[Federal Register Volume 76, Number 84 (Monday, May 2, 2011)]
[Rules and Regulations]
[Pages 24383-24393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10356]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 0 and 1
[GC Docket No. 10-44; FCC 11-16]
Commission's Rules of Practice, Procedure, and Organization
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission revises certain procedural
and organizational rules. The rule revisions fall into three general
categories. First, the Commission adopts several docket management
measures, such as broadening the use of docketed proceedings; expanding
the requirement for electronic filing (and reducing the scope of the
obligation to file paper copies); and permitting staff in certain
circumstances to notify parties electronically of docket filings and to
close inactive dockets. Second, the Commission revises rules regarding
the reconsideration of agency decisions, delegating authority to the
staff to dismiss or deny defective or repetitive petitions for
reconsideration of Commission decisions, and amending 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). Finally, the Commission
implements changes to miscellaneous regulations. In order to make its
[[Page 24384]]
processes more uniform and understandable, the Commission sets a
default effective date for FCC rules in the event the Commission does
not specify an effective date in a rulemaking order and revises its
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. To eliminate
confusion, these rule amendments clarify when the Commission's
Headquarters and other offices will be considered to be open for
business; and corrects typographical errors in two debt collection
rules. The Commission also makes a number of minor rules changes
regarding requests under the Freedom of Information Act (FOIA) in order
to correct errors or omissions that have been noted following the
agency's last amendment of these rules in 2008. Overall, these
revisions are intended to increase the efficiency of Commission
decision-making, modernize Commission procedures for the digital age,
and enhance the openness and transparency of Commission proceedings for
practitioners and the public.
DATES: Effective June 1, 2011.
FOR FURTHER INFORMATION CONTACT: Joel Kaufman, Chief, Administrative
Law Division, Office of General Counsel, 202-418-1758 or
[email protected].
SUPPLEMENTARY INFORMATION: In this Report and Order, the Commission
amends certain part 1 procedural rules and part 0 organizational rules,
47 CFR 1 and 0.
On February 22, 2010, the Commission released a notice of proposed
rulemaking seeking comment on a number of proposed changes to the
Commission's part 1 procedural rules and part 0 organizational rules.
See Amendment of Certain of the Commission's Part 1 Rules of Practice
and Procedure and Part 0 Rules of Commission Organization, 25 FCC Rcd
2430 (2010) (Notice). By this Report and Order, we adopt final rules
effecting a number of proposals described in the Notice. The following
paragraphs describe these rules changes.
Docket Management
In the Notice, the Commission proposed a number of steps to bring
agency practice and procedure into the digital age and to improve the
efficiency of Commission decision-making. Among these were increased
use of docketed proceedings, electronic filing of pleadings with the
Commission, and electronic notifications to the parties to a
proceeding. Below is a summary of the actions taken on these docket
management proposals.
1. Expanded Use of Docketed Proceedings
When we commenced this proceeding, we observed that many Commission
proceedings are not docketed. See 25 FCC Rcd at 2433. In such
circumstances, the individual bureau or office handling the matter may
assign the proceeding a unique file number or other identifier instead
of a formal docket number, or may not assign a numerical identifier at
all. Often, the record in non-docketed proceedings is in paper format
only, thus precluding electronic searches and rendering it difficult
for interested persons to follow and participate in these proceedings.
Given these limitations, we indicated our interest in expanding the use
of docketed proceedings to foster greater openness, transparency, and
public participation in our work. Specifically, we stated that we would
seek to use the formal docketing process more often in Commission
proceedings when technically feasible.
In the Report and Order, we adopt the proposal generally to expand
the docketing process. Specifically, we direct Commission bureaus or
offices (with the exception of the Enforcement Bureau, to the extent
discussed below) to assign a docket number to proceedings within its
jurisdiction in all but exceptional circumstances. For example, we
anticipate prompt migration of the following illustrative categories of
proceedings to numbered docketing: Newly filed formal complaints
concerning common carriers under section 208 (see 47 U.S.C. 208; 47 CFR
1.720 et seq.) and newly filed pole attachment complaints under section
224 (see 47 U.S.C. 224; 47 CFR 1.1401 et seq.); customer proprietary
network information (CPNI) proceedings (see 47 U.S.C. 222; 47 CFR
64.2001 et seq.); Cable Special Relief petitions (see 47 CFR 76.7 et
seq.); proceedings involving Over-the-Air Reception Devices (see 47 CFR
1.4000 et seq.); and common carrier certifications (see 47 CFR
54.314.). We delegate authority to the Consumer and Governmental
Affairs Bureau, in consultation with the relevant bureaus and offices,
to issue a Public Notice (or Notices) announcing effective date(s) for
numbered docketing of these and other particular categories of
proceedings. During this transition to a comprehensive docketing
regime, we will permit bureaus and offices not to assign a formal
docket number to certain proceedings if, in the considered judgment of
staff, docketing would raise special technical difficulties (for
instance, because the docketing process is not easily extended to
existing systems such as the Universal Licensing System) or would
impose undue burdens upon the Commission and its staff; would be of
limited utility; would not materially enhance public accessibility
because, for instance, the filings in a proceeding could be accessed
electronically in any event; or otherwise would not be in the public
interest.
With respect to the Enforcement Bureau, we determine that both the
Bureau and the parties under investigation have legitimate interests in
keeping the investigative phase of a proceeding non-public. To the
extent that formal docketing would impede these interests, we do not
think the internal management benefits of assigning a docket number
would outweigh the costs. For these reasons, we do not require the
Enforcement Bureau to assign a docket number to investigative
proceedings prior to the issuance of a notice of apparent liability.
