[Federal Register Volume 75, Number 57 (Thursday, March 25, 2010)]
[Proposed Rules]
[Pages 14401-14409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6502]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10-44; FCC 10-32]
Amendment of Certain of the Commission's Rules of Practice and
Procedure and Rules of Commission Organization
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on proposed revisions to the
Commission's procedural rules and organizational rules. The proposals
are intended to increase efficiency and modernize our procedures,
enhance the openness and transparency of Commission proceedings, and
clarify certain procedural rules. We seek comment on the proposed rule
language, as well as the other proposals contained in this document.
DATES: Comments must be submitted by May 10, 2010 and reply comments
must be submitted by June 8, 2010. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before May 24, 2010.
ADDRESSES: You may submit comments, identified by GC Docket No. 10-44,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Richard Welch, Office of General
Counsel, 202-418-1740. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an e-mail to [email protected] or contact Leslie
Smith, OMD, 202-418-0217.
[[Page 14402]]
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 10-32, adopted on February 18, 2010, and
released on February 22, 2010. Pursuant to Sec. Sec. 1.415 and 1.419
of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments and reply comments on or before the dates indicated on
the first page of this document. Comments may be filed using: (1) The
Commission's Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121,
May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
ECFS filers must transmit one electronic copy of the
comments for GC Docket No. 10-44. In completing the transmittal screen,
filers should include their full name, U.S. Postal Service mailing
address, and the applicable docket number. Parties may also submit an
electronic comment by Internet e-mail.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes must be disposed of before
entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Parties shall also serve one copy with the Commission's copy
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via
e-mail to [email protected]. Documents in GC Docket No. 10-43 will be
available for public inspection and copying during business hours at
the FCC Reference Information Center, Portals II, 445 12th Street, SW.,
Room CY-A257, Washington, DC 20554. The documents may also be purchased
from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY
(202) 488-5562, e-mail [email protected].
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to the Federal
Communications Commission via e-mail to [email protected] and to Nicholas A.
Fraser, Office of Management and Budget, via e-mail to [email protected] or via fax at 202-395-5167.
I. Introduction
1. This document seeks comment on proposed revisions to the
Commission's part 1 procedural rules and part 0 organizational rules.
The proposals are intended to increase efficiency and modernize our
procedures, enhance the openness and transparency of Commission
proceedings, and clarify certain procedural rules. We propose specific
draft revised rules. We seek comment on the proposed rule language, as
well as the other proposals contained in this Notice of Proposed
Rulemaking. (We note that because the part 1 and part 0 rules are
procedural and organizational in nature, notice and comment is not
required under the Administrative Procedure Act. 5 U.S.C. 553(b)(A)
(notice and comment rulemaking requirements do not apply to rules of
agency organization, procedure, or practice). Nonetheless, in the
spirit of openness and transparency, and to assemble the best possible
record to inform our decisions, we have elected voluntarily to utilize
notice and comment procedures in this instance.)
2. The proposed rule revisions fall into three general categories.
First, we seek to improve and streamline our processes governing
reconsideration of Commission decisions. Specifically, we propose to
delegate authority to the staff to dismiss or deny defective or
repetitive petitions filed with the Commission for reconsideration of
Commission decisions. We also propose to amend the rule that authorizes
the Commission to reconsider a decision on its own motion within 30
days to make clear that the Commission may modify a decision, not
merely set it aside or vacate it. Second, we seek to increase the
efficiency of our docket management and make it easier for interested
persons to follow and participate in our proceedings. To achieve this
goal, we propose to expand the use of docketed proceedings, increase
electronic filing of comments, and delegate authority to the staff in
certain circumstances to notify parties electronically of docket
filings and close inactive dockets. Third, we seek to address
uncertainties that have developed in the application of two part 1
rules. We propose to set a default effective date for FCC rules in the
event the Commission does not specify an effective date in its
rulemaking order. In addition, we propose to revise our computation of
time rule to adopt the ``next business day'' approach when a Commission
rule or order specifies that Commission action shall occur on a day
when the agency is not open for business.
II. Discussion
A. Reconsideration of Agency Decisions
1. Sections 1.106 and 1.429--Petitions for Reconsideration
3. We have two procedural rules governing petitions for
reconsideration of Commission orders. Section 1.429 addresses petitions
for reconsideration of final orders issued in notice and comment
rulemaking proceedings. Section 1.106 is a ``catch-all'' provision that
governs petitions for reconsideration in all agency proceedings other
than rulemaking proceedings, that is, all adjudications. The captions
of the two rules, however, are generic and do not explicitly reflect
the dichotomy between rulemaking and adjudication. We propose to change
the captions of these two rules to reflect the categories of
proceedings that each rule governs.
