. 12, 1991; 56 FR 65858,Dec. 19, 1991; 57 FR 8274, Mar. 9, 1992; 61 FR26671, May 28, 1996]

§ 1.931 Requests for waiver of privateradio rules.

(a) All requests for waiver of therules governing the Private RadioServices that require a fee (see § 1.1102)shall be submitted to the Mellon Bank,Pittsburgh, Pennsylvania at the ad-dress set forth in § 1.1102. Waiver re-quests that do not require a fee mustbe addressed to: Federal Communica-tions Commission, 1270 Fairfield Road,Gettysburg, Pennsylvania 17325–7245.Waiver requests attached to applica-tions must be submitted in accordancewith § 0.401(b) of the rules.


197


(b) Applicants requiring expeditiousprocessing of their request for waivershall clearly caption both their requestfor waiver and the envelope containingit with the words ‘‘WAIVER—TIMELYACTION REQUESTED.’’

(Sec. 4(i), Communications Act of 1934, asamended, 47 U.S.C. 154(i); 47 CFR 0.231)

[49 FR 20291, May 14, 1984, as amended at 52FR 10229, Mar. 31, 1987; 55 FR 19154, May 8,1990; 56 FR 64715, Dec. 12, 1991]

§ 1.933 Installation or removal of appa-ratus.

(a) In the Public Safety, Industrial,and Land Transportation Radio Serv-ices, replacement of transmittingequipment may be made without priorauthorization: Provided, The replace-ment transmitter appears in the Com-mission’s ‘‘Radio Equipment List, PartC’’ as designated for use in the PublicSafety, Industrial, and Land Transpor-tation Radio Services, and the sub-stitute equipment employs the sametype of emission and does not exceedthe power limitation as set forth in thestation authorization.

(b) In the Personal Radio Services,replacement of transmitting equip-ment may be made without prior au-thorization if: (1) The replacementtransmitter appears in the Commis-sion’s ‘‘Radio Equipment List,’’ as des-ignated for use in the Personal RadioService, or (2) the replacement trans-mitter is for an R/C station, operateson frequencies assigned for R/C stationuse and complies with the technicalstandards of part 95, subpart E.

[28 FR 12454, Nov. 22, 1963, as amended at 48FR 24890, June 3, 1983]

§ 1.934 Procedure with respect to ama-teur radio operator license.

Each candidate for an amateur radiolicense which requires the applicant topass one or more examination elementsmust present the examiner(s) with aproperly completed FCC Form 610 priorto the examination. Upon completionof the examination, the examiner(s)will immediately grade the test papers.If the applicant is successful, the ex-aminer(s) will forward the candidate’sapplication to: (a) The Commission’sGettysburg, Pennsylvania facility foran application for a Novice Class oper-

ator license, or (b) a Volunteer-Exam-iner Coordinator (VEC) for all otherclasses of operator licenses. The exam-iners will then issue a certificate forsuccessful completion of an amateurradio operator examination. A VECwill forward the application to theCommission’s Gettysburg, Pennsylva-nia facility.

[48 FR 45658, Oct. 6, 1983]

APPLICATION PROCESSING PROCEDURES

§ 1.951 How applications are distrib-uted.

Licensing Division. All applicationsfor radio stations are distributed as fol-lows:

(a) Special Services Branch.(1) All Aviation Radio Services and

Maritime Radio Services applications.(2) Personal Radio Services applica-

tions:Amateur, General Mobile, and Interactive

Video and Data

(b) Land Mobile Branch. (1) IndustrialRadio Services applications:Business, Forest Products, Industrial Radio-

location, Manufacturers, Motion Picture,Petroleum, Power, Relay Press, Special In-dustrial and Telephone Maintenance

(2) Land Transportation Radio Serv-ices applications:Motor Carrier, Railroad, Taxicab, and Auto-

mobile Emergency

(3) Public Safety Radio Services ap-plications:Fire, Forestry-Conservation, Highway Main-

tenance, Local Government, and Police

(4) Special Emergency Radio Servicesapplications:Medical services, rescue organizations, phys-

ically handicapped, veterinarians, disasterrelief organizations, school buses, beachpatrols, establishments in isolated areas,communications standby facilities

(c) Microwave Branch. Operationalfixed point-to-point and point-to-multipoint applications.

[49 FR 30944, Aug. 2, 1984, as amended at 57FR 8274, Mar. 9, 1992]

§ 1.952 How file numbers are assigned.(a) File numbers are assigned to cer-

tain categories of applications by thePrivate Radio Bureau.

(b) File number symbols and serviceor class of station designators:


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47 CFR Ch. I (10–1–97 Edition)§ 1.952

AMATEUR AND DISASTER SERVICES

Y—AmateurD—DisasterR—Races

AVIATION SERVICES

A—Aeronautical and fixed groupAA—Aviation auxiliary groupAR—Aviation radionavigation landAC—Civil Air Patrol

PERSONAL RADIO SERVICE

CA—General Mobile Radio ServiceZA—General Mobile Radio ServiceZV—Interactive Video and Data Service

MARINE SERVICES

MK—Alaskan groupM—Coastal groupMA—Marine auxiliary groupMR—Marine radiodetermination land

MICROWAVE SERVICES

OF—Private Operational-Fixed Microwave

RADIOLOCATION SERVICE

RS—Radiolocation

LAND MOBILE SERVICES BELOW 800 MHZ

IG—Conventional Industrial/Business PoolPW—Conventional Public Safety PoolYG—Trunked Industrial/Business PoolYW—Trunked Public Safety Pool

800 MHZ SERVICES

GB—Conventional BusinessGO—Conventional Industrial/Land Transpor-

tationGP—Conventional Public Safety/Special

EmergencyGX—Conventional Commercial (SMRS)YB—Trunked BusinessYO—Trunked Industrial/Land Transpor-

tationYP—Trunked Public Safety/Special Emer-

gencyYX—Trunked Commercial (SMRS)

900 MHZ PAGING SERVICES

GS—Private carrier paging systems

(c) Application or authorization des-ignator symbols:

P—Construction Permit.MP—Modified CP.MP/L—Modified CP and License.MP/ML—Modified CP and Modified License.AP—Assignment of Permit.L—License.ML—Modified License.AL—Assignment of License.P/L—Combination CP and License.R—Renewed License.

TC—Transfer of Control.

[28 FR 12454, Nov. 22, 1963, as amended at 49FR 30945, Aug. 2, 1984; 57 FR 8274, Mar. 9, 1992;62 FR 18843, Apr. 17, 1997]

EFFECTIVE DATE NOTE: At 62 FR 18843, Apr.17, 1997, paragraph (b) was revised, effectiveOct. 17, 1997. For the convenience of the user,the superseded text is set forth as follows:

§ 1.952 How file numbers are assigned.

* * * * *

(b) File number symbols and service orclass of station designators:

AMATEUR AND DISASTER SERVICES

Y—AmateurD—DisasterR—Races

AVIATION SERVICES

A—Aeronautical and fixed groupAA—Aviation auxiliary groupAR—Aviation radionavigation landAC—Civil Air Patrol

PERSONAL RADIO SERVICES

CA—General Mobile Radio ServiceZA-General Mobile Radio ServiceZV-Interactive Video and Data Service

INDUSTRIAL SERVICES

IB—BusinessIF—Forest productsIX—ManufacturersIM—Motion pictureIP—PetroleumIY—Relay pressIS—Special industrialIT—Telephone maintenanceIW—Power

LAND TRANSPORTATION SERVICES

LA—Automobile emergencyLI—Interurban passengerLJ—Interurban propertyLR—RailroadLX—TaxicabLU—Urban passengerLV—Urban property

MARINE SERVICES

MK—Alaskan groupM—Coastal groupMA—Marine auxiliary groupMR—Marine radiodetermination land

MICROWAVE SERVICES

OF—Private Operational-Fixed Microwave

PUBLIC SAFETY SERVICES

PF—FirePO—Forestry conservation


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PH—Highway maintenancePL—Local governmentPP—PolicePS—Special emergency

RADIOLOCATION SERVICE

RS—Radiolocation

800 MHZ SERVICES

GB—Conventional BusinessGO—Conventional Industrial/Land Transpor-

tationGP—Conventional Public Safety/Special

EmergencyGX—Conventional Commercial (SMRS)YB—Trunked BusinessYO—Trunked Industrial/Land Transpor-

tationYP—Trunked Public Safety/Special Emer-

gencyYX—Trunked Commercial (SMRS)

900 MHZ PAGING SERVICES

GS—Private carrier paging systems

* * * * *

§ 1.953 How applications are proc-essed.

(a) Applications are processed in se-quence according to date of filing, orpursuant to the system of random se-lection prescribed in § 1.972 of this part.Applications which are in accordancewith the provisions of this chapter andestablished policies of the Commissionmay be processed to completion in ac-cordance with the applicable delega-tions of authority as set forth in part Oof this chapter.

(b) [Reserved]

[48 FR 27201, June 13, 1983 and 51 FR 2703,Jan. 21, 1986]

§ 1.955 Frequency coordination, Can-ada.

(a) As a result of mutual agreements,the Commission has, since May 1950had an arrangement with the CanadianDepartment of Communications for theexchange of frequency assignment in-formation and engineering commentson proposed assignments along theCanada-United States borders in cer-tain bands above 30 MHz. Except asprovided in paragraph (b) of this sec-tion, this arrangement involves assign-ments in the following frequencybands.

MHZ

30.56–32.0033.00–34.0035.00–36.0037.00–38.0039.00–40.0042.00–46.0047.00–49.6072.00–73.00

75.40–76.00150.80–174.00450–470806.00–960.001850.0–2200.02450.0–2690.03700.0–4200.05925.0–7125.0

GHZ

10.55–10.68 10.70–13.25

(b) The following frequencies are notinvolved in this arrangement becauseof the nature of the services:

MHZ

156.3156.35156.4156.45156.5156.55156.6156.65156.7156.8

156.9156.95157.0 and 161.6157.05157.1157.15157.20157.25157.30157.35157.40.

(c) Assignments proposed in accord-ance with the railroad industry radiofrequency allotment plan along theUnited States-Canada borders utilizedby the Federal Communications Com-mission and the Department of Trans-port, respectively, may be exceptedfrom this arrangement at the discre-tion of the referring agency.

(d) Assignments proposed in anyradio service in frequency bands below470 MHz appropriate to this arrange-ment, other than those for stations inthe Domestic Public (land mobile orfixed) category, may be excepted fromthis arrangement at the discretion ofthe referring agency if a base stationassignment has been made previouslyunder the terms of this arrangement orprior to its adoption in the same radioservice and on the same frequency andin the local area, and provided thebasic characteristics of the additionalstation are sufficiently similar tech-nically to the original assignment topreclude harmful interference to exist-ing stations across the border.

(e) For bands below 470 MHz, theareas which are involved lie betweenLines A and B and between Lines C andD, which are described as follows:


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47 CFR Ch. I (10–1–97 Edition)§ 1.958

Line A— Begins at Aberdeen, Wash., run-ning by great circle arc to the intersection of48° N., 120° W., thence along parallel 48° N., tothe intersection of 95° W., thence by greatcircle arc through the southernmost point ofDuluth, Minn., thence by great circle arc to45° N., 85° W., thence southward along merid-ian 85° W., to its intersection with parallel41° N., thence along parallel 41° N., to itsintersection with meridian 82° W., thence bygreat circle arc through the southernmostpoint of Bangor, Maine, thence by great cir-cle arc through the southern-most point ofSearsport, Maine, at which point it termi-nates; and

Line B— Begins at Tofino, B.C., running bygreat circle arc to the intersection of 50° N.,125° W., thence along parallel 50° N., to theintersection of 90° W., thence by great circlearc to the intersection of 45° N., 79°30′ W.,thence by great circle arc through the north-ernmost point of Drummondville, Quebec(lat: 45°52′ N., long: 72°30′ W.), thence by greatcircle arc to 48°30′ N., 70° W., thence by greatcircle arc through the northernmost point ofCampbellton, N.B., thence by great circle arcthrough the northernmost point of Liver-pool, N.S., at which point it terminates.

Line C— Begins at the intersection of 70°N., 144° W., thence by great circle arc to theintersection of 60° N., 143° W., thence bygreat circle arc so as to include all of theAlaskan Panhandle; and

Line D— Begins at the intersection of 70°N., 138° W., thence by great circle arc to theintersection of 61°20′ N., 139° W., (BurwashLanding), thence by great circle arc to theintersection of 60°45′ N., 135° W., thence bygreat circle arc to the intersection of 56° N.,128° W., thence south along 128° meridian toLat. 55° N., thence by great circle arc to theintersection of 54° N., 130° W., thence bygreat circle arc to Port Clements, thence tothe Pacific Ocean where it ends.

(f) For all stations using bands be-tween 470 MHz and 1000 MHz; and forany station of a terrestrial serviceusing a band above 1000 MHz, the areaswhich are involved are as follows:

(1) For a station the antenna ofwhich looks within the 200° sector to-ward the Canada-United States bor-ders, that area in each country within35 miles of the borders;

(2) For a station the antenna ofwhich looks within the 160° sectoraway from the Canada-United Statesborders, that area in each countrywithin 5 miles of the borders; and

(3) The area in either country withincoordination distance as described inRecommendation 1A of the Final Actsof the EARC, Geneva, 1963 of a receiv-

ing earth station in the other countrywhich uses the same band.

(g) Proposed assignments in thespace radiocommunication services andproposed assignments to stations infrequency bands allocated coequally tospace and terrestrial services above 1GHz are not treated by these arrange-ments. Such proposed assignments aresubject to the regulatory provisions ofthe International Radio Regulations.

(h) Assignments proposed in the fre-quency band 806–890 MHz shall be in ac-cordance with the Canada-UnitedStates agreement, dated April 7, 1982.

[35 FR 6752, Apr. 29, 1970, as amended at 36FR 19440, Oct. 6, 1971; 47 FR 57051, Dec. 22,1982; 48 FR 8455, Mar. 1, 1983]

§ 1.958 Defective applications.

(a) Applications will be considereddefective if:

(1) The applicant is disqualified bystatute.

(2) The proposed use or purpose of thestation applied for would be unlawful.

(3) The frequency applied for is notallocated to the service proposed.

(4) The application form is not signedin accordance with § 1.913 of theserules.

(5) The application is not completewith respect to answers, supple-mentary statements, execution orother matters of a formal character.

(6) The application is not in accord-ance with the Commission’s rules or re-quirements and is not accompanied ei-ther by (i) a petition to amend any ruleor regulation with which the applica-tion is in conflict, or (ii) a request bythe applicant for waiver of any rule orrequirement with which the applica-tion is in conflict. A request for ruleamendment or waiver must show thenature of the amendment or waiver re-quested and set forth the reasons insupport of it. Requests for waiver muststate the nature of the waiver or excep-tion desired and set forth reasons insupport thereof including a showingthat unique circumstances are involvedand that there is no reasonable alter-native solution within existing rules.

(7) The applicant is requested by theCommission to file any additional doc-uments or information not included inthe prescribed form and the applicant


201


fails to comply with the Commission’srequest.

(b) An application which is defectiveon its face will not be accepted for fil-ing and will be dismissed.

(c) An application which is acceptedfor filing, but which is later deter-mined to be defective, will be dis-missed.

[49 FR 30945, Aug. 2, 1984, as amended at 54FR 38995, Sept. 22, 1989]

§ 1.959 Resubmitted applications.

Any application for frequencies below470 MHz which has been returned to theapplicant for correction will be proc-essed in its original position in theprocessing line if it is resubmitted andreceived by the Commission’s offices inGettysburg, PA within 60 days from thedate on which it was returned to theapplicant. Otherwise it will be treatedas a new application and require an ad-ditional fee as set forth in part 1, sub-part G of this chapter. An applicationfor frequencies above 470 MHz whichhas been returned to the applicant willbe processed in its original position inthe processing line if it is resubmittedand received by the Commission’s of-fices in Gettysburg, PA within 30 days(45 days outside the continental UnitedStates) from the date on which it wasreturned to the applicant. Otherwise itwill be treated as a new applicationand require an additional fee as setforth in part 1, subpart G of this chap-ter.

[52 FR 10230, Mar. 31, 1987]

§ 1.961 Dismissal of applications.

(a) Any application may, upon writ-ten request signed by the applicant orhis attorney, be dismissed withoutprejudice as a matter of right prior tothe designation of such application forhearing.

(b) Failure to prosecute an applica-tion, or failure to respond to officialcorrespondence or request for addi-tional information, will be cause fordismissal. Such dismissal will be with-out prejudice where an application hasnot yet been designated for hearing;such dismissal may be with prejudiceafter an application has been des-ignated for hearing.

(c) Requests to dismiss an applica-tion without prejudice after it has beendesignated for hearing will be consid-ered only upon written petition prop-erly served upon all parties of recordand will be granted only for good causeshown. Such petition must be accom-panied by a written and signed state-ment of a person with knowledge of thefacts as to whether or not consider-ation has been promised to or receivedby petitioner, directly or indirectly, inconnection with the filing of such peti-tion for dismissal of the application.

§ 1.962 Public notice of acceptance forfiling; petitions to deny applicationsof specified categories.

(a) Except as qualified in paragraph(b) of this section, the provisions ofthis section shall apply to all applica-tions for authorizations, and substan-tial amendments thereof, for the fol-lowing categories of stations and serv-ices:

(1) Industrial radiopositioning sta-tions for which frequencies are as-signed on an exclusive basis.

(2) Aeronautical enroute stations.(3) Aeronautical advisory stations.(4) Airport control tower stations.(5) Aeronautical fixed stations.(6) Public coast stations, excluding

those located in Alaska which will notrender service for hire.

(b) The provisions of this section arenot applicable to applications for thetype of authorizations listed in thisparagraph.

(1) A minor change in the facilities ofan authorized station or a minoramendment of an application on file.

(2) Consent to an involuntary assign-ment or transfer under section 310(b) ofthe Communications Act or to a vol-untary assignment or transfer there-under which does not involve a sub-stantial change in ownership or con-trol.

(3) A license under section 319(c) ofthe Communications Act or, pendingapplication for or grant of such license,any special or temporary authorizationto permit interim operation to facili-tate completion of authorized con-struction or to provide substantiallythe same service as would be author-ized by such licensee.


202

47 CFR Ch. I (10–1–97 Edition)§ 1.962

(4) Extension of time to completeconstruction of authorized facilities.

(5) A special temporary authorizationnot to exceed 30 days where the appli-cant does not contemplate the filing ofan application for regular operation, ornot to exceed 60 days pending or afterthe filing of an application for regularoperation.

(6) An authorization under any of theproviso clauses of section 308(a) of theCommunications Act.

(c) For the purposes of this section, asubstantial amendment of an applica-tion on file and applications for a sub-stantial change in the facilities of anauthorized station shall be:

(1) Any addition or change in fre-quency (except deletion of a fre-quency);

(2) Any change in antenna azimuth;(3) Any change in antenna beam

width;(4) Any change in antenna location

greater than 5 seconds;(5) Any change in antenna location of

less than 5 seconds but also involving arequirement for special aeronauticalstudy;

(6) Any change in emission;(7) Any increase in antenna height;(8) Any increase in authorized power

in excess of a 2 to 1 ratio;(9) Any increase in emission band-

width.(d) All amendments of an application

on file and all changes requested in thefacilities of an authorized station otherthan those amendments and modifica-tions listed in paragraph (c) of this sec-tion shall be considered minor.

(e) The Commission will issue at reg-ular intervals Public Notices listing allapplications subject to this sectionwhich have been received by the Com-mission in a condition acceptable forfiling, or have been returned to an ap-plicant for correction, within the 30-day public notice period. They willrelist any application which has beenamended substantially since its pre-vious listing, or which has been resub-mitted to the Commission, after publicnotice of the return of the applicationto an applicant, pursuant to § 1.959.Such acceptance for filing shall notpreclude the subsequent dismissal of anapplication as defective.

(f) No application subject to the pro-visions of this section, as originallyfiled or substantially amended, will begranted by the Commission prior to the31st day following the issuance of pub-lic notice of the acceptance for filing ofsuch application or of any substantialamendment thereof; Provided, however,That the Commission, notwithstandingthe requirements of this paragraph,may, if the grant of such application isotherwise authorized by law:

(1) Grant requests for special tem-porary authorization for periods notexceeding 180 days, accompanied by astatement of the reasons therefor, if itfinds that there are extraordinary cir-cumstances requiring temporary oper-ations in the public interest and thatdelay in institution of such operationswould seriously prejudice the public in-terest, and

(2) Extend such temporary authoriza-tions for additional periods not exceed-ing 180 days each, upon a finding ofcontinued extraordinary circumstancesrequiring temporary operations in thepublic interest.

(g) Any party in interest may filewith the Commission a petition todeny any application, whether as filedoriginally or as subsequently amendedby a substantial amendment as definedin paragraph (c) of this section, subjectto the provisions of this section, nolater than 30 days after the date of thepublic notice listing the application, orsubstantial amendment to the applica-tion, as having been accepted for filing.Such petitions must be filed with theCommission’s offices in Gettysburg,Pennsylvania. Address them to: Fed-eral Communications Commission, 1270Fairfield Road, Gettysburg, Pennsylva-nia 17325–7245. A petitioner shall servea copy of such petition on the appli-cant. A petition shall contain specificallegations of fact sufficient to make aprima facie showing that the petitioneris a party in interest and that a grantof the application would be inconsist-ent with the public interest, conven-ience and necessity. Such allegationsof fact, except for those of which offi-cial notice may be taken, shall be sup-ported by affidavit of a person or per-sons with personal knowledge thereof.


203


(h) The applicant may file an opposi-tion to any petition to deny and the pe-titioner may file a reply thereto (see§ 1.45) in which allegations of fact or de-nials thereof, except for those of whichofficial notice may be taken, shall besupported by affidavit of a person orpersons with personal knowledge there-of. The applicant shall serve a copy ofhis opposition on the petitioner, andthe petitioner shall serve a copy of hisreply on the applicant.


[28 FR 12454, Nov. 22, 1963, as amended at 29FR 7822, June 19, 1964; 30 FR 4479, Apr. 7, 1965;36 FR 19440, Oct. 6, 1971; 48 FR 1973, Jan. 17,1983; 49 FR 30945, Aug. 2, 1984; 49 FR 36376,Sept. 17, 1984; 51 FR 2703, Jan. 21, 1986; 53 FR28940, Aug. 1, 1988; 54 FR 10327, Mar. 13, 1989;55 FR 10462, Mar. 21, 1990; 56 FR 64715, Dec. 12,1991; 61 FR 26671, May 28, 1996

ACTION ON APPLICATIONS

AUTHORITY: Sections 1.971 through 1.973 areissued under sec. 309, 48 Stat. 1085, as amend-ed; 47 U.S.C. 309.

§ 1.971 Grants without a hearing.(a) The Commission will grant with-

out a hearing an application for a sta-tion authorization if it is proper uponits face and if the Commission findsfrom an examination of such applica-tion and supporting data, any pleadingfiled, or other matters which it may of-ficially notice, that:

(1) There are no substantial and ma-terial questions of fact;

(2) The applicant is legally, tech-nically, financially, and otherwisequalified;

(3) A grant of the application wouldnot involve modification, revocation,or non-renewal of any existing license;

(4) A grant of the application wouldnot preclude the grant of any mutuallyexclusive application; and

(5) A grant of the application wouldserve the public interest, convenience,and necessity.

(b) If a petition to deny an applica-tion has been filed pursuant to § 1.962and the Commission grants such appli-cation pursuant to paragraph (a) ofthis section, the Commission will denythe petition and issue a concise state-ment of the reason for such denial and

disposing of all substantial issuesraised by the petition.

[28 FR 12454, Nov. 22, 1963, as amended at 49FR 30946, Aug. 2, 1984]

§ 1.972 Grants by random selection.(a) The provisions of this section, in-

cluding provisions incorporated by ref-erence, may apply to applications forinitial licenses:

(1) For stations in the following Pri-vate Radio Services:

Part 80—Stations in the Maritime ServicesPart 87—Aviation ServicesPart 90—Private Land Mobile ServicesPart 95—Subpart F—Personal Radio ServicesPart 101—Subpart H—Private Operational

Fixed Point-to-Point Microwave Service.

(2) In any other proceedings in thePrivate Radio Services in which theCommission determines that there isno material difference in competing ap-plicants’ abilities to serve the publicinterest.

(b) Applications in the services speci-fied above shall be tendered, filed, ac-cepted or dismissed, publicly noted,and subject to Petitions to Deny in ac-cordance with § 1.962 and the rules andpolicies established for each respectiveservice.

(c) If there are mutually exclusiveapplications for an initial license forstations subject to part 80 or part 87 ofthis chapter, or if there are more appli-cations for an initial license in part 90,part 95-subpart F, or part 101- subpartH of this chapter, than can be accom-modated on available frequencies, theCommission may process the applica-tions pursuant to a system of randomselection. Each such random selectionshall be conducted pursuant to anorder issued by the Wireless Tele-communications Bureau and under thedirection of the Chief of the Bureau.

(d) Expedited hearing proceedingsmay be used to apply comparative cri-teria to determine which applicationswill be granted, denied or subjected torandom selection. The selection per-centages, preferences, and probabilitycalculations prescribed in § 1.1621 et seq.of this part are not applicable to anysystem of random selection conductedin the Private Radio Bureau. Followingthe random selection, the Commissionwill announce the tentative selecteeand determine whether the tentative


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selectee is qualified to receive the li-cense under the rules applicable to therespective service. Where authorizedunder § 1.962, Petitions to Deny whichhave been filed against the tentativeselectee before the random selectionwill be reviewed and processed prior togrant, in accordance with § 1.962 andrules applicable to each respectiveservice. If the Commission determinesthat the tentative selectee has satis-fied all requirements, it will grant theapplication. If it is determined that aninitial tentative selectee is not quali-fied to receive the license grant, an-other tentative selectee chosen fromamong the same applicant pool duringthe same random selection will be des-ignated until a qualified applicant isdetermined. If the Commission deter-mines that a substantial and materialquestion of fact exists, it will designatethe question for hearing. Hearings maybe conducted by the Commission or theChief of the Private Radio Bureau, or,in the case of a question which requiresoral testimony for its resolution, anAdministrative Law Judge.

[48 FR 27201, June 13, 1983, as amended at 48FR 43330, Sept. 23, 1983; 49 FR 30946, Aug. 2,1984; 50 FR 4650, Feb. 1, 1985; 51 FR 31304,Sept. 2, 1986; 57 FR 8274, Mar. 9, 1992; 59 FR24957, May 13, 1994; 61 FR 26671, May 28, 1996]

§ 1.973 Designation for hearing.

(a) If the Commission is unable tomake the findings prescribed in§ 1.971(a) and does not utilize the sys-tem of random selection prescribed in§ 1.972 of this part, it will formally des-ignate the application for hearing onthe grounds or reasons then obtainingand will notify the applicant and allother known parties in interest of suchaction.

(b) Orders designating applicationsfor hearing will specify with particu-larity the matters in issue.

(c) Parties in interest, if any, who arenot notified by the Commission of itsaction in designating a particular ap-plication for hearing may acquire thestatus of a party to the proceeding byfiling a petition for intervention show-ing the basis of their interest not morethan 30 days after publication in theFEDERAL REGISTER of the hearing is-

sues or any substantial amendmentthereto.

(d) The applicant and all other par-ties in interest shall be permitted toparticipate in any hearing subse-quently held upon such applications.Hearings may be conducted by theCommission or by the Chief of the Pri-vate Radio Bureau, or, in the case of aquestion which requires oral testimonyfor its resolution, an AdministrativeLaw Judge. The burden of proceedingwith the introduction of evidence andburden of proof shall be upon the appli-cant, except that with respect to anyissue presented by a Petition to Denyor a petition to enlarge the issues, suchburdens shall be as determined by theCommission or the Chief of the PrivateRadio Bureau.

[48 FR 27202, June 13, 1983]

REPORTS TO BE FILED WITH THE

COMMISSION

§ 1.981 Reports, annual and semi-annual.

(a) Licensees of stations authorizedfor developmental operation shall sub-mit a report on the results of the devel-opmental program. The report shall befiled with and made a part of each ap-plication for renewal of authorization.

(b) The report shall include com-prehensive and detailed information onthe following:

(1) The final objective.(2) Results of operation to date.(3) Analysis of the results obtained.(4) Copies of any published reports.(5) Need for continuation of the pro-

gram.(6) Number of hours of operation on

each frequency.(c) Where required by the particular

service rules, licensees who have en-tered into agreements with other per-sons for the cooperative use of radiostation facilities must submit annuallyan audited financial statement reflect-ing the nonprofit cost-sharing natureof the arrangement to the Commis-sion’s offices in Washington, D.C., nolater than three months after the closeof the licensee’s fiscal year.


205


Subpart G—Schedule of StatutoryCharges and Procedures forPayment

SOURCE: 52 FR 5289, Feb. 20, 1987, unlessotherwise noted.

§ 1.1101 Authority.Authority to impose and collect

these charges is contained in title III,section 3001 of the Omnibus BudgetReconciliation Act of 1989 (Pub. L. 101–

239), revising 47 U.S.C. 158, which di-rects the Commission to prescribecharges for certain of the regulatoryservices it provides to many of thecommunications entities within its ju-risdiction. This law revises section 8 ofthe Communications Act of 1934, asamended, which contains a Schedule ofCharges as well as procedures for modi-fying and collecting these charges.

[55 FR 19155, May 8, 1990]

§ 1.1102 Schedule of charges for applications and other filings in the wirelesstelecommunications services.

Action FCC Form No. Feeamount

Paymenttype code Address

1. Marine Coast Radio Service:a. New, Renewal .................. 503 ................ 105 PBMR Federal Communications Commission, Marine

Coast Service, P.O. Box 358265, Pittsburgh,PA 15251–5265.

b. Modification, Assignment,Nonprofit, (CMRS) PublicCoast/New, Modification,Renewal.

503 ................ 90 PBMM Federal Communications Commission, MarineCoast Service, P.O. Box 358770, Pittsburgh,PA 15251–5770.

c. Automated Renewal ......... 452R .............. 105 PBMR Federal Communications Commission, MarineCoast Renewal, P.O. Box 358270, Pittsburgh,PA 15251–5270.

2. Aviation Ground Radio Serv-ice:

a. New, Renewal .................. 406 ................ 105 PBVR Federal Communications Commission, AviationGround Service, P.O. Box 358260, Pittsburgh,PA 15251–5260.

b. Modification, Assignment,Nonprofit.

406 ................ 90 PBVM Federal Communications Commission, AviationGround Service, P.O. Box 358765, Pittsburgh,PA 15251–5765.

c. Automated Renewal ......... 452R .............. 105 PBVR Federal Communications Commission, AviationGround Renewal, P.O. Box 358270, Pittsburgh,PA 15251–5270.

3. Ship Radio Service:a. New, Renewal .................. 506 ................ 75 PASR Federal Communications Commission, Ship

Radio Service, P.O. Box 358275, Pittsburgh,PA 15251–5275.

b. Modification, Nonprofit ..... 506 ................ 45 PASM Federal Communications Commission, ShipRadio Service, P.O. Box 358775, Pittsburgh,PA 15251–5775.

c. Exemption from Ship Sta-tion Requirement.

820 ................ 130 PDWM Federal Communications Commission, WaiverRequests, P.O. Box 358300, Pittsburgh, PA15251–5300.

d. Automated Renewal ........ 405B .............. 75 PASR Federal Communications Commission, MarineShip Renewal, P.O. Box 358290, Pittsburgh,PA 15251–5290.

4. Aircraft Radio Service:a. New, Renewal .................. 404 ................ 75 PAAR Federal Communications Commission, Aircraft


b. Modification, Nonprofit ..... 404 ................ 45 PAAM Federal Communications Commission, AircraftRadio Service, P.O. Box 358780, Pittsburgh,PA 15251–5780.

c. Automated Renewal ......... 405B .............. 75 PAAR Federal Communications Commission, AviationAircraft Renewal, P.O. Box 358290, Pittsburgh,PA 15251–5290.

5. Private Operational FixedMicrowave Radio Service:

a. New, Renewal .................. 402 ................ 225 PEOR Federal Communications Commission, Oper-ational Fixed Microwave Service, P.O. Box358250, Pittsburgh, PA 15251–5250.


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b. Modification, Assignment,Nonprofit.

402 ................ 190 PEOM Federal Communications Commission, Oper-ational Fixed Microwave Service, P.O. Box358760, Pittsburgh, PA 15251–5760.

c. Automated Renewal ......... 402R .............. 225 PEOR Federal Communications Commission, Oper-ational Fixed Microwave Service Renewal, P.O.Box 358255, Pittsburgh, PA 15251–5255.

6. Land Mobile Radio Services:a. Land Transportation Serv-

ices:(1) New, Renewal, Rein-

statement.600 ................ 60 PALR Federal Communications Commission, Land

Transportation Services, P.O. Box 358215,Pittsburgh, PA 15251–5215.

(2) Modification, Assign-ment, Nonprofit.

600 ................ 45 PALM Federal Communications Commission, LandTransportation Services, P.O. Box 358730,Pittsburgh, PA 15251–5730.

b. Business Radio Service:(1) (PMRS) New, Re-

newal, Reinstatement.600 ................ 60 PALR Federal Communications Commission, Business


(2) Modification, Assign-ment, Nonprofit, and(CMRS) New, Re-newal, Reinstatement.

600, 490 ........ 45 PALM Federal Communications Commission, BusinessRadio Service, P.O. Box 358735, Pittsburgh,PA 15251–5735.

c. Other Industrial Services:(1) New, Renewal, Rein-

statement.600 ................ 60 PALR Federal Communications Commission, Other In-

dustrial Services, P.O. Box 358225, Pittsburgh,PA 15251–5225.

(2) Modification, Assign-ment, Nonprofit.

600 ................ 45 PALM Federal Communications Commission, Other In-dustrial Services, P.O. Box 358740, Pittsburgh,PA 15251–5740.

d. 800 Megahertz Services:(1) (PMRS) New, Re-

newal, Reinstatement.600 ................ 80 PALS Federal Communications Commission, 800

Megahertz Services, P.O. Box 358235, Pitts-burgh, PA 15251–5235.

(2) Modification, Assign-ment, Nonprofit and(CMRS) New, Re-newal Reinstatement.

600, 490 ........ 45 PALM Federal Communications Commission, 800Megahertz Services, P.O. Box 358750, Pitts-burgh, PA 15251–5750.

e. 900 Megahertz Service:(1) (PMRS) New, Re-

newal, Reinstatement.600 ................ 80 PALS Federal Communications Commission, 900

Megahertz Services, P.O. Box 358240, Pitts-burgh, PA 15251–5240.

(2) Modification, Assign-ment, Nonprofit and(CMRS) New, Re-newal, Reinstatement.

600, 490 ........ 45 PALM Federal Communications Commission, 900Megahertz Services, P.O. Box 358755, Pitts-burgh, PA 15251–5755.

f. 470–512 Megahertz Serv-ice:

(1) (PMRS) New, Re-newal, Reinstatement.

600 ................ 80 PALS Federal Communications Commission, 470–512Megahertz Service, P.O. Box 358810, Pitts-burgh, PA 15251–5810.


600, 490 ........ 45 PALM Federal Communications Commission, 470–512Megahertz Service, P.O. Box 358815, Pitts-burgh, PA 15251–5815.

g. 220 Megahertz Service(Local):


600 ................ 80 PALS Federal Communications Commission, 200Megahertz Service (Local), P.O. Box 358360,Pittsburgh, PA 15251–5360.


600, 490 ........ 45 PALM Federal Communications Commission, 220Megahertz Service (Local), P.O. Box 358790,Pittsburgh, PA 15251–5790.

h. 220 Megahertz Service(Nationwide):


600 ................ 115 PALT Federal Communications Commission, 220Megahertz Service (Nationwide), P.O. Box358820, Pittsburgh, PA 15251–5820.


600, 490 ........ 45 PALM Federal Communications Commission, 220Megahertz Service (Nationwide), P.O. Box358825, Pittsburgh, PA 15251–5825.


207




i. BUS, OI, LT, GMRS, 470–512, 800, 900, 220(Local), 220 (Nationwide)-Nonprofit Renewal; andPS/SE (for profit).

574R/405A .... 45 PALM Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

j. BUS, OI, LT, GMRS, Re-newal.

574R/405A .... 60 PALR Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

k. IVDS Renewal (Nonprofit) 574R/405A .... 45 PAIM Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

l. IVDS Renewal ................... 574R/405A .... 115 PAIR Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

m. 220 (Nationwide) Re-newal.

574R/405A .... 115 PALT Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

n. 470–512, 800, 900, 220(Local) Renewal.

574R/405A .... 80 PALS Federal Communications Commission, 574R/405A Station Renewal, P.O. Box 358245, Pitts-burgh, PA 15251–5245.

7. Finders Preference ................. 159 & Corres 130 PDXM Federal Communications Commission, FindersPreference, P.O. Box 358305, Pittsburgh, PA15251–5305.

8. STA (Common Carrier):a. Point-to-Point Mircowave 159 & Corres 90 CEP Federal Communications Commission, Special

Temporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

b. Local Television Trans-mission.

159 & Corres 90 CEP Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

9. STA (Common Carrier):a. Digital Electronic Message 159 & Corres 90 CEL Federal Communications Commission, Special

Temporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

10. STA (BAPS) .......................... 159 & Corres 125 MGA Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

11. STA (IVDS) ........................... 159 & Corres 45 PAIM Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

12. STA (Coast) .......................... 159 & Corres 125 PCMM Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

13. STA (Ground) ........................ 159 & Corres 125 PCVM Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

14. STA (Microwave) .................. 159 & Corres 45 PAOM Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

15. STA (LM, GMRS) .................. 159 & Corres 45 PALM Federal Communications Commission, SpecialTemporary Authority, P.O. Box 358305, Pitts-burgh, PA 15251–5305.

16. Corres. (Duplicate) ................ 159 & Corres 45 PADM Federal Communications Commission, Duplicate,P.O. Box 358305, Pittsburgh, PA 15251–5305.

17. Corres. (Hearing) .................. 159 & Corres 8,215 PFHM Federal Communications Commission, Hearing,P.O. Box 358305, Pittsburgh, PA 15251–5305.

18. Corres. (Wait List) ................. 159 & Corres 45 PAWM Federal Communications Commission, Wait List,P.O. Box 358305, Pittsburgh, PA 15251–5305.

19. Corres. (Blanket Renewal)Land Mobile (Nonprofit).

159 & Corres 45 PALM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

20. Corres. (Blanket Renewal)IVDS (Nonprofit).

159 & Corres 45 PAIM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

21. Corres. (Blanket Renewal)Microwave (Nonprofit).

159 & Corres 190 PEOM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

22. Corres. (Blanket Renewal)Ground (Nonprofit).

159 & Corres 90 PBVM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

23. Corres. (Blanket Renewal)Coast (Nonprofit).

159 & Corres 90 PBMM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1102



24. Corres. (Blanket Renewal)Aircraft (Nonprofit).

159 & Corres 45 PAAM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

25. Corres. (Blanket Renewal)Ship (Nonprofit).

159 & Corres 45 PASM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

26. Corres. (Blanket Renewal)BUS, OI, LT, GMRS.

159 & Corres 60 PALR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

27. Corres. (Blanket Renewal)470–512, 800, 900, 220(Local).

159 & Corres 80 PALS Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

28. Corres (Blanket Renewal)220 (Nationwide).

159 & Corres 115 PALT Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

29. Corres (Blanket Renewal)IVDS.

159 & Corres 115 PAIR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

30. Corres (Blanket Renewal)Microwave.

159 & Corres 225 PEOR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

31. Corres (Blanket Renewal)Ground.

159 & Corres 105 PBVR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

32. Corres (Blanket Renewal)Coast.

159 & Corres 105 PBMR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

33. Corres (Blanket Renewal)Aircraft.

159 & Corres 75 PAAR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

34. Corres (Blanket Renewal)Ship.

159 & Corres 75 PASR Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

35. Corres (Blanket Renewal)Common Carrier.

159 & Corres 190 CJPM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

36. Corres (Blanket Renewal)Common Carrier.

159 & Corres 190 CJLM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

37. Corres (Blanket Renewal)BAPS.

159 & Corres 45 MAAM Federal Communications Commission, BlanketRenewal, P.O. Box 358305, Pittsburgh, PA15251–5305.

38. Interactive Video Data Serv-ice:

a. New, Renewal .................. 574 ................ 115 PAIR Federal Communications Commission, InteractiveVideo Data Service, P.O. Box 358365, Pitts-burgh, PA 15251–5365.

b. Modification ...................... 574 ................ 45 PAIM Federal Communications Commission, InteractiveVideo Data Service, P.O. Box 358795, Pitts-burgh, PA 15251–5795.

39. General Mobile Radio Serv-ice:

a. New, Renewal .................. 574 ................ 60 PALR Federal Communications Commission, GeneralMobile Radio Service, P.O. Box 358230, Pitts-burgh, PA 15251–5330.

b. Modification ...................... 574 ................ 45 PALM Federal Communications Commission, GeneralMobile Radio Service, P.O. Box 358745, Pitts-burgh, PA 15251–5745.

40. Commercial Radio OperatorsRestricted Radiotelephone Op-erator Permit and RestrictedRadiotelephone Operator Per-mit (Limited Use):

a. New .................................. 753, 755 ........ 45 PARR Federal Communications Commission, RestrictedPermit, P.O. Box 358295, Pittsburgh, PA15251–5295.


209




41. Commercial Radio OperatorsMarine Radio Operator Permit,GMDSS Radio Operator,GMDSS Radio Maintainer,GMDSS Radio Operator/Main-tainer, First, Second, ThirdClass Radiotelegraph Opera-tor:

a. Renewal ........................... 756 ................ 45 PACS Federal Communications Commission, Radio Op-erator Permits, P.O. Box 358805, Pittsburgh,PA 15251–5805.

42. Transfer of Control ................ 703, 490 ........ 45 PATM Federal Communications Commission, Transferof Control, P.O. Box 358310, Pittsburgh, PA15251–5805.

43. Point to Point Microwave &Local Television TransmissionService:

a. New Conditional or Modi-fied Conditional.

494 ................ 190 CJP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

b. Certification of Completionof Construction.

494A .............. 190 CJP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

c. Renewal of License ......... 405 ................ 190 CJP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

d. Assignment of Authoriza-tion.

702 ................ 70 CCP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

(1) Additional Stations ... 702 ................ 45 CAP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

e. Transfer of Control ........... 704 ................ 70 CCP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

(1) Additional Stations ... 704 ................ 45 CAP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

f. Extension of ConstructionAuthority.

701 ................ 70 CCP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

g. Request for Waiver ofPrior Construction Author-ization.

159 & Corres 90 CEP Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

44. Digital Electronic MessageService:

a. New Conditional or Modi-fied Conditional.

494 ................ 190 CJL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

b. Certification of Completionof Construction.

494A .............. 190 CJL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

c. Renewal of License ......... 405 ................ 190 CJL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

d. Assignment of Authoriza-tion.

702 ................ 70 CCL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

(1) Additional Stations ... 702 ................ 45 CAL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

e. Transfer of Control ........... 704 ................ 70 CCL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

(1) Additional Stations ... 704 ................ 45 CAL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

f. Extension of ConstructionAuthority.

701 ................ 70 CCL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.

g. Request for Waiver ofPrior Construction Author-ization Requirement.

159 & Corres 90 CEL Federal Communications Commission, CommonCarrier Domestic Radio, P.O. Box 358680,Pittsburgh, PA 15251–5680.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1102



45. Broadcast Auxiliary RadioService:

a. New Modification ............. 313 ................ 105 MEA Federal Communications Commission, MassMedia Services, P.O. Box 358700, Pittsburgh,PA 15251–5700.

b. Renewal ........................... 159/313R ....... 45 MAA Federal Communications Commission, MassMedia Services, P.O. Box 358700, Pittsburgh,PA 15251–5700.

46. Billing ..................................... Invoice ........... Various Various Federal Communications Commission, Billings,P.O. Box 358325, Pittsburgh, PA 15251–5325.

47. Amateur Vanity C/S .............. 610V .............. 30 WAVR Federal Communications Commission, AmateurVanity, P.O. Box 358924, Pittsburgh, PA15251–5924.

48. Electronic Filing:a. LT, OI, BUS, GMRS,

(PMRS) New, Renewal,Reinstatement.

ELT ................ 60 PALR Federal Communications Commission, ElectronicFiling, P.O. Box 358994, Pittsburgh, PA15251–5994.

b. Modification, Assignment,Nonprofit and (CMRS)New, Renewal, Reinstate-ment.

ELT ................ 45 PALM Federal Communications Commission, ElectronicFiling, P.O. Box 358994, Pittsburgh, PA15251–5994.

c. 220 MHZ (Local), 470–512, 800, 900, (PMRS)New, Renewal, Reinstate-ment.

ELT ................ 80 PALS Federal Communications Commission, ElectronicFiling, P.O. Box 358994, Pittsburgh, PA15251–5994.

d. 220 (Nationwide), (PMRS)New, Renewal, Reinstate-ment.

ELT ................ 115 PALT Federal Communications Commission, ElectronicFiling, P.O. Box 358994, Pittsburgh, PA15251–5994.

e. IVDS New, Renewal, Re-instatement.

ELT ................ 115 PAIR Federal Communications Commission, ElectronicFiling, P.O. Box 358994, Pittsburgh, PA15251–5994.

49. Public Safety/Special Emer-gency (for profit) New, Modi-fication, Renewal, Reinstate-ment, Assignment.

600 ................ 45 PALM Federal Communications Commission, PS/SEServices, P.O. Box 358285, Pittsburgh, PA15251–5285.

50. Paging and RadiotelephoneStations:

a. New or Additional Facility 600 ................ 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

b. Major Modification ............ 600 ................ 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

c. Fill in Transmitters ............ 489,600 ......... 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

d. Major Amendment toPending Application.

600 ................ 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

e. Assignment or Transfer ... 490 ................ 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

(1) Additional Call Sign 490 ................ 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

f. Partial Assignment ............ 489, 490, 600 280 CMD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

g. Renewal ........................... 159/405 ......... 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

h. Minor Modifications .......... 489 ................ 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

i. Special Temporary Author-ity.

159 & Corres 245 CLD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

j. Extension of Time to Con-struct.

600 ................ 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

k. Notice of Completion ofConstruction.

489 ................ 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.


211




l. Auxiliary Test Station ........ 600 ................ 245 CLD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

m. Subsidiary Communica-tions Service.

600 ................ 125 CFD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

n. Combining Call Signs ...... 489 ................ 245 CLD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

o. 900 MHz Nationwide Re-newal Paging Network Or-ganizer, Network Operator.

159/405 ......... 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

p. Air-Ground Individual Li-cense—New, Renewal,Modification.

159/409 ......... 45 CAD Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

51. Cellular systems:a. New, Additional Facility,

Major Modification.600 ................ 280 CMC Federal Communications Commission, Common

Carrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

b. Minor Modification ............ 489 ................ 75 CDC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

c. Assignment or Transfer ... 490 ................ 280 CMC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

d. Partial Assignment ........... 489, 490, 600 280 CMC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

e. Renewal ........................... 159/405 ......... 45 CAC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

f. Extension of Time to Com-plete Construction.

600 ................ 45 CAC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

g. Special Temporary Au-thority.

600 or 159 &Corres.

245 CLC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

h. Combining Cellular Geo-graphic Service Areas (persystem).

600 ................ 65 CBC Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358135, Pitts-burgh, PA 15251–5135.

52. Rural Radio:a. New, Additional Facility or

Major Modification, MajorAmendment to a PendingApplication.

600 ................ 130 CGR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

b. Minor Modification ............ 489 ................ 45 CAR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

c. Assignment or TransferFirst Call Sign.

490 ................ 130 CGR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

(1) Each Additional CallSign.

490 ................ 45 CAR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

(2) Partial Assignment(per call sign).

489, 490, 600 130 CGR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

d. Renewal (per call sign) .... 159/405 ......... 45 CAR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

e. Extension of Time to Con-struct.


f. Notice of Completion ofConstruction.


g. Special Temporary Au-thority.

159 & Corres 245 CLR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

h. Combining Call Signs ...... 489 ................ 245 CLR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1103



i. Auxiliary Test Station ........ 600 ................ 245 CLR Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

53. Offshore Radio Service:a. New, Additional Facility,

Major Modification, (pertransmitter).

600 ................ 130 CGF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

b. Fill in Transmitters (pertransmitter).

489, 600 ........ 130 CGF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

c. Major Amendment to aPending Application (pertransmitter).

600 ................ 130 CGF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

d. Minor Modification (pertransmitter).

489 ................ 45 CAF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

e. Assignment of Transfer:(1) First Call Sign .......... 490 ................ 130 CGF Federal Communications Commission, Common

Carrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

(2) Each Additional CallSign.


(3) Partial Assignment(per call sign).

489, 490, 600 130 CGF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

f. Renewal (per call sign) ..... 159/405 ......... 45 CAF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

g. Extension of Time to Con-struct (per Application).


h. Notice of Completion ofConstruction (per Applica-tion.


i. Special Temporary Author-ity.

159 & Corres 245 CLF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

j. Combining Call Signs (percall sign).

489 ................ 245 CLF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

k. Auxiliary Test Station (pertransmitter).

159 & 401 ...... 245 CLF Federal Communications Commission, CommonCarrier Land Mobile, P.O. Box 358130, Pitts-burgh, PA 15251–5130.

[61 FR 41967, Aug. 13, 1996]

§ 1.1103 Schedule of charges for equipment authorization, experimental radioservices, ship inspections and international telecommunications settlements.



1. Certification:a. Receivers (except TV and

FM).731 ................ 350 EEC Federal Communications Commission, Equip-

ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

b. All Other Devices ............. 731 ................ 895 EGC Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

c. Modifications and Class IIPermissive Changes.

731 ................ 45 EAC Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

d. Request for Confidentiality 731 or 159 &Corres..

130 EBC Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

2. Type Acceptance:a. All Devices ....................... 731 ................ 450 EFT Federal Communications Commission, Equip-



213




b. Modifications and Class IIPermissive Changes.

731 ................ 45 EAT Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

c. Request for Confidentiality 731 or 159 &Corres..

130 EBT Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

3. Notifications (All Devices) ....... 731 ................ 140 ECN Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

4. Advance Approval for Sub-scription TV System.

159 & Corres 2,740 EIS Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

a. Request for Confidentiality 159 & Corres 130 EBS Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

5. Assignment of Applicant Code:a. New applicants for all ap-

plication types exceptSubscription TV.

159 & Corres 45 EAG Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358315,Pittsburgh, PA 15251–5315.

6. Experimental Radio Service:a. New Station Authorization 442 ................ 45 EAE Federal Communications Commission, Equip-


b. Modification of Authoriza-tion.

442 ................ 45 EAE Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358320,Pittsburgh, PA 15251–5320.

c. Renewal of Station Au-thorization.

405 ................ 45 EAE Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358320,Pittsburgh, PA 15251–5320.

d. Assignment or Transfer ofControl.