If such a notice has been issued, however, we believe that the
public interest in being able to access information about the
proceeding is greater and outweighs the (diminished) interests that
support protecting the investigation from public view. Thus, we
determine that a docket number should be assigned to an enforcement
proceeding in which the Enforcement Bureau has issued a notice of
apparent liability, even if the notice has not been publicly released.
Mindful that docketing should not frustrate the agency's and parties'
interests in conducting a thorough, fair investigation, we note that
parties may seek confidential treatment of submissions made in response
to a notice of apparent liability to the extent that such treatment is
consistent with section 0.459 of our rules, 47 CFR 0.459. We also
observe that enforcement proceedings are restricted for purposes of our
ex parte rules after the issuance of a notice of apparent liability,
and that non-parties must abide by the requirements applicable to such
proceedings. See generally 47 CFR 1.1208 (rules applicable to
restricted proceedings), 1.1212 (procedures for handling prohibited ex
parte presentations).
Finally, in response to one commenter's suggestion in this context
for improving our rules on declaratory rulings, we determine that
petitions for declaratory ruling should be handled in a similar manner
to petitions for rulemaking under section 1.106, rather than in
accordance with section 1.45(b).
[[Page 24385]]
Thus, each petition should be docketed (either within an existing
active docket, if the issues raised within the petition are
substantially related to that docket, or within a new docket if the
issues raised do not substantially relate to a current proceeding); the
particular bureau or office to which the petition has been submitted
should seek comment on the petition via public notice; the default
filing deadline for responsive pleadings to a docketed petition will be
30 days from the release date of the public notice, unless the bureau
or office specifies otherwise; and the default filing deadline for any
replies will be 15 days thereafter, unless the bureau or office
specifies otherwise. We amend the existing rule involving declaratory
rulings, section 1.2, to reflect these requirements. See 47 CFR 1.2.
2. Greater Use of Electronic Filing
In the Notice, we sought comment on whether and to what extent we
ought to augment even further the use of electronic filing of pleadings
through the Electronic Comment Filing System (ECFS) in Commission
proceedings. See 25 FCC Rcd at 2434. In the Report and Order, we find
it in the public interest to require the use of electronic filing
whenever technically feasible, and amend section 1.49 accordingly. See
47 CFR 1.49. To begin the implementation of this policy, and in
conjunction with our decision to expand the use of numbered docketing,
we require migration of the following categories of proceedings to a
fully electronic filing format via ECFS: Newly filed formal complaints
concerning common carriers under section 208 (see 47 U.S.C. 208; 47 CFR
1.720 et seq.) and newly filed pole attachment complaints under section
224 (see 47 U.S.C. 224; 47 CFR 1.1401 et seq.); customer proprietary
network information (CPNI) proceedings (see 47 U.S.C. 222; 47 CFR
64.2001 et seq.); Cable Special Relief petitions (see 47 CFR 76.7 et
seq.); proceedings involving Over-the-Air Reception Devices (see 47 CFR
1.4000 et seq.); and common carrier certifications (see 47 CFR
54.314.). We anticipate that in future orders we will extend the
electronic filing requirement to other categories of proceedings
(changes which would not require the use of notice and comment
procedures, see 5 U.S.C. 553(b)(A)). During the transition to a
comprehensive electronic filing regime, we permit bureaus and offices
to permit paper filing in specific proceedings within the categories
listed above, after notice to the public, if such a requirement would
raise special technical difficulties or impose undue burdens upon the
Commission and its staff; would not materially enhance public
accessibility because, for instance, the filings in a proceeding could
be accessed electronically in any event; or otherwise would not be in
the public interest.
In the Notice, we also sought comment on the implications of an
electronic filing requirement for parties wishing to submit materials
under a request for confidentiality. See 25 FCC Rcd at 2435. In the
Report and Order, we determine both that confidential filings ought to
continue to be made in paper format and that in proceedings subject to
electronic filing, parties seeking confidential treatment of a portion
of a filing must submit in electronic format either a redacted version
of the document (with filers bearing sole responsibility for ensuring
that the redacted material is not viewable or accessible) or an
affidavit that it is impossible to submit a redacted document
consistent with section 0.459 of the Commission's rules. See 47 CFR
0.459. In extreme cases, where a party demonstrates that even the fact
of the filing must remain confidential and that section 0.459 permits
this, the affidavit may be filed in paper format under seal. This
approach will ensure an appropriate balance between the twin goals of
openness and transparency, on one hand, and protection of legitimate
claims of confidentiality on the other.
An additional issue we raised in the Notice concerned the
Commission's use of electronic filing mechanisms other than ECFS. See
25 FCC Rcd at 2435. Because the Commission currently is considering
reforms to some of these other systems and envisions establishing a
single portal for all Commission licensing systems, we reserve judgment
in the Report and Order as to how to resolve issues involving the
interplay between ECFS and other systems (such as, for example, whether
filers using those systems also should be permitted to file or
precluded from filing in ECFS). These issues will be addressed as new
systems are developed and brought online.
We also sought comment on whether electronic filings through ECFS
or our other electronic filing systems should be ``machine readable.''
See 25 FCC Rcd at 2435-36. Specifically, we asked whether to require
the submission of text filings in a searchable format (e.g., the
Microsoft Word ``.doc'' format or the non-copy protected, text-
searchable Adobe ``.pdf'' format), and whether to require that
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''). In the Report and Order, we determine that electronic
filings with the Commission should be machine readable whenever
technically possible. In particular, filings containing text should be
submitted in a format conducive to electronic search and/or copying,
such as a Microsoft Word document or an Adobe .pdf copy. Similarly,
filings containing non-text information should be submitted in native
format such that, for example, third parties can sort the spreadsheet
data within a filing using Microsoft Excel or similar programs. In
cases of attachments exceeding 500 pages, information to be submitted
in a format that does not permit electronic filing, and other
exceptional circumstances, we will consider a waiver of the electronic
filing requirement on a case-by-case basis. Filings submitted to ECFS
in .pdf or similar format should not be locked or password-protected.