4. We also propose to amend these rules to allow the agency to
resolve certain petitions for reconsideration more efficiently and
expeditiously. The agency each year receives many petitions asking the
full Commission to reconsider its decisions. Some of those petitions
for reconsideration are procedurally defective or merely repeat
arguments that the Commission previously has rejected. Such petitions
[[Page 14403]]
do not warrant consideration by the full Commission, and we therefore
propose to amend Sec. Sec. 1.429 and 1.106 to authorize the staff to
dismiss or deny them on delegated authority. A non-exhaustive list of
such cases might include, for example, petitions that:
Omit information required by these rules to be included
with a petition for reconsideration or otherwise fail to comply with
procedural requirements set forth by the rules;
Fail to identify any material error, omission, or reason
warranting reconsideration or fail to state with particularity the
respects in which petitioner believes the action taken should be
changed;
Rely on arguments that have been fully considered and
rejected within the same proceeding;
Relate to matters outside the scope of the order for which
reconsideration has been requested;
Rely on facts or arguments that could have been presented
previously to the Commission or its staff but were not;
Relate to an order for which reconsideration has been
previously denied on similar grounds; or
Are untimely.
We seek comment on these examples, as well as other categories of
petitions for reconsideration that may not warrant action by the full
Commission and might be appropriate for resolution by the staff on
delegated authority. We propose to specify in our rules criteria
governing petitions for reconsideration that would be subject to this
approach. To that end, we propose draft rule revisions. (A petitioner
whose reconsideration petition was dismissed or denied by the staff may
file an application to have the full Commission review the staff's
action. See 47 U.S.C. 155(c)(4); 47 CFR 1.115(a). In such
circumstances, the filing of an application for review to the full
Commission is a legal prerequisite for judicial review of the staff's
action on reconsideration. See 47 U.S.C. 155(c)(7); 47 CFR 1.115(k).)
5. In addition, we propose to amend our reconsideration rules to
make clear that paper copies of petitions for reconsideration may be
submitted to the Commission's Secretary by mail, by commercial courier,
or by hand. As discussed below, however, our goal is to increase the
use of electronic filing of pleadings in the future. Thus, for those
matters that are docketed on the Commission's Electronic Comment Filing
System (ECFS), we strongly encourage persons to file any petitions for
reconsideration of Commission action by electronic submission to ECFS.
(To ensure that parties wishing to seek reconsideration have clear
notice of our filing requirements, the proposed rule changes would
emphasize that petitions for reconsideration submitted by electronic
means other than ECFS (for example, by electronic mail) and petitions
submitted directly to staff shall not be considered to have been
properly filed absent a rule specifically permitting the alternative
means of electronic filing for the particular submission at issue.
Although a reconsideration petition submitted by electronic mail does
not satisfy proper filing requirements absent a rule specifically
permitting such a submission, it is still helpful and good practice to
also send a copy of a reconsideration petition by electronic mail to
any staff persons that the filer knows are involved with the proceeding
or tend to be involved with the issues.) We seek comment on this
proposal.
6. Certain licensing proceedings have different electronic filing
systems and procedures that are distinct from those that apply to ECFS.
Pleadings filed electronically through the Commission's Universal
Licensing System (ULS), for example, including petitions for
reconsideration, are subject to separate procedures that we do not
propose to amend at this time.
7. Finally, we note that Sec. 1.429 does not by its express terms
apply to rules adopted without notice and comment. We seek comment on
whether we should amend Sec. 1.429 to make clear that this rule,
rather than the ``catch-all'' reconsideration provision in Sec. 1.106,
applies to petitions for reconsideration of Commission orders adopting
rules without notice and comment.
2. Section 1.108--Reconsideration on the Commission's Own Motion
8. Section 1.108 of the Commission's rules, captioned
``Reconsideration on Commission's own motion,'' states: ``The
Commission may, on its own motion, set aside any action made or taken
by it within 30 days from the date of public notice of such action, as
that date is defined in Sec. 1.4(b) of these rules.''
As the caption suggests, the purpose of the rule is to give the
Commission, when acting on its own motion, the full panoply of powers
implied by the term ``reconsider.'' As set forth in Sec. 1.106(k)(1)
of the Commission's rules, which concerns petitions for reconsideration
in non-rulemaking proceedings, these powers include the power to
reverse or modify an action, to remand a matter for further
proceedings, or to initiate other further proceedings. One court,
however, has construed the text of Sec. 1.108 more narrowly, limiting
its scope to the power to ``set aside'' an action in the literal sense.
Under that court's interpretation, the scope of permissible
reconsiderations excludes revising or modifying a rule. (See Sprint
Corp. v. FCC, 315 F.3d 369, 374-75 (D.C. Cir. 2003) (holding that a
Commission action ``revising and modifying'' a rule was not ``set[ting]
aside'' the rule within the scope of Sec. 1.108).) In order to clarify
that section 1.108 does not limit the Commission's flexibility to
revisit its decisions on its own motion within 30 days, we propose
revising that rule to conform with the fuller definition of
``reconsider'' in Sec. 1.106(k)(1). We seek comment on this proposal.