702 or 703 ..... 45 EAE Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358320,Pittsburgh, PA 15251–5320.

e. Special Temporary Au-thority.

159 & Corres 45 EAE Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358320,Pittsburgh, PA 15251–5320.

f. Additional fee required forany of the above applica-tions that request con-fidentiality.

159 & Corres 45 EAE Federal Communications Commission, Equip-ment Approval Services, P.O. Box 358320,Pittsburgh, PA 15251–5320.

7. Ship Inspections:a. Passenger Vessel Under

Title III, Part III.801 ................ 390 FCS Federal Communications Commission, P.O. Box

358110, Pittsburgh, PA 15251–5110.b. Oceangoing Vessel Under

Title III, Part II.801 ................ 755 FFS Federal Communications Commission, P.O. Box

358110, Pittsburgh, PA 15251–5110.c. Vessels Under the Great

Lakes Agreement.801 ................ 110 FDS Federal Communications Commission, P.O. Box

358110, Pittsburgh, PA 15251–5110.d. Vessels Under the Safety

of Life at Sea (SOLAS)Convention.

801 ................ 660 FES Federal Communications Commission, P.O. Box358110, Pittsburgh, PA 15251–5100.

e. Temporary Waiver of In-spection.

159 & Corres 75 FBS Federal Communications Commission, P.O. Box358110, Pittsburgh, PA 15251–5110.

8. International Telecommuni-cations Settlements Adminis-trative Fee for Collections (perline item).

99 .................. 2 IAT Licensees will be billed.

[61 FR 41974, Aug. 13, 1996]

§ 1.1104 Schedule of charges for applications and other filings in the mass mediaservices.



1. Commercial Television Sta-tions:

a. New or Major ChangeConstruction Permit.

301 ................ 3,080 MVT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

b. Minor Change .................. 301 ................ 690 MPT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1104



(1) Main Studio Request 159 & Corres. 690 MPT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

c. New License .................... 302/302–TV ... 210 MJT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

d. License Renewal ............. 303–S ............ 125 MGT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

e. License Agreement:(1) Long Form ............... 314 ................ 690 MPT Federal Communications Commission, Mass

Media Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

(2) Short Form .............. 316 ................ 100 MDT Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

f. Transfer of Control:(1) Long Form ............... 315 ................ 690 MPT Federal Communications Commission, Mass


(2) Short Form .............. 316 ................ 100 MDT Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

g. Hearing (New and Majoror minor change compara-tive construction permithearings; comparative li-cense renewal hearings).

159 & Corres 8,215 MWT Federal Communications Commission, MassMedia Services, P.O. Box 358170, Pittsburgh,PA 15251–5170.

h. Call Sign .......................... 159 & Corres 70 MBT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

i. Extension of Time to Con-struct or Replacement ofConstruction Permit.

307 ................ 245 MKT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

j. Special Temporary Author-ity.

159 & Corres 125 MGT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

k. Petition for Rulemaking forNew Community of Li-cense.

301/302/302–TV.

1,905 MRT Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

i. Ownership Report ............. 323 ................ 45 MAT Federal Communications Commission, MassMedia Services, P.O. Box 358180, Pittsburgh,PA 15251–5180.

2. Commercial AM Radio Sta-tions:


301 ................ 2,740 MUR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

b. Minor Change .................. 301 ................ 690 MPR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.


c. New License .................... 302–AM ......... 450 MMR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

d. AM Directional Antenna ... 302–AM ......... 520 MOR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

e. AM Remote Control ......... 301–A/301 ..... 45 MAR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

f. License Renewal .............. 303–S ............ 125 MGR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

g. License Assignment:(1) Long Form ............... 314 ................ 690 MPR Federal Communications Commission, Mass


(2) Short Form .............. 316 ................ 100 MDR Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.


215




h. Transfer of Control:(1) Long Form ............... 315 ................ 690 MPR Federal Communications Commission, Mass



i. Hearing (New and major/minor change comparativeconstruction permit hear-ings; comparative licenserenewal hearings).

159 & Corres 8,215 MWR Federal Communications Commission, MassMedia Services, P.O. Box 358170, Pittsburgh,PA 15251–5170.

j. Call Sign ............................ 159 & Corres 70 MBR Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

k. Extension of Time to Con-struct or Replacement ofConstruction Permit.

307 ................ 245 MKR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

l. Special Temporary Author-ity.

159 & Corres 125 MGR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

m. Ownership Report ........... 323 ................ 45 MAR Federal Communications Commission, MassMedia Services, P.O. Box 358180, Pittsburgh,PA 15251–5180.

3. Commercial FM Radio Sta-tions:


301 ................ 2,470 MTR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.

b. Minor Change .................. 301 ................ 690 MPR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.


c. New License .................... 302–FM ......... 140 MHR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.

d. FM Directional Antenna ... 302–FM ......... 435 MLR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.

e. License Renewal ............. 303–S ............ 125 MGR Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

f. License Assignment:(1) Long Form ............... 314 ................ 690 MPR Federal Communications Commission, Mass



g. Transfer of Control:(1) Long Form ............... 315 ................ 690 MPR Federal Communications Commission, Mass



h. Hearing (New and major/minor change comparativeconstruction permit hear-ings; comparative licenserenewal hearings).

159 & Corres 8,215 MWR Federal Communications Commission, MassMedia Services, P.O. Box 358170, Pittsburgh,PA 15251–5170.

i. Call Sign ............................ 159 & Corres 70 MBR Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

j. Extension of Time to Con-struct or Replacement ofConstruction Permit.

307 ................ 245 MKR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.

k. Special Temporary Au-thority.

159 & Corres 125 MGR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.


216

47 CFR Ch. I (10–1–97 Edition)§ 1.1104



l. Petition for Rulemaking forNew Community of Li-cense or Higher ClassChannel.

301/302–FM .. 1,905 MRR Federal Communications Commission, MassMedia Services, P.O. Box 358195, Pittsburgh,PA 15251–5195.

m. Ownership Report ........... 323 ................ 45 MAR Federal Communications Commission, MassMedia Services, P.O. Box 358180, Pittsburgh,PA 15251–5180.

4. FM Translators:a. New or Major Change

Construction Permit.349 ................ 520 MOF Federal Communications Commission, Mass


b. New License .................... 350 ................ 105 MEF Federal Communications Commission, MassMedia Services, P.O. Box 358200, Pittsburgh,PA 15251–5200.

c. License Renewal .............. 303–S ............ 45 MAF Federal Communications Commission, MassMedia Services, P.O. Box 358190, Pittsburgh,PA 15251–5190.

d. Special Temporary Au-thority.

159 & Corres 125 MGF Federal Communications Commission, MassMedia Services, P.O. Box 358200, Pittsburgh,PA 15251–5200.

e. License Assignment ......... 345/316, 315/314.

100 MDF Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

f. Transfer of Control ............ 345/316, 315/314.

100 MDF Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

5. TV Translators and LPTV Sta-tions:


346 ................ 520 MOL Federal Communications Commission, MassMedia Services, P.O. Box 358185, Pittsburgh,PA 15251–5185.

b. New License .................... 347 ................ 105 MEL Federal Communications Commission, MassMedia Services, P.O. Box 358185, Pittsburgh,PA 15251–5185.

c. License Renewal .............. 303–S ............ 45 MAL Federal Communications Commission, MassMedia Services, P.O. Box 358165, Pittsburgh,PA 15251–5165.

d. Special Temporary Au-thority.

159 & Corres 125 MGL Federal Communications Commission, MassMedia Services, P.O. Box 358185, Pittsburgh,PA 15251–5185.

e. License Assignment ......... 345/316, 315/314.

100 MDL Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

f. Transfer of Control ............ 345/316, 315/314.

100 MDL Federal Communications Commission, MassMedia Services, P.O. Box 358350, Pittsburgh,PA 15251–5350.

6. FM Booster Stations:a. New or Major Change




c. Special Temporary Au-thority.


7. TV Booster Stations:a. New or Major Change




c. Special Temporary Au-thority.


8. Multipoint Distribution Service(including multichannel MDS):

a. Conditional License ......... 304 ................ 190 CJM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.


217




b. Major Modification of Con-ditional Licenses or Li-cense Authorization.

304 ................ 190 CJM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

c. Certificate of Completionof Construction.

494–A/304–A 555 CPM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

d. License Renewal ............. 405 ................ 190 CJM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

e. Assignment or Transfer:(1) First Station Applica-

tion.702/704 ......... 70 CCM Federal Communications Commission, Mass


(2) Each Additional Sta-tion.

702/704 ......... 45 CAM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

f. Extension of ConstructionAuthorization.

701 ................ 140 CHM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

g. Special Temporary Au-thority or Request forWaiver of Prior Construc-tion Authorization.

159 & Corres 90 CEM Federal Communications Commission, MassMedia Services, P.O. Box 358155, Pittsburgh,PA 15251–5155.

[61 FR 41975, Aug. 13, 1996, as amended at 62 FR 51058, Sept. 30, 1997]

EFFECTIVE DATE NOTE: At 62 FR 51058, Sept. 30, 1997, § 1.1104 was amended by adding entries1.b.(1), 2.b.(1), 3.b.(1), effective Dec. 1, 1997.

§ 1.1105 Schedule of charges for applications and other filings in the common car-rier services.



1. All Common Carrier Services:a. Hearing (Comparative

New or Modifications).159 & Corres 8,215 BHZ Federal Communications Commission, Common

Carrier Enforcement, P.O. Box 358120, Pitts-burgh, PA 15251–5120.

b. Developmental Authority(Same charge as regularauthority in service unlessotherwise indicated)

c. Formal Complaints FilingFee.

159 & Corres 150 CIZ Federal Communications Commission, CommonCarrier Enforcement, P.O. Box 358120, Pitts-burgh, PA 15251–5120.

2. Domestic 214 Applications:a. Domestic Cable Construc-

tion.159 & Corres 745 CUT Federal Communications Commission, Common

Carrier Network Services, P.O. Box 358145,Pittsburgh, PA 15251–5145.

b. Other ................................ 159 & Corres 745 CUT Federal Communications Commission, CommonCarrier Network Services, P.O. Box 358145,Pittsburgh, PA 15251–5145.

3. Telephone Equipment Reg-istration

159 & 730 ...... 190 CJQ Federal Communications Commission, CommonCarrier Network Services, P.O. Box 358145,Pittsburgh, PA 15251–5145.

4. Tariff Filings:a. Filing Fees ....................... 159 & Corres 600 CQK Federal Communications Commission, Common

Carrier Tariff Filings, P.O. Box 358150, Pitts-burgh, PA 15251–5150.

b. Special Permission Filing(per filing) (waiver of anyrule in Part 61 of the Com-mission’s rules).

159 & Corres 600 CQK Federal Communications Commission, CommonCarrier Tariff Filings, P.O. Box 358150, Pitts-burgh, PA 15251–5150.

c. Waiver of Part 69 TariffRules.

159 & Corres 600 CQK Federal Communications Commission, CommonCarrier Tariff Filings, P.O. Box 358150, Pitts-burgh, PA 15251–5150.

5. Accounting and Audits:a. Field Audits ...................... N/A ................ 75,680 BMA Carriers will be billed.b. Review of Attest Audit ..... N/A ................ 41,310 BLA Carriers will be billed.c. Review of Depreciation

Update Study (singlestate).

159 & WrittenStudy.

25,015 BKA Federal Communications Commission, Account-ing and Audits, P.O. Box 358140, Pittsburgh,PA 15251–5140.


218

47 CFR Ch. I (10–1–97 Edition)§ 1.1106



(1) Each AdditionalState.

Same as 5c ... 830 CVA Federal Communications Commission, Account-ing and Audits, P.O. Box 358140, Pittsburgh,PA 15251–5140.

d. Interpretation of Account-ing Rules (per request).

159 & Corres 3,510 BCA Federal Communications Commission, Account-ing and Audits, P.O. Box 358140, Pittsburgh,PA 15251–5140.

e. Petition for Waiver (perpetition) (waiver of Part 69rules and Part 32 account-ing rules, Part 36 separa-tion rules, Part 43 report-ing requirements, Part 64cost allocation rules, Part65 rate of return & ratebase rules.

159 & Corres 5,665 BEA Federal Communications Commission, Account-ing and Audits, P.O. Box 358140, Pittsburgh,PA 15251–5140.

[61 FR 41979, Aug. 13, 1996; 61 FR 44176, Aug. 28, 1996]

§ 1.1106 Schedule of charges for applications and other filings in the cable tele-vision services.



1. CARS Construction Permit ..... 327 ................ 190 TIC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

2. CARS Modification .................. 327 ................ 190 TIC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

3. CARS License Renewal ......... 327 ................ 190 TIC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

4. CARS License Agreement ...... 327 ................ 190 TIC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

5. CARS Transfer of Control ....... 327 ................ 190 TIC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

6. Special Temporary Authoriza-tion.

159 & Corres 125 TGC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

7. Cable Special Relief ............... 159 & Corres 960 TQC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

8. 76.12 Registration Statement 159 & Corres 45 TAC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

9. Aeronautical Frequency UsageNotification.

159 & Corres 45 TAC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

10. Aeronautical FrequencyUsage Waiver.

159 & Corres 45 TAC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

11. Pole Attachment ComplaintsFiling Fee.

159 & Corres 150 TPC Federal Communications Commission, CableServices Bureau, P.O. Box 358205, Pittsburgh,PA 15251–5205.

[61 FR 41979, Aug. 13, 1996]

§ 1.1107 Schedule of charges for applications and other filings in the inter-national services.



1. International Fixed PublicRadio (Public & Control Sta-tions):

a. Initial Construction Permit(per station).

159 & 407 ...... 620 CSN Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.


219




b. Assignment or Transfer(per application).

702 or 704 ..... 620 CSN Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Renewal (per license) ...... 405 ................ 450 CON Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Modification (per station) 159 & 403 ...... 450 CON Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Extension of ConstructionAuthorization (per station).

701 ................ 225 CKN Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Special Temporary Author-ity or Request for Waiver(per request).

159 & Corres 225 CKN Federal Communications Commission, Inter-national Bureau, Fixed Public Radio, P.O. Box358160, Pittsburgh, PA 15251–5160.

2. Section 214 Applications:a. Overseas Cable Construc-

tion.159 & Corres 11,090 BIT Federal Communications Commission, Inter-

national Bureau, Telecommunications, P.O.Box 358115, Pittsburgh, PA 15251–5115.

b. Cable Landing License:(1) Common Carrier ...... 159 & Corres 1,250 CXT Federal Communications Commission, Inter-

national Bureau, Telecommunications, P.O.Box 358115, Pittsburgh, PA 15251–5115.

(2) Non-Common Car-riers.

159 & Corres 12,335 BJT Federal Communications Commission, Inter-national Bureau, Telecommunications, P.O.Box 358115, Pittsburgh, PA 15251–5115.

c. All other International 214Applications.

159 & Corres 745 CUT Federal Communications Commission, Inter-national Bureau, Telecommunications, P.O.Box 358115, Pittsburgh, PA 15251–5115.

d. Special Temporary Au-thority (all services).


e. Assignments or Transfers(all services).


3. Fixed Satellite Transmit/Re-ceive Earth Stations:

a. Initial Application (per sta-tion).

159 & 493 ...... 1,855 BAX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

b. Modification of License(per station).

159 & 493 ...... 130 CGX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Assignment or Transfer:(1) First Station on Ap-

plication.702 & 704 ...... 365 CNX Federal Communications Commission, Inter-

national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.


Same as10c(i).

125 CFX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Developmental Station(per station).

159 & 493 ...... 1,215 CWX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Renewal of License (perstation).

405 ................ 130 CGX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Special Temporary Author-ity or Waiver of Prior Con-struction Authorization (perrequest).

159 & Corres 130 CGX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

g. Amendment of Application(per station).

159 & Corres 130 CGX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

h. Extension of ConstructionPermit (per station).

701 ................ 130 CGX Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

4. Fixed Satellite Small Transmit/Receive Earth Stations (2 me-ters or less operating in the 4/6GHz frequency band):

a. Lead Application .............. 159 & 493 ...... 4,110 BDS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1107



b. Routine Application (perstation).

159 & 493 ...... 45 CAS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Modification of License(per station).

159 & 493 ...... 130 CGS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Assignment or Transfer:(1) First Station on Ap-

plication.702 or 704 ..... 365 CNS Federal Communications Commission, Inter-


(2) Each additional sta-tion.

702 or 704 ..... 45 CAS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Developmental Station(per station).

159 & 493 ...... 1,215 CWS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Renewal of License (perstation).

405 ................ 130 CGS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

g. Special Temporary Au-thority or Waiver of PriorConstruction Authorization(per request).

159 & Corres 130 CGS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

h. Amendment of Application(per station).

159 & Corres 130 CGS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

i. Extension of ConstructionPermit (per station).

701 ................ 130 CGS Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

5. Receive Only Earth Stations:a. Initial Application for Reg-

istration.159 & 493 ...... 280 CMO Federal Communications Commission, Inter-


b. Modification of License orRegistration (per station).

159 & 493 ...... 1,645 CGO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Assignment or Transfer:(1) First Station on Ap-

plication.702 & 704 ...... 365 CNO Federal Communications Commission, Inter-



Same as12c(i).

125 CFO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Renewal of License (perstation).

405 ................ 130 CGO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Amendment of Application 159 & Corres 130 CGO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Extension of ConstructionPermit (per station).

701 ................ 130 CGO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

g. Waivers (per request) ...... 159 & Corres 130 CGO Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

6. Fixed Satellite Very Small Ap-erture Terminal (VSAT) Sys-tems:

a. Initial Application (per sys-tem).

159 & 493 ...... 6,840 BGV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

b. Modification of License(per system).

159 & 493 ...... 130 CGV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Assignment or Transfer ofSystem.

702 & 704 ...... 1,830 CZV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Development Station ....... 159 & 493 ...... 1,215 CWV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Renewal of License (persystem).



221




f. Special Temporary Author-ity or Waiver of Prior Con-struction Authorization (perrequest).

159 & Corres 130 CGV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

g. Amendment of Application(per system).

159 & Corres 130 CGV Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

h. Extension of ConstructionPermit (per system).


7. Mobile Satellite Earth Stations:a. Initial Application of Blan-

ket Authorization.159 & 493 ...... 6,840 BGB Federal Communications Commission, Inter-


b. Initial Application for Indi-vidual Earth Station.

159 & 493 ...... 1,645 CYB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Modification of License(per system).

159 & 493 ...... 130 CGB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Assignment or Transfer(per system).

159 & 702 or159 & 704.

1,830 CZB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Developmental Station ..... 159 & 493 ...... 1,215 CWB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Renewal of License (persystem).



159 & Corres 130 CGB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

h. Amendment of Application(per system).

159 & Corres 130 CGB Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

i. Extension ConstructionPermit (per system).


8. Radio Determination SatelliteEarth Stations:

a. Initial Application of Blan-ket Authorization.

159 & 493 ...... 6,840 BGH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

b. Initial Application for Indi-vidual Earth Station.

159 & 493 ...... 1,645 CYH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

c. Modification of License(per system).

159 & 493 ...... 130 CGH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

d. Assignments or Transfer(per system).

159 & 702 or159 & 704.

1,830 CZH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

e. Developmental Station ..... 159 & 493 ...... 1,215 CWH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

f. Renewal of License (persystem).



159 & Corres 130 CGH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

h. Amendment of Application(per system).

159 & Corres 130 CGH Federal Communications Commission, Inter-national Bureau, Earth Stations, P.O. Box358160, Pittsburgh, PA 15251–5160.

i. Extension of ConstructionPermit (per system).


9. Space Stations (Geo-stationary):


222

47 CFR Ch. I (10–1–97 Edition)§ 1.1107



a. Application for Authority toConstruct.

159 & Corres 2,470 BBY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

b. Application for Authority toLaunch & Operate:

(1) Initial Application ..... 159 & Corres 85,045 BNY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

(2) Replacement Sat-ellite.

159 & Corres 85,045 BNY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

c. Assignment or Transfer(per satellite).

159 & 702 or159 & 704.

6,075 BFY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

d. Modification ...................... 159 & Corres 6,075 BFY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

e. Special Temporary Au-thority or Waiver of PriorConstruction Authorization(per request).

159 & Corres 610 CRY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

f. Amendment of Application 159 & Corres 1,215 CWY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

g. Extension of ConstructionPermit/Launch Authoriza-tion (per request).

159 & Corres 610 CRY Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

10. Space Stations (Low-EarthOrbit Satellite Systems):

a. Application for Authority toConstruct (per system oftechnically identical sat-ellites).

159 & Corres 7,290 CZW Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

b. Application for Authority toLaunch and Operate (persystem of technically iden-tical satellites).

159 & Corres 255,080 CLW Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

c. Assignment or Transfer(per request).

159 & 702 or159 & 704.

7,290 CZW Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

d. Modification (per request) 159 & Corres 18,220 CGW Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

e. Special Temporary Au-thority or Waiver of PriorConstruction Authorization(per request).

159 & Corres 1,830 CXW Federal Communications Commission, Inter-national Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

f. Amendment of Application(per request).

159 & Corres 3,645 CAW Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

g. Extension of ConstructionPermit/Launch Authoriza-tion (per request).

159 & Corres 1,830 CXW Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

11. Direct Broadcast Satellitesa. Authorization to Construct

or Major Modification (perrequest).

159 & Corres 2,470 MTD Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

b. Construction Permit andLaunch Authority (per re-quest).

159 & Corres 23,950 MXD Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

c. License to Operate (perrequest).

159 & Corres 690 MPD Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

d. Special Temporary Au-thorization (per request).

159 & Corres 125 MGD Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.

e. Hearing (New and major/minor change comparativeconstruction permit hear-ings; comparative licenserenewal hearing) (per re-quest).

159 & Corres 8,215 MWD Federal Communications Commission, Inter-national, Bureau, Satellites, P.O. Box 358210,Pittsburgh, PA 15251–5210.


223




12. International Broadcast Sta-tions:

a. New Station and FacilitiesChange Construction Per-mit (per application).

159 & 309 ...... 2,075 MSN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

b. New License (per applica-tion).

159 & 310 ...... 470 MNN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

c. License Renewal (per ap-plication).

159 & 311 ...... 120 MFN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

d. License Assignment orTransfer of Control (perstation license).

159 & 314 or315 or 316.

75 MCN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

e. Frequency Assignmentand Coordination (per fre-quency hour).

159 & Corres 45 MAN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

f. Special Temporary Author-ization (per request).

159 & Corres 125 MGN Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

13. Permit to Deliver Program toForeign Broadcast Stations(per application):

a. Commercial TelevisionStations.

159 & 308 ...... 70 MBT Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

b. Commercial AM or FMRadio Station.

159 & 308 ...... 70 MBR Federal Communications Commission, Inter-national, Bureau, Notifications, P.O. Box358175, Pittsburgh, PA 15251–5175.

14. Recognized Private Operat-ing Status (per application).

159 & Corres 745 CUG Federal Communications Commission, Inter-national, Bureau, Telecommunicational, P.O.Box 358115, Pittsburgh, PA 15251–5115.

[61 FR 41980, Aug. 13, 1996; 61 FR 44176, Aug. 28, 1996]

§ 1.1108 Attachment of charges.

The charges required to accompany arequest for the Commission regulatoryservices listed in §§ 1.1102 through 1.1106of this subpart will not be refundableto the applicant irrespective of theCommission’s disposition of that re-quest. Return or refund of charges willbe made in certain limited instances asset out at § 1.1112 of this subpart.

[52 FR 5289, Feb. 20, 1987. Redesignated andamended at 59 FR 30998, June 16, 1994. Redes-ignated at 60 FR 5326, Jan. 27, 1995]

§ 1.1109 Payment of charges.

(a) Electronic fee payments do notrequire the use of a FCC Form 159, Re-mittance Advice. An electronic feepayment must be made on or before theday the application and appropriateprocessing form are filed.

(b) The schedule of fees for applica-tions and other filings lists those appli-cations and other filings that must beaccompanied by a FCC Form 159, Re-mittance Advice. A separate FCC Form159 will not be required once the infor-

mation requirements of that form(payor information) is incorporatedinto the underlying application form.

(c) Applications and other filingsthat are not submitted in accordancewith these instructions will be re-turned as unprocessable.

NOTE: This requirement for the simulta-neous submission of fee forms with applica-tions or other filings does not apply to thepayment of fees for which the Commissionhas established a billing process. See § 1.1118of this subpart.

(d) Applications returned to appli-cants for additional information or cor-rections will not require an additionalfee when resubmitted, unless the addi-tional information results in an in-crease of the original fee amount.Those applications not requiring an ad-ditional fee should be resubmitted di-rectly to the Bureau/Office requestingthe additional information. The origi-nal fee will be forfeited if the addi-tional information or corrections arenot resubmitted to the appropriate Bu-reau/Office by the prescribed deadline.If an additional fee is required, the


224

47 CFR Ch. I (10–1–97 Edition)§ 1.1110

original fee will be returned and theapplication must be resubmitted with anew remittance in the amount of therequired fee to the Commission’slockbox bank. Applicants should at-tach a copy of the Commission requestfor additional or corrected informationto their resubmission.

(1) If the Bureau/Office staff discoverswithin 30 days after the resubmissionthat the required fee was not submit-ted, the application will be dismissed.

(2) If after 30 days the Bureau/Officestaff discovers the required fee has notbeen paid, the application will be re-tained and a 25 percent late fee will beassessed on the deficient amount evenif the Commission has completed itsaction on the application. Any Com-mission actions taken prior to timelypayment of these charges are contin-gent and subject to recession.

(e) Should the staff change the statusof an application, resulting in an in-crease in the fee due, the applicant willbe billed for the remainder under theconditions established by § 1.110(b) ofthe rules.

NOTE: Due to the statutory requirementsapplicable to tariff filings, the procedures forhandling tariff filings may vary from theprocedures set out in the rules.

[52 FR 5289, Feb. 20, 1987, as amended at 53FR 40888, Oct. 19, 1988; 55 FR 19171, May 8,1990. Redesignated and amended at 59 FR30998, June 16, 1994. Redesignated at 60 FR5326, Jan. 27, 1995]

§ 1.1110 Form of payment.(a) Fee payments should be in the

form of a check, bank draft, on moneyorder denominated in U.S. dollars anddrawn on a United States financial in-stitution and made payable to the Fed-eral Communications Commission orby a Visa or MasterCard credit card.No other credit card is acceptable. Feesfor applications and other filings paidby credit card will not be accepted un-less the credit card section of FCCForm 159 is completed in full. TheCommission discourages applicantsfrom submitting cash and will not beresponsible for cash sent through themail. Personal or corporate checksdated more than six months prior totheir submission to the Commission’slockbox bank and postdated checkswill not be accepted and will be re-

turned as deficient. Third party checks(i.e., checks with a third party asmaker or endorser) will not be accept-ed.

(1) Specific procedures for electronicpayment will be announced by PublicNotice. Applicants must submit a writ-ten request to the Commission for au-thorization to make electronic pay-ments of a fee for applications andother filings, as follows.

(2) No electronic payment of an appli-cation fee will be accepted unless thepayor has obtained the written author-ization of the Commission to submitapplication fees electronically. It is theresponsibility of the payor to insurethat any electronic payment is made inthe manner required by the Commis-sion. Failure to comply with the Com-mission’s procedures will result in thereturn of the application or other filingand the fee payment.

(3) Payments by wire transfer will beaccepted. Prior to making a paymentby wire, the payor shall obtain the ap-proval of the Managing Director or hisdesignee. A completed FCC Form 159shall be submitted to the Managing Di-rector or his designee prior to initiat-ing the wire transfer.

(b) Applicants are required to submitone payment instrument (check, bankdraft or money order) and FCC Form155 with each application or filing.Multiple payment instruments for asingle application or filing are not per-mitted. Except that a separate FeeForm (FCC Form 155) will not be re-quired once the information require-ments of that form (the Fee Code, feeamount, and total fee remitted) are in-corporated into the underlying applica-tion form.

(c) The Commission may accept mul-tiple money orders in payment of a feefor a single application where the feeexceeds the maximum amount for amoney order established by the issuingagency and the use of multiple moneyorders is the only practical methodavailable for fee payment.

(d) The Commission may require pay-ment of fees with a cashier’s checkupon notification to an applicant orfiler or prospective group of applicantsunder the conditions set forth below inparagraphs (d) (1) and (2) of this sec-tion.


225


(1) Payment by cashier’s check maybe required when a person or organiza-tion has made payment, on one or moreoccasions with a payment instrumenton which the Commission does not re-ceive final payment and such failure isnot excused by bank error.

(2) The Commission will notify theparty in writing that future paymentsmust be made by cashier’s check untilfurther notice. If, subsequent to suchnotice, payment is not made by cash-ier’s check, the party’s payment willnot be accepted and its application orother filing will be returned.

(e) All fees collected will be paid intothe general fund of the United StatesTreasury in accordance with Pub. L.99–272.

(f) The Commission will furnish astamped receipt of an application onlyupon request. In order to obtain astamped receipt for an application (orother filing), the application packagemust include a copy of the first page ofthe application, clearly marked‘‘copy’’, submitted expressly for thepurpose of serving as a receipt of thefiling. The copy should be the top docu-ment in the package. The copy will bedate-stamped immediately and pro-vided to the bearer of the submission,if hand delivered. For submissions bymail, the receipt copy will be providedthrough return mail if the filer has at-tached to the receipt copy a stampedself-addressed envelope of sufficientsize to contain the date stamped copyof the application. No remittance re-ceipt copies will be furnished.

[52 FR 5289, Feb. 20, 1987; 52 FR 38232, Oct. 15,1987, as amended at 53 FR 40888, Oct. 19, 1988;55 FR 19171, May 8, 1990. Redesignated at 59FR 30998, June 16, 1994, as amended at 59 FR30999, June 16, 1994. Redesignated at 60 FR5326, Jan. 27, 1995]

§ 1.1111 Filing locations.(a) Except as noted in this section ap-

plications and other filings, with at-tached fees and FCC Form 159, must besubmitted to the locations and address-es set forth in §§ 1.1102 through 1.1106.

(1) Tariff filings shall be filed withthe Secretary, Federal Communica-tions Commission, Washington, DC20554. On the same day, the filer shouldsubmit a copy of the cover letter, theFCC Form 159, and the appropriate fee

to the Commission’s lockbox bank atthe address established in § 1.1105.

(2) Bills for collection will be paid atthe Commission’s lockbox bank at theaddress for the appropriate service asestablished in §§ 1.1102 through 1.1106,as set forth on the bill sent by theCommission. Payments must be ac-companied by the bill and a FCC Form159 to ensure proper credit.

(3) Petitions for reconsideration orapplications for review of fee decisionspursuant to § 1.1117(b) of this subpartmust be accompanied by the requiredfee for the application or other filingbeing considered or reviewed.

(4) Applicants claiming an exemptionfrom a fee requirement for an applica-tion or other filing under 47 U.S.C.158(d)(1) or § 1.1113 of this subpart shallfile their applications in the appro-priate location as set forth in the rulesfor the service for which they are ap-plying, except that request for waiveraccompanied by a tentative fee pay-ment should be filed at the Commis-sion’s lockbox bank at the address forthe appropriate service set forth in§§ 1.1102 through 1.1105.

(b) All materials must be submittedas one package. The Commission willnot take responsibility for matchingfees, forms and applications submittedat different times or locations. Mate-rials submitted at other than the loca-tion and address required by § 0.401(b)and paragraph (a) of this section willbe returned to the applicant or filer.

[55 FR 19171, May 8, 1990. Redesignated at 59FR 30998, June 16, 1994, as amended at 59 FR30999, June 16, 1994. Redesignated at 60 FR5326, Jan. 27, 1995]

§ 1.1112 Conditionality of Commissionor staff authorizations.

(a) Any instrument of authorizationgranted by the Commission, or by itsstaff under delegated authority, will beconditioned upon final payment of theapplicable fee and timely payment ofbills issued by the Commission. As ap-plied to checks, bank drafts and moneyorders, final payment shall mean re-ceipt by the Treasury of funds clearedby the financial institution on whichthe check, bank draft or money orderis drawn.

(1) If, prior to a grant of an instru-ment of authorization, the Commission


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47 CFR Ch. I (10–1–97 Edition)§ 1.1113

is notified that final payment has notbeen made, the application or filingwill be:

(i) Dismissed and returned to the ap-plicant;

(ii) Shall lose its place in the process-ing line;

(iii) And will not be accorded nuncpro tunc treatment if resubmitted afterthe relevant filing deadline.

(2) If, subsequent to a grant of an in-strument of authorization, the Com-mission is notified that final paymenthas not been made, the Commissionwill:

(i) Automatically rescind that instru-ment of authorization for failure tomeet the condition imposed by thissubsection; and

(ii) Notify the grantee of this action;and

(iii) Not permit nunc pro tunc treat-ment for the resubmission of the appli-cation or filing if the relevant deadlinehas expired.

(3) Upon receipt of a notification ofrescision of the authorization, thegrantee will immediately cease oper-ations initiated pursuant to the au-thorization.

(b) In those instances where the Com-mission has granted a request for de-ferred payment of a fee or issued a billpayable at a future date, further proc-essing of the application or filing, orthe grant of authority, shall be condi-tioned upon final payment of the fee,plus other required payments for latepayments, by the date prescribed bythe deferral decision or bill. Failure tocomply with the terms of the deferraldecision or bill shall result in the auto-matic dismissal of the submission orrescision of the Commission authoriza-tion for failure to meet the conditionimposed by this subpart. The Commis-sion reserves the right to return pay-ments received after the date estab-lished on the bill and exercise the con-ditions attached to the application.The Commission shall:

(1) Notify the grantee that the au-thorization has been rescinded;

(i) Upon such notification, the grant-ee will immediately cease operationsinitiated pursuant to the authoriza-tion.

(2) Not permit nunc pro tunc treat-ment to applicants who attempt to

refile after the original deadline for theunderlying submission.

(c) Where the procedures outlined inparagraphs (a) and (b) of this sectionwould not provide a meaningful incen-tive to pay a fee that is due or wouldnot be a meaningful sanction for fail-ure to pay such a fee, in the alternativeto those procedures, the Commissionmay, in its discretion, withhold proc-essing and/or grant of any other appli-cation or filing made by a person or or-ganization who has failed to make fullpayment of any fee due under this sub-part.

(1) Before taking such action, thestaff will make a written request forthe fee, together with any penaltiesthat may be due under this subpart.Such request shall inform the appli-cant/filer that failure to pay will resultin the Commission’s withholding ac-tion on any other application or re-quest filed by the applicant. The staffshall also inform the applicant of theprocedures for seeking Commission re-view of the staff’s fee determination.

(2) If, after final determination thatthe fee is due, the applicant fails to paythe fee in a timely manner, the staffmay terminate the processing and/orwithhold a grant of any other applica-tion or filing pending or later filed bythe applicant, until the matter is re-solved.

[52 FR 5289, Feb. 20, 1987, as amended at 55FR 19171, May 8, 1990. Redesignated at 59 FR30998, June 16, 1994. Redesignated at 60 FR5326, Jan. 27, 1995]

§ 1.1113 Return or refund of charges.

(a) The full amount of any fee sub-mitted will be returned or refunded, asappropriate, in the following cir-cumstances:

(1) When no fee is required for the ap-plication or other filing.

(2) When the fee processing staff orbureau/office determines that an insuf-ficient fee has been submitted within 30calendar days of receipt of the applica-tion or filing and the application or fil-ing is dismissed.

(3) When the application is filed byan applicant who cannot fulfill a pre-scribed age requirement.

(4) When the Commission adopts newrules that nullify applications already


227


accepted for filing, or new law or trea-ty would render useless a grant orother positive disposition of the appli-cation.

(5) When a waiver is granted in ac-cordance with this subpart.

NOTE: Payments in excess of an applicationfee will be refunded only if the overpaymentis $8 or more.

(6) When an application for new ormodified facilities is not timely filed inaccordance with the filing window asestablished by the Commission in apublic notice specifying the earliestand latest dates for filing such applica-tions.

(b) Applicants in the Mass MediaServices designated for comparativehearings will be entitled to a grantwithout payment of the hearing fee ora refund of the hearing fee paid in thefollowing circumstances.

(1) The application is granted with-out being designated for hearing;

(2) The application is dismissed, vol-untarily or involuntarily, prior to des-ignation for hearing, in the order des-ignating the case for hearing, or forfailure to file a Notice of Appearance(see § 1.221 of this part);

(3) When only one applicant files aNotice of Appearance and pays thehearing fee, that single remaining ap-plicant will be entitled to a refund ofthe hearing fee upon request if it is im-mediately grantable or if all issuesspecified in the designation order andrequiring resolution can be deleted.See § 1.229 of this part.

(4) When a settlement agreementfiled with the presiding judge by theNotice of Appearance deadline (see§ 1.221 of this part) provides for the dis-missal of all but one of the applicants,and the single remaining applicant isimmediately grantable, no hearing feeis due. However, if the applicant can-not be granted without resolution of is-sues specified in the designation order,it must pay the hearing fee. That pay-ment will be refunded upon request ifall outstanding issues can be deleted.See § 1.229 of this part.

(5) However, under paragraphs, (c) (3)or (4) of this section, hearing fees willbe retained by the Commission in anycase requiring a decision on the meritsof an applicant’s post-designationamendment or evidentiary showing,

whether by Summary Decision or oth-erwise. See §§ 1.251 and 1.267 of thispart.

(c) Applicants in the Mass MediaServices for first-come, first-servedconstruction permits will be entitled toa refund of the fee, if, within fifteendays of the issuance of a Public Noticeindicating that there is a previouslyfiled pending application for the samevacant channel, such application noti-fies the Commission that they nolonger wish their application to remainon file behind the first applicant andany other applicants filed before his orher application, and the applicant spe-cifically requests a refund of the feepaid and dismissal of his or her appli-cant.

[52 FR 5289, Feb. 20, 1987, as amended at 53FR 40889, Oct. 19, 1988; 56 FR 795, Jan. 9, 1991;56 FR 56602, Nov. 6, 1991. Redesignated at 59FR 30998, June 16, 1994. Redesignated at 60FR 5326, Jan. 27, 1995]

§ 1.1114 General exemptions tocharges.

No fee established in §§ 1.1102 through1.1106 of this subpart, unless otherwisequalified herein, shall be required for:

(a) Applications filed for the sole pur-pose of modifying an existing author-ization (or a pending application forauthorization) in order to comply withnew or additional requirements of theCommission’s rules or the rules of an-other Federal agency. However, if theapplicant also requests an additionalmodification, renewal, or other action,the appropriate fee for such additionalrequest must accompany the applica-tion. Cases in which a fee will be paidinclude applications by FM and TV li-censees or permittees seeking to up-grade channel after a rulemaking.

(b) Applicants in the Special Emer-gency Radio and Public Safety RadioServices that are government entitiesor nonprofit entities. Applicants claim-ing nonprofit status must include acurrent Internal Revenue Service De-termination Letter documenting thisnonprofit status.

(c) Applicants, permittees or licens-ees of noncommercial educationalbroadcast stations in the FM or TVservices, as well as AM applicants, per-mittees or licensees who certify that


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47 CFR Ch. I (10–1–97 Edition)§ 1.1115

the station will operate or does operatein accordance with § 73.503 of the rules.

(d) Applicants, permittees, or licens-ees qualifying under paragraph (c) ofthis section requesting Commission au-thorization in any other mass mediaradio service (except the internationalbroadcast (HF) service) private radioservice, or common carrier radio com-munications service otherwise requir-ing a fee, if the radio service is used inconjunction with the noncommercialeducational broadcast station on anoncommercial educational basis.

(e) Other applicants, permittees, orlicensees providing, or proposing toprovide, a noncommercial educationalor instructional service, but not quali-fying under paragraph (c) of this sec-tion, may be exempt from filing fees,or be entitled to a refund, in the fol-lowing circumstances.

(1) An applicant is exempt from filingfees if it is an organization that, likethe Public Broadcasting Service or Na-tional Public Radio, receives fundingdirectly or indirectly through the Pub-lic Broadcasting Fund, 47 U.S.C. 396(k),distributed by the Corporation for Pub-lic Broadcasting, where the authoriza-tion requested will be used in conjunc-tion with the organization on a non-commercial educational basis;

(2) An applicant for a translator orlow power television station that pro-poses a noncommercial educationalservice will be entitled to a refund offees paid for the filing of the applica-tion when, after grant, it providesproof that it has received funding forthe construction of the station throughthe National Telecommunications andInformation Administration (NTIA) orother showings as required by the Com-mission.

(3) An applicant that has qualified fora fee refund under paragraph (e)(2) ofthis section and continues to operateas a noncommercial education stationis exempt from fees for broadcast aux-iliary stations (subparts D, E, and F ofpart 74) or stations in the private radioor common carrier services where suchauthorization is to be used in conjunc-tion with the noncommercial edu-cational translator or low power sta-tion.

(4) An applicant that is the licenseeof an instructional television fixed sta-

tion (§ 74.901 et seq.) is exempt from fil-ing fees where the authorization re-quested will be used by the applicant inconjunction with the provision of theinstructional service.

(f) Applicants, permittees or licens-ees who qualify as governmental enti-ties. For purposes of this exemption agovernmental entity is defined as anystate, possession, city, county, town,village, municipal corporation or simi-lar political organization or subpartthereof controlled by publicly electedor duly appointed public officials exer-cising sovereign direction and controlover their respective communities orprograms.

(g) Applications for Restricted Radio-telephone Operator Permits where theapplicant intends to use the permitsolely in conjunction with duties per-formed at radio facilities qualifying forfee exemption under paragraphs (c),(d), or (e) of this section.

NOTE: Applicants claiming exemptionsunder the terms of this subpart must certifyas to their eligibility for the exemptionthrough a cover letter accompanying the ap-plication or filing. This certification is notrequired if the applicable FCC Form requeststhe information justifying the exemption.

[52 FR 5289, Feb. 20, 1987, as amended at 53FR 40889, Oct. 19, 1988; 55 FR 19172, May 8,1990; 56 FR 56602, Nov. 6, 1991. Redesignatedand amended at 59 FR 30998, June 16, 1994.Redesignated at 60 FR 5326, Jan. 27, 1995]

§ 1.1115 Adjustments to charges.

(a) The Schedule of Charges estab-lished by sections 1.1102 through 1.1106of this subpart shall be adjusted by theCommission on October 1, 1993 andevery two years thereafter.

(1) The fees will be adjusted by theCommission to reflect the percentagechange in the Consumer Price Index forall Urban Consumers (CPI–U) from thedate of enactment of the authorizinglegislation (December 19, 1989) to thedate of adjustment, and every twoyears thereafter, to reflect the percent-age change in the CPI–U in the periodbetween the enactment date and theadjustment date.

(2) Adjustments based upon the per-centage change in the CPI–U will be ap-plied against the base fees as enactedor amended by Congress. Adjustments


229


will not be calculated by using the pre-viously adjusted fee as the base.

(b) Increases or decreases in chargeswill apply to all categories of fees cov-ered by this subpart. Individual feeswill not be adjusted until the increaseor decrease, as determined by the netchange in the CPI–U since the date ofenactment of the authorizing legisla-tion, amounts to at least $5 in the caseof fees under $100, or 5% or more in thecase of fees of $100 or greater. All feeswill be adjusted upward to the next $5increment.

(c) Adjustments to fees made pursu-ant to these procedures will not be sub-ject to notice and commentrulemakings, nor will these decisionsbe subject to petitions for reconsider-ation under § 1.429 of the rules. Re-quests for modifications will be limitedto correction of arithmetical errorsmade during an adjustment cycle.


§ 1.1116 Penalty for late or insufficientpayments.

(a) Filings subject to fees and accom-panied by defective fee submissionswill be dismissed under § 1.1108(b) ofthis subpart where the defect is discov-ered by the Commission’s staff within30 calendar days from the receipt of theapplication or filing by the Commis-sion.

(1) A defective fee may be correctedby resubmitting the application orother filing, together with the entirecorrect fee.

(2) For purposes of determiningwhether the filing is timely, the date ofresubmission with the correct fee willbe considered the date of filing. How-ever, in cases where the fee paymentfails due to error of the applicant’sbank, as evidenced by an affidavit of anofficer of the bank, the date of theoriginal submission will be consideredthe date of filing.

(b) Applications or filings accom-panied by insufficient fees or no feeswhich are inadvertently forwarded toCommission staff for substantive re-view will be billed for the amount dueif the discrepancy is not discovered

until after 30 calendar days from thereceipt of the application or filing atthe Commission. A penalty charge of 25percent of the amount due will beadded to each bill. Any Commission ac-tions taken prior to timely payment ofthis bill are contingent and subject torescission.

(c) Applicants to whom a deferral ofpayment is granted under the terms ofthis subsection will be billed for theamount due plus a charge equalling 25percent of the amount due. Any Com-mission actions taken prior to timelypayment of these charges are contin-gent and subject to rescission.


§ 1.1117 Petitions and applications forreview.

(a) The fees established by this sub-part may be waived or deferred in spe-cific instances where good cause isshown and where waiver or deferral ofthe fee would promote the public inter-est.

(b) Requests for waivers or deferralswill only be considered when receivedfrom applicants acting in respect totheir own applications. Requests forwaivers or deferrals of entire classes ofservices will not be considered.

(c) Petitions for waivers, deferrals,fee determinations, reconsiderationand applications for review will beacted upon by the Managing Director.Petitions and applications for reviewsubmitted with a fee must be submit-ted to the Commission’s lockbox bankat the address for the appropriate serv-ice set forth in §§ 1.1102 through 1.1105.If no fee payment is required, and thematter is within the scope of the feerules in this subpart, the petition orapplication for review should be filedwith the Commission’s Secretary andclearly marked to the attention of theManaging Director. Requests for defer-ral of a fee payment for financial hard-ship must be accompanied by support-ing documentation.

(d) Deferrals of fees will be grantedfor an established period of time not toexceed six months.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1118

(e) Applicants seeking waivers mustsubmit the request for waiver with theapplication or filing, required fee andFCC Form 155. Waiver requests that donot include these materials will be dis-missed in accordance with § 1.1108 ofthis subpart. Submitted fees will be re-turned if a waiver is granted. The Com-mission will not be responsible fordelays in acting upon these requests.

[52 FR 5289, Feb. 20, 1987, as amended at 55FR 19172, May 8, 1990; 55 FR 38065, Sept. 17,1990. Redesignated and amended at 59 FR30998, June 16, 1994, as further amended at 59FR 30999, June 16, 1994. Redesignated at 60FR 5326, Jan. 27, 1995]

§ 1.1118 Error claims.(a) Applicants who wish to challenge

a staff determination of an insufficientfee may do so in writing. These claimsshould be addressed to the same loca-tion as the original submission marked‘‘Attention Fee Supervisor’’.

(b) Actions taken by the Fee Sectionstaff are subject to the reconsiderationand review provisions of §§ 1.106 and1.115 of this part, EXCEPT THAT re-consideration and/or review will onlybe available where the applicant hasmade the full and proper payment ofthe underlying fee as required by thissubpart.

(1) Petitions for reconsideration and/or applications for review submitted byapplicants that have not made the fulland proper fee payment will be dis-missed; and

(2) If the fee payment should failwhile the Commission is consideringthe matter, the petition for reconsider-ation or application for review will bedismissed.

[52 FR 5289, Feb. 20, 1987, as amended at 53FR 40889, Oct. 19, 1988. Redesignated at 59 FR30998, June 16, 1994. Redesignated at 60 FR5326, Jan. 27, 1995]

§ 1.1119 Billing procedures.(a) The fees required for the Inter-

national Telecommunications Settle-ments (§ 1.1103(19) of this subpart) andCommon Carrier Field Audits(§ 1.1105(21) (a) and (b) of this subpart)should not be paid with the filing orsubmission of the request. The fees re-quired for requests for Special Tem-porary Authority (see generally§§ 1.1102, 1.1104, 1.1105 of this subpart)that the applicant believes is of an ur-gent or emergency nature and are fileddirectly with the appropriate Bureauor Office should not be paid with thefiling of the request with that Bureauor Office.

(b) In these cases, the appropriate feewill be determined by the Commissionand the filer will be billed for that fee.The bill will set forth the amount to bepaid, the date on which payment isdue, and the address to which the pay-ment should be submitted. See also§ 1.1111 of this subpart.

[55 FR 19172, May 8, 1990, as amended at 58FR 68541, Dec. 28, 1993. Redesignated andamended at 59 FR 30998, June 16, 1994. Redes-ignated at 60 FR 5326, Jan. 27, 1995]

§ 1.1151 Authority to prescribe and col-lect regulatory fees.

Authority to impose and collect reg-ulatory fees is contained in title VI,section 6002(a) of the Omnibus BudgetReconciliation Act of 1993 (Pub. L. 103–66, 107 Stat. 397), enacting section 9 ofthe Communications Act, 47 U.S.C. 159,which directs the Commission to pre-scribe and collect annual regulatoryfees from designated regulatees inorder to recover the costs of certain ofits regulatory activities in the privateradio, mass media, common carrier,and cable television services.

[59 FR 30999, June 16,1994]

§ 1.1152 Schedule of annual regulatory fees and filing locations for wireless radioservices.

Exclusive use services (per license) Feeamount Address

1. Land Mobile (Above 470 MHz, Base Station andSMRS)(47 CFR Part 90):

(a) 800 MHz New, Renewal, Reinstatement (FCC 600) $10.00 FCC, 800 MHz, P.O. Box 358235, Pittsburgh, PA15251–5235

(b) 900 MHz New, Renewal, Reinstatement (FCC 600) 10.00 FCC, 900 MHz, P.O. Box 358240, Pittsburgh, PA15251–5240


231


Exclusive use services (per license) Feeamount Address

(c) 470–512,800,900, 220 MHz, 220 MHz NationwideRenewal (FCC 574R, FCC 405A).

10.00 FCC, 470–512, P.O. Box 358245, Pittsburgh, PA15251–5245

(d) Correspondence Blanket Renewal (470–512,800,900,220 MHz) (Remittance Advice, Cor-respondence).

10.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA15251–5305

(e) 220 MHz New, Renewal, Reinstatement (FCC 600) 10.00 FCC, 220 MHz, P.O. Box 358360, Pittsburgh, PA15251–5360

(f) 470–512 MHz New, Renewal, Reinstatement (FCC600).

10.00 FCC, 470–512, P.O. Box 358810, Pittsburgh, PA15251–5810

(g) 220 MHz Nationwide New, Renewal, Reinstate-ment (FCC 600).

10.00 FCC, Nationwide, P.O. Box 358820, Pittsburgh, PA15251–5820

2. Microwave (47 CFR Part 101):(a) Microwave New, Renewal, Reinstatement (FCC

415).10.00 FCC, Microwave, P.O. Box 358250, Pittsburgh, PA

15251–5250(b) Microwave Renewal (FCC 402R) ............................ 10.00 FCC, Microwave, P.O. Box 358255, Pittsburgh, PA

15251–5255(c) Correspondence Blanket Renewal (Microwave)

(Remittance Advice, Correspondence).10.00 FCC, Corres., P.O. Box 358305, Pittsburgh, PA

15251–53053. Shared Use Services:

(a) Land Transportation (LT) New, Renewal, Rein-statement (FCC 600).