Failure to abide by this requirement may result in rejection by the
filing system, and parties will have to resubmit by the filing deadline
a machine-readable file that meets this requirement. We direct the
Consumer and Governmental Affairs Bureau (CGB), in consultation with
other bureaus and offices as necessary, to further develop requirements
embodying these principles and to publish by public notice any
additional technical rules or standards that may be necessary to
implement our decision.
Finally, consistent with our goal of minimizing paper submissions
to the Commission, we amend sections 1.51 and 1.419 of our rules to
provide that parties are required to file with the Commission only one
original and one copy of each submission made in paper format, unless
another Commission rule specifically provides otherwise. In addition to
easing the practical burdens of participation on parties and members of
the general public (for example, in some circumstances, our rules
currently require the submission of an original and 14 copies of a
filing, see 47 CFR 1.51(a)(2)), this reform will lessen the storage
demands on Commission staff and promote more environmentally
sustainable agency practice.
3. Electronic Notification in Certain Proceedings
Section 1.47 of the Commission's rules requires agency service of
copies of orders, pleadings, and other documents on parties to a
proceeding when required by statute or regulation. See 47 CFR 1.47.
Typically, such service is made by mail. As we observed in the Notice,
this process can be cumbersome and time-consuming, particularly when
[[Page 24386]]
many parties participate in a particular proceeding or when every
document in a long-running docket must be served on every party over
the life of the proceeding. See 25 FCC Rcd at 2436. In order to
streamline Commission processes and improve efficiency, we amend
section 1.47 of the Commission's rules, and make conforming changes to
section 0.445, to allow the agency to serve parties to a proceeding in
an electronic format (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 determine that the
Commission's service obligation will be satisfied by issuing a public
notice that identifies the documents required to be served and that
explains how parties can obtain copies of the documents. We allow staff
to decide the appropriate format for electronic notification in a
particular proceeding, consistent with any applicable statutory
requirements, but expect that service by public notice will be used
only in proceedings with 20 or more parties.
4. Termination of Dormant Proceedings
Mindful of the more than three thousand open dockets at the
Commission, we proposed in the Notice to adopt rules permitting the
termination of dormant proceedings. See 25 FCC Rcd at 2436. In the
Report and Order, we amend section 0.141 of our organizational rules to
delegate authority to the Chief of the CGB 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 will consult with the
Commission bureau or office with responsibility for that docket and,
with the concurrence of the relevant bureau or office, will take the
appropriate action to close the docket. In order to afford interested
persons an opportunity to comment before any particular proceeding is
terminated, we require the issuance of a public notice and a reasonable
opportunity for public input prior to termination of a proceeding. The
termination of a dormant proceeding also will be considered to include
dismissal as moot of any pending petition, motion, or other request for
relief in that proceeding that is procedural in nature or otherwise
does not address the merits of the proceeding. A party aggrieved by a
termination under this delegation of authority may file a petition for
reconsideration with the Consumer and Governmental Affairs Bureau or an
application for review with the full Commission. See 47 U.S.C.
155(c)(4); 47 CFR 1.115(a); 47 CFR 1.106.
Proceedings that are candidates for termination might include
dockets in which no further action is required or contemplated and
dockets in which no pleadings or other documents have been filed for
several years. On the other hand, proceedings in which petitions
addressing the merits are pending--for example, proceedings containing
timely filed petitions for reconsideration that have not been
addressed--should not be terminated under the authority delegated here
unless the parties consent. We leave to the discretion of the CGB Chief
the practical determinations involved in deciding which proceedings to
terminate (e.g., identifying a minimum period of dormancy that might
indicate a particular docket should be considered for termination). We
also note that the record in a terminated docket remains part of the
Commission's official records, and that the various pleadings, orders,
and other documents in that docket will continue to be accessible to
the public post-termination.
Reconsideration of Agency Decisions
In the Notice, we discussed our current rules regarding
reconsideration of Commission orders, noting that updating these rules
could promote more efficient and accessible decision-making and give
the Commission beneficial procedural flexibility in performing its
functions. See 25 FCC Rcd at 2431-33. In the Report and Order, we
address the two categories of rules on reconsideration that we
identified in the Notice: petitions for reconsideration in rulemaking
and adjudicatory proceedings, and reconsideration on the Commission's
own motion.
1. Petitions for Reconsideration
Two procedural rules govern petitions for reconsideration of
Commission orders. Section 1.429 applies to petitions for
reconsideration of final orders issued in notice and comment rulemaking
proceedings, while section 1.106 is a ``catch-all'' provision for
petitions for reconsideration in agency adjudications. See 47 CFR
1.429., 1.106. As an initial matter, because the captions of the two
rules are generic and do not explicitly reflect the dichotomy between
rulemaking and adjudication, we revise the captions for sections 1.106
and 1.429 to ``Petitions for reconsideration in non-rulemaking
proceedings'' and ``Petitions for reconsideration of final orders in
rulemaking proceedings,'' respectively. This proposal is a non-
substantive clarification that should aid practitioners and the public
in distinguishing between the rules for reconsideration in each
context.
We also amend these rules to allow the agency to resolve more
efficiently and expeditiously petitions for reconsideration filed with
the Commission that are procedurally defective or merely repeat
arguments the Commission previously has rejected, and that do not
require the attention of the full Commission. Specifically, we amend
sections 1.429 and 1.106 to authorize bureaus or offices to dismiss or
deny petitions such as these on delegated authority. For a similarly
procedurally defective or repetitive petition directed to a bureau or
office (rather than the full Commission) seeking reconsideration of a
staff-level decision, we delegate authority to the relevant bureau or
office to dismiss or deny the petition.