Docketing of Proceedings, Electronic Filing of Pleadings, and
Electronic Notification
3. Expanded Use of Docketed Proceedings
9. The Commission assigns a docket number to many of its
proceedings. These include notice and comment rulemaking proceedings
and certain adjudicatory proceedings so designated by the Commission or
the staff, such as adjudicatory proceedings that may be expected to
attract large numbers of commenters. For any proceeding that is
assigned a formal docket number, the Commission's Reference Information
Center (a unit of the Consumer and Governmental Affairs Bureau)
maintains the official administrative record in paper form, as well as
the public files electronically on ECFS.
10. Many proceedings before the Commission, however, are not
docketed. These non-docketed proceedings include routine matters that
may not be expected to involve large numbers of commenters or parties.
In such circumstances, the individual bureau or office handling the
matter may assign the proceeding a unique file number or other form of
identifier instead of a formal docket number. In some types of matters,
no numerical identifier is assigned. The relevant bureau or office also
maintains the public files of the proceeding and assists the Office of
General Counsel in preparing the certified list of items in the
administrative record for purposes of judicial review. Often the record
may be in paper format only, and thus is not susceptible to electronic
search and query. In such cases, interested persons may find it
difficult to follow and participate in non-docketed proceedings.
11. Given the limitations and challenges noted above regarding
certain non-docketed proceedings, we believe we can and should enhance
[[Page 14404]]
openness, transparency, and accuracy by utilizing the formal docket
process for a larger portion of Commission proceedings. The docket
number, often in conjunction with enhanced electronic filing through
ECFS as discussed below, should facilitate public access and
participation in our proceedings. We seek comment on this general
approach. In particular, are there specific types of proceedings that
currently are not docketed that would be candidates to migrate to the
formal docket system? In contrast, are there particular proceedings
that do not lend themselves to the docket system and should continue to
be handled in a non-docketed manner by the relevant bureau or office?
In general, we believe it is in the public interest to utilize the
formal docket system whenever it is technically feasible. (Although we
seek notice and comment here on the general approach of applying a
formal docket process to additional Commission proceedings, we note
that any subsequent determination that specific proceedings (or types
of proceedings) should be docketed would not require the use of notice
and comment procedures to the extent that those changes would involve
matters of agency procedure and practice. See 5 U.S.C. 553(b)(A).) We
recognize, however, that certain filings at the Commission by their
nature may not be well suited for a docketed proceeding. Thus, while we
may be able to reduce the number and variety of non-docketed
proceedings significantly, we may not be able to establish a system in
which all proceedings are docketed. Filings made through electronic
means other than ECFS, for example, such as in the licensing context
through ULS, may be accessible to the public without the need for
assigning the proceeding a docket number. We seek comment on these
proposals and issues.
4. Greater Use of Electronic Filing
12. In 1998, the Commission amended its rules to permit electronic
filing via the Internet of all pleadings in informal notice and comment
rulemaking proceedings (other than broadcast allotment proceedings),
notice of inquiry proceedings, and petition for rulemaking proceedings
(except broadcast allotment proceedings). (47 CFR 1.49(f); see
Electronic Filing of Documents in Rulemaking Proceedings, Report and
Order, 63 FR 24121, May 1, 1998; 13 FCC Rcd 11322 (1998).) The
Commission also permits electronic filing through ECFS for certain
adjudicatory proceedings on a case-by-case basis when so designated by
the Commission or the staff. The Commission recently launched an
enhanced and upgraded version of its ECFS that includes many new
features and increased functionality. These new enhancements include,
for example:
For submitting comments:
User-friendly forms used to upload and query
All forms are compliant with section 508 of the
Rehabilitation Act and the system is certified for use with screen
readers for those visually handicapped persons who require screen
readers
Ability to submit a filing in multiple proceedings
Ability to attach multiple files to one submission
User-friendly Graphic User Interface using JAVA to permit
easier navigation
Ability to review and modify filings before submitting
them
Ability to send and process comments from international
filers and U.S. Territories
For performing queries:
Check filing status by confirmation number
Sort the result set
Display results in a group of specified size
Display results in tabular (condensed) or expanded
(detailed) format
Export search results to Excel or PDF
As noted above, system is compliant with section 508 of
the Rehabilitation Act and certified for use with screen readers
Display search records with a link to the PDF version of
the comment
RSS Feed for updates
View ECFS Daily Report (from a calendar) that lists the
daily additions to ECFS
13. Given the more robust electronic filing capability provided by
ECFS, we seek comment on the efficacy of utilizing electronic filing of
pleadings through ECFS in a broader array of Commission proceedings.
The Commission receives paper-only filings in certain non-rulemaking
matters that currently do not utilize ECFS or some other electronic
filing mechanism such as ULS. In addition, in certain types of
proceedings, the Commission's rules provide for the electronic filing
of applications, but not of responsive pleadings. When filings are made
in paper format only and are not included in an electronic system (such
as ECFS) that permits search and query functions, interested persons
may find it difficult to follow and participate in our proceedings.