5.00 FCC, Land Trans., P.O. Box 358215, Pittsburgh, PA15251–5215

(b) Business (Bus.) New, Renewal, Reinstatement(FCC 600).

5.00 FCC, Business, P.O. Box 358220, Pittsburgh, PA15251–5220

(c) Other Industrial (OI) New, Renewal, Reinstatement(FCC 600).

5.00 FCC, Other Indus., P.O. Box 358225, Pittsburgh, PA15251–5225

(d) General Mobile Radio Service (GMRS) New, Re-newal, Reinstatement (FCC 574).

5.00 FCC, GMRS, P.O. Box 358230, Pittsburgh, PA15251–5230

(e) Business, Other Industrial, Land Transportation,GMRS Renewal (FCC 574R, FCC 405A).

5.00 FCC, Bus.,OI,LT,GMRS, P.O. Box 358245, Pitts-burgh, PA 15251–5245

(f) Ground New, Renewal, Reinstatement (FCC 406) .. 5.00 FCC, Ground, P.O. Box 358260, Pittsburgh, PA15251–5260

(g) Coast New, Renewal, Reinstatement (FCC 503) .... 5.00 FCC, Coast, P.O. Box 358265, Pittsburgh, PA15251–5265

(h) Ground Renewal (FCC 452R) .................................. 5.00 FCC, Ground, P.O. Box 358270, Pittsburgh, PA15251–5270

(i) Coast Renewal (FCC 452R) ..................................... 5.00 FCC, Coast, P.O. Box 358270, Pittsburgh, PA15251–5270

(j) Ship New, Renewal, Reinstatement (FCC 506) ....... 5.00 FCC, Ship, P.O. Box 358275, Pittsburgh, PA 15251–5275

(k) Aircraft New, Renewal, Reinstatement (FCC 404) .. 5.00 FCC, Aircraft, P.O. Box 358280, Pittsburgh, PA15251–5280

(l) Ship Renewal (FCC 405B) ........................................ 5.00 FCC, Ship, P.O. Box 358290, Pittsburgh, PA 15251–5290

(m) Aircraft Renewal (FCC 405B) ................................. 5.00 FCC, Aircraft, P.O. Box 358290, Pittsburgh, PA15251–5290

(n) Correspondence Blanket Renewal(Bus.,OI,LT,GMRS) (Remittance Advice, Cor-respondence).


(o) Correspondence Blanket Renewal (Ground) (Re-mittance Advice, Correspondence).


(p) Correspondence Blanket Renewal (Coast) (Remit-tance Advice, Correspondence).


(q) Correspondence Blanket Renewal (Aircraft) (Remit-tance Advice, Correspondence).


(r) Correspondence Blanket Renewal (Ship) (Remit-tance Advice, Correspondence).


4. Amateur Vanity Call Signs ................................................ 5.00 FCC, Amateur Vanity, P.O. Box 358924, Pittsburgh,PA 15251–5924

5. CMRS Mobile Services (per unit) ..................................... .24 FCC, Cellular, P.O. Box 358835, Pittsburgh, PA15251–5835

6. CMRS Messaging Services (per unit) .............................. .03 FCC, Messaging, P.O. Box 358835, Pittsburgh, PA15251–5835

[62 FR 37422, July 11, 1997]


232

47 CFR Ch. I (10–1–97 Edition)§ 1.1153

§ 1.1153 Schedule of annual regulatory fees and filing locations for mass mediaservices.

Feeamount Address

I. Radio [AM and FM] (47 CFR Part 73:1. Group 1 ......................................................................2. Group 2 ......................................................................

$2,0001,800

FCC, Radio, P.O. Box 358835, Pittsburgh, PA,15251–5835

3. Group 3 ...................................................................... 1,6004. Group 4 ...................................................................... 1,4005. Group 5 ...................................................................... 1,2006. Group 6 ...................................................................... 1,0007. Group 7 ...................................................................... 8008. Group 8 ...................................................................... 6009. Group 9 ...................................................................... 40010. Group 10 .................................................................. 20011. AM Construction Permits ......................................... 19512. FM Construction Permits ......................................... 950

II. TV (47 CFR Part 73) VHF Commercial:1. Markets 1 thru 10 ......................................................2. Markets 11 thru 25 ....................................................

35,02528,450

FCC, TV Branch, P.O. Box 358835, Pittsburgh, PA15251–5835

3. Markets 26 thru 50 .................................................... 18,6004. Markets 51 thru 100 .................................................. 9,8505. Remaining Markets .................................................... 2,7256. Construction Permits ................................................. 4,800

III. UHF Commercial:.1. Markets 1 thru 10 ......................................................2. Markets 11 thru 25 ....................................................

16,85013,475

FCC, UHF Commercial, P.O. Box 358835, Pitts-burgh, PA 15251–5835

3. Markets 26 thru 50 .................................................... 8,7504. Markets 51 thru 100 .................................................. 4,7255. Remaining Markets .................................................... 1,3506. Construction Permits ................................................. 2,975

IV. Satellite UHF/VHF Commercial:1. All Markets .................................................................2. Construction Permits .................................................

950345

FCC Satellite TV, P.O. Box 358835, Pittsburgh, PA15251–5835

V. Low Power TV, TV/FM Translator,& TV/FM Booster (47CFR Part 74).

220 FCC, Low Power, P.O. Box 358835, Pittsburgh, PA15251–5835

VI. Broadcast Auxiliary .......................................................... 25 FCC, Auxiliary, P.O. Box 358835, Pittsburgh, PA15251–5835

VII. Multipoint Distribution ..................................................... 215 FCC, Multipoint, P.O. Box 358835, Pittsburgh, PA15251–5835

[62 FR 37423, July 11, 1997]

§ 1.1154 Schedule of annual regulatory charges and filing locations for commoncarrier services.

Fee amount Address

I. Radio Facilities:1. Microwave (Domestic Public Fixed) ........................ $10 FCC, Common Carrier, P.O. Box 358680, Pittsburgh,

PA 15251–5680II. Carriers:

1. Interstate Telephone Service Providers, (per dollarcontributed to TRS Fund).

.000116 FCC, Carriers, P.O. Box 358835, Pittsburgh, PA

[62 FR 37423, July 11, 1997]

§ 1.1155 Schedule of regulatory fees and filing locations for cable television serv-ices.

Feeamount Address

1. Cable Antenna Relay Service ...........................................2. Cable TV System (per subscriber) ...................................

$65.54

FCC, Cable, P.O. Box 358835, Pittsburgh, PA15251–5835

[62 FR 37423, July 11, 1997]


233


§ 1.1156 Schedule of regulatory fees and filing locations for international services.

Fee amount Address

I. Radio Facilities:1. International (HF) Broadcast ................................... $390 FCC, International, P.O. Box 358835, Pittsburgh, PA

15251–58352. International Public Fixed ........................................ 310 FCC, International, P.O. Box 358835, Pittsburgh, PA

15251–5835II. Space Stations (Geosynchronous Orbit) ........................ 97,975 FCC, Space Stations, P.O. Box 358835, Pittsburgh,

PA 15251–5835III. Low Earth Orbit Satellite ................................................ 135,675 FCC, Space Stations, P.O. Box 358835, Pittsburgh,

PA 15251–5835IV. Earth Stations; Transmit/Receive and Transmit Only

(per authorization or registration).515 FCC, Earth Station, P.O. Box 358835, Pittsburgh, PA

15251–5835V. Carriers:

1. International Bearer Circuits (per active 64KB cir-cuit or equivalent).

5.00 FCC, International, P.O. Box 358835, Pittsburgh, PA15251–5835

[62 FR 37423, July 11, 1997]

§ 1.1157 Payment of charges for regu-latory fees.

Payment of a regulatory fee, requiredunder §§ 1.1152 through 1.1156, shall befiled in the following manner:

(a) Payments of regulatory fees shallbe submitted with the filing of any ap-plication for a new, renewal or rein-statement of a license or other author-ization in the wireless radio services.(1) Any regulatory fee submitted withan application in the wireless radioservices shall include an advance pay-ment of the total annual regulatory feepayment due for the entire term of thelicense or other authorization. Theamount of the regulatory fee paymentdue with any application in the wire-less radio service shall be the multipleof the number of years in the entireterm of the requested license or otherauthorization multiplied by the annualfee payment required in the Scheduleof Regulatory Fees, effective at thetime the application is filed. Except asset forth in § 1.1160, advance paymentsshall be final and shall not be read-justed during the term of the license orauthorization, notwithstanding anysubsequent increase or decrease in theannual amount of a fee required underthe Schedule of Regulatory Fees.

(2) Failure to file the appropriateregulatory fee with an application inthe wireless radio service will result inthe return of the accompanying appli-cation, including an application, forwhich the Commission has assigned aspecific filing deadline.

(b)(1) Payments of standard regu-latory fees, applicable to mass media,

common carrier, cable and inter-national services, shall be filed in fullon an annual basis at a time announcedby the Commission or the ManagingDirector, pursuant to delegated author-ity, and published in the FEDERAL REG-ISTER.

(2) Large regulatory fees, as annuallydefined by the Commission, may besubmitted in installment payments orin a single payment on a date certainas announced by the Commission orthe Managing Director, pursuant todelegated authority, and published inthe FEDERAL REGISTER.

(c) Standard regulatory fee pay-ments, as well as any installment pay-ment, must be filed with a FCC Form159, FCC Remittance Advice, and a FCCForm 159C, Remittance Advice Con-tinuation Sheet, if additional space isneeded. Failure to submit a copy ofFCC Form 159 with a standard regu-latory fee payment, or an installmentpayment, will result in the return ofthe submission and a 25 percent pen-alty if the payment is resubmittedafter the date the Commission estab-lishes for the payment of standard reg-ulatory fees and for any installmentpayment.

(1) Any late filed regulatory fee pay-ment will be subject to the penaltiesset forth in section 1.1164.

(2) If one or more installment pay-ments are untimely submitted or notsubmitted at all, the eligibility of thesubject regulatee to submit install-ment payments may be cancelled.

[60 FR 34031, June 29, 1995]


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47 CFR Ch. I (10–1–97 Edition)§ 1.1158

§ 1.1158 Form of payment for regu-latory.

Any regulatory fee payment must besubmitted in the form of a check, bankdraft or money order denominated inU.S. dollars and drawn on a UnitedStates financial institution and madepayable to the Federal Communica-tions Commission or by Visa orMastercard credit cards only. The Com-mission discourages applicants fromsubmitting cash payments and will notbe responsible for cash sent throughthe mail. Personal or corporate checksdated more than six months prior totheir submission to the Commission’slockbox bank and postdated checkswill not be accepted and will be re-turned as deficient.

(a) Upon authorization from theCommission following a written re-quest, electronic fund transfer (EFT)payment of a regulatory fee may bemade as follows:

(1)(i) The payor may instruct itsbank to make payment of the regu-latory fee directly to the Commission’slockbox bank, or

(ii) The payor may authorize theCommission to direct its lockbox bankto withdraw funds directly from thepayor’s bank account.

(2) No EFT payment of a regulatoryfee will be accepted unless the payorhas obtained the written authorizationof the Commission to submit regu-latory fees electronically. Proceduresfor electronic payment of regulatoryfees will be announced by Public No-tice. It is the responsibility of thepayor to insure that any electronicpayment is made in the manner re-quired by the Commission. Failure tocomply with the Commission’s proce-dures for electronic fee payment willresult in the return of the fee payment,and a penalty fee of 25 percent if thesubsequent refiling of the fee paymentis late. Failure to comply will also sub-ject the payor to the penalties set forthin § 1.1164.

(b) Multiple payment instruments fora single regulatory fee are not per-mitted, except that the Commissionwill accept multiple money orders inpayment of any fee where the fee ex-ceeds the maximum amount for amoney order established by the issuingentity and the use of multiple money

orders is the only practicable meansavailable for payment.

(c) Payment of multiple standardregulatory fees (including an install-ment payment) due on the same date,may be made with a single payment in-strument and cover mass media, com-mon carrier, international, and cableservice fee payments. Each regulatee issolely responsible for accurately ac-counting for and listing each license orauthorization and the number of sub-scribers, access lines, or other relevantunits on the accompanying FCC Form159 and, if needed, FCC Form 159C andfor making full payment for every reg-ulatory fee listed on the accompanyingform. Any omission or payment defi-ciency of a regulatory fee will result ina 25 percent penalty of the amount dueand unpaid.

(d) Any regulatory fee payment (in-cluding a regulatory fee payment sub-mitted with an application in the wire-less radio service) made by credit cardor money order must be submittedwith a completed FCC Form 159. Fail-ure to accurately enter the credit cardnumber and date of expiration and thepayor’s signature in the appropriateblocks on FCC Form 159 will result inrejection of the credit card payment.

[60 FR 34031, June 29, 1995]

§ 1.1159 Filing locations and receiptsfor regulatory fees.

(a) Regulatory fee payments must bedirected to the location and address setforth in §§ 1.1152 through 1.1156 for thespecific category of fee involved. Anyregulatory fee required to be submittedwith an application must be filed as apart of the application package accom-panying the application. The Commis-sion will not take responsibility formatching fees, forms and applicationssubmitted at different times or loca-tions.

(b) Petitions for reconsideration orapplications for review of fee decisionssubmitted with a standard regulatoryfee payment pursuant to § § 1.1152through 1.1156 of the rules are to befiled with the Commission’s lockboxbank in the manner set forth in §§ 1.1152through 1.1156 for payment of the fee


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subject to the petition for reconsider-ation or the application for review. Pe-titions for reconsideration and applica-tions for review that are submittedwith no accompanying payment shouldbe filed with the Secretary, FederalCommunications Commission, Atten-tion: Managing Director, Washington,D.C. 20554.

(c) Any request for exemption from aregulatory fee shall be filed with theSecretary, Federal CommunicationsCommission, Attention: Managing Di-rector, Washington, D.C. 20554, exceptthat requests for exemption accom-panied by a tentative fee payment shallbe filed at the lockbox set forth for theappropriate service in § § 1.1152 through1.1156.

(d) The Commission will furnish a re-ceipt for a regulatory fee payment onlyupon request. In order to obtain a re-ceipt for a regulatory fee payment, thepackage must include an extra copy ofthe Form FCC 159 or, if a Form 159 isnot required with the payment, a copyof the first page of the application orother filing submitted with the regu-latory fee payment, submitted ex-pressly for the purpose of serving as areceipt for the regulatory fee paymentand application fee payment, if re-quired. The document should be clearlymarked ‘‘copy’’ and should be the topdocument in the package. The copywill be date stamped immediately andprovided to the bearer of the submis-sion, if hand delivered. For submissionsby mail, the receipt copy will be pro-vided through return mail if the filerhas attached to the receipt copy astamped self-addressed envelope of suf-ficient size to contain the receipt docu-ment.

[60 FR 34032, June 29, 1995]

§ 1.1160 Refunds of regulatory fees.

(a) Regulatory fees will be refunded,upon request, only in the following in-stances:

(1) When no regualtory fee is requiredor an excessive fee has been paid. Inthe case of an overpayment, the refundamount will be based on the appli-cants’, permittees’, or licensees’ entiresubmission. All refunds will be issuedto the payor named in the appropriateblock of the FCC Form 159.

(2) In the case of advance payment ofregulatory fees, subject to § 1.1152, a re-fund will be issued based on unexpiredfull years:

(i) When the Commission adopts newrules that nullify a license or other au-thorization, or a new law or treaty ren-ders a license or other authorizationuseless;

(ii) When a licensee in the wirelessradio service surrenders the license orother authorization subject to a feepayment to the Commission; or

(iii) When the Commission declinesto grant an application submitted witha regulatory fee payment.

(3) When a waiver is granted in ac-cordance with § 1.1166.

(b) No pro-rata refund of an annualfee will be issued.

(c) No refunds will be issued based onunexpired partial years.

(d) No refunds will be processed with-out a written request from the appli-cant, permittee, licensee or agent.

[60 FR 34032, June 29, 1995]

§ 1.1161 Conditional license grants anddelegated authorizations.

(a) Grant of any application or an in-strument of authorization or other fil-ing, for which a regulatory fee is re-quired to accompany the application orfiling, will be conditioned upon finalpayment of the regulatory fee. Finalpayment shall mean receipt by the U.S.Treasury of funds cleared by the finan-cial institution on which the check,bank draft, money order, credit card,wire or electronic payment is drawn.

(1) If, prior to a grant of an instru-ment of authorization, the Commissionis notified that final payment of theregulatory fee has not been made, theapplication or filing:

(i) Will be dismissed and returned;(ii) Shall lose its place in the process-

ing line; and(iii) Will not be treated as timely

filed if resubmitted after the relevantfiling deadline.

(2) If, subsequent to a grant of an in-strument of authorization or other fil-ing, the Commission is notified thatfinal payment has not been made, theCommission will:

(i) Automatically rescind that instru-ment of authorization for failure to


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meet the condition imposed by thissubsection;

(ii) Notify the grantee of this action;and

(iii) Treat as late filed any applica-tion resubmitted after the originaldeadline for filing the application.

(3) Upon receipt of a notification ofrescission of the authorization, thegrantee will immediately cease oper-ations initiated pursuant to the au-thorization.

(b) In those instances where the Com-mission has granted a request for de-ferred payment of a regulatory fee, fur-ther processing of the application orfiling or the grant of authority shall beconditioned upon final payment of theregulatory fee and any required pen-alties for late payment prescribed bythe deferral decision. Failure to com-ply with the terms of the deferral deci-sion shall result in the automatic dis-missal of the submission or rescissionof the Commission authorization. Fur-ther, the Commission shall:

(1) Notify the grantee that the au-thorization has been rescinded. Uponsuch notification, the grantee will im-mediately cease operations initiatedpursuant to the authorization; and

(2) Treat as late filed any applicationresubmitted after the original deadlinefor filing the application.

(c) Where the procedures described inparagraphs (a) and (b) of this sectionwould not provide a meaningful incen-tive to pay a regulatory fee that is dueor would not be a meaningful sanctionfor failure to pay such a fee, the Com-mission may, in its discretion, whetherthe regulatory fee is required to bepaid with an application for an instru-ment of authorization or otherwise,withhold processing and/or grant ofany application or filing made by aperson or organization who has failedto make full payment of any regu-latory fee due.

(1) Before taking such action, thestaff will make a written request forthe fee, together with any penaltiesthat may be rendered under this sub-part. Such request shall inform theregulatee that failure to pay may re-sult in the Commission withholding ac-tion on any application or request filedby the applicant. The staff shall alsoinform the regulatee of the procedures

for seeking Commission review of thestaff’s fee determination.

(2) If, after final determination thatthe fee is due, payment is not made ina timely manner, the staff may termi-nate processing and/or withhold anygrant or petition requested by the per-son or organization subject to the feepayment requirement, until the matteris resolved.

[60 FR 34032, June 29, 1995]

§ 1.1162 General exemptions from reg-ulatory fees.

No regulatory fee established in§§ 1.1152 through 1.1156, unless other-wise qualified herein, shall be requiredfor: (a) Applicants, permittees or li-censees in the Amateur Radio Service,except that any person requesting avanity call-sign shall be subject to thepayment of a regulatory fee, as pre-scribed in § 1.1152.

(b) Applicants, permittees, or licens-ees who qualify as government entities.For purposes of this exemption, a gov-ernment entity is defined as any state,possession, city, county, town, village,municipal corporation, or similar po-litical organization or subpart thereofcontrolled by publicly elected or dulyappointed public officials exercisingsovereign direction and control overtheir respective communities or pro-grams.

(c) Applicants and permittees whoqualify as nonprofit entities. For pur-poses of this exemption, a nonprofit en-tity is defined as: an organization dulyqualified as a nonprofit, tax exempt en-tity under section 501 of the InternalRevenue Code, 26 U.S.C. 501; or an en-tity with current certification as anonprofit corporation or other non-profit entity by state or other govern-mental authority.

(d) Applicants, permittees or licens-ees in the Special Emergency Radioand Public Safety Radio services.

(e) Applicants, permittees or licens-ees of noncommercial educationalbroadcast stations in the FM or TVservices, as well as AM applicants, per-mittees or licensees operating in ac-cordance with § 73.503 of this chapter.

(f) Applicants, permittees, or licens-ees qualifying under paragraph (e) ofthis section requesting Commission au-thorization in any other mass media


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radio service (except the internationalbroadcast (HF) service), wireless radioservice, common carrier radio service,or international radio service requiringpayment of a regulatory fee, if theservice is used in conjunction withtheir noncommercial educationalbroadcast station on a noncommercialeducational basis.

(g) Other applicants, permittees or li-censees providing, or proposing to pro-vide, a noncommercial educational orinstructional service, but not qualify-ing under paragraph (e) of this section,may be exempt from regulatory fees, orbe entitled to a refund, in the followingcircumstances:

(1) The applicant, permittee or li-censee is an organization that, like thePublic Broadcasting Service or Na-tional Public Radio, receives fundingdirectly or indirectly through the Pub-lic Broadcasting Fund, 47 U.S.C. 396(k),distributed by the Corporation for Pub-lic Broadcasting, where the authoriza-tion requested will be used in conjunc-tion with the organization on a non-commercial educational basis;

(2) An applicant, permittee or li-censee of a translator or low power tel-evision station operating or proposingto operate a noncommercial edu-cational service who, after grant, pro-vides proof that it has received fundingfor the construction of the stationthrough the National Telecommuni-cations and Information Administra-tion (NTIA) or other showings as re-quired by the Commission; or

(3) An applicant, permittee, or li-censee provided a fee refund under§ 1.1160 and operating as a noncommer-cial education station, is exempt fromfees for broadcast auxiliary stations(subparts D, E, and F of part 74 of thischapter) or stations in the wirelessradio, common carrier, or inter-national services where such authoriza-tion is to be used in conjunction withthe noncommercial educational trans-lator or low power station.

(h) An applicant, permittee or li-censee that is the licensee of an in-structional television fixed station(§§ 74.901 through 74.996 of this chapter)is exempt from regulatory fees wherethe authorization requested will beused by the applicant in conjunction

with the provision of the instructionalservice.

(i) Applications filed in the wirelessradio service for the sole purpose ofmodifying an existing authorization (ora pending application for authoriza-tion). However, if the applicant also re-quests a renewal or reinstatement ofits license or other authorization forwhich the submission of a regulatoryfee is required, the appropriate regu-latory fee for such additional requestmust accompany the application.

[60 FR 34033, June 29, 1995, as amended at 60FR 34904, July 5, 1995]

§ 1.1163 Adjustments to regulatoryfees.

(a) For Fiscal Year 1995, the amountsassessed for regulatory fees are setforth in §§ 1.1152 through 1.1156.

(b) For Fiscal year 1996 and there-after, the Schedule of Regulatory Fees,contained in §§ 1.1152 through 1.1156,may be adjusted annually by the Com-mission pursuant to section 9 of theCommunications Act. 47 U.S.C. 159. Ad-justments to the fees established forany category of regulatory fee pay-ment shall include projected cost in-creases or decreases and an estimate ofthe volume of licensees or units uponwhich the regulatory fee is calculated.

(c) The fees assessed shall:(1) Be derived by determining the

full-time equivalent number of employ-ees performing enforcement activities,policy and rulemaking activities, userinformation services, and internationalactivities within the Wireless Tele-communications Bureau, Mass MediaBureau, Common Carrier Bureau, CableServices Bureau, International Bureauand other offices of the Commission,adjusted to take into account factorsthat are reasonably related to the ben-efits provided to the payor of the fee bythe Commission’s activities, includingsuch factors as service coverage area,shared use versus exclusive use, andother factors that the Commission de-termines are necessary in the public in-terest;

(2) Be established at amounts thatwill result in collection, during eachfiscal year, of an amount that can rea-sonably be expected to equal theamount appropriated for such fiscal


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year for the performance of the activi-ties described in paragraph (c)(1) ofthis section.

(d) The Commission shall by ruleamend the Schedule of Regulatory Feesby proportionate increases or decreasesthat reflect, in accordance with para-graph (c)(2) of this section, changes inthe amount appropriated for the per-formance of the activities described inparagraph (c)(1) of this section, forsuch fiscal year. Such proportionate in-creases or decreases shall be adjustedto reflect unexpected increases or de-creases in the number of licensees orunits subject to payment of such feesand result in collection of an aggregateamount of fees that will approximatelyequal the amount appropriated for thesubject regulatory activities.

(e) The Commission shall, by rule,amend the Schedule of Regulatory Feesif the Commission determines that theSchedule requires amendment to com-ply with the requirements of paragraph(c)(1) of this section. In making suchamendments, the Commission shalladd, delete or reclassify services in theSchedule to reflect additional deletionsor changes in the nature of its servicesas a consequence of Commission rule-making proceedings or changes in law.

(f) In making adjustments to regu-latory fees, the Commission will roundsuch fees to the nearest $5.00 in thecase of fees under $1,000.00, or to thenearest $25.00 in the case of fees of$1,000.00 or more.

[60 FR 34033, June 29, 1995]

§ 1.1164 Penalties for late or insuffi-cient regulatory fee payments.

Any late payment or insufficientpayment of a regulatory fee, not ex-cused by bank error, shall subject theregulatee to a 25 percent penalty of theamount of the fee of installment pay-ment which was not paid in a timelymanner. A timely fee payment or in-stallment payment is one received atthe Commission’s lockbox bank by thedue date specified by the Commissionor by the Managing Director. A pay-ment will also be considered late filedif the payment instrument (check,money order, bank draft or credit card)is uncollectible.

(a) The Commission may, in its dis-cretion, following one or more late

filed installment payments, require aregulatee to pay the entire balance ofits regulatory fee by a date certain, inaddition to assessing a 25 percent pen-alty.

(b) In cases were a fee payment failsdue to error by the payor’s bank, asevidenced by an affidavit of an officerof the bank, the date of the originalsubmission will be considered the dateof filing.

(c) If a regulatory fee is paid in atimely manner, the regulatee will benotified of its deficiency. This noticewill automatically assess a 25 percentpenalty, subject the delinquent payor’spending applications to dismissal, andmay require a delinquent payor toshow cause why its existing instru-ments of authorization should not besubject to rescission.

(d)(1) Where a regulatee’s new, re-newal or reinstatement application isrequired to be filed with a regulatoryfee (as is the case with wireless radioservices), the application will be dis-missed if the regulatory fee is not in-cluded with the application package. Inthe case of a renewal or reinstatementapplication, the application may not berefiled unless the appropriate regu-latory fee plus the 25 percent penaltycharge accompanies the refiled applica-tion.

(2) If the application that must be ac-companied by a regulatory fee is a mu-tually exclusive application with a fil-ing deadline, or any other applicationthat must be filed by a date certain,the application will be dismissed if notaccompanied by the proper regulatoryfee and will be treated as late filed ifresubmitted after the original date forfiling application.

(e) Any pending or subsequently filedapplication submitted by a party willbe dismissed if that party is deter-mined to be delinquent in paying astandard regulatory fee or an install-ment payment. The application may beresubmitted only if accompanied bythe required regulatory fee and by anyassessed penalty payment.

(f) In instances where the Commis-sion may revoke an existing instru-ment of authorization for failure to filea regulatory fee, the Commission willprovide prior notice to the regulatee ofsuch action and shall allow the licensee


239


no less than 60 days to either pay thefee or show cause why the payment as-sessed is inapplicable or should other-wise be waived or deferred.

(1) An adjudicatory hearing will notbe designated unless the response bythe regulatee to the Order to ShowCause presents a substantial and mate-rial question of fact.

(2) Disposition of the proceeding shallbe based upon written evidence onlyand the burden of proceeding with theintroduction of evidence and the bur-den of proof shall be on the respondentregulatee.

(3) Unless the regulatee substantiallyprevails in the hearing, the Commis-sion may assess costs for the conductof the proceeding against the respond-ent regulatee. See 47 U.S.C. 402(b)(5).

(4) Any regulatee failing to submit aregulatory fee, following notice to theregulatee of failure to submit the re-quired fee, is subject to collection ofthe fee, including interest thereon, anyassociated penalties, and the full costof collection to the Federal govern-ment pursuant to section 3720A of theInternal Revenue Code, 31 U.S.C. 3717,and to the provisions of the Debt Col-lection Act, 31 U.S.C. 3717. See 47 CFR1.1901 through 1.1952. The debt collec-tion processes described above mayproceed concurrently with any othersanction in this paragraph.

[60 FR 34034, June 29, 1995]

1.1165 Payment by cashier’s check forregulatory fees.

Payment by cashier’s check may berequired when a person or organizationmakes payment, on one or more occa-sions, with a payment instrument onwhich the Commission does not receivefinal payment and such error is not ex-cused by bank error.

[60 FR 34034, June 29, 1995]

§ 1.1166 Waivers, reductions and defer-rals of regulatory fees.

The fees established by sections1.1152 through 1.1156 may be waived, re-duced or deferred in specific instances,on a case-by-case basis, where goodcause is shown and where waiver, re-duction or deferral of the fee wouldpromote the public interest. Requestsfor waivers, reductions or deferrals of

regulatory fees for entire categories ofpayors will not be considered.

(a) Requests for waivers, reductionsor deferrals will be acted upon by theManaging Director with the concur-rence of the General Counsel. If the re-quest for waiver, reduction or deferralis accompanied by a fee payment, therequest must be submitted to the Com-mission’s lockbox bank at the addressfor the appropriate service set forth insections 1.1152 through 1.1156 of thissubpart. If no fee payment is submittedand the matter is within the scope ofthe fee rules, the request should befiled with the Commission’s Secretaryand clearly marked to the attention ofthe Managing Director.

(b) Deferrals of fees will be grantedfor a period of six months following thedate that the fee is initially due.

(c) Petitions for waiver of a regu-latory fee must be accompanied by therequired fee and FCC Form 159. Sub-mitted fees will be returned if a waiveris granted. Waiver requests that do notinclude the required fees or forms willbe dismissed unless accompanied by apetition to defer payment due to finan-cial hardship, supported by documenta-tion of the financial hardship.

(d) Petitions for reduction of a feemust be accompanied by the full feepayment less the amount of the re-quested reduction and FCC Form 159.Petitions for reduction accompanied bya fee payment must be addressed to theFederal Communications Commission,Attention: Petitions, Post Office Box358835, Pittsburgh, Pennsylvania, 15251–5835.

[60 FR 34034, June 29, 1995]

§ 1.1167 Error claims related to regu-latory fees.

(a) Challenges to determinations ofan insufficient regulatory fee paymentshould be made in writing. challengessubmitted with a fee payment must besubmitted to the same location as theoriginal fee payment, marked ‘‘Atten-tion: Fee Supervisor’’. Challenges notaccompanied by a fee payment shouldbe filed with the Commission’s Sec-retary and clearly marked to the at-tention of the Managing Director.

(b) The filing of a petition for recon-sideration or an application for reviewof a fee determination will not relieve


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47 CFR Ch. I (10–1–97 Edition)§ 1.1181

licensees from the requirement thatfull and proper payment of the underly-ing fee payment be submitted, as re-quired by the Commission’s action, ordelegated action, on a request for waiv-er, reduction or deferment. Petitionsfor reconsideration and applicationsfor review submitted with a fee pay-ment must be submitted to the samelocation as the original fee payment.Petitions for reconsideration and appli-cations for review not accompanied bya fee payment should be filed with theCommission’s Secretary and clearlymarked to the attention of the Manag-ing Director.

(1) Failure to submit the fee by thedate required will result in the assess-ment of a 25 percent penalty.

(2) If the fee payment should failwhile the Commission is consideringthe matter, the petition for reconsider-ation or application for review will bedismissed.

[60 FR 34035, June 29, 1995]

§ 1.1181 Authority to prescribe and col-lect fees for competitive bidding-re-lated services and products.

Authority to prescribe, impose, andcollect fees for expenses incurred bythe government is governed by theIndependent Offices Appropriation Actof 1952, as amended, 31 U.S.C. 9701,which authorizes agencies to prescriberegulations that establish charges forthe provision of government servicesand products. Under this authority, theFederal Communications Commissionmay prescribe and collect fees for com-petitive bidding-related services andproducts as specified in § 1.1182.

[60 FR 38280, July 26, 1995]

§ 1.1182 Schedule of fees for productsand services provided by the Com-mission in connection with competi-tive bidding procedures.

Product or service Fee amount Payment procedure

On-line remote access 900 Number Tele-phone Service).

2.30 per minute ....................................... Charges included on customer’s longdistance telephone bill.

Remote Bidding Software .......................... $175.00 per package .............................. Payment to auction contractor by creditcard or check. (Public Notice willspecify exact payment procedures.)

Bidder Information Package ...................... First package free; $16.00 per additionalpackage (including postage) to sameperson or entity.

Payment to auction contractor by creditcard or check. (Public Notice willspecify exact payment procedures.)

[60 FR 38280, July 26, 1995]

Subpart H—Ex ParteCommunications

SOURCE: 52 FR 21052, June 4, 1987, unlessotherwise noted.

GENERAL

§ 1.1200 Introduction.

(a) Purpose. To ensure the fairnessand integrity of its decision-making,the Commission has prescribed rules toregulate ex parte presentations in Com-mission proceedings. These rules speci-fy ‘‘exempt’’ proceedings, in which exparte presentations may be made freely(§ 1.1204(b)), ‘‘permit-but-disclose’’ pro-ceedings, in which ex parte presen-tations to Commission decision-mak-ing personnel are permissible but sub-

ject to certain disclosure requirements(§ 1.1206), and ‘‘restricted’’ proceedingsin which ex parte presentations to andfrom Commission decision-making per-sonnel are generally prohibited(§ 1.1208). In all proceedings, a certainperiod (’’the Sunshine Agenda period’’)is designated in which all presentationsto Commission decision-making per-sonnel are prohibited (§ 1.1203). The lim-itations on ex parte presentations de-scribed in this section are subject tocertain general exceptions set forth in§ 1.1204(a). Where the public interest sorequires in a particular proceeding, theCommission and its staff retain the dis-cretion to modify the applicable exparte rules by order, letter, or publicnotice. Joint Boards may modify the exparte rules in proceedings before them.


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(b) Inquiries concerning the proprietyof ex parte presentations should be di-rected to the Office of General Counsel.

[62 FR 15853, Apr. 3, 1997]

§ 1.1202 Definitions.For the purposes of this subpart, the

following definitions apply:(a) Presentation. A communication di-

rected to the merits or outcome of aproceeding, including any attachmentsto a written communication or docu-ments shown in connection with anoral presentation directed to the mer-its or outcome of a proceeding. Ex-cluded from this term are communica-tions which are inadvertently or cas-ually made, inquiries concerning com-pliance with procedural requirementsif the procedural matter is not an areaof controversy in the proceeding, state-ments made by decisionmakers thatare limited to providing publicly avail-able information about pending pro-ceedings, and inquiries relating solelyto the status of a proceeding, includinginquiries as to the approximate timethat action in a proceeding may betaken. However, a status inquiry whichstates or implies a view as to the mer-its or outcome of the proceeding or apreference for a particular party, whichstates why timing is important to aparticular party or indicates a view asto the date by which a proceedingshould be resolved, or which otherwiseis intended to address the merits oroutcome or to influence the timing of aproceeding is a presentation.

NOTE TO PARAGRAPH (A): A communicationexpressing concern about administrativedelay or expressing concern that a proceed-ing be resolved expeditiously will be treatedas a permissible status inquiry so long as noreason is given as to why the proceedingshould be expedited other than the need toresolve administrative delay, no view is ex-pressed as to the merits or outcome of theproceeding, and no view is expressed as to adate by which the proceeding should be re-solved. A presentation by a party in a re-stricted proceeding requesting action by aparticular date or giving reasons that a pro-ceeding should be expedited other than theneed to avoid administrative delay (and re-sponsive presentations by other parties) maybe made on an ex parte basis subject to theprovisions of § 1.1204(a)(11).

(b) Ex parte presentation. Any presen-tation which:

(1) If written, is not served on theparties to the proceeding; or

(2) If oral, is made without advancenotice to the parties and without op-portunity for them to be present.

NOTE TO PARAGRAPH (B): Written commu-nications include electronic submissionstransmitted in the form of texts, such as byInternet electronic mail.

(c) Decision-making personnel. Anymember, officer, or employee of theCommission, or, in the case of a JointBoard, its members or their staffs, whois or may reasonably be expected to beinvolved in formulating a decision,rule, or order in a proceeding. Any per-son who has been made a party to aproceeding or who otherwise has beenexcluded from the decisional processshall not be treated as a decision-maker with respect to that proceeding.Thus, any person designated as part ofa separate trial staff shall not be con-sidered a decision-making person inthe designated proceeding. UnseparatedBureau or Office staff shall be consid-ered decision-making personnel withrespect to decisions, rules, and ordersin which their Bureau or Office partici-pates in enacting, preparing, or review-ing.

(d) Party. Unless otherwise orderedby the Commission, the following per-sons are parties:

(1) Any person who files an applica-tion, waiver request, petition, motion,request for a declaratory ruling, orother filing seeking affirmative relief(including a Freedom of InformationAct request), and any person (otherthan an individual viewer or listenerfiling comments regarding a pendingbroadcast application) filing a writtensubmission referencing and regardingsuch pending filing which is served onthe filer, or, in the case of an applica-tion, any person filing a mutually ex-clusive application;

NOTE 1 TO PARAGRAPH (D): Persons who filemutually exclusive applications for servicesthat the Commission has announced will besubject to competitive bidding or lotteriesshall not be deemed parties with respect toeach others’ applications merely becausetheir applications are mutually exclusive.Therefore, such applicants may make pres-entations to the Commission about theirown applications provided that no one has


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47 CFR Ch. I (10–1–97 Edition)§ 1.1203

become a party with respect to their applica-tion by other means, e.g., by filing a petitionor other opposition against the applicant oran associated waiver request, if the petitionor opposition has been served on the appli-cant.

(2) Any person who files a complaintwhich shows that the complainant hasserved it on the subject of the com-plaint or which is a formal complaintunder 47 U.S.C. 208 and § 1.721, and theperson who is the subject of such acomplaint that shows service or is aformal complaint under 47 U.S.C. 208and § 1.721;

(3) Any person who files a petition torevoke a license or other authorizationor who files a petition for an order toshow cause and the licensee or otherentity that is the subject of the peti-tion;

(4) The subject of an order to showcause, hearing designation order, no-tice of apparent liability, or similarnotice or order, or petition for such no-tice or order;

(5) Any other person who has other-wise been given formal party status ina proceeding; and

(6) In an informal rulemaking pro-ceeding conducted under section 553 ofthe Administrative Procedure Act(other than a proceeding for the allot-ment of a broadcast channel) or a pro-ceeding before a Joint Board or beforethe Commission to consider the rec-ommendation of a Joint Board, mem-bers of the general public after the is-suance of a notice of proposed rule-making or other order as providedunder § 1.1206(a) (1) or (2).

NOTE 2 TO PARAGRAPH (D): To be deemed aparty, a person must make the relevant fil-ing with the Secretary, the relevant Bureauor Office, or the Commission as a whole.Written submissions made only to the Chair-man or individual Commissioners will notconfer party status.

NOTE 3 TO PARAGRAPH (D): The fact that aperson is deemed a party for purposes of thissubpart does not constitute a determinationthat such person has satisfied any otherlegal or procedural requirements, such as theoperative requirements for petitions to denyor requirements as to timeliness. Nor does itconstitute a determination that such personhas any other procedural rights, such as theright to intervene in hearing proceedings.The Commission or the staff may also deter-mine in particular instances that personswho qualify as ‘‘parties’’ under § 1.1202(d)

should nevertheless not be deemed partiesfor purposes of this subpart.

NOTE 4 TO PARAGRAPH (D): Individual listen-ers or viewers submitting comments regard-ing a pending broadcast application pursuantto § 1.1204(a)(8) will not become parties sim-ply by service of the comments. The MassMedia Bureau may, in its discretion, makesuch a commenter a party, if doing so wouldbe conducive to the Commission’s consider-ation of the application or would otherwisebe appropriate.

(e) Matter designated for hearing. Anymatter that has been designated forhearing before an administrative lawjudge or which is otherwise designatedfor hearing in accordance with proce-dures in 5 U.S.C. 554.

[62 FR 15854, Apr. 3, 1997]

SUNSHINE PERIOD PROHIBITION

§ 1.1203 Sunshine period prohibition.(a) With respect to any Commission

proceeding, all presentations to deci-sion-makers concerning matters listedon a Sunshine Agenda, whether ex parteor not, are prohibited during the periodspecified by paragraph (b) of this sec-tion:

(1) The presentation is exempt under§ 1.1204(a);

(2) The presentation relates to settle-ment negotiations and otherwise com-plies with any ex parte restrictions inthis subpart;

(3) The presentation occurs in thecourse of a widely attended speech orpanel discussion and concerns a Com-mission action in an exempt or a per-mit-but-disclose proceeding that hasbeen adopted (not including privatepresentations made on the site of awidely attended speech or panel discus-sion); or

(4) The presentation is made by amember of Congress or his or her staff,or by other agencies or branches of thefederal government or their staffs in aproceeding exempt under § 1.1204 or sub-ject to permit-but-disclose require-ments under § 1.1206. If the presentationis of substantial significance and clear-ly intended to affect the ultimate deci-sion, the presentation (or, if oral, asummary of the presentation) must beplaced in the record of the proceedingby Commission staff or by the pre-senter in accordance with the proce-dures set forth in § 1.1206(b).


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(b) The prohibition set forth in para-graph (a) of this section applies fromthe release of a public notice that amatter has been placed on the Sun-shine Agenda until the Commission:

(1) Releases the text of a decision ororder relating to the matter;

(2) Issues a public notice stating thatthe matter has been deleted from theSunshine Agenda; or

(3) Issues a public notice stating thatthe matter has been returned to thestaff for further consideration, which-ever occurs first.

[62 FR 15855, Apr. 3, 1997]

GENERAL EXEMPTIONS

§ 1.1204 Exempt ex parte presentationsand proceedings.

(a) Exempt ex parte presentations. Thefollowing types of presentations are ex-empt from the prohibitions in re-stricted proceedings (§ 1.1208), the dis-closure requirements in permit-but-dis-close proceedings (§ 1.1206), and the pro-hibitions during the Sunshine Agendaand circulation period prohibition(§ 1.1203):

(1) The presentation is authorized bystatute or by the Commission’s rules tobe made without service, see, e.g.,§ 1.333(d), or involves the filing of re-quired forms;

(2) The presentation is made by or tothe General Counsel and his or herstaff and concerns judicial review of amatter that has been decided by theCommission;

(3) The presentation directly relatesto an emergency in which the safety oflife is endangered or substantial loss ofproperty is threatened, provided that,if not otherwise submitted for therecord, Commission staff promptlyplaces the presentation or a summaryof the presentation in the record anddiscloses it to other parties as appro-priate.

(4) The presentation involves a mili-tary or foreign affairs function of theUnited States or classified security in-formation;

(5) The presentation is to or from anagency or branch of the Federal Gov-ernment or its staff and involves amatter over which that agency orbranch and the Commission share ju-risdiction provided that, any new fac-

tual information obtained throughsuch a presentation that is relied on bythe Commission in its decision-makingprocess will, if not otherwise submittedfor the record, be disclosed by the Com-mission no later than at the time ofthe release of the Commission’s deci-sion;

(6) The presentation is to or from theUnited States Department of Justice orFederal Trade Commission and in-volves a telecommunications competi-tion matter in a proceeding which hasnot been designated for hearing and inwhich the relevant agency is not aparty provided that, any new factualinformation obtained through such apresentation that is relied on by theCommission in its decision-makingprocess will be disclosed by the Com-mission no later than at the time ofthe release of the Commission’s deci-sion;

NOTE 1 TO PARAGRAPH (A): Under para-graphs (a)(5) and (a)(6) of this section, infor-mation will be relied on and disclosure willbe made only after advance coordinationwith the agency involved in order to ensurethat the agency involved retains controlover the timing and extent of any disclosurethat may have an impact on that agency’sjurisdictional responsibilities. If the agencyinvolved does not wish such information tobe disclosed, the Commission will not dis-close it and will disregard it in its decision-making process, unless it fits within anotherexemption not requiring disclosure (e.g., for-eign affairs). The fact that an agency’s viewsare disclosed under paragraphs (a)(5) and(a)(6) does not preclude further discussionspursuant to, and in accordance with, the ex-emption.

(7) The presentation is between Com-mission staff and an advisory coordi-nating committee member with respectto the coordination of frequency as-signments to stations in the privateland mobile services or fixed servicesas authorized by 47 U.S.C. 332;

(8) The presentation is a writtenpresentation made by a listener orviewer of a broadcast station who isnot a party under § 1.1202(d)(1), and thepresentation relates to a pending appli-cation that has not been designated forhearing for a new or modified broad-cast station or license, for renewal of abroadcast station license or for assign-ment or transfer of control of a broad-cast permit or license;


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(9) Confidentiality is necessary toprotect persons making ex parte presen-tations from possible reprisals; or

(10) The presentation is requested by(or made with the advance approval of)the Commission or staff for the clari-fication or adduction of evidence, orfor resolution of issues, including pos-sible settlement, subject to the follow-ing limitations:

(i) This exemption does not apply torestricted proceedings designated forhearing;

(ii) In restricted proceedings not des-ignated for hearing, any new writteninformation elicited from such requestor a summary of any new oral informa-tion elicited from such request shallpromptly be served by the person mak-ing the presentation on the other par-ties to the proceeding. Information re-lating to how a proceeding should orcould be settled, as opposed to new in-formation regarding the merits, shallnot be deemed to be new informationfor purposes of this section. The Com-mission or its staff may waive the serv-ice requirement if service would be tooburdensome because the parties are nu-merous or because the materials relat-ing to such presentation are volumi-nous. If the service requirement iswaived, copies of the presentation orsummary shall be placed in the recordof the proceeding and the Commissionor its staff shall issue a public noticewhich states that copies of the presen-tation or summary are available for in-spection. The Commission or its staffmay determine that service or publicnotice would interfere with the effec-tive conduct of an investigation anddispense with the service and publicnotice requirements;

(iii) If the presentation is made in aproceeding subject to permit-but-dis-close requirements, disclosure must bemade in accordance with the require-ments of § 1.1206(b), provided, however,that the Commission or its staff maydetermine that disclosure would inter-fere with the effective conduct of an in-vestigation and dispense with the dis-closure requirement. As in paragraph(a)(10)(ii) of this section, informationrelating to how a proceeding should orcould be settled, as opposed to new in-formation regarding the merits, shall

not be deemed to be new informationfor purposes of this section;

NOTE 2 TO PARAGRAPH (A): If the Commis-sion or its staff dispenses with the service ornotice requirement to avoid interferencewith an investigation, a determination willbe made in the discretion of the Commissionor its staff as to when and how disclosureshould be made if necessary. See Amendmentof Subpart H, Part I, 2 FCC Rcd 6053, 6054 ¶¶ 10–14 (1987).

(iv) If the presentation is made in aproceeding subject to the Sunshine pe-riod prohibition, disclosure must bemade in accordance with the require-ments of § 1.1206(b) or by other ade-quate means of notice that the Com-mission deems appropriate;

(v) In situations where new informa-tion regarding the merits is disclosedduring settlement discussions, and theCommission or staff intends that theproduct of the settlement discussionswill be disclosed to the other parties orthe public for comment before any ac-tion is taken, the Commission or staffin its discretion may defer disclosureof such new information until com-ment is sought on the settlement pro-posal or the settlement discussions areterminated.

(11) The presentation is an oral pres-entation in a restricted proceeding re-questing action by a particular date orgiving reasons that a proceeding shouldbe expedited other than the need toavoid administrative delay. A sum-mary of the presentation shall prompt-ly be filed in the record and served bythe person making the presentation onthe other parties to the proceeding,who may respond in support or opposi-tion to the request for expedition, in-cluding by oral ex parte presentation,subject to the same service require-ment.

(b) Exempt proceedings. Unless other-wise provided by the Commission orthe staff pursuant to § 1.1200(a), ex partepresentations to or from Commissiondecision-making personnel are permis-sible and need not be disclosed with re-spect to the following proceedings,which are referred to as ‘‘exempt’’ pro-ceedings:

(1) A notice of inquiry proceeding;(2) A petition for rulemaking, except

for a petition requesting the allotmentof a broadcast channel (see also


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§ 1.1206(a)(1)), or other request that theCommission modify its rules, issue apolicy statement or issue an interpre-tive rule, or establish a Joint Board;

(3) A tariff proceeding (including di-rectly associated waiver requests or re-quests for special permission) prior toit being set for investigation (see also§ 1.1206(a)(4));

(4) A proceeding relating to prescrip-tion of common carrier depreciationrates under section 220(b) of the Com-munications Act prior to release of apublic notice of specific proposed de-preciation rates (see also § 1.1206(a)(9));

(5) An informal complaint proceedingunder 47 U.S.C. 208 and § 1.717; and

(6) A complaint against a cable oper-ator regarding its rates that is notfiled on the standard complaint formrequired by § 76.951 of this chapter (FCCForm 329).

[62 FR 15855, Apr. 3, 1997]

NON-RESTRICTED PROCEEDINGS

§ 1.1206 Permit-but-disclose proceed-ings.

(a) Unless otherwise provided by theCommission or the staff pursuant to§ 1.1200(a), until the proceeding is nolonger subject to administrative recon-sideration or review or to judicial re-view, ex parte presentations (other thanex parte presentations exempt under§ 1.1204(a)) to or from Commission deci-sion-making personnel are permissiblein the following proceedings, which arereferred to as permit-but-disclose pro-ceedings, provided that ex parte presen-tations to Commission decision-mak-ing personnel are disclosed pursuant toparagraph (b) of this section:

(1) An informal rulemaking proceed-ing conducted under section 553 of theAdministrative Procedure Act otherthan a proceeding for the allotment ofa broadcast channel, upon release of aNotice of Proposed Rulemaking (seealso § 1.1204(b)(2));

(2) A proceeding involving a rulechange, policy statement or interpre-tive rule adopted without a Notice ofProposed Rule Making upon release ofthe order adopting the rule change,policy statement or interpretive rule;

(3) A declaratory ruling proceeding;(4) A tariff proceeding which has been

set for investigation under section 204

or 205 of the Communications Act (in-cluding directly associated waiver re-quests or requests for special permis-sion) (see also § 1.1204(b)(4));

(5) Unless designated for hearing, aproceeding under section 214(a) of theCommunications Act that does not alsoinvolve applications under Title III ofthe Communications Act (see also§ 1.1208);

(6) Unless designated for hearing, aproceeding involving an application fora Cable Landing Act license that doesnot also involve applications underTitle III of the Communications Act(see also § 1.1208);

(7) A proceeding involving a requestfor information filed pursuant to theFreedom of Information Act;

NOTE 1 TO PARAGRAPH (A): Where the re-quested information is the subject of a re-quest for confidentiality, the person filingthe request for confidentiality shall bedeemed a party.