For the guidance of staff and the public, the Report and Order
includes the following illustrative list of circumstances in which
staff may dismiss or deny a reconsideration petition on the basis that
it plainly does not warrant consideration by the full Commission: (1) A
petitioner omits information required by the Commission's rules to be
included with a petition for reconsideration or otherwise fails to
comply with procedural requirements set forth by the rules; (2) a
petitioner fails to identify any material error, omission, or reason
warranting reconsideration or fails to state with particularity the
respects in which the petitioner believes the action taken should be
changed; (3) a petitioner relies upon arguments that have been fully
considered and rejected by the Commission within the same proceeding;
(4) a petition relates to matters outside the scope of the order for
which reconsideration has been requested; (5) a petitioner relies upon
facts or arguments that could have been presented previously to the
Commission or its staff but were not; (6) a petition relates to an
order for which reconsideration has been previously denied on similar
grounds; and (7) a petition was untimely filed. We expect that staff
will refrain from exercising this authority to dismiss petitions for
reconsideration in close cases, and will avoid dismissal on procedural
grounds when it is in the public interest to do so. We also note that a
party aggrieved by a staff dismissal or denial of a petition for
reconsideration under this provision may file an application for review
with the full Commission. See 47 U.S.C. 155(c)(4); 47 CFR 1.115(a).
[[Page 24387]]
In the Notice, we further proposed to require that persons filing
petitions for reconsideration of Commission action do so through ECFS.
See 25 FCC Rcd at 2432. In the Report and Order, we amend our rules to
emphasize that in docketed proceedings, petitions for reconsideration
submitted by electronic means other than ECFS (such as electronic mail)
and petitions submitted directly to staff shall not be considered to
have been properly filed, unless a law or rule specifically permits the
alternative means of filing.
Finally, we proposed in the Notice to amend section 1.429 to
provide that this rule, rather than the ``catch-all'' reconsideration
provision in section 1.106, applies to petitions for reconsideration of
Commission orders adopting rules without notice and comment (such as
orders establishing or amending rules of agency organization,
procedure, or practice). See 25 FCC Rcd at 2432. In the Report and
Order, we decide to apply section 1.429 to orders adopting rules
without notice and comment.
2. Reconsideration on the Commission's Own Motion
In the Notice, we proposed to amend section 1.108 of the
Commission's rules, captioned ``Reconsideration on Commission's own
motion,'' which provides that ``[t]he 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.'' See 47 CFR 1.108. One court has
construed this provision narrowly to preclude Commission modification
of an action. See Sprint Corp. v. FCC, 315 F.3d 369, 375 (DC Cir.
2003). Because the purpose of the rule is to provide the Commission a
mechanism for exercising plenary power to reconsider actions on its own
motion, we amend section 1.108 to conform to the fuller definition of
``reconsider'' in section 1.106(k)(1), 47 CFR 1.106(k)(1).
Miscellaneous Part 1 Rules
We proposed in the Notice to amend other Part 1 procedural rules to
clarify and improve our practices. We adopt these and other changes, as
detailed below.
1. Effective Dates of Rules
Section 1.427(a), entitled ``Effective date of rules,'' provides
that ``[a]ny 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.'' See 47 CFR 1.427(a). This provision contemplates that the
Commission will specify in its rulemaking orders the effective date of
adopted rules. While this typically is the case, the omission of such a
statement can create confusion in the absence of a default rule on
effective dates. See 25 FCC Rcd at 2437 & n.26. To forestall such
confusion, we amend section 1.427(a) 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 (e.g.,
when an adopted rule requires approval by the Office of Management and
Budget under the Paperwork Reduction Act), the rule will become
effective 30 days after publication in the Federal Register unless a
later effective date is required by statute (such as the Congressional
Review Act) or otherwise is specified by the Commission.
2. Computation of Time
Deadlines for Commission Action Established by Rule. As stated in
the Notice, uncertainty can arise when the Commission's rules set a
deadline for Commission action on a date when the agency is not open
for business. See 25 FCC Rcd at 2438. Although Section 1.4(j) of the
Commission's rules adopts a ``next business day'' standard when a
filing is due on such a date, it does not address the parallel
situation in which Commission action is due by regulation. See 47 CFR
1.4(j). We amend this rule to provide that when the due date for
Commission action otherwise would fall on a holiday, as defined by
section 1.4(e)(1) of the rules, that date will be extended to the next
business day.
Deadlines for Commission Action Established by Statute. As proposed
in the Notice, we adopt a similar standard for statutory deadlines for
Commission action, many of which arise under the Communications Act.
See 25 FCC Rcd at 2438 & n.35. Specifically, in cases where a statutory
deadline for Commission action falls on a holiday, as defined in
section 1.4(e)(1) of our rules, we construe that deadline to require
Commission action by the next business day, unless the statute provides
otherwise. To effect this change, we amend section 1.4(a) of our rules
to clarify its application to statutory deadlines for Commission action
and add a new section 1.4(l) that applies the ``next business day''
standard (with the caveat for any statutory filing requirement) in this
context.