Public access and transparency are not well served in those
circumstances. In general, we believe that electronic filing through
our enhanced ECFS or other electronic filing systems such as ULS better
serves the public interest than a paper-only filing process. We thus
seek to maximize electronic filing to the extent possible and minimize
paper submissions at the Commission.
14. Accordingly, we propose an enhanced role for ECFS, and seek
comment generally on issues raised by the increased use of electronic
filing in Commission proceedings. In what types of non-rulemaking
matters might it be appropriate to permit electronic filing of all
pleadings through ECFS? Are there certain non-rulemaking proceedings
that do not lend themselves to electronic filing of pleadings through
ECFS? How should we amend Sec. 1.49 of our rules (and any other rules
the revision of which may be necessary) to augment the number of
proceedings in which parties may file all pleadings through ECFS? Are
there statutory implications for enhanced electronic filing that we
should take into account, such as the Privacy Act? (5 U.S.C. 552a.) If
we permit more filings under ECFS, what are the implications for
parties wishing to submit materials under a request for confidentiality
under Sec. 0.459 of our rules?
15. As noted, the Commission has electronic filing mechanisms other
than ECFS. These include, for example, a number of electronic filing
systems for applications in the various broadcast and wireless
services, including ULS (see para. 6, above). How should such systems
be harmonized with ECFS, or should they continue to operate
independently of ECFS? For example, should filers using those systems
be excluded from also filing through the ECFS system to avoid confusion
or unnecessary duplication? Should they be permitted to file in either,
or both, in the same proceeding?
16. Finally, we seek comment on whether electronic filings through
ECFS or our other electronic filing systems should be ``machine
readable.'' Specifically, should text filings be in a searchable format
(e.g., Microsoft Word ``.doc'' format or non-copy protected text-
searchable ``.pdf'' format)? Should submissions containing non-text
information, particularly spreadsheets of data, be submitted in the
format in which they were created, such as Microsoft Excel, Microsoft
Word, or Microsoft PowerPoint (``native format'')? We seek comment on
these questions, and any other issues parties care to raise in
connection with an enhanced role for filing pleadings through ECFS.
(Just as with docketed proceedings, we note that any subsequent
determination that
[[Page 14405]]
parties should be permitted to file all pleadings in specific
proceedings (or types of proceedings) through ECFS would not require
the use of notice and comment procedures to the extent that those
changes would involve matters of agency procedure and practice. See 5
U.S.C. 553(b)(A).)
5. Electronic Notification in Certain Proceedings
17. When required by statute or regulation, the Commission must
serve copies of orders, pleadings, and other documents on parties to a
proceeding. Typically in such circumstances, service is effectuated by
mail. This process can be cumbersome and time consuming, for example
when there are many parties to a particular proceeding, or when many
documents in a particular docket must be served on the parties over the
life of the proceeding. We seek to establish a more efficient approach.
Accordingly, we propose to amend Sec. 1.47 of the Commission's rules
to allow the agency to serve parties to a proceeding in electronic form
(e.g., e-mail or an Internet-based notification system such as an RSS
feed) following any change in the docket, to the extent the Commission
is required to serve such parties. In a proceeding involving a large
number of parties, we propose to satisfy the Commission's service
obligation by issuing a public notice that identifies the documents
required to be served and that explains how parties can obtain copies
of the documents. If we adopt such an approach, what number of parties
ordinarily should trigger this procedure? Are there other factors, in
addition to the number of parties, that should be taken into account
when deciding whether to use this procedure in a particular matter? We
seek comment on these proposals and questions.
6. Management of Dockets
18. When no further action in a docketed proceeding is required or
contemplated, that proceeding should be terminated. Termination closes
the docket to any new filings. A terminated docket remains part of the
Commission's official records, however, and its contents (pleadings,
orders, etc.) continue to be accessible to the public.
19. The Commission currently has more than three thousand open
dockets. Many of these dockets have seen little or no activity in
years. In these circumstances, it is reasonable to assume that some
open dockets may be candidates for termination. To address the current
situation and to prevent its recurrence in the future, we propose to
amend Sec. 0.141 of our organizational rules to delegate authority to
the Chief, Consumer and Governmental Affairs Bureau (CGB), through its
component Reference Information Center, to review all open dockets
periodically. When the CGB Chief identifies an open docket that appears
to be a candidate for termination, the CGB Chief should consult with
the relevant bureau or office with responsibility for that docket and,
if the relevant bureau or office concurs, the staff should take action
to close that docket. As noted above, candidates for termination might
include, for example, dockets in which no further action is required or
contemplated. In addition, is there some minimum period of dormancy
(i.e., when no pleadings have been filed) that might indicate a
particular docket is a candidate for termination? What other criteria
for termination might be appropriate? What procedures should we follow
before terminating dockets? Should we first issue a public notice
identifying particular dockets as candidates for termination before
actually closing those dockets? We seek comment on these proposals and
questions.