(8) A proceeding before a Joint Boardor a proceeding before the Commissioninvolving a recommendation from aJoint Board;

(9) A proceeding conducted pursuantto section 220(b) of the Communica-tions Act for prescription of commoncarrier depreciation rates upon releaseof a public notice of specific proposeddepreciation rates (see also§ 1.1204(b)(4));

(10) A proceeding to prescribe a rateof return for common carriers undersection 205 of the Communications Act;and

(11) A cable rate complaint proceed-ing pursuant to section 623(c) of theCommunications Act where the com-plaint is filed on FCC Form 329.

NOTE 2 TO PARAGRAPH (A): In a permit-but-disclose proceeding involving only one‘‘party,’’ as defined in § 1.1202(d) of this sub-part, the party and the Commission mayfreely make presentations to each other andneed not comply with the disclosure require-ments of paragraph (b) of this section.

(b) The following disclosure require-ments apply to ex parte presentationsin permit but disclose proceedings:

(1) Written presentations. A personwho makes a written ex parte presen-tation subject to this section shall, nolater than the next business day afterthe presentation, submit two copies ofthe presentation to the Commission’s


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secretary under separate cover for in-clusion in the public record. The pres-entation (and cover letter) shall clear-ly identify the proceeding to which itrelates, including the docket number,if any, shall indicate that two copieshave been submitted to the Secretary,and must be labeled as an ex parte pres-entation. If the presentation relates tomore than one proceeding, two copiesshall be filed for each proceeding.

(2) Oral presentations. A person whomakes an oral ex parte presentationsubject to this section that presentsdata or arguments not already re-flected in that person’s written com-ments, memoranda or other filings inthat proceeding shall, no later than thenext business day after the presen-tation, submit to the Commission’sSecretary, with copies to the Commis-sioners or Commission employees in-volved in the oral presentation, anoriginal and one copy of a memoran-dum which summarizes the new data orarguments. Memoranda must contain asummary of the substance of the exparte presentation and not merely alisting of the subjects discussed. Morethan a one or two sentence descriptionof the views and arguments presentedis generally required. The memoran-dum (and cover letter) shall clearlyidentify the proceeding to which it re-lates, including the docket number, ifany, shall indicate that an original andone copy have been submitted to theSecretary, and must be labeled as an exparte presentation. If the presentationrelates to more than one proceeding,two copies of the memorandum (or anoriginal and one copy) shall be filed foreach proceeding.

NOTE 1 TO PARAGRAPH (B): Where, for exam-ple, presentations occur in the form of dis-cussion at a widely attended meeting, prepa-ration of a memorandum as specified in therule might be cumbersome. Under these cir-cumstances, the rule may be satisfied bysubmitting a transcript or tape recording ofthe discussion as an alternative to a memo-randum.

(3) Notwithstanding paragraphs (b)(1)and (b)(2) of this section, in permit-but-disclose proceedings presentationsmade by members of Congress or theirstaffs or by an agency or branch of theFederal Government or its staff shallbe treated as ex parte presentationsonly if the presentations are of sub-

stantial significance and clearly in-tended to affect the ultimate decision.The Commission staff shall prepare awritten summary of any such oral pres-entations and place them in the recordin accordance with paragraph (b)(2) ofthis section and place any such writtenpresentations in the record in accord-ance with paragraph (b)(1) of this sec-tion.

(4) Notice of ex parte presentations. TheCommission’s Secretary or, in the caseof non-docketed proceedings, the rel-evant Bureau or Office shall place inthe public file or record of the proceed-ing written ex parte presentations andmemoranda reflecting oral ex partepresentations. The Secretary shallissue a public notice listing any writ-ten ex parte presentations or writtensummaries of oral ex parte presen-tations received by his or her office re-lating to any permit-but-disclose pro-ceeding. Such public notices shouldgenerally be released at least twice perweek.

NOTE 2 TO PARAGRAPH (B): Interested per-sons should be aware that some ex parte fil-ings, for example, those not filed in accord-ance with the requirements of this paragraph(b), might not be placed on the referencedpublic notice. All ex parte presentations andmemoranda filed under this section will beavailable for public inspection in the publicfile or record of the proceeding, and partieswishing to ensure awareness of all filingsshould review the public file or record.

NOTE 3 TO PARAGRAPH (B): As a matter ofconvenience, the Secretary may also list onthe referenced public notices materials, evenif not ex parte presentations, that are filedafter the close of the reply comment periodor, if the matter is on reconsideration, thereconsideration reply comment period.

[62 FR 15856, Apr. 3, 1997]

RESTRICTED PROCEEDINGS

§ 1.1208 Restricted proceedings.

Unless otherwise provided by theCommission or its staff pursuant to§ 1.1200(a), ex parte presentations (otherthan ex parte presentations exemptunder § 1.1204 (a)) are prohibited in allproceedings not listed as exempt in§ 1.1204(b) or permit-but-disclose in§ 1.1206(a) until the proceeding is nolonger subject to administrative recon-sideration or review or judicial review.


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Proceedings in which ex parte presen-tations are prohibited, referred to as‘‘restricted’’ proceedings, include, butare not limited to, all proceedings thathave been designated for hearing, pro-ceedings involving amendments to thebroadcast table of allotments, applica-tions for authority under Title III ofthe Communications Act, and all waiv-er proceedings (except for those di-rectly associated with tariff filings).

NOTE 1 TO § 1.1208: In a restricted proceed-ing involving only one ‘‘party,’’ as defined in§ 1.1202(d), the party and the Commissionmay freely make presentations to each otherbecause there is no other party to be servedor with a right to have an opportunity to bepresent. See § 1.1202(b). Therefore, to deter-mine whether presentations are permissiblein a restricted proceeding without service ornotice and an opportunity for other partiesto be present the definition of a ‘‘party’’should be consulted.

Examples: After the filing of anuncontested application or waiver request,the applicant or other filer would be the soleparty to the proceeding. The filer would haveno other party to serve with or give notice ofany presentations to the Commission, andsuch presentations would therefore not be‘‘ex parte presentations’’ as defined by§ 1.1202(b) and would not be prohibited. Onthe other hand, in the example given, be-cause the filer is a party, a third person whowished to make a presentation to the Com-mission concerning the application or waiverrequest would have to serve or notice thefiler. Further, once the proceeding involvedadditional ‘‘parties’’ as defined by § 1.1202(d)(e.g., an opponent of the filer who served theopposition on the filer), the filer and otherparties would have to serve or notice allother parties.

NOTE 2 TO § 1.1208: Consistent with§ 1.1200(a), the Commission or its staff maydetermine that a restricted proceeding notdesignated for hearing involves primarily is-sues of broadly applicable policy rather thanthe rights and responsibilities of specificparties and specify that the proceeding willbe conducted in accordance with the provi-sions of § 1.1206 governing permit-but-discloseproceedings.

[62 FR 15857, Apr. 3, 1997]

PROHIBITION ON SOLICITATION OFPRESENTATIONS

§ 1.1210 Prohibition on solicitation ofpresentations.

No person shall solicit or encourageothers to make any presentation which

he or she is prohibited from makingunder the provisions of this subpart.

[62 FR 15857, Apr. 3, 1997]

PROCEDURES FOR HANDLING OFPROHIBITED EX PARTE PRESENTATIONS

§ 1.1212 Procedures for handling ofprohibited ex parte presentations.

(a) Commission personnel who be-lieve that an oral presentation which isbeing made to them or is about to bemade to them is prohibited shallpromptly advise the person initiatingthe presentation that it is prohibitedand shall terminate the discussion.

(b) Commission personnel who re-ceive oral ex parte presentations whichthey believe are prohibited shall for-ward to the Office of General Counsel astatement containing the following in-formation:

(1) The name of the proceeding;(2) The name and address of the per-

son making the presentation and thatperson’s relationship (if any) to theparties to the proceeding;

(3) The date and time of the presen-tation, its duration, and the cir-cumstances under which it was made;

(4) A full summary of the substanceof the presentation;

(5) Whether the person making thepresentation persisted in doing so afterbeing advised that the presentationwas prohibited; and

(6) The date and time that the state-ment was prepared.

(c) Commission personnel who re-ceive written ex parte presentationswhich they believe are prohibited shallforward them to the Office of GeneralCounsel. If the circumstances in whichthe presentation was made are not ap-parent from the presentation itself, astatement describing those cir-cumstances shall be submitted to theOffice of General Counsel with thepresentation.

(d) Prohibited written ex parte pres-entations and all documentation relat-ing to prohibited written and oral exparte presentations shall be placed in apublic file which shall be associatedwith but not made part of the record ofthe proceeding to which the presen-tations pertain. Such materials may beconsidered in determining the meritsof a restricted proceeding only if they


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47 CFR Ch. I (10–1–97 Edition)§ 1.1214

are made part of the record and theparties are so informed.

(e) If the General Counsel determinesthat an ex parte presentation or presen-tation during the Sunshine period isprohibited by this subpart, he or sheshall notify the parties to the proceed-ing that a prohibited presentation hasoccurred and shall serve on the partiescopies of the presentation (if written)and any statements describing the cir-cumstances of the presentation. Serv-ice by the General Counsel shall not bedeemed to cure any violation of therules against prohibited ex parte pres-entations.

(f) If the General Counsel determinesthat service on the parties would beunduly burdensome because the partiesto the proceeding are numerous, he orshe may issue a public notice in lieu ofservice. The public notice shall statethat a prohibited presentation has beenmade and may also state that the pres-entation and related materials areavailable for public inspection.

(g) The General Counsel shall forwarda copy of any statement describing thecircumstances in which the prohibitedex parte presentation was made to theperson who made the presentation.Within ten days thereafter, the personwho made the presentation may filewith the General Counsel a sworn dec-laration regarding the presentationand the circumstances in which it wasmade. The General Counsel may servecopies of the sworn declaration on theparties to the proceeding.

(h) Where a restricted proceedingprecipitates a substantial amount ofcorrespondence from the general pub-lic, the procedures in paragraphs (c)through (g) of this section will not befollowed with respect to such cor-respondence. The correspondence willbe placed in a public file and be madeavailable for public inspection.

[62 FR 15857, Apr. 3, 1997]

§ 1.1214 Disclosure of information con-cerning violations of this subpart.

Any party to a proceeding or anyCommission employee who has sub-stantial reason to believe that any vio-lation of this subpart has been solic-ited, attempted, or committed shallpromptly advise the Office of GeneralCounsel in writing of all the facts and

circumstances which are known to himor her.

[62 FR 15858, Apr. 3, 1997]

SANCTIONS

§ 1.1216 Sanctions.(a) Parties. Upon notice and hearing,

any party to a proceeding who directlyor indirectly violates or causes the vio-lation of any provision of this subpart,or who fails to report the facts and cir-cumstances concerning any such viola-tion as required by this subpart, maybe disqualified from further participa-tion in that proceeding. In proceedingsother than a rulemaking, a party whohas violated or caused the violation ofany provision of this subpart may berequired to show cause why his or herclaim or interest in the proceedingshould not be dismissed, denied, dis-regarded, or otherwise adversely af-fected. In any proceeding, such alter-native or additional sanctions as maybe appropriate may also be imposed.

(b) Commission personnel. Commissionpersonnel who violate provisions ofthis subpart may be subject to appro-priate disciplinary or other remedialaction as provided in part 19 of thischapter.

(c) Other persons. Such sanctions asmay be appropriate under the cir-cumstances shall be imposed uponother persons who violate the provi-sions of this subpart.

[62 FR 15858, Apr. 3, 1997]

Subpart I—Procedures Implement-ing the National Environ-mental Policy Act of 1969

SOURCE: 51 FR 15000, Apr. 22, 1986, unlessotherwise noted.

§ 1.1301 Basis and purpose.The provisions of this subpart imple-

ment Subchapter I of the National En-vironmental Policy Act of 1969, asamended, 42 U.S.C. 4321–4335.

§ 1.1302 Cross-reference; Regulationsof the Council on EnvironmentalQuality.

A further explanation regarding im-plementation of the National Environ-mental Policy Act is provided by the


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regulations issued by the Council onEnvironmental Quality, 40 CFR 1500–1508.28.

§ 1.1303 Scope.The provisions of this subpart shall

apply to all Commission actions thatmay or will have a significant impacton the quality of the human environ-ment. To the extent that other provi-sions of the Commission’s rules andregulations are inconsistent with thesubpart, the provisions of this subpartshall govern.

[55 FR 20396, May 16, 1990]

§ 1.1304 Information and assistance.For general information and assist-

ance concerning the provisions of thissubpart, the Office of General Counselmay be contacted, (202) 632–6990. Formore specific information, the Bureauresponsible for processing a specific ap-plication should be contacted.

§ 1.1305 Actions which normally willhave a significant impact upon theenvironment, for which Environ-mental Impact Statements must beprepared.

Any Commission action deemed tohave a significant effect upon the qual-ity of the human environment requiresthe preparation of a Draft Environ-mental Impact Statement (DEIS) andFinal Environmental Impact State-ment (FEIS) (collectively referred to asEISs) (see §§ 1.1314, 1.1315 and 1.1317).The Commission has reviewed rep-resentative actions and has found nocommon pattern which would enable itto specify actions that will thus auto-matically require EISs.

NOTE: Our current application forms referapplicants to § 1.1305 to determine if theirproposals are such that the submission of en-vironmental information is required (see§ 1.1311). Until the application forms are re-vised to reflect our new environmental rules,applicants should refer to § 1.1307. Section1.1307 now delineates those actions for whichapplicants must submit environmental infor-mation.

§ 1.1306 Actions which are categori-cally excluded from environmentalprocessing.

(a) Except as provided in § 1.1307 (c)and (d), Commission actions not cov-ered by § 1.1307 (a) and (b) are deemed

individually and cumulatively to haveno significant effect on the quality ofthe human environment and are cat-egorically excluded from environ-mental processing.

(b) Specifically, any Commission ac-tion with respect to any new applica-tion, or minor or major modificationsof existing or authorized facilities orequipment, will be categorically ex-cluded, provided such proposals do not:

(1) Involve a site location specifiedunder § 1.1307(a) (1)–(7), or

(2) Involve high intensity lightingunder § 1.1307(a)(8).

(3) Result in human exposure to ra-diofrequency radiation in excess of theapplicable safety standards specified in§ 1.1307(b).

NOTE 1: The provisions of § 1.1307(a) of thispart requiring the preparation of EAs do notencompass the mounting of antenna(s) on anexisting building or antenna tower unless§ 1.1307(a)(4) of this part is applicable. Suchantennas are subject to § 1.1307(b) of this partand require EAs if their construction wouldresult in human exposure to radiofrequencyradiation in excess of the applicable healthand safety guidelines cited in § 1.1307(b) ofthis part. The provisions of § 1.1307 (a) and (b)of this part do not encompass the installa-tion of aerial wire or cable over existing aer-ial corridors of prior or permitted use or theunderground installation of wire or cablealong existing underground corridors of prioror permitted use, established by the appli-cant or others. The use of existing buildings,towers or corridors is an environmentally de-sirable alternative to the construction ofnew facilities and is encouraged.

NOTE 2: The specific height of an antennatower or supporting structure, as well as thespecific diameter of a satellite earth station,in and of itself, will not be deemed sufficientto warrant environmental processing, see§§ 1.1307 and 1.1308.

NOTE 3: The construction of an antennatower or supporting structure in an estab-lished ‘‘antenna farm’’: (i.e., an area inwhich similar antenna towers are clustered,whether or not such area has been officiallydesignated as an antenna farm), will be cat-egorically excluded unless one or more of theantennas to be mounted on the tower or struc-ture are subject to the provisions of § 1.1307(b)and the additional radiofrequency radiationfrom the antenna(s) on the new tower or struc-ture would cause human exposure in excess ofthe applicable health and safety guidelinescited in § 1.1307(b).

[51 FR 15000, Apr. 22, 1986, as amended at 51FR 18889, May 23, 1986; 53 FR 28393, July 28,1988; 56 FR 13414, Apr. 2, 1991]


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47 CFR Ch. I (10–1–97 Edition)§ 1.1307

§ 1.1307 Actions that may have a sig-nificant environmental effect, forwhich Environmental Assessments(EAs) must be prepared.

(a) Commission actions with respectto the following types of facilities maysignificantly affect the environmentand thus require the preparation ofEAs by the applicant (see §§ 1.1308 and1.1311) and may require further Com-mission environmental processing (see§§ 1.1314, 1.1315 and 1.1317):

(1) Facilities that are to be located inan officially designated wildernessarea.

(2) Facilities that are to be located inan officially designated wildlife pre-serve.

(3) Facilities that: (i) May affect list-ed threatened or endangered species ordesignated critical habitats; or (ii) arelikely to jeopardize the continued ex-istence of any proposed endangered orthreatened species or likely to result inthe destruction or adverse modifica-tion of proposed critical habitats, asdetermined by the Secretary of the In-terior pursuant to the Endangered Spe-cies Act of 1973.

NOTE: The list of endangered and threat-ened species is contained in 50 CFR 17.11,17.22, 222.23(a) and 227.4. The list of des-ignated critical habitats is contained in 50CFR 17.95, 17.96 and part 226. To ascertain thestatus of proposed species and habitats, in-quiries may be directed to the Regional Di-rector of the Fish and Wildlife Service, De-partment of the Interior.

(4) Facilities that may affect dis-tricts, sites, buildings, structures orobjects, significant in American his-tory, architecture, archeology, engi-neering or culture, that are listed, orare eligible for listing, in the NationalRegister of Historic Places. (See 16U.S.C. 470w(5); 36 CFR 60 and 800.)

NOTE: The National Register is updatedand re-published in the FEDERAL REGISTEReach year in February. To ascertain whethera proposal affects a historical property of na-tional significance, inquiries also may bemade to the appropriate State Historic Pres-ervation Officer, see 16 U.S.C. 470a(b); 36 CFRparts 63 and 800.

(5) Facilities that may affect Indianreligious sites.

(6) Facilities to be located in a floodPlain (See Executive Order 11988.)

(7) Facilities whose construction willinvolve significant change in surfacefeatures (e.g., wetland fill, deforest-ation or water diversion). (In the caseof wetlands on Federal property, seeExecutive Order 11990.)

(8) Antenna towers and/or supportingstructures that are to be equipped withhigh intensity white lights which areto be located in residential neighbor-hoods, as defined by the applicable zon-ing law.

(b) In addition to the actions listed inparagraph (a) of this section, Commis-sion actions granting construction per-mits, licenses to transmit or renewalsthereof, equipment authorizations ormodifications in existing facilities, re-quire the preparation of an Environ-mental Assessment (EA) if the particu-lar facility, operation or transmitterwould cause human exposure to levelsof radiofrequency radiation in excess ofthe limits in §§ 1.1310 and 2.1093 of thischapter. Applications to the Commis-sion for construction permits, licensesto transmit or renewals thereof, equip-ment authorizations or modificationsin existing facilities must contain astatement confirming compliance withthe limits unless the facility, oper-ation, or transmitter is categoricallyexcluded, as discussed below. Technicalinformation showing the basis for thisstatement must be submitted to theCommission upon request.

(1) The appropriate exposure limits in§§ 1.1310 and 2.1093 of this chapter aregenerally applicable to all facilities,operations and transmitters regulatedby the Commission. However, a deter-mination of compliance with the expo-sure limits in § 1.1310 or § 2.1093 of thischapter (routine environmental evalua-tion), and preparation of an EA if thelimits are exceeded, is necessary onlyfor facilities, operations and transmit-ters that fall into the categories listedin table 1, or those specified in para-graph (b)(2) of this section. All otherfacilities, operations and transmittersare categorically excluded from mak-ing such studies or preparing an EA,except as indicated in paragraphs (c)and (d) of this section. For purposes oftable 1, building-mounted antennasmeans antennas mounted in or on abuilding structure that is occupied as aworkplace or residence. The term power


251


in column 2 of table 1 refers to totaloperating power of the transmittingoperation in question in terms of effec-tive radiated power (ERP), equivalentisotropically radiated power (EIRP), orpeak envelope power (PEP), as definedin § 2.1 of this chapter. For the case ofthe Cellular Radiotelephone Service,subpart H of part 22 of this chapter; thePersonal Communications Service,part 24 of this chapter and the Special-ized Mobile Radio Service, part 90 ofthis chapter, the phrase total power ofall channels in column 2 of table 1

means the sum of the ERP or EIRP ofall co-located simultaneously operat-ing transmitters owned and operatedby a single licensee. When applying thecriteria of table 1, radiation in all di-rections should be considered. For thecase of transmitting facilities usingsectorized transmitting antennas, ap-plicants and licensees should apply thecriteria to all transmitting channels ina given sector, noting that for a highlydirectional antenna there is relativelylittle contribution to ERP or EIRPsummation for other directions.

TABLE 1—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTALEVALUATION

Service (title 47 CFR rule part) Evaluation required if

Experimental Radio Services (part 5) ................ Power > 100 W ERP (164 W EIRP)Multipoint Distribution Service (subpart K of

part 21).Non-building-mounted antennas: height above ground level to lowest point of

antenna < 10 m and power > 1640 W EIRPBuilding-mounted antennas: power > 1640 W EIRP

Paging and Radiotelephone Service (subpart Eof part 22).

Non-building-mounted antennas: height above ground level to lowest point ofantenna < 10 m and power > 1000 W ERP (1640 W EIRP)

Building-mounted antennas: power > 1000 W ERP (1640 W EIRP)Cellular Radiotelephone Service (subpart H of

part 22).Non-building-mounted antennas: height above ground level to lowest point of

antenna < 10 m and total power of all channels > 1000 W ERP (1640 WEIRP)

Building-mounted antennas: total power of all channels > 1000 W ERP (1640W EIRP)

Personal Communications Services (part 24) ... (1) Narrowband PCS (subpart D): non-building-mounted antennas: heightabove ground level to lowest point of antenna < 10 m and total power of allchannels > 1000 W ERP (1640 W EIRP)


(2) Broadband PCS (subpart E): non-building-mounted antennas: height aboveground level to lowest point of antenna < 10 m and total power of all chan-nels > 2000 W ERP (3280 W EIRP)


Satellite Communications (part 25) ................... All included.General Wireless Communications Service

(part 26).Total power of all channels > 1640 W EIRP

Wireless Communications Service (part 27) ..... Total power of all channels > 1640 W EIRPRadio Broadcast Services (part 73) .................. All includedExperimental, auxiliary, and special broadcast

and other program distributional services(part 74).

Subparts A, G, L: power > 100 W ERPSubpart I: non-building-mounted antennas: height above ground level to lowest

point of antenna < 10 m and power > 1640 W EIRPBuilding-mounted antennas: power > 1640 W EIRP

Stations in the Maritime Services (part 80) ....... Ship earth stations onlyPrivate Land Mobile Radio Services Paging

Operations (part 90).Non-building-mounted antennas: height above ground level to lowest point of

antenna < 10 m and power > 1000 W ERP (1640 W EIRP)Building-mounted antennas: power > 1000 W ERP (1640 W EIRP)

Private Land Mobile Radio Services Special-ized Mobile Radio (part 90).

Non-building-mounted antennas: height above ground level to lowest point ofantenna < 10 m and total power of all channels > 1000 W ERP (1640 WEIRP)

Building-mounted antennas:Total power of all channels > 1000 W ERP (1640 W EIRP)

Amateur Radio Service (part 97) ....................... Transmitter output power > levels specified in § 97.13(c)(1) of this chapter


252

47 CFR Ch. I (10–1–97 Edition)§ 1.1307

TABLE 1—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTALEVALUATION—Continued

Service (title 47 CFR rule part) Evaluation required if

Local Multipoint Distribution Service (subpart Lof part 101).

Non-building-mounted antennas: height above ground level to lowest point ofantenna < 10 m and power > 1640 W EIRP

Building-mounted antennas: power > 1640 W EIRPLMDS licensees are required to attach a label to subscriber transceiver anten-

nas that:(1) provides adequate notice regarding potential radiofrequency safety haz-

ards, e.g., information regarding the safe minimum separation distance re-quired between users and transceiver antennas; and

(2) references the applicable FCC-adopted limits for radiofrequency exposurespecified in § 1.1310 of this chapter

(2) Mobile and portable transmittingdevices that operate in the Cellular Ra-diotelephone Service, the PersonalCommunications Services (PCS), theSatellite Communications Services,the General Wireless CommunicationsService, the Wireless CommunicationsService, the Maritime Services (shipearth stations only) and the Special-ized Mobile Radio Service authorizedunder subpart H of parts 22, 24, 25, 26,27, 80, and 90 of this chapter are subjectto routine environmental evaluationfor RF exposure prior to equipment au-thorization or use, as specified in§§ 2.1091 and 2.1093 of this chapter. Unli-censed PCS, unlicensed NII and milli-meter wave devices are also subject toroutine environmental evaluation forRF exposure prior to equipment au-thorization or use, as specified in§§ 15.253(f), 15.255(g), and 15.319(i) and15.407(f) of this chapter. All other mo-bile, portable, and unlicensed transmit-ting devices are categorically excludedfrom routine environmental evaluationfor RF exposure under §§ 2.1091 and2.1093 of this chapter except as speci-fied in paragraphs (c) and (d) of thissection.

(3) In general, when the guidelinesspecified in § 1.1310 are exceeded in anaccessible area due to the emissionsfrom multiple fixed transmitters, ac-tions necessary to bring the area intocompliance are the shared responsibil-ity of all licensees whose transmittersproduce, at the area in question, powerdensity levels that exceed 5% of thepower density exposure limit applica-ble to their particular transmitter orfield strength levels that, whensquared, exceed 5% of the square of theelectric or magnetic field strengthlimit applicable to their particular

transmitter. Owners of transmittersites are expected to allow applicantsand licensees to take reasonable stepsto comply with the requirements con-tained in § 1.1307(b) and, where feasible,should encourage co-location of trans-mitters and common solutions for con-trolling access to areas where the RFexposure limits contained in § 1.1310might be exceeded.

(i) Applicants for proposed (not oth-erwise excluded) transmitters, facili-ties or modifications that would causenon-compliance with the limits speci-fied in § 1.1310 at an accessible area pre-viously in compliance must submit anEA if emissions from the applicant’stransmitter or facility would result, atthe area in question, in a power densitythat exceeds 5% of the power densityexposure limit applicable to that trans-mitter or facility or in a field strengththat, when squared, exceeds 5% of thesquare of the electric or magnetic fieldstrength limit applicable to that trans-mitter or facility.

(ii) Renewal applicants whose (nototherwise excluded) transmitters or fa-cilities contribute to the field strengthor power density at an accessible areanot in compliance with the limits spec-ified in § 1.1310 must submit an EA ifemissions from the applicant’s trans-mitter or facility results, at the area inquestion, in a power density that ex-ceeds 5% of the power density exposurelimit applicable to that transmitter orfacility or in a field strength that,when squared, exceeds 5% of the squareof the electric or magnetic fieldstrength limit applicable to that trans-mitter of facility.

(4) Transition Provisions. For applica-tions filed with the Commission priorto October 15, 1997, (or January 1, 1998,


253


for the Amateur Radio Service only),Commission actions granting construc-tion permits, licenses to transmit orrenewals thereof, equipment authoriza-tions, or modifications in existing fa-cilities require the preparation of anEnvironmental Assessment if the par-ticular facility, operation or transmit-ter would cause human exposure to lev-els of radiofrequency radiation that arein excess of the requirements containedin paragraphs (b)(4)(i) through(b)(4)(iii) of this section. These transi-tion provisions do not apply to applica-tions for equipment authorization oruse of mobile, portable and unlicenseddevices specified in paragraph (b)(2) ofthis section.

(i) For facilities and operations li-censed or authorized under parts 5, 21(subpart K), 25, 73, 74 (subparts A, G, I,and L), and 80 of this chapter, the‘‘Radio Frequency Protection Guides’’recommended in ‘‘American NationalStandard Safety Levels with Respectto Human Exposure to Radio Fre-quency Electromagnetic Fields, 300kHz to 100 GHz’’, (ANSI C95.1–1982), is-sued by the American National Stand-ards Institute (ANSI) and copyright1982 by the Institute of Electrical andElectronics Engineers, Inc., New York,New York shall apply. With respect tosubpart K of part 21 and subpart I ofpart 74 of this chapter, these require-ments apply only to multipoint dis-tribution service and instructional tel-evision fixed service stations transmit-ting with an equivalent isotropicallyradiated power (EIRP) in excess of 200watts. With respect to subpart L ofpart 74 of this chapter, these require-ments apply only to FM booster andtranslator stations transmitting withan effective radiated power (ERP) inexcess of 100 watts. With respect topart 80 of this chapter, these require-ments apply only to ship earth sta-tions.

(ii) For facilities and operations li-censed or authorized under part 24 ofthis chapter, licensees and manufactur-ers are required to ensure that their fa-cilities and equipment comply withIEEE C95.1–1991 (ANSI/IEEE C95.1–1992),‘‘Safety Levels With Respect to HumanExposure to Radio Frequency Electro-magnetic Fields, 3 kHz to 300 GHz.’’Measurement methods are specified in

IEEE C95.3–1991, ‘‘Recommended Prac-tice for the Measurement of Poten-tially Hazardous ElectromagneticFields—RF and Microwave.’’ Copies ofthese standards are available fromIEEE Standards Board, 445 Hoes Lane,P.O. Box 1331, Piscataway, NJ 08855–1331. Telephone: 1–800–678–4333. The lim-its for both ‘‘controlled’’ and ‘‘uncon-trolled’’ environments, as defined byIEEE C95.1–1991, will apply to all PCSbase and mobile stations, as appro-priate.

(iii) Applications for all other typesof facilities and operations are cat-egorically excluded from routine RFradiation evaluation except as providedin paragraphs (c) and (d) of this sec-tion.

(5) Existing transmitting facilities, de-vices and operations: All existing trans-mitting facilities, operations and de-vices regulated by the Commissionmust be in compliance with the re-quirements of paragraphs (b)(1)through (b)(3) of this section by Sep-tember 1, 2000, or, if not in compliance,file an Environmental Assessment asspecified in § 1.1311.

(c) If an interested person allegesthat a particular action, otherwise cat-egorically excluded, will have a signifi-cant environmental effect, the personshall submit to the Bureau responsiblefor processing that action a written pe-tition setting forth in detail the rea-sons justifying or circumstances neces-sitating environmental considerationin the decision-making process. (See§ 1.1313). The Bureau shall review thepetition and consider the environ-mental concerns that have been raised.If the Bureau determines that the ac-tion may have a significant environ-mental impact, the Bureau will requirethe applicant to prepare an EA (see§§ 1.1308 and 1.1311), which will serve asthe basis for the determination to pro-ceed with or terminate environmentalprocessing.

(d) If the Bureau responsible for proc-essing a particular action, otherwisecategorically excluded, determinesthat the proposal may have a signifi-cant environmental impact, the Bu-reau, on its own motion, shall requirethe applicant to submit an EA. The Bu-reau will review and consider the EA asin paragraph (c) of this section.


254

47 CFR Ch. I (10–1–97 Edition)§ 1.1307

(e) No State or local government orinstrumentality thereof may regulatethe placement, construction, and modi-fication of personal wireless service fa-cilities on the basis of the environ-mental effects of radio frequency emis-sions to the extent that such facilitiescomply with the regulations containedin this chapter concerning the environ-mental effects of such emissions. Forpurposes of this paragraph:

(1) The term personal wireless servicemeans commercial mobile services, un-licensed wireless services, and commoncarrier wireless exchange access serv-ices;

(2) The term personal wireless servicefacilities means facilities for the provi-sion of personal wireless services;

(3) The term unlicensed wireless serv-ices means the offering of tele-communications services using dulyauthorized devices which do not re-quire individual licenses, but does notmean the provision of direct-to-homesatellite services; and

(4) The term direct-to-home satelliteservices means the distribution orbroadcasting of programming or serv-ices by satellite directly to the sub-scriber’s premises without the use ofground receiving or distribution equip-ment, except at the subscriber’s prem-ises or in the uplink process to the sat-ellite.

[51 FR 15000, Apr. 22, 1986, as amended at 52FR 13241, Apr. 22, 1987; 53 FR 28224, July 27,1988; 53 FR 28393, July 28, 1988; 54 FR 30548,July 21, 1989; 55 FR 2381, Jan. 24, 1990; 55 FR50692, Dec. 10, 1990; 61 FR 41014, Aug. 7, 1996;62 FR 3240, Jan. 22, 1997; 62 FR 4655, Jan. 31,1997; 62 FR 9654, Mar. 3, 1997; 62 FR 23162, Apr.29, 1997; 62 FR 47965, Sept. 12, 1997]

EFFECTIVE DATE NOTE: At 62 FR 47965,Sept. 12, 1997, § 1.1307 was amended by revis-ing paragraphs (b)(1), (2), (3), and (4) intro-ductory text, and adding (b)(5), effective Oct.15, 1997. For the convenience of the user, thesuperseded text is set forth as follows:

§ 1.1307 Actions that may have a significantenvironmental effect, for which Environ-mental Assessments (EAs) must be pre-pared.

* * * * *

(b) * * *(1) The exposure limits in § 1.1310 are gen-

erally applicable to all facilities, operationsand transmitters regulated by the Commis-sion. However, a determination of compli-ance with the exposure limits in § 1.1310 (rou-tine environmental evaluation), and prepara-tion of an EA if the limits are exceeded, isnecessary only for facilities, operations andtransmitters that fall into the categorieslisted in Table 1, or those specified in para-graph (b)(2) of this section. All other facili-ties, operations and transmitters are cat-egorically excluded from making such stud-ies or preparing an EA, except as indicatedin paragraphs (c) and (d) of this section. Forpurposes of Table 1, ‘‘rooftop’’ means theroof or otherwise outside, topmost level orlevels of a building structure that is occu-pied as a workplace or residence and whereeither workers or the general public mayhave access. The term ‘‘power’’ in column 2of Table 1 refers to total operating power ofthe transmitting operation in question interms of effective radiated power (ERP),equivalent isotropically radiated power(EIRP), or peak envelope power (PEP), as de-fined in § 2.1 of this chapter. For the case ofthe Cellular Radiotelephone Service, subpartH of part 22 of this chapter; the PersonalCommunications Service, part 24 of thischapter; the Wireless Communications Serv-ice, part 27 of this chapter; and covered Spe-cialized Mobile Radio Service operations,part 90 of this chapter; the phrase ‘‘totalpower of all channels’’ in column 2 of Table1 means the sum of the ERP or EIRP of allco-located simultaneously operating trans-mitters of the facility. When applying thecriteria of Table 1, radiation in all directionsshould be considered. For the case of trans-mitting facilities using sectorized transmit-ting antennas, applicants and licenseesshould apply the criteria to all transmittingchannels in a given sector, noting that for ahighly directional antenna there is rel-atively little contribution to ERP or EIRPsummation for other directions.

TABLE 1—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTALEVALUATION

Service (Title 47 CFR Rule Part) Evaluation required if:

Experimental Radio Services (part 5) ....................... Power > 100W ERP (164W EIRP).Radio Frequency Devices (part 15) .......................... Millimeter wave devices operating in one of the following bands 46.7–46.8

GHz, 59.0–64.0 GHz or 76.0–77.0 GHz (see §§ 15.253 and 15.255 ofthis chapter).

Unlicensed personal communications service devices operating undersubpart D of this chapter.


255


TABLE 1—TRANSMITTERS, FACILITIES AND OPERATIONS SUBJECT TO ROUTINE ENVIRONMENTALEVALUATION—Continued

Service (Title 47 CFR Rule Part) Evaluation required if:

Multipoint Distribution Service (subpart K of part 21) Non-rooftop antennas: height above ground level to radiation center < 10m and power > 1640 W EIRP.

Rooftop antennas: Power > 1640W EIRP.Paging and Radiotelephone Service (subpart E of

part 22).Non-rooftop antennas: height above ground level to radiation center < 10

m and power > 1000W ERP (1640 W EIRP).Rooftop antennas: power > 1000W ERP (1640W EIRP).

Cellular Radiotelephone Service (subpart H of part22).

Non-rooftop antennas: height above ground level to radiation center < 10m and total power of all channels > 1000W ERP (1640 W EIRP).

Rooftop antennas: total power of all channels > 1000W ERP (1640WEIRP).

Personal Communications Services (part 24) ........... (1) Narrowband PCS (subpart D): non-rooftop antennas: height aboveground level to radiation center <10 m and total power of all channels >1000W ERP (1640 W EIRP).

Rooftop antennas: total power of all channels > 1000W (1640W EIRP).(2) Broadband PCS (subpart E): non-rooftop antennas: height above

ground level to radiation center <10 m and total power of all channels >2000W ERP (3280 W EIRP).

Rooftop antennas: total power of all channels > 2000W (3280W EIRP).Satellite Communications (part 25) ........................... All included.Wireless Communications Service (part 27) ............. Total power of all channels > 1000 W ERP (1640 W EIRP)Radio Broadcast Services (part 73) .......................... All included.Experimental, auxiliary, and special broadcast and

other program distributional services (part 74).Subparts A, G, L: power > 100W ERP.Subpart I: non-rooftop antennas: height above ground level to radiation

center < 10 m and power > 1640 W EIRP.Rooftop antennas: power > 1640W EIRP.

Stations in the Maritime Services (part 80) ............... Ship earth stations only.Private Land Mobile Radio Services Paging Oper-

ations (part 90).Non-rooftop antennas: height above ground level to radiation center < 10

m and power > 1000W ERP (1640 W EIRP).Rooftop antennas: power > 1000W ERP (1640W EIRP).

Private Land Mobile Radio Services SpecializedMobile Radio (‘‘covered’’ providers only—seebelow)1 (part 90).

Non-rooftop antennas: height above ground level to radiation center < 10m and total power of all channels > 1000W ERP (1640 W EIRP).

Rooftop antennas: total power of all channels > 1000W ERP (1640WEIRP).

Amateur Radio Service (part 97) .............................. Transmitter power > 50W PEP.Local Multipoint Distribution Service (subpart L of

part 101).Non-rooftop antennas: Height above ground level to radiation center <10

m and power >1640 W EIRP.Rooftop antennas: Power > 1640 W EIRP.LMDS licensees are required to attach a label to subscriber transceiver

antennas that (1) provides adequate notice regarding potential radio fre-quency safety hazards, e.g., information regarding the safe minimumseparation distance required between users and transceiver antennas;and (2) references the applicable FCC radio frequency emission guide-lines contained in FCC OST Bulletin 65, 2d Edition.

1 NOTE: ‘‘Covered’’ SMR providers includes geographic area SMR licensees in the 800 MHz and 900 MHz bands that offerreal-time, two-way switched voice service that is interconnected with the public switched network and Incumbent Wide Area SMRlicensees, as defined in § 20.3 of this chapter.

(2) Mobile and portable transmitting de-vices that operate in the Cellular Radio-telephone Service, the Personal Communica-tions Services, the Satellite Communica-tions Services, the Wireless CommunicationsService, the Maritime Services (ship earthstations only), and covered Specialized Mo-bile Radio Service providers authorizedunder subpart H of part 22, part 24, part 25,part 27, part 80, and part 90 of this chapterare subject to routine environmental evalua-tion for RF exposure prior to equipment au-thorization or use, as specified in §§ 2.1091and 2.1093 of this chapter. All unlicensedPCS, unlicensed NII and millimeter wave de-vices are also subject to routine environ-mental evaluation for RF exposure prior toequipment authorization or use, as specified

in §§ 15.253(f), 15.255(g), 15.319(i), and 15.407(f)of this chapter. All other mobile, portable,and unlicensed transmitting devices are cat-egorically excluded from routine environ-mental evaluation for RF exposure under§§ 2.1091 and 2.1093 of this chapter except asspecified in paragraphs (c) and (d) of this sec-tion.

(3) In general, when the guidelines speci-fied in § 1.1310 are exceeded in an accessiblearea due to the emissions from multiplefixed transmitters, actions necessary tobring the area into compliance with theguidelines are the shared responsibility of alllicensees whose transmitters produce fieldstrengths or power density levels at the areain question in excess of 1% of the exposure


256

47 CFR Ch. I (10–1–97 Edition)§ 1.1308

limits applicable to their particular trans-mitter.

(i) Applicants for proposed (not otherwiseexcluded) transmitters, facilities or modi-fications that would cause non-compliancewith the limits specified in § 1.1310 at an ac-cessible area previously in compliance mustsubmit an EA if emissions from the appli-cant’s transmitter or facility would result ina field strength or power density at the areain question that exceeds 1% of the exposurelimit applicable to that transmitter or facil-ity.

(ii) Renewal applicants whose (not other-wise excluded) transmitters or facilities con-tribute to the field strength or power densityat an accessible area not in compliance withthe limits specified in § 1.1310 must submit anEA if emissions from the applicant’s trans-mitter or facility results in a field strengthor power density at the area in question thatexceeds 1% of the exposure limit applicableto that transmitter or facility.

(4) Transition Provisions. For applicationsfiled with the Commission prior to Septem-ber 1, 1997 (January 1, 1998 for the AmateurRadio Service only), Commission actionsgranting construction permits, licenses totransmit or renewals thereof, equipment au-thorizations, or modifications in existing fa-cilities require the preparation of an Envi-ronmental Assessment if the particular facil-ity, operation or transmitter would causehuman exposure to levels of radiofrequencyradiation that are in excess of the require-ments contained in paragraphs (b) (4)(i)through (4)(iii) of this section. These transi-tion provisions do not apply to applicationsfor equipment authorization or use of mo-bile, portable, and unlicensed devices speci-fied in paragraph (b)(2) of this section.

* * * * *

§ 1.1308 Consideration of environ-mental assessments (EAs); findingsof no significant impact.

(a) Applicants shall prepare EAs foractions that may have a significant en-vironmental impact (see § 1.1307). AnEA is described in detail in § 1.1311 ofthis part of the Commission rules.

(b) The EA is a document which shallexplain the environmental con-sequences of the proposal and set forthsufficient analysis for the Bureau orthe Commission to reach a determina-tion that the proposal will or will nothave a significant environmental ef-fect. To assist in making that deter-mination, the Bureau or the Commis-sion may request further informationfrom the applicant, interested persons,and agencies and authorities which

have jurisdiction by law or which haverelevant expertise.

NOTE: With respect to actions specifiedunder § 1.1307 (a)(3) and (a)(4), the Commis-sion shall solicit and consider the commentsof the Department of Interior, and the StateHistoric Preservation Officer and the Advi-sory Council on Historic Preservation, re-spectively, in accordance with their estab-lished procedures. See Interagency Coopera-tion—Endangered Species Act of 1973, asamended, 50 CFR part 402; Protection of His-toric and Cultural Properties, 36 CFR part800. In addition, when an action interfereswith or adversely affects an American Indiantribe’s religious site, the Commission shallsolicit the views of that American Indiantribe. See § 1.1307(a)(5).

(c) If the Bureau or the Commissiondetermines, based on an independentreview of the EA and any applicablemandatory consultation requirementsimposed upon federal agencies (see noteabove), that the proposal will have asignificant environmental impact uponthe quality of the human environment,it will so inform the applicant. The ap-plicant will then have an opportunityto amend its application so as to re-duce, minimize, or eliminate environ-mental problems. See § 1.1309. If the en-vironmental problem is not eliminated,the Bureau will publish in the FEDERALREGISTER a Notice of Intent (see§ 1.1314) that EISs will be prepared (see§§ 1.1315 and 1.1317), or

(d) If the Bureau or Commission de-termines, based on an independent re-view of the EA, and any mandatoryconsultation requirements imposedupon federal agencies (see the note toparagraph (b) of this section), that theproposal would not have a significantimpact, it will make a finding of nosignificant impact. Thereafter, the ap-plication will be processed without fur-ther documentation of environmentaleffect. Pursuant to CEQ regulations,see 40 CFR 1501.4 and 1501.6, the appli-cant must provide the community no-tice of the Commission’s finding of nosignificant impact.

[51 FR 15000, Apr. 22, 1986; 51 FR 18889, May23, 1986, as amended at 53 FR 28394, July 28,1988]

§ 1.1309 Application amendments.Applicants are permitted to amend

their applications to reduce, minimizeor eliminate potential environmental


257


problems. As a routine matter, an ap-plicant will be permitted to amend itsapplication within thirty (30) daysafter the Commission or the Bureau in-forms the applicant that the proposalwill have a significant impact upon thequality of the human environment (see§ 1.1308(c)). The period of thirty (30)days may be extended upon a showingof good cause.

§ 1.1310 Radiofrequency radiation ex-posure limits.

The criteria listed in table 1 shall beused to evaluate the environmental im-pact of human exposure to radio-frequency (RF) radiation as specified in§ 1.1307(b), except in the case of port-able devices which shall be evaluatedaccording to the provisions of § 2.1093 ofthis chapter. Further information onevaluating compliance with these lim-its can be found in the FCC’s OST/OET

Bulletin Number 65, ‘‘Evaluating Com-pliance with FCC-Specified Guidelinesfor Human Exposure to RadiofrequencyRadiation.’’

NOTE TO INTRODUCTORY PARAGRAPH: Theselimits are generally based on recommendedexposure guidelines published by the Na-tional Council on Radiation Protection andMeasurements (NCRP) in ‘‘Biological Effectsand Exposure Criteria for RadiofrequencyElectromagnetic Fields,’’ NCRP Report No.86, Sections 17.4.1, 17.4.1.1, 17.4.2 and 17.4.3.Copyright NCRP, 1986, Bethesda, Maryland20814. In the frequency range from 100 MHz to1500 MHz, exposure limits for field strengthand power density are also generally basedon guidelines recommended by the AmericanNational Standards Institute (ANSI) in Sec-tion 4.1 of ‘‘IEEE Standard for Safety Levelswith Respect to Human Exposure to RadioFrequency Electromagnetic Fields, 3 kHz to300 GHz,’’ ANSI/IEEE C95.1–1992, Copyright1992 by the Institute of Electrical and Elec-tronics Engineers, Inc., New York, New York10017.

TABLE 1—LIMITS FOR MAXIMUM PERMISSIBLE EXPOSURE (MPE)

Frequency range(MHz)

Electric fieldstrength

(V/m)

Magnetic fieldstrength

(A/m)

Power density(mW/cm2)

Averaging time(minutes)

(A) Limits for Occupational/Controlled Exposures

0.3–3.0 ........................................................... 614 1.63 *(100) 63.0–30 ............................................................ 1842/f 4.89/f *(900/f2) 630–300 ........................................................... 61.4 0.163 1.0 6300–1500 ....................................................... .............................. .............................. f/300 61500–100,000 ................................................ .............................. .............................. 5 6

(B) Limits for General Population/Uncontrolled Exposure

0.3–1.34 ......................................................... 614 1.63 *(100) 301.34–30 .......................................................... 824/f 2.19/f *(180/f2) 3030–300 ........................................................... 27.5 0.073 0.2 30300–1500 ....................................................... .............................. .............................. f/1500 301500–100,000 ................................................ .............................. .............................. 1.0 30

f = frequency in MHz* = Plane-wave equivalent power densityNOTE 1 TO TABLE 1: Occupational/controlled limits apply in situations in which persons are exposed as a consequence of their

employment provided those persons are fully aware of the potential for exposure and can exercise control over their exposure.Limits for occupational/controlled exposure also apply in situations when an individual is transient through a location where occu-pational/controlled limits apply provided he or she is made aware of the potential for exposure.

NOTE 2 TO TABLE 1: General population/uncontrolled exposures apply in situations in which the general public may be ex-posed, or in which persons that are exposed as a consequence of their employment may not be fully aware of the potential forexposure or can not exercise control over their exposure.

[61 FR 41016, Aug. 7, 1996]

§ 1.1311 Environmental information tobe included in the environmentalassessment (EA).

(a) The applicant shall submit an EAwith each application that is subject toenvironmental processing (see § 1.1307).The EA shall contain the following in-formation:

(1) For antenna towers and satelliteearth stations, a description of the fa-cilities as well as supporting structuresand appurtenances, and a description ofthe site as well as the surrounding areaand uses. If high intensity white light-ing is proposed or utilized within a res-idential area, the EA must also addressthe impact of this lighting upon theresidents.


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47 CFR Ch. I (10–1–97 Edition)§ 1.1312

(2) A statement as to the zoning clas-sification of the site, and communica-tions with, or proceedings before anddeterminations (if any) made by zon-ing, planning, environmental or otherlocal, state or federal authorities onmatters relating to environmental ef-fect.

(3) A statement as to whether con-struction of the facilities has been asource of controversy on environ-mental grounds in the local commu-nity.

(4) A discussion of environmental andother considerations which led to theselection of the particular site and, ifrelevant, the particular facility; thenature and extent of any unavoidableadverse environmental effects, and anyalternative sites or facilities whichhave been or might reasonably be con-sidered.

(5) Any other information that maybe requested by the Bureau or Commis-sion.

(6) If endangered or threatened spe-cies or their critical habitats may beaffected, the applicant’s analysis mustutilize the best scientific and commer-cial data available, see 50 CFR 402.14(c).

(b) The information submitted in theEA shall be factual (not argumentativeor conclusory) and concise with suffi-cient detail to explain the environ-mental consequences and to enable theCommission or Bureau, after an inde-pendent review of the EA, to reach adetermination concerning the propos-al’s environmental impact, if any. TheEA shall deal specifically with any fea-ture of the site which has special envi-ronmental significance (e.g., wildernessareas, wildlife preserves, natural mi-gration paths for birds and other wild-life, and sites of historic, architectural,or archeological value). In the case ofhistorically significant sites, it shallspecify the effect of the facilities onany district, site, building, structure orobject listed, or eligible for listing, inthe National Register of HistoricPlaces. It shall also detail any substan-tial change in the character of the landutilized (e.g., deforestation, water di-version, wetland fill, or other extensivechange of surface features). In the caseof wilderness areas, wildlife preserves,or other like areas, the statement shalldiscuss the effect of any continuing

pattern of human intrusion into thearea (e.g., necessitated by the oper-ation and maintenance of the facili-ties).

(c) The EA shall also be accompaniedwith evidence of site approval whichhas been obtained from local or federalland use authorities.

(d) To the extent that such informa-tion is submitted in another part of theapplication, it need not be duplicatedin the EA, but adequate cross-referenceto such information shall be supplied.

(e) An EA need not be submitted tothe Commission if another agency ofthe Federal Government has assumedresponsibility for determining whetherof the facilities in question will have asignificant effect on the quality of thehuman environment and, if it will, forinvoking the environmental impactstatement process.

[51 FR 15000, Apr. 22, 1986, as amended at 51FR 18889, May 23, 1986; 53 FR 28394, July 28,1988]

§ 1.1312 Facilities for which nopreconstruction authorization is re-quired.

(a) In the case of facilities for whichno Commission authorization prior toconstruction is required by the Com-mission’s rules and regulations the li-censee or applicant shall initially as-certain whether the proposed facilitymay have a significant environmentalimpact as defined in § 1.1307 of this partor is categorically excluded from envi-ronmental processing under § 1.1306 ofthis part.