Definition of ``Holiday.'' As a matter of agency organization and
practice, we adopt a clarifying change to section 1.4(e)(1) of our
rules. Section 1.4(e)(1) currently defines the term ``holiday'' as
``Saturday, Sunday, officially recognized Federal legal holidays and
any other day on which the Commission's offices are closed and not
reopened prior to 5:30 p.m. For example, a regularly scheduled
Commission business day may become a holiday if its offices are closed
prior to 5:30 p.m. due to adverse weather, emergency or other
closing.'' 47 CFR 1.4(e)(1). We revise this rule in order expressly to
address circumstances in which Commission Headquarters is closed but an
office at a different Commission location is open, or a particular
Commission office other than Headquarters is closed. Specifically, we
amend section 1.4(e)(1) to clarify that the term ``holiday'' includes
any day on which either the Commission's Headquarters are closed and
not reopened prior to 5:30 p.m., or on which a Commission office aside
from Headquarters is closed, but only with respect to filings that may
be made in paper format at that non-Headquarters office or decisions
that are issued by that office. For example, a regularly scheduled
Commission business day may become a holiday with respect to the entire
Commission if Headquarters is closed prior to 5:30 p.m. due to adverse
weather, emergency or other closing, and a regularly scheduled
Commission business day may become a holiday with respect to a
particular Commission office aside from Headquarters if either
Headquarters or that office is closed prior to 5:30 p.m. due to similar
circumstances.
3. Clerical Corrections to Sections 1.1164 and 1.1912
We make two clerical corrections to sections 1.1164 and 1.1912 of
our rules, 47 CFR 1.164 and 1.1912. Section 1.1164 addresses penalties
for late or insufficient regulatory fee payments. Section 1.1164(c)
provides that ``[i]f a regulatory fee is paid in a timely manner, the
regulatee will be notified of its deficiency.'' We amend this section
in order to clarify its application to regulatees that do not pay
requisite fees in a timely manner. Second, 1.1912 establishes
procedures for debt collection by administrative offset, and further
provides that the Commission ``may omit [these] procedures set forth in
paragraph (a)(4)(i) of this section'' under certain circumstances. We
change the reference in this provision to ``paragraph (b)(4)(i)'' of
section 1.1912, which sets forth the relevant procedures.
Miscellaneous Part 0 Rules
Finally, we take this opportunity to make editorial changes to our
regulations implementing the Freedom
[[Page 24388]]
of Information Act (FOIA), 5 U.S.C. 552, so as to address issues that
have come to our attention since we last reviewed and amended these
regulations. See Amendment of Part 0 of the Commission's Rules
Regarding Public Information, the Inspection of Records, and
Implementing the Freedom of Information Act, 24 FCC Rcd 6904 (2008)
(FOIA Rules). In section 0.453(c)(5), we inadvertently omitted the
words ``carrier-to-carrier'' in the description of informal complaints
that are routinely available, and amend that subsection accordingly.
See 47 CFR 0.453(c)(5). Section 0.459(f) incorrectly cites section
0.457(g), instead of section 0.457(d), and is corrected. See 47 CFR
0.459(f). In the FOIA Rules decision, we indicated that we were
amending our rules ``to require that written requests to obtain copies
of records routinely available for public inspection must be processed
through the Commission's copy contractor under section 0.465.'' See 24
FCC Rcd at 6907. We did not amend sections 0.460 or 0.465 to reflect
these changes, and therefore do so in this Report and Order. We also
change the citation in section 0.465(f) to section 0.460(a) in order to
reference the proper rule allowing persons to appear at the Commission
to review or copy available records. See 47 CFR 0.465(f). Section 0.461
refers to both calendar and business days, and is corrected to
consistently refer to calendar days. See 47 CFR 0.461. The words
``representation of the news media'' in the last sentence of section
0.466(a)(4) is changed to ``representative of the news media'' to
reflect the original intent of the law. See 47 CFR 0.466(a)(4). Section
0.467(a)(2) of our rules indicates that search and review fees for
Commission employees are computed at the General Schedule level plus
personnel benefits, but this does not include ``other non-FCC personnel
who conduct a search'' as provided in section 0.467(a)(1). See 47 CFR
0.467(a)(1)-(2). We amend section 0.467(a)(2) to include such
personnel. Finally, section 0.470(b)(1) refers to copying pages, but
also refers to microfiches and computer printouts. See 47 CFR
0.470(b)(1). We eliminate the latter obsolete references.
No Notice and Comment Required. We have determined that the changes
we adopt here are general statements of policy, interpretive rules, or
rules of agency organization, procedure or practice, and are therefore
exempt from the notice and comment requirements of the APA, 5 U.S.C.
553(b)(A) (notice requirements inapplicable to ``interpretive rules,
general statements of policy, or rules of agency organization,
procedure or practice''). Nonetheless, the Commission initiated notice
and comment procedures in order to obtain public input on proposed
changes to our procedural and organizational rules.
Regulatory Flexibility Act. Our action does not require notice and
comment, and therefore is not subject to the Regulatory Flexibility Act
of 1980, as amended. See 5 U.S.C. 601(2), 603(a). We nonetheless note
that we anticipate that the rules we adopt 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 primarily 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. To the contrary, we take today's actions with the
expectation that overall they will make dealings with the Commission
quicker, easier, and less costly for entities of all sizes.
Paperwork Reduction Act. This document does not contain new or
modified proposed information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition,
therefore, it does not contain any new or modified information
collection burden for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4) (SBPRA).
Congressional Review Act. The Commission will not send a copy of
this Report and Order pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A), because the adopted rules are rules relating to
agency management or personnel and rules of agency organization,
procedure, or practice that do not ``substantially affect the rights or
obligations of non-agency parties.''
List of Subjects
47 CFR Part 0
Organization and functions (Government agencies).
47 CFR Part 1
Administrative practice and procedure, claims, Communications
common carriers, Federal buildings and facilities, Investigations,
Lawyers, Telecommunications.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 0 and 1 as follows:
PART 0--COMMISSION ORGANIZATION
0
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.
0
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 reviews the status of open docketed proceedings and,
following:
(1) Consultation with and concurrence from the relevant bureau or
office with responsibility for a particular proceeding,
(2) The issuance of a public notice listing proceedings under
consideration for termination, and;
(3) A reasonable period during which interested parties may
comment, closes any docket in which no further action is required or
contemplated (with termination constituting a final determination in
any such proceeding).