20. Another docket management issue involves the handling of
dockets that are so large that they have become unwieldy. In such
circumstances, often a bureau or office will open a new docket to
remove one or more issues from a large docket, in an effort to avoid
further expansion of the oversize docket. Oftentimes in practice,
however, filings in the new docket will continue to include the old
docket in the caption, essentially defeating the docket management
function of having created the new docket. In an effort to rectify this
situation, we propose to amend Sec. 1.49 of our rules to specify that
a filing should only be captioned with the docket number(s) particular
to the issue(s) addressed in the filing. If the filing references
superfluous or incorrect dockets, the Commission, through the Reference
Information Center, would have the discretion to omit the filing from
those dockets, and place it (only) in the correct docket(s). We seek
comment on this proposal, including whether the benefits of erring on
the side of over inclusiveness in dockets outweigh the administrative
efficiencies and more narrowly tailored docket searchability that this
proposal seeks to foster. We also solicit any other related suggestions
to help the Commission manage its dockets and make them more user-
friendly to, and searchable by, consumers and other users.
Miscellaneous Part 1 Rules
21. We also propose to amend certain other part 1 procedural rules
to clarify and improve our practices. We propose these actions because
our experience indicates that the current language of the rules has
resulted in inconsistencies or uncertainties in the treatment of the
matters in question.
7. Section 1.427--Effective Date of Rules
22. Although Commission rulemaking orders typically specify the
effective date of adopted rules, the omission of such a statement can
create confusion. Section 1.427(a) of the Commission's rules, captioned
``Effective date of rules,'' currently states: ``Any rule issued by the
Commission will be made effective not less than 30 days from the time
it is published in the Federal Register except as otherwise specified
in paragraphs (b) and (c) of this section.''
That rule contemplates that, in cases when the exceptions in
subsections (b) and (c) do not apply, the order adopting the rule will
contain a statement specifying that the rule becomes effective not less
than 30 days after publication in the Federal Register. The rule does
not provide any guidance, however, in the case when the contemplated
statement of effective date is omitted. Although it is desirable to
include a specific statement of effective date in all cases, we find
that it also is prudent to prescribe a default rule in the event an
order omits such a statement. A default rule should help avoid
confusion and undue disruption concerning the effective date of the
rule. We therefore propose amending Sec. 1.427(a) of the rules to
provide that in the event a Commission order adopting a rule does not
specify an effective date and does not affirmatively defer the setting
of an effective date (as in circumstances when the rule is awaiting
Paperwork Reduction Act approval), the rule will become effective 30
days after publication in the Federal Register unless a later effective
date is required by statute. We seek comment on this proposal.
8. Section 1.4--Computation of Time
23. Deadlines for Commission Action Established by Rule.
Uncertainty can arise when the Commission's rules provide that required
Commission action becomes due on a day when the agency is not open for
business. A provision of the Commission's computation of time rule,
Sec. 1.4(j) (47 CFR 1.4(j)), currently addresses that situation when
the due date for a party's filing falls on such a date, stating:
``Unless otherwise provided (e.g. Sec.
[[Page 14406]]
76.1502(e) of this chapter) if, after making all the computations
provided for in this section, the filing date falls on a holiday, the
document shall be filed on the next business day. See paragraph (e)(1)
of this section.''
Section 1.4(j) does not address, however, the parallel situation in
which specified Commission action, rather than a party's filing, is by
regulation due on a day when the agency is not open for business. In
those circumstances, we tentatively conclude that the reasonable
expectation is that, when the due date for Commission action would
otherwise fall on a holiday, as defined by Sec. 1.4(e)(1) of the
rules, the due date would be extended to the next business day. We seek
comment on this proposal.
24. Deadlines for Commission Action Established by Statute. Section
1.4 by its terms ``applies to computation of time for seeking both
reconsideration and judicial review of Commission decisions.'' The rule
permits parties to make such filings on the next business day when the
filing deadline otherwise would fall on a holiday. Each of those
deadlines is established by statute rather than by Commission rule.
(Petitions for reconsideration must be filed within 30 days from the
date public notice is given of the Commission order. 47 U.S.C. 405(a).
A Notice of Appeal of certain Commission licensing decisions must be
filed within 30 days from the date public notice is given of the
Commission's order. 47 U.S.C. 402(b), (c). A Petition for Review of
most Commission decisions must be filed within 60 days from the date
public notice is given of the Commission's order. 47 U.S.C. 402(a); 28
U.S.C. 2344.) Through Sec. 1.4(a), we thus have announced in advance
our construction of certain statutory filing deadlines applicable to
parties to make clear that parties may invoke the ``next business day''
procedure when the filing date would otherwise fall on a holiday.
25. We seek comment on whether we should follow the same approach
to statutory deadlines applicable to the Commission. The Communications
Act, in particular, establishes various deadlines for Commission
action. May we, and if so should we, construe such deadlines to
incorporate the ``next business day'' procedure, as we have for certain
statutory deadlines applicable to parties? Specifically, if a statutory
deadline for Commission action falls on a holiday (as defined in Sec.