(b) If a facility covered by paragraph(a) of this section may have a signifi-cant environmental impact, the infor-mation required by § 1.1311 of this partshall be submitted by the licensee orapplicant and ruled on by the Commis-sion, and environmental processing (ifinvoked) shall be completed, see § 1.1308of this part, prior to the initiation ofconstruction of the facility.

(c) If a facility covered by paragraph(a) of this section is categorically ex-cluded from environmental processing,the licensee or applicant may proceedwith construction and operation of thefacility in accordance with the applica-ble licensing rules and procedures.


259


(d) If, following the initiation of con-struction under this section, the li-censee or applicant discovers that theproposed facility may have a signifi-cant environmental effect, it shall im-mediately cease construction whichmay have that effect, and submit theinformation required by § 1.1311 of thispart. The Commission shall rule onthat submission and complete furtherenvironmental processing (if invoked),see § 1.1308 of this part, before such con-struction is resumed.

(e) Paragraphs (a) through (d) of thissection shall not apply to the construc-tion of mobile stations.

[55 FR 20396, May 16, 1990, as amended at 56FR 13414, Apr. 2, 1991]

§ 1.1313 Objections.

(a) In the case of an application towhich section 309(b) of the Communica-tions Act applies, objections based onenvironmental considerations shall befiled as petitions to deny.

(b) Informal objections which arebased on environmental considerationsmust be filed prior to grant of the con-struction permit, or prior to authoriza-tion for facilities that do not requireconstruction permits, or pursuant tothe applicable rules governing servicessubject to lotteries.

§ 1.1314 Environmental impact state-ments (EISs).

(a) Draft Environmental ImpactStatements (DEISs) (§ 1.1315) and FinalEnvironmental Impact Statements(FEISs) (referred to collectively asEISs) (§ 1.1317) shall be prepared by theBureau responsible for processing theproposal when the Commission’s or theBureau’s analysis of the EA (§ 1.1308)indicates that the proposal will have asignificant effect upon the environ-ment and the matter has not been re-solved by an amendment.

(b) As soon as practically feasible,the Bureau will publish in the FEDERALREGISTER a Notice of Intent to prepareEISs. The Notice shall briefly identifythe proposal, concisely describe the en-vironmental issues and concerns pre-sented by the subject application, andgenerally invite participation from af-fected or involved agencies, authoritiesand other interested persons.

(c) The EISs shall not address non-environmental considerations. To safe-guard against repetitive and unneces-sarily lengthy documents, the State-ments, where feasible, shall incor-porate by reference material set forthin previous documents, with only abrief summary of its content. In pre-paring the EISs, the Bureau will iden-tify and address the significant envi-ronmental issues and eliminate the in-significant issues from analysis.

(d) To assist in the preparation of theEISs, the Bureau may request furtherinformation from the applicant, inter-ested persons and agencies and authori-ties, which have jurisdiction by law orwhich have relevant expertise. The Bu-reau may direct that technical studiesbe made by the applicant and that theapplicant obtain expert opinion con-cerning the potential environmentalproblems and costs associated with theproposed action, as well as comparativeanalyses of alternatives. The Bureaumay also consult experts in an effort toidentify measures that could be takento minimize the adverse effects and al-ternatives to the proposed facilitiesthat are not, or are less, objectionable.The Bureau may also direct that objec-tions be raised with appropriate local,state or federal land use agencies orauthorities (if their views have notbeen previously sought).

(e) The Bureau responsible for proc-essing the particular application and,thus, preparing the EISs shall draftsupplements to Statements where sig-nificant new circumstances occur or in-formation arises relevant to environ-mental concerns and bearing upon theapplication.

(f) The Application, the EA, theDEIS, and the FEIS and all relateddocuments, including the commentsfiled by the public and any agency,shall be part of the administrativerecord and will be routinely availablefor public inspection.

(g) If EISs are to be prepared, the ap-plicant must provide the communitywith notice of the availability of envi-ronmental documents and the schedul-ing of any Commission hearings in thataction.

(h) The timing of agency action withrespect to applications subject to EISs


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47 CFR Ch. I (10–1–97 Edition)§ 1.1315

is set forth in 40 CFR 1506.10. No deci-sion shall be made until ninety (90)days after the Notice of Availability ofthe Draft Environmental Impact State-ment is published in the Federal Reg-ister, and thirty (30) days after the No-tice of Availability of the Final Envi-ronmental Impact Statement is pub-lished in the FEDERAL REGISTER, whichtime period may run concurrently, See40 CFR 1506.10(c); see also §§ 1.1315(b) and1.1317(b).

(i) Guidance concerning preparationof the Draft and Final EnvironmentalStatements is set out in 40 CFR part1502.

[51 FR 15000, Apr. 22, 1986, as amended at 53FR 28394, July 28, 1988]

§ 1.1315 The Draft Environmental Im-pact Statement (DEIS); Comments.

(a) The DEIS shall include:(1) A concise description of the pro-

posal, the nature of the area affected,its uses, and any specific feature of thearea that has special environmentalsignificance;

(2) An analysis of the proposal, andreasonable alternatives exploring theimportant consequent advantages and/or disadvantages of the action and indi-cating the direct and indirect effectsand their significance in terms of theshort and long-term uses of the humanenvironment.

(b) When a DEIS and supplements, ifany, are prepared, the Commissionshall send five copies of the Statement,or a summary, to the Office of FederalActivities, Environmental ProtectionAgency. Additional copies, or sum-maries, will be sent to the appropriateregional office of the EnvironmentalProtection Agency. Public Notice ofthe availability of the DEIS will bepublished in the FEDERAL REGISTER bythe Environmental Protection Agency.

(c) When copies or summaries of theDEIS are sent to the EnvironmentalProtection Agency, the copies or sum-maries will be mailed with a requestfor comment to federal agencies havingjurisdiction by law or special expertise,to the Council on Environmental Qual-ity, to the applicant, to individuals,groups and state and local agenciesknown to have an interest in the envi-ronmental consequences of a grant, and

to any other person who has requesteda copy.

(d) Any person or agency may com-ment on the DEIS and the environ-mental effect of the proposal describedtherein within 45 days after notice ofthe availability of the statement ispublished in the FEDERAL REGISTER. Acopy of those comments shall bemailed to the applicant by the personwho files them pursuant to 47 CFR 1.47.An original and one copy shall be filedwith the Commission. If a person sub-mitting comments is especially quali-fied in any way to comment on the en-vironmental impact of the facilities, astatement of his or her qualificationsshall be set out in the comments. Inaddition, comments submitted by anagency shall identify the person(s) whoprepared them.

(e) The applicant may file reply com-ments within 15 days after the time forfiling comments has expired. Replycomments shall be filed with the Com-mission in the same manner as com-ments, and shall be served by the appli-cant on persons or agencies which filedcomments.

(f) The preparation of a DEIS and therequest for comments shall not openthe application to attack on othergrounds.

§ 1.1317 The Final Environmental Im-pact Statement (FEIS).

(a) After receipt of comments andreply comments, the Bureau will pre-pare a FEIS, which shall include asummary of the comments, and a re-sponse to the comments, and an analy-sis of the proposal in terms of its envi-ronmental consequences, and any rea-sonable alternatives, and recommenda-tions, if any, and shall cite the Com-mission’s internal appeal procedures(See 47 CFR 1.101–1.120).

(b) The FEIS and any supplementswill be distributed and published in thesame manner as specified in § 1.1315.Copies of the comments and reply com-ments, or summaries thereof where therecord is voluminous, shall be attachedto the FEIS.

§ 1.1319 Consideration of the environ-mental impact statements.

(a) If the action is subject to a hear-ing:


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(1) In rendering his initial decision,the Administrative Law Judge shallutilize the FEIS in considering the en-vironmental issues, together with allother non-environmental issues. In acomparative context, the respectiveparties shall be afforded the oppor-tunity to comment on the FEIS, andthe Administrative Law Judge’s deci-sion shall contain an evaluation of therespective applications based on envi-ronmental and non-environmental pub-lic interest factors.

(2) Upon review of an initial decision,the Commission will consider and as-sess all aspects of the FEIS and willrender its decision, giving due consid-eration to the environmental and non-environmental issues.

(b) In all non-hearing matters, theCommission, as part of its decision-making process, will review the FEIS,along with other relevant issues, to en-sure that the environmental effects arespecifically assessed and given com-prehensive consideration.

[51 FR 15000, Apr. 22, 1986, as amended at 62FR 4171, Jan. 29, 1997]

Subpart J—Pole AttachmentComplaint Procedures

SOURCE: 43 FR 36094, Aug. 15, 1978, unlessotherwise noted.

§ 1.1401 Purpose.

The rules and regulations containedin subpart J of this part provide com-plaint and enforcement procedures toensure that telecommunications car-riers and cable system operators havenondiscriminatory access to utilitypoles, ducts, conduits, and rights-of-way on rates, terms, and conditionsthat are just and reasonable.

[61 FR 45618, Aug. 29, 1996]

§ 1.1402 Definitions.

(a) The term utility means any personthat is a local exchange carrier or anelectric, gas, water, steam, or otherpublic utility, and who owns or con-trols poles, ducts, conduits, or rights-of-way used, in whole or in part, forany wire communications. Such termdoes not include any railroad, any per-

son that is cooperatively organized, orany person owned by the Federal Gov-ernment or any State.

(b) The term pole attachment meansany attachment by a cable televisionsystem or provider of telecommuni-cations service to a pole, duct, conduit,or right-of-way owned or controlled bya utility.

(c) The term usable space means thespace on a utility pole above the mini-mum grade level which can be used forthe attachment of wires, cables, andassociated equipment.

(d) The term complaint means a filingby a cable television system operator,a cable television system association, autility, an association of utilities, atelecommunications carrier, or an as-sociation of telecommunications car-riers alleging that it has been deniedaccess to a utility pole, duct, conduit,or right-of-way in violation of this sub-part and/or that a rate, term, or condi-tion for a pole attachment is not justand reasonable.

(e) The term complainant means acable television system operator, acable television system association, autility, an association of utilities, atelecommunications carrier, or an as-sociation of telecommunications car-riers who files a complaint.

(f) The term respondent means a cabletelevision system operator, a utility,or a telecommunications carrieragainst whom a complaint is filed.

(g) The term State means any State,territory, or possession of the UnitedStates, the District of Columbia, orany political subdivision, agency, or in-strumentality thereof.

(h) For purposes of this subpart, theterm telecommunications carrier meansany provider of telecommunicationsservices, except that the term does notinclude aggregators of telecommuni-cations services (as defined in 47 U.S.C.226) or incumbent local exchange car-riers (as defined in 47 U.S.C. 251(h)).

[43 FR 36094, Aug. 15, 1978, as amended at 52FR 31770, Aug. 24, 1987; 61 FR 43024, Aug. 20,1996; 61 FR 45618, Aug. 29, 1996]


262

47 CFR Ch. I (10–1–97 Edition)§ 1.1403

§ 1.1403 Duty to provide access; modi-fications; notice of removal, in-crease or modification; petition fortemporary stay.

(a) A utility shall provide a cable tel-evision system or any telecommuni-cations carrier with nondiscriminatoryaccess to any pole, duct, conduit, orright-of-way owned or controlled by it.Notwithstanding this obligation, autility may deny a cable television sys-tem or any telecommunications carrieraccess to its poles, ducts, conduits, orrights-of-way, on a non-discriminatorybasis where there is insufficient capac-ity or for reasons of safety, reliabilityand generally applicable engineeringpurposes.

(b) Requests for access to a utility’spoles, ducts, conduits or rights-of-wayby a telecommunications carrier orcable operator must be in writing. Ifaccess is not granted within 45 days ofthe request for access, the utility mustconfirm the denial in writing by the45th day. The utility’s denial of accessshall be specific, shall include all rel-evant evidence and information sup-porting its denial, and shall explainhow such evidence and information re-late to a denial of access for reasons oflack of capacity, safety, reliability orengineering standards.

(c) A utility shall provide a cable tel-evision system operator or tele-communications carrier no less than 60days written notice prior to:

(1) Removal of facilities or termi-nation of any service to those facili-ties, such removal or termination aris-ing out of a rate, term or condition ofthe cable television system operator’sof telecommunications carrier’s poleattachment agreement;

(2) Any increase in pole attachmentrates; or

(3) Any modification of facilitiesother than routine maintenance ormodification in response to emer-gencies.

(d) A cable television system opera-tor or telecommunications carrier mayfile a ‘‘Petition for Temporary Stay’’ ofthe action contained in a notice re-ceived pursuant to paragraph (c) of thissection within 15 days of receipt ofsuch notice. Such submission shall notbe considered unless it includes, in con-cise terms, the relief sought, the rea-

sons for such relief, including a show-ing of irreparable harm and likely ces-sation of cable television service ortelecommunication service, a copy ofthe notice, and certification of serviceas required by § 1.1404(b). The named re-spondent may file an answer within 7days of the date the Petition for Tem-porary Stay was filed. No further fil-ings under this section will be consid-ered unless requested or authorized bythe Commission and no extensions oftime will be granted unless justifiedpursuant to § 1.46.5.

[61 FR 45618, Aug. 29, 1996]

§ 1.1404 Complaint.(a) The complaint shall contain the

name and address of the complainant,name and address of the respondent,and shall contain a verification (in theform in § 1.721(b)), signed by the com-plainant or officer thereof if complain-ant is a corporation, showing com-plainant’s direct interest in the mattercomplained of. Counsel for the com-plainant may sign the complaint. Com-plainants may join together to file ajoint complaint. Complaints filed byassociations shall specifically identifyeach utility, cable television systemoperator, or telecommunications car-rier who is a party to the complaintand shall be accompanied by a docu-ment from each identified member cer-tifying that the complaint is beingfiled on its behalf.

(b) The complaint shall be accom-panied by a certification of service onthe named respondent, and each of theFederal, State, and local governmentalagencies that regulate any aspect ofthe services provided by the complain-ant or respondent.

(c) In a case where it is claimed thata rate, term, or condition is unjust orunreasonable, the complaint shall con-tain a statement that the State has notcertified to the Commission that it reg-ulates the rates, terms and conditionsfor pole attachments. The complaintshall include a statement that the util-ity is not owned by any railroad, anyperson who is cooperatively organizedor any person owned by the FederalGovernment or any State.

(d) The complaint shall be accom-panied by a copy of the pole attach-ment agreement, if any, between the


263


cable system operator or telecommuni-cations carrier and the utility. If thereis no present pole attachment agree-ment, the complaint shall contain:

(1) A statement that the utility usesor controls poles, ducts, or conduitsused or designated, in whole or in part,for wire communication; and

(2) A statement that the cable tele-vision system operator or tele-communications carrier currently hasattachments on the poles, ducts, con-duits, or rights-of-way.

(e) The complaint shall state withspecificity the pole attachment rate,term or condition which is claimed tobe unjust or unreasonable.

(f) In any case, where it is claimedthat a term or condition is unjust orunreasonable, the claim shall specifyall information and argument reliedupon to justify said claim.

(g) In a case where it is claimed thateither a rate is unjust or unreasonable,or a term or condition is unjust or un-reasonable and examination of suchterm or condition requires review ofthe associated rate, the complaintshall provide data and information insupport of said claim. The data and in-formation shall include, where applica-ble:

(1) The gross investment by the util-ity for pole lines;

(2) The investment in crossarms andother items which do not reflect thecost of owning and maintaining poles,if available;

(3) The depreciation reserve from thegross pole line investment;

(4) The depreciation reserve from theinvestment in crossarms and otheritems which do not reflect the cost ofowning and maintaining poles, if avail-able;

(5) The total number of poles: (i)Owned; and (ii) controlled or used bythe utility.

If any of these poles are jointlyowned, the complaint shall specify thenumber of such jointly owned poles andthe percentage of each joint pole or thenumber of equivalent poles owned bythe subject utility;

(6) The total number of poles whichare the subject of the complaint;

(7) The number of poles included inparagraph (g)(6) of this section that arecontrolled or used by the utility

through lease between the utility andother owner(s), and the annualamounts paid by the utility for suchrental;

(8) The number of poles included inparagraph (g)(6) of this section that areowned by the utility and that areleased to other users by the utility,and the annual amounts paid to theutility for such rental;

(9) The annual carrying charges at-tributable to the cost of owning a pole.These charges may be expressed as apercentage of the net pole investment.With its pleading, the utility shall filea copy of the latest decision of thestate regulatory body or state courtwhich determines the treatment of ac-cumulated deferred taxes if it is atissue in the proceeding and shall notethe section which specifically deter-mines the treatment and amount of ac-cumulated deferred taxes.

(10) The rate of return authorized forthe utility for intrastate service. Withits pleading, the utility shall file acopy of the latest decision of the stateregulatory body or state court whichestablishes this authorized rate of re-turn if the rate of return is at issue inthe proceeding and shall note the sec-tion which specifically establishes thisauthorized rate and whether the deci-sion is subject to further proceedingsbefore the state regulatory body or acourt;

(11) The average amount of usablespace per pole for those poles used forpole attachments (13.5 feet may be inlieu of actual measurement, but maybe rebutted);

(12) Reimbursements received fromCATV operators for non-recurringcosts; andData and information should be basedupon historical or original cost meth-odology, insofar as possible. Datashould be derived from Form M, FERC1, or other reports filed with state orFederal regulatory agencies (identifysource). Calculations made in connec-tion with these figures should be pro-vided to the complainant. Where theattachments involve ducts, conduits,or rights of way, in whole or in part,appropriate and equivalent data and in-formation should be filed. The com-plainant shall also specify any otherinformation and argument relied upon


264

47 CFR Ch. I (10–1–97 Edition)§ 1.1405

to attempt to establish that a rate,term, or condition is not just and rea-sonable.

(h) If any of the information requiredin paragraph (g) of this section is notprovided to the cable television opera-tor by the utility upon reasonable re-quest, the cable television operatorshall include a statement indicatingthe steps taken to obtain informationfrom the utility, including the dates ofall requests. No complaint filed by acable television operator shall be dis-missed where the utility has failed toprovide the information in paragraph(g) of this section after such reasonablerequest. A utility should supply a cabletelevision system operator the infor-mation required in paragraph (g) ofthis section, along with the supportingpages from its FERC Form 1, FCCForm M, or other report to a regu-latory body, within 30 days of the re-quest by the cable operator. (The cableoperator, in turn, shall submit thesepages with its complaint). If the utilitydid not supply these pages to the cableoperator in response to the informationrequest, it shall supply this informa-tion in its response to the complaint.

(i) The complaint shall include abrief summary of all steps taken to re-solve the problem prior to filing. If nosuch steps were taken, the complaintshall state the reason(s) why it be-lieved such steps were fruitless.

(j) Factual allegations shall be sup-ported by affidavit of a person or per-sons with actual knowledge of thefacts, and exhibits shall be verified bythe person who prepares them.

(k) In a case where a cable televisionsystem operator or telecommuni-cations carrier claims that it has beendenied access to a pole, duct, conduitor right-of-way despite a request madepursuant to section 47 U.S.C. § 224(f),the complaint shall be filed within 30days of such denial. In addition tomeeting the other requirements of thissection, the complaint shall includethe data and information necessary tosupport the claim, including:

(1) The reasons given for the denial ofaccess to the utility’s poles, ducts, con-duits and rights-of-way;

(2) The basis for the complainant’sclaim that the denial of access is im-proper;

(3) The remedy sought by the com-plainant;

(4) A copy of the written request tothe utility for access to its poles,ducts, conduits or rights-of-way; and

(5) A copy of the utility’s response tothe written request including all infor-mation given by the utility to supportits denial of access. A complaint alleg-ing improper denial of access will notbe dismissed if the complainant is un-able to obtain a utility’s written re-sponse, or if the utility denies the com-plainant any other information neededto establish a prima facie case.

[43 FR 36094, Aug. 15, 1978, as amended at 44FR 31649, June 1, 1979; 45 FR 17014, Mar. 17,1980; 52 FR 31770, Aug. 24, 1987; 61 FR 43025,Aug. 20, 1996; 61 FR 45619, Aug. 29, 1996]

§ 1.1405 File numbers.Each complaint which appears to be

essentially complete under § 1.1404 willbe accepted and assigned a file number.Such assignment is for administrativepurposes only and does not necessarilymean that the complaint has beenfound to be in full compliance withother sections in this subpart. Peti-tions for temporary stay will also beassigned a file number upon receipt.

[44 FR 31650, June 1, 1979]

§ 1.1406 Dismissal of complaints.(a) The complaint shall be dismissed

for lack of jurisdiction in any casewhere a suitable certificate has beenfiled by a State pursuant to § 1.1414 ofthis subpart. Such certificate shall beconclusive proof of lack of jurisdictionof this Commission. A complaintagainst a utility shall also be dismissedif the utility does not use or controlpoles, ducts, or conduits used or des-ignated, in whole or in part, for wirecommunication or if the utility doesnot meet the criteria of § 1.1402(a) ofthis subpart.

(b) If the complaint does not containsubstantially all the information re-quired under § 1.1404 the Commissionmay dismiss the complaint or may re-quire the complainant to file addi-tional information. The complaintshall not be dismissed if the informa-tion is not available from publicrecords or from the respondent utilityafter reasonable request.


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(c) Failure by the complainant to re-spond to official correspondence or arequest for additional information willbe cause for dismissal.

(d) Dismissal under provisions ofparagraph (b) of this section above willbe with prejudice if the complaint hasbeen dismissed previously. Such a com-plaint may be refiled no earlier thansix months from the date it was so dis-missed.

[43 FR 36094, Aug. 15, 1978, as amended at 44FR 31650, June 1, 1979]

§ 1.1407 Response and reply.(a) Respondent shall have 30 days

from the date the complaint was filedwithin which to file a response. Com-plainant shall have 20 days from thedate the response was filed withinwhich to file a reply. Extensions oftime to file are not contemplated un-less justification is shown pursuant to§ 1.46. Except as otherwise provided in§ 1.1403, no other filings and no motionsother than for extension of time will beconsidered unless authorized by theCommission. The response should setforth justification for the rate, term,or condition alleged in the complaintnot to be just and reasonable. Factualallegations shall be supported by affi-davit of a person or persons with actualknowledge of the facts and exhibitsshall be verified by the person who pre-pares them. The response, reply, andother pleadings may be signed by coun-sel.

(b) The response shall be served onthe complainant and all parties listedin complainant’s certificate of service.

(c) The reply shall be served on therespondent and all parties listed in re-spondent’s certificate of service.

(d) Failure to respond may be deemedan admission of the material factualallegations contained in the complaint.

[44 FR 31650, June 1, 1979]

§ 1.1408 Number of copies and form ofpleadings.

(a) An original and three copies ofthe complaint, response, and replyshall be filed with the Commission.

(b) All papers filed in the complaintproceeding must be drawn in conform-ity with the requirements of §§ 1.49, 1.50and 1.52.

§ 1.1409 Commission consideration ofthe complaint.

(a) In its consideration of the com-plaint, response, and reply, the Com-mission may take notice of any infor-mation contained in publicly availablefilings made by the parties and may ac-cept, subject to rebuttal, studies thathave been conducted. The Commissionmay also request that one or more ofthe parties make additional filings orprovide additional information. Whereone of the parties has failed to provideinformation required to be provided bythese rules or requested by the Com-mission, or where costs, values oramounts are disputed, the Commissionmay estimate such costs, values oramounts it considers reasonable, ormay decide adversely to a party whohas failed to supply requested informa-tion which is readily available to it, orboth.

(b) The complainant shall have theburden of establishing a prima faciecase that the rate, term, or conditionis not just and reasonable or that thedenial of access violates 47 U.S.C.§ 224(f). If, however, a utility arguesthat the proposed rate is lower than itsincremental costs, the utility has theburden of establishing that such rate isbelow the statutory minimum just andreasonable rate. In a case involving adenial of access, the utility shall havethe burden of proving that the denialwas lawful, once a prima facie case isestablished by the complainant.

(c) The Commission shall determinewhether the rate, term or conditioncomplained of is just and reasonable.For the purposes of this paragraph, arate is just and reasonable if it assuresa utility the recovery of not less thanthe additional costs of providing poleattachments, nor more than an amountdetermined by multiplying the per-centage of the total usable space, orthe percentage of the total duct or con-duit capacity, which is occupied by thepole attachment by the sum of the op-erating expenses and actual capitalcosts of the utility attributable to theentire pole, duct, conduit, or right-of-way.

(d) The Commission shall deny thecomplaint if it determines that thecomplainant has not established aprima facie case, or that the rate, term


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or condition is just and reasonable, orthat the denial of access was lawful.

(e) Section 1.1404 shall apply to therate for any pole attachment used by acable system operator solely to providecable service. Until 47 U.S.C. 224(e) isimplemented, § 1.1404 shall also applyto the rate for any pole attachmentused by a cable system or any tele-communications carrier (to the extentsuch carrier is not a party to a pole at-tachment agreement) to provide anytelecommunications service.

[43 FR 36094, Aug. 15, 1978, as amended at 52FR 31770, Aug. 24, 1987; 61 FR 43025, Aug. 20,1996; 61 FR 45619, Aug. 29, 1996]

§ 1.1410 Remedies.If the Commission determines that

the rate, term, or condition complainedof is not just and reasonable, it mayprescribe a just and reasonable rate,term, or condition and may:

(a) Terminate the unjust and unrea-sonable rate, term, or condition;

(b) Substitute in the pole attachmentagreement the just and reasonablerate, term, or condition established bythe Commission; and

(c) Order a refund, or payment, if ap-propriate. The refund or payment willnormally be the difference between theamount paid under the unjust and/orunreasonable rate, term, or conditionand the amount that would have beenpaid under the rate, term, or conditionestablished by the Commission fromthe date that the complaint, as accept-able, was filed, plus interest.

[44 FR 31650, June 1, 1979]

§ 1.1411 Meetings and hearings.The Commission may decide each

complaint upon the filings and infor-mation before it, may require one ormore informal meetings with the par-ties to clarify the issues or to considersettlement of the dispute, or may, inits discretion, order evidentiary proce-dures upon any issues it finds to havebeen raised by the filings.

§ 1.1412 Enforcement.If the respondent fails to obey any

order imposed under this subpart, theCommission on its own motion or bymotion of the complainant may orderthe respondent to show cause why it

should not cease and desist from vio-lating the Commission’s order.

§ 1.1413 Forfeiture.(a) If any person willfully fails to

obey any order imposed under this sub-part, or any Commission rule, or

(b) If any person shall in any writtenresponse to Commission correspond-ence or inquiry or in any application,pleading, report, or any other writtenstatement submitted to the Commis-sion pursuant to this subpart make anymisrepresentation bearing on any mat-ter within the jurisdiction of the Com-mission, the Commission may, in addi-tion to any other remedies, includingcriminal penalties under section 1001 ofTitle 18 of the United States Code, im-pose a forfeiture pursuant to section503(b) of the Communications Act, 47U.S.C. 503(b).

§ 1.1414 State certification.(a) If the Commission does not re-

ceive certification from a state that:(1) It regulates rates, terms and con-

ditions for pole attachments;(2) In so regulating such rates, terms

and conditions, the state has the au-thority to consider and does considerthe interests of the subscribers of cabletelevision services as well as the inter-ests of the consumers of the utilityservices; and,

(3) It has issued and made effectiverules and regulations implementing thestate’s regulatory authority over poleattachments (including a specificmethodology for such regulation whichhas been made publicly available in thestate), it will be rebuttably presumedthat the state is not regulating pole at-tachments.

(b) Upon receipt of such certification,the Commission shall give public no-tice. In addition, the Commission shallcompile and publish from time to time,a listing of states which have providedcertification.

(c) Upon receipt of such certification,the Commission shall forward anypending case thereby affected to thestate regulatory authority, shall so no-tify the parties involved and shall givepublic notice thereof.

(d) Certification shall be by order ofthe state regulatory body or by a per-son having lawful delegated authority


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under provisions of state law to submitsuch certification. Said person shallprovide in writing a statement that heor she has such authority and shall citethe law, regulation or other instru-ment conferring such authority.

(e) Notwithstanding any such certifi-cation, jurisdiction will revert to thisCommission with respect to any indi-vidual matter, unless the state takesfinal action on a complaint regardingsuch matter:

(1) Within 180 days after the com-plaint is filed with the state, or

(2) Within the applicable periods pre-scribed for such final action in suchrules and regulations of the state, ifthe prescribed period does not extendbeyond 360 days after the filing of suchcomplaint.

[43 FR 36094, Aug. 15, 1978, as amended at 44FR 31650, June 1, 1979; 50 FR 18659, May 5,1985]

§ 1.1415 Other orders.The Commission may issue such

other orders and so conduct its pro-ceedings as will best conduce to theproper dispatch of business and theends of justice.

§ 1.1416 Imputation of rates; modifica-tion costs.

(a) A utility that engages in the pro-vision of telecommunications servicesor cable services shall impute to itscosts of providing such services (andcharge any affiliate, subsidiary, or as-sociate company engaged in the provi-sion of such services) an equal amountto the pole attachment rate for whichsuch company would be liable underthis section.

(b) The costs of modifying a facilityshall be borne by all parties that ob-tain access to the facility as a result ofthe modification and by all partiesthat directly benefit from the modi-fication. Each party described in thepreceding sentence shall share propor-tionately in the cost of the modifica-tion. A party with a preexisting at-tachment to the modified facility shallbe deemed to directly benefit from amodification if, after receiving notifi-cation of such modification as providedin subpart J of this part, it adds to ormodifies its attachment. Notwith-standing the foregoing, a party with a

preexisting attachment to a pole, con-duit, duct or right-of-way shall not berequired to bear any of the costs of re-arranging or replacing its attachmentif such rearrangement or replacementis necessitated solely as a result of anadditional attachment or the modifica-tion of an existing attachment soughtby another party. If a party makes anattachment to the facility after thecompletion of the modification, suchparty shall share proportionately inthe cost of the modification if suchmodification rendered possible theadded attachment.

[61 FR 43025, Aug. 20, 1996; 61 FR 45619, Aug.29, 1996]

Subpart K—Implementation of theEqual Access to Justice Act(EAJA) in Agency Proceed-ings

AUTHORITY: Sec. 203(a)(1), Pub. L. 96–481, 94Stat. 2325 (5 U.S.C. 504(c)(1)).

SOURCE: 47 FR 3786, Jan. 27, 1982, unlessotherwise noted.

GENERAL PROVISIONS

§ 1.1501 Purpose of these rules.The Equal Access to Justice Act, 5

U.S.C. 504 (called the EAJA in this sub-part), provides for the award of attor-ney’s fees and other expenses to eligi-ble individuals and entities who areparties to certain administrative pro-ceedings (called adversary adjudications)before the Commission. An eligibleparty may receive an award when itprevails over the Commission, unlessthe Commission’s position in the pro-ceeding was substantially justified orspecial circumstances make an awardunjust, or when the demand of theCommission is substantially in excessof the decision in the adversary adju-dication and is unreasonable whencompared with such decision, under thefacts and circumstances of the case,unless the party has committed a will-ful violation of law or otherwise actedin bad faith, or special circumstancesmake an award unjust. The rules inthis part describe the parties eligiblefor awards and the proceedings that arecovered. They also explain how toapply for awards, and the procedures


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and standards that the Commissionwill use to make them.

[47 FR 3786, Jan. 27, 1982, as amended at 61FR 39898, July 31, 1996]

§ 1.1502 When the EAJA applies.The EAJA applies to any adversary

adjudication pending or commenced be-fore the Commission on or after August5, 1985. The provisions of § 1.1505(b)apply to any adversary adjudicationscommenced on or after March 29, 1996.

[61 FR 39898, July 31, 1996]

§ 1.1503 Proceedings covered.(a) The EAJA applies to adversary

adjudications conducted by the Com-mission. These are adjudications under5 U.S.C. 554 in which the position of theCommission or any other agency of theUnited States, or any component of anagency, is presented by an attorney orother representative who enters an ap-pearance and participates in the pro-ceeding. Any proceeding in which thisAgency may fix a lawful present or fu-ture rate is not covered by the EAJA.Proceedings to grant or renew licensesare also excluded, but proceedings tomodify, suspend, or revoke licenses arecovered if they are otherwise ‘‘adver-sary adjudications’’.

(b) The Commission may designate aproceeding as an adversary adjudica-tion for purposes of the EAJA by sostating in an order initiating the pro-ceeding or designating the matter forhearing. The Commission’s failure todesignate a proceeding as an adversaryadjudication shall not preclude the fil-ing of an application by a party whobelieves the proceeding is covered bythe EAJA; whether the proceeding iscovered will then be an issue for resolu-tion in proceedings on the application.

(c) If a proceeding includes both mat-ters covered by the EAJA and mattersspecifically excluded from coverage,any awards made will include only feesand expenses related to covered issues.

[47 FR 3786, Jan. 27, 1982, as amended at 52FR 11653, Apr. 10, 1987]

§ 1.1504 Eligibility of applicants.(a) To be eligible for an award of at-

torney fees and other expenses underthe EAJA, the applicant must be aparty, as defined in 5 U.S.C. 551(3), to

the adversary adjudication for which itseeks an award. The applicant mustshow that it meets all conditions of eli-gibility set out in this paragraph andin paragraph (b) of this section.

(b) The types of eligible applicantsare as follows:

(1) An individual with a net worth ofnot more than $2 million;

(2) The sole owner of an unincor-porated business who has a net worthof not more than $7 million, includingboth personal and business interests,and not more than 500 employees;

(3) A charitable association as de-fined in section 501(c)(3) of the InternalRevenue Code (26 U.S.C. 501(c)(3)) withnot more than 500 employees;

(4) A cooperative association as de-fined in section 15(a) of the Agricul-tural Marketing Act (12 U.S.C. 1141j(a))with not more than 500 employees;

(5) Any other partnership, corpora-tion, association, unit of local govern-ment, or organization with a net worthof not more than $7 million and notmore than 500 employees;

(6) For purposes of § 1.1505(b), a smallentity as defined in 5 U.S.C. 601.

(c) For the purpose of eligibility, thenet worth and number of employees ofan applicant shall be determined as ofthe date the proceeding was initiated.

(d) An applicant who owns an unin-corporated business will be consideredas an ‘‘individual’’ rather than a ‘‘soleowner of an unincorporated business’’if the issues on which the applicantprevails are related primarily to per-sonal interests rather than to businessinterests.

(e) The number of employees of anapplicant include all persons who regu-larly perform services for remunera-tion for the applicant, under the appli-cant’s direction and control. Part-timeemployees shall be included on a pro-portional basis.

(f) The net worth and number of em-ployees of the applicant and all of itsaffiliates shall be aggregated to deter-mine eligibility. Any individual, cor-poration or other entity that directlyor indirectly controls or owns a major-ity of the voting shares or other inter-est of the applicant, or any corporationor other entity of which the applicantdirectly or indirectly owns or controlsa majority of the voting shares or


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other interest, will be considered an af-filiate for purposes of this part, unlessthe Administrative Law Judge deter-mines that such treatment would beunjust and contrary to the purposes ofthe EAJA in light of the actual rela-tionship between the affiliated enti-ties. In addition, the AdministrativeLaw Judge may determine that finan-cial relationships of the applicantother than those described in this para-graph constitute special circumstancesthat would make an award unjust.

(g) An applicant that participates ina proceeding primarily on behalf of oneor more other persons or entities thatwould be ineligible is not itself eligiblefor an award.

[47 FR 3786, Jan. 27, 1982, as amended at 52FR 11653, Apr. 10, 1987; 61 FR 39898, July 31,1996]

§ 1.1505 Standards for awards.(a) A prevailing party may receive an

award for fees and expenses incurred inconnection either with an adversaryadjudication, or with a significant anddiscrete substantive portion of an ad-versary adjudication in which theparty has prevailed over the position ofthe Commission.

(1) The position of the Commissionincludes, in addition to the positiontaken by the Commission in the adver-sary adjudication, the action or failureto act by the agency upon which theadversary adjudication is based.

(2) An award will be reduced or de-nied if the Commission’s position wassubstantially justified in law and fact,if special circumstances make anaward unjust, or if the prevailing partyunduly or unreasonably protracted theadversary adjudication.

(b) If, in an adversary adjudicationarising from a Commission action toenforce a party’s compliance with astatutory or regulatory requirement,the demand of the Commission is sub-stantially in excess of the decision inthe adversary adjudication and is un-reasonable when compared with thatdecision, under the facts and cir-cumstances of the case, the party shallbe awarded the fees and other expensesrelated to defending against the exces-sive demand, unless the party has com-mitted a willful violation of law or oth-erwise acted in bad faith, or special cir-

cumstances make an award unjust. The‘‘demand’’ of the Commission meansthe express demand which led to theadversary adjudication, but it does notinclude a recitation by the Commissionof the maximum statutory penalty inthe administrative complaint, or else-where when accompanied by an expressdemand for a lesser amount.

(c) The burden of proof that an awardshould not be made is on the appro-priate Bureau (see § 1.21) whose rep-resentative shall be called ‘‘Bureaucounsel’’ in this subpart K.

[61 FR 39899, July 31, 1996]

§ 1.1506 Allowable fees and expenses.(a) Awards will be based on rates cus-

tomarily charged by persons engagedin the business of acting as attorneys,agents and expert witnesses.

(b) No award for the fee of an attor-ney or agent under these rules may ex-ceed $75.00, or for adversary adjudica-tions commenced on or after March 29,1996, $125.00, per hour. No award tocompensate an expert witness may ex-ceed the highest rate at which theCommission pays expert witnesses.However, an award may also includethe reasonable expenses of the attor-ney; agent, or witness as a separateitem, if the attorney, agent or witnessordinarily charges its clients sepa-rately for such expenses.

(c) In determining the reasonablenessof the fee sought for an attorney, agentor expert witness, the AdministrativeLaw Judge shall consider the following:

(1) If the attorney, agent or witnessis in private practice, his or her cus-tomary fee for similar services, or, ifan employee of the applicant, the fullyallocated cost of the services;

(2) The prevailing rate for similarservices in the community in which theattorney, agent or witness ordinarilyperforms services;

(3) The time actually spent in therepresentation of the applicant;

(4) The time reasonably spent in lightof the difficulty or complexity of theissues in the proceeding; and

(5) Such other factors as may bear onthe value of the service provided.

(d) The reasonable cost of any study,analysis, engineering report, test,project or similar matter prepared onbehalf of a party may be awarded, to


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the extent that the charge for the serv-ice does not exceed the prevailing ratefor similar services, and the study orother matter was necessary for prepa-ration of the applicant’s case.

(e) Fees may be awarded only forwork performed after designation of aproceeding or after issuance of a showcause order.


§ 1.1507 Rulemaking on maximumrates for attorney fees.

(a) If warranted by an increase in thecost of living or by special cir-cumstances (such as limited availabil-ity of attorneys qualified to handle cer-tain types of proceedings), the Com-mission may adopt regulations provid-ing that attorney fees may be awardedat a rate higher than $125.00 per hour insome or all of the types of proceedingscovered by this part. The Commissionwill conduct any rulemaking proceed-ings for this purpose under the infor-mal rulemaking procedures of the Ad-ministrative Procedure Act.

(b) Any person may file with theCommission a petition for rulemakingto increase the maximum rate for at-torney fees, in accordance with subpartC of this chapter. The petition shouldidentify the rate the petitioner be-lieves this agency should establish andthe types of proceedings in which therate should be used. It should also ex-plain fully the reasons why the higherrate is warranted. This agency will re-spond to the petition by initiating arulemaking proceeding, denying thepetition, or taking other appropriateaction.


§ 1.1508 Awards against other agen-cies.

If an applicant is entitled to anaward because it prevails over anotheragency of the United States that par-ticipates in a proceeding before theCommission and takes a position thatis not substantially justified, theaward or an appropriate portion of theaward shall be made against that agen-cy. Counsel for that agency shall be

treated as Bureau counsel for the pur-pose of this subpart.


INFORMATION REQUIRED FROMAPPLICANTS

§ 1.1511 Contents of application.(a) An application for an award of

fees and expenses under EAJA shalldentify the applicant and the proceed-ing for which an award is sought. Un-less the applicant is an individual, theapplication shall state the number ofemployees of the applicant and de-scribe briefly the type and purpose ofits organization or business. The appli-cation shall also:

(1) Show that the applicant has pre-vailed and identify the position of anagency or agencies in the proceedingthat the applicant alleges was not sub-stantially justified; or

(2) Show that the demand by theagency or agencies in the proceedingwas substantially in excess of, and wasunreasonable when compared with, thedecision in the proceeding.

(b) The application shall also includea declaration that the applicant is asmall entity as defined in 5 U.S.C. 601or a statement that the applicant’s networth does not exceed $2 million (if anindividual) or $7 million (for all otherapplicants, including their affiliates).However, an applicant may omit thestatement concerning its net worth if:

(1) It attaches a copy of a ruling bythe Internal Revenue Service that itqualifies as an organization describedin section 501(c)(3) of the Internal Rev-enue Code (26 U.S.C. 501(c)(3)) or, in thecase of a tax-exempt organization notrequired to obtain a ruling from the In-ternal Revenue Service on its exemptstatus, a statement that describes thebasis for the applicant’s belief that itqualifies under such section; or

(2) It states that it is a cooperativeassociation as defined in section 15(a)of the Agricultural Marketing Act (12U.S.C. 1141j(a)).

(c) The application shall state theamount of fees and expenses for whichan award is sought.

(d) The application may also includeany other matters that the applicantwishes the Commission to consider in


271


determining whether and in whatamount an award should be made.

(e) The application shall be signed bythe applicant or an authorized officeror attorney of the applicant. It shallalso contain or be accompanied by awritten verification under oath orunder penalty of perjury that the infor-mation provided in the application istrue and correct.


§ 1.1512 Net worth exhibit.(a) Each applicant except a qualified

tax-exempt organization or cooperativeassociation must provide with its ap-plication a detailed exhibit showingthe net worth of the applicant and anyaffiliates (as defined in § 1.1504(f) of thispart) at the time the proceeding wasdesignated. The exhibit may be in anyform convenient to the applicant thatprovides full disclosure of the appli-cant’s and its affiliates’ assets and li-abilities and is sufficient to determinewhether the applicant qualifies underthe standards in this subpart. The Ad-ministrative Law Judge may requirean applicant to file additional informa-tion to determine its eligibility for anaward.

(b) Ordinarily, the net worth exhibitwill be included in the public record ofthe proceeding. However, an applicantthat objects to public disclosure of in-formation in any portion of the exhibitand believes there are legal grounds forwithholding it from disclosure maysubmit that portion of the exhibit di-rectly to the Administrative LawJudge in a sealed enevelope labeled‘‘Confidential Financial Information’’,accompanied by a motion to withholdthe information from public disclosure.The motion shall describe the informa-tion sought to be withheld and explain,in detail, why it falls within one ormore of the specific exemptions frommandatory disclosure under the Free-dom of Information Act, 5 U.S.C.552(b)(1)–(9), why public disclosue of theinformation would adversely affect theapplicant, and why disclosure is not re-quired in the public interest. The mate-rial in question shall be served on Bu-reau counsel, but need not be served onany other party to the proceeding. If

the Administrative Law Judge findsthat the information should not bewithheld from disclosure, it shall beplaced in the public record of the pro-ceeding. Otherwise, any request to in-spect or copy the exhibit shall be dis-posed of in accordance with the Com-mission’s established procedures underthe Freedom of Information Act,§§ 0.441 through 0.466 of this chapter.

§ 1.1513 Documentation of fees and ex-penses.

The application shall be accompaniedby full documentation of the fees andexpenses, including the cost of anystudy, analysis, engineering report,test, project or similar matter, forwhich an award is sought. A separateitemized statement shall be submittedfor each professional firm or individualwhose services are covered by the ap-plication, showing hours spent in con-nection with the proceeding by each in-dividual, a description of the specificservices performed, the rate at whicheach fee has been computed, any ex-penses for which reimbursement issought, the total amount claimed, andthe total amount paid or payable bythe applicant or by any other person orentity for the services provided. TheAdministrative Law Judge may requirethe applicant to provide vouchers, re-ceipts, or other substantiation for anyexpenses claimed.


§ 1.1514 When an application may befiled.

(a) An application may be filed when-ever the applicant has prevailed in theproceeding or in a significant and dis-crete substantive portion of the pro-ceeding, or when the demand of theCommission is substantially in excessof the decision in the proceeding, butin no case later than 30 days after theCommission’s final disposition of theproceeding.

(b) If review or reconsideration issought or taken of a decision as towhich an applicant believes it has pre-vailed, proceedings for the award offees shall be stayed pending final dis-position of the underlying controversy.

(c) For purposes of this rule, final dis-position means the later of


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(1) The date on which an initial deci-sion or other recommended dispositionof the merits of the proceeding by anAdministrative Law Judge becomes ad-ministratively final;

(2) Issuance of an order disposing ofany petitions for reconsideration of theCommission’s order in the proceeding;

(3) If no petition for reconsiderationis filed, the last date on which such pe-tition could have been filed;

(4) Issuance of a final order by theCommission or any other final resolu-tion of a proceeding, such as settle-ment or voluntary dismissal, which isnot subject to a petition for reconsider-ation, or to a petition for judicial re-view; or

(5) Completion of judicial action onthe underlying controversy and anysubsequent Commission action pursu-ant to judicial mandate.


PROCEDURES FOR CONSIDERINGAPPLICATIONS

§ 1.1521 Filing and service of docu-ments.

Any application for an award orother pleading relating to an applica-tion shall be filed and served on all par-ties to the proceeding in the same man-ner as other pleadings in the proceed-ing, except as provided in § 1.1512(b) forconfidential financial information.

§ 1.1522 Answer to application.(a) Within 30 days after service of an

application Bureau counsel may file ananswer to the application. Unless Bu-reau counsel requests an extension oftime for filing or files a statement ofintent to negotiate under paragraph (b)of this section, failure to file an answerwithin the 30-day period may be treat-ed as a consent to the award request.

(b) If Bureau counsel and the appli-cant believe that the issues in the feeapplication can be settled, they mayjointly file a statement of their intentto negotiate a settlement. The filing ofthis statement shall extend the timefor filing an answer for an additional 30days, and further extensions may begranted by the Administrative LawJudge upon request by Bureau counseland the applicant.

(c) The answer shall explain in detailany objections to the award requestedand identify the facts relied on in sup-port of Bureau counsel’s position. Ifthe answer is based on any allegedfacts not already in the record of theproceeding, Bureau counsel shall in-clude with the answer either support-ing affidavits or a request for furtherproceedings under § 1.1526.

§ 1.1523 Reply.

Within 15 days after service of an an-swer, the applicant may file a reply. Ifthe reply is based on any alleged factsnot already in the record of the pro-ceeding, the applicant shall includewith the reply either supporting affida-vits or a request for further proceed-ings under § 1.1526.

§ 1.1524 Comments by other parties.

Any party to a proceeding other thanthe applicant and Bureau counsel mayfile comments on an application within30 days after it is served or an answerwithin 15 days after it is served. A com-menting party may not participate fur-ther in proceedings on the applicationunless the Administrative Law Judgedetermines that the public interest re-quires such participation in order topermit full exploration of mattersraised in the comments.


§ 1.1525 Settlement.

The applicant and Bureau counselmay agree on a proposed settlement ofthe award before final action on the ap-plication, either in connection with asettlement of the underlying proceed-ing, or after the underlying proceedinghas been concluded. If a prevailingparty and Bureau counsel agree on aproposed settlement of an award beforean application has been filed, the appli-cation shall be filed with the proposedsettlement. If the Administrative LawJudge approves the proposed settle-ment, it shall be forwarded to the Com-mission for final approval.

§ 1.1526 Further proceedings.

(a) Ordinarily, the determination ofan award will be made on the basis of


273


the written record. However, on re-quest of either the applicant or Bureaucounsel, or on his or her own initiative,the Administrative Law Judge mayorder further proceedings, such as aninformal conference, oral argument,additional written submissions or, asto issues other than excessive demandor substantial justification, an evi-dentiary hearing. Such further pro-ceedings shall be held only when nec-essary for full and fair resolution of theissues arising from the application, andshall be conducted as promptly as pos-sible. Whether or not the position ofthe agency embodied an excessive de-mand or was substantially justifiedshall be determined on the basis of theadministrative record, as a whole,which is made in the adversary adju-dication for which fees and other ex-penses are sought.

(b) A request that the AdministrativeLaw Judge order further proceedingsunder this section shall specificallyidentify the information sought or thedisputed issues and shall explain whythe additional proceedings are nec-essary to resolve the issues.


§ 1.1527 Decision.The Administrative Law Judge shall

issue an initial decision on the applica-tion as soon as possible after comple-tion of proceedings on the application.The decision shall include written find-ings and conclusions regarding the ap-plicant’s eligibility and whether theapplicant was a prevailing party orwhether the demand by the agency oragencies in the proceeding was sub-stantially in excess of, and was unrea-sonable when compared with, the deci-sion in the adversary adjudication, andan explanation of the reasons for anydifference between the amount re-quested and the amount awarded. Thedecision shall also include, if at issue,findings on whether the Commission’sposition substantially justified, wheth-er the applicant unduly protracted theproceedings, committed a willful viola-tion of law, or otherwise acted in badfaith, or whether special circumstancesmake an award unjust. If the applicanthas sought an award against more than

one agency, the decision shall allocateresponsibility for payment of anyaward made among the agencies, andshall explain the reasons for the alloca-tion made.

[61 FR 39900, July 31, 1996]

§ 1.1528 Commission review.Either the applicant or Bureau coun-

sel may seek Commission review of theinitial decision on the application, orthe Commission may decide to reviewthe decision on its own initiative, inaccordance with §§ 1.276 through 1.282 ofthis chapter. Except as provided in§ 1.1525, if neither the applicant nor Bu-reau counsel seeks review and the Com-mission does not take review on itsown initiative, the initial decision onthe application shall become a final de-cision of the Commission 50 days afterit is issued. Whether to review a deci-sion is a matter within the discretionof the Commission. If review is taken,the Commission will issue a final deci-sion on the application or remand theapplication to the Administrative LawJudge for further proceedings.


§ 1.1529 Judicial review.Judicial review of final agency deci-

sions on awards may be sought as pro-vided in 5 U.S.C. 504(c)(2).

§ 1.1530 Payment of award.An applicant seeking payment of an

award from the Commission shall sub-mit to the General Counsel a copy ofthe Commission’s final decision grant-ing the award, accompanied by a state-ment that the applicant will not seekreview of the decision in the UnitedStates courts, or a copy of the court’sorder directing payment. The Commis-sion will pay the amount awarded tothe applicant unless judicial review ofthe award or the underlying decision ofthe adversary adjudication has beensought by the applicant or any otherparty to the proceeding.

Subpart L—Random Selection Pro-cedures for Mass Media Serv-ices

AUTHORITY: 47 U.S.C. 309(i).


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47 CFR Ch. I (10–1–97 Edition)§ 1.1601

SOURCE: 48 FR 27202, June 13, 1983, unlessotherwise noted.