* * * * *
0
3. Section 0.445 is amended by revising paragraph (a) to read as
follows:
[[Page 24389]]
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.
* * * * *
0
4. Section 0.453 is amended by revising paragraph (c)(5) to read as
follows:
Sec. 0.453 Public reference rooms.
* * * * *
(c) * * *
(5) All formal and informal carrier-to-carrier complaints against
common carriers filed under Sec. 1.711 through Sec. 1.735 of this
chapter, all documents filed in connection therewith, and all
communications related thereto;
* * * * *
0
5. Section 0.459 is amended redesignating paragraphs (a)(2) and (3) as
paragraphs (a)(3) and (4), by revising paragraph (a)(1) and adding new
paragraph (a)(2), and revising paragraph (f) to read as follows:
Sec. 0.459 Requests that materials or information submitted to the
Commission be withheld from public inspection.
(a)(1) Procedures applicable to filings in non-electronic
proceedings. Any person submitting information or materials to the
Commission may submit therewith a request that such information not be
made routinely available for public inspection. (If the materials are
specifically listed in Sec. 0.457, such a request is unnecessary.) A
copy of the request shall be attached to and shall cover all of the
materials to which it applies and all copies of those materials. If
feasible, the materials to which the request applies shall be
physically separated from any materials to which the request does not
apply; if this is not feasible, the portion of the materials to which
the request applies shall be identified. In the latter circumstance,
where confidential treatment is sought only for a portion of a
document, the person submitting the document shall submit a redacted
version for the public file.
(2) Procedures applicable to filings in electronic proceedings. In
proceedings to which the electronic filing requirements set forth in
Sec. 1.49(f) of this chapter apply, a party seeking confidential
treatment of a portion of a filing must submit in electronic format
either a redacted version of the document or an affidavit that it is
impossible to submit a redacted document consistent with the filing
requirements of this section. Where a party demonstrates that even the
fact of a filing must remain confidential, and that this is consistent
with the requirements of this section, this affidavit may be filed in
paper format under seal.
* * * * *
(f) If no request for confidentiality is submitted, the Commission
assumes no obligation to consider the need for non-disclosure but, in
the unusual instance, may determine on its own motion that the
materials should be withheld from public inspection. See Sec.
0.457(d).
* * * * *
0
6. Section 0.460 is amended by revising paragraph (e)(1) to read as
follows:
Sec. 0.460 Requests for inspection of records which are routinely
available for public inspection.
* * * * *
(e)(1) Written requests for records routinely available for public
inspection under Sec. Sec. 0.453 and 0.455 shall be directed to the
Commission's copy contractor pursuant to the procedures set forth in
Sec. 0.465. Requests shall be captioned ``Request For Inspection Of
Records,'' shall be dated, shall list the mailing address, telephone
number (if any) of the person making the request, and the e-mail
address (if any) and for each document requested, shall set out all
information known to the person making the request which would be
helpful in identifying and locating the document. Written requests
shall, in addition, specify the maximum search fee the person making
the request is prepared to pay (see Sec. 0.467).
* * * * *
0
7. Section 0.461 is amended by revising paragraph (d)(3) introductory
text (note remains unchanged) to read as follows:
Sec. 0.461 Requests for inspection of materials not routinely
available for public inspection.
* * * * *
(d) * * *
(3) If the request is for materials submitted to the Commission by
third parties and not open to routine public inspection under Sec.
0.457(d), Sec. 0.459, or another Commission rule or order, or if a
request for confidentiality is pending pursuant to Sec. 0.459, or if
the custodian of records has reason to believe that the information may
contain confidential commercial information, one copy of the request
will be provided by the custodian of the records (see Sec. 0.461(e))
to the person who originally submitted the materials to the Commission.
If there are many persons who originally submitted the records and are
entitled to notice under this paragraph, the custodian of records may
use a public notice to notify the submitters of the request for
inspection. The submitter or submitters will be given ten calendar days
to respond to the FOIA request. See Sec. 0.459(d)(1). If a submitter
has any objection to disclosure, he or she is required to submit a
detailed written statement specifying all grounds for withholding any
portion of the information (see Sec. 0.459). This response shall be
served on the party seeking to inspect the records. The requester may
submit a reply within ten calendar days unless a different period is
specified by the custodian of records. The reply shall be served on all
parties that filed a response. In the event that a submitter fails to
respond within the time specified, the submitter will be considered to
have no objection to disclosure of the information.
* * * * *
0
8. Section 0.465 is amended by revising paragraphs (b) and (f) to read
as follows:
Sec. 0.465 Request for copies of materials which are available, or
made available, for public inspection.
* * * * *
(b)(1) Records routinely available for public inspection under
Sec. Sec. 0.453 and 0.455 are available to the public through the
Commission's current copy contractor. Section 0.461 does not apply to
such records.
(2) Audio or video recordings or transcripts of Commission
proceedings are available to the public through the Commission's
current copy contractor. In some cases, only some of these formats may
be available.
* * * * *
(f) Anyone requesting copies of documents pursuant to this section
may either come in person to the Commission (see Sec. 0.460(a)) or
request that the copy contractor fulfill the request. If a request goes
directly to the contractor, the requester will be charged by the
contractor pursuant to the price list set forth in the latest contract.
0
9. Section 0.466 is amended by revising paragraph (a)(4) to read as
follows:
Sec. 0.466 Definitions.