1.4(e)(1)), should we by rule announce our intention to construe the
statute to require Commission action on the next business day? If so,
what changes should we make to Sec. 1.4 to effectuate this approach?
III. Procedural Matters
26. Ex Parte Presentations. The rulemaking this Notice initiates
shall be treated as a ``permit-but-disclose'' proceeding in accordance
with the Commission's ex parte rules. Persons making oral ex parte
presentations are reminded that memoranda summarizing the presentations
must contain summaries of the substance of the presentations and not
merely a listing of the subjects discussed. More than a one- or two-
sentence description of the views and arguments presented generally is
required. Other requirements pertaining to oral and written
presentations are set forth in Sec. 1.1206(b) of the Commission's
rules.
27. Accessible Formats: To request materials in accessible formats
for people with disabilities (Braille, large print, electronic files,
audio format), send an e-mail to [email protected] or call the Consumer &
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432
(tty).
28. Regulatory Flexibility Act. Our action does not require notice
and comment, and therefore falls outside of the Regulatory Flexibility
Act of 1980, as amended. We nonetheless note that we anticipate that
the rules we propose today will not have a significant economic impact
on a substantial number of small entities. As described above, in
proposing to revise certain of our part 1 Rules of Practice and
Procedure and our part 0 Rules of Commission Organization, we mainly
propose to change our own internal procedures and organization and do
not impose substantive new responsibilities on regulated entities.
There is no reason to believe that operation of the proposed rules
would impose significant costs on parties to Commission proceedings. We
will send a copy of this Notice of Proposed Rulemaking to the Chief
Counsel of Advocacy of the SBA.
29. Paperwork Reduction Act. This proceeding may result in new
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collection requirements contained in this document, as
required by the Paperwork Reduction Act of 1995. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, we seek specific
comment on how we might ``further reduce the information collection
burden for small business concerns with fewer than 25 employees.''
IV. Ordering Clauses
Accordingly, It is ordered, pursuant to sections 4(i), 4(j), and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), and 303(r), that notice is hereby given of the proposed
regulatory changes described above, and that comment is sought on these
proposals.
List of Subjects in 47 CFR Parts 0 and 1
Organization and functions (Government agencies), Reporting and
recordkeeping requirements, Administrative practice and procedure,
Government employees, Lawyers, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 0 and 1 to
read as follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for part 0 continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 0.141 is amended by revising paragraph (h) to read as
follows:
Sec. 0.141 Functions of the Bureau.
* * * * *
(h) Serves as the official FCC records custodian for designated
records, including intake processing, organization and file
maintenance, reference services, and retirement and retrieval of
records; manages the Electronic Comment Filing System and certifies
records for adjudicatory and court proceedings. Maintains manual and
computerized files that provide for the public inspection of public
record materials concerning Broadcast Ownership, AM/FM/TV, TV
translators, FM Translators, Cable TV, Wireless, Auction, Common
Carrier Tariff matters, International space station files, earth
station files, DBS files, and other miscellaneous international files.
Also maintains for public inspection Time Brokerage and Affiliation
Agreements, court citation files, and legislative histories concerning
telecommunications dockets. Provides the public and Commission staff
prompt access to manual and computerized records and filing systems.
Periodically
[[Page 14407]]
reviews the status of open docketed proceedings and, in consultation
with the relevant bureau or office with responsibility for a particular
proceeding, closes any docket in which no further action is required or
contemplated.
* * * * *
3. Section 0.445 is amended by revising paragraph (a) to read as
follows:
Sec. 0.445 Publication, availability and use of opinions, orders,
policy statements, interpretations, administrative manuals, and staff
instructions.
(a) Adjudicatory opinions and orders of the Commission, or its
staff acting on delegated authority, are mailed or delivered by
electronic means to the parties, and as part of the record, are
available for inspection in accordance with Sec. Sec. 0.453 and 0.455.
* * * * *
PART 1--PRACTICE AND PROCEDURE
4. The authority citation for part 1 is revised to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j),
155, 157, 225, 303(r), and 309.
5. Section 1.4 is amended by revising paragraphs (a) and (j) to
read as follows:
Sec. 1.4 Computation of time.
(a) Purpose. The purpose of this rule section is to detail the
method for computing the amount of time within which persons or
entities must act in response to deadlines established by the
Commission. It also applies to computation of time for seeking both
reconsideration and judicial review of Commission decisions. In
addition, this rule section prescribes the method for computing the
amount of time within which the Commission must act in response to
deadlines established by a Commission rule or order.
* * * * *
(j) Unless otherwise provided (e.g. Sec. 76.1502(e) of this
chapter) if, after making all the computations provided for in this
section, the filing date falls on a holiday, the document shall be
filed on the next business day. See paragraph (e)(1) of this section.