GENERAL PROCEDURES

§ 1.1601 Scope.The provisions of this subpart, and

the provisions referenced herein, shallapply to applications for initial li-censes or construction permits or formajor changes in the facilities of au-thorized stations in the following serv-ices:

(a) Low Power Television and Tele-vision Translator Broadcasting.

(b) [Reserved]

§ 1.1602 Designation for random selec-tion.

Applications in the services specifiedin § 1.1601 shall be tendered, accepted ordismissed, filed, publicly noted andsubject to random selection and hear-ing in accordance with any relevantrules. Competing applications for aninitial license or construction permitshall be designated for random selec-tion and hearing in accordance withthe procedures set forth in §§ 1.1603through 1.1623 and § 73.3572 of this chap-ter.

§ 1.1603 Conduct of random selection.The random selection probabilities

will be calculated in accordance withthe formula set out in rules §§ 1.1621through 1.1623.

[48 FR 27202, June 13, 1983, as amended at 48FR 43330, Sept. 23, 1983]

§ 1.1604 Post-selection hearings.(a) Following the random selection,

the Commission shall announce the‘‘tentative selectee’’ and, where per-mitted by § 73.3584 invite Petitions toDeny its application. Following the re-sponsive pleadings thereto, the Com-mission shall:

(1) In the case of low power televisionstations, take action pursuant to ei-ther § 73.3591, § 73.3592 or § 73.3593.

(b) If, after such hearing as may benecessary, the Commission determinesthat the ‘‘tentative selectee’’ has metthe requirements of § 73.3591(a) it willmake the appropriate grant. If theCommission is unable to make such adetermination, it shall order that an-other random selection be conducted

from among the remaining mutuallyexclusive applicants, in accordancewith the provisions of this subpart.

(c) If, on the basis of the papers be-fore it, the Commission determinesthat a substantial and material ques-tion of fact exists, it shall designatethat question for hearing. Hearingsmay be conducted by the Commissionor, in the case of a matter which re-quires oral testimony for its resolu-tion, an Administrative Law Judge.

(2) [Reserved]

§ 1.1621 Definitions.(a) Medium of mass communications

means:(1) A daily newspaper;(2) A cable television system; and(3) A license or construction permit

for(i) A television station, including low

power TV or TV translator,(ii) A standard (AM) radio station,(iii) An FM radio station,(iv) A direct broadcast satellite

transponder under the editorial controlof the licensee, and

(v) A Multipoint Distribution Servicestation.

(b) Minority group means:(1) Blacks,(2) Hispanics(3) American Indians,(4) Alaska Natives,(5) Asians, and(6) Pacific Islanders.(c) Owner means the applicant and

any individual, partnership, trust, un-incorporated association, or corpora-tion which:

(1) If the applicant is a proprietor-ship, is the proprietor,

(2) If the applicant is a partnership,holds any partnership interest,

(3) If the applicant is a trust, is thebeneficiary thereof,

(4) If the applicant is an unincor-porated association or non-stock cor-poration, is a member, or, in the caseof a nonmembership association or cor-poration, a director,

(5) If the applicant is a stock corpora-tion, is the beneficial owner of votingshares.

NOTE 1: For purposes of applying the diver-sity preference to such entities only theother ownership interests of those with a 1%or more beneficial interest in the entity willbe cognizable.


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NOTE 2: For the purposes of this section, adaily newspaper is one which is publishedfour or more days per week, which is in theEnglish language, and which is circulatedgenerally in the community of publication.A college newspaper is not considered asbeing circulated generally.

NOTE 3: For the purposes of applying thediversity preference, the ownership interestsof the spouse of an applicant’s principal willnot presumptively be attributed to the appli-cant.

[48 FR 27202, June 13, 1983, as amended at 50FR 5992, Feb. 13, 1985]

§ 1.1622 Preferences.

(a) Any applicant desiring aperference in the random selectionshall so indicate as part of its applica-tion. Such an applicant shall list anyowner who owns all or part of a me-dium of mass communications or whois a member of a minority group, to-gether with a precise identification ofthe ownership interest held in such me-dium of mass communications or nameof the minority group, respectively.Such an applicant shall also statewhether more than 50% of the owner-ship interests in it are held by mem-bers of minority groups and the num-ber of media of mass communicationsmore than 50% of whose ownership in-terests are held by the applicant and/orits owners.

(b) Preference factors as incorporatedin the percentage calculations in§ 1.1623, shall be granted as follows:

(1) Applicants, more than 50% ofwhose ownership interests are held bymembers of minority groups—2:1.

(2) Applicants whose owners in theaggregate hold more than 50% of theownership interests in no other mediaof mass communications—2:1.

(3) Applicants whose owners in theaggregate hold more than 50% of theownership interest in one, two or threeother media of mass communications—1.5:1.

(c) Applicants may receive pref-erences pursuant to § 1.1622(b)(1) and ei-ther § 1.1622 (b)(2) or (b)(3).

(d) Preferences will be determined onthe basis of ownership interests as ofthe date of release of the latest PublicNotice announcing the acceptance ofthe last-filed mutually exclusive appli-cation.

(e) No preferences pursuant to § 1.1622(b)(2) or (b)(3) shall be granted to anyLPTV or MDS applicant whose owners,when aggregated, have an ownershipinterest of more than 50 percent in thefollowing media of mass communica-tions, if the service areas of thosemedia as described herein wholly en-compass or are encompassed by theprotected predicted contour, computedin accordance with § 74.707(a), of thelow power TV or TV translator stationfor which the license or permit issought, or computed in accordancewith § 21.902(d), of the MDS station forwhich the license or permit is sought.

(1) AM broadcast station—predictedor measured 2 mV/m groundwave con-tour, computed in accordance with§ 73.183 or § 73.186;

(2) FM broadcast station—predicted 1mV/m contour, computed in accordancewith § 73.313;

(3) TV broadcast station—Grade Acontour, computed in accordance with§ 73.684;

(4) Low power TV or TV translatorstation—protected predicted contour,computed in accordance with § 74.707(a);

(5) Cable television system franchisearea, nor will the diversity preferencebe available to applicants whose pro-posed transmitter site is located withinthe franchise area of a cable system inwhich its owners, in the aggregate,have an ownership interest of morethan 50 percent.

(6) Daily newspaper community ofpublication, nor will the diversity pref-erence be available to applicants whoseproposed transmitter site is locatedwithin the community of publication ofa daily newspaper in which its owners,in the aggregate, have an ownership in-terest of more than 50 percent.

(7) Multipoint Distribution Service—station service area, computed in ac-cordance with § 21.902(d).

[48 FR 27202, June 13, 1983, as amended at 50FR 5992, Feb. 13, 1985; 50 FR 11161, Mar. 20,1985]

§ 1.1623 Probability calculation.

(a) All calculations shall be com-puted to no less than three significantdigits. Probabilities will be truncatedto the number of significant digits usedin a particular lottery.


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(b) Divide the total number of appli-cants into 1.00 to determine pre-pref-erence probabilities.

(c) Multiply each applicant’s pre-preference probability by the applica-ble preference from § 1.1622 (b)(2) or(b)(3).

(d) Divide each applicant’s prob-ability pursuant to paragraph (c) ofthis section by the sum of such prob-abilities to determine intermediateprobabilities.

(e) Add the intermediate prob-abilities of all applicants who receiveda preference pursuant to § 1.1622 (b)(2)or (b)(3).

(f)(1) If the sum pursuant to para-graph (e) of this section is .40 or great-er, proceed to paragraph (g) of this sec-tion.

(2) If the sum pursuant to paragraph(e) of this section is less than .40, thenmultiply each such intermediate prob-ability by the ratio of .40 to such sum.Divide .60 by the number of applicantswho did not receive a preference pursu-ant to § 1.1622 (b)(2) or (b)(3) to deter-mine their new intermediate prob-abilities.

(g) Multiply each applicant’s prob-ability pursuant to paragraph (f) ofthis section by the applicable pref-erence ratio from § 1.1622(b)(1).

(h) Divide each applicant’s prob-ability pursuant to paragraph (g) ofthis section by the sum of such prob-abilities to determine the final selec-tion percentage.

Subpart M [Reserved]

Subpart N—Enforcement of Non-discrimination on the Basis ofHandicap in Programs or Ac-tivities Conducted by the Fed-eral Communications Com-mission

AUTHORITY: 29 U.S.C. 794.

SOURCE: 52 FR 16258, May 4, 1987, unlessotherwise noted.

§ 1.1801 Purpose.The purpose of this part is to effec-

tuate section 119 of the Rehabilitation,Comprehensive Services, and Devel-opmental Disabilities Amendments of1978, which amended section 504 of the

Rehabilitation Act of 1973 to prohibitdiscrimination on the basis of handicapin programs or activities conducted byExecutive agencies or the UnitedStates Postal Service.

§ 1.1802 Applications.

This part applies to all programs oractivities conducted by the FederalCommunications Commission. The pro-grams or activities of entities that arelicensed or certified by the FederalCommunications Commission are notcovered by these regulations.


For purposes of this part, the term—Assistant Attorney General means the

Assistant Attorney General, CivilRights Division, United States Depart-ment of Justice.

Auxiliary aids means services or de-vices that enable persons with im-paired sensory, manual, or speakingskills to have an equal opportunity toparticipate in, and enjoy the benefitsof, programs or activities conducted bythe Commission. For example, auxil-iary aids useful for persons with im-paired vision include readers, Brailledmaterials, audio recordings, and othersimilar services and devices. Auxiliaryaids useful for persons with impairedhearing include telephone handset am-plifiers, telephones compatible withhearing aids, telecommunication de-vices for deaf persons (TDD’s), inter-preters, notetakers, written materials,and other similar services and devices.

Commission means Federal Commu-nications Commission.

Complete complaint means a writtenstatement that contains the complain-ant’s name and address and describesthe Commission’s alleged discrimina-tory action in sufficient detail to in-form the Commission of the nature anddate of the alleged violation of section504. It shall be signed by the complain-ant or by someone authorized to do soon his or her behalf. Complaints filedon behalf of classes or third partiesshall describe or identify (by name, ifpossible) the alleged victims of dis-crimination.

Facility means all or any portion ofbuildings, structures, equipment,roads, walks, parking lots, rolling


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stock or other conveyances, or otherreal or personal property.

Individual with handicaps means anyindividual who has a physical or men-tal impairment that substantially lim-its one or more major life activities,has a record of such an impairment, oris regarded as having such an impair-ment. As used in this definition, thephrase:

(1) Physical or mental impairment in-cludes—

(i) Any physiological disorder or con-dition, cosmetic disfigurement, or ana-tomical loss affecting one or more ofthe following body systems: Neuro-logical; musculoskeletal; special senseorgans; respiratory, including speechorgans; cardiovascular; reproductive;digestive; genitourinary; hemic andlymphatic; skin; and endocrine; or

(ii) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional ormental illness, and specific learningdisabilities. The term physical or mentalimpairment includes, but is not limitedto, such diseases and conditions as or-thopedic, visual, speech, and hearingimpairments, cerebral palsy, epilepsy,muscular dystrophy, multiple sclerosis,cancer, heart disease, diabetes, mentalretardation, emotional illness, anddrug addiction and alcoholism.

(2) Major life activities includes func-tions such as caring for one’s self, per-forming manual tasks, walking, seeing,hearing, speaking, breathing, learning,and working.

(3) Has a record of such an impairmentmeans has a history of, or has beenmisclassified as having, a mental orphysical impairment that substantiallylimits one or more major life activi-ties.

(4) Is regarded as having an impairmentmeans—

(i) Has a physical or mental impair-ment that does not substantially limitmajor life activities but is treated bythe Commission as constituting such alimitation;

(ii) Has a physical or mental impair-ment that substantially limits majorlife activities only as a result of the at-titudes of others toward such impair-ment; or

(iii) Has none of the impairments de-fined in paragraph (1) of this definition

but is treated by the Commission ashaving such an impairment.

Qualified individual with handicapsmeans—

(1) With respect to any Commissionprogram or activity under which an in-dividual is required to perform servicesor to achieve a level of accomplish-ment, an individual with handicapswho meets the essential eligibility re-quirements and who can achieve thepurpose of the program or activitywithout modifications in the programor activity that the Commission candemonstrate would result in a fun-damental alteration in its nature; and

(2) With respect to any other pro-gram or activity, an individual withhandicaps who meets the essential eli-gibility requirements for participationin, or receipt of benefits from, that pro-gram or activity; and

(3) Qualified handicapped person asthat term is defined for purposes of em-ployment in 29 CFR 1613.702(f), which ismade applicable to this part by § 1.1840.

Section 504 means section 504 of theRehabilitation Act of 1973, Pub. L. 93–112, 87 Stat. 394, 29 U.S.C. 794, asamended by the Rehabilitation ActAmendments of 1974, Pub. L. 93–516, 88Stat. 1617, and the Rehabilitation,Comprehensive Services, and Devel-opmental Disabilities Amendments of1978, Pub. L. 95–602, 92 Stat. 2955, andthe Rehabilitation Act Amendments of1986, sec. 103(d), Pub. L. 99–506, 100 Stat.1810. As used in this part, section 504applies only to programs or activitiesconducted by Executive agencies andnot to federally assisted programs.

§§ 1.1804–1.1809 [Reserved]

§ 1.1810 Self-evaluation.(a) The Commission shall, within one

year of the effective date of this part,evaluate its current policies and prac-tices, and the effects thereof, that donot or may not meet the requirementsof this part, and, to the extent modi-fication of any such policies and prac-tices is required, the Commission shallproceed to make the necessary modi-fications.

(b) The Commission shall provide anopportunity to interested persons, in-cluding individuals with handicaps ororganizations representing individuals


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with handicaps, to participate in theself-evaluation process by submittingcomments (both oral and written).

(c) The Commission shall, until threeyears following completion of the self-evaluation, maintain on file and makeavailable for public inspection—

(1) A description of areas examinedand any problems identified; and

(2) A description of any modificationsmade.

§ 1.1811 Notice.The Commission shall make avail-

able to employees, applicants, partici-pants, beneficiaries, and other inter-ested persons such information regard-ing the provisions of this part and itsapplicability to the programs or activi-ties conducted by the Commission, andmake such information available tothem in such manner as the ManagingDirector finds necessary to apprisesuch persons of the protections againstdiscrimination assured them by section504 and these regulations.

§§ 1.1812–1.1829 [Reserved]

§ 1.1830 General prohibitions againstdiscrimination.

(a) No qualified individual withhandicaps shall, on the basis of handi-cap, be excluded from participation in,be denied the benefits of, or otherwisebe subjected to discrimination underany program or activity conducted bythe Commission.

(b)(1) The Commission, in providingany aid, benefit, or service, may not,directly or through contractual, licens-ing, or other arrangements, on thebasis of handicap—

(i) Deny a qualified individual withhandicaps the opportunity to partici-pate in or benefit from the aid, benefit,or service;

(ii) Afford a qualified individual withhandicaps an opportunity to partici-pate in or benefit from the aid, benefit,or service that is not equal to that af-forded others;

(iii) Provide a qualified individualwith handicaps with an aid, benefit, orservice that is not as effective in af-fording equal opportunity to obtain thesame result, to gain the same benefit,or to reach the same level of achieve-ment as that provided to others;

(iv) Provide different or separate aid,benefits, or services to individuals withhandicaps or to any class of individualswith handicaps than is provided to oth-ers unless such action is necessary toprovide qualified individuals withhandicaps with aid, benefits, or serv-ices that are as effective as those pro-vided to others;

(v) Deny a qualified individual withhandicaps the opportunity to partici-pate as a member of planning or advi-sory boards; or

(vi) Otherwise limit a qualified indi-vidual with handicaps in the enjoy-ment of any right, privilege, advan-tage, or opportunity enjoyed by othersreceiving the aid, benefit, or service.

(2) The Commission may not deny aqualified individual with handicaps theopportunity to participate in programsor activities that are not separate ordifferent, despite the existence of per-missibly separate or different programsor activities.

(3) The Commission may not, directlyor through contractual or other ar-rangements, utilize criteria or methodsof administration the purpose or effectof which would—

(i) Subject qualified individuals withhandicaps to discrimination on thebasis of handicap; or

(ii) Defeat or substantially impair ac-complishment of the objectives of aprogram or activity with respect to in-dividuals with handicaps.

(4) The Commission may not, in de-termining the site or location of a fa-cility, make selections the purpose oreffect of which would—

(i) Exclude individuals with handi-caps from, deny them the benefits of,or otherwise subject them to discrimi-nation under any program or activityconducted by the Commission; or

(ii) Defeat or substantially impairthe accomplishment of the objectivesof a program or activity with respectto individuals with handicaps.

(5) The Commission, in the selectionof procurement contractors, may notuse criteria that subject qualified indi-viduals with handicaps to discrimina-tion on the basis of handicap.


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(6) The Commission may not admin-ister a licensing or certification pro-gram in a manner that subjects quali-fied individuals with handicaps to dis-crimination on the basis of handicap,nor may the Commission establish re-quirements for the programs or activi-ties of licensees or certified entitiesthat subject qualified individuals withhandicaps to discrimination on thebasis of handicap. However, the pro-grams or activities of entities that arelicensed or certified by the Commissionare not, themselves, covered by thispart.

(c) The exclusion of nonhandicappedpersons from the benefits of a programlimited by Federal statute or Execu-tive order to individuals with handi-caps or the exclusion of a specific classof individuals with handicaps from aprogram limited by Federal statute orExecutive order to a different class ofindividuals with handicaps is not pro-hibited by this part.

(d) The Commission shall administerprograms and activities in the most in-tegrated setting appropriate to theneeds of qualified individuals withhandicaps.

§§ 1.1831–1.1839 [Reserved]

§ 1.1840 Employment.

No qualified individual with handi-caps shall, on the basis of handicap, besubjected to discrimination in employ-ment under any program or activityconducted by the Commission. Thedefinitions, requirements and proce-dures of section 501 of the Rehabilita-tion Act of 1973, 29 U.S.C. 791, as estab-lished by the Equal Employment Op-portunity Commission in 29 CFR part1613, as well as the procedures set forthin the Basic Negotiations AgreementBetween the Federal CommunicationsCommission and National TreasuryEmployees Union (effective June 22,1982) and Subchapter III of the CivilService Reform Act of 1978, 5 U.S.C.7121(d), shall apply to employment infederally conducted programs or activi-ties.

§§ 1.1841–1.1848 [Reserved]

§ 1.1849 Program accessibility: Dis-crimination prohibited.

Except as otherwise provided in§ 1.1850, no qualified individual withhandicaps shall, because the Commis-sion’s facilities are inaccessible to orunusable by individuals with handi-caps, be denied the benefits of, be ex-cluded from participation in, or other-wise be subjected to discriminationunder any program or activity con-ducted by the Commission.

§ 1.1850 Program accessibility: Exist-ing facilities.

(a) General. The Commission shall op-erate each program or activity so thatthe program or activity, when viewedin its entirety, is readily accessible toand usable by individuals with handi-caps. This paragraph does not—

(1) Necessarily require the Commis-sion to make each of its existing facili-ties accessible to and usable by individ-uals with handicaps;

(2) Require the Commission to takeany action that it can demonstratewould result in a fundamental alter-ation in the nature of a program or ac-tivity or in undue financial and admin-istrative burdens. In those cir-cumstances where Commission person-nel believe that the proposed actionwould fundamentally alter the programor activity or would result in undue fi-nancial and administrative burdens,the Commission has the burden ofproving that compliance with § 1.1850(a)would result in such alteration or bur-dens. The decision that compliancewould result in such alteration or bur-dens must be made by the ManagingDirector after considering all Commis-sion resources available for use in thefunding and operation of the conductedprogram or activity, and must be ac-companied by a written statement ofthe reasons for reaching that conclu-sion. If an action would result in suchan alteration or such burdens, theCommission shall take any other ac-tion that would not result in such analteration or such burdens but wouldnevertheless ensure that individuals


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47 CFR Ch. I (10–1–97 Edition)§ 1.1851

with handicaps receive the benefits andservices of the program or activity.

(b) Methods. The Commission maycomply with the requirements of thissection through such means as redesignof equipment, reassignment of servicesto accessible buildings, assignment ofaides to beneficiaries, home visits, de-livery of services at alternate acces-sible sites, alteration of existing facili-ties and construction of new facilities,use of accessible rolling stock, or anyother methods that result in makingits programs or activities readily ac-cessible to and usable by individualswith handicaps. The Commission is notrequired to make structural changes inexisting facilities where other methodsare effective in achieving compliancewith this section. The Commission, inmaking alterations to existing build-ings, shall meet accessibility require-ments to the extent compelled by theArchitectural Barriers Act of 1968, asamended (42 U.S.C. 4151—4157), and anyregulations implementing it. In choos-ing among available methods for meet-ing the requirements of this section,the Commission shall give priority tothose methods that offer programs andactivities to qualified individuals withhandicaps in the most integrated set-ting appropriate.

(c) Time period for compliance. TheCommission shall comply with the ob-ligations established under this sectionwithin sixty (60) days of the effectivedate of this part except that wherestructural changes in facilities are un-dertaken, such changes shall be madewithin three (3) years of the effectivedate of this part, but in any event asexpeditiously as possible.

(d) Transition plan. In the event thatstructural changes to facilities will beundertaken to achieve program acces-sibility, the Commission shall develop,within six (6) months of the effectivedate of this part, a transition plan set-ting forth the steps necessary to com-plete such changes. The Commissionshall provide an opportunity to inter-ested persons, including individualswith handicaps or organizations rep-resenting individuals with handicaps,to participate in the development ofthe transition plan by submitting com-ments (both oral and written). A copyof the transition plan shall be made

available for public inspection. Theplan shall, at a minimum—

(1) Identify physical obstacles in theCommission’s facilities that limit theaccessibility of its programs or activi-ties to individuals with handicaps;

(2) Describe in detail the methodsthat will be used to make the facilitiesaccessible;

(3) Specify the schedule for takingthe steps necessary to achieve compli-ance with this section and, if the timeperiod of the transition plan is longerthan one (1) year, identify steps thatwill be taken during each year of thetransition period;

(4) Indicate the official responsiblefor implementation of the plan.

§ 1.1851 Program accessibility: Newconstruction and alterations.

Each building or part of a buildingthat is constructed or altered by, onbehalf of, or for the use of the Commis-sion shall be designed, constructed, oraltered so as to be readily accessible toand usable by individuals with handi-caps. The definitions, requirements andstandards of the Architectural BarriersAct, 42 U.S.C. 4151—4157, as establishedin 41 CFR 101–19.600 to 101–19.607, applyto buildings covered by this section.

§§ 1.1852–1.1859 [Reserved]

§ 1.1860 Communications.

(a) The Commission shall take appro-priate steps to ensure effective commu-nication with applicants, participants,personnel of other Federal entities, andmembers of the public.

(1) The Commission shall furnish ap-propriate auxiliary aids where nec-essary to afford an individual withhandicaps an equal opportunity to par-ticipate in, and enjoy the benefits of, aprogram or activity conducted by theCommission.

(i) In determining what type of auxil-iary aid is necessary, the Commissionshall give primary consideration to therequests of the individual with handi-caps.

(ii) The Commission need not provideindividually prescribed devices, readersfor personal use or study, or other de-vices, of a personal nature.


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(2) Where the Commission commu-nicates with applicants and bene-ficiaries by telephone, telecommuni-cations devices for deaf persons(TDD’s) or equally effective tele-communications systems shall be used.

(b) The Commission shall ensure thatinterested persons, including personswith impaired vision or hearing, canobtain information as to the existenceand location of accessible services, ac-tivities, and facilities.

(c) The Commission shall providesignage at a primary entrance to eachof its inaccessible facilities, directingusers to a location at which they canobtain information about accessible fa-cilities. The international symbol foraccessibility shall be used at each pri-mary entrance of an accessible facility.

(d) This section does not require theCommission to take any action that itcan demonstrate would result in a fun-damental alteration in the nature of aprogram or activity or in undue finan-cial and administrative burdens. Inthose circumstances where Commis-sion personnel believe that the pro-posed action would fundamentallyalter the program or activity or wouldresult in undue financial and adminis-trative burdens, the Commission hasthe burden of proving that compliancewith § 1.1860 would result in such alter-ation or burdens. The decision thatcompliance would result in such alter-ation or burdens must be made by theManaging Director after consideringall Commission resources available foruse in the funding and operation of theconducted program or activity, andmust be accompanied by a writtenstatement of the reasons for reachingthat conclusion. If an action requiredto comply with this section would re-sult in such an alteration or such bur-dens, the Commission shall take anyother action that would not result insuch an alteration or such burdens butwould nevertheless ensure that, to themaximum extent possible, individualswith handicaps receive the benefits andservices of the program or activity.

§§ 1.1861–1.1869 [Reserved]

§ 1.1870 Compliance procedures.(a) Except as provided in paragraph

(b) of this section, this section applies

to all allegations of discrimination onthe basis of handicap in programs oractivities conducted by the Commis-sion.

(b) The Commission shall processcomplaints alleging violations of sec-tion 504 with respect to employmentaccording to the procedures establishedby the Equal Employment OpportunityCommission in 29 CFR part 1613 pursu-ant to section 501 of the RehabilitationAct of 1973, 29 U.S.C. 791.

(c) The Managing Director shall beresponsible for coordinating implemen-tation of this section. Complaints maybe sent to the Handicapped Coordina-tor, Office of Managing Director, Fed-eral Communications Commission, 1919M Street NW., Room 852, Washington,DC 20554.

(d) Acceptance of complaint. (1) TheCommission shall accept and inves-tigate all complete complaints forwhich it has jurisdiction. All completecomplaints must be filed within one-hundred eighty (180) days of the allegedact of discrimination. The Commissionmay extend this time period for goodcause.

(2) If the Commission receives a com-plaint that is not complete, the com-plainant will be notified within thirty(30) days of receipt of the incompletecomplaint that additional informationis needed. If the complainant fails tocomplete the complaint within thirty(30) days of receipt of this notice, theCommission shall dismiss the com-plaint without prejudice.

(e) If the Commission receives a com-plaint over which it does not have ju-risdiction, it shall promptly notify thecomplainant and shall make reason-able efforts to refer the complaint tothe appropriate government entity.

(f) The Commission shall notify theArchitectural and Transportation Bar-riers Compliance Board upon receipt ofany complaint alleging that a buildingor facility that is subject to the Archi-tectural Barriers Act of 1968, as amend-ed, 42 U.S.C. 4151—4157, is not readilyaccessible to and usable by individualswith handicaps.

(g) Within one-hundred eighty (180)days of the receipt of a complete com-plaint for which it has jurisdiction, the


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47 CFR Ch. I (10–1–97 Edition)§§ 1.1871–1.1899

Commission shall notify the complain-ant of the results of the investigationin a letter containing—

(1) Findings of fact and conclusionsof law;

(2) A description of a remedy for eachviolation found; and

(3) A notice of the right to appeal.(h) Appeals of the findings of fact and

conclusions of law or remedies must befiled by the complainant within ninety(90) days of receipt from the Commis-sion of the letter required by § 1.1870(g).The Commission may extend this timefor good cause.

(i) Timely appeals shall be acceptedand processed by the Office of the Sec-retary, Federal Communications Com-mission, 1919 M Street NW., Room 202,Washington, DC 20554.

(j) The Commission shall notify thecomplainant of the results of the ap-peal within sixty (60) days of the re-ceipt of the request. If the Commissiondetermines that it needs additional in-formation from the complainant, itshall have sixty (60) days from the dateit receives the additional informationto make its determination on the ap-peal.

(k) The time limits cited in para-graphs (g) and (j) of this section may beextended with the permission of theAssistant Attorney General.

(l) The Commission may delegate itsauthority for conducting complaint in-vestigations to other Federal agencies,except that the authority for makingthe final determination may not bedelegated to another agency.

§§ 1.1871–1.1899 [Reserved]

Subpart O—Collection of ClaimsOwed the United States

AUTHORITY: 31 U.S.C. 3701; 31 U.S.C. 3711 etseq.; 5 U.S.C. 5514; 4 CFR parts 101–105; 5 CFRpart 550.

SOURCE: 54 FR 403, Jan. 6, 1989, unless oth-erwise noted.

GENERAL PROVISIONS

§ 1.1901 Definitions.(a) The term administrative offset

means withholding money payable bythe United States Government to, orheld by the Government for, a person

to satisfy a debt the person owes theGovernment.

(b) The term agency means the Fed-eral Communications Commission(Commission) or any other agency ofthe U.S. Government as defined by sec-tion 105 of title 5 U.S.C., the U.S. Post-al Service, the U.S. Postal Rate Com-mission, a military department as de-fined by section 102 of title 5 U.S.C., anagency or court of the judicial branch,or and an agency of the legislativebranch, including the U.S. Senate andthe U.S. House of Representatives.

(c) The term agency head means theChairman of the Federal Communica-tions Commission.

(d) The terms appropriate agency offi-cial or designee means the Managing Di-rector of the Commission or such otherofficial as may be named by the Man-aging Director.

(e) The terms claim and debt aredeemed synonymous and interchange-able. They refer to an amount ofmoney or property which has been de-termined by an appropriate agency of-ficial to be owed to the United Statesfrom any person, organization, or en-tity, except another federal agency.They include amounts owing to theUnited States on account of loans in-sured or guaranteed by the UnitedStates and all other amounts due theUnited States from fees, leases, rents,royalties, services, sales of real or per-sonal property, overpayments, fines,penalties, damages, interest, taxes, andforfeitures (except those arising underthe Uniform Code of Military Justice),and other similar sources.

(f) The term creditor agency meansthe agency to which the debt is owed.

(g) The term delinquent means aclaim or debt which has not been paidby the date specified in the agency’swritten notification or applicable con-tractual agreement, unless other satis-factory payment arrangements havebeen made by that date, or, at anytime thereafter, the debtor has failedto satisfy an obligation under a pay-ment agreement with the agency.

(h) The term disposable pay meansthat part of current basic pay, specialpay, incentive pay, retired pay, re-tainer pay, or in the case of an em-ployee not entitled to basic pay, other


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authorized pay remaining after the de-duction of any amount required by lawto be withheld. Agencies must excludedeductions described in 5 CFR 581.105(b) through (f) to determine disposablepay subject to salary offset.

(i) The term employee means a cur-rent employee of the Commission or ofanother agency, including a currentmember of the Armed Forces or a Re-serve of the Armed Forces (Reserve).

(j) The term FCCS means the FederalClaims Collection Standards jointlypublished by the Justice Departmentand the General Accounting Office at 4CFR parts 101–105.

(k) The term paying agency meansthe agency employing the individualand authorizing the payment of his orher current pay.

(l) The term referral for litigationmeans referral to the Department ofJustice for appropriate legal proceed-ings except where the Commission hasthe statutory authority to handle thelitigation itself.

(m) The term salary offset means anadministrative offset to collect a debtunder 5 U.S.C. 5514 by deduction(s) atone or more officially established payintervals from the current pay accountof an employee without his or her con-sent.

(n) The term waiver means the can-cellation, remission, forgiveness, ornon-recovery of a debt allegedly owedby an employee to an agency as per-mitted or required by 5 U.S.C. 5584, 10U.S.C. 2774, or 32 U.S.C 710, 5 U.S.C.8346(b), or any other law.

§ 1.1902 Exceptions.(a) Claims arising from the audit of

transportation accounts pursuant to 31U.S.C. 3726 shall be determined, col-lected, compromised, terminated orsettled in accordance with regulationspublished under the authority of 31U.S.C. 3726 (see 41 CFR part 101–41).

(b) Claims arising out of acquisitioncontracts subject to the Federal Acqui-sition Regulations (FAR) shall be de-termined, collected, compromised, ter-minated, or settled in accordance withthose regulations. (See 48 CFR part 32).If not otherwise provided for in theFAR system, contract claims that havebeen the subject of a contracting offi-cer’s final decision in accordance with

section 6(a) of the Contract DisputesAct of 1978 (41 U.S.C. 605(a)), may be de-termined, collected, compromised, ter-minated or settled under the provisionsof this regulation, except that no addi-tional review of the debt shall begranted beyond that provided by thecontracting officer in accordance withthe provisions of section 6 of the Con-tract Disputes Act of 1978 (41 U.S.C.605), and the amount of any interest,administrative charge, or penaltycharge shall be subject to the limita-tions, if any, contained in the contractout of which the claim arose.

(c) Claims based in whole or in parton conduct in violation of the antitrustlaws, or in regard to which there is anindication of fraud, the presentation ofa false claim, or a misrepresentationon the part of the debtor or any otherparty having an interest in the claim,shall be referred to the Department ofJustice (DOJ) as only the DOJ has au-thority to compromise, suspend, or ter-minate collection action on suchclaims.

(d) Tax claims are also excluded fromthe coverage of this regulation.

§ 1.1903 Use of procedures.Procedures authorized by this regula-

tion (including, but not limited to, dis-closure to a consumer reporting agen-cy, contracting for collection services,administrative offset and salary offset)may be used singly or in combination,so long as the requirements of applica-ble law and regulation are satisfied.

§ 1.1904 Conformance to law and regu-lations.

The requirements of applicable law(31 U.S.C. 3701–3719, as amended by Pub.L. 97–365, 96 Stat. 1749) have been im-plemented in government wide stand-ards:

(a) The Regulations of the Office ofPersonnel Management (5 CFR part550) and

(b) The Federal Claims CollectionStandards issued jointly by the Gen-eral Accounting Office and the Depart-ment of Justice (4 CFR parts 101–105).Not every item in the above describedstandards has been incorporated or ref-erenced in this regulation. To the ex-tent, however, that circumstancesarise which are not covered by the


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terms stated in these regulations, theCommission will proceed in any ac-tions taken in accordance with applica-ble requirements found in the stand-ards referred to in this section.

§ 1.1905 Other procedures; collectionof forfeiture penalties.

Nothing contained in these regula-tions is intended to require the Com-mission to duplicate administrative orother proceedings required by contractor other laws or regulations, nor dothese regulations supercede proceduresrequired by other statutes or regula-tions. In particular, the assessmentand collection of monetary forfeiturepenalties imposed by the Commissionwill be governed initially by the proce-dures prescribed by 47 U.S.C. 503, 504and 47 CFR 1.80. After compliance withthose procedures, the Commission maydetermine that the collection of a mon-etary forfeiture under the collectionalternatives prescribed by this subpartis appropriate but need not duplicateadministrative or other proceedings.

§ 1.1906 Informal action.Nothing contained in these regula-

tions is intended to preclude utiliza-tion of informal administrative actionsor remedies which may be available.

§ 1.1907 Return of property.Nothing contained in this regulation

is intended to deter the Commissionfrom demanding the return of specificproperty or from demanding, in the al-ternative, either the return of propertyor the payment of its value.

§ 1.1908 Omissions not a defense.The failure of the Commission to

comply with any provision in this regu-lation shall not serve as a defense tothe debt.

ADMINISTRATIVE OFFSET—CONSUMERREPORTING AGENCIES—CONTRACTINGFOR COLLECTION

§ 1.1911 Demand for payment.(a) Written demands for payment

shall be made promptly upon a debtorin terms which inform the debtor ofthe consequences of failure to cooper-ate. A total of three progressivelystronger written demands at not more

than 30-day intervals will normally bemade unless a response to the first orsecond demand indicates that a furtherdemand would be futile and the debt-or’s response does not not require re-buttal. In determining the timing ofdemand letters, the Commission willgive due regard to the need to actpromptly so that, as a general rule, ifit becomes necessary to refer the debtto the Department of Justice for litiga-tion, such referral can be made withinone year of the agency’s final deter-mination of the fact and the amount ofthe debt. When necessary to protectthe Government’s interest (for exam-ple, to prevent the statute of limita-tions, 28 U.S.C. 2415, from expiring),written demand may be preceded byother appropriate actions under thischapter, including immediate referralfor litigation.

(b) The initial demand letter will in-form the debtor of:

(1) The basis for the indebtedness andthe right of the debtor to request re-view within the agency;

(2) The applicable standards for as-sessing interest, penalties, and admin-istrative costs (§§ 1.1940 and 1.1941 ofthis subpart) and;

(3) The date by which payment is tobe made, which normally should not bemore than 30 days from the date thatthe initial demand letter was mailed orhand-delivered.

(c) As appropriate to the cir-cumstances, the Commission may in-clude either in the initial demand let-ter or in subsequent letters, mattersrelating to alternative methods of pay-ment, policies with respect to use ofconsumer reporting agencies and col-lection services, the agency’s inten-tions with respect to referral of thedebt to the Department of Justice forlitigation, and, depending on applicablestatutory authority, the debtor’s enti-tlement to consideration of waiver.

(d) The Commission will respondpromptly to communications from thedebtor, within 30 days whenever fea-sible, and will advise debtors who dis-pute the debt that they must furnishavailable evidence to support theircontentions.

(e) If, either prior to the initiation of,at any time during, or after completionof the demand cycle, the Commission


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determines to pursue administrativeoffset, then the procedures specified in§§ 1.1912 and 1.1913 as applicable, will befollowed. The availability of funds foroffset and the agency’s determinationto pursue that remedy, release theagency from the necessity of furthercompliance with paragraphs (a), (b) and(c) of this section. If the agency hasnot already sent the first demand let-ter, the agency’s written notificationof its intent to offset must give thedebtor the opportunity to make vol-untary payment, a requirement whichwill be satisfied by compliance withthe notice requirements of §§ 1.1912 and1.1913 as applicable.

§ 1.1912 Collection by administrativeoffset.

(a) Collection by administrative off-set will be undertaken in accordancewith these regulations on all claimswhich are liquidated or certain inamount, in every instance in whichsuch collection is determined to be fea-sible and not otherwise prohibited.

(1) Whether collection by administra-tive offset is feasible is a determina-tion to be made by the agency on acase-by-case basis, in the exercise ofsound discretion. The Commission willconsider not only whether administra-tive offset can be accomplished prac-tically, but also whether offset is bestsuited to further and protect all of theGovernment’s interest. In appropriatecircumstances, the Commission maygive due consideration to the debtor’sfinancial condition and is not requiredto use offset in every instance in whichthere is an available source of funds.The Commission may also considerwhether offset would tend to substan-tially interfere with or defeat the pur-poses of the program authorizing thepayments against which offset is con-templated. For example, under a grantprogram in which payments are madein advance of the grantee’s perform-ance, offset will normally be inappro-priate. This concept generally does notapply, however, where payment is inthe form of reimbursement.

(2) [Reserved](b) Before the offset is made, a debtor

shall be provided with the following:Written notice of the nature andamount of the debt, and the agency’s

intention to collect by offset; oppor-tunity to inspect and copy agencyrecords pertaining to the debt; oppor-tunity to obtain review within theagency of the determination of indebt-edness; and opportunity to enter into awritten agreement with the agency torepay the debt.

(1) The Commission will exercisesound judgment in determining wheth-er to accept a repayment agreement inlieu of offset. The determination willweigh the Government’s interest incollecting the debt against fairness tothe debtor. If the debt is delinquentand the debtor has not disputed its ex-istence or amount, the Commissionwill normally accept a repaymentagreeement in lieu of offset only if thedebtor is able to establish that offsetwould result in undue financial hard-ship or would be against equity andgood conscience.

(2) In cases where the procedural re-quirements specified in paragraph (b)of this section have previously beenprovided to the debtor in connectionwith the same debt under some otherstatutory or regulatory authority, suchas pursuant to a notice of audit dis-allowance or pursuant to 47 U.S.C. 503,504 and 47 CFR 1.80, the agency is notrequired to duplicate those require-ments before taking administrativeoffset.

(3) The Commission may not initiateadministrative offset to collect a debtunder 31 U.S.C. 3716 more than 10 yearsafter the Government’s right to collectthe debt first accrued, unless facts ma-terial to the Government’s right to col-lect the debt were not known and couldnot reasonably have been known by theofficial or officials of the Governmentwho were charged with the responsibil-ity to discover and collect such debts.When the debt first accrued is to be de-termined according to existing law re-garding the accrual of debts, such asunder 28 U.S.C. 2415.

(4) The Commission is not authorizedby 31 U.S.C. 3716 to use administrativeoffset with respect to:

(i) Debts owed by any State or localGovernment;

(ii) Debts arising under or paymentsmade under the Social Security Act,the Internal Revenue Code of 1954, orthe tariff laws of the United States; or


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(iii) Any case in which collection ofthe claim or type of claim by adminis-trative offset is explicitly provided foror prohibited by another statute.

(5) The Commission may effect ad-ministrative offset against a paymentto be made to a debtor prior to comple-tion of the procedures required byparagraph (b) of this section if:

(i) Failure to take the offset wouldsubstantially prejudice the Govern-ment’s ability to collect the debt, and

(ii) The time before the payment is tobe made does not reasonably permitthe completion of those procedures.Such prior offset must be promptly fol-lowed by the completion of those pro-cedures. Amounts recovered by offsetbut later found not to be owed to theGovernment shall be promptly re-funded.

(6) The Commission will obtain creditreports on delinquent accounts to iden-tify opportunities for administrativeoffset of amounts due to a delinquentdebtor when other collection tech-niques have been unsuccessful.

(c) Type of hearing or review. (1) Forpurposes of this section, whenever theCommission is required to provide ahearing or review within the agency, itshall provide the debtor with a reason-able opportunity for an oral hearingwhen:

(i) Any applicable statute authorizesor requires the agency to considerwaiver of the indebtedness involved,the debtor requests waiver of the in-debtedness, and the waiver determina-tion turns on an issue of credibility orveracity; or

(ii) The debtor requests reconsider-ation of the debt and the agency deter-mines that the question of the indebt-edness cannot be resolved by review ofthe documentary evidence; for exam-ple, when the validity of the debt turnson an issue of credibility or veracity.Unless otherwise required by law, anoral hearing under this section is notrequired to be a formal evidentiary-type hearing, although the Commissionwill carefully document all significantmatters discussed at the hearing.

(2) The section does not require anoral hearing with respect to debt col-lection systems in which determina-tions of indebtedness or waiver rarelyinvolve issues of credibility or veracity

and the agency has determined that re-view of the written record is ordinarilyan adequate means to correct priormistakes. In administering such a sys-tem, the agency is not required to siftthrough all of the requests received inorder to accord oral hearings in thosefew cases which may involve issues ofcredibility or veracity.

(3) In those cases where an oral hear-ing is not required by this section, theagency will make its determination onthe request for waiver or reconsider-ation based upon a ‘‘paper hearing,’’that is, a review of the written record.

(d) Appropriate use will be made ofthe cooperative efforts of other agen-cies in affecting collection by adminis-trative offset. Generally, the Commis-sion will not refuse to comply with re-quests from other agencies to initiateadministrative offset to collect debtsowed to the United States unless therequesting agency has not compliedwith the applicable provisions of thesestandards or the offset otherwise con-trary to law.

(e) Collection by offset against ajudgment obtained by a debtor againstthe United States shall be accom-plished in accordance with 31 U.S.C.3728.

(f) Whenever the creditor agency isnot the agency which is responsible formaking the payment against which ad-ministrative offset is sought, the latteragency shall not initiate the requestedoffset until it has been provided by thecreditor agency with an appropriatewritten certification that the debtorowes a debt (including the amount) andfull compliance with the provisions ofthis section has taken place.

(g) When collecting multiple debts byadministrative offset, the Commissionwill apply the recovered amounts tothose debts in accordance with the bestinterest of the United States, as deter-mined by the facts and circumstancesof the particular case, paying specialattention to applicable statutes of lim-itation.

§ 1.1913 Administrative offset againstamounts payable from Civil ServiceRetirement and Disability Fund.

(a) Unless otherwise prohibited bylaw, the Commission may request thatmoneys which are due and payable to a


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debtor from the Civil Service Retire-ment and Disability Fund be adminis-tratively offset in reasonable amountsin order to collect in one full payment,or a minimal number of payments,debts owned to the United States bythe debtor. Such requests shall bemade to the appropriate officials of theOffice of Personnel Management in ac-cordance with such regulations as maybe prescribed by the Director of thatOffice.

(b) When making a request for ad-ministrative offset under paragraph (a)of this section, the Commission shallinclude written certification that:

(1) The debtor owes the United Statesa debt, including the amount of thedebt;

(2) The Commission has compliedwith the applicable statutes, regula-tions and procedures of the Office ofPersonnel Management; and

(3) The Commission has compliedwith the requirements of § 1.1912 of thissubpart, including any required hear-ing or review.

(c) Once the Commission decides torequest administrative offset underparagraph (a) of this section, it willmake the request as soon as practicalafter completion of the applicable pro-cedures in order that the Office of Per-sonnel Management may identify and‘‘flag’’ the debtor’s account in anticipa-tion of the time when the debtor re-quests or becomes eligible to receivepayments from the Fund. This will sat-isfy any requirement that offset be ini-tiated prior to expiration of the appli-cable statute of limitations. At suchtime as the debtor makes a claim forpayments from the Fund, if at least ayear has elapsed since the offset re-quest was originally made, the debtorshould be permitted to offer a satisfac-tory payment plan in lieu of offsetupon establishing that changed finan-cial circumstances would render theoffset unjust.

(d) If the Commission collects part orall of the debt by other means beforedeductions are made or completed pur-suant to paragraph (a) of this section,it shall act promptly to modify or ter-minate its request for offset underparagraph (a) of this section.

(e) This section does not require orauthorize the Office of Personnel Man-

agement to review the merits of theCommission’s determination with re-spect to the amount and validity of thedebt, its determination as to waiverunder an applicable statute, or its de-termination to provide or not providean oral hearing.

§ 1.1914 Collection in installments.

(a) Whenever feasible, and except asotherwise provided by law, debts owedto the United States, together with in-terest, penalties, and administrativecosts as required by this subpartshould be collected in full in one lumpsum. This is true whether the debt isbeing collected by administrative off-set or by another method, includingvoluntary payment. However, if thedebtor is financially unable to pay theindebtedness in one lump sum, pay-ment may be accepted in regular in-stallments. The Commission will ob-tain financial statements from debtorswho represent that they are unable topay the debt in one lump sum. If theCommission agrees to accept paymentin regular installments, it will obtain alegally enforceable written agreementfrom the debtor which specifies all ofthe terms of the agreement and whichcontains a provision accelerating thedebt in the event the debtor defaults.The size and frequency of installmentpayments should bear a reasonable re-lation to the size of the debtor anddebtor’s ability to pay. If possible, theinstallment payments should be of suf-ficient size and frequency to liquidatethe Government’s claim in not morethan 3 years. Installment payments ofless than $50 per month will be accept-ed only if justifiable on the grounds offinancial hardship or for some otherreasonable cause.

(b) If the debtor owes more than onedebt and designates how a voluntaryinstallment is to be applied amongthose debts, that designation must befollowed. If the debtor does not des-ignate the application of the payment,the Commission will apply payments tovarious debts in accordance with thebest interests of the United States, asdetermined by the facts and cir-cumstances of the particular case, pay-ing special attention to applicablestatutes of limitations.


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§ 1.1915 Exploration of compromise.

The Commission may attempt to ef-fect compromise, preferably during thecourse of personal interviews, in ac-cordance with the standards set forthin Part 103 of the Federal Claims Col-lection Standards (4 CFR part 103).

§ 1.1916 Suspending or terminatingcollection action.

The suspension or termination of col-lection action shall be made in accord-ance with the standards set forth inPart 104 of the Federal Claims Collec-tion Standards (4 CFR part 104).

§ 1.1917 Referrals to the Department ofJustice or the General AccountingOffice.

Referrals to the Department of Jus-tice or the General Accounting Officeshall be made in accordance with thestandards set forth in Part 105 of theFederal Claims Collection Standards (4CFR part 105).

§ 1.1918 Use of consumer reportingagencies.

(a) The term individual means a natu-ral person, and the term consumer re-porting agency has the meaning pro-vided in the Federal Claims CollectionAct, as amended, at 31 U.S.C. 3701(a)(3)or the Fair Credit Reporting Act, at 15U.S.C. 168a(f).

(b) The Commission may disclose to aconsumer reporting agency, from a sys-tem of records, information that an in-dividual is responsible for a claim if—

(1) Notice required by section 5U.S.C. 552a(e)(4) indicates that infor-mation in the system may be disclosedto a consumer reporting agency;

(2) The claim has been reviewed andit is decided that the claim is valid andoverdue;

(3) The Commission has notified theindividual in writing—

(i) That payment of the claim is over-due;

(ii) That, within not less than 60 daysafter sending the notice, the Commis-sion intends to disclose to a consumerreporting agency that the individual isresponsible for that claim;

(iii) Of the specific information to bedisclosed to the consumer reportingagency; and

(iv) Of the rights the individual hasto a complete explanation of the claim,to dispute information in the records ofthe agency about the claim, and toadminstrative appeal or review of theclaim; and

(4) The individual has not—(i) Repaid or agreed to repay the

claim under a written repayment planthat the individual has signed and theagency has agreed to; or

(ii) Filed for review of the claimunder paragraph (g) of this section;

(c) The Commission shall—(1) Disclose promptly, to each

consumer reporting agency to whichthe original disclosure was made, asubstantial change in the condition oramount of the claim;

(2) Verify or correct promptly infor-mation about the claim, on request ofa consumer reporting agency for ver-ification of any or all information sodisclosed; and

(3) Obtain satisfactory assurancesfrom each consumer reporting agencythat they are complying with all lawsof the United States relating to provid-ing consumer credit information.

(d) The Commission shall ensure thatinformation disclosed to the consumerreporting agency is limited to—

(1) Information necessary to estab-lish the identity of the individual, in-cluding name, address, and taxpayeridentification number;

(2) The amount, status, and historyof the claim; and

(3) The agency or program underwhich the claim arose.

(e) All accounts in excess of $100 thathave been delinquent more than 31days will normally be referred to aconsumer reporting agency.

(f) Before disclosing information to aconsumer reporting agency, the Com-mission shall take reasonable action tolocate an individual for whom the headof the agency does not have a currentaddress to send the notice.

(g) Before disclosing information to aconsumer reporting agency, the Com-mission shall provide, on request of anindividual alleged by the agency to beresponsible for the claim, for a reviewof the obligation of the individual, in-cluding an opportunity for reconsider-ation of the initial decision on theclaim.


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(h) Under the same provisions as de-scribed above, the Commission maydisclose to a credit reporting agency,information relating to a debtor otherthan a natural person. Such commer-cial debt accounts are not covered bythe Privacy Act.

§ 1.1919 Contracting for collectionservices.