(a) * * *
(4) The term commercial use request refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial
[[Page 24390]]
interests of the requester. In determining whether a requester properly
falls within this category, the Commission shall determine the use to
which a requester will put the documents requested. Where the
Commission has reasonable cause to question the use to which a
requester will put the documents sought, or where that use is not clear
from the request itself, the Commission shall seek additional
clarification before assigning the request to a specific category. The
dissemination of records by a representative of the news media (see
Sec. 0.466(a)(7)) shall not be considered to be for a commercial use.
* * * * *
0
10. Section 0.467 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 0.467 Search and review fees.
(a) * * *
(2) The fees specified in paragraph (a)(1) of this section are
computed at Step 5 of each grade level based on the General Schedule or
the hourly rate of non-FCC personnel, including in addition twenty
percent for personnel benefits. Search and review fees will be assessed
in \1/4\ hour increments.
* * * * *
0
11. Section 0.470 is amended by revising paragraph (b)(1) to read as
follows:
Sec. 0.470 Assessment of fees.
* * * * *
(b)(1) The 100 page restriction on assessment of reproduction fees
in paragraphs (a)(2) and (3) of this section refers to 100 paper copies
of a standard size, which will normally be ``8\1/2\ x 11'' or ``11 x
14.''
* * * * *
PART 1--PRACTICE AND PROCEDURE
0
12. 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.
0
13. Section 1.2 is revised to read as follows:
Sec. 1.2 Declaratory rulings.
(a) The Commission may, in accordance with section 5(d) of the
Administrative Procedure Act, on motion or on its own motion issue a
declaratory ruling terminating a controversy or removing uncertainty.
(b) The bureau or office to which a petition for declaratory ruling
has been submitted or assigned by the Commission should docket such a
petition within an existing or current proceeding, depending on whether
the issues raised within the petition substantially relate to an
existing proceeding. The bureau or office then should seek comment on
the petition via public notice. Unless otherwise specified by the
bureau or office, the filing deadline for responsive pleadings to a
docketed petition for declaratory ruling will be 30 days from the
release date of the public notice, and the default filing deadline for
any replies will be 15 days thereafter.
0
14. Section 1.4 is amended by revising paragraphs (a), (e)(1)
introductory text, redesignating the note following paragraph (e)(1) as
``Note to paragraph (e)(1),'' revising paragaph (j) introductory text,
and adding paragraph (l) 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 statute, a Commission rule, or Commission
order.
* * * * *
(e) * * *
(1) The term holiday means Saturday, Sunday, officially recognized
Federal legal holidays and any other day on which the Commission's
Headquarters are closed and not reopened prior to 5:30 p.m., or on
which a Commission office aside from Headquarters is closed (but, in
that situation, the holiday will apply only to filings with that
particular office). For example, a regularly scheduled Commission
business day may become a holiday with respect to the entire Commission
if Headquarters is closed prior to 5:30 p.m. due to adverse weather,
emergency or other closing. Additionally, a regularly scheduled
Commission business day may become a holiday with respect to a
particular Commission office aside from Headquarters if that office is
closed prior to 5:30 p.m. due to similar circumstances.
* * * * *
(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.
* * * * *
(l) When Commission action is required by statute to be taken by a
date that falls on a holiday, such action may be taken by the next
business day (unless the statute provides otherwise).
0
15. 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 in
agency proceedings (i.e., not in the context of judicial proceedings,
Congressional investigations, or other proceedings outside the
Commission) may be served in electronic form. In proceedings involving
a large number of parties, and unless otherwise provided by statute,
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.
Note to paragraph (a): Section 1.47(a) grants staff the
authority to decide upon the appropriate format for electronic
notification in a particular proceeding, consistent with any
applicable statutory requirements. The Commission expects that
service by public notice will be used only in proceedings with 20 or
more parties.
* * * * *
0
16. Section 1.49 is amended by revising paragraph (f) and redesignating
the note at the end of the section as ``Note to Sec. 1.49''.
The revision reads as follows:
Sec. 1.49 Specifications as to pleadings and documents.
* * * * *
(f)(1) In the following types of proceedings, all pleadings,
including permissible ex parte submissions, notices of ex parte
presentations, comments, reply comments, and petitions for
reconsideration and replies thereto, must be filed in electronic
format:
[[Page 24391]]
(i) Formal complaint proceedings under Section 208 of the Act and
rules in Sec. Sec. 1.720 through 1.736, and pole attachment complaint
proceedings under Section 224 of the Act and rules in Sec. Sec. 1.1401
through 1.1418;
(ii) Proceedings, other than rulemaking proceedings, relating to
customer proprietary network information (CPNI);
(iii) Proceedings relating to cable special relief petitions;
(iv) Proceedings involving Over-the-Air Reception Devices; and
(v) Common carrier certifications under rule in Sec. 54.314 of
this chapter.
(2) Unless required under paragraph (f)(1) of this section, in the
following types of proceedings, all pleadings, including permissible ex
parte submissions, notices of ex parte presentations, comments, reply
comments, and petitions for reconsideration and replies thereto, may be
filed in electronic format:
(i) General rulemaking proceedings other than broadcast allotment
proceedings;
(ii) Notice of inquiry proceedings;
(iii) Petition for rulemaking proceedings (except broadcast
allotment proceedings); and
(iv) Petition for forbearance proceedings.
(3) For purposes of paragraphs (b) and (c) of this section, and any
prescribed pleading lengths, the length of any document filed in
electronic form shall be equal to the length of the document if printed
out and formatted according to the specifications of paragraph (a) of
this section, or shall be no more that 250 words per page.
0
17. Section 1.51 is revised to read as follows:
Sec. 1.51 Number of copies of pleadings, briefs, and other papers.
(a) In hearing proceedings, unless otherwise specified by
Commission rules, an original and one copy shall be filed, along with-
an additional copy for each additional presiding officer at the
hearing, if more than one.