If a rule or order of the Commission specifies that the Commission must
act by a certain date and that date falls on a holiday, the Commission
action must be taken by the next business day.
* * * * *
6. Section 1.47 is amended by revising paragraph (a) to read as
follows:
Sec. 1.47 Service of documents and proof of service.
(a) Where the Commission or any person is required by statute or by
the provisions of this chapter to serve any document upon any person,
service shall (in the absence of specific provisions in this chapter to
the contrary) be made in accordance with the provisions of this
section. Documents that are required to be served by the Commission may
be served in electronic form. In proceedings involving a large number
of parties, the Commission may satisfy its service obligation by
issuing a public notice that identifies the documents required to be
served and that explains how parties can obtain copies of the
documents.
* * * * *
7. Section 1.49 is amended by adding a new paragraph (g) to read as
follows:
Sec. 1.49 Specifications as to pleadings and documents.
* * * * *
(g) The caption of a pleading or other document filed in a docketed
proceeding should reference only the docket number(s) particular to the
issue(s) addressed in the document. When the document references
superfluous or incorrect dockets, the Commission may omit the document
from such dockets and place it (only) in the correct docket(s).
8. Section 1.106 is amended by revising the section heading,
paragraphs (a)(1), (b)(2), (b)(3), (c), (d), (i), and (j), and by
adding a new paragraph (p), to read as follows:
Sec. 1.106 Petitions for reconsideration in non-rulemaking
proceedings.
(a)(1) Except as provided in paragraphs (b)(3) and (p) of this
section, petitions requesting reconsideration of a final Commission
action in non-rulemaking proceedings will be acted on by the
Commission. Petitions requesting reconsideration of other final actions
taken pursuant to delegated authority will be acted on by the
designated authority or referred by such authority to the Commission. A
petition for reconsideration of an order designating a case for hearing
will be entertained if, and insofar as, the petition relates to an
adverse ruling with respect to petitioner's participation in the
proceeding. Petitions for reconsideration of other interlocutory
actions will not be entertained. (For provisions governing
reconsideration of Commission action in notice and comment rule making
proceedings, see Sec. 1.429. This Sec. 1.106 does not govern
reconsideration of such actions.)
* * * * *
(b) * * *
(2) Where the Commission has denied an application for review, a
petition for reconsideration will be entertained only if one or more of
the following circumstances are present:
(i) The petition relies on facts or arguments which relate to
events which have occurred or circumstances which have changed since
the last opportunity to present such matters to the Commission; or
(ii) The petition relies on facts or arguments unknown to
petitioner until after his last opportunity to present them to the
Commission, and he could not through the exercise of ordinary diligence
have learned of the facts or arguments in question prior to such
opportunity.
(3) A petition for reconsideration of an order denying an
application for review which fails to rely on new facts or changed
circumstances may be dismissed by the staff as repetitious.
(c) In the case of any order other than an order denying an
application for review, a petition for reconsideration which relies on
facts or arguments not previously presented to the Commission or to the
designated authority may be granted only under the following
circumstances:
(1) The facts or arguments fall within one or more of the
categories set forth in Sec. 1.106(b)(2); or
(2) The Commission or the designated authority determines that
consideration of the facts or arguments relied on is required in the
public interest.
(d)(1) A petition for reconsideration shall state with
particularity the respects in which petitioner believes the action
taken by the Commission or the designated authority should be changed.
The petition shall state specifically the form of relief sought and,
subject to this requirement, may contain alternative requests.
(2) A petition for reconsideration of a decision that sets forth
formal findings of fact and conclusions of law shall also cite the
findings and/or conclusions which petitioner believes to be erroneous,
and shall state with particularity the respects in which he believes
such findings and/or conclusions should be changed. The petition may
request that additional findings of fact and/or conclusions of law be
made.
* * * * *
(i) Petitions for reconsideration, oppositions, and replies shall
conform to the requirements of Sec. Sec. 1.49, 1.51, and
[[Page 14408]]
1.52 and shall be submitted to the Secretary, Federal Communications
Commission, Washington, DC, 20554, by mail, by commercial courier, by
hand, or by electronic submission through the Commission's Electronic
Comment Filing System or other electronic filing system (such as ULS).
Petitions submitted by electronic mail and petitions submitted directly
to staff without submission to the Secretary shall not be considered to
have been properly filed. Parties filing in electronic form need only
submit one copy.
(j) The Commission or designated authority may grant the petition
for reconsideration in whole or in part or may deny or dismiss the
petition. Its order will contain a concise statement of the reasons for
the action taken. Where the petition for reconsideration relates to an
instrument of authorization granted without hearing, the Commission or
designated authority will take such action within 90 days after the
petition is filed.
* * * * *
(p) Petitions for reconsideration of a Commission action that
plainly do not warrant consideration by the Commission may be dismissed
or denied by the Chief(s) of the relevant bureau(s) or office(s).