(a) The Commission has authority tocontract for collection services to re-cover delinquent debts, provided thatthe following conditions are satisfied:

(1) The authority to resolve disputes,compromise claims, suspend or termi-nate collection action, and refer thematter for litigation is retained by theagency;

(2) The contractor shall be subject tothe Privacy Act of 1974, as amended, tothe extent specified in 5 U.S.C. 552a(m),and to applicable Federal and Statelaws and regulations pertaining to debtcollection practices, such as the FairDebt Collection Practices Act, 15U.S.C. 1692;

(3) The contractor must be requiredto account strictly for all amounts col-lected;

(4) The contractor must agree thatuncollectible accounts shall be re-turned with appropriate documenta-tion to enable the Commission to de-termine whether to pursue collectionthrough litigation or to terminate col-lection efforts; and

(5) The contractor must agree to pro-vide any data contained in its files re-lating to paragraphs (a) (1), (2), and (3)of § 105.2 of the Federal Claims Collec-tion Standards (4 CFR part 105) uponreturning an account to the Commis-sion for subsequent referral to the De-partment of Justice for litigation.

(b) Funding of collection service con-tracts. (1) The Commission may fund acollection service contract on a fixed-fee basis, that is, payment of a fixed feedetermined without regard to theamount actually collected under thecontract. Payment of the fee under thistype of contract must be charged toavailable agency appropriations.

(2) The Commission may also fund acollection service contract on a contin-gent-fee basis, that is, by including aprovision in the contract permittingthe contractor to deduct its fee from

amounts collected under the contract.The fee should be based on a percent-age of the amount collected, consistentwith prevailing commercial practice.

(3) The Commission may enter into acontract under paragraph (b)(1) of thissection only if and to the extent pro-vided in advance appropriation acts orother legislation, except that this re-quirement does not apply to the use ofa revolving fund authorized by statute.

(4) Except as authorized under para-graph (b)(2) of this section, or unlessthe receipt qualifies as a refund to theappropriation, or unless otherwise spe-cifically provided by law, the Commis-sion must deposit all amounts recov-ered under collection service contracts(or by agency employees on behalf ofthe agency) in the Treasury as mis-cellaneous receipts pursuant to 31U.S.C. 3302.

(c) The Commission will consider theuse of collection agencies at any timeafter the account is 61 days past due. Inany case where an account is sixmonths or more past due, the Commis-sion may turn it over to a collectionagency unless referred for litigation orunless arrangements have been madefor a workout procedure or the Com-mission has exercised its authority towrite off the debt pursuant to § 1.1916.

(d) The Commission will generallynot use a collection agency to collect adelinquent debt owed by a currentlyemployed or retired Federal employee,if collection by salary or annuity offsetis available.

SALARY OFFSET

§ 1.1925 Purpose.

This section provides the standardsto be followed by FCC in implementing5 U.S.C. 5514 to recover a debt from thepay account of an FCC employee, andestablishes procedural guidelines to re-cover debts when the employee’s credi-tor and paying agencies are not thesame.

§ 1.1926 Scope.

(a) Coverage. This section applies toagencies and employees as defined by§ 1.1901.

(b) Applicability. This section and 5U.S.C. 5514 apply in recovering certain


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debts by offset, except where the em-ployee consents to the recovery, fromthe current pay account of that em-ployee. Because it is an administrativeoffset, debt collection procedures forsalary offset which are not specified in5 U.S.C. 5514 and these regulationsshould be consistent with the provi-sions of the Federal Claims CollectionStandards (4 CFR parts 101–105).

(1) Excluded debts or claims. The pro-cedures contained in this section donot apply to debts or claims arisingunder the Internal Revenue Code of1954, as amended (26 U.S.C. 1 et seq.),the Social Security Act (42 U.S.C. 301 etseq.) or the tariff laws of the UnitedStates, or to any case where collectionof a debt by salary offset is explicitlyprovided for or prohibited by anotherstatute (e.g. travel advances in 5 U.S.C.5705 and employee training expenses in5 U.S.C. 4108).

(2) Waiver requests and claims to theGeneral Accounting Office. This sec-tion does not preclude an employeefrom requesting waiver of a salaryoverpayment under 5 U.S.C. 5584, 10U.S.C. 2774, or 32 U.S.C. 716, or in anyway questioning the amount or valid-ity of a debt by submitting a subse-quent claim to the General AccountingOffice in accordance with proceduresprescribed by the General AccountingOffice. Similarly, in the case of othertypes of debts, it does not preclude anemployee from requesting waiver, ifwaiver is available under any statutoryprovision pertaining to the particulardebt being collected.

(c) Time Limit. Under 4 CFR 102.3(b)(3)offset may not be initiated more than10 years after the Government’s rightto collect the debt first accrued, unlessan exception applies as stated in§ 102.3(b)(3).

§ 1.1927 Notification.(a) Salary offset deductions shall not

be made unless the Managing Directorof the Commission, or such other offi-cial as may be named in the future bythe Managing Director of the Commis-sion, provides the employee at least 30days before any deduction written no-tice stating at a minimum:

(1) The agency’s determination that adebt is owed, including the origin, na-ture, and amount of the debt;

(2) The agency’s intention to collectthe debt by means of deduction fromthe employee’s current disposable payaccount;

(3) The amount, frequency, proposedbeginning date, and duration of the in-tended deductions;

(4) An explanation of the agency’spolicy concerning interest, penalties,and administrative costs (§§ 1.1940 and1.1941 of this regulation), a statementthat such assessments must be madeunless excused in accordance with theFCCS;

(5) The employee’s right to inspectand copy Government records relatingto the debt or, if the employee or his orher representative cannot personallyinspect the records, to request and re-ceive a copy of such records.

(6) If not previously provided, the op-portunity (under terms agreeable tothe agency) to establish a schedule forthe voluntary repayment of the debt orto enter into a written agreement toestablish a schedule for repayment ofthe debt in lieu of offset. The agree-ment must be in writing, signed byboth the employee and the ManagingDirector (or designee) of the Commis-sion and documented in agency files (4CFR 102.2(e)).

(7) The employee’s right to a hearingconducted by an official arranged bythe agency (an administrative lawjudge, or alternatively, a hearing offi-cial not under the control of the headof the agency) if a petition is filed asprescribed by this subpart.

(8) The method and time period forpetitioning for a hearing;

(9) That the timely filing of a peti-tion for hearing will stay the com-mencement of collection proceedings;

(10) That the final decision in thehearing (if one is requested) will be is-sued at the earliest practical date, butnot later than 60 days after the filingof the petition requesting the hearingunless the employee requests and thehearing official grants a delay in theproceedings;

(11) That any knowingly false, mis-leading, or frivolous statements, rep-resentations, or evidence may subjectthe employee to:

(i) Disciplinary procedures appro-priate under Chapter 75 of Title 5, Unit-ed States Code, part 752 of title 5, Code


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of Federal Regulations, or any otherapplicable statutes or regulations.

(ii) Penalties under the False ClaimsAct sections 3729–3731 of Title 31, Unit-ed States Code, or any other applicablestatutory authority; or

(iii) Criminal penalties under sec-tions 286, 287, 1001, and 1002 of Title 18,United States Code, or any other appli-cable statutory authority.

(12) Any other rights and remediesavailable to the employee under stat-utes or regulations governing the pro-gram for which the collection is beingmade; and

(13) Unless there are applicable con-tractual or statutory provisions to thecontrary, that amounts paid on or de-ducted for the debt which are laterwaived or found not owed to the UnitedStates will be promptly refunded to theemployee.

(b) Notifications under this sectionshall be hand delivered with a recordmade of the date of delivery, or shall bemailed by certified mail return receiptrequested.

(c) No notification, hearing, writtenresponses or final decisions under thisregulation are required by the Commis-sion for any adjustment to pay arisingout of an employee’s election of cov-erage, or change in coverage, under aFederal benefit program requiring peri-odic deductions from pay, if theamount to be recovered was accumu-lated over four pay periods or less.

§ 1.1928 Hearing.

(a) Petition for Hearing. (1) A hearingmay be requested by filing a writtenpetition with the Managing Director ofthe Commission, or such other officialas may be named by the Managing Di-rector of the Commission, stating whythe employee believes the determina-tion of the agency concerning the ex-istence or the amount of the debt is inerror.

(2) The employee’s petition must besigned by the employee and fully iden-tify and explain with reasonable speci-ficity all the facts, evidence and wit-nesses, if any, which the employee be-lieves support his or her position.

(3) The petition must be filed no laterthan fifteen (15) calendar days from thedate that the notification was hand de-

livered or the date of delivery by cer-tified mail, return receipt requested.

(4) If a petition is received after thefifteenth (15) calendar day deadline re-ferred to above, the Commission willnevertheless accept the petition if theemployee can show that the delay wasdue to circumstances beyond his or hercontrol, or because of failure to receivenotice of the time limit (unless other-wise aware of it).

(5) If a petition is not filed within thetime limit specified in paragraph (3)above, and is not accepted pursuant toparagraph (a)(4) of this section, the em-ployee’s right to hearing will be consid-ered waived, and salary offset will beimplemented by the Commission.

(b) Type of Hearing. (1) The form andcontent of the hearing will be deter-mined by the hearing official who shallbe a person outside the control or au-thority of the Commission except thatnothing herein shall be construed toprohibit the appointment of an admin-istrative law judge by the Commission.In determining the type of hearing, thehearing officer will consider the natureand complexity of the transaction giv-ing rise to the debt. The hearing maybe conducted as an informal conferenceor interview, in which the agency andemployee will be given a full oppor-tunity to present their respective posi-tions, or as a more formal proceedinginvolving the presentation of evidence,arguments and written submissions.

(2) The employee may represent him-self or herself, or may be representedby an attorney.

(3) The hearing official shall main-tain a summary record of the hearing.

(4) The decision of the hearing officershall be in writing, and shall state:

(i) The facts purported to evidencethe nature and origin of the allegeddebt;

(ii) The hearing official’s analysis,findings, and conclusions, in the lightof the hearing, as to—

(A) The employee’s and/or agency’sgrounds,

(B) The amount and validity of thealleged debt, and,

(C) The repayment schedule, if appli-cable.

(5) The decision of the hearing offi-cial shall constitute the final adminis-trative decision of the agency.


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§ 1.1929 Deduction from pay.(a) Deduction by salary offset, from

an employee’s current disposable pay,shall be subject to the following condi-tions:

(1) Ordinarily, debts to the UnitedStates should be collected in full, inone lump sum. This will be done whenfunds are available for payment in onelump sum, or, if the amount of the debtexceeds 15 percent of disposable pay foran officially established pay interval,collection will normally be made in in-stallments.

(2) The installments shall not exceed15 percent of the disposable pay fromwhich the deduction is made, unlessthe employee has agreed in writing tothe deduction of a greater amount.

(3) Deduction will generally com-mence with the next full pay interval(ordinarily the next biweekly pay pe-riod) following the date: of the employ-ee’s written consent to salary offset,the waiver of hearing, or the decisionissued by the hearing officer.

(4) Installment deductions must bemade over a period not greater thanthe anticipated period of employmentexcept as provided in § 1.1930.

(b) [Reserved]

§ 1.1930 Liquidation from final checkor recovery from other payment.

(a) If the employee retires or resignsor if his or her employment or period ofactive duty ends before collection ofthe debt is completed, offset of the en-tire remaining balance of the debt maybe made from a final payment of anynature, including, but not limited, to,final salary payment or lump-sumleave due the employee as the date ofseparation, to such extent as is nec-essary to liquidate the debt.

(b) If the debt cannot be liquidatedby offset from a final payment, offsetmay be made from later payments ofany kind due from the United States,including, but not limited to, the CivilService Retirement and DisabilityFund, pursuant to § 1.1913 of this regu-lation.

§ 1.1931 Non-waiver of rights by pay-ments.

An employee’s involuntary paymentof all or any portion of a debt beingcollected under 5 U.S.C. 5514 shall not

be construed as a waiver of any rightswhich the employee may have under 5U.S.C. 5514 or any other provision ofcontract or law, unless statutory orcontractual provisions provide to thecontrary.

§ 1.1932 Refunds.(a) Refunds shall promptly be made

when—(1) A debt is waived or otherwise

found not owing to the United States(unless expressly prohibited by statuteor regulation); or

(2) The employee’s paying agency isdirected by an administrative or judi-cial order to refund amounts deductedfrom his or her current pay.

(b) Refunds do not bear interest un-less required or permitted by law orcontract.

§ 1.1933 Interest, penalties and admin-istrative costs.

The assessment of interest, penaltiesand administrative costs shall be in ac-cordance with §§ 1.1940 and 1.1941 of thisregulation.

§ 1.1934 Recovery when paying agencyis not creditor agency.

(a) Responsibilities of creditor agency.Upon completion of the procedures es-tablished under 5 U.S.C. 5514, the credi-tor agency must do the following:

(1) The creditor agency must certify,in writing, that the employee owes thedebt, the amount and basis of the debt,the date on which payment(s) is due,the date of the Government’s right tocollect the debt first accrued, and thatthe creditor agency’s regulations im-plementing 5 U.S.C. 5514 have been ap-proved by OPM.

(2) If the collection must be made ininstallments, the creditor agency alsomust advise the paying agency of thenumber of installments to be collected,the amount of each installment, andthe commencement date of the first in-stallment (if a date other than the nextofficially established pay period is re-quired).

(3) Unless the employee has con-sented to the salary offset in writing orsigned a statement acknowledging re-ceipt of the required procedures, andthe written consent or statement isforwarded to the paying agency, the


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creditor agency also must advise thepaying agency of the action(s) takenunder 5 U.S.C. 5514(b) and give thedate(s) the action(s) was taken.

(4) Except as otherwise provided inthis paragraph, the creditor agencymust submit a debt claim containingthe information specified in paragraphs(a) (1) through (3) of this section and aninstallment agreement (or other in-struction on the payment schedule), ifapplicable to the employee’s payingagency.

(5) If the employee is in the processof separating, the creditor agency mustsubmit its claim to the employee’spaying agency for collection pursuantto § 1.1930. The paying agency must cer-tify the total amount of its collectionand provide copies to the creditor agen-cy and the employee as stated in para-graph (c)(1) of this section. If the pay-ing agency is aware that the employeeis entitled to payments from the CivilService Retirement and DisabilityFund, or other similar payments, itmust provide written notification tothe agency responsible for making suchpayments that the debtor owes a debt(including the amount) and that therehas been full compliance with the pro-visions of this section. However, thecreditor agency must submit a prop-erly certified claim to the agency re-sponsible for making such paymentsbefore collection can be made.

(6) If the employee is already sepa-rated and all payments from his or herformer paying agency have been paid,the creditor agency may request, un-less otherwise prohibited, that moneydue and payable to the employee fromthe Civil Service Retirement and Dis-ability Fund (5 CFR 831.1801 et seq.), orother similar funds, be administra-tively offset to collect the debt. (31U.S.C. 3716 and 4 CFR 102.4)

(b) Responsibilities of paying agency—(1) Complete claim. When the paying

agency receives a properly certifieddebt claim from a creditor agency, de-ductions should be scheduled to beginprospectively at the next officials es-tablished pay interval. The employeemust receive written notice that thepaying agency has received a certifieddebt claim from the creditor agency(including the amount) and written no-tice of the date deductions from salary

will commence and of the amount ofsuch deductions.

(2) Incomplete claim. When the payingagency receives an incomplete debtclaim from a creditor agency, the pay-ing agency must return the debt claimwith a notice that procedures under 5U.S.C. 5514 and this subpart must beprovided, and a properly certified debtclaim received, before action will betaken to collect from the employee’scurrent pay account.

(3) Review. The paying agency is notrequired or authorized to review themerits of the creditor agency’s deter-mination with respect to the amountor validity of the debt certified by thecreditor agency.

(c) Employees who transfer from onepaying agency to another.

(1) If, after the creditor agency hassubmitted the debt claim to the em-ployee’s paying agency, the employeetransfers to a position served by a dif-ferent paying agency before the debt iscollected in full, the paying agencyfrom which the employee separatesmust certify the total amount of thecollection made on the debt. One copyof the certification must be furnishedto the employee, another to the credi-tor agency along with notice of em-ployee’s transfer. However, the creditoragency must submit a properly cer-tified claim to the new paying agencybefore collection can be resumed.

(2) When an employee transfers to an-other paying agency, the creditor agen-cy need not repeat the due process pro-cedures described by 5 U.S.C. 5514 andthis subpart to resume the collection.However, the creditor agency is respon-sible for reviewing the debt upon re-ceiving the former paying agency’s no-tice of the employee’s transfer to makesure the collection is resumed by thenew paying agency.

§ 1.1935 Obtaining the services of ahearing official.

(a) When the debtor does not workfor the creditor agency and the credi-tor agency cannot provide a promptand appropriate hearing before an ad-ministrative law judge or before ahearing official furnished pursuant toanother lawful arrangement, the credi-tor agency may contact an agent of thepaying agency designated in appendix


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A of 5 CFR part 581 for a hearing offi-cial, and the paying agency must thencooperate as provided by 4 CFR 102.1and provide a hearing official.

(b) When the debtor works for thecreditor agency, the creditor agencymay contact any agent (of anotheragency) designated in appendix A of 5CFR part 581 to arrange for a hearingofficial. Agencies must then cooperateas required by 4 CFR 102.1 and providea hearing official.

INTEREST, PENALTIES, ADMINISTRATIVECOSTS AND OTHER SANCTIONS

§ 1.1940 Assessment.(a) Except as provided in paragraph

(h) of this section, or § 1.1941, the Com-mission shall assess interest, penaltiesand administrative costs on debts owedto the United States pursuant to 31U.S.C. 3717. Before assessing thesecharges, the Commission will mail orhand-deliver a written notice to thedebtor explaining the agency’s require-ments concerning these charges.

(b) Interest shall accrue from thedate on which notice of the debt andthe interest requirements is firstmailed or hand-delivered to the debtor,using the most current address that isavailable to the agency. If the Commis-sion should use an ‘‘advance billing’’procedure—that is, if it mails a bill be-fore a debt is actually owed—it can in-clude the required interest notificationin the advance billing, but interestmay not start to accrue before the debtis actually owed.

(c) The rate of interest assessed shallbe the rate of the current value offunds to the United States Treasury(i.e., the Treasury Tax and loan ac-count rate), as prescribed and pub-lished by the Secretary of the Treasuryin the FEDERAL REGISTER and theTreasury Financial Manual Bulletinsannually or quarterly, in accordancewith 31 U.S.C. 3717. The Commissionmay assess a higher rate of interest ifit reasonably determines that a higherrate is necessary to protect the inter-ests of the United States. The rate ofinterest, as initially assessed, shall re-main fixed for the duration of the in-debtedness except that where a debtorhas defaulted on a repayment agree-ment and seeks to enter into a new

agreement, the Commission may set anew interest rate which reflects thecurrent value of funds to the Treasuryat the time the new agreement is exe-cuted. Interest will not be assessed onaccrued interest, penalties, or adminis-trative costs required by this section.However, if the debtor defaults on aprevious repayment agreement,charges which accrued but were notcollected under the defaulted agree-ment shall be added to the principal tobe paid under a new repayment sched-ule.

(d) The Commission shall assessagainst a debtor charges to cover ad-ministrative costs incurred as a resultof a delinquent debt—that is, the addi-tional costs incured in processing andhandling the debt because it becamedelinquent. Calculation of administra-tive costs shall be based upon actualcosts incurred or upon costs analysesestablishing an average of actual addi-tional costs incurred by the agency inprocessing and handling claims againstother debtors in similar stages of delin-quency. Administrative costs may in-clude costs incurred in obtaining acredit report or in using a private debtcollector, to the extent they are attrib-utable to the delinquency.

(e) The Commission shall assess apenalty charge, not to exceed 6 percenta year, on any portion of a debt that isdelinquent for more than 90 days. Thischarge need not be calculated until the91st day of delinquency, but shall ac-crue from the date that the debt be-came delinquent.

(f) When a debt is paid in partial orinstallment payments, amounts re-ceived by the agency shall be appliedfirst to outstanding penalty and ad-ministrative cost charges, second toaccrued interest, and third to the out-standing principal.

(g) The Commission will waive thecollection of interest on the debt orany portion of the debt which is paidwithin 30 days after the date on whichinterest began to accrue. It may extendthis 30-day period, on a case-by-casebasis, if it reasonably determines thatsuch action is appropriate. Also, theCommission may waive, in whole or in


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part, the collection of interest, pen-alties, and/or administrative costs as-sessed under this section under the cri-teria specified in part 103 of the Fed-eral Claims Collection Standards (4CFR part 103) relating to the com-promise of claims (without regard tothe amount of the debt), or if it deter-mines that collection of these chargeswould be against equity and good con-science, or not in the best interest ofthe United States. Waiver under thefirst sentence of this paragraph (g) ismandatory. Under the second and thirdsentences, it may be exercised underappropriate circumstances. Examplesof appropriate circumstances include:

(1) Waiver of interest pending theagency’s disposition of a request for re-consideration, administrative review,or waiver of the underlying debt undera permissive statute, and

(2) Waiver of interest where the Com-mission has accepted an installmentplan under § 1.1914, and there is no indi-cation of fault or lack of good faith onthe part of the debtor.

(h) Where a mandatory waiver or re-view statute applies, interest and relat-ed charges may not be assessed forthose periods during which collectionaction must be suspended under§ 104.2(c)(1) of the Federal Claims Col-lection Standards (4 CFR part 104).

§ 1.1941 Exemptions.(a) The provisions concerning inter-

est and penalty on claims contained in31 U.S.C. 3717 do not apply:

(1) To debts owed by any State orlocal government;

(2) To debts arising under contractswhich were executed prior to, and werein effect on (i.e., were not completed asof), October 25, 1982;

(3) To debts where an applicable stat-ute, regulation required by statute,loan agreement, or contract either pro-hibits such charges or explicitly fixesthe charges that apply to the debtsarising under the Social Security Act,the Internal Revenue Code of 1954, orthe tariff laws of the United States.

(b) However, the Commission is au-thorized to assess interest and relatedcharges on debts which are not subjectto 31 U.S.C. 3717 to the extent author-ized under the common law or otherapplicable statutory authority.

§ 1.1942 Other sanctions.The remedies and sanctions available

to the Commission in this subpart arenot exclusive. The Commission mayimpose other sanctions, where per-mitted by law, for any inexcusable,prolonged, or repeated failure of adebtor to pay such a claim. In suchcases, the Commission will provide no-tice, as required by law, to the debtorprior to imposition of any such sanc-tion.

COOPERATION WITH THE INTERNALREVENUE SERVICE

§ 1.1950 Reporting discharged debts tothe Internal Revenue Service.

When the Commission discharges adebt for less than the full value of theindebtedness, it will report the out-standing balance discharged, not in-cluding interest, to the Internal Reve-nue Service, using IRS Form 1099–G orany other form prescribed by the Serv-ice, when:

(a) The principal amount of the debtnot in dispute is $600 or more; and

(b) The obligation has not been dis-charged in a bankruptcy proceeding;and

(c) The obligation is no longer col-lectible either because the time limitin the applicable statute for enforcingcollection expired during the tax year,or because during the year a formalcompromise agreement was reached inwhich the debtor was legally dis-charged of all or a portion of the obli-gation.

§ 1.1951 Offset against tax refunds.The Commission will take action to

effect administrative offset against taxrefunds due to debtors under 26 U.S.C.6402, in accordance with the provisionsof 31 U.S.C. 3720A and Treasury Depart-ment regulations.

GENERAL PROVISIONS CONCERNINGINTERAGENCY REQUESTS

§ 1.1952 Interagency requests.(a) Requests to the Commission by

other Federal agencies for administra-tive or salary offset shall be in writingand forwarded to the Financial Serv-ices Branch, FCC, 1919 M Street NW.,Washington, DC 20554.


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47 CFR Ch. I (10–1–97 Edition)§ 1.2001

(b) Requests by the Commission toother Federal agencies holding fundspayable to the debtor will be in writingand forwarded, certified return receipt,as specified by that agency in its regu-lations. If the agency’s rules governingthis matter are not readily available oridentifiable, the request will be sub-mitted to that agency’s office of legalcounsel with a request that it be proc-essed in accordance with their internalprocedures.

(c) Requests to and from the Commis-sion shall be accompanied by a certifi-cation that the debtor owes the debt(including the amount) and that theprocedures for administrative or salaryoffset contained in this subpart, orcomparable procedures prescribed bythe requesting agency, have been fullycomplied with. The Commission willcooperate with other agencies ineffecting collection.

(d) Requests to and from the Com-mission shall be processed within 30calendar days of receipt. If such proc-essing is impractical or not feasible,notice to extend the time period for an-other 30 calendar days will be for-warded 10 calendar days prior to theexpiration of the first 30-day period.

Subpart P—Implementation of theAnti-Drug Abuse Act of 1988

SOURCE: 57 FR 187, Jan. 3, 1992, unless oth-erwise noted.

§ 1.2001 Purpose.To determine eligibility for profes-

sional and/or commercial licenses is-sued by the Commission with respectto any denials of Federal benefits im-posed by Federal and/or state courtsunder authority granted in 21 U.S.C.862.

[60 FR 39269, Aug. 2, 1995]

§ 1.2002 Applicants required to submitinformation.

(a) In order to be eligible for anynew, modified, and/or renewed instru-ment of authorization from the Com-mission, including but not limited to,authorizations issued pursuant to sec-tions 214, 301, 302, 303(1), 308, 310(d), 318,319, 325(b), 351, 361(b), 362(b), 381, and 385of the Communications Act of 1934, as

amended, by whatever name that in-strument may be designated, all appli-cants shall certify that neither the ap-plicant nor any party to the applica-tion is subject to a denial of Federalbenefits that includes FCC benefitspursuant to section 5301 of the Anti-Drug Abuse Act of 1988. 21 U.S.C. 862. Ifa section 5301 certification has been in-corporated into the FCC applicationform being filed, the applicant need notsubmit a separate certification. If asection 5301 certification has not beenincorporated into the FCC applicationform being filed, the applicant shall bedeemed to have certified by signing theapplication, unless an exhibit is in-cluded stating that the signature doesnot constitute such a certification andexplaining why the applicant is unableto certify. If no FCC application formis involved, the applicant must attacha certification to its written applica-tion. If the applicant is unable to socertify, the applicant shall be ineli-gible for the authorization for which itapplied, and will have 90 days from thefiling of the application to comply withthis rule. If a section 5301 certificationhas been incorporated into the FCC ap-plication form, failure to respond tothe question concerning certificationshall result in dismissal of the applica-tion pursuant to the relevant process-ing rules.

(b) A party to the application, asused in paragraph (a) of this sectionshall include:

(1) If the applicant is an individual,that individual;

(2) If the applicant is a corporation orunincorporated association, all offi-cers, directors, or persons holding 5%or more of the outstanding stock orshares (voting and/or non-voting) of theapplicant; and

(3) If the applicant is a partnership,all non-limited partners and any lim-ited partners holding a 5% or more in-terest in the partnership.

(c) The provisions of paragraphs (a)and (b) of this section are not applica-ble to the Amateur Radio Service, theCitizens Band Radio Service, the RadioControl Radio Service, to users in thePublic Mobile Services and the PrivateRadio Services that are not individ-ually licensed by the Commission, or to


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Federal, State or local governmentalentities or subdivisions thereof.

[57 FR 187, Jan. 3, 1992, as amended at 58 FR8701, Feb. 17, 1993; 60 FR 39269, Aug. 2, 1995]

§ 1.2003 Applications affected.The certification required by § 1.2002

must be filed with the following appli-cations as well as any other requestsfor authorization filed with the Com-mission, regardless of whether a spe-cific form exists.FCC 301 Application for Construction Per-

mit for Commercial Broadcast Station;FCC 301–A Application for Authority to Op-

erate a Broadcast Station by Remote Con-trol or to Make Changes in a Remote Con-trol Authorization;

FCC 302 Application for New Broadcast Sta-tion License;

FCC 302—FM Application for FM BroadcastStation License;

FCC 303–S Application for Renewal of Li-cense for AM, FM, TV, Translator, orLPTV Station;

FCC 307 Application for Extension of Broad-cast Construction Permit or to Replace Ex-pired Construction Permit;

FCC 308 Application for Permit to DeliverPrograms to Foreign Broadcast Stations;

FCC 309 Application for Authority to Con-struct or Make Changes in an Inter-national or Experimental Broadcast Sta-tion;

FCC 310 Application for an International,Experimental Television, ExperimentalFacsimile, or a Developmental BroadcastStation License;

FCC 311 Application for Renewal of anInternational or Experimental BroadcastLicense;

FCC 313 Application for Authorization inthe Auxiliary Radio Broadcast Services;

FCC 313–R Application for Renewal of Aux-iliary Broadcast License;

FCC 314 Application for Consent to Assign-ment of Broadcast Station ConstructionPermit or License;

FCC 315 Application for Consent to Transferof Control of Corporation Holding Broad-cast Station Construction Permit or Li-cense;

FCC 316 Application for Consent to Assign-ment of Radio Broadcast Station Construc-tion Permit or License or Transfer of Con-trol of Corporation Holding Radio Broad-cast Station Construction Permit or Li-cense;

FCC 327 Application for Cable TelevisionRelay Service Station Authorzation;

FCC 330 Application for Authorization toConstruct New or Make Changes in an In-structional Television Fixed and/or Re-sponse Station(s), or to Assign or TransferSuch Stations;

FCC 330–L Application for InstructionalTelevision Fixed Station License;

FCC 330–R Application for Renewal of In-structional Television Fixed Station and/orResponse Station(s) and Low Power RelayStation(s) License;

FCC 340 Application for Construction Per-mit for Noncommercial EducationalBroadcast Station;

FCC 345 Application for Transfer of Controlof a Corporate Licensee or Permittee, orAssignment of License or Permit, for anFM or TV Translator Station, or a LowPower Television Station;

FCC 346 Application for Authority to Con-struct or Make Changes in a Low PowerTV, TV Translator or TV Booster Station;

FCC 347 Application for a Low Power TV,TV Translator or TV Booster Station Li-cense;

FCC 349 Application for Authority to Con-struct or Make Changes in an FM Trans-lator or FM Booster Station;

FCC 350 Application for an FM Translatoror FM Booster Station License;

FCC 401 Application for New or ModifiedCommon Carrier Radio Station Authoriza-tion Under part 22 of this chapter.

FCC 402 Application for Station Authoriza-tion in the Private Operational FixedMicrowave Radio Service;

FCC 402–R Renewal Notice and Certifi-cation in the Private Operational FixedMicrowave Radio Service;

FCC 403 Application for Radio Station Li-cense or Modification Thereof Under parts23 or 25 of this chapter;

FCC 404 Application for Aircraft Radio Sta-tion License;

FCC 405 Application for Renewal of RadioStation License;

FCC 405–A Application for Renewal of RadioStation License and/or Notification ofChange to License Information;

FCC 405–B Ship/Aircraft License ExpirationNotice and/or Renewal Application;

FCC 406 Application for Ground Station Au-thorization in the Aviation Services;

FCC 407 Application for New or ModifiedRadio Station Construction Permit;

FCC 409 Airborne Mobile Radio TelephoneLicense Application;

FCC 410 Registration of Canadian RadioStation Licensee and Application for Per-mit to Operate (Land Mobile);

FCC 442 Application for New or ModifiedRadio Station Authorization Under part 5of this chapter—Experimental Radio Serv-ice (Other than Broadcast);

FCC 490 Application for Assignment orTransfer of Control Under part 22 of thischapter;

FCC 493 Application for Earth Station Au-thorization or Modification of Station Li-cense (Proposed);


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47 CFR Ch. I (10–1–97 Edition)§ 1.2101

FCC 494 Application for a New or ModifiedMicrowave Radio Station License Underpart 21 of this chapter;

FCC 494–A Certification of Completion ofConstruction Under part 21 of this chapter;

FCC 503 Application for Land Radio StationLicense in the Maritime Services;

FCC 506 Application for Ship Radio StationLicense;

FCC 574 Application for Private Land Mo-bile and General Mobile Radio Services;

FCC 574–R Application for Renewal of RadioStation License;

FCC 701 Application for Additional Time toConstruct a Radio Station;

FCC 702 Application for Consent to Assign-ment of Radio Station Construction Per-mit or License;

FCC 703 Application for Consent to TransferControl of Corporation Holding Station Li-cense;

FCC 704 Application for Consent to Transferof Control of Corporation Holding CommonCarrier Radio Station Construction Permitor License;

FCC 730 Application for Registration ofEquipment to be Connected to the Tele-phone Network;

FCC 731 Application for Equipment Author-ization;

FCC 753 Restricted Radiotelephone Opera-tor Permit Application;

FCC 755 Application for Restricted Radio-telephone Operator Permit—Limited Use;

FCC 756 Application for Commercial RadioOperator License.

[57 FR 187, Jan. 3, 1992, as amended at 57 FR48333, Oct. 23, 1992; 59 FR 63051, Dec. 7, 1994]

Subpart Q—Competitive BiddingProceedings

SOURCE: 59 FR 44293, Aug. 26, 1994, unlessotherwise noted.

GENERAL PROCEDURES

§ 1.2101 Purpose.The provisions of this subpart imple-

ment section 309(j) of the Communica-tions Act of 1934, as added by the Omni-bus Budget Reconciliation Act of 1993(P.L. 103–66), authorizing the Commis-sion to employ competitive biddingprocedures to choose from among twoor more mutually exclusive applica-tions for certain initial licenses.

§ 1.2102 Eligibility of applications forcompetitive bidding.

(a) Mutually exclusive initial appli-cations in the following services or

classes of services are subject to com-petitive bidding:

(1) Interactive Video Data Service(see 47 CFR part 95, subpart F). Thisparagraph does not apply to applica-tions which were filed prior to July 26,1993;

(2) Marine Public Coast Stations (see47 CFR part 80, subpart J);

(3) Multipoint Distribution Serviceand Multichannel Multipoint Distribu-tion Service (see 47 CFR part 21, sub-part K). This paragraph does not applyto applications which were filed priorto July 26, 1993;

(4) Exclusive Private Carrier Pagingabove 900 MHz (see 47 CFR part 90, sub-part P.)

(5) Public Mobile Services (see 47 CFRpart 22), except in the 800 MHz Air-Ground Radiotelephone Service, and inthe Rural Radio Service. This para-graph does not apply to applications inthe cellular radio service, such as cel-lular unserved area applications, thatwere filed prior to July 26, 1993;

(6) Specialized Mobile Radio Service(SMR) (see 47 CFR part 90, subpart S)including applications based on finder’spreferences for frequencies allocated tothe SMR service (see 47 CFR 90.173); and

(7) Personal Communications Serv-ices (PCS) (see 47 CFR part 24).

(8) General Wireless CommunicationsService (GWCS) (see part 26 of thischapter).

(9) Local Multipoint DistributionService (LMDS) (see 47 CFR part 101).

NOTE TO PARAGRAPH (A): To determine therules that apply to competitive bidding inthe foregoing services, specific service rulesshould also be consulted.

(b) The following types of license ap-plications are not subject to competi-tive bidding procedures:

(1) Applications for renewal of li-censes;

(2) Applications for modification oflicense; provided, however, that theCommission may determine that appli-cations for modification that are mutu-ally exclusive with other applicationsshould be subject to competitive bid-ding;

(3) Applications for subsidiary com-munications services. A ‘‘subsidiarycommunications service’’ is a class ofservice where the signal for that serv-ice is indivisible from that of the main


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channel signal and that main channelsignal is exempt from competitive bid-ding under other provisions of theserules. See, e.g., § 1.2102(c) (exemptingbroadcast services). Examples of suchsubsidiary communications servicesare those transmitted on subcarrierswithin the FM baseband signal (see 47CFR 73.295), and signals transmittedwithin the Vertical Blanking Intervalof a broadcast television signal; and

(4) Applications for frequencies usedas an intermediate link or links in theprovision of a continuous, end-to-endservice where no service is provided di-rectly to subscribers over the fre-quencies. Examples of such intermedi-ate links are:

(i) Point-to-point microwave facili-ties used to connect a cellular radiotelephone base station with a cellularradio telephone mobile telephoneswitching office; and

(ii) Point-to-point microwave facili-ties used as part of the service offeringin the provision of telephone exchangeor interexchange service.

(c) Applications in the followingservices or classes of services are notsubject to competitive bidding:

(1) Alaska-Private Fixed Stations (see47 CFR part 80, subpart O);

(2) Broadcast radio (AM and FM) andbroadcast television (VHF, UHF,LPTV) under 47 CFR part 73;

(3) Broadcast Auxiliary and CableTelevision Relay Services (see 47 CFRpart 74, subparts D, E, F, G, H and Land part 78, subpart B);

(4) Instructional Television FixedService (see 47 CFR part 74, subpart I);

(5) Maritime Support Stations (see 47CFR part 80, subpart N);

(6) Marine Operational Fixed Sta-tions (see 47 CFR part 80, subpart L);

(7) Marine Radiodetermination Sta-tions (see 47 CFR part 80, subpart M);

(8) Personal Radio Services (see 47CFR part 95), except applications filedafter July 26, 1993, in the InteractiveVideo Data Service (see 47 CFR part 95,subpart F);

(9) Public Safety, Industrial/LandTransportation, General and BusinessRadio categories above 800 MHz, in-cluding finder’s preference requests forfrequencies not allocated to the SMRservice (see 47 CFR 90.173), and includ-ing, until further notice of the Com-

mission, the Automated Vehicle Mon-itoring Service (see 47 CFR 90.239);

(10) Private Land Mobile Radio Serv-ices between 470–512 MHz (see 47 CFRpart 90, subparts B–F), including thosebased on finder’s preferences, (see 47CFR 90.173);

(11) Private Land Mobile Radio Serv-ices below 470 MHz (see 47 CFR part 90,subparts B–F) except in the 220 MHzband (see 47 CFR part 90, subpart T), in-cluding those based on finder’s pref-erences (see 47 CFR § 90.173); and

(12) Private Operational Fixed Serv-ices (see 47 CFR part 94).

[59 FR 44293, Aug. 26, 1994, as amended at 60FR 40718, Aug. 9, 1995; 62 FR 23163, Apr. 29,1997]

§ 1.2103 Competitive bidding designoptions.

(a) The Commission will select thecompetitive bidding design(s) to beused in auctioning particular licensesor classes of licenses on a service-spe-cific basis. The choice of competitivebidding design will generally be madepursuant to the criteria set forth in PPDocket No. 93–253, FCC 94–61, adoptedMarch 8, 1994, available for purchasefrom the International TranscriptionService, Inc., 2100 M St. NW., suite 140,Washington, DC 20037, telephone (202)857–3800, but the Commission may de-sign and test alternative methodolo-gies. The Commission will choose fromone or more of the following types ofauction designs for services or classesof services subject to competitive bid-ding:

(1) Simultaneous multiple round auc-tions (using remote or on-site elec-tronic bidding);

(2) Sequential multiple round auc-tions (using either oral ascending or re-mote and/or on-site electronic bidding);and/or

(3) Sequential or simultaneous singleround auctions (using either sealedpaper or remote and/or on-site elec-tronic bidding).

(b) The Commission may usecombinatorial bidding, which wouldallow bidders to submit all or nothingbids on combinations of licenses or au-thorizations, in addition to bids on in-dividual licenses or authorizations. TheCommission may require that to be de-clared the high bid, a combinatorial


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47 CFR Ch. I (10–1–97 Edition)§ 1.2104

bid must exceed the sum of the individ-ual bids by a specified amount.Combinatorial bidding may be usedwith any type of auction. The Commis-sion may also allow bidders to submitcontingent bids on individual and/orcombinations of licenses.

(c) The Commission may use singlecombined auctions, which combine bid-ding for two or more substitutable li-censes and award licenses to the high-est bidders until the available licensesare exhausted. This technique may beused in conjunction with any type ofauction.


§ 1.2104 Competitive bidding mecha-nisms.

(a) Sequencing. The Commission willestablish the sequence in which mul-tiple licenses will be auctioned.

(b) Grouping. In the event the Com-mission uses either a simultaneousmultiple round competitive bidding de-sign or combinatorial bidding, theCommission will determine which li-censes will be auctioned simulta-neously or in combination.

(c) Reservation Price. The Commissionmay establish a reservation price, ei-ther disclosed or undisclosed, belowwhich a license subject to auction willnot be awarded.

(d) Minimum Bid Increments. The Com-mission may, by announcement beforeor during an auction, require minimumbid increments in dollar or percentageterms. The Commission may also es-tablish suggested minimum openingbids on a service-specific basis.

(e) Stopping Rules. The Commissionmay establish stopping rules before orduring multiple round auctions inorder to terminate the auctions withina reasonable time.

(f) Activity Rules. The Commissionmay establish activity rules which re-quire a minimum amount of biddingactivity.

(g) Withdrawal, Default and Disquali-fication Penalties. As specified below,when the Commission conducts a si-multaneous multiple round auctionpursuant to § 1.2103, the Commissionwill impose penalties on bidders whowithdraw high bids during the courseof an auction, or who default on pay-

ments due after an auction closes orwho are disqualified.

(1) Bid withdrawal prior to close ofauction. A bidder who withdraws ahigh bid during the course of an auc-tion will be subject to a penalty equalto the difference between the amountbid and the amount of the winning bidthe next time the license is offered bythe Commission. No withdrawal pen-alty would be assessed if the subse-quent winning bid exceeds the with-drawn bid. This penalty amount will bededucted from any upfront paymentsor down payments that the withdraw-ing bidder has deposited with the Com-mission.

(2) Default or disqualification afterclose of auction. If a high bidder de-faults or is disqualified after the closeof such an auction, the defaulting bid-der will be subject to the penalty inparagraph (g)(1) plus an additional pen-alty equal to 3 percent of the subse-quent winning bid. If the subsequentwinning bid exceeds the defaulting bid-der’s bid amount, the 3 percent penaltywill be calculated based on the default-ing bidder’s bid amount. Theseamounts will be deducted from anyupfront payments or down paymentsthat the defaulting or disqualified bid-der has deposited with the Commission.When the Commission conducts singleround sealed bid auctions or sequentialoral auctions, the Commission maymodify the penalties to be paid in theevent of bid withdrawal, default or dis-qualification; provided, however, thatsuch penalties shall not exceed the pen-alties specified above.

(h) The Commission will generallyrelease information concerning theidentities of bidders before each auc-tion but may choose, on an auction-by-auction basis, to withhold the identityof the bidders associated with bidderidentification numbers.

(i) The Commission may delay, sus-pend, or cancel an auction in the eventof a natural disaster, technical obsta-cle, evidence of security breach, unlaw-ful bidding activity, administrative ne-cessity, or for any other reason that af-fects the fair and efficient conduct ofthe competitive bidding. The Commis-sion also has the authority, at its solediscretion, to resume the competitivebidding starting from the beginning of


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the current or some previous round orcancel the competitive bidding in itsentirety.

§ 1.2105 Bidding application and cer-tification procedures; prohibition ofcollusion.

(a) Submission of Short Form Applica-tion (FCC Form 175). In order to be eligi-ble to bid, an applicant must timelysubmit a short-form application (FCCForm 175), together with any appro-priate filing fee set forth by Public No-tice. Unless otherwise provided by Pub-lic Notice, the Form 175 need not be ac-companied by an upfront payment (see§ 1.2106).

(1) All Form 175s will be due:(i) On the date(s) specified by Public

Notice; or(ii) In the case of application filing

dates which occur automatically by op-eration of law (see, e.g., 47 CFR 22.902),on a date specified by Public Noticeafter the Commission has reviewed theapplications that have been filed onthose dates and determined that mu-tual exclusivity exists.

(2) The Form 175 must contain thefollowing information:

(i) Identification of each license onwhich the applicant wishes to bid;

(ii) The applicant’s name, if the ap-plicant is an individual. If the appli-cant is a corporation, then the short-form application will require the nameand address of the corporate office andthe name and title of an officer or di-rector. If the applicant is a partner-ship, then the application will requirethe name, citizenship and address of allpartners, and, if a partner is not a nat-ural person, then the name and title ofa responsible person should be includedas well. If the applicant is a trust, thenthe name and address of the trusteewill be required. If the applicant isnone of the above, then it must iden-tify and describe itself and its prin-cipals or other responsible persons;

(iii) The identity of the person(s) au-thorized to make or withdraw a bid;

(iv) If the applicant applies as a des-ignated entity pursuant to § 1.2110, astatement to that effect and a declara-tion, under penalty of perjury, that theapplicant is qualified as a designatedentity under § 1.2110.

(v) Certification that the applicant islegally, technically, financially andotherwise qualified pursuant to section308(b) of the Communications Act of1934, as amended. The Commission willaccept applications certifying that arequest for waiver or other relief fromthe requirements of section 310 is pend-ing;

(vi) Certification that the applicantis in compliance with the foreign own-ership provisions of section 310 of theCommunications Act of 1934, as amend-ed;

(vii) Certification that the applicantis and will, during the pendency of itsapplication(s), remain in compliancewith any service-specific qualificationsapplicable to the licenses on which theapplicant intends to bid including, butnot limited to, financial qualifications.The Commission may require certifi-cation in certain services that the ap-plicant will, following grant of a li-cense, come into compliance with cer-tain service-specific rules, including,but not limited to, ownership eligi-bility limitations;

(viii) An exhibit, certified as truthfulunder penalty of perjury, identifyingall parties with whom the applicanthas entered into partnerships, jointventures, consortia or other agree-ments, arrangements or understand-ings of any kind relating to the li-censes being auctioned, including anysuch agreements relating to the post-auction market structure.

(ix) Certification under penalty ofperjury that it has not entered and willnot enter into any explicit or implicitagreements, arrangements or under-standings of any kind with any partiesother than those identified pursuant toparagraph (a)(2)(viii) of this section re-garding the amount of their bids, bid-ding strategies or the particular li-censes on which they will or will notbid; and

(x) Certification that the applicant isnot in default on any Commission li-censes and that it is not delinquent onany non-tax debt owed to any Federalagency.

NOTE TO PARAGRAPH (A): The Commissionmay also request applicants to submit addi-tional information for informational pur-poses to aid in its preparation of required re-ports to Congress.


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(b) Modification and Dismissal of Form175. (1) Any Form 175 that is not signedor otherwise does not contain all of thecertifications required pursuant to thissection is unacceptable for filing andcannot be corrected subsequent to anyapplicable filing deadline. The applica-tion will be dismissed with prejudiceand the upfront payment, if paid, willbe returned.

(2) The Commission will provide bid-ders a limited opportunity to cure de-fects specified herein (except for failureto sign the application and to makecertifications) and to resubmit a cor-rected application. Form 175 may beamended or modified to make minorchanges or correct minor errors in theapplication (such as typographical er-rors). The Commission will classify allamendments as major or minor, pursu-ant to rules applicable to specific serv-ices. An application will be consideredto be a newly filed application if it isamended by a major amendment andmay not be resubmitted after applica-ble filing deadlines.

(3) Applicants who fail to correct de-fects in their applications in a timelymanner as specified by Public Noticewill have their applications dismissedwith no opportunity for resubmission.

(c) Prohibition of collusion. (1) Exceptas provided in paragraphs (c)(2), (c)(3)and (c)(4) of this section, after the fil-ing of short-form applications, all ap-plicants are prohibited from cooperat-ing, collaborating, discussing or dis-closing in any manner the substance oftheir bids or bidding strategies, or dis-cussing or negotiating settlementagreements, with other applicantsuntil after the high bidder makes therequired down payment, unless suchapplicants are members of a biddingconsortium or other joint bidding ar-rangement identified on the bidder’sshort-form application pursuant to§ 1.2105(a)(2)(viii).

(2) Applicants may modify theirshort-form applications to reflect for-mation of consortia or changes in own-ership at any time before or during anauction, provided such changes do notresult in a change in control of the ap-plicant, and provided that the partiesforming consortia or entering intoownership agreements have not appliedfor licenses in any of the same geo-

graphic license areas. Such changeswill not be considered major modifica-tions of the application.

(3) After the filing of short-form ap-plications, applicants may make agree-ments to bid jointly for licenses, pro-vided the parties to the agreementhave not applied for licenses in any ofthe same geographic license areas.

(4) After the filing of short-form ap-plications, a holder of a non-control-ling attributable interest in an entitysubmitting a short-form applicationmay acquire an ownership interest in,form a consortium with, or enter into ajoint bidding arrangement with, otherapplicants for licenses in the same geo-graphic license area, provided that:

(i) The attributable interest holdercertifies to the Commission that it hasnot communicated and will not com-municate with any party concerningthe bids or bidding strategies of morethan one of the applicants in which itholds an attributable interest, or withwhich it has a consortium or joint bid-ding arrangement, and which have ap-plied for licenses in the same geo-graphic license area(s); and

(ii) The arrangements do not resultin any change in control of an appli-cant.

(5) Applicants must modify theirshort-form applications to reflect anychanges in ownership or in the mem-bership of consortia or joint bidding ar-rangements.

(6) For purposes of this paragraph:(i) The term applicant shall include

the entity submitting a short-form ap-plication to participate in an auction(FCC Form 175), as well as all holdersof partnership and other ownership in-terests and any stock interest amount-ing to 5 percent or more of the entity,or outstanding stock, or outstandingvoting stock of the entity submitting ashort-form application, and all officersand directors of that entity; and

(ii) The term bids or bidding strategiesshall include capital calls or requestsfor additional funds in support of bidsor bidding strategies.

EXAMPLE FOR PARAGRAPH (C): Company A isan applicant in area 1. Company B and Com-pany C each own 10 percent of Company A.Company D is an applicant in area 1, area 2,and area 3. Company C is an applicant inarea 3. Without violating the Commission’s


303


Rules, Company B can enter into a consor-tium arrangement with Company D or ac-quire an ownership interest in Company D ifCompany B certifies either

(1) That it has communicated with and willcommunicate neither with Company A oranyone else concerning Company A’s bids orbidding strategy, nor with Company C oranyone else concerning Company C’s bids orbidding strategy, or

(2) That it has not communicated with andwill not communicate with Company D oranyone else concerning D’s bids or biddingstrategy.

[59 FR 44293, Aug. 26, 1994, as amended at 59FR 64162, Dec. 13, 1994; 62 FR 13543, Mar. 21,1997]

§ 1.2106 Submission of upfront pay-ments.

(a) The Commission may require ap-plicants for licenses subject to com-petitive bidding to submit an upfrontpayment. In that event, the amount ofthe upfront payment and the proce-dures for submitting it will be set forthin a Public Notice. No interest will bepaid on upfront payments.

(b) Upfront payments must be madeby wire transfer in U.S. dollars from afinancial institution whose deposits areinsured by the Federal Deposit Insur-ance Corporation and must be madepayable to the Federal Communica-tions Commission.

(c) If an upfront payment is not incompliance with the Commission’sRules, or if insufficient funds are ten-dered to constitute a valid upfront pay-ment, the applicant shall have a lim-ited opportunity to correct its submis-sion to bring it up to the minimumvalid upfront payment prior to the auc-tion. If the applicant does not submitat least the minimum upfront pay-ment, it will be ineligible to bid, its ap-plication will be dismissed and anyupfront payment it has made will bereturned.

(d) The upfront payment(s) of a bid-der will be credited toward any downpayment required for licenses on whichthe bidder is the high bidder. Where theupfront payment amount exceeds therequired deposit of a winning bidder,the Commission may refund the excessamount after determining that no bidwithdrawal penalties are owed by thatbidder.