(b) In rulemaking proceedings which have not been designated for
hearing, see Sec. 1.419.
(c) In matters other than rulemaking and hearing cases, unless
otherwise specified by Commission rules, an original and one copy shall
be filed. If the matter relates to part 22 of the rules, see Sec. 22.6
of this chapter.
(d) Where statute or regulation provides for service by the
Commission of papers filed with the Commission, an additional copy of
such papers shall be filed for each person to be served.
(e) The parties to any proceeding may, on notice, be required to
file additional copies of any or all filings made in that proceeding.
(f) For application and licensing matters involving the Wireless
Radio Services, pleadings, briefs or other documents may be filed
electronically in ULS, or if filed manually, one original and one copy
of a pleading, brief or other document must be filed.
(g) Participants that file pleadings, briefs or other documents
electronically in ULS need only submit one copy, so long as the
submission conforms to any procedural or filing requirements
established for formal electronic comments. (See Sec. 1.49)
(h) Pleadings, briefs or other documents filed electronically in
ULS by a party represented by an attorney shall include the name,
street address, and telephone number of at least one attorney of
record. Parties not represented by an attorney that file electronically
in ULS shall provide their name, street address, and telephone number.
0
18. Section 1.106 is amended by revising the section heading and
paragraphs (a)(1), (b)(2), (c), (d), (i), and (j), and by adding
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 rulemaking
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.
* * * * *
(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 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 only 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
[[Page 24392]]
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 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
by the Commission 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
paragraph (e) of this section (relating to electrical interference);
(7) Fail to comply with the procedural requirements set forth in
paragraphs (f) and (i) of this section;
(8) relate to an order for which reconsideration has been
previously denied on similar grounds, except for petitions which could
be granted under paragraph (c) of this section; or
(9) Are untimely.
* * * * *
0
19. 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). 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).
0
20. Section 1.419 is amended by revising paragraph (b) to read as
follows:
Sec. 1.419 Form of comments and replies; number of copies.
* * * * *
(b) Unless otherwise specified by Commission rules, an original and
one copy of all comments, briefs and other documents filed in a
rulemaking proceeding shall be furnished to the Commission. The
distribution of such copies shall be as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
Secretary (original)............................................. 1
Reference Information Center..................................... 1
------
Total........................................................ 2
------------------------------------------------------------------------
Participants filing the required 2 copies who also wish each
Commissioner to have a personal copy of the comments may file an
additional 5 copies. The distribution of such copies shall be as
follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
Commissioners.................................................... 5
Secretary (original)............................................. 1
Reference Information Center..................................... 1
------
Total........................................................ 7
------------------------------------------------------------------------
Similarly, members of the general public who wish to express their
interest by participating informally in a rulemaking proceeding may do
so by submitting an original and one copy of their comments, without
regard to form, provided only that the Docket Number is specified in
the heading. Informal comments filed after close of the reply comment
period, or, if on reconsideration, the reconsideration reply comment
period, should be labeled ``ex parte'' pursuant to Sec. 1.1206(a).
Letters submitted to Commissioners or Commission staff will be treated
in the same way as informal comments, as set forth above. Also, to the
extent that an informal participant wishes to submit to each
Commissioner a personal copy of a comment and has not submitted or
cannot submit the comment by electronic mail, the participant may file
an additional 5 copies. The distribution of such copies shall be as
follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
Commissioners.................................................... 5
Secretary (original)............................................. 1
Reference Information Center..................................... 1
------
Total........................................................ 7
------------------------------------------------------------------------
* * * * *
0
21. 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 a later date is required by statute or is otherwise
specified by the Commission.
* * * * *
0
22. Section 1.429 is amended by revising the section heading and
paragraphs (b), (h), and (i), and by adding 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 only by
electronic mail and petitions submitted directly to staff without
submission to the Secretary shall not be considered to have been
properly filed.
[[Page 24393]]
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 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 (3) of this section;
(3) Rely on arguments that have been fully considered and rejected
by the Commission 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 denied on similar grounds, except for petitions which could
be granted under paragraph (b) of this section; or
(9) Are untimely.
* * * * *
0
23. Section 1.1164 is amended by revising paragraph (c) to read as
follows:
Sec. 1.1164 Penalties for late or insufficient regulatory fee
payments.
* * * * *
(c) If a regulatory fee is not paid in a timely manner, the
regulatee will be notified of its deficiency. This notice will
automatically assess a 25 percent penalty, subject the delinquent
payor's pending applications to dismissal, and may require a delinquent
payor to show cause why its existing instruments of authorization
should not be subject to rescission.
* * * * *
0
24. Section 1.1912 is amended by revising paragraph (b)(4)(ii) to read
as follows:
Sec. 1.1912 Collection by administrative offset.
* * * * *
(b) * * *
(4) * * *
(ii) The Commission may omit the procedures set forth in paragraph
(b)(4)(i) of this section when:
(A) The offset is in the nature of a recoupment;
(B) The debt arises under a contract as set forth in Cecile
Industries, Inc. v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and
other procedural protections set forth in 31 U.S.C. 3716(a) do not
supplant or restrict established procedures for contractual offsets
accommodated by the Contracts Disputes Act); or
(C) In the case of non-centralized administrative offsets conducted
under paragraph (c) of this section, the Commission first learns of the
existence of the amount owed by the debtor when there is insufficient
time before payment would be made to the debtor/payee to allow for
prior notice and an opportunity for review. When prior notice and an
opportunity for review are omitted, the Commission shall give the
debtor such notice and an opportunity for review as soon as practicable
and shall promptly refund any money ultimately found not to have been
owed to the Government.
* * * * *
[FR Doc. 2011-10356 Filed 4-29-11; 8:45 am]
BILLING CODE 6712-01-P