Examples include, but are not limited to, petitions that: (1) Fail to
identify any material error, omission, or reason warranting
reconsideration;
(2) rely on facts or arguments which have not previously been
presented to the Commission and which do not meet the requirements of
paragraphs (b)(2), (b)(3), or (c) of this section;
(3) Rely on arguments that have been fully considered and rejected
within the same proceeding;
(4) Fail to state with particularity the respects in which
petitioner believes the action taken should be changed as required by
paragraph (d) of this section;
(5) Relate to matters outside the scope of the order for which
reconsideration is sought;
(6) Omit information required by these rules to be included with a
petition for reconsideration, such as the affidavit required by Sec.
1.106(e) (relating to electrical interference);
(7) Fail to comply with the procedural requirements set forth in
paragraphs (f) and (i);
(8) Relate to an order for which reconsideration has been
previously denied on similar grounds, except for petitions which could
be granted under Sec. 1.106(c); or
(9) Are untimely.
9. Section 1.108 is revised to read as follows:
Sec. 1.108 Reconsideration on Commission's own motion.
The Commission may, on its own motion, reconsider any action made
or taken by it within 30 days from the date of public notice of such
action, as that date is defined in Sec. 1.4(b) of these rules. When
acting on its own motion under this section, the Commission may take
any action it could take in acting on a petition for reconsideration,
as set forth in Sec. 1.106(k) of this chapter.
10. Section 1.427 is amended by revising paragraph (a) to read as
follows:
Sec. 1.427 Effective date of rules.
(a) Any rule issued by the Commission will be made effective not
less than 30 days from the time it is published in the Federal Register
except as otherwise specified in paragraphs (b) and (c) of this
section. If the report and order adopting the rule does not specify the
date on which the rule becomes effective, the effective date shall be
30 days after the date on which the rule is published in the Federal
Register, unless the report and order affirmatively defers the setting
of an effective date or a later effective date is required by statute.
* * * * *
11. Section 1.429 is amended by revising the section heading,
paragraphs (b), (h), and (i), and by adding a new paragraph (l), to
read as follows:
Sec. 1.429 Petition for reconsideration of final orders in rulemaking
proceedings.
* * * * *
(b) A petition for reconsideration which relies on facts or
arguments which have not previously been presented to the Commission
will be granted only under the following circumstances:
(1) The facts or arguments relied on relate to events which have
occurred or circumstances which have changed since the last opportunity
to present such matters to the Commission;
(2) The facts or arguments relied on were unknown to petitioner
until after his last opportunity to present them to the Commission, and
he could not through the exercise of ordinary diligence have learned of
the facts or arguments in question prior to such opportunity; or
(3) The Commission determines that consideration of the facts or
arguments relied on is required in the public interest.
* * * * *
(h) Petitions for reconsideration, oppositions and replies shall
conform to the requirements of Sec. Sec. 1.49 and 1.52, except that
they need not be verified. Except as provided in Sec. 1.420(e), an
original and 11 copies shall be submitted to the Secretary, Federal
Communications Commission, Washington, DC 20554, by mail, by commercial
courier, by hand, or by electronic submission through the Commission's
Electronic Comment Filing System. Petitions submitted by electronic
mail and petitions submitted directly to staff without submission to
the Secretary shall not be considered to have been properly filed.
Parties filing in electronic form need only submit one copy.
(i) The Commission may grant the petition for reconsideration in
whole or in part or may deny or dismiss the petition. Its order will
contain a concise statement of the reasons for the action taken. Any
order addressing a petition for reconsideration which modifies rules
adopted by the original order is, to the extent of such modification,
subject to reconsideration in the same manner as the original order.
Except in such circumstance, a second petition for reconsideration may
be dismissed by the staff as repetitious. In no event shall a ruling
which denies a petition for reconsideration be considered a
modification of the original order.
* * * * *
(l) Petitions for reconsideration of a Commission action that
plainly do not warrant consideration by the Commission may be dismissed
or denied by the Chief(s) of the relevant bureau(s) or office(s).
Examples include, but are not limited to, petitions that:
(1) Fail to identify any material error, omission, or reason
warranting reconsideration;
(2) Rely on facts or arguments which have not previously been
presented to the Commission and which do not meet the requirements of
paragraphs (b)(1) through (b)(3) of this section;
(3) Rely on arguments that have been fully considered and rejected
within the same proceeding;
(4) Fail to state with particularity the respects in which
petitioner believes the action taken should be changed as required by
paragraph (c) of this section;
(5) Relate to matters outside the scope of the order for which
reconsideration is sought;
(6) Omit information required by these rules to be included with a
petition for reconsideration;
(7) Fail to comply with the procedural requirements set forth in
paragraphs (d), (e), and (h) of this section;
(8) Relate to an order for which reconsideration has been
previously
[[Page 14409]]
denied on similar grounds, except for petitions which could be granted
under Sec. 1.429(b); or
(9) Are untimely.
* * * * *
[FR Doc. 2010-6502 Filed 3-24-10; 8:45 am]
BILLING CODE 6712-01-P