(e) In accordance with the provisionsof paragraph (d), in the event a penalty

is assessed pursuant to § 1.2104 for bidwithdrawal or default, upfront pay-ments or down payments on depositwith the Commission will be used tosatisfy the bid withdrawal or defaultpenalty before being applied towardany additional payment obligationsthat the high bidder may have.


§ 1.2107 Submission of down paymentand filing of long-form applications.

(a) After bidding has ended, the Com-mission will identify and notify thehigh bidder and declare the biddingclosed.

(b) Within ten (10) business days afterbeing notified that it is a high bidderon a particular license(s), a high biddermust submit to the Commission’slockbox bank such additional funds(the ‘‘down payment’’) as are necessaryto bring its total deposits (not includ-ing upfront payments applied to satisfypenalties) up to twenty (20) percent ofits high bid(s). (In single round sealedbid auctions conducted under § 1.2103,however, bidders may be required tosubmit their down payments with theirbids.) This down payment must bemade by wire transfer in U.S. dollarsfrom a financial institution whose de-posits are insured by the Federal De-posit Insurance Corporation and mustbe made payable to the Federal Com-munications Commission. Winning bid-ders who are qualified designated enti-ties eligible for installment paymentsunder § 1.2110(d) are only required tobring their total deposits up to ten (10)percent of their winning bid(s). Suchdesignated entities must pay the re-mainder of the twenty (20) percentdown payment within ten (10) businessdays of grant of their application. See§ 1.2110(e) (1) and (2). Down paymentswill be held by the Commission untilthe high bidder has been awarded thelicense and has paid the remaining bal-ance due on the license or authoriza-tion, in which case it will not be re-turned, or until the winning bidder isfound unqualified to be a licensee orhas defaulted, in which case it will bereturned, less applicable payments. Nointerest on any down payment will bepaid to the bidders.


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47 CFR Ch. I (10–1–97 Edition)§ 1.2108

(c) A high bidder that meets its downpayment obligations in a timely man-ner must, within ten (10) business daysafter being notified that it is a highbidder, submit an additional applica-tion (the ‘‘long-form application’’) pur-suant to the rules governing the serv-ice in which the applicant is the highbidder (unless it has already submittedsuch an application, as contemplatedby § 1.2105(a)(1)(b). Notwithstandingany other provision in title 47 of theCode of Federal Regulations to the con-trary, high bidders need not submit anadditional application filing fee withtheir long-form applications. Specificprocedures for filing electronically andmanually filed applications will be setout by Public Notice. While Form 600may be filed either electronically ormanually, beginning January 1, 1998,all applications must be filed electroni-cally. Those applicants who file appli-cations manually must also include acopy of all attachments and any othersupporting documents on a 3.5 inchdiskette in separate ASCII text (.TXT)file formats. An applicant that fails tosubmit the required long-form applica-tion under this paragraph and fails toestablish good cause for any late-filedsubmission, shall be deemed to havedefaulted and will be subject to thepayments set forth in § 1.2104.

(d) As an exhibit to its long-form ap-plication, the applicant must provide adetailed explanation of the terms andconditions and parties involved in anybidding consortia, joint venture, part-nership or other agreement or arrange-ment it had entered into relating tothe competitive bidding process priorto the time bidding was completed.Such agreements must have been en-tered into prior to the filing of short-form applications pursuant to § 1.2105.

[59 FR 44293, Aug. 26, 1994, as amended at 61FR 49075, Sept. 18, 1996; 62 FR 13543, Mar. 21,1997]

§ 1.2108 Procedures for filing petitionsto deny against long-form applica-tions.

(a) Where petitions to deny are other-wise provided for under the Act or thecommission’s Rules, and unless otherservice-specific procedures for the fil-ing of such petitions are provided forelsewhere in the Commission’s Rules,

the procedures in this section shallapply to the filing of petitions to denythe long-form applications of winningbidders.

(b) Within thirty (30) days after theCommission gives public notice that along-form application has been accept-ed for filing, petitions to deny that ap-plication may be filed. Any such peti-tions must contain allegations of factsupported by affidavit of a person orpersons with personal knowledge there-of.

(c) An applicant may file an opposi-tion to any petition to deny, and thepetitioner a reply to such opposition.Allegations of fact or denials thereofmust be supported by affidavit of a per-son or persons with personal knowledgethereof. The times for filing such oppo-sition and replies will be those pro-vided in § 1.45.

(d) If the Commission determinesthat:

(1) An applicant is qualified and thereis no substantial and material issue offact concerning that determination, itwill grant the application.

(2) An applicant is not qualified andthat there is no substantial issue offact concerning that determination,the Commission need not hold a evi-dentiary hearing and will deny the ap-plication.

(3) Substantial and material issues offact require a hearing, it will conduct ahearing. The Commission may permitall or part of the evidence to be sub-mitted in written form and may permitemployees other than administrativelaw judges to preside at the taking ofwritten evidence. Such hearing will beconducted on an expedited basis.

§ 1.2109 License grant, denial, default,and disqualification.

(a) Unless otherwise specified inthese rules, auction winners are re-quired to pay the balance of their win-ning bids in a lump sum within ten (10)business days following award of the li-cense. Grant of the license will be con-ditioned on full and timely payment ofthe winning bid.

(b) If a winning bidder withdraws itsbid after the Commission has declaredcompetitive bidding closed or fails to


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remit the required down payment with-in ten (10) business days after the Com-mission has declared competitive bid-ding closed, the bidder will be deemedto have defaulted, its application willbe dismissed, and it will be liable forthe default payment specified in§ 1.2104(g)(2). In such event, the Com-mission may either re-auction the li-cense to existing or new applicants oroffer it to the other highest bidders (indescending order) at their final bids.The down payment obligations setforth in § 1.2107(b) will apply.

(c) A winning bidder who is found un-qualified to be a licensee, fails to remitthe balance of its winning bid in atimely manner, or defaults or is dis-qualified for any reason after havingmade the required down payment, willbe deemed to have defaulted and willbe liable for the penalty set forth in§ 1.2104(g)(2). In such event, the Com-mission will conduct another auctionfor the license, affording new partiesan opportunity to file applications forthe license.

(d) Bidders who are found to haveviolated the antitrust laws or the Com-mission’s rules in connection withtheir participation in the competitivebidding process may be subject, in ad-dition to any other applicable sanc-tions, to forfeiture of their upfrontpayment, down payment or full bidamount, and may be prohibited fromparticipating in future auctions.


§ 1.2110 Designated entities.(a) Designated entities are small

businesses, businesses owned by mem-bers of minority groups and/or women,and rural telephone companies.

(b) Definitions.(1) Small businesses. The Commission

will establish the definition of a smallbusiness on a service-specific basis,taking into consideration the charac-teristics and capital requirements ofthe particular service.

(2) Businesses owned by members ofminority groups and/or women. Unlessotherwise provided in rules governingspecific services, a business owned bymembers of minority groups and/orwomen is one in which minorities and/or women who are U.S. citizens control

the applicant, have at least 50.1 percentequity ownership and, in the case of acorporate applicant, a 50.1 percent vot-ing interest. For applicants that arepartnerships, every general partner ei-ther must be a minority and/or woman(or minorities and/or women) who areU.S. citizens and who individually ortogether own at least 50.1 percent ofthe partnership equity, or an entitythat is 100 percent owned and con-trolled by minorities and/or womenwho are U.S. citizens. The interests ofminorities and women are to be cal-culated on a fully-diluted basis; agree-ments such as stock options and con-vertible debentures shall be consideredto have a present effect on the power tocontrol an entity and shall be treatedas if the rights thereunder alreadyhave been fully exercised. However,upon a demonstration that options orconversion rights held by non-control-ling principals will not deprive the mi-nority and female principals of a sub-stantial financial stake in the ventureor impair their rights to control thedesignated entity, a designated entitymay seek a waiver of the requirementthat the equity of the minority and fe-male principals must be calculated ona fully-diluted basis. Members of mi-nority groups include Blacks, His-panics, American Indians, Alaskan Na-tives, Asians, and Pacific Islanders.

(3) Rural telephone companies. A ruraltelephone company is any local ex-change carrier including affiliates (asdefined in 1.2110(b)(4)), with 100,000 ac-cess lines or fewer.

(4) Affiliate. (i) An individual or en-tity is an affiliate of an applicant or ofa person holding an attributable inter-est in an applicant under § 24.709 (bothreferred to herein as ‘‘the applicant’’) ifsuch individual or entity—

(A) directly or indirectly controls orhas the power to control the applicant,or

(B) is directly or indirectly con-trolled by the applicant, or

(C) is directly or indirectly con-trolled by a third party or parties thatalso controls or has the power to con-trol the applicant, or

(D) has an ‘‘identity of interest’’ withthe applicant.

(ii) Nature of control in determiningaffiliation.


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47 CFR Ch. I (10–1–97 Edition)§ 1.2110

(A) Every business concern is consid-ered to have one or more parties whodirectly or indirectly control or havethe power to control it. Control may beaffirmative or negative and it is imma-terial whether it is exercised so long asthe power to control exists.

Example An applicant owning 50 percent ofthe voting stock of another concern wouldhave negative power to control such concernsince such party can block any action of theother stockholders. Also, the bylaws of a cor-poration may permit a stockholder with lessthan 50 percent of the voting stock to blockany actions taken by the other stockholdersin the other entity. Affiliation exists whenthe applicant has the power to control a con-cern while at the same time another person,or persons, are in control of the concern atthe will of the party or parties with thepower to control.

(B) Control can arise through stockownership; occupancy of director, offi-cer or key employee positions; contrac-tual or other business relations; orcombinations of these and other fac-tors. A key employee is an employeewho, because of his/her position in theconcern, has a critical influence in orsubstantive control over the operationsor management of the concern.

(C) Control can arise through man-agement positions where a concern’svoting stock is so widely distributedthat no effective control can be estab-lished.

Example In a corporation where the offi-cers and directors own various size blocks ofstock totaling 40 percent of the corporation’svoting stock, but no officer or director has ablock sufficient to give him or her control orthe power to control and the remaining 60percent is widely distributed with no individ-ual stockholder having a stock interestgreater than 10 percent, management has thepower to control. If persons with such man-agement control of the other entity are per-sons with attributable interests in the appli-cant, the other entity will be deemed an af-filiate of the applicant.

(iii) Identity of interest between andamong persons. Affiliation can arisebetween or among two or more personswith an identity of interest, such asmembers of the same family or personswith common investments. In deter-mining if the applicant controls or hasthe power to control a concern, personswith an identity of interest will betreated as though they were one per-son.

Example Two shareholders in CorporationY each have attributable interests in thesame PCS application. While neither share-holder has enough shares to individuallycontrol Corporation Y, together they havethe power to control Corporation Y. The twoshareholders with these common invest-ments (or identity in interest) are treated asthough they are one person and CorporationY would be deemed an affiliate of the appli-cant.

(A) Spousal Affiliation. Both spousesare deemed to own or control or havethe power to control interests owned orcontrolled by either of them, unlessthey are subject to a legal separationrecognized by a court of competent ju-risdiction in the United States. In cal-culating their net worth, investors whoare legally separated must includetheir share of interests in propertyheld jointly with a spouse.

(B) Kinship Affiliation. Immediatefamily members will be presumed toown or control or have the power tocontrol interests owned or controlledby other immediate family members.In this context immediate family membermeans father, mother, husband, wife,son, daughter, brother, sister, father-or mother-in-law, son- or daughter-in-law, brother- or sister-in-law, step-fa-ther or -mother, step-brother or -sister,step-son or -daughter, half brother orsister. This presumption may be rebut-ted by showing that the family mem-bers are estranged, the family ties areremote, or the family members are notclosely involved with each other inbusiness matters.

Example A owns a controlling interest inCorporation X. A’s sister-in-law, B, has anattributable interest in a PCS application.Because A and B have a presumptive kinshipaffiliation, A’s interest in Corporation Y isattributable to B, and thus to the applicant,unless B rebuts the presumption with thenecessary showing.

(iv) Affiliation through stock owner-ship.

(A) An applicant is presumed to con-trol or have the power to control a con-cern if he or she owns or controls orhas the power to control 50 percent ormore of its voting stock.

(B) An applicant is presumed to con-trol or have the power to control a con-cern even though he or she owns, con-trols or has the power to control lessthan 50 percent of the concern’s votingstock, if the block of stock he or she


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owns, controls or has the power to con-trol is large as compared with anyother outstanding block of stock.

(C) If two or more persons each owns,controls or has the power to controlless than 50 percent of the voting stockof a concern, such minority holdingsare equal or approximately equal insize, and the aggregate of these minor-ity holdings is large as compared withany other stock holding, the presump-tion arises that each one of these per-sons individually controls or has thepower to control the concern; however,such presumption may be rebutted by ashowing that such control or power tocontrol, in fact, does not exist.

(v) Affiliation arising under stock op-tions, convertible debentures, andagreements to merge. Stock options,convertible debentures, and agree-ments to merge (including agreementsin principle) are generally consideredto have a present effect on the power tocontrol the concern. Therefore, in mak-ing a size determination, such options,debentures, and agreements are gen-erally treated as though the rights heldthereunder had been exercised. How-ever, an affiliate cannot use such op-tions and debentures to appear to ter-minate its control over another con-cern before it actually does so.

Example 1. If company B holds an option topurchase a controlling interest in companyA, who holds an attributable interest in aPCS application, the situation is treated asthough company B had exercised its rightsand had come owner of a controlling interestin company A. The gross revenues of com-pany B must be taken into account in deter-mining the size of the applicant.

Example 2. If a large company, BigCo, holds70% (70 of 100 outstanding shares) of the vot-ing stock of company A, who holds an attrib-utable interest in a PCS application, andgives a third party, SmallCo, an option topurchase 50 of the 70 shares owned by BigCo,BigCo will be deemed to be an affiliate ofcompany A, and thus the applicant, untilSmallCo actually exercises its option to pur-chase such shares. In order to prevent BigCofrom circumventing the intent of the rulewhich requires such options to be consideredon a fully diluted basis, the option is notconsidered to have present effect in thiscase.

Example 3. If company A has entered intoan agreement to merge with company B inthe future, the situation is treated as thoughthe merger has taken place.

(vi) Affiliation under voting trusts.

(A) Stock interests held in trust shallbe deemed controlled by any personwho holds or shares the power to votesuch stock, to any person who has thesole power to sell such stock, and toany person who has the right to revokethe trust at will or to replace thetrustee at will.

(B) If a trustee has a familial, per-sonal or extra-trust business relation-ship to the grantor or the beneficiary,the stock interests held in trust will bedeemed controlled by the grantor orbeneficiary, as appropriate.

(C) If the primary purpose of a votingtrust, or similar agreement, is to sepa-rate voting power from beneficial own-ership of voting stock for the purposeof shifting control of or the power tocontrol a concern in order that suchconcern or another concern may meetthe Commission’s size standards, suchvoting trust shall not be consideredvalid for this purpose regardless ofwhether it is or is not recognized with-in the appropriate jurisdiction.

(vii) Affiliation through commonmanagement. Affiliation generallyarises where officers, directors, or keyemployees serve as the majority orotherwise as the controlling element ofthe board of directors and/or the man-agement of another entity.

(viii) Affiliation through common fa-cilities. Affiliation generally ariseswhere one concern shares office spaceand/or employees and/or other facilitieswith another concern, particularlywhere such concerns are in the same orrelated industry or field of operations,or where such concerns were formerlyaffiliated, and through these sharingarrangements one concern has control,or potential control, of the other con-cern.

(ix) Affiliation through contractualrelationships. Affiliation generallyarises where one concern is dependentupon another concern for contracts andbusiness to such a degree that one con-cern has control, or potential control,of the other concern.

(x) Affiliation under joint venture ar-rangements.

(A) A joint venture for size deter-mination purposes is an association ofconcerns and/or individuals, with inter-ests in any degree or proportion,formed by contract, express or implied,


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47 CFR Ch. I (10–1–97 Edition)§ 1.2110

to engage in and carry out a single,specific business venture for joint prof-it for which purpose they combinetheir efforts, property, money, skilland knowledge, but not on a continu-ing or permanent basis for conductingbusiness generally. The determinationwhether an entity is a joint venture isbased upon the facts of the business op-eration, regardless of how the businessoperation may be designated by theparties involved. An agreement toshare profits/losses proportionate toeach party’s contribution to the busi-ness operation is a significant factor indetermining whether the business oper-ation is a point venture.

(B) The parties to a joint venture areconsidered to be affiliated with eachother.

(c) The Commission may set asidespecific licenses for which only eligibledesignated entities, as specified by theCommission, may bid.

(d) The Commission may permit par-titioning of service areas in particularservices for eligible designated enti-ties.

(e) The Commission may permitsmall businesses (including small busi-nesses owned by women, minorities, orrural telephone companies that qualifyas small businesses) and other entitiesdetermined to be eligible on a service-specific basis, which are high biddersfor licenses specified by the Commis-sion, to pay the full amount of theirhigh bids in installments over the termof their licenses pursuant to the follow-ing:

(1) Unless otherwise specified, eacheligible applicant paying for its li-cense(s) on an installment basis mustdeposit by wire transfer in the mannerspecified in § 1.2107(b) sufficient addi-tional funds as are necessary to bringits total deposits to ten (10) percent ofits winning bid(s) within ten (10) busi-ness days after the Commission has de-clared it the winning bidder and closedthe bidding. Failure to remit the re-quired payment will make the bidderliable to pay penalties pursuant to§ 1.2104(g)(2).

(2) Within ten (10) business days ofthe grant of the license application of awinning bidder eligible for installmentpayments, the licensee shall pay an-other ten (10) percent of the high bid,

thereby commencing the eligible li-censee’s installment payment plan.Failure to remit the required paymentwill make the bidder liable to pay de-fault payments pursuant to§ 1.2104(g)(2).

(3) Upon grant of the license, theCommission will notify each eligible li-censee of the terms of its installmentpayment plan and that it must executea promissory note and security agree-ment as a condition of the installmentpayment plan. Unless other terms arespecified in the rules of particular serv-ices, such plans will:

(i) Impose interest based on the rateof U.S. Treasury obligations (with ma-turities closest to the duration of thelicense term) at the time of licensing;

(ii) Allow installment payments forthe full license term;

(iii) Begin with interest-only pay-ments for the first two years; and

(iv) Amortize principal and interestover the remaining term of the license.

(4) A license granted to an eligibleentity that elects installment pay-ments shall be conditioned upon thefull and timely performance of the li-censee’s payment obligations under theinstallment plan.

(i) If an eligible entity making in-stallment payments is more than nine-ty (90) days delinquent in any payment,it shall be in default.

(ii) Upon default or in anticipation ofdefault of one or more installment pay-ments, a licensee may request that theCommission permit a three to sixmonth grace period, during which noinstallment payments need be made. Inconsidering whether to grant a requestfor a grace period, the Commissionmay consider, among other things, thelicensee’s payment history, includingwhether the licensee has defaulted be-fore, how far into the license term thedefault occurs, the reasons for default,whether the licensee has met construc-tion build-out requirements, the licens-ee’s financial condition, and whetherthe licensee is seeking a buyer underan authorized distress sale policy. Ifthe Commission grants a request for agrace period, or otherwise approves arestructured payment schedule, inter-est will continue to accrue and will beamortized over the remaining term ofthe license.


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(iii) Following expiration of anygrace period without successful re-sumption of payment or upon denial ofa grace period request, or upon defaultwith no such request submitted, the li-cense will automatically cancel andthe Commission will initiate debt col-lection procedures pursuant to part 1,subpart O.

(f) The Commission may award bid-ding credits (i.e., payment discounts)to eligible designated entities. Com-petitive bidding rules applicable to in-dividual services will specify the des-ignated entities eligible for biddingcredits, the licenses for which biddingcredits are available, the amounts ofbidding credits and other procedures.

(g) The Commission may establishdifferent upfront payment require-ments for categories of designated en-tities in competitive bidding rules ofparticular auctionable services.

(h) The Commission may offer des-ignated entities a combination of theavailable preferences or additionalpreferences.

(i) Designated entities must describeon their long-form applications howthey satisfy the requirements for eligi-bility for designated entity status, andmust list and summarize on their long-form applications all agreements thateffect designated entity status, such aspartnership agreements, shareholderagreements, management agreementsand other agreements, including oralagreements, which establish that thedesignated entity will have both defacto and de jure control of the entity.Such information must be maintainedat the licensees’ facilities or by theirdesignated agents for the term of thelicense in order to enable the Commis-sion to audit designated entity eligi-bility on an ongoing basis.

(j) The Commission may, on a serv-ice-specific basis, permit consortia,each member of which individuallymeets the eligibility requirements, toqualify for any designated entity provi-sions.

(k) The Commission may, on a serv-ice-specific basis, permit publicly-trad-ed companies that are owned by mem-bers of minority groups or women to

qualify for any designated entity provi-sions.

[59 FR 44293, Aug. 26, 1994; 60 FR 52865, Oct.11, 1995; 62 FR 13544, Mar. 21, 1997]

§ 1.2111 Assignment or transfer of con-trol: unjust enrichment.

(a) Reporting requirement. An appli-cant seeking approval for a transfer ofcontrol or assignment (otherwise per-mitted under the Commission’s Rules)of a license within three years of re-ceiving a new license through a com-petitive bidding procedure must, to-gether with its application for transferof control or assignment, file with theCommission’s statement indicatingthat its license was obtained throughcompetitive bidding. Such applicantmust also file with the Commission theassociated contracts for sale, optionagreements, management agreements,or other documents disclosing the localconsideration that the applicant wouldreceive in return for the transfer or as-signment of its license. This informa-tion should include not only a mone-tary purchase price, but also any fu-ture, contingent, in-kind, or other con-sideration (e.g., management or con-sulting contracts either with or with-out an option to purchase; below mar-ket financing).

(b) Unjust enrichment payment: set-aside. As specified in this paragraph anapplicant seeking approval for a trans-fer of control or assignment (otherwisepermitted under the Commission’sRules) of a license acquired by thetransferor or assignor pursuant to aset-aside for eligible designated enti-ties under § 1.2110(c), or who proposes totake any other action relating to own-ership or control that will result inloss of status as an eligible designatedentity, must seek Commission approvaland may be required to make an unjustenrichment payment (Payment) to theCommission by cashier’s check or wiretransfer before consent will be granted.The Payment will be based upon aschedule that will take account of theterm of the license, any applicable con-struction benchmarks, and the esti-mated value of the set-aside benefit,which will be calculated as the dif-ference between the amount paid bythe designated entity for the licenseand the value of comparable non-set-


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47 CFR Ch. I (10–1–97 Edition)§ 1.3000

aside license in the free market at thetime of the auction. The Commissionwill establish the amount of the Pay-ment and the burden will be on the ap-plicants to disprove this amount. Nopayment will be required if:

(1) The license is transferred or as-signed more than five years after itsinitial issuance, unless otherwise speci-fied; or

(2) The proposed transferee or as-signee is an eligible designated entityunder § 1.2110(c) or the service-specificcompetitive bidding rules of the par-ticular service, and so certifies.

(c) Unjust enrichment payment: install-ment financing. An applicant seekingapproval for a transfer of control or as-signment (otherwise permitted underthe Commission’s Rules) of a licenseacquired by the transferor or assignorthrough a competitive bidding proce-dure utilizing installment financingavailable to designated entities under§ 1.2110(d) will be required to pay thefull amount of the remaining principalbalance as a condition of the licensetransfer. No payment will be requiredif the proposed transferee or assigneeassumes the installment payment obli-gations of the transferor or assignor,and if the proposed transferee or as-signee is itself qualified to obtain in-stallment financing under § 1.2110(d) orthe service-specific competitive bid-ding rules of the particular service, andso certifies.

(d) Unjust enrichment payment: biddingcredits. An applicant seeking approvalfor a transfer of control or assignment(otherwise permitted under the Com-mission’s Rules) of a license acquiredby the transferor or assignor through acompetitive bidding procedure utilizingbidding credits available to eligibledesignated entities under § 1.2110(e) orwho proposes to take any other actionrelating to ownership or control thatwill result in loss of status as an eligi-ble designated entity, must seek Com-mission approval and will be requiredto make an unjust enrichment pay-ment (Payment) to the government bywire transfer or cashier’s check beforeconsent will be granted. The Paymentwill be the sum of the amount of thebidding credit plus interest at the rateapplicable for installment financing ineffect at the time the license was

awarded. See § 1.2110(e). No paymentwill be required if the proposed trans-feree or assignee is an eligible des-ignated entity under § 1.2110(e) or theservice-specific competitive biddingrules of the particular service, and socertifies.

Subpart R—Implementation ofSection 4(g)(3) of the Com-munications Act: ProceduresGoverning Acceptance ofUnconditional Gifts, Donationsand Bequests

SOURCE: 59 FR 38128, July 27, 1994, unlessotherwise noted.

§ 1.3000 Purpose and scope.

The purpose of this subpart is to im-plement the Telecommunications Au-thorization Act of 1992 which amendedthe Communications Act by creatingsection 4(g)(3), 47 U.S.C. 154(g)(3). Theprovisions of this subpart shall applyto gifts, donations and bequests madeto the Commission itself. Travel reim-bursement for attendance at, or par-ticipation in, government-sponsoredmeetings or events required to carryout the Commission’s statutory or reg-ulatory functions may also be acceptedunder this subpart. The acceptance ofgifts by Commission employees, mostnotably gifts of food, drink and enter-tainment, is governed by the govern-ment-wide standards of employee con-duct established at 5 CFR part 2635.Travel, subsistence and related ex-penses for non-government-sponsoredmeetings or events will continue to beaccepted pursuant to the GovernmentEmployees Training Act, 41 U.S.C. 4111or 31 U.S.C. 1353, and its General Serv-ices Administration’s implementingregulations, 41 CFR 304–1.8, as applica-ble.


For purposes of this subpart:(a) The term agency means the Fed-

eral Communications Commission.(b) The term gift means any uncondi-

tional gift, donation or bequest of real,personal and other property (includingvoluntary and uncompensated servicesas authorized under 5 U.S.C. 3109).


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(c) The terms agency ethics official,designated agency ethics official, em-ployee, market value, person, and prohib-ited source, have the same meaning asfound in 5 CFR 2635.102, 2635.203.

§ 1.3002 Structural rules and prohibi-tions.

(a) General prohibitions. An employeeshall not:

(1) Directly or indirectly, solicit orcoerce the offering of a gift, donationor bequest to the Commission from aregulated entity or other prohibitedsource; or

(2) Accept gifts of cash pursuant tothis subpart.

(b) Referral of offers to designatedagency ethics official. Any person whoseeks to offer any gift to the Commis-sion under the provisions of this sub-part shall make such offer to the Com-mission’s designated agency ethics offi-cial. In addition, any Commission em-ployee who is contacted by a potentialdonor or the representative thereof forthe purpose of discussing the possibil-ity of making a gift, donation or be-quest to the Commission shall imme-diately refer such person or persons tothe Commission’s designated agencyethics official. The designated agencyethics official shall, in consultationwith other agency ethics officials,make a determination concerningwhether acceptance of such offerswould create a conflict of interest orthe appearance of a conflict of interest.Agency ethics officials may also advisepotential donors and their representa-tives of the types of equipment, prop-erty or services that may be of use tothe Commission and the procedures foreffectuating gifts set forth in this sub-part. The Commission may, in its dis-cretion, afford public notice before ac-cepting any gift under authority of thissubpart.

§ 1.3003 Mandatory factors for evaluat-ing conflicts of interest.

No gift shall be accepted under thissubpart unless a determination is madethat its acceptance would not create aconflict of interest or the appearanceof a conflict of interest. In making con-flict of interest determinations, des-

ignated agency ethics officials shallconsider the following factors:

(a) Whether the benefits of the in-tended gift will accrue to an individualemployee and, if so—

(1) Whether the employee is respon-sible for matters affecting the poten-tial donor that are currently before theagency; and

(2) The significance of the employee’srole in any such matters;

(b) The nature and sensitivity of anymatters pending at the Commission af-fecting the intended donor;

(c) The timing of the intended gift;(d) The market value of the intended

gift;(e) The frequency of other gifts made

by the same donor; and(f) The reason underlying the in-

tended gift given in a written state-ment from the proposed donor.

§ 1.3004 Public disclosure and report-ing requirements.

(a) Public disclosure of gifts acceptedfrom prohibited sources. The Commis-sion’s Security Operations Office, Of-fice of the Managing Director, shallmaintain a written record of gifts ac-cepted from prohibited sources by theCommission pursuant to section 4(g)(3)authority, which will include:

(1) The identity of the prohibitedsource;

(2) A description of the gift;(3) The market value of the gift;(4) Documentation concerning the

prohibited source’s reason for the giftas required in § 1.3003(f);

(5) A signed statement of verificationfrom the prohibited source that thegift is unconditional and is not contin-gent on any promise or expectationthat the Commission’s receipt of thegift will benefit the proposed donor inany regulatory matter; and

(6) The date the gift is accepted bythe Commission.

(b) Reporting Requirements for all gifts.The Commission shall file a semi-an-nual report to Congress listing the gift,donor and value of all gifts acceptedfrom any donor under this subpart.


312

47 CFR Ch. I (10–1–97 Edition)§ 1.4000

Subpart S—Preemption of Restric-tions That ‘‘Impair’’ a Viewer’sAbility To Receive TelevisionBroadcast Signals, DirectBroadcast Satellite Services orMultichannel Multipoint Dis-tribution Services

SOURCE: 61 FR 46562, Sept. 4, 1996, unlessotherwise noted.

§ 1.4000 Restrictions impairing recep-tion of television broadcast signals,direct broadcast satellite servicesor multichannel multipoint dis-tribution services.

(a)(1) Any restriction, including butnot limited to any state or local law orregulation, including zoning, land-use,or building regulation, or any privatecovenant, homeowners’ associationrule or similar restriction on propertywithin the exclusive use or control ofthe antenna user where the user has adirect or indirect ownership interest inthe property, that impairs the installa-tion, maintenance, or use of: An an-tenna that is designed to receive directbroadcast satellite service, includingdirect-to-home satellite services, thatis one meter or less in diameter or islocated in Alaska; or an antenna thatis designed to receive video program-ming services via multipoint distribu-tion services, including multichannelmultipoint distribution services, in-structional television fixed services,and local multipoint distribution serv-ices, and that is one meter or less in di-ameter or diagonal measurement; or anantenna that is designed to receive tel-evision broadcast signals; is prohibited,to the extent it so impairs, subject toparagraph (b) of this section.

(2) For purposes of this section, alaw, regulation or restriction impairsinstallation, maintenance or use of anantenna if it:

(i) Unreasonably delays or preventsinstallation, maintenance or use,

(ii) Unreasonably increases the costof installation, maintenance or use, or

(iii) Precludes reception of an accept-able quality signal.

(3) No civil, criminal, administrative,or other legal action of any kind shallbe taken to enforce any restriction orregulation prohibited by this sectionexcept pursuant to paragraph (c) or (d)

of this section. No fine or other pen-alties shall accrue against an antennauser while a proceeding is pending todetermine the validity of any restric-tion.

(b) Any restriction otherwise prohib-ited by paragraph (a) of this section ispermitted if:

(1) It is necessary to accomplish aclearly defined safety objective that iseither stated in the text, preamble orlegislative history of the restriction ordescribed as applying to that restric-tion in a document that is readilyavailable to antenna users, and wouldbe applied to the extent practicable ina non-discriminatory manner to otherappurtenances, devices, or fixtures thatare comparable in size, weight and ap-pearance to these antennas and towhich local regulation would normallyapply; or

(2) It is necessary to preserve an his-toric district listed or eligible for list-ing in the National Register of HistoricPlaces, as set forth in the National His-toric Preservation Act of 1966, asamended, 16 U.S.C. 470a, and imposesno greater restrictions on antennascovered by this rule than are imposedon the installation, maintenance or useof other modern appurtenances, devicesor fixtures that are comparable in size,weight, and appearance to these anten-nas; and

(3) It is no more burdensome to af-fected antenna users than is necessaryto achieve the objectives describedabove.

(c) Local governments or associa-tions may apply to the Commission fora waiver of this rule under § 1.3. Waiverrequests will be put on public notice.The Commission may grant a waiverupon a showing by the applicant oflocal concerns of a highly specializedor unusual nature. No petition forwaiver shall be considered unless itspecifies the restriction at issue. Waiv-ers granted in accordance with thissection shall not apply to restrictionsamended or enacted after the waiver isgranted.

Any responsive pleadings must beserved on all parties and filed within 30days after release of a public noticethat such petition has been filed. Anyreplies must be filed within 15 daysthereafter.


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(d) Parties may petition the Commis-sion for a declaratory ruling under § 1.2,or a court of competent jurisdiction, todetermine whether a particular restric-tion is permissible or prohibited underthis section. Petitions to the Commis-sion will be put on public notice. Anyresponsive pleadings must be served onall parties and filed within 30 daysafter release of a public notice thatsuch petition has been filed. Any re-plies must be filed within 15 daysthereafter.

(e) In any Commission proceeding re-garding the scope or interpretation ofany provision of this section, the bur-den of demonstrating that a particulargovernmental or nongovernmental re-striction complies with this sectionand does not impair the installation,maintenance or use of devices designedfor over-the-air reception of video pro-gramming services shall be on theparty that seeks to impose or maintainthe restriction.

(f) All allegations of fact containedin petitions and related pleadings be-fore the Commission must be supportedby affidavit of a person or persons withactual knowledge thereof. An originaland two copies of all petitions andpleadings should be addressed to theSecretary, Federal CommunicationsCommission, 1919 M St. NW., Washing-ton, DC 20554. Copies of the petitionsand related pleadings will be availablefor public inspection in the Cable Ref-erence Room in Washington, DC. Cop-ies will be available for purchase fromthe Commission’s contract copy center,and Commission decisions will beavailable on the Internet.

EFFECTIVE DATE NOTE: At 61 FR 46562,Sept. 4, 1996, § 1.4000 was added. The sectioncontains information collection and record-keeping requirements and will not becomeeffective until approval has been given bythe Office of Management and Budget.

Subpart T—ExemptTelecommunications Companies

§ 1.5000 Purpose.

The purpose of part 1, subpart S, is toimplement Section 34(a) of the PublicUtility Holding Company Act of 1935, 15U.S.C. § 79 et seq., as added by Section103 of the Telecommunications Act of

1996, Public Law No. 104–104, 110 Stat.56 (1996).

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5001 Definitions.(a) For the purpose of this part, the

terms ‘‘telecommunications services’’and ‘‘information services’’ shall havethe same meanings as provided in theCommunications Act of 1934, as amend-ed;

(b) Commission shall be defined asthe Federal Communications Commis-sion; and

(c) ‘‘ETC’’ shall be defined as an ex-empt telecommunications company.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5002 Contents of application andprocedure for filing.

(a) A person seeking status as an ex-empt telecommunications company(applicant) must file with the Commis-sion with respect to the company orcompanies which are eligible compa-nies owned or operated by the appli-cant, and serve on the Securities andExchange Commission and any affectedState commission, the following:

(1) A brief description of the plannedactivities of the company or companieswhich are or will be eligible companiesowned and/or operated by the appli-cant;

(2) A sworn statement, by a rep-resentative legally authorized to bindthe applicant, attesting to any facts orrepresentations presented to dem-onstrate eligibility for ETC status, in-cluding a representation that the appli-cant is engaged directly, or indirectly,wherever located, through one or moreaffiliates (as defined in Section2(a)(11)(B) of the Public Utility HoldingCompany Act of 1935), and exclusivelyin the business of providing:

(i) Telecommunications services;(ii) Information services;(iii) Other services or products sub-

ject to the jurisdiction of the Commis-sion; or

(iv) Products or services that are re-lated or incidental to the provision of aproduct or service described in para-graph (a)(1)(i), (a)(1)(ii), or (a)(1)(iii);and


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47 CFR Ch. I (10–1–97 Edition)§ 1.5003

(3) A sworn statement, by a rep-resentative legally authorized to bindthe applicant, certifying that the appli-cant satisfies part 1, subpart P, of theCommission’s regulations, 47 CFR1.2001 through 1.2003, regarding imple-mentation of the Anti-Drug Abuse Actof 1988, 21 U.S.C. 862.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5003 Effect of filing.

A person applying in good faith for aCommission determination of exempttelecommunications company statuswill be deemed to be an exempt tele-communications company from thedate of receipt of the application untilthe date of Commission action pursu-ant to § 1.5004.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5004 Commission action.

If the Commission has not issued anorder granting or denying an applica-tion within 60 days of receipt of the ap-plication, the application will bedeemed to have been granted as a mat-ter of law.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5005 Notification of Commission ac-tion to the Securities and ExchangeCommission.

The Secretary of the Commissionwill notify the Securities and ExchangeCommission whenever a person is de-termined to be an exempt tele-communications company.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5006 Procedure for notifying Com-mission of material change in facts.

If there is any material change infacts that may affect an ETC’s eligi-bility for ETC status under Section34(a)(1) of the Public Utility HoldingCompany Act of 1935, the ETC must,within 30 days of the change in fact, ei-ther:

(a) Apply to the Commission for anew determination of ETC status;

(b) File a written explanation withthe Commission of why the material

change in facts does not affect theETC’s status; or

(c) Notify the Commission that it nolonger seeks to maintain ETC status.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

§ 1.5007 Comments.(a) Any person wishing to be heard

concerning an application for ETC sta-tus may file comments with the Com-mission within fifteen (15) days fromthe release date of a public notice re-garding the application, or such otherperiod of time set by the Commission.Any comments must be limited to theadequacy or accuracy of the applica-tion.

(b) Any person who files commentswith the Commission must also servecopies of all comments on the appli-cant.

(c) An applicant has seven (7) days toreply to any comments filed regardingthe adequacy and accuracy of its appli-cation, or such other period of time asset by the Commission. Such replyshall be served on the commenters.

[61 FR 52899, Oct. 9, 1996; 61 FR 57335, Nov. 6,1996]

APPENDIX A TO PART 1—A PLAN OF CO-OPERATIVE PROCEDURE IN MATTERSAND CASES UNDER THE PROVISIONSOF SECTION 410 OF THE COMMUNICA-TIONS ACT OF 1934

(Approved by the Federal CommunicationsCommission October 25, 1938, and approvedby the National Association of Railroad andUtilities Commissioners on November 17,1938.)

PRELIMINARY STATEMENT CONCERNING THEPURPOSE AND EFFECT OF THE PLAN

Section 410 of the Communications Act of1934 authorizes cooperation between the Fed-eral Communications Commission, herein-after called the Federal Commission, and theState commissions of the several States, inthe administration of said Act. Subsection(a) authorizes the reference of any matterarising in the administration of said Act toa board to be composed of a member or mem-bers from each of the States in which thewire, or radio communication affected by orinvolved in the proceeding takes place, or isproposed. Subsection (b) authorizes con-ferences by the Federal Commission withState commissions regarding the relation-ship between rate structures, accounts,


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charges, practices, classifications, and regu-lations of carriers subject to the jurisdictionof such State commissions and of said Fed-eral Commission and joint hearings withState commissions in connection with anymatter with respect to which the FederalCommission is authorized to act.

Obviously, it is impossible to determine inadvance what matters should be the subjectof a conference, what matters should be re-ferred to a board, and what matters shouldbe heard at a joint hearing of State commis-sions and the Federal Commission. It is un-derstood, therefore, that the Federal Com-mission or any State commission will freelysuggest cooperation with respect to any pro-ceedings or matter affecting any carrier sub-ject to the jurisdiction of said Federal Com-mission and of a State commission, and con-cerning which it is believed that cooperationwill be in the public interest.

To enable this to be done, whenever a pro-ceeding shall be instituted before any com-mission, Federal or State, in which anothercommission is believed to be interested, no-tice should be promptly given each such in-terested commission by the commission be-fore which the proceeding has been insti-tuted. Inasmuch, however, as failure to givenotice as contemplated by the provisions ofthis plan will sometimes occur purelythrough inadvertence, any such failureshould not operate to deter any commissionfrom suggesting that any such proceeding bemade the subject matter of cooperative ac-tion, if cooperation therein is deemed desir-able.

It is understood that each commissionwhether or not represented in the NationalAssociation of Railroad and Utilities Com-missioners, must determine its own course ofaction with respect to any proceeding in thelight of the law under which, at any giventime, it is called upon to act, and must beguided by its own views of public policy; andthat no action taken by such Associationcan in any respect prejudice such freedom ofaction. The approval by the Association ofthis plan of cooperative procedure, whichwas jointly prepared by the Association’sstanding Committee on Cooperation betweenFederal and State commissions and said Fed-eral Commission, is accordingly rec-ommendatory only; but such plan is designedto be, and it is believed that it will be, ahelpful step in the promotion of cooperativerelations between the State commissions andsaid Federal Commission.

NOTICE OF INSTITUTION OF PROCEEDING

Whenever there shall be instituted beforethe Federal Commission any proceeding in-volving the rates of any telephone or tele-graph carrier, the State commissions of theStates affected thereby will be notified im-mediately thereof by the Federal Commis-sion, and each notice given a State commis-

sion will advise such commission that, if itdeems the proceeding one which should beconsidered under the cooperative provisionsof the Act, it should either directly orthrough the National Association of Rail-road and Utilities Commissioners, notify theFederal Commission as to the nature of itsinterest in said matter and request a con-ference, the creation of a joint board, or ajoint hearing as may be desired, indicatingits preference and the reasons therefor. Uponreceipt of such request the Federal Commis-sion will consider the same and may conferwith the commission making the request andwith other interested commission, or withrepresentatives of the National Associationof Railroad and Utilities Commissioners, insuch manner as may be most suitable; and ifcooperation shall appear to be practicableand desirable, shall so advise each interestedState commission, directly, when such co-operation will be by joint conference or byreference to a joint board appointed undersaid sec. 410 (a), and, as hereinafter provided,when such cooperation will be by a jointhearing under said sec. 410(b).

Each State commission should in likemanner notify the Federal Commission ofany proceeding instituted before it involvingthe toll telephone rates or the telegraphrates of any carrier subject to the jurisdic-tion of the Federal Commission.

PROCEDURE GOVERNING JOINT CONFERENCES

The Federal Commission, in accordancewith the indicated procedure, will conferwith any State commission regarding anymatter relating to the regulation of publicutilities subject to the jurisdiction of eithercommission. The commission desiring a con-ference upon any such matter should notifythe other without delay, and thereupon theFederal Commission will promptly arrangefor a conference in which all interested Statecommissions will be invited to be present.

PROCEDURE GOVERNING MATTERS REFERRED TOA BOARD

Whenever the Federal Commission, eitherupon its own motion or upon the suggestionof a State commission, or at the request ofany interested party, shall determine that itis desirable to refer a matter arising in theadministration of the Communications Actof 1934 to a board to be composed of a mem-ber or members from the State or States af-fected or to be affected by such matter, theprocedure shall be as follows:

The Federal Commission will send a re-quest to each interested State commission tonominate a specified number of members toserve on such board.

The representation of each State con-cerned shall be equal, unless one or more ofthe States affected chooses to waive suchright of equal representation. When the


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member or members of any board have beennominated and appointed, in accordancewith the provisions of the CommunicationsAct of 1934, the Federal Commission willmake an order referring the particular mat-ter to such board, and such order shall fixthe time and place of hearing, define theforce and effect the action of the board shallhave, and the manner in which its proceed-ings shall be conducted. The rules of practiceand procedure, as from time to time adoptedor prescribed by the Federal Commission,shall govern such board, as far as applicable.

PROCEDURE GOVERNING JOINT HEARINGS

Whenever the Federal Commission, eitherupon its own motion or upon suggestionsmade by or on behalf of any interested Statecommission or commissions, shall determinethat a joint hearing under said sec. 410(b) isdesirable in connection with any matterpending before said Federal Commission, theprocedure shall be as follows:

(a) The Federal Commission will notify thegeneral solicitor of the National Associationof Railroad and Utilities Commissioners thatsaid Association, or, if not more than eightStates are within the territory affected bythe proceeding, the State commissions inter-ested, are invited to name Cooperating Com-missioners to sit with the Federal Commis-sion for the hearing and consideration of saidproceeding.

(b) Upon receipt of any notice from saidFederal Commission inviting cooperation, ifnot more than eight States are involved, thegeneral solicitor shall at once advise theState commissions of said States, they beingrepresented in the membership of the asso-ciation, of the receipt of such notice, andshall request each such commission to giveadvice to him in writing, before a date to beindicated by him in his communication re-questing such advice (1) whether such com-mission will cooperate in said proceeding, (2)if it will, by what commissioner it will berepresented therein.

(c) Upon the basis of replies received, thegeneral solicitor shall advise the FederalCommission what States, if any, are desirousof making the proceeding cooperative and bywhat commissioners they will be rep-resented, and he shall give like advice toeach State commission interested therein.

(d) If more than eight States are interestedin the proceeding, because within territoryfor which rates will be under considerationtherein, the general solicitor shall advise thepresident of the association that the associa-tion is invited to name a cooperating com-mittee of State commissioners representingthe States interested in said proceeding.

The president of the association shallthereupon advise the general solicitor inwriting (1) whether the invitation is accept-ed on behalf of the association, and (2) thenames of commissioners selected to sit as a

cooperating committee. The president of theassociation shall have the authority to ac-cept or to decline said invitation for the as-sociation, and to determine the number ofcommissioners who shall be named on thecooperating committee, provided that his ac-tion shall be concurred in by the chairman ofthe association’s executive committee. Inthe event of any failure of the president ofthe association and chairman of its execu-tive committee to agree, the second vicepresident of the association (or the chairmanof its committee on cooperation betweenState and Federal commissions, if thereshall be no second vice president) shall beconsulted, and the majority opinion of thethree shall prevail. Consultations and ex-pressions of opinion may be by mail or tele-graph.

(e) If any proceeding, involving more thaneight States, is pending before the FederalCommission, in which cooperation has notbeen invited by that Commission, which theassociation’s president and the first and sec-ond vice presidents, or any two of them, con-sider should be made a cooperating proceed-ing, they may instruct the general solicitorto suggest to the Federal Commission thatthe proceeding be made a cooperative pro-ceeding; and any State commission consider-ing that said proceeding should be made co-operative may request the president of theassociation or the chairman of its executivecommittee to make such suggestion afterconsideration with the executive officersabove named. If said Federal Commissionshall assent to the suggestion, made asaforesaid, the president of the associationshall have the same authority to proceed,and shall proceed in the appointment of a co-operating committee, as is provided in othercases involving more than eight States,wherein the Federal Commission has invitedcooperation, and the invitation has been ac-cepted.

(f) Whenever any case is pending before theFederal Commission involving eight Statesor less, which a commission of any of saidStates considers should be made cooperative,such commission, either directly or throughthe general solicitor of the association, maysuggest to the Federal Commission that theproceeding be made cooperative. If said Fed-eral Commission accedes to such suggestion,it will notify the general solicitor of the as-sociation to that effect and thereupon thegeneral solicitor shall proceed as is providedin such case when the invitation has beenmade by the Federal Commission withoutState commission suggestion.

APPOINTMENT OF COOPERATING COMMISSIONERS

BY THE PRESIDENT

In the appointment of any cooperatingcommittee, the president of the association


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shall make appointments only from commis-sions of the States interested in the particu-lar proceeding in which the committee is toserve. He shall exercise his best judgment toselect cooperating commissioners who areespecially qualified to serve upon cooperat-ing committees by reason of their abilityand fitness; and in no case shall he appointa commissioner upon a cooperating commit-tee until he shall have been advised by suchcommissioner that it will be practicable forhim to attend the hearings in the proceedingin which the committee is to serve, includingthe arguments therein, and the cooperativeconferences, which may be held following thesubmission of the proceeding, to an extentthat will reasonably enable him to be in-formed upon the issues in the proceeding andto form a reasonable judgment in the mat-ters to be determined.

TENURE OF COOPERATORS

(a) No State commissioner shall sit in a co-operative proceeding under this plan excepta commissioner who has been selected by hiscommission to represent it in a proceedinginvolving eight States or less, or has been se-lected by the president of the association tosit in a case involving more than eightStates, in the manner hereinbefore provided.

(b) A commissioner who has been selected,as hereinbefore provided, to serve as a mem-ber of a cooperating committee in any pro-ceeding, shall without further appointment,and without regard to the duration of timeinvolved, continue to serve in said proceed-ing until the final disposition thereof, in-cluding hearings and conferences after anyorder or reopening, provided that he shallcontinue to be a State commissioner.

(c) No member of a cooperating committeeshall have any right or authority to des-ignate another commissioner to serve in hisplace at any hearing or conference in anyproceeding in which he has been appointed toserve.

(d) Should a vacancy occur upon any co-operating committee, in a proceeding involv-ing more than eight States, by reason of thedeath of any cooperating commissioner, or ofhis ceasing to be a State commissioner, or ofother inability to serve, it shall be the dutyof the president of the association to fill thevacancy by appointment, if, after commu-nication with the chairman of the cooperat-ing committee, it be deemed necessary to fillsuch vacancy.

(e) In the event of any such vacancy occur-ring upon a cooperating committee involvingnot more than eight States, the vacancyshall be filled by the commission from whichthe vacancy occurs.

COOPERATING COMMITTEE TO DETERMINE RE-SPECTING ANY REPORT OF STATEMENT OF ITSATTITUDE

(a) Whenever a cooperating committeeshall have concluded its work, or shall deemsuch course advisable, the committee shallconsider whether it is necessary and desir-able to make a report to the interested Statecommissions, and, if it shall determine tomake a report, it shall cause the same to bedistributed through the secretary of the as-sociation, or through the general solicitor toall interested commissions.

(b) If a report of the Federal Commissionwill accompany any order to be made in saidproceeding, the Federal Commission willstate therein the concurrence or nonconcur-rence of said cooperating committee in thedecision or order of said Federal Commis-sion.

CONSTRUCTION HEREOF IN CERTAIN RESPECTSEXPRESSLY PROVIDED

It is understood and provided that no Stateor States shall be deprived of the right ofparticipation and cooperation as herein-before provided because of nonmembership inthe association. With respect to any suchState or States, all negotiations herein spec-ified to be carried on between the FederalCommission and any officer of such associa-tion shall be conducted by the Federal Com-mission directly with the chairman of thecommission of such State or States.


PART 2—FREQUENCY ALLOCA-TIONS AND RADIO TREATY MAT-TERS; GENERAL RULES AND REG-ULATIONS

Subpart A—Terminology

Sec.2.1 Terms and definitions.

Subpart B—Allocation, Assignment, andUse of Radio Frequencies

2.100 International regulations in force.2.101 Nomenclature of frequencies.2.102 Assignment of frequencies.2.103 Government use of non-Government

frequencies.2.104 International Table of Frequency Allo-

cations.2.105 United States Table of Frequency Al-

locations.2.106 Table of Frequency Allocations.2.107 Radio astronomy station notification.2.108 Policy regarding the use of the fixed-

satellite allocations in the 3.6–3.7, 4.5–4.8,and 5.85–5.925 GHz bands